Ipsofactoj.com: International Cases [2000] Part 5 Case 2 [CFA]


COURT OF FINAL APPEAL, HKSAR

Coram

"The Resource 1";

Owners of Vessel

- vs -

Owners of cargos laden onboard

CHIEF JUSTICE LI

MR. JUSTICE LITTON PJ 

MR. JUSTICE BOKHARY 

MR. JUSTICE SILKE NPJ

SIR ANTHONY MASON NPJ

12 JULY 2000


Judgment

Mr. Justice Litton PJ

INTRODUCTION

  1. This is an interlocutory appeal arising from the arrest of a ship "Resource 1" (ex Tiansheng No. 8) pursuant to an action in rem brought by cargo-owners against the shipowner. The shipowner seeks the discharge of the bail bond which had been posted consequent upon the release of the ship. It does so upon one ground: That the court had no jurisdiction to issue the warrant of arrest in the first place. The history of the litigation is fully set out in Mr. Justice Bokhary PJ's judgment and needs no repetition.

  2. The litigation has, from the outset, been bedevilled by procedural entanglement. As Mr. Justice Bokhary PJ has noted in his judgment, the proceedings started with a summons issued on 25 April 1998 by the present shipowner for an order that the warrant of arrest (issued on 9 February 1997) be set aside, and the bail bond be returned. The cargo-owner's riposte to that summons was to take a preliminary point: That it was out of time under Order 12 rule 8 of the Rules of the High Court and therefore must fail in limine. Hence, when the summons went before Waung J for determination in January 1999, the "time issue" was treated as something standing on its own. The application of s.12B(4) of the High Court Ordinance, Cap. 4, to the circumstances of this case - "the jurisdiction issue" - was treated by the judge as a separate issue. Having decided the "time issue" against the shipowner, he said it was not necessary for him to decide the "jurisdiction issue": But "for the sake of completeness" he resolved it against the shipowner as well.

    THE ISSUES

  3. In reality, "time issues" seldom stand alone, divorced from the context in which the matter is raised. There were before the judge two undisputed facts :

    1. The cargo-owners had issued a writ in rem on 23 November 1996 against the ship "Tian Sheng No. 8" which, they themselves averred, was registered in Panama.

    2. The Panamanian registry showed that, at the time the writ was issued, Tiansheng Shipping Inc. ("TSI") was the registered owner of the ship.

  4. Pausing here, what legal consequences flow from these two facts? Obviously, if TSI were "the person who would be liable on the claim in an action in personam" in terms of s.12B(4), the fact that the ownership has since changed and the present shipowner - International Resources Investment Inc. ("IRI") - had acquired ownership of the vessel after the writ was issued is irrelevant: An action in rem can still be brought against the ship: Under para (i) of s.12B(4) the relevant time for considering ownership is "the time when the action is brought": To this extent, as Mr. Sussex SC counsel for the shipowner conceded, "the sins of the forefathers" can be visited upon the new shipowner. So the crucial issue is this: Was TSI the person "who would be liable on the claim in an action in personam"?

    ADMIRALTY JURISDICTION

  5. The cargo-owners invoked the admiralty jurisdiction of the High Court because their claims came within s.12A(2)(g) and (h) of the High Court Ordinance: claims for loss of or damage to goods carried in the ship, and claims arising out of agreements relating to the carriage of goods in the ship. But they were not suing upon bills of lading issued by or on behalf of TSI; their causes of action were based upon bills of lading issued by or on behalf of Tiansheng Ocean Shipping Co. Ltd ("Ocean") as carrier. On the face of their own case, it did not come within the provisions of s.12B(4)(b) regulating the mode of exercise of the admiralty jurisdiction, unless Ocean was "the owner" of the ship when the cause of action arose and when the action was brought, in the sense of being "the beneficial owner as respects all the shares in it" in terms of s.12B(4)(b).

    WARRANT OF ARREST

  6. The affidavit sworn by the cargo-owners' solicitor (Mr. Eyre) in support of the application for the warrant of arrest said this:

    The property to be arrested is the ship or vessel 'Tian Sheng No. 8' now named 'Resource 1' of the port of Panama. The ship .... is the ship in connection with which the claim arose.

    The affidavit went on to say that a search made at the Panamanian registry showed that:

    throughout the period from 1 August 1996 to 5 December 1996, being the period when both the cause of action arose and the proceedings in this action were commenced, the vessel was in the ownership of Tiansheng Shipping Inc, a Panamanian company.

  7. Upon these facts it is clear that the warrant of arrest was issued beyond the jurisdiction of the court: Unless "owner" in s.12B(4)(b) means something other than "registered owner", in relation to a ship which is actually registered in one of the recognised shipping registries of the maritime world.

  8. In Mr. Eyre's affidavit he went on to say that there was "some uncertainty concerning ownership" and referred to the September and December 1996 supplements to Lloyd's Register of Ships as showing Ocean to be the owner: The affidavit went on to say that Ocean was "a company based in Hainan Island, PRC". Correspondence between Mr. Eyre and the Information Administrator of Lloyds Register was exhibited. This shows that the information published in the Register was "obtained from sources believed to be reliable", but Lloyd's Register of shipping was "unable to guarantee the accuracy of all details" and Lloyd's Register did not accept liability for inaccuracies. The last communication from the Register's Information Administrator said:

    The information which Lloyd's Register used to publish notification that the above vessel had changed to the ownership / control of Hainan Tiansheng Ocean Shipping Co. Ltd appears to have come from information published by Registro Italiano .... which was her Classification Society at the time in question.

  9. The affidavits do not reveal whether any inquiry was pursued with the Italian Classification Society concerning ownership.

  10. There was other material put before the court which shows that Ocean was part of a group comprising TSI and another company called Hainan Tiansheng Transportation and Rent Co. ("T&R") and that Ocean played an active role in managing the ship. In particular there was the following: (1) A bare boat charterparty dated 12 November 1995 whereby TSI chartered the vessel to T&R for one year from 16 November 1995. (2) A time charterparty dated 8 September 1996 whereby T&R chartered the vessel to Ocean. Under this charterparty Ocean was responsible for providing the crew. (3) A voyage charterparty dated 9 September 1996 whereby Ocean chartered the vessel to Royal Pacific Lines Ltd for the carriage of bagged cement from a northern Chinese port to Bangladesh: It was pursuant to this voyage that the cargo-owners' action in rem against the ship arose.

  11. When the shipowner's summons was heard by Waung J in January 1999 (nearly a year after the arrest) the cargo-owners took the "preliminary point", as mentioned earlier, that the application was out of time: That was the focus of the proceedings before the judge. On the "jurisdiction issue", the cargo-owners' contention was that the person liable in personam on their claim for damages - Ocean - was also the owner at the time the cause of action arose and when the writ was issued: A contention which went against the material they had put forward showing that TSI was the registered owner.

    REGISTERED OWNER

  12. It is common ground that a ship like "Resource 1" which plies the high-seas from port to port, for the purpose of trade, must be registered at a recognised registry and carry the flag of that jurisdiction: Otherwise it would not be able to enter port, discharge and load cargo and generally utilize its facilities. When ships are registered under the names of one-ship companies - as most ships are - the inference must be, as a matter of common-sense, that the company is the legal and beneficial owner of all the shares in the ship: There is no reason for it to be otherwise: The shares in the company which is the registered owner might well be owned by different persons, or held in trust for others, but that does not alter the fundamental proposition that the registered owner is the legal and beneficial owner of all the shares in the ship. As Lord Donaldson of Lymington MR. remarked in The Evpo Agnic [1988] 1 WLR 1090 at 1096 E-F:

    .... in real commercial life .... registered owners, even when one-ship companies, are not bare legal owners. They are both legal and beneficial owners of all the shares in the ship and any division between legal and equitable interests occurs in relation to the registered owner itself, which is almost always a juridical person. The legal property in its shares may well be held by A and the equitable property by B, but this does not affect the ownership of the ship or of the shares in that ship. They are the legal and equitable property of the company.

  13. It is possible that registration is, as a matter of law, not conclusive on the issue of ownership; conceivably, there are circumstances where it might be shown that the registered owner was in fact not the legal and beneficial owner of all the shares in the ship: The fraudulent procurement of registration would be an example. But, in the general run of things, registration would be virtually conclusive, and it would take a wholly exceptional case for it to be otherwise. In this regard, I note the references in Mr. Justice Bokhary PJ's judgment to The Evpo Agnic at p.1095H to 1096E and to Lord Bingham of Cornhill CJ's judgment in Haji-Ioannou v Frangos [1999] 2 Lloyd's Rep 337 at 353: There the English Court of Appeal was not dealing with a situation such as ours where the judge was invited to disregard the ship's register altogether

    THE COURT BELOW

  14. In approaching the summons in the way he did, Waung J in effect inverted the burden of proof. He said that the weakness of the ship-owner's case was "its heavy reliance on internal documents" and referred to

    1. the bare-boat charterparty from TSI to T&R dated 12 November 1995 and

    2. the time charterparty between T&R and Ocean, spanning the relevant period.

    The suggestion seems to be - though the judge did not expressly say so - that these documents were fabricated for the purpose of disguising Ocean's real ownership of the vessel: The judge could not in fact have made such a finding because there was no cross-examination of any of the deponents to the affidavits; hence the judge categorised it as no more than a "weakness" in the shipowner's case. He considered it significant that "vital non-internal documents such as the Bill of Sale to TSI (the alleged owner), the payment by TSI for the purchase of the vessel were never shown to the court." However, the ship-owner was not relying upon those documents: It was relying upon the plaintiffs' own averment, supported by the provisional patente issued by the Panamanian registry, that at the material time the ship was registered in Panama; this was the only registration of this ship; it showed TSI as the registered owner, not Ocean. The judge criticized the unsatisfactory way the Panamanian authorities set about the procedures for registration: That they proceeded on the say-so of a lawyer; that they required no documentation or proof of ownership; that the registration was merely a provisional one. This is all beside the point. The weaknesses in the Panamanian procedures may be a matter which the maritime nations of the world would need one day to take up and redress: It cannot affect the rights and liabilities of the parties before the court.

  15. The judge contrasted the suspect documents (which he categorised as "internal documents") with an "undoubtedly genuine document", the voyage charterparty between Ocean and Royal Pacific Lines Ltd dated 9 September 1996 (referred to earlier) and came to the conclusion that, in truth, Ocean was at all material times the owner of the vessel. In this regard the judge appears to have overlooked the fact that all 3 documents came from the same source: Mr. Chi, who described himself as "General Manager and Legal Representative" of Ocean, and had exhibited all three documents, in proceedings which were, in fact, unrelated to the challenge to jurisdiction.

  16. In my judgment there was no material before the judge to displace the conclusion that, at the time when the causes of action arose, TSI being the registered owner was "the owner" of the ship in terms of section 12B(4)(b) and hence the exercise of jurisdiction in rem over the ship was misconceived. Subject, therefore to the question whether the judge should in these circumstances have given an extension of time to enable the challenge to jurisdiction under Ord. 12 r. 8 to succeed, the shipowner was in an unassailable position on its challenge.

    ANOTHER PROCEDURAL TWIST

  17. So far, what is set out above is straightforward. Unfortunately, in the courts below, there was another procedural twist. Mr. Sussex SC sought to by-pass the time limit in Ord. 12 r. 8(1) by arguing that Ord. 75 r. 13 gave the shipowner an alternative procedure for challenging jurisdiction and seeking the release of the bail bond. In this regard, I have read in draft Sir Anthony Mason NPJ's judgment and agree with it. Where a specific provision appears in the Rules to govern a matter such as this - here Ord. 12 r. 8(3)(a) dealing specifically with challenges to jurisdiction in admiralty actions in rem - it would be very odd that the Rules should permit the party mounting the challenge to take a different route: thereby circumventing the imposition of the time limit. In fairness to Mr. Sussex it is worth mentioning that there was in fact a summons (without any supporting affidavit) returnable before Waung J for an extension of time but the judge indicated at an early stage that he would not countenance an extension, so the shipowner was left with no alternative except to pursue the Ord. 75 r. 13 point.

    THE COURT OF APPEAL

  18. The question of an extension of time under Ord. 12 r. 8 was not pursued in the Court of Appeal. That court, in essence, followed the approach taken by Waung J. There is no mention of The Evpo Agnic in its judgments. Mayo JA (who gave the leading judgment) said that the trial judge was "impressed by the fact that the defendants' case to a large extent was dependent upon internal documents". The other two judges agreed: Thereby, in effect, endorsing Waung J's erroneous approach.

    THIS COURT'S TASK

  19. This being the unusual background to the present appeal, this Court finds itself in the position of having to exercise an original jurisdiction, to consider extending time under Ord. 12 r. 8(1) and to deal with the application for the discharge of the warrant of arrest and release of the bail bond. In this regard I fully agree with Mr. Justice Bokhary PJ's careful analysis. It is true that the shipowner has acknowledged the service of the writ and must therefore, in terms of Ord. 12 r. 8(7), be treated as having submitted to the jurisdiction of the court in the proceedings. But the shipowner has no quarrel with that. It says that, on the face of the plaintiff's own claims, it has no liability in personam on those claims; it is content for the plaintiffs to proceed with their claims against Ocean and obtain judgment in personam for damages against Ocean; its challenge is simply to the in rem jurisdiction of the court; all it seeks is discharge of the warrant of arrest and release of the bail bond on that ground. The shipowner is plainly right in this regard.

  20. There being no possible answer to the shipowner's challenge, and as no injustice can be caused by granting an extension of time, we must in my judgment exercise our discretion in the shipowner's favour.

    CONCLUSION

  21. I would allow this appeal and make the orders proposed by Mr. Justice Bokhary PJ.

    Mr. Justice Bokhary PJ

    INTRODUCTION

  22. This is an interlocutory appeal arising out of an admiralty action in rem which has not yet been tried. It is an action in which cargo owners claim damages against shipowners for loss of cargo due to unjustified deviation of the ship. For reasons which will become apparent, it will be convenient to refer to her as "the Ship" rather than by any name. Her present owner is a company named International Resources Inc. ("the present shipowner") which acquired her after the writ was issued but before it was served. The present shipowner is the appellant. The cargo owners are the respondents.

    CARGO LOST

  23. The cargo which was lost consisted of 30,000 metric tons of bagged cement. In or about October 1996 this cargo was shipped on board the Ship, then named "Tian Sheng No. 8", at Rizhao in the Mainland for sea carriage to Chittagong and/or Mongla in Bangladesh. There occurred a deviation to Haikou in the Mainland. The cargo was discharged and eventually sold at Haikou pursuant to an order of the Haikou Maritime Court. In the result, the cargo owners say, they have suffered loss in excess of US$2 million. And they seek recovery in contract, tort and bailment.

    VESSEL ARRESTED AND THEN RELEASED ON BAIL BOND

  24. On 23 November 1996 the cargo owners' writ in rem was issued. On 6 December 1996 the Ship was purchased by the present shipowner and re-named "Resource 1". On 9 February 1997 the cargo owners served the writ on the Ship and arrested her in Hong Kong. On 24 February 1997 the then solicitors for the present shipowner entered an appearance. On 18 March 1997 the cargo owners obtained an order for the sale of the Ship pendente lite. On 1 April 1997 the present shipowner put up a bail bond in the sum of US$1.01 million, thereby avoiding the sale of the Ship and obtaining her release.

    APPLICATION FOR SETTING ASIDE OF WARRANT OF ARREST AND RETURN OF BAIL BOND FOR CANCELLATION

  25. One year later, on 25 April 1998, the present shipowner launched the application which has led eventually to the present appeal. It was an application for the setting aside of the warrant of arrest and the return to the present shipowner of the bail bond for cancellation. The application was made in reliance on Order 75 rule 13. (All of my references to Orders and rules will be to those of the Rules of the High Court.) Order 75 is the Order dealing with admiralty proceedings. Rule 13 is the rule pertaining to the release of property under arrest.

  26. In obtaining the warrant of arrest, the cargo owners had done as follows:

    1. They said that the person who would be liable on the claim in an action in personam was the owner of the Ship when the bills of lading were issued because the bills of lading had been signed for and on behalf of the master of the Ship and therefore evidenced a contract between them as cargo owners and the shipowner.

    2. They said that there was some uncertainty over ownership and that either a company named Tianshang Shipping Inc. ("TSI") or a company named Hainan Tianshang Ocean Shipping Co. Ltd ("Ocean") was the owner of the Ship at the material times i.e. the time when the cause of action arose and the time when the action was brought.

    3. They invoked s.12B(4) of the High Court Ordinance, Cap. 4, which provides that in certain circumstances an admiralty action in rem against a ship survives a change in the ownership of the ship.

  27. Section 12B(4) provides that:

    In the case of any such claim as is mentioned in section 12A(2)(e) to (q), where -

    (a)

    the claim arises in connection with a ship; and

    (b)

    the person who would be liable on the claim in an action in personam ("the relevant person") was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship,

    an action in rem may (whether or not the claim gives rise to a maritime lien on that ship) be brought in the Court of First Instance against-

    (i)

    that ship, if at the time when the action is brought the relevant person is either the beneficial owner of that ship as respects all the shares in it or the charterer of it under a charter by demise; or

    (ii)

    any other ship of which, at the time when the action is brought, the relevant person is the beneficial owner as respects all the shares in it.

    (For the purposes of this appeal, the present shipowner accepts that the cargo owners' claim comes within the descriptions in s.12A(2)(g) and (h) respectively as a "claim for loss of .... goods carried on a ship" and a "claim arising out of [an] agreement relating to the carriage of goods in a ship".)

  28. By the time when the present shipowner made its application for the setting aside of the warrant of arrest and the return to it of the bail bond for cancellation, the cargo owners had ceased to deal with the question of previous ownership in the alternative. By then the cargo owners were saying - as they have said ever since - simply that it was Ocean who had owned the Ship at the material times.

  29. In applying for the setting aside of the warrant of arrest and the return to it of the bail bond for cancellation, the present shipowner filed evidence on the question of who had owned the Ship before it had acquired her. Such evidence was to the effect

    1. that TSI had been the owner of the Ship at the material times and

    2. that Ocean had never been her owner.

    But the present shipowner does not have to prove that TSI had owned the Ship. It would be enough for the present shipowner's purposes if the cargo owners fail to prove that Ocean had been the owner of the Ship at the material times. Indeed, if the present shipowner is right on the point which it takes on the strength of the decision of the English Court of Appeal in The Evpo Agnic [1988] 1 WLR 1090, it would be enough for its purposes if the Ship was a registered ship and Ocean was not its registered owner at the time when the cause of action arose.

    APPLICATION DISMISSED BY JUDGE ON TWO BASES

  30. By a judgment handed down on 15 February 1999, Waung J dismissed the present shipowner's application. He did so on two bases.

  31. In the absence of an extension of time for it to serve its defence, the present shipowner's application was undoubtedly out of time if it had to be made under Order 12 rule 8. The cargo owners' points of claim had been served on 3 October 1997. Under Order 18 rule 2(1) the present shipowner had 14 days from then to serve its defence unless it obtained an extension of time for doing so later than that. And Order 12 rule 8 provides in paragraph (1) that a defendant who wishes to dispute the jurisdiction of the court must make the appropriate application after giving notice of intention to defend and within the time limited for service of a defence. The first basis on which the judge dismissed the present shipowner's application is one which he described as concerning "time". He said that the present shipowner was disputing the court's jurisdiction, that it was out of time for doing so under Order 12 rule 8, and that it was not open to it to do so in any way other than under Order 12 rule 8.

  32. The second basis on which the judge dismissed the present shipowner's application is his finding that the Ship had been owned at the material times by Ocean (as the cargo owners contended before him and have contended ever since) and not by TSI (as the present shipowner contends and has always contended). The Evpo Agnic was cited to the judge, but was not dealt with in his judgment.

    COURT OF APPEAL AFFIRMED DISMISSAL ON BOTH BASES

  33. On 12 November 1999 the Court of Appeal (Nazareth VP, Mayo JA and Suffiad J) dismissed the present shipowner's appeal against Waung J's decision, holding that he was correct on both of the two bases on which he had decided against the present shipowner. The Evpo Agnic was cited to the Court of Appeal, but was not dealt with in its judgment.

  34. On 26 January 2000 the Court of Appeal refused the present shipowner leave to appeal to this Court. But on 16 March 2000 the Appeal Committee granted the present shipowner such leave.

    IS THE PRSENT SHIPOWNER'S APPLICATION GOVERNED BY ORDER 12 RULE 8?

  35. Mr. Charles Sussex SC for the present shipowner submits as follows. Order 75 rule 13 provides the basis for the present shipowner's application for the setting aside of the warrant of arrest and the return to it of the bail bond for cancellation. This is because Order 75 rule 13 is the admiralty proceedings rule which deals specifically with the release of property under arrest. And as Brandon J pointed out in The Cap Bon [1967] 1 Lloyd's Rep 543 at p.547, in an admiralty action in rem, bail for the release of an arrested ship is the res.

  36. But then there is Order 12 rule 8. I have read in draft and agree with what Sir Anthony Mason NPJ says in connection with Order 12 rule 8.

    EXTENSION OF TIME

  37. The present shipowner has moved this Court for an order that, in the event that we take the view - which we do - that its application for the setting aside of the warrant of arrest and the return to it of the bail bond for cancellation is caught by Order 12 rule 8, the time limited for it to serve a defence be extended until 25 April 1998. That is the date on which the present shipowner launched the application which has led eventually to the present appeal.

  38. Paragraph (7) of rule 8 of Order 12 provides that:

    Except where the defendant makes an application in accordance with paragraph (1), the acknowledgement by a defendant of service of a writ shall, unless the acknowledgement is withdrawn by leave of the Court under Order 21 rule 1, be treated as a submission by the defendant to the jurisdiction of the Court in the proceedings.

  39. Can such a deemed submission to the jurisdiction, once it has taken place, be overcome or displaced by an extension of time subsequently granted under Order 3 rule 5? This rule provides that:

    (1)

    The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these rules, or by any judgment, order or direction, to do any act in any proceedings.

    (2)

    The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.

    (3)

    The period within which a person is required by these rules, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the Court being made for that purpose.

    (4)

    In this rule references to the Court shall be construed as including references to the Court of Appeal and a single judge of that Court.

  40. Clearly enough, in the ordinary course an extension can be granted after the expiration of the period initially fixed for the doing of an act. But where a rule fixes a time-limit and treats non-compliance therewith as a submission to the jurisdiction, can an extension be granted and operate to undo that legal consequence after it has ensued?

  41. The answer is that the power to extend time is conferred in very wide terms. Its purpose is to ensure that the legal consequences which ordinarily flow from non-compliance with time limits fixed by the rules do not apply in cases where an extension is appropriate. And in the context of an extension of time, there is no reason to differentiate between a deemed submission to the jurisdiction and other legal consequences.

  42. Extending time in the present case would not involve the reception of any evidence or the entertaining of any argument on the Evpo Agnic point which has not already been fully deployed in this Court and in the courts below. That removes an obstacle which would otherwise have stood in the way of the application for an extension.

  43. Next, I come to whether it is too late to grant the extension. When an application for an extension is regarded as coming too late for a court to exercise its discretion to grant the extension, that is generally either because what has happened in the meantime militates against an extension or because an extension would cause undue delay. Neither of those considerations apply in the present case. Nothing has happened in the meantime which militates against an extension. The courts below dealt with what they thought the position would be if the present shipowner's application were not time-barred. And this Court has heard full argument on what that position would be. As for whether an extension would cause delay, the answer is plainly that it would not. Once an extension has been granted, the Court would proceed to give a judgment which would finally resolve the question of whether this admiralty action in rem survives against the Ship in new ownership.

  44. This leaves the hurdle which presents itself in the following way. It appears that the present shipowner had taken out a summons returnable before the judge for an extension. Such summons does not appear to have been supported by a grounding affidavit. It appears that the judge indicated that he was not prepared to grant an extension. Unfortunately the present shipowner did not appeal to the Court of Appeal against that refusal. So if this Court were to grant an extension, it would do so by way of an original step albeit in an appellate process.

  45. That presents a hurdle calling for careful consideration. I have given it such consideration. And, for the reasons which I am about to state, I regard the hurdle to be one which can be overcome.

  46. This Court's powers include those conferred by s.17(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, which provides that:

    For the purpose of disposing of an appeal, the Court may exercise any powers of the court from which the appeal lies (including the power to order a retrial), or may remit the case to that court.

  47. It would be worse than a waste of time and costs if, instead of ourselves determining the application for an extension on which we have already heard full argument, we were to remit the case to the Court of Appeal for it to entertain such an application. By virtue of s.17(2) of our Ordinance we were acting within our jurisdiction when we invited the application for an extension as a means of reaching the Evpo Agnic point and when, that invitation having been accepted, we entertained that application. Similarly we would be acting within our jurisdiction if we were to accede to such application.

  48. Acceding to it would not run counter to saying that the Court of Appeal was right in holding that Order 12 rule 8 governs the present shipowner's application for the setting aside of the warrant of arrest and the return to it of the bail bond for cancellation. On the contrary, it is only on that basis that an extension is needed.

  49. As I have said, we invited and entertained an application for an extension as a means of reaching the Evpo Agnic point. I see no reason to assume that the Court of Appeal would not have done the same if it had regarded, as we regard, the Evpo Agnic point worthy of consideration. In granting an extension we would, as a matter of substance and reality, be differing from the Court of Appeal on one matter only, namely the Evpo Agnic point.

  50. To proceed to decide that point would be to decide the case between the parties on its merits in accordance with the law pertaining to its merits. Moreover it would be to decide an important point which has been fully argued before us and on which it is in the public interest to have this Court's decision.

  51. In my view, the extension is a just and proper one to grant in the exceptional circumstances of the present case, and I would grant it in order to reach the merits of the Evpo Agnic point - to which I now turn.

    EVPO AGNIC POINT

  52. There is no suggestion by the cargo owners that Ocean is the registered owner of the Ship. And there can be no doubt that the Ship was a registered ship. The writ itself calls her a registered ship. It says that she was registered in Panama. If that were not enough, the Panamanian lawyers retained by the cargo owners have, in a letter dated 31 January 1997 to the cargo owners' solicitors here, said:

    According to our search at the Shipping and Consular Bureau, [the Ship] was in the ownership of [TSI] throughout the period from 1 August 1996 to 5 December 1996.

  53. It is accepted by the cargo owners that that bureau, since re-named the Panama Maritime Authority, is the Panamanian shipping registry.

  54. The Evpo Agnic concerned the true construction of s.21(4) of the Supreme Court Act 1981 (on which our s.12B(4) is obviously modelled) and which reads:

    In the case of any such claim as is mentioned in section 20(2)(e) to (r), where-

    (a)

    the claim arises in connection with a ship; and

    (b)

    the person who would be liable on the claim in an action in personam ('the relevant person') was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship,

    an action in rem may (whether or not the claim gives rise to a maritime lien on that ship) be brought in the High Court against -

    (i)

    that ship, if at the time when the action is brought the relevant person is either the beneficial owner of that ship as respects all the shares in it or the charterer of it under a charter by demise; or

    (ii)

    any other ship of which, at the time when the action is brought,

    the relevant person is the beneficial owner as respects all the shares in it.

  55. At pp 1095H-1096A Lord Donaldson of Lymington MR., in a judgment with which the other members of the court agreed, posed this question:

    It is common ground that the plaintiffs' claim falls within section 20(2)(g) of the Act of 1981, being a 'claim for loss of or damage to goods carried in a ship' and that the ship concerned - ' the particular ship' in Convention terminology -  was the Skipper I. The first issue to be confronted and decided is therefore who is 'the relevant person' for the purposes of section 21(4)(b). Such a person has to meet two criteria. First, he must be the (or possibly a) person who would be liable on the claim in personam. Second, he must, at the time when the cause of action arose, have been the owner or charterer of, or in possession or control of, the ship. 'Charterer' in this context, which includes the Convention, must I think mean demise charterer and the words 'or in possession or in control of, the ship' must refer to a person who is in the position of a demise charterer, albeit not under a demise charter  a salvor might be such. However, for present purposes, what is in issue is what is meant by 'owner'. Does it refer to the registered owner, who necessarily is the legal owner, or to someone who has only an equitable property in the ship?

    At p.1096 B-E the Master of the Rolls gave this answer:

    In answering this question I bear in mind three important considerations. First, it is a basic rule of construction that where a statute employs different terminology in different provisions, prima facie a different meaning is intended and this is particularly the case if the differing terminology occurs within a single subsection. 'Owner' in paragraph (b) of section 21(4) thus falls to be contrasted with 'beneficial owner' in sub-paragraphs (i) and (ii). Second, all maritime nations maintain registers of shipping which record the names of the owners. These registers are of fundamental importance as establishing the flag of the vessel, thereby making it for some purposes part of the floating territory of that country and subjecting it to the laws of that country. I would therefore regard the concept of a registered owner as being a nominal owner as a contradiction. Third, the Convention clearly looks to ownership and registered ownership as one and the same, although as Robert Goff J pointed out in I Congreso del Partido [1978] Q.B. 500, 541, the 'trust' concept involving a dichotomy between legal and equitable ownership may be unknown to some, and perhaps most, other jurisdictions. My conclusion is that, in relation to a registered ship, 'owner' in section 21(4)(b) means 'registered owner'.

    The Convention to which the Master of the Rolls referred is the International Convention Relating to the Arrest of Seagoing Vessels (Treaty Series No. 47 (1960) (Cmnd. 1128)).

  56. Mr. Michael Bunting SC for the cargo owners advances two lines of argument on The Evpo Agnic. The first is that the English Court of Appeal did not really mean what it said when it said that, in relation to a registered ship, "owner" means "registered owner". And the second, which is in the alternative to the first, is that if the court really meant that, then it was wrong in so holding.

  57. On the first line of argument, Mr. Bunting submits that the Master of the Rolls was dealing with whether "owner" included a purely equitable owner, and spoke of registered owner merely on the working assumption that the registered owner was in fact the owner. That, Mr. Bunting's submission continues, is made explicitly clear by two things which the Master of Rolls said. The first is the reference (at p.1096 A-B) to "the registered owner, who is necessarily the legal owner". And the second is the statement (at E-F of the same page) that: "registered owners, even when one-ship companies, are not bare legal owners. They are both legal and beneficial owners ...." I do not think that either that reference or that statement bears out Mr. Bunting's submission.

  58. Mr. Bunting also submits that his first line of argument is borne out by the following passage in the judgment of the English Court of Appeal delivered by Lord Bingham of Cornhill CJ in Haji-Ioannou v Frangos [1999] 2 Lloyd's Rep. 337 at p.353 (2nd column):

    As a result of this choice of language, it has now for a long time been accepted law that ownership of a ship for the purposes of the Convention and for the purposes of the Admiralty jurisdiction of the High Court means legal ownership, except in those provisions where the word is qualified by the adjective 'beneficial': see The I Congreso del Partido, [1977] 1 Lloyd's Rep. 536 at p.562, col. 2; [1978] 1 Q.B.500 at p.541, and The Evpo Agnic, [1983] 2 Lloyd's Rep. 411 at pp 414-415. In the latter case Lord Donaldson, M.R. observed that the Convention clearly looked to ownership and registered ownership as one and the same. Even if the legal property in the shares of a one-ship company is held by A and the equitable property by B, he said that that distinction does not affect the ownership of the ship or the shares in the ship.

  59. I do not read this passage or any other part of the judgment delivered by the Lord Chief Justice as support for Mr. Bunting's first line of argument. I read what the Lord Chief Justice said as being to the effect that "owner" in s.21(4)(b) means legal owner (as opposed to beneficial owner), and that, where the ship is a registered ship, the registered owner is the legal owner. I will revert to this case later on.

  60. Finally on that line of argument, Mr. Bunting relies on the statement of Judicial Commissioner Selvam sitting at first instance in the Singaporean High Court in The Opal 3 [1992] 2 SLR 585 at p.590 C that: "The word 'owner' in this text means the legal owner who in most cases would be the registered owner". I do not regard that statement as a good reason for saying that the Master of the Rolls did not mean what he said.

  61. It is instructive to look at the reasons which the Master of the Rolls gave (in the passage from p.1096 B-E of his judgment quoted above) for concluding (at the end of that passage) that "in relation to a registered ship, 'owner' in section 21(4)(b) means 'registered owner'." The giving of those reasons run counter to the notion that he did not mean what he said. So does the giving of the reasons contained in the passage (from p.1096 E-G of his judgment) which I quote below when dealing with Mr. Bunting's second line of argument. As for his first line of argument, I reject it for the reasons which I have given.

  62. In arguing that, alternatively, the English Court of Appeal was wrong in holding that, in relation to a registered ship, "owner" means "registered owner", Mr. Bunting submits that such a conclusion would open the way for shipowners - what he calls "true shipowners"- to evade s.12B(4)'s operation simply by registering their ships in the names of nominees. A comparable submission had been made to the English Court of Appeal. Immediately after the passage from his judgment quoted above, the Master of the Rolls said (at p.1096E-G) this:

    Mr. Rokison, appearing for the plaintiffs, submits that this cannot be right because, if it were, even the particular ship could not be arrested if it could be shown that the registered owner was not the beneficial owner of all the shares in the ship. If this is so, it is an understandable casus omissus, because in real commercial life, thus far at least, registered owners, even when one-ship companies, are not bare legal owners. They are both legal and beneficial owners of all the shares in the ship and any division between legal and equitable interests occurs in relation to the registered owner itself, which is almost always a juridical person. The legal property in its shares may well be held by A and the equitable property by B, but this does not affect the ownership of the ship or of the shares in that ship. They are the legal and equitable property of the company.

    (Counsel spoke of "even the particular ship" because the admiralty action in rem in which the Evpo Agnic was arrested was an action in which the cargo owners there were pursuing a claim for the loss of cargo resulting from the sinking of an alleged sister ship, the Skipper 1.)

  63. There is nothing to show that the evasion of which Mr. Bunting spoke is being resorted to in practice. If the time were ever to come when such evasion poses a real problem, it would be for the maritime nations of the world to react collectively by a fresh treaty and individually by domestic legislation.

  64. The other basis on which Mr. Bunting questions the correctness of The Evpo Agnic decision is this. He submits that reading "owner" to mean "registered owner" involves rewriting the statute by adding a word which is not there. I am unable to accept this submission. Words take their meaning from their context. There is more than one sense in which a person can be the owner of something. Thus there is such a thing as legal ownership; there is such a thing as beneficial ownership; and there are different manifestations of each. Sometimes a particular reading of a statute may appear at first sight to involve qualifying an expression used in the statute by adding another expression which is not in the statute. But it will turn out upon closer analysis that the latter expression is used merely to indicate the sense in which the former expression is used in the statute. Discovering that sense is a matter of interpretation.

  65. It is clear that the process by which the English Court of Appeal reached its conclusion that, in relation to a registered ship, "owner" meant "registered owner" was one of interpreting the statute, and not of rewriting it.

  66. I turn now to two other cases cited by Mr. Bunting.

  67. In The Ohm Mariana [1993] 2 SLR 698 at pp 709-710 the Singaporean Court of Appeal took the view that the statement in the Evpo Agnic that, in relation to a registered ship, "owner" meant "registered owner" was a dictum, and declined to follow it. In my view, the conclusion which the Master of the Rolls expressed on the point, for which conclusion he gave full reasons, is not to be dismissed as if it was something in the nature of an aside. In The Iron Shortland (1995) 131 ALR 738 Sheppard J sitting at first instance in the General Division in Admiralty of the Federal Court of Australia, said (at p.749) that there were "difficulties in taking the simple view that 'owner' in [the provision with which he was concerned] meant only 'registered owner'." But as Mr. Bunting concedes, that Australian provision is materially different from the United Kingdom provision in The Evpo Agnic and the Hong Kong provision in the present case.

  68. It is worth noting that the matter is treated as a straightforward one in the two leading texts to which our attention has been drawn. In "Dicey & Morris on Conflict of Laws", 13th ed. (2000), Vol. 1 at p.458 para. 13-016 it is said in regard to s.21(4)(b) of the Supreme Court Act 1981 that: "Here 'owner' means 'registered owner'." And The Evpo Agnic is cited in support. In "Nigel Meeson: Admiralty Jurisdiction and Practice", 2nd ed. (2000) at p.87 para. 3-037 it is said in regard to "owner" in s.24(4)(b) of the 1981 Act that: "This means the registered owner". Again The Evpo Agnic is cited in support.

  69. In my judgment, the reasoning in The Evpo Agnic is wholly convincing, and that, in relation to a registered ship, "owner" in s.12B(4)(b) of the High Court Ordinance means "registered owner". Another way of putting it, incorporating the way it was put in Haji-Ioannou v Frangos, is as follows. In the internal, linguistic context of s. 12B(4)(b) "owner" means legal owner (as opposed to beneficial owner) where a registered ship is concerned. And in the wider, real world context of the subsection, the registered owner of a registered ship is her legal owner. Both ways of putting it come to the same thing in the end where the ship is a registered ship. The second way has the merit of explaining itself more fully, while the first has the merit of brevity. Whichever way it is put, the cargo owners' claim is not within s.12B(4) since the Ship was a registered ship and there is no suggestion that the person liable in personam was ever her registered owner. As a closing caveat, I would say this. If a registration is fraudulent, there would be room for an argument that the fraudulent registration should be ignored and that the person registered as owner by fraud should not be regarded as the registered owner. But that is not this case. I have read Mr. Justice Litton PJ's judgment and find myself in agreement with it.

    CONCLUSION

  70. In the result and with an expression of thanks to counsel on both sides for their assistance, I would allow this appeal so as to

    1. order the setting aside of the warrant of arrest and the return of the bail bond to the present shipowner for cancellation and

    2. direct that, unless they reach agreement on costs, the parties lodge with the Registrar of this Court within 14 days of today written submissions on costs (it having been accepted at the hearing by the parties that costs, unless agreed, would be dealt with on written submissions after the result of the appeal, save as to costs, has been made known).

    Mr. Justice Silke NPJ

  71. I have had the opportunity of reading in draft the judgments of Mr. Justice Litton PJ, Mr. Justice Bokhary PJ and Sir Anthony Mason NPJ.

  72. On the matter of Order 12 rule 8, I agree with Sir Anthony Mason NPJ that this Order and rule provides a complete code when the exercise of the courts' statutory jurisdiction in Admiralty arises. Quare, generally, whether rule 8 can cover the position where there is no jurisdiction in existence at all. If there is no such jurisdiction it might well be incumbent on a trial court to raise the issue itself. But that is another day's work.

  73. Generally, and despite the absence of any proper earlier application for extension of time, I agree that this appeal should be allowed and with the orders proposed by Mr. Justice Bokhary PJ.

    Sir Anthony Mason NPJ

  74. I agree with the judgments of Mr. Justice Litton PJ and Mr. Justice Bokhary PJ.

  75. The issue is whether the appellant International Resources Inc. was precluded by Order 12 rule 8 from raising an objection to the exercise of Admiralty jurisdiction in rem in this action.

  76. The appellant's case is that, as a matter of construction, Order 12 rule 8 should be read as not applying to disputes about jurisdiction to entertain Admiralty actions in rem. In the alternative, the appellant's case is that rule 8 is ultra vires on the ground that it exceeds the scope of the rule making power conferred by s.54 of the High Court Ordinance, Cap.4 ("the Ordinance"). Central to these two ways of putting the appellant's case is the broad proposition that a court cannot exceed its jurisdictional limits, that such limits cannot be waived and that they cannot be overcome by consent of the parties.

  77. Section 12A(1)(a) of the Ordinance confers Admiralty jurisdiction on the Court of First Instance (the High Court) to hear and determine certain questions and claims. For the purposes of the present case, we are concerned with the claims mentioned in s.12A(2)(g) and (h); that is, with jurisdiction conferred by s.12A(1)(a) to hear and determine:

    (g)

    any claim for loss of or damage to goods carried in a ship; and

    (h)

    any claim arising out of any agreement relating to the carriage of goods in a ship ....

  78. Section 12B deals with the mode of exercise of Admiralty jurisdiction. Section 12B(1) provides that, subject to s.12C, "an action in personam may be brought in the Court of First Instance in all cases within the Admiralty jurisdiction". Section 12B(2), (3) and (4) then provide that actions in rem may be brought in certain classes of case within the Admiralty jurisdiction. Section 12B(4), on which the appellant's argument on jurisdiction depends, is in these terms:

    (4)

    In the case of any such claim as is mentioned in section 12A(2)(e) to (q), where-

    (a)

    the claim arises in connection with a ship; and

    (b)

    the person who would be liable on the claim in an action in personam ("the relevant person") was, when the cause of action arose, the owner or charterer of, or in possession or in control, of the ship,

    an action in rem may .... be brought in the Court of First Instance against -

    (i)  

    that ship, if at the time when the action is brought the relevant person is either the beneficial owner of, that ship as respects all the shares in it or ....

  79. Section 54(1) of the Ordinance enables the Rules Committee, constituted under s.55, to make rules of court:-

    regulating and prescribing the procedure .... and the practice to be followed in the High Court in all causes and matters whatsoever in or with respect to which the High Court has jurisdiction .... and any matters incidental to or relating to that procedure or practice.

  80. Order 12 rule 8, under the heading "Dispute as to Jurisdiction", prescribes a procedure according to which such disputes are to be resolved. This procedure requires a defendant who wishes to dispute the jurisdiction of the court on any ground to give notice of intention to defend the proceedings and, within the time limited for service of a defence, to make an appropriate application to the Court (r.8(1)). The critical element in the procedure is that, except where the defendant makes such an application as prescribed, the acknowledgment by a defendant of service of a writ shall, unless the acknowledgment is withdrawn by leave of the Court, be treated as a submission by the defendant to the jurisdiction of the Court in the proceedings (r.8(7)).

  81. Order 12 rule 8(3), by specifically providing that an application under rule 1 must be made in an Admiralty action in rem, makes it impossible to read rule 8 as having no application to Admiralty actions in rem or to objections to jurisdiction in Admiralty actions in rem. Rule 8(3) makes it clear that, as a matter of interpretation, the rule is intended to be a comprehensive and exclusive code for the taking of jurisdictional objections, applying to Admiralty actions in rem as well as actions in personam, save perhaps objections on the ground that the Court of First Instance has no Admiralty jurisdiction at all. If the appellant's arguments are to prevail, it can only be on the footing that rule 8(7), lies beyond the scope of the rule making power conferred by s.54, because its effect is to preclude a defendant from contesting jurisdiction otherwise than in accordance with the rule 8 procedure.

  82. So the substantial question is whether the rule making power extends to the prescription of a procedure which, in its application to Admiralty actions in rem, precludes the defendant from taking an objection to jurisdiction based on the limits stated in s.12B(4), unless it is taken within the time limited by order 12 rule 8.

  83. In considering whether the scope of the rule making power extends to regulating in the manner prescribed a dispute about the application of s.12B(4), it is necessary to classify that provision, in particular to determine whether it goes to jurisdiction and, if it does, what type of jurisdictional provision it is. In these respects, it is important to note that sections 12 and 12A are the sections which confer jurisdiction on the Court of First Instance, s.12 conferring the civil and criminal jurisdiction, s.12A conferring the Admiralty jurisdiction. Significantly, section 12B is not expressed to be a section which grants jurisdiction to the Court of First Instance. The heading is "Mode of exercise of Admiralty jurisdiction". That is an accurate description of what the section does because it provides how the Admiralty jurisdiction, already conferred, is to be exercised.

  84. What is of particular significance is that s.12B(4) is not expressed in terms of jurisdiction at all. The word "jurisdiction" is conspicuous by its absence. The sub-section in terms confers upon a litigant a right to proceed in a particular way by bringing an action in rem upon conditions. I am quite unable to see how such a provision can be characterised as one which goes to the existence of the Admiralty jurisdiction.

  85. Section 12B(1), (2), (3) and (4) provide that both actions in personam and actions in rem may be brought in cases within the Admiralty jurisdiction of the Court of First Instance. Actions in personam may be brought in all cases within the Admiralty jurisdiction, but in the case of actions in rem, there are limitations and they vary with the nature of the claim.

  86. The point is that s.12B(4) goes not to the existence of jurisdiction at all, but to the exercise of jurisdiction, limiting the situations in which in rem actions may be brought, notwithstanding that the Court will be exercising jurisdiction in in personam actions when the in rem limits are exceeded. The distinction between the existence and the exercise of jurisdiction is to be equated to the existence of jurisdiction to entertain a matter at all and what may be done in the exercise of that jurisdiction.

  87. References are to be found in the cases to counterparts of s.12B(4) which speak of the provisions as going to jurisdiction; see, for example, Republic of India v India Steamship Co. [1997] 3 WLR 818 at 823, per Lord Steyn. In my view, these references should be understood, at least in the context of Hong Kong, as references to the exercise of Admiralty jurisdiction rather than to the existence of that jurisdiction.

  88. The conditions which apply to the bringing of an action in rem should be seen as matters to be determined by the Court of First Instance in the exercise of its jurisdiction, not as matters upon which the existence of the Court's jurisdiction is conditioned. This conclusion gains added strength from two circumstances. One is that the conditions stipulated in s.12B(4) turn on matters of fact (and law) which the Court itself must determine. The other is that the Court of First Instance (the High Court) is presumed to be a court of general or unlimited jurisdiction.

  89. Indeed, in the case of such a court, even if the statutory provision relating to jurisdiction were cast in a form which might be said to go to the existence of jurisdiction, it would be for the court itself to determine the existence of jurisdiction. Such a court, unlike an inferior court, is necessarily the arbiter of its own jurisdiction. In other words, the existence of jurisdiction would depend upon the court's determination of the events, facts or circumstances on which the existence of jurisdiction was made to depend. (Canada Trust Co v Stolzenberg [1997] 1 WLR 1582 at 1589, per Millett LJ.) And, in any event, ordinarily limitations relevant to the jurisdiction of such a court will be regarded as going to the exercise of jurisdiction rather than its existence, unless a contrary intention is clearly expressed (See Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391, per Dixon J; The Queen v Gray, Ex parte Marsh (1985) 157 CLR 351 at 374 - 375, per Mason J.).

  90. As it is for the Court of First Instance to determine, in the exercise of its jurisdiction, the question whether the conditions stipulated in s.12B(4) are satisfied, there is no basis on which it could be held that Order 12 rule 8 in its application to this case exceeds the rule making power. The rule prescribes a procedure which is appropriate for the resolution of issues, even if they are "jurisdictional", which are, to be determined in the exercise of jurisdiction. Although some criticism has been made of sub-rule (7) which states that the acknowledgement of the service of the writ shall-

    be treated as a submission by the defendant to the jurisdiction of the Court in the proceedings,

    the meaning is clear. Unless a defendant makes an appropriate application within the time limited to give effect to a jurisdictional objection, he is to be regarded as accepting the exercise of jurisdiction and is shut out from taking the jurisdictional objection at a later stage in the litigation. In passing, I make the point that the statutory provisions are to be interpreted in their own light, not by reference to the Rules or any assumptions made by the Rules Committee as to the meaning of the statutory provisions.

  91. A power to regulate by rules the practice and procedure in actions generally in a superior court must extend to the prescription of time limits within which, and procedures by which, objections on various grounds, including jurisdiction, are to be made. Indeed, in the case of jurisdictional objections, there are powerful reasons for thinking that they should be resolved, as far as possible, at an early stage of an action. It is not right that a court should be venturing upon the merits or substance of an action without determining at the threshold of the action, if it can conveniently do so, that there is jurisdiction to proceed. The prospect of a defendant raising a jurisdictional objection at a very late stage of an action, perhaps after a lengthy hearing and just before the delivery of judgment, is one not readily to be contemplated. Accordingly, in the absence of any compelling contrary consideration, there are strong grounds for holding that the rule making power extends to prescribing a time and method by which a jurisdictional objection is to be taken, at least an objection of the type raised here, in default of which jurisdiction will be exercised.

  92. The conclusion which I have reached is generally in accord with the judgment of Fuad VP in Wo Fung Paper Making Factory Ltd v Sappi Kraft (Pty) Ltd [1988] 2 HKLR 346 at 352 and with the view expressed by Robert Goff J. in I Congreso del Partido [1978] QB 500 at 535-536. There his Lordship treated R.S.C. Order 12 rule 8 as having a valid application to a case in which there was an issue whether the court had jurisdiction to try an Admiralty action in rem and refused to allow the issue to be tried in the action; instead, he insisted that it be tried on the motions. That course has been followed in a number of cases (See The St Merriel [1963] 1 Lloyd's Rep.63; Medway Drydock & Engineering Co. Ltd v The Andrea Ursula [1971] 1 Lloyd's Rep. 145; [1973] QB 265; The "Aventicum" [1978] 1 Lloyd's Rep. 184 at 186). And in The August 8 [1983] 2 AC 450, an acknowledgment of service of the in rem writ was treated as establishing the continuation of the action in rem and also as an action in personam (at 456, per Lord Brandon, citing The Gemma [1899] P. 285 at 292; see also The Oakwell [1999] 1 Lloyd's Rep. 249 at 253, per Timothy Walker J).

  93. Mr. Sussex SC for the appellant relied on the decision of the Supreme Court of Papua New Guinea in The Federal Huron [1988] 1 Lloyd's Rep. 288 where the Court and the National Court at first instance entertained an objection to jurisdiction in an Admiralty action in rem outside the time limited by the Rules of Court. The objection (which was overruled) was that the Court had no Admiralty jurisdiction at all. This was an objection which went to the very existence of jurisdiction, not simply to its exercise, and it did not depend upon the determination of any facts. It is therefore distinguishable from the facts of the present case. Whether rule 8 needs to be read down so that it does not apply to such a case (no jurisdiction at all) is not a question which we have to decide.

  94. All that remains to be said on this point is that the proposition that absence of jurisdiction cannot be overcome by consent or waiver has no application to the present case. (See Rothmans of Pall Mall (Overseas) Ltd v Saudi Arabian Airlines [1981] QB 368 at 375-376, per Mustill J.).

  95. It follows that Order 12 rule 8 excludes a challenge to jurisdiction under Order 75 rule 13.

    Chief Justice Li

  96. I agree with the judgments of Mr. Justice Litton PJ, Mr. Justice Bokhary PJ and Sir Anthony Mason NPJ.

  97. The Court unanimously allows this appeal so as to

    1. order the setting aside of the warrant of arrest and the return of the bail bond to the present shipowner for cancellation and

    2. direct that, unless they reach agreement on costs, the parties lodge with the Registrar of this Court within 14 days of today written submissions on costs.


Cases

The Evpo Agnic [1988] 1 WLR 1090; Haji Ioannou v Frangos [1999] 2 Lloyd's Rep 337; Rothmans of Pall Mall (Overseas) Ltd v Saudi Arabian Airlines [1981] QB 368; The Cap Bon [1967] 1 Lloyd's Rep 543; The Ohm Mariana [1993] 2 SLR 698; The Opal 3 [1992] 2 SLR 585; The Iron Shortland (1995) 131 ALR 738; Republic of India v India Steamship Co. [1997] 3 WLR 818; Canada Trust Co v Stolzenberg [1997] 1 WLR 1582; Canada Trust Co v Stolzenberg [1997] 1 WLR 1582; The Queen v Gray, Ex parte Marsh (1985) 157 CLR 351; Wo Fung Paper Making Factory Ltd v Sappi Kraft (Pty) Ltd [1988] 2 HKLR 346; The St Merriel [1963] 1 Lloyd's Rep.63; Medway Drydock & Engineering Co. Ltd v The Andrea Ursula [1971] 1 Lloyd's Rep. 145; [1973] QB 265; The Aventicum [1978] 1 Lloyd's Rep. 184; The August 8 [1983] 2 AC 450; The Gemma [1899] P. 285; The Oakwell [1999] 1 Lloyd's Rep. 249; The "Federal Huron" [1988] 1 Lloyd's Rep. 288 

Legislations

Hong Kong SAR

High Court Ordinance, Cap.4: s.12A(2)(g), s.54, s.12B(4)

Rules of High Court: Ord.12 r.8, Ord.75 r.13, 

Hong Kong Court of Final Appeal Ordinance, Cap 484: s.17(2)

United Kingdom

Supreme Court Act 1981: s.21(4)

Authors and other references

International Convention Relating to the Arrest of Seagoing Vessels (Treaty Series No. 47 (1960) (Cmnd. 1128))

Dicey & Morris on Conflict of Laws, 13th ed. (2000), Vol. 1 

Nigel Meeson: Admiralty Jurisdiction and Practice", 2nd ed. (2000) 

Representations

Mr. Charles Sussex SC for the appellant, the present shipowner (instructed by Messrs Ng & Partners). 

Mr. Michael Bunting SC for the respondents, the cargo owners (instructed by Messrs Richards Butler).


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