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Owners Of Cargo Lately Laden On Board The Ship "Riau" v The Owners Of "Djatianom" And Others

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date13 October 1982
Year1982
Judgement NumberHCAJ318/1981
Subject MatterAdmiralty Action
CourtHigh Court (Hong Kong)
HCAJ000318/1981 OWNERS OF CARGO LATELY LADEN ON BOARD THE SHIP "RIAU" v. THE OWNERS OF "DJATIANOM" AND OTHERS

HCAJ000318/1981

Admiralty Law - the application of s.3(4) of the Administration of Justice Act - the word "Charterer" when used therein is to be given its ordinary meaning - any ships in the ownership of the person who would be liable on a claim in an action is personam, can be made the subject of an action in rem.

1981, Folio 318

IN THE SUPREME COURT OF HONG KONG

ADMIRALTY JURISDICTION

__________________________

Admiralty action in rem against: the ships "DJATIANOM", "DJATIBARANG", "DJATILUHUR", "DJATIMULIA"I "DJATINEGARA", "DJATIPRANA", "DJATIPURA", "DJATISARI", "DJATIWANGI", "HADJI AGUS SALIM", "JOHANNES LATUHARHARY", "M.H. THAMRIN", SAM RATULANGIE", "SETIABRDHI".

BETWEEN

OWNERS OF CARGO LATELY LADEN ONBOARD THE SHIP "RIAU" Plaintiff

AND
THE OWNERS OF "DJATIANOM", "DJATIBARANG", "DJATILUHUR", "DJATIMULIA", "DJATINTGARA", "DJATIPRANA","DJATIPURA", "DJATISARI", "DJATIWANGI","HADJI AGUS SALIM", "JOHANNES LATUHARHARY","M.H. THAMRIN", "SAM RATULANGIE", "SETIABUDHI" Defendants

_____________

Coram: The Hon. Mr. Justice Power

Date: 13 October 1982

___________

JUDGMENT

___________

1. In this matter the plaintiffs who are the owners of the cargo lately laden on board the ship "Riau" sue the owners of a number of ships, one of which is the "Diatisari". Their claim is for damages for breach of contract and/or duty in and about the loading, handling, custody, care and discharge of the plaintiffs' cargo and the carriage thereof on board the ship "Riau" in the year 1981. It as ground that the ship "Riau" was not owned by the defendants at the material time but was owned by P.T. Mare Shakti Indonesia Bulk Transport and that the defendants were the time charterers of the vessel under a charter party dated the 7th November 1977. It is further common ground that the defendants were at all material times the owners of the ship "Djatisari" which has been arrested in this action. The parties appeared before me in response to a Notice of Motion filed by the defendants in which they asked for an Order that-

(a) under Order 12 rule 8 of the Rules of the Supreme Court, the writ of summons beginning this action and all subsequent proceedings in relation to the vessel "Djatisari" be set aside on the ground that the court has no jurisdiction to hear the same, on the further grounds that:-

(i) the defendants at all material times were not the owners of the ship "Riau";

(ii) the defendants at all material times were the time charterers of the ship "Riau";

(b) further or alternatively under the inherent jurisdiction of the Court, or further proceedings in this action be stayed on the ground that the plaintiffs and the defendants have, by the terms of the contract, the carriage between them evidenced by bills of lading No. NJ-HOl and HK-JKT-001 respectively agreed to refer and submit all disputes arising out of or in connection with the same, in respect of which matters this action is brought, for determination to the Court at Djakarta in Indonesia.

2. At the request of the parties at the outset the matter raised by paragraph (a) of the Notice of Motion was separately argued and I am now handing down ray suing thereon. It is accepted that the Administration of Justice Act 1956 applies in the Colony of Hong Kong. This act, in Section 1, provides that the admiralty jurisdiction of the High Court shall include the power to hear and determine any claims for the loss or damage to goods carried in a ship. It is common ground that the present action is such a claim. Section 3(4) of the Act goes on to provide:-

"(4) In the case of any such claim as is mentioned in paragraphs (d) to (r) of subsection (1) of section one of this Act, being a claim arising in connection with a ship, where the person who would be liable on the claim in an action in personam was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship, the Admiralty jurisdiction of the High Court and (where there is such jurisdiction) the Admiralty jurisdiction of the Liverpool Court of Passage or any county court may (whether the claim gives rise to a maritime lien on the ship or not) be invoked by an action in rem against -

(a) that ship, if at the time when the action is brought it is beneficially owned as respects all the shares therein by that person; or

(b) any other ship which, at the time when the action is brought, is beneficially owned as aforesaid."

There does not seem to be any argument that Part I of the Administration of Justice Act gave legislative effect, to an extent which is not as clear as it might be, to the provisions of the International Convention Relating to the Arrest of Seagoing Ships, signed at Brussels, on the 10th May 1952. Parliament, clearly, was not content to enact the convention in terms. The inspiration, if this be the proper word, for Section 3(4) of the act was paragraph (4) of Article 3 of the Convention. This paragraph reads as follows:-

"(4) When in the case of a charter by demise of a ship the charterer and not the registered owner is liable in respect of a maritime claim relating to that ship, the claimant may arrest such ship or any other ship in the ownership of the charterer by demise, subject to the provisions of this Convention, but no other ship in the ownership of the registered owner shall be liable to arrest in respect of such maritime claims.

The provisions of this paragraph shall apply to any case in which a person other than the registered owner of a ship is liable in respect of a maritime claim relating to that ship."

3. Mr. Ma, who appears for the applicant/defendants, raised two points which I will refer to as the interpretation point and the sister ship point. As to the first point he submitted that the word "charterer" in s.3(4) means "demise charterer". He sought to support this contention with two arguments. Firstly he said that, when interpreting the Act, it is permissible and proper to look at the Convention, which the Act was bringing into force, and that when the Convention is looked at it is plain that the word "charterer" in Section 3(4) means demise charterer. For the contention that it is permissible to look at the Convention he relies upon the judgment of Lord Diplock in the "Eschersheim" (1976) 2 Lloyd's L.R. 1, at 6, where he says-

"As the Act was passed to enable H.M. Government to give effect to the obligations in international law which it would assume on ratifying the convention to which it was a signatory, the rule of statutory construction laid down in Salomon v. Customs and Excise Commissioners, [1966] 2 Lloyd's Rep. 460; [1967] 2 Q.B. 116 and Post Office v. Estuary Radio Ltd., [1968] 2 Q.B. 740 is applicable. If there be any difference between the language of the statutory provision and that of the corresponding provision of the convention, the statutory language should be construed in the same sense as that of the convention if the words of the statute are reasonably capable of bearing that meaning."

There can, in my respectful view, be no doubt as to the correctness of this statement of law. However the qualification, contained in the words "if the words of the statute are reasonably capable of bearing that meaning", must be borne in mind when construing any words. It seems to me to be unarguable that if any word in the Act is an ordinary English word with a clear meaning which is not affected by the context then it cannot, no matter what may be contained in the Convention, he said to be capable of bearing any other meaning. Secondly he argued that, even if the Convention is not looked at, Section 3(4) must be interpreted in accordance with the maxim "noscitur a sociis" and that when this maxim is applied thereto, it is clear that the legislature when it used the word "charterer" meant demise charterer. His argument in this regard proceeds upon the basis that such a charterer is the only person who can be coupled with an owner or a person in possession or in control of a ship. As to the sister...

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