Fong Yau Hei (the plaintiff) suffered severe injuries due to being hit by the recoil of a tow rope that suddenly broke. At the time of the accident, the plaintiff was employed by Tung Shun Transportation & Engineering Ltd (the second defendant), which contracted with Gammon Construction Ltd (the first defendant) to supply vessels and crew for construction works. Cheng Kan Ho (the third defendant) and the plaintiff were the only persons on the tugboat. The fact that the rope recoiled and hit the plaintiff with such force to cause serious injuries could only be consistent with the rope being under tension when it broke. The plaintiff claimed against the three defendants for breach of obligations. The second and third defendants raised a defence of limitation of liability. They relied on the Convention on Limitation of Liability for Maritime Claims of 1976 (LLMC 1976) which had been made part of Hong Kong law by the provisions of the Merchant Shipping (Limitation of Shipowners' Liability) Ordinance, Cap 434. The second and third defendants sought to limit the quantum of their liability to HKD 2.2 million.

The second and third defendants applied for leave to appeal to the Court of Final Appeal. The proposed appeal was from the Court of Appeal's judgment on whether the second and third defendants were entitled to invoke arts 1 and 2.1.a of the LLMC 1976 to limit their liability to the plaintiff who sustained personal injuries whilst working on the tugboat.

Held: Leave to appeal to the Court of Final Appeal granted.

By a majority, the Court of Appeal held that the second and third defendants were not entitled to limit their liability: see Fong Yau Hei v Gammon Construction Ltd [2007] HKCA 52 (CMI1162). In view of the fact that the decision of the Court of Appeal was not unanimous, with, amongst other things, differing views on the true construction of s 18(1) of the Control of Exemption Clauses Ordinance, Cap 71 which had a direct bearing on the availability of the limitation of liability under the LLMC 1976, this is clearly a matter that should be considered by the Court of Final Appeal.

[For the ultimate dismissal of the appeal by the Hong Kong Court of Final Appeal, see Fong Yau Hei v Gammon Construction Ltd [2008] HKCFA 27 (CMI1168).]