A collision involving two Boeing jetfoils, the Santa Maria and the Funchal, occurred in the waters of the Qingzhou Shuidao (or Tsing Chau Waterway) Traffic Separation Scheme (TSS) near the Pearl River Delta. The plaintiff, who was a passenger on the Santa Maria, was left with tetraplegia by the accident.

The Santa Maria was owned by Shun Tak-China Travel Ship Management Ltd (the defendant) and was Macau-Hong Kong bound. The Funchal was Hong Kong-Macau bound. The Santa Maria and the Funchal should not have met because under the TSS Macau-bound vessels should take the northern waterway and Hong Kong-bound vessels should take the southern waterway. The Santa Maria was approaching the southern waterway of the TSS when it turned starboard to avoid an unknown vessel, entering the northern waterway of the TSS and colliding with the Funchal.

There were four officers on the bridge of the Santa Maria: the master, chief officer, chief engineer, and night vision officer. The master said that he saw the approach of the Funchal, appreciated the risk of collision, but nevertheless decided to take avoiding action in making the turn. The investigation report doubted the master's claim on the sighting of the Funchal, and stated that the two main causes of the accident were: (1) the master and chief officer of the Santa Maria failed to maintain a proper lookout; and (2) the master of the Funchal failed to reduce speed to allow more time to assess the situation.

Proceedings for pre-action discovery was commenced in October 2009, and heard by the Master in November 2009. In December 2009, the plaintiff commenced action for personal injuries against the defendant before the decision of the Master was handed down. In January 2010, the Master handed down a decision partly allowing the application. The Master refused pre-action discovery of documents, including those forming the subject of the present appeal: (1) statements of the chief engineer and the night vision officer (these were subsequently disclosed by the defendant under discovery in the personal injury action); and (2) training/operation manuals for the crew members. See Cheung Siu Tak Anthony v Shun Tak-China Travel Ship Management Ltd [2010] HKCFI 80 (CMI1177).

The plaintiff appealed against the Master's decision refusing pre-action discovery of documents. This appeal was converted into a Case Management Conference (CMC), with the defendant as appellant in the CMC. The issue in the CMC was whether discovery should be refused because it was not relevant under the personal injury action (as opposed to pre-action discovery).

Held: Appeal dismissed. The Judge ordered the discovery of the operating/training manuals in the personal injury action.

Negligence was not an issue in this case, but recklessness was. Under the Athens Convention 1974, negligence is presumed but the liability of the carrier will be limited to 466,666 units of account (about HKD 0.5 million) unless there is proof of: (1) intent to cause damage; or (2) acts or omissions done recklessly and with knowledge that such damage would probably result.

In order to prove knowledge and recklessness, the plaintiff sought the training/operation manuals on the following procedures: (1) radar surveillance; (2) night navigation; (3) duties amongst the officers on the bridge; and (4) auto-pilot. The defendant submitted that training/operation manuals were irrelevant as: (1) recklessness is to be judged on the applicable international standards as adopted in the Merchant Shipping (Safety) (Signals Of Distress And Prevention Of Collisions) Regulations (Cap 369N), which give domestic effect to the International Regulations for Preventing Collisions at Sea 1972 (COLREGs), and proof by expert evidence; (2) the night service procedures were considered by the Marine Department investigators and there was no mention of any breach in the investigation report.

The defendant relied on Kwok Kam Ming v China Airlines Ltd [2009] 3 HKC 11, a case involving an aircraft crash where the passenger suffered whiplash and psychological injuries. The Warsaw Convention has a similar limitation on damages. The passenger pleaded intent and/or recklessness on the part of China Airlines Ltd and sought specific discovery of pilot training manuals, log books etc. China Airlines Ltd sought to strike out the claim. Saunders J ruled that the case of recklessness of the pilot (as to which China Airlines Ltd would be vicariously liable) was not unarguably bad, and allowed discovery. However, the order for discovery was set aside on appeal. Rogers VP said that there was nothing in the accident investigation report or the witness statements suggesting recklessness on the part of the pilot or the flight crew, and it was clearly impossible to say the pilot or any of the crew were acting recklessly. The defendant submitted that, as in the China Airlines case, the Marine Department must have considered the night service procedures of the defendant and found no relevance to recklessness. However, the China Airlines case was one of hazardous weather and the present case is one of human error.

If the master of the Santa Maria did notice the Funchal 15 seconds away and decided to cross its path, there must be prima facie evidence of recklessness. The question is whether more is needed by the plaintiff, given that there already is the investigation report. The investigation report stated at the outset that its purpose was to determine the circumstances and causes of the accident and not it did not intend to apportion blame or liability. The investigation report stated that pre-voyage checking was done according to the defendant’s night navigation procedures, but there is nothing to indicate the entire procedures were reviewed and no recklessness was found.

While the investigation report concluded that the master and the chief officer failed to take a proper look out for the Funchal, the plaintiff's argument is rather that the master had noticed the Funchal but was reckless at the helm. The plaintiff submitted that the master could not have missed the Funchal, given there was radar for observing fast approaching objects, and three other officers to alert him. The plaintiff wants to look at the teamwork as delineated in the manuals. He has a point. No doubt the piece of navigation will have to be judged according to the accepted international standards and best practice, but the standard of care must be seen in the context of the factual circumstances. The Regulations in Cap 369N hardly cover the point or in any details. Given that the defendant is relying on an exception to liability, it is only fair that the plaintiff be allowed to look at the co-operation between the different officers on the bridge to establish that the master did notice the approach of the Funchal, but nevertheless took a reckless turn.