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19 January 2011
In a South African case - The Ioannis NK - a court exercising admiralty jurisdiction made an order in favour of the owner of a cargo that was lost when the vessel carrying it sank. The applicant sought to commence arbitration in London. The judge concluded that the conduct of the shipowner and crew after the sinking made it unlikely that crew members would give evidence at the arbitration. The court was satisfied that the evidence would be lost if it were not taken on commission.
The court issued an order that provided for:
The case raises the question of whether similar remedies would be available in Hong Kong as a forum for obtaining evidence.
The new Civil Justice Rules came into effect on April 2 2009 (for further details please see "New civil justice regime: impact on shipping cases"). They include a number of significant innovations, including interim relief in support of substantive proceedings commenced (or to be commenced) in Hong Kong. The effective abolition of the Siskina principle means that it is no longer necessary to establish a substantive cause of action in Hong Kong, subject to the court being satisfied of the existence of proceedings capable of giving rise to a judgment or award that would be enforceable in Hong Kong. Consequently, cargo interests, shipowners and other stakeholders would be able to obtain interim relief by means of Mareva injunctions and Anton Piller orders in relation to proceedings that are taking place or will take place outside the jurisdiction and where no such substantive proceedings have been contemplated in Hong Kong.
Certain general rules of the Hong Kong High Court would apply to obtaining witness evidence in shipping cases similar to The Ioannis NK.(1) There are also specific provisions for admiralty proceedings in Hong Kong that would assist in such a case.
Admiralty procedures for the inspection of ships and the examination of witnesses and other persons exist alongside non-admiralty provisions.(2) Under Order 75, Rule 28, the inspection of a ship may be ordered where the party seeking the order can demonstrate that it is necessary to obtain full information and evidence on any issue in the action - such as a vessel's unseaworthiness, which was a key point in The Ioannis NK. As The Good East ( 3HKC 250) demonstrated, if it cannot be shown that the inspection will assist the court, or if the application is considered to be a speculative and non-specific 'fishing expedition', the order will not be granted.
An order for inspection that permits a party's surveyor to inspect a ship and its documents and to take samples from a vessel is mandatory in form, but does not constitute an injunction. It can be obtained on the basis of affidavit evidence which shows a good arguable case on the merits and more than a de minimis shortage of cargo on delivery. In addition, such evidence must show that the inspection, the taking of samples or the analysis is likely to assist the trial judge. As in the case of Mareva injunctions, plaintiffs must give an undertaking in damages against any loss suffered as a result of the order. This requirement is intended to protect shipowners from unnecessary interference and to safeguard the interests of third parties that might be adversely affected by the order.(3)
An admiralty order for the examination of witnesses and other persons(4) provides that an order must make provision for any consequential matters, such as recording of the proceedings - in this respect, it resembles its equivalent in the South African case.
In addition, video conferencing may be a key factor in shipping cases where crew members or technical experts are based abroad. A recent hearing considered the use in the Technology Court of video conferencing to take the evidence of a witness abroad.(5) The judge, Justice Stone, set aside an earlier order permitting such evidence. It has previously been acknowledged that "the atmosphere of a court is highly important as regards [the] taking of evidence".(6) Although this view does not exclude the use of technology, Stone concluded that it is for the party wishing to use a video link to justify this exceptional treatment. Although shipping cases frequently involve witnesses from outside Hong Kong, the Admiralty Court is likely to adopt a similar approach.
Hong Kong has provisions for the examination of witnesses in foreign proceedings that are similar to those applied by the South African court in The Ioannis NK. Obtaining such witness evidence in shipping and transport cases may require the use not only of long-established procedures, commonly used in many maritime nations worldwide in obtaining evidence in a territory of another state by letters rogatory and by commission, but also of the specific admiralty procedures under Order 75 and certain innovations introduced by the civil justice reform. However, for all its potential, the use of video conferencing for collecting evidence in shipping cases in Hong Kong remains untested. It may be highly suitable for technical evidence by technical witnesses from abroad - although a experienced marine engineer witness has noted that, evidence having been given, it is impossible to have a beer with the other side's expert witness over a plasma screen. However, the courts may consider that the remote hearing of evidence is no substitute for an assessment of a witness's demeanour through at least the fifth (if not the sixth) sense.
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