High Court says detention of Lighthouse Winmore involves foreign affairs and is therefore central government’s responsibility under Basic Law
Also, ship registration does not require Marine Department to perform what company has requested, judge says
The owner of a Hong Kong-registered tanker detained in South Korean waters for allegedly transferring oil to the North has lost its court bid to demand that local authorities help retrieve the vessel.
The High Court on Thursday said the detention of the 16,500-tonne carrier Lighthouse Winmore, owned by Win More Shipping, involved foreign affairs and was therefore the central government’s responsibility.
Under the Basic Law, the city’s mini-constitution, it was up to Beijing to intervene if needed, the court said in a judgment handed down on Thursday. A resolution adopted by the UN’s Security Council on sanctions against North Korea also required a “flag state” to step in.
“The [Hong Kong Special Administrative Region] is not a ‘state’ or ‘flag state’ of the vessel,” presiding judge Mr Justice Anderson Chow Ka-ming ruled, refusing to grant Win More permission to lodge the judicial challenge.
The court fight stemmed from a rare row involving a Hong Kong-registered tanker and South Korea.
The tanker, which specialised in delivering petroleum and chemical products, was detained in waters off the southern coast of Yeosu on November 24, 2017, after it was caught allegedly “carrying out ship-to-ship operations” with a North Korean vessel, Sam Jong 2.
In January last year, South Korea’s foreign ministry said the vessel was suspected of transferring 600 tonnes of refined oil to the Sam Jong 2, which was a violation of Security Council sanctionsagainst the hermit state.
The Marine Department notified Win More it planned to terminate the tanker’s registration by August 22, 2018, setting the scene for the legal challenge which was heard in March this year. The department took the action because certifications required to maintain the tanker’s registration had been withdrawn by an international body.
Win More then filed the court action against the director of marine before the deadline. It argued that not only should the department not deregister the ship, it was obliged to help in the tanker’s retrieval.
But Chow ruled on Thursday that apart from the diplomatic nature of the incident, registration did not go so far as to require the department to perform what the company had requested.
The UN Convention of the Law of the Sea, which imposed duties on places of registry, spoke merely of “administrative, technical and social matters over the ship”, Chow said. The judge said the convention made no mention of a requirement to provide help to registered vessels facing UN sanctions.
Also, because it was an international treaty, the court could not enforce such duties, he said.
Chow also said filing of the court action was premature because at the time the deregistering had yet to be finalised. Instead, the notification was to give the firm a chance to contest the decision.
In a court filing last year, Win More said its supplier in South Korea had refused to send food to the crew of 25 – 23 Chinese seamen and two from Myanmar – on board after the tanker was detained.
No maintenance work could be carried out as it could only be done at a dock. The company claimed that meant the tanker risked capsizing, potentially resulting in pollution for which the Hong Kong government might be asked to foot the bill.
A spokesman from the Marine Department said all the crew members had been repatriated to their places of origin by March this year.
“The Marine Department will consider any appropriate action after studying the judgment in detail and seeking legal advice,” it said, adding it welcomed the court’s decision.
Win More’s lawyer Brenda Chark said the South Korean authorities were still detaining the tanker. The Marine Department had yet to deregister the vessel, pending the court decision, she added.
The marine law specialist said she was disappointed by the way the department had given the company the cold shoulder. Although the city often prided itself as being Singapore’s competitor for ship registration, the present case showed the Hong Kong authorities would just divert shipowners to Beijing when they got into trouble, Chark added.
“Why do owners bother to register their ships in Hong Kong?” she said.
Chark said once the local authorities had taken the vessel’s registration off Hong Kong’s list, her client would be able to liaise with the United Nations directly over its release. But it was expected to be a long-drawn-out process.
*This article appeared in the South China Morning Post print edition as: Firm loses court fight over ship retrieval
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