Recent Admiralty Decisions in Hong Kong - Are the Courts Ready to Deviate From Their English Predecessors?

• Author: Poomintr Sooksripaisarnkit
• Position: LLB(Thammasat), LL.M. (International Commercial Law) (Leicester), PhD (Leicester), MCIArb, LMAA Supporting Member, CEDR & HKMAAL Accredited Mediator, AFNI, Assistant Professor, School of Law, City University of Hong Kong. E?mail: poomintr@icloud.com. This paper is an expanded version of the paper presented at the Workshop on Maritime Law in the...
• Pages: 134-146

(2016) 30 ANZ Mar LJ

134

RECENT ADMIRALTY DECISIONS IN HONG KONG – ARE THE COURTS

READY TO DEVIATE FROM THEIR ENGLISH PREDECESSORS?

Poo mintr Soo ksripa isa rnkit

1 Intro ductio n

In Hong Kong, the jurisdiction of the courts in Admiralty matters is derived from the High Court Ordinance (Cap.

4) (HK), in particular ss.12A-12E. These provisions are mostly identical to those contained in ss.20-24 of the

Senior Courts Act 1981 (UK). Hence, it is also similar to the Admiralty Act 1973 (NZ) and largely resembles The

Admiralty Act 1988 (Cth). Being a former colony of England, English case laws remain highly influential, if not

directly binding in Hong Kong.1 As one of the State Parties to the ‘International Convention Relating to the Arrest

of Sea-going Ships, Brussels, May 10, 1952 ’ (Arrest Convention 1952), judicial authorities from other State

Parties to this Convention have provided much food for thoughts for Admiralty judges in Hong Kong. The

continued reliance on Hong Kong as a centre of dispute resolution by the international s hipping sector suggests

their strong trust in Hong Kong’s judicial procedures and its rules of law. Likewise, Hong Kong has legal

practitioners – solicitors and barristers – who are well-equipped with sophisticated knowledge to handle shipping

matters. These unique features of Hong Kong should of course be maintained, undisturbed by any political

concerns.

Despite its historical root from that of the English law, the development of Admiralty law in Hong Kong must

largely be credited to judges. As observed by one of the leading practitioners in Hong Kong, the Admiralty

Division of the Court of First Instance in Hon g Kong has in recent years been active in developing its own

precedents.2 Indeed, a review of recent cases seems to suggest that the courts in Hong Kong, where they deem

appropriate, are more willing to depart from the English authorities. This is also a trend across the Asia -Pacific

Region, as it can be seen in some cases in Australia and New Zealand. While there might be a benefit of

uniformity, this has to be balanced against the need for the ‘best quality’ law – the law which most suits

commercial reality. Two examples of such ‘best quality laws’ will be discussed in this work. The first example is

the recent decision of the Hong Kong Court of Appeal in The Alas3 where the Court, in upholding the decision of

Ng. J at first instance,4 r efused an argument based upon the decision of the House of Lords in The Indian Grace

(No.2)5 in the context of the right to raise an in rem action in light of a prior arbitration award. The second example

is from an observation of the Hong Kong Court of Appeal in The Almojil 61,6 which gave an indication that it

prepared to go beyond the ship registration to determine the ownership of a vessel. Once again, if this is developed

further in subsequent cases, it will be a clear sign of departure from the English authority represented by The Evpo

Agnic.7 This work will conclude with a supporting voice for the courts in Hong Kong as well as for those other

countries in the Asia-Pacific Region, to be ready to depart from the En glish authorities, especially those which

are deemed to be too static and wrong.

 LLB(Thammasat), LL.M. (International Commercial Law) (Leicester), PhD (Leicester), MCIArb, LMAA Supporting Member, CEDR &

HKMAAL Accredited Mediator, AFNI, Assistant Professor, School of Law, City University of Hong Kong. E–mail: poomintr@icloud.com.

This paper is an expanded version of the paper presented at the Workshop on Maritime Law in the Asia–Pacific Region at the Victoria

University of Wellington School of Law on 25th–26th February 2016. The author would like to thank all participants at the Workshop for

their comments on the earlier draft of this paper. The author would also like to thank Ms. YIM Choi Wai Bridget, a 4th year LLB student of

the City University of Hong Kong, for her initial editing work for this paper.

1 Article 8 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Adopted on 4th April 1990

by the Seventh National People’s Congress of the People’s Republic of China in its Third Session): ‘The law previously in force in Hong

Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any

that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.’

2 Mary Thomson, ‘Preface’ in Mary Thomson (ed.), Maritime Law and Practice in Hong Kong (2015) xv.

3 Handytankers KS v The Owners and/or Demise Charterers of the Ship or Vessel M/V ‘Alas’ subsequently renamed as ‘Kombos’ and those

other vessels named in Schedule ‘A’ Annexed Hereto HCMP 2315/2014.

4 The Alas [2014] 4 HKLRD 160.

5 Republic of India and The Government of the Republic of India (Ministry of Defence) v India Steamship Co. Ltd (The ‘Indian Grace

(No.2)’) [1998] 1 Lloyd’s Rep 1.

6 [2015] 3 HKLRD 598.

7 [1988] 2 Lloyd’s Rep 411.