BRIGHT SHIPPING LTD V CHANGHONG GROUP (HK) LTD

[2019] HKCA 1062, HKSAR Court of Appeal, Hon Kwan VP, Barma JA, 20 September 2019

Admiralty – Jurisdiction – Liability for collision on the high seas – Forum non conveniens – Lis alibi pendens – Clearly and distinctly more appropriate forum – Spiliada test

Changhong had applied to stay proceedings on the grounds of forum non conveniens in an in personam action for collision liability and quantum. The collision took place on the high seas, but within the EEZ (exclusive economic zone) of the People’s Republic of China. Both the Hong Kong and the Shanghai action had been initiated on 9 January 2018, three days after the collision. The Shanghai Maritime Court had accepted jurisdiction under the applicable law of the PRC, which differed from UNCLOS (United Nation Convention on the Law of the Sea). The Shanghai proceedings had not yet been served on the claimant. The tonnage limits of liability were significantly higher in Hong Kong than in mainland China. The plaintiff accepted that there was no natural forum for a collision in international waters, but it was entitled to bring the litigation as of right as Changhong was a Hong Kong company. The plaintiff argued that the Spiliada test should be applied in its favour, in particular the assessment whether the Shanghai Maritime Court was clearly and distinctly the more appropriate forum. At first instance, the judge declined to stay the action. Changhong appealed.