|
HCAJ 65/2016
[2018] HKCFI 699
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ADMIRALTY ACTION NO. 65 OF 2016
|
BETWEEN
|
| |
BENCHMARK ELECTRONICS (THAILAND) PCL |
1st Plaintiff |
| |
VIASAT, INC. |
2nd Plaintiff |
| |
NAVIGATORS UNDERWRITING AGENCY LIMITED AND/OR ACE UNDERWRITING AGENCIES LIMITED SUING ON THEIR OWN BEHALF AND ON BEHALF OF ALL MEMBERS OF LLOYD’S SYNDICATE 1221 AND/OR LLOYD’S SYNDICATE 2488 AND THE OTHER INTERESTED UNDERWRITERS SUBSCRIBING TO COVERNOTE NO. B0753PC1206508000 AND/OR MARINE CARGO POLICY NO. MC-3019 |
3rd Plaintiff |
| |
SHIMANO EUROPE BIKE HOLDING B.V. |
4th Plaintiff |
| |
SHIMANO EUROPE FISHING HOLDING B.V |
5th Plaintiff |
| |
SHIMANO BENELUX B.V. |
6th Plaintiff |
| |
SHIMANO EURPOE HOLDING B.V. |
7th Plaintiff |
| |
SOMPO JAPAN INSURANCE COMPANY OF EUROPE LTD |
8th Plaintiff |
| |
HUSQVARNA AB |
9th Plaintiff |
| |
AND |
| |
CARGO CONTRAINER LINE LTD. |
Defendant |
___________________________
Before: Hon Anthony Chan J in Chambers
Date of Hearing: 21 March 2018
Date of Decision: 9 April 2018
________________
D E C I S I O N
________________
1. This is an application by Summons dated 13 October 2017 (Summons) by which the Defendant (CCL BVI) applies to set aside the Concurrent Amended Writ and service of the same on it, to discharge the Order granting leave for the service of the Concurrent Amended Writ out of jurisdiction and to dismiss this Action.
2. What happened in this case was that the Plaintiffs had issued the Writ in this Action on the last day before the expiration of limitation period. By a mistake, the Writ was issued against a company with the same name as CCL BVI but was incorporated in Malta instead of the BVI.
3. The issue in this application is whether the amendment of the Writ, by substituting the Malta address with the BVI address, constituted the substitution of a new party.
Background
4. The background facts are not in dispute. Pursuant to 6 bills of lading that CCL BVI issued (Bills of Lading), CCL BVI contracted to carry cargoes (Cargoes) on the vessel “MOL COMFORT” (Vessel). Although it was clear from the Bills of Lading that the carrier was “Cargo Container Line Ltd”, those documents did not provide the address of that company or any information as to its whereabouts. On 17 June 2013, the Vessel sank during the course of a voyage across the Indian Ocean.
5. In this Action, the Plaintiffs claim damages for breach of the contracts of carriage contained in or evidenced by the Bills of Lading. Clause 20 of the terms of the Bills of Lading (Terms) specified that the contracts of carriage are governed by Hong Kong law and any dispute is subject to the exclusive jurisdiction of the Hong Kong Courts.
6. A one-year limitation period existed pursuant to the Terms and Article III, r 6 of the Hague-Visby Rules (applicable to the Bills of Lading by virtue of clause 6(1)(A) of the Terms) for the Plaintiffs to commence any claim relating to the loss of the Cargoes. The parties agreed various time extensions for the Plaintiffs to commence any proceedings relating to the loss of the Cargoes, up until and including 17 August 2016.
7. By a Writ of Summons dated 17 August 2016, the Plaintiffs commenced these proceedings against Cargo Container Line Ltd of “147/1 St Lucia Street, Valetta VLT 04, Malta” (Malta Address).
8. On 5 May 2017, the Plaintiffs applied for leave to issue and serve a Concurrent Writ of Summons on CCL of the Malta Address (CCL Malta) out of the jurisdiction in Malta.
9. On 12 May 2017, the Plaintiffs obtained an order (1st Order) to issue a Concurrent Writ of Summons against CCL Malta and to serve it on the same at the Malta Address or elsewhere in Malta.
10. After an attempt was made to serve the Concurrent Writ of Summons on CCL Malta, the Plaintiffs received a telephone call from its insurer informing the Plaintiffs that CCL Malta operated only in the Eastern Mediterranean and not in the Far East.
11. The Plaintiffs then made various efforts to ascertain the address of CCL BVI, including making enquiries with CCL BVI’s solicitors in the UK. By an email dated 31 July 2017, CCL BVI’s UK solicitors stated that the Plaintiffs’ claims were time barred, and that the carrier under the Bills of Lading was incorporated in BVI with the registered office address at “PO Box 3340, Road Town, Tortola, BVI”.
12. On 31 July 2017, the Plaintiffs amended the Writ of Summons pursuant to O 20, r 1 of the RHC (without the court’s leave) to correct the defendant’s address from the Malta Address to a BVI address.
13. Two orders dated 3 August 2017 were obtained by the Plaintiffs pursuant to an ex parte application. The first one set aside the 1st Order. The second order gave leave to issue a Concurrent Amended Writ of Summons and to serve it on CCL BVI out of the jurisdiction at Ernst & Young Trust Corp (BVI) Ltd, PO Box 3340, Barclays House, Road Town, Tortola, BVI or elsewhere in the BVI.
14. Subsequently, the Concurrent Amended Writ of Summons was served on CCL BVI in the BVI.
15. There is no issue that CCL Malta, despite the identity of its name with CCL BVI, is a separate legal entity with different directors and shareholders.
CCL BVI’s case
16. On behalf of CCL BVI, Mr Luxton advanced a number of propositions :
(1) The amendment of the Writ involved the substitution of CCL BVI as the defendant to the proceedings in place of CCL Malta;
(2) Such amendment was made after the expiry of limitation period under the Hague-Visby Rules, and the expiry of such limitation period had the effect of extinguishing the Plaintiffs’ causes of action against CCL BVI: see Aries Tanker Corporation v Total Transport Inc [1977] 1 WLR 185 at 188C-F; The Jay Bola [1992] 3 All ER 329, 342h-343a and 350a-b; Pohang Iron & Steel Co Ltd v Norbulk Cargo Services Ltd [1996] 4 HKC 701 at 705B-C;
(3) If a claim is time barred, then any leave to serve a concurrent writ of summons out of the jurisdiction should be set aside, because there is no serious issue to be tried: see Newocean Petroleum Co Ltd v Rio Tinto Shipping (Asia) Pte Ltd, HCA 446/2015, 15 April 2016, §§16-17; Timmerton Co Inc v Equity Trustee Ltd [2015] 1 HKLRD 247, §28.
17. The lynchpin of these propositions rests in the contention that the amendment of the Writ was not merely a correction of the address of the defendant but substituting of a new party. The legal propositions encapsulated in (2) and (3) above are not in dispute.
Analysis
18. It cannot be seriously doubted that the Plaintiffs had all along intended to sue the carrier under the Bills of Lading, namely, CCL BVI. Plainly, it was a mistake that CCL Malta was sued instead of CCL BVI.
19. According to the evidence of the Plaintiffs, the mistake arose when a search was made about the address of “Cargo Container Line Ltd” on the day the Writ was issued. The evidence of CCL BVI suggests that the mistake should not have been made because, inter alia, the Plaintiffs could have asked CCL BVI’s solicitors to confirm its identity before the Writ was issued (see paras 6 and 11 above). However, I am inclined to agree with Mr Smith SC, who appeared for the Plaintiffs, that fault is not a relevant consideration in this application.
20. Mr Luxton submitted that the evidence filed by the Plaintiffs in support of the 1st Order demonstrated that they intended to sue CCL Malta. With respect, the evidence simply reflected the fact that the Plaintiffs were labouring under a mistaken belief. I do not believe that there is any further mileage in that point[1].
21. This court was taken by Mr Luxton to s.35(1) of the Limitation Ordinance, Cap 347 (S.35)[2], O 20, r 5 and many of the authorities on whether a writ may be amended to substitute a new party despite the expiry of limitation period. With respect, these materials are of limited assistance in resolving the present issue.
22. To begin with, it is common ground that the scheme under S.35 did not apply to a case where the limitation period had...
| 
