THE "LIAN SHUN"

HCAJ44/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO.44 OF 2004

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Admiralty action in rem against : the ship or vessel “LIAN SHUN”
also known as “LUEN SHUN” (Licence No.22557Y),
“LUEN TUNG NO.18” (Licence No.22475Y) and “LIAN LE” (Licence No.22560Y)

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J U D G M E N T

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1. I have an ex parte application before me by the plaintiffs for the cargo interest that were previously laden on board the ship or barge “Luen Shun”.  As a result of what is alleged to be negligent/improper control of the cargo movement, the cargo or container was damaged and therefore the claim was brought.  The plaintiffs’ solicitors issued the writ and attempted to seek the issue of a warrant of arrest by an application made to the Registrar on 9 September with the 1^st Affidavit of Ms Sit Sin Ting Maria in support.  Actual oral hearing took place on 10 September.  The Registrar had considerable reservation as to whether the vessel in question, i.e. the vessel sought to be arrested “Lian Shun” is a ship within the meaning of the High Court Ordinance (“the Ordinance”) and by a letter dated 14 September declined to issue the warrant and referred the matter to me as the Admiralty Judge.

2. Subsequent to that letter of 14 September from the Registrar to the solicitors, a 2^nd Affidavit had been put in by Ms Sit and, in particular, she went into considerable detail as to the characteristics of this vessel sought to be arrested, i.e. “Lian Shun” and, in particular, she also exhibited a factual description of the details of this vessel “Luen Shun” set out in the letter dated 21 September from Carmichael & Clarke Co. Ltd, the well-known surveyors.

3. The question in hand is really whether the Barge “Lian Shun” comes within the meaning of the word ship in section 12E(1) of the Ordinance.  “Ship” is defined there as including “any description of vessel used in navigation and includes… a hovercraft”.  So, two concepts are set out in that definition : (1) vessel, and (2) used in navigation.

4. Vessel was described in the judgment of Sheen J in Steedman v. Schofield [1992] 2 Lloyds Rep. 163 at page 166S :

“A vessel is usually a hollow receptacle for carrying goods or people.  In common parlance ‘vessel’ is a word used to refer to craft larger than rowing boats and it includes every description of watercraft used or capable of being used as a means of transportation on water.”

5. The Barge in question was described in Carmichael & Clark Co. Ltd’s letter as being having a mast, lights, sound, crew, crew quarters, registered, licensed as “Class II” and its main use being regularly to move in the waters of Hong Kong for carrying cargo from one place to another.  The nature of this particular Barge, which is of a type commonly seen in Hong Kong, is such that, in my view, it is undoubtedly a vessel because it is certainly a receptacle for carrying goods, is larger than rowing boat, and is used as a means of transportation on water.  I have little doubt, therefore, that the first requirement of the Ordinance namely, the “vessel” is satisfied.

6. I think it is the second requirement of “used in navigation” that has caused considerable doubt in the mind of the Registrar.  Of course the Registrar did not have the benefit of the 2^nd Affidavit, so I am in the fortunate position of knowing a great deal more about this Barge.  It can be said, having regard to the very helpful submission made to me by Mr Stock for the plaintiffs, that many of the indicia of this Barge being used for navigation can be found in this case.  Firstly, it would be seen that in contrast to some reported cases where the subject matter was held to be not a ship, this Barge was not a stationary craft.  It was a craft or vessel with movement.  The second characteristic that would be seen is that it has on board all the various objects which are normally associated with navigation and I include in these, the mast on board the vessel, the various lights that are required for navigation and for navigation safety, the ability to project sound for safe navigation for example when there is fog or mist.  The Barge carries crew and crew accommodation and it is licensed as Class II by the Marine Department, which is of course a class for vessels with regular movement as opposed to Class III which is a vessel meant to be stationary.  The Barge is registered and, more importantly, it is a vessel equipped for, intended for and actually used regularly for, carriage of cargo on water from one place to another place.

7. In the judgment of Steedman, in considering whether a jet-ski was a ship the Admiralty Judge, Sheen J said in relation to the words “used in navigation” at page 166 :

“Navigation is the nautical art or science of conducting a ship from one place to another.  The navigator must be able (1) to determine the ship’s position and (2) to determine the future course or course to be steered to reach the intended destination.  The word ‘navigation’ is also used to describe the action of navigating or ordered movement of ships on water.  Hence ‘navigable waters’ means waters on which ships can be navigated.  To my mind the phrase ‘used in navigation’ conveys the concept of transporting persons or property by water to an intended destination.  A fishing vessel may go to sea and return to the harbour from which she sailed, but that vessel will nevertheless be navigated to her fishing grounds and back again.  ‘Navigation’ is not synonymous with movement on water.  Navigation is planned or ordered movement from one place to another [place].”

The expression or the phrase “planned or ordered movement from one place to another” seems to me to summarise, quite neatly and accurately, what is meant by “used in navigation”.

8. Applying that criterion, it seems to me that the third characteristic one can discern from the facts disclosed about this Barge is that its function was to carry goods regularly between various places ― from one place to another place, under a planned movement.  So, in my view, this being the characteristic of this Barge, it comes entirely within the meaning of the word in the Ordinance “used in navigation”.

9. With the benefit of the additional affidavit and the able submission of Mr Stock, I have no doubt that this Barge, the subject matter of the proposed warrant of arrest, is a ship within the meaning of the Ordinance.  I, therefore, conclude that a warrant of arrest could and should be issued and I so order.  Costs of the application be costs in the cause.