CHIMBUSCO PAN NATION PETRO-CHEMICAL CO LTD V THE OWNERS AND/OR DEMISE CHARTERERS OF THE SHIP OR VESSEL "DECURION"

[2013] HKCA 180, Court of Appeal, Fok and Chu JJA and McWalters J, 12 April 2013

Admiralty - Jurisdiction in rem - Whether properly invoked by party against vessel in respect of claims for supply of bunkers to vessel - Whether party "in control of" vessel for purposes of exercise of jurisdiction in rem - Whether opposite party had submitted to jurisdiction in rem and hence debarred from challenging jurisdiction - Rules of the High Court (Cap 4, Sub Leg ) O 12 r 8

Chimbusco, the plaintiff, claimed US$4,217,419.89 in respect of bunkers supplied to Decurion and 10 other vessels of the defendant. At first instance, the judge declared that the court had no jurisdiction in rem in respect of Chimbusco's claim insofar as it related to claims other than for the price of unpaid bunkers supplied to Decurion itself. He also made an order striking out those parts of the statement of claim which related to the claims for the price of unpaid bunkers to those 10 other vessels. Owners appealed. At issue was notably the meaning of the words "in control of" in the following provision of the HK High Court Ordinance: 12B(4)(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", derived from the Arrest Convention 1952.