XCHRX TRANG SEAFOOD PRODUCTS CO. LTD. AND ANOTHER v. SEA-LAND SERVICE INC.

HCAJ207/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO.207 OF 1997

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J U D G M E N T

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1. I have before me, out of the seven applications, two that have now been heard where arguments had been advanced to me. The first argued Summons was on an application by the defendant to amend its Defence to allege, by way of further particulars, the case of the defendant that the cargo received in Thailand by the plaintiffs had already suffered pre-shipment damage at the time when it was originally shipped in Chile. Although there was an issue on the pleadings between the plaintiffs and the defendant as to a non-admission or denial of the good condition of the cargo at the time of shipment, this further elaboration, as now advanced by the defendant in its proposed Defence, would certainly cause the parties to do some additional work.

2. The case of the defendant is that it should be allowed to amend the Defence in the same way (under the second argued Summons) as the third party is now seeking to amend its Defence by a further elaboration of the various points that it has pleaded in its Defence which, according to Mr Stokes for the third party, consists of two main points, namely :

(1) that the damage did not occur on board the "Siri Bhum" while the cargo was under the control of the third party; and

(2) if there was any damage on board the third party's vessel, it was caused by the mal-functioning of the container which was supplied by the defendant.

3. I can understand that there is a reason for the third party to amend its Defence. Certainly the points they wish to argue are not wholly without merit. I can also understand Mr Kerr's point that if these further elaborations of the third party are admitted, the plaintiff should not be shut out from arguing the defendant's proposed defence. It seems to me, in the circumstances, that I ought to allow the amendments proposed by the defendant and by the third party.

4. During the course of the hearing, I was concerned as to the impact of the amendments on the progress of the case and, in particular, as to the fixing of the trial date which had been repeatedly sought by the plaintiff and repeatedly frustrated by the number of interlocutory applications of the defendant and the third party.

5. At the end, I think I have come to the view that by stringent case management, I can protect the interest of the plaintiff and yet still not deny to the defendant and the third party the chance to advance the points which, on first impression at present, I am not sure would necessarily succeed at the end of the day. So, what I am proposing, therefore, to do is to hear the parties on the directions that I should be giving, which would cover grounds raised by the various other summonses which have not yet been dealt with.

6. As to the question of imposing terms for the order of amendment, at the end of the day, I have come to the view that it may not be appropriate at this stage to impose on the defendant and the third party stringent terms for giving leave to amend. The usual order, of course, will apply and, that is to say, the defendant should pay to the plaintiff the costs of the application for amendment and all costs thrown away by reason of and arising out of the amendment of the pleadings, and that a similar order for costs shall apply to the third party's application to amend its defence.