The "Lian Shun"

[ Home ] [ Up ]

Note: this decision has been bupheld in the Singapore Court of Appeal, where the Court held that the shipowner was entitled to limit his liability under BOTH limbs of Article 136(1)(d) of the Singapore Merchant Shipping Act. For a note of the Appeal Court decision, click here

DMC/SandT/04/65
Owners of Cargo lately laden on board the "LIAN SHUN" v. The Owners of the "LIAN SHUN"
Hong Kong Admiralty Court: Waung J.: 24 September 2004
Mr Alex Stock, instructed by Messrs Richards Butler, for the Plaintiffs
Admiralty Jurisdiction: Arrest of Vessel: Section 12E(1) of the High Court Ordinance: whether barge a vessel and whether A vessel used in navigation
Summary
In this case the Hong Kong Admiralty Court found that a cargo-carrying barge was "any description of vessel used in navigation" and was therefore a "ship" for the purposes of s.12(E) of the Hong Kong High Court Ordinance. As a result, cargo interests could arrest the barge as security for their claim for cargo damage arising from negligent handling on board

DMC Category Rating: Confirmed

This case note is contributed by Crump & Co, the International Contributors to the website for Hong Kong

Facts
This was an ex parte application (namely. an application at which the other party was not represented) by plaintiff cargo interests to arrest the barge "LIAN SHUN" as security for their claim for damage to cargo that had occurred on board the barge. The Registrar had rejected the application on the ground that the barge was not a "ship" within the meaning of the relevant Hong Kong High Court Ordinance. Under s.12(E) of the Ordinance, a "ship" was defined as "any description of vessel used in navigation". The plaintiffs appealed to the Hong Kong Admiralty Judge.

Judgment
Mr Justice Waung held first, that the barge satisfied the requirements of a "vessel". He said: "The nature of this particular Barge, which is of a type commonly seen in Hong Kong, is such that, in my view, it is undoubtedly a vessel because it is certainly a receptacle for carrying goods, is larger than rowing boat, and is used as a means of transportation on water. [The reference to a "rowing boat" was a quotation from the judgment of Mr Justice Sheen in the English case of Steedman v. Schofield [1992] 2 Lloyds Rep. 163.]

He also found that the barge was "used in navigation", saying that "many of the indicia of this Barge being used for navigation can be found in this case.  Firstly, …this Barge was not a stationary craft.  It was a craft or vessel with movement.  The second characteristic …is that it has on board all the various objects which are normally associated with navigation and I include in these, the mast on board the vessel, the various lights that are required for navigation and for navigation safety, the ability to project sound for safe navigation for example when there is fog or mist.  The Barge carries crew and crew accommodation and it is licensed as Class II by the [Hong Kong] Marine Department, which is … a class for vessels with regular movement… The Barge is..a vessel equipped for, intended for and actually used regularly for, carriage of cargo on water from one place to another place."

On this basis it met the test for "used in navigation" set out by Mr. Justice Sheen in the case referred to above, as "planned or ordered movement from one place to another [place]."

The judge therefore concluded that the barge was indeed a "ship" within the meaning of the Ordinance and accordingly issued an order for her arrest.

 

These Case Notes have been prepared with care, but neither the Editor nor the International and other Contributors can guarantee that they are free from error, nor that they contain every pertinent point. Reliance should not therefore be placed upon them without independent verification. The Editor and the International and other Contributors disclaim all liability for any loss of whatsoever nature and howsoever arising as a result of others acting or refraining from acting in reliance on the contents of this website and the information to which it gives access. The Editor claims copyright in the content of the website.