The plaintiff was travelling on a jet foil, the Santa Maria. The Santa Maria collided with another jet foil, the Funchal, and the plaintiff suffered injuries. He sued the operator of both jet foils, Shun Tak-China Travel Ship Management Ltd, to recover losses suffered from his injuries and commenced pre-action discovery to obtain disclosure of several documents, including: (a) statements of Funchal’s crew; (b) statements of Santa Maria’s crew; (c) documents relating to the defendant's insurers; (d) a sample ticket; (e) statements of eyewitnesses; (f) the operation and training manual issued by the defendant to crew members; (g) photographs of the damaged jet foils and the accident scene; (h) survey reports of the jet foils, and (i) employment contracts of the jet foils' crew.

The defendant did not deny liability because, according to art 3.3 of the Athens Convention 1974, liability for negligence was presumed on the part of the defendant. It took the position that liability for negligence was therefore not in dispute. Further, the defendant’s position was that it was not liable to the plaintiff for any further losses because it had been paying the medical expenses of the plaintiff after the incident and such sums were more than the limit of liability prescribed under art 7.1 of the Athens Convention 1974. Hence, no purpose would be served in any pre-action discovery of further documents against the defendant.

The plaintiff, however, argued that he intended to uplift the limitation imposed by art 7 by relying on art 13 of the Athens Convention 1974. He therefore had to show that the damages to him were caused by the act or omission of the carrier done with the intent to cause such damage, or recklessly with knowledge that such damages would probably result. He needed the documents to determine whether the act or omission of the operators, masters and chief officers fall with the scope of art 13.

Held: Pre-action disclosure partially successful.

The Master noted that art 13 clearly sets out that the plaintiff may uplift the limitation by proving that the damage is caused by recklessness on the part of the defendant and with knowledge that it would cause damage to the plaintiff. It is a well established principle of law that that particular knowledge has to be pleaded. It cannot be disputed that recklessness has to be pleaded with reference to material material facts relied upon.

For items (a) and (b), the Master allowed the disclosure of the statements of the defendant as well as the jetfoils' master and first officer because, notwithstanding art 3.3, these were relevant and necessary to the plaintiff’s claim because no admission of liability had been made by the crew. As for the statements of the chief engineer and night vision officer, these were irrelevant to the issues at hand, in particular, recklessness, which was in any event inadequately pleaded. The request for the disclosure of these two statements were rejected.

The application for the disclosure for item (c), documents relating to the identity of the defendant’s insurer, was dismissed as this was not relevant to the issue of recklessness, knowledge and negligence.

Similarly, for item (d), the application for the sample ticket was refused. However, the court ordered for the wording of the terms and conditions to be released.

The application for item (e), the statements of eyewitnesses, was rejected because the plaintiff had not sufficiently particularised the issues of recklessness and knowledge. This was therefore considered fishing for evidence in so far as the matter relates to the breaking of the defendant’s limitation of liability.

As for item (f), the operation and training manual issued by the defendant to crew members, this was dismissed because the plaintiff had not pleaded that the crew members had failed to follow the procedures in the manual.

The application for items (g), (h) and (i), namely the photographs of the damaged jet foils, the survey reports and employment contracts of the jet foils' crew, were all rejected because they were neither relevant to the issue of recklessness, nor were they necessary for the plaintiff to frame his case.

[For the unsuccessful appeal to a Judge of the Court of First Instance, see Cheung Siu Tak Anthony v Shun Tak-China Travel Ship Management Ltd [2010] HKCFI 559 (CMI1145).]