THE NEDLLOYD COLOMBO (OWNERS OF CARGO) v. SOUTH AFRICAN MARINE CORPORATION LTD.

IN THE COURT OF APPEAL

1995, No. 59
(Civil)

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D E C I S I O N

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Litton, V.-P.:

1. On 13 June this year this court gave judgment against the Plaintiffs. They were owners of cargo lately laden on the "Colombo Nedlloyd". They now seek leave from us to appeal to Her Majesty in Council.

2. The applicants sued Nedlloyd the owners of the vessel for damages for violation of their rights as cargo owners. Their claim as quantified in the points of claim amounted to well over HK$500,000. Safmarine were the party who issued the bills of lading and they intervened saying in effect that the applicants' suit against Nedlloyd was a violation of their legal rights under the bill of lading. By our judgment of 13 June, over-ruling the judge, the applicants' suit against Nedlloyd has been permanently stayed.

3. The applicants say that as a matter of our discretion under Rule 2(b) of the 1909 Rules governing appeals to Her Majesty in Council we should give them leave to appeal.

4. Mr Geoffrey Ma QC, counsel for the applicants, cites Zuliani v. Veira [1994] 1 WLR 1149 at 1155E to this effect:

"No doubt there will be many cases, of which the present is one, where it can be said as a matter of the utmost probability, or even of virtual certainty, that the damages ultimately awarded will be in excess of E.C. $5,000 (the limit in the relevant rules governing appeals from the Eastern Caribbean Court of Appeal), and in such cases the Court of Appeal may very well think it right, as a general rule, to grant leave in the exercise of its discretion. Equally, however, there may be cases - and again the present case may serve as an example - where the likely amount of damages is at or above the statutory threshold, but which are so lacking in merit that the Court of Appeal in its discretion would refuse leave."

5. Mr Ma QC argues that if the applicants' cargo claim should succeed against Nedlloyd, it would be a virtual certainty that they would be awarded damages well in excess of HK$500,000. That, on the evidence before us, seems to me to be well established.

6. The question is whether we should in all the circumstances of the case exercise our discretion under Rule 2(b).

7. Focusing upon the words in the Rule "the question involved in the Appeal is one which, by reason of its great general or public importance, or otherwise" I am not persuaded that the matter in question is one of great general or public importance. The point of law which the applicants wish to submit to their Lordships for determination involves in effect the proper construction of the Safmarine bill of lading. This form of bill of lading, on the evidence before us, is peculiar to the parties. There is no suggestion that it is a form in general use. In fact, the particular form has already been amended.

8. In Albright v. Hydro-Electric Power Commission of Ontario [1923] AC 167, the Privy Council declined to give special leave where the decision appealed against depended upon the proper construction of a private agreement: And, this court, in effect, followed the reasoning in Albright in the case of Kao Lee & Yip v. Edward CA 97/93, 12/11/93 (unreported) where we declined to give leave under Rule 2(b).

9. It is a matter of weighing the considerations in the round. I do not construe Lord Nolan's statement in Zuliani v. Veira (supra) as laying down any rule to the effect that the court must give leave where the amount involved would almost certainly exceed HK$500,000, unless the point under appeal is so lacking in merit that the court in its discretion should refuse leave. In my judgment the discretion is wider than that.

10. Having regard to all the circumstances, in my judgment, the proper order to make in the present case is to refuse the application. This leaves it open to the applicants to go to the Privy Council, invoking their jurisdiction to grant special leave. I would therefore dismiss this application.

Godfrey, J.A.:

11. I agree and do not wish to add anything.

Liu, J.A.:

12. I also agree.