E & W SHIPPING AGENCIES LTD t/a WING LEE SHIPPING CO v. THE OWNERS AND/OR DEMISE CHARTERERS OF THE SHIPS OR VESSELS "CHEN DA 513" "CHEN DA 518" AND "XING YE 9"

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REASONS FOR JUDGMENT

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1. Upon the application by Registrar Woolley and the Chief Bailiff for Directions under section 40 of the Supreme Court Ordinance, I heard Mr. Charles Allen of Messrs Simmons & Simmons for the Plaintiff and Mr. Tsang, the Chief Bailiff and gave the requested Direction. At their request and as this matter has caused some concern amongst the admiralty practitioners, I am handing down the Reasons for my Judgment.

2. The problem arose this way. The Plaintiff wished to apply that the Bailiff should serve the Writ in Rem issued on the 26th May 1997 on one of the ships named in the Writ. Both the application as well as the service by the Bailiff would be under Order 75 rule 8(3) of the Rules of the Supreme Court which reads:-

Alternatively the Plaintiff also can itself serve the Writ in Rem on the ship under Order 75 rule 11 which reads:-

"(1) Subject to paragraph (2), service of a warrant of arrest or writ in an action in rem against a ship ... shall be effected by-

The question which has arisen is whether the "writ" referred to in rule 8(3) to be served by the Bailiff and in rule 11(1) to be affixed on the mast of the ship or on the outside of the superstructure of the ship is:-

3. In the High Court of Hong Kong and previously in the Supreme Court of Hong Kong, whether in actions in personam or in actions in rem and whether such actions are by way of ordinary jurisdiction actions or admiralty jurisdiction actions, only one "original writ" was issued by the Court and that always stayed in the Court Registry with that particular Court file. No one had ever suggested that for the purpose of service of the originating process on the defendant by the plaintiff, a "sealed copy" of the writ is not a writ or that the "original writ" (from the Court Registry) had to be served. The mere example of an action where the plaintiff is suing 6 defendants will demonstrate that it is just ludicrous for one "original writ" to be served on 6 different defendants. What happens of course is that the plaintiff asked the Registry to issue at least 6 "sealed copy" of the writ and each of these "sealed copy" of the writ will be served on each defendant. I do not understand an Admiralty Action in rem to be any different, namely that it is always the "sealed copy" of the Writ in Rem which is served on the ship and not the "original writ" filed in the Registry. Both Mr. Allen and the Chief Bailiff confirmed that the service of the "sealed copy" of the Writ in Rem on ships had always been the practice adopted by the Bailiff and the Admiralty Court practitioners. The doubt was created by a close reading of Order 75 rule 8(3) and rule 11(1) and in the context of the use of the word "writ" and "a copy thereof". For me the context and the use of the words create no difficulty. The "writ" to be served in Order 75 rule 8(3) and in Order 75 rule 11(1) does not mean the "original writ" in the Registry but simply the usual "sealed copy" writ for service issued by the Registry and bearing the seal of the Court.

4. There is no question of the "original writ" filed in the Registry being taken out of the Registry (to be served on the ship), contrary to Order 63 rule 9 of the Rules of the Supreme Court which reads:-

"No document filed in or in the custody of the Registry of the Supreme Court shall be taken out of that Registry without the leave of the Court."

The "original writ" stays in the Registry and with that particular Court file.

5. There is therefore in my judgment nothing to prevent the Registrar from entertaining the application of Mr. Allen on behalf of the Plaintiff or to prohibit the Bailiff from effecting service on the ship with the usual customary "sealed copy" of the Writ in Rem.