In this issue, we would like to continue with the case (CSAV v Hin-Pro) mentioned in our monthly newsletter of Chans advice/169 two months ago. The Hong Kong Court of Appeal issued its Judgment on 11/3/2015 discharging the Mareva Injunctions and the receivership orders granted by DHCJ Saunders against Hin-Pro and Soar. [CACV 243/2014]
Dispute arose between CSAV and Hin-Pro, in which Hin-Pro alleged that CSAV mis‑delivered cargo in Venezuela without production of the original bills of lading (“BL”). All the BLs between CSAV and Hin-Pro contained the jurisdiction clause (“JC”). That jurisdiction clause reads as follows:
“LAW AND JURISDICTION This Bill of Lading and any claim or dispute arising hereunder shall be subject to English law and the jurisdiction of the English High Court of Justice in London. If, notwithstanding the foregoing, any proceedings are commenced in another jurisdiction, such proceedings shall be referred to ordinary courts of law. In the case of Chile, arbitrators shall not be competent to deal with any such disputes and proceedings shall be referred to the Chilean Ordinary Courts.”
It was CSAV’s contention that this jurisdiction clause was exclusive, in favour of the English courts.
However, Hin-Pro commenced legal proceedings against CSAV in Wuhan, the PRC. In response, CSAV commenced an action against Hin-Pro in England in November 2012 (the “1st English Action”). Under the 1st English Action, CSAV sought a declaration that the JC required Hin-Pro to litigate all disputes in relation to the first 5 mis‑delivered cargoes (ie those which already were the subject of the proceedings in Wuhan) in “the High Court of Justice in England and Wales and in no other forum” plus a permanent anti‑suit injunction to restrain Hin-Pro from further pursuing the Wuhan proceedings. An interim anti‑suit injunction (“ASI”) was obtained against Hin-Pro on 22/11/2012 which was continued thereafter. In defiance of the ASI, Hin-Pro proceeded with the Wuhan proceedings. That resulted in Hin-Pro and its sole director and shareholder, Ms Su, being held in contempt of the English court on 21/3/2013.
Hin-Pro persisted in ignoring the contempt proceedings and order in the 1st English Action. Between May and July 2013, Hin-Pro commenced many more proceedings against CSAV in various cities in the PRC, namely, Guangzhou, Qingdao, Tianjin, Ningbo and Shanghai in respect of some further 70 BLs containing the same jurisdiction clause. CSAV commenced another action in November 2013 for further breaches of the jurisdiction clause (the “2nd English Action”). A similar interim ASI was obtained against Hin-Pro on 29/11/2013. That second ASI was similarly ignored and breached by Hin-Pro, in the sense that Hin-Pro continued to progress the claims in the PRC in respect of the 70 BLs. In order to protect CSAV’s position, CSAV applied ex parte for and was granted in the English Actions a worldwide freezing order (“WWFO”) on 13/6/2014, freezing Hin-Pro’s assets in the amount of US$27,835,000. That sum was roughly the total amount claimed by Hin-Pro against CSAV in the proceedings in the PRC.
On 16/6/2014, an ex parte Mareva injunction application was made in Hong Kong against Hin-Pro, pursuant to section 21M of the High Court Ordinance, Cap 4, to freeze Hin-Pro’s assets in Hong Kong (ie the Hin‑Pro Mareva). The application was made in aid of the English Actions, and to give effect to the WWFO. Deputy High Court Judge Saunders granted the injunction. On 14/7/2014, CSAV issued a summons for the appointment of receivers against Hin-Pro, in support of the WWFO and the Hin‑Pro Mareva. The application was made on the grounds that Hin-Pro had failed to comply with the Hong Kong Mareva injunction and both English ASIs, and that the appointment of receivers was necessary for the preservation of Hin-Pro’s assets in Hong Kong (and elsewhere pursuant to the WWFO). DHCJ Saunders appointed practitioners from Deloitte as receivers and managers of Hin-Pro (ie the Hin‑Pro Receivership Order). On 18/7/2014, another ex parte application was made by CSAV to vary the Hin‑Pro Mareva, so that in addition to Hin-Pro’s assets, the assets of Soar were also frozen. That application was made pursuant to the court’s jurisdiction under TSB Private Bank International SA v Chabra [1992] 1 WLR 231, and on the ground that Soar was the alter ego of Hin-Pro, holding assets for and on behalf of Hin-Pro or as Hin-Pro’s nominee. DHCJ Saunders acceded to that application and granted the Soar Mareva. On 30/7/2014, another ex parte application was made against Soar for the appointment of receivers and managers over Soar. The grounds for that application were similar to those for the receivership application against Hin-Pro. DHCJ Saunders granted CSAV’s application and made the Soar Receivership Order.
On 15/10/2014, Deputy High Court Judge Wilson Chan discharged the Mareva Injunctions and the receivership orders granted by DHCJ Saunders against Hin-Pro and Soar. DHCJ Wilson Chan discharged the orders of DHCJ Saunders primarily on the ground that in view of the judicial conflict between the English court and the PRC courts, courts in Hong Kong should not exercise s 21M jurisdiction in favour of one side, citing Deutsche Bank AG v Highland Crusader Offshore Partners LP [2010] 1 WLR 1023 in support of this approach. DHCJ Wilson Chan was of the further view that the undertaking offered by Hin-Pro not to take any step to enforce any PRC judgment against CSAV without first obtaining the prior consent of CSAV or the leave of the Hong Kong court and the English court provided sufficient protection to CSAV in the circumstances of the case in question.
CSAV sought to appeal against DHCJ Wilson Chan’s decision. Leave to appeal was granted by DHCJ Wilson Chan on 26/11/2014.
In the appeal, CSAV accepted that judicial conflicts was a relevant consideration when a Hong Kong court exercised the power under section 21M. CSAV however submitted there was no real conflict in the case in question because:
The PRC judgments did not enter on the basis that the relevant clause was not an exclusive jurisdiction clause.
Enforcement of an exclusive jurisdiction clause was not to be regarded as a breach of international judicial comity.
Section 21M of the High Court Ordinance, Cap 4 provides as follow:
“(1) Without prejudice to section 21L(l), the Court of First Instance may by order appoint a receiver or grant other interim relief in relation to proceedings which-
(a) have been or are to be commenced in a place outside Hong Kong; and (b) are capable of giving rise to a judgment which may be enforced in Hong Kong under any Ordinance or at common law.
(2) An order under subsection (1) may be made either unconditionally or on such terms and conditions as the Court of First Instance thinks just. (3) Subsection (1) applies notwithstanding that-
(a) the subject matter of those proceedings would not, apart from this section, give rise to a cause of action over which the Court of First Instance would have jurisdiction; or (b) the appointment of the receiver or the interim relief sought is not ancillary or incidental to any proceedings in Hong Kong.
(4) The Court of First Instance may refuse an application for appointment of a receiver or interim relief under subsection (1) if, in the opinion of the Court, the fact that the Court has no jurisdiction apart from this section in relation to the subject matter of the proceedings concerned makes it unjust or inconvenient for the Court to grant the application. (5) The power to make rules of court under section 54 includes power to make rules of court for-
(a) the making of an application for appointment of a receiver or interim relief under subsection (1); and (b) the service out of the jurisdiction of an application or order for the appointment of a receiver or for interim relief.
(6) Any rules made by virtue of this section may include such incidental, supplementary and consequential provisions as the Rules Committee considers necessary or expedient. (7) In this section, ‘interim relief’ includes an interlocutory injunction referred to in section 21L(3).”
In the recent judgment in Pacific King Shipping Holdings Pte Ltd v Huang Ziqiang CACV 94 of 2014, it was held that in exercising the power under section 21M, the court is required to abide by the general principles governing interim relief. In the context of Mareva type of relief, a plaintiff must show a good arguable case.
In that connection, Hin-Pro and Soar drew the Court of Appeal’s attention to the judgment of the court in Motorola Credit Corporation v Uzan (No 2) [2004] 1 WLR 113 at para 102, which concerned an application under s 25 of the Civil Jurisdiction and Judgments Act 1982, the English equivalence of our section 21M:
“Mr Leggatt argues that, in the context of proceedings under section 25 of the 1982 Act, where (as here) the foreign court in interlocutory proceedings has itself determined that a good arguable case exists against the defendants, that is, or falls to be treated as, a final decision upon that issue for the purposes of the section 25 jurisdiction of this court. We do not think that is correct. The requirement that the claimant must establish that Mareva-type relief would be granted if the substantive proceedings were brought in England requires a decision of the judge based on English procedures and the approach of the English court to the nature and sufficiency of the evidence in a situation where the claimant has come to England to obtain a remedy unavailable to him in the substantive foreign proceedings. It is frequently, indeed usually, the position that section 25 proceedings are brought following issue and service of the foreign proceedings but before there has been any decision of the foreign court which examines the strength or arguability of the claimant’s substantive case. However, whether or not that is the position, in our view the English court is required, once issue is joined in the section 25 proceedings, to make a separate exercise of judgment rather than a simple acceptance of the decision of the foreign court in interlocutory proceedings decided on the principles applicable, the evidence then available, and the levels of proof required in that jurisdiction.”
In Refco Inc v Eastern Trading Co [1999] 1 Ll Rep 159, Morritt LJ said at p.170-171:
“For present purposes it is sufficient to point out that it was implicit in all the judgments that the approach of the Court in this country to an application for interim relief under s. 25 is to consider first if the facts would warrant the relief sought if the substantive proceedings were brought in England. If the answer to that question is in the affirmative then the second question arises, whether, in the terms of s. 25(2), the fact that the Court has no jurisdiction apart from the section makes it inexpedient to grant the interim relief sought.”
Thus, even before one comes to the second stage in terms of consideration under section 21M(4), the court must ask itself whether the facts of the case warrants the grant of interim relief if substantive proceedings were brought in Hong Kong. This entails the judge hearing the application to examine the strength and arguability of an applicant’s claim in the context of Hong Kong law rather than simply accepting a decision of the foreign court.
For the case in question, the substantive proceedings were the proceedings in England though there were other proceedings dealing with the claims on the bills of lading in the PRC courts. The cause of action in the English proceedings was based on a clause in the bills of lading which the English courts held to be an exclusive jurisdiction clause. The primary relief sought was anti-suit injunction. The courts in Hong Kong must examine CSAV’s claim independently. The anti-suit nature of the English proceedings presented a special problem because if the substantive anti-suit proceedings were brought in Hong Kong, the Court of Appeal had to be cautious in light of the requirement of judicial comity and the lack of primary jurisdiction over the subject matter in the Hong Kong courts. In Airbus Industrie GIE v Patel [1999] 1 AC 119, Lord Goff formulated this principle at p.138G to H:
“As a general rule, before an anti-suit injunction can properly be granted by an English court to restrain a person from pursuing proceedings in a foreign jurisdiction in cases of the kind under consideration in the present case, comity requires that the English forum should have a sufficient interest in, or connection with, the matter in question to justify the indirect interference with the foreign court which an anti-suit injunction entails.”
His Lordship also endorsed the stricter approach in the American courts encapsulated in the judgment of Judge Wilkey in Laker Airways Ltd v Sabena, Belgian World Airlines (1984) 731 F2d 909 at p.926-7, that anti-suit injunctions are most often necessary (a) to protect the jurisdiction of the enjoining court, or (b) to prevent the litigant’s evasion of the important public policies of the forum.
At p.138B to D, Lord Goff alluded to a hypothetical scenario where the English court were asked by an Indian bank to grant an anti-suit injunction to restrain a defendant from proceedings in the United States against the bank in respect of a transaction in India on the basis that the defendant was amenable to be sued in England due to its presence there. His Lordship said his immediate reaction was that it would be surprising if the English court would grant such injunction.
At the same time, Lord Goff emphasised that this is only a general rule and it must not be interpreted too rigidly. At p.140D, His Lordship made provision for exceptional cases:
“Indeed there may be extreme cases, for example where the conduct of the foreign state exercising jurisdiction is such as to deprive it of the respect normally required by comity, where no such limit is required to the exercise of the jurisdiction to grant an anti-suit injunction.”
In Airbus Industrie GIE v Patel, supra, the English courts were asked to grant an anti-suit injunction to restrain proceedings in Texas by English residents in respect of aircraft crash in India. Texas did not recognise the principle of forum non conveniens. There were parallel proceedings in India, the natural forum for the dispute, and the Indian court had granted injunction to restrain the defendants from pursuing their claims except in the courts of India. That injunction was ineffective against Mr Patel. Airbus therefore issued proceedings in England (where Mr Patel resided) to prevent Mr Patel to pursue his claims in Texas. The House of Lords held that an anti-suit injunction should not be granted in England as the English court had no interest in the matter and the grant of such injunction would be inconsistent with comity. Neither the fact that Mr Patel was resident in England (thus an English anti-suit injunction would be more effective than the Indian judgment) nor non-recognition of Texan court to the doctrine of forum non conveniens was sufficient to persuade the House of Lords that English court should intervene in that case.
That was not a case on the equivalent English provision of section 21M. Lord Goff also highlighted that in that case the jurisdiction of the English court was not invoked in terms of assistance being provided to enforce the Indian judgment, see p.140H. Yet, since the Court of Appeal had to consider whether the relief would be granted if the substantive proceedings were brought in Hong Kong, the Court of Appeal could not disregard the general rule in Airbus Industrie GIE v Patel, supra.
In respect of judicial comity, Millett LJ made the following observations in Refco Inc v Eastern Trading Co, supra, at p.175:
“… judicial comity requires restraint, based on mutual respect not only for the integrity of one another’s process, but also for one another’s procedural and substantive laws. The test is an objective one. It does not depend upon the personal attitude of the judge of the foreign court or on whether the individual judge would find our assistance objectionable. Comity involves respect for the foreign Court’s jurisdiction and process, not respect for the foreign judge’s feelings.”
Lord Goff had this to say in Airbus Industrie GIE v Patel, supra, at p.141B:
“In a world which consists of independent jurisdictions, interference, even indirect interference, by the courts of one jurisdiction with the exercise of the jurisdiction of a foreign court cannot in my opinion be justified by the fact that a third jurisdiction is affected but is powerless to intervene. The basic principle is that only the courts of an interested jurisdiction can act in the matter; and if they are powerless to do so, that will not of itself be enough to justify the courts of another jurisdiction to act in their place.”
Having regard to the principle of judicial comity, had CSAV commenced a claim for anti-suit injunction in Hong Kong, it was doubtful whether the Hong Kong court would grant such injunction to prohibit proceedings in another jurisdiction when it did not have a sufficient interest in, or connection with, the matter in question to justify the indirect interference with the foreign court. In the case in question, the court in Hong Kong was not a natural forum for the disputes in relation to the bills of lading. Nor was it designated as a forum for the disputes in the bills of lading. Neither had the parties come to Hong Kong to litigate on such disputes.
Lord Goff referred to the extreme case when the conduct of the foreign state exercising jurisdiction is such as to deprive it of the respect normally required by comity. CSAV did not suggest (nor did the Court of Appeal see any basis for CSAV to suggest) that the PRC courts had conducted the cases in such a manner. As far as the Court of Appeal could see, those courts only applied the conflicts of law rules in the PRC in holding that the clause relied upon by CSAV did not oust the jurisdiction of the PRC courts.
In Masri v Consolidated Contractors (No 3) [2009] 2 WLR 669, Lawrence Collins LJ (as he then was) accepted that international comity is an important consideration at para 81:
“… In modern times the courts have often emphasised the importance of comity in the exercise of the discretion to grant anti-suit injunctions. Although the injunction is directed to the parties it involves an indirect interference with the foreign court, and caution is required before the injunction is granted … Comity may be decisive where the English court is asked to grant an anti-suit injunction when the case has no relevant connection with England, since to grant an injunction in such a case may be a breach of international law: Airbus Industrie GIE v Patel [1999] 1 AC 119.”
As in the case of Airbus Industrie GIE v Patel, supra, the following facts could not be sufficient ground for intervention by Hong Kong court:
anti-suit injunctions granted in the English courts could not effectively prevent Hin-Pro from pursuing the actions in the PRC; and
as Hin-Pro was a Hong Kong company, orders made by a Hong Kong court were more effective.
Though CSAV sought relief under section 21M instead of making a substantive claim for anti-suit injunction in Hong Kong, the Court of Appeal did not think it made any difference in view of the first stage of inquiry under the test laid down in Refco Inc v Eastern Trading Co, supra. An English anti-suit injunction with respect of legal proceedings in another jurisdiction cannot be enforced in Hong Kong.
In the case in question, CSAV did not ask for section 21M relief in the form of an interim anti-suit injunction. Instead, it sought a Mareva injunction (and receivership order based on it) to protect its claim for reflective damages based on the clause in the bills of lading. The damages claimed by CSAV (by reference to which the limit of the Mareva injunction was set in England as well as the ex parte orders granted by DHCJ Saunders) were not confined to costs incurred by CSAV in the PRC proceedings, but also extended to the potential amount of judgments that could be entered in favour of Hin-Pro in the PRC cases. The anti-suit nature (and thus the indirect interference with proceedings in the PRC courts) was manifested in the claim that the damages was sought to reverse the effect of whatever judgments which might be issued by the courts in the PRC instead of an investigation of the underlying claims on the bills of lading (which the English proceedings were not concerned with). Whilst there are authorities supporting award of damages for breach of exclusive jurisdiction clause or arbitration clause in respect of costs incurred in foreign proceedings and judgments in the same amount as the foreign judgments when they had actually been paid by a plaintiff suing for such breach, the grant of a pre-emptive Mareva injunction based on such a claim when the foreign judgments have not been satisfied went beyond any cases that the Court of Appeal were aware of (except the decision of Cooke J in the case in question). Though the calculation of the limit for the Mareva injunction in the case in question did include a sum representing the amount paid by CSAV to satisfy a Ningbo judgment and another sum representing costs incurred by CSAV, it could not be disputed that it went far beyond the total of those two sums. The pre-emptive nature of the pre-trial Mareva injunction granted in the English proceedings was beyond dispute.
Further, based on the English Mareva injunction, CSAV obtained the Hin-Pro Mareva and Hin-Pro Receivership Order in Hong Kong. Then, based on such receivership order, the receivers attempted to stop the proceedings in the mainland courts. Viewed in this light, these orders had been obtained by CSAV for the purpose of implementing the anti-suit injunctions granted in England though they had not (and could not have) applied for such injunctions in Hong Kong. The Court of Appeal did not think one could side-step the requirement to have regard to judicial comity in this way.
CSAV submitted that there was no conflict between the proceedings in the PRC and the proceedings in England. The cause of action in the English proceedings was the breach of the exclusive jurisdiction clause whilst the cause of action in the PRC proceedings was the breach of the contract of carriage. Given the Court of Appeal’s analysis as to the effect of these orders, the Court of Appeal could not accept this submission. In assessing whether there was any conflict, it would not be right to narrowly focus on whether the PRC court had decided on the exclusive nature of the clause in question. In terms of international comity, both the PRC courts and the English courts are entitled to apply their respective conflicts of law rules in resolving dispute on jurisdiction in their own courts. From the perspective of comity, the conflicts stemming from such rules are conflicts even though it does not involve a disagreement over the construction of the clause in question. Hong Kong court cannot decide which set of rules on conflicts should prevail.
CSAV further contended that the enforcement of an exclusive jurisdiction clause was not breach of judicial comity, citing TheAngelic Grace [1995] 1 Ll Rep 87 in support. See also Deutsche Bank AG v Highland Crusader Partners LP [2010] 1 WLR at para 51 where Toulson LJ observed:
“An injunction to enforce an exclusive jurisdiction clause governed by English law is not regarded as a breach of comity, because it merely requires a party to honour his contract.”
The Court of Appeal accepted this proposition as far as an English court enforcing an exclusive jurisdiction clause in favour of the English court went. The same can be said for a case where Hong Kong court enforces an exclusive jurisdiction clause in favour of the Hong Kong forum. But this was not situation before the Court of Appeal. CSAV asked the court in Hong Kong to enforce an exclusive jurisdiction clause in favour of English court. In such context, by reason of the indirect interference with proceedings in the PRC courts, the Court of Appeal had to pay regard to the principle in Airbus Industrie GIE v Patel, supra.
The Court of Appeal had to bear in mind that different jurisdictions could legitimately have different rules on enforceability of exclusive jurisdiction clauses and the Court of Appeal were back to the conundrum of mutual respect for differences in conflicts of law rules in different regions. First of all, the approach to construction of a clause may differ according to the laws of different countries. Secondly, there are legitimate differences in terms of the extent to which the law may recognise an exclusive jurisdiction clause. Thirdly, given that CSAV had participated fully in the PRC proceedings, there could be submission to jurisdiction implications even though unsuccessful challenge to jurisdiction had been made. Again different jurisdictions may have different rules to deal with such question. CSAV did not contend that there is a set of uniform rules in customary international law in these regards.
In any event, whatever construction the Court of Appeal placed on such a jurisdiction clause was not important because the Court of Appeal’s view on construction could not remove the conflicts between the PRC law and English law on the effectiveness of such clause. Given the rationale behind the principle of international comity, there was no justification for the Court of Appeal to proceed on the basis that, as between PRC law and English law, whichever regime yielding a result closer to one prescribed by the application of Hong Kong law should prevail.
At the court below, DHCJ Chan reached the same conclusion by reference to section 21M(4). Hin-Pro referred to the following observation of the English Court of Appeal in Motorola Credit Corporation v Uzan (No 2), supra, at para 115 to support this conclusion:
“As the authorities show, there are five particular considerations which the court should bear in mind, when considering the question whether it is inexpedient to make an order. First, whether the making of the order will interfere with the management of the case in the primary court e.g. where the order is inconsistent with an order in the primary court or overlaps with it. That consideration does not arise in the present case. Second, whether it is the policy in the primary jurisdiction not itself to make worldwide freezing/disclosure orders. Third, whether there is a danger that the orders made will give rise to disharmony or confusion and/or risk of conflicting inconsistent or overlapping orders in other jurisdictions, in particular the courts of the state where the person enjoined resides or where the assets affected are located. If so, then respect for the territorial jurisdiction of that state should discourage the English court from using its unusually wide powers against a foreign defendant. Fourth, whether at the time the order is sought there is likely to be a potential conflict as to jurisdiction render inappropriate and inexpedient to make a worldwide order. Fifth, whether, in a case where jurisdiction is resisted and disobedience to be expected, the court will be making an order which it cannot enforce.”
Hin-Pro placed emphasis on the third and fourth propositions. As the Court of Appeal saw it, the third proposition was not germane since the Court of Appeal was dealing with Hin-Pro, a company registered in Hong Kong and Hong Kong court certainly had in personam jurisdiction over it and it had assets in Hong Kong. But the fourth proposition was engaged. The conflict as to jurisdiction was between the outcome of the PRC courts’ application of the PRC law on the effect of the jurisdiction clause in the bills of lading and the outcome of the English courts’ application of English law on the same.
The Court of Appeal was therefore in agreement with the DHCJ Chan that Hong Kong court should not exercise its section 21M jurisdiction in the case in question. The Court of Appeal’s views were broadly in line with the views expressed by Thomas Raphael in his book on The Anti-Suit Injunction (2008), at paras 7.29 to 7.33 and 13.13 and Briggs & Rees, Civil Jurisdiction and Judgments 5th Edn, para 5.41.
Further, even assuming the courts in Hong Kong could exercise their section 21M jurisdiction despite the judicial conflicts in the case in question, the Court of Appeal did not think it warranted the grant of the Hin-Pro Mareva in terms of the order of DHCJ Saunders or the Hin-Pro Receivership Order. As the Court of Appeal observed, the extent of the Hin-Pro Mareva went beyond the actual damages suffered by CSAV and the monetary limit was set partly by reference to the total claims advanced by Hin-Pro in the mainland proceedings. Many of those claims had yet to result in any judgments and CSAV was participating in those actions. As far as proceedings in Hong Kong were concerned, subject to costs already incurred in the mainland proceedings and judgments already satisfied, the Court of Appeal did not see why an interim injunction restraining Hin-Pro from proceeding further with the mainland litigations and from enforcing the mainland judgments could not give CSAV all the protection it needed. For the reasons given by the Court of Appeal’s in the judgment of 18/12/2014, the undertakings offered by Hin-Pro to the Court of Appeal effectively provided similar protection.
CSAV obtained the Hin-Pro Receivership Order for the purpose of preserving and locating assets and meeting the disclosure requirements under the Hin-Pro Mareva. At para 20 of the decision of DHCJ Saunders of 17/7/2014, the learned judge said the following when he granted the Hin-Pro Receivership Order:
“Receivers will be in a position to effectively locate and preserve Hin-Pro’s assets for the purpose of complying with the Mareva injunction and the world wide freezing order, and to ensure that Hin-Pro properly complies with the disclosure orders made in the English and Hong Kong courts.”
However, the order as granted also contained the following empowering provisions:
“(c) intervene and take any necessary steps on behalf of the defendant in the PRC legal actions … and if thought fit, withdraw and discontinue the said legal actions”.
Such order went beyond the scope of the intended purpose for which the order was made. It was more draconian than an anti-suit injunction and CSAV had not shown the Court of Appeal any authority where such an order had been made in the context of a section 21M application. There was no consideration by DCHJ Saunders of the implications on comity and judicial conflicts stemming from the grant of such a power.
In any event, as the Court of Appeal observed, apart from the question of costs already incurred, the undertakings offered by Hin-Pro had sufficiently addressed the concerns of CSAV. CSAV basically repeated the submissions it had advanced before that the undertakings could not to be relied upon. In addition, CSAV referred the Court of Appeal to the history of service by CSAV’s solicitors on Hin-Pro. The Court of Appeal had considered the matter in that light but the Court of Appeal was not persuaded that DHCJ Chan had made any error which warranted the Court of Appeal’s intervention of his conclusion that, quite apart from the consideration as to judicial conflicts, on such undertakings the orders made by DHCJ Saunders should be discharged.
DHCJ Saunders granted the Soar Mareva and Soar Receivership Order on what the learned judge referred to as the Chabra jurisdiction. By reference to the discussion in Gee, Commercial Injunctions 5th Edn, para 13.007, the judge identified at para 3 of his Reasons for Decision of 21/7/2014 the basis on which CSAV sought the Soar Mareva before him as the third limb discussed in that paragraph:
“Although the defendant to the substantive claim has no legal or equitable rights to the assets in question, the defendant has some right in respect of, control over, or other right of access to the assets. If a defendant has set up a network of trusts and companies to hold assets over which he has control, and he has apparently done this to make himself judgment-proof, this would be an appropriate case for the granting of Mareva relief against the relevant non-party. If the defendant is a shareholder in a private company and was left free to deprive the company of assets to which it may be entitled, this could affect the value of his shareholding and so an injunction can be granted against non-parties to preserve those assets.”
The crux of DHCJ Saunders’ findings upon which the Soar Mareva was grounded were set out at para 14:
“Mr Scott submits, and I am satisfied, that there are good reasons to suppose that Hin-Pro has some right in respect of, control over, or other right of access to assets which apparently belong to Soar. The evidence establishes that Ms Su Wei is the sole director and shareholder of both Hin-Pro and Soar, and that she and the two companies are involved in the scheme which leads to Hin-Pro’s multiple legal proceedings … in which Hin-Pro falsely alleges that it was the seller of cargoes. The involvement of Soar in the shipment from Hin-Pro to Raselca is commercially unusual giving rise to a strong inference that Soar was inserted m the shipping chain in order to collect payments which should have accrued to Hill-Pro.”
DHCJ Chan discharged the Soar Mareva and Soar Receivership Order on the basis that as the Chabra jurisdiction was founded upon the Hin-Pro Mareva, these orders should also be discharged upon the discharge of the latter. CSAV had not advanced any submissions against that analysis. Therefore, it followed from the Court of Appeal’s upholding DHCJ Chan’s decision to discharge the Hin-Pro Mareva that the Court of Appeal should uphold the discharge of the Soar Mareva and Soar Receivership Order.
The Court of Appeal should dismiss the appeal and order CSAV to pay the costs of Hin-Pro and Soar. Such costs were to be taxed with certificate for two counsel.
Please feel free to contact us if you have any questions or you would like to have a copy of the Judgment.
23/F, Excel Centre, 483A Castle Peak Road, Lai Chi Kok, Kowloon, Hong Kong 香港九龍荔枝角青山道483A卓匯中心23樓 Tel: 2299 5566 Fax: 2866 7096 E-mail: gm@smicsl.com Website: www.sun-mobility.com A MEMBER OF THE HONG KONG CONFEDERATION OF INSURANCE BROKERS 香港保險顧問聯會會員
The Hong Kong High Court issued a Judgment on 11/12/2013 holding that a Hong Kong plaintiff needed to put up a security for costs in a court case concerning a yacht sinking incident. [HCCL 5/2013]
The Hong Kong Court of Appeal issued a Judgment on 29/1/2016 dealing with a case of one or two days’ delay in appeal in relation to a barge sinking accident. [HCMP 3172/2015]
We refer to our Chans advice/251 last month reporting the Hong Kong High Court’s decision to sentence Mr Ma (Hyundai Hong Kong’s former deputy general manager) to 15 years’ imprisonment. The High Court issued another Judgment on 27 April 2022 holding Mr Ma liable to compensate HK$387,655,303.70 to Hyundai Hong Kong. [HCA 619/2016] [2022 HKCFI 1153]
The Hong Kong Court of Appeal’s Judgment dated 11/4/2008 explained some legal principles relating to whether indemnity claims are allowed by in rem legal actions against vessels. [CACV 257/2007]
The Hong Kong High Court issued a decision on 11/9/2013 concerning a shipowner’s application to extend the validity of a writ of summons against a Taiwan hull and machinery insurer. [HCAJ 95/2012]
We recently have received a lot of uncollected cargo claim cases from our forwarder clients, which have kept our 6 claim handlers very busy. We would like to take this opportunity to talk about this troublesome problem of uncollected cargoes. Actually, the forwarders have been facing this real headache in at least these two decades.
SMIC has finally jumped on the bandwagon of the cyber media rush by its presence on the Facebook. We would have done this for a long time had it not been for the daily chores and that we were then not too convinced of its value in the commercial world. Thereafter, it becomes obvious that more and more firms are capitalizing on this new media; and unlike the old economies where information flow was imperfect, consumers of the new economies tend to prefer looking up for information by themselves from the web, or augmenting information they are given.
In our last issue of Chans advice/253, the Hong Kong District Court’s judgment dated 26 April 2022 mentioned a case authority of China Ocean v Mitrans Shipping. We would like to discuss this judgment dated 11 July 1995 of the Hong Kong Court of Appeal in our Chans advice this month. [1995 No. 71 Civil]
The High Court of Hong Kong issued a Judgment on 21/7/2014, in which some legal principles relating to the in rem jurisdiction of the Court to arrest vessels were explained. [HCAJ 241/2009]
Remember Chans advice/142 dated 31/10/2012 that the High Court of Hong Kong held the forwarder liable for cargo misdelivery without production of original bills of lading? The High Court of Hong Kong issued another Judgment on 4/12/2012 dealing with the interest and costs. [HCCL 20/2011 & HCCL 21/2011]
The Hong Kong High Court issued a Judgment on 5/8/2015 holding that a shipment of formula milk powder without the legally required export licence should not be forfeited. [HCMA171/2015]
In Chans advice/14 dated 28/2/2002, we discussed this topic 15 years ago. In its Judgment dated 16/10/2017, the District Court of New South Wales in Australia had to deal with, inter alia, a malpractice that a forwarder issued its own house B/Ls but signed off with as agent for China Ocean Shipping, Pacific International Lines, Mitsui O.S.K. Lines Limited or Orient Overseas Container Line without authority. [2017 NSWDC 279]
The Hong Kong High Court issued a Decision on 25 February 2019 dealing with Changhong Group’s delayed application for leave to appeal in relation to the collision case reported in our Chans advice/218 and Chans advice/215. [HCAJ3/2018, 2019HKCFI542]
The Hong Kong High Court issued a Decision on 30 September 2021 holding a shipowner’s Defences as an abuse of process in a case of unpaid crew wages. [HCAJ 76/2020] [2021 HKCFI 2961] [HCAJ 91/2020]
The Hong Kong District Court issued a Decision on 30 April 2021 dealing with a personal injury case in relation to a container terminal. [DCPI 110/2020] [2021 HKDC 463]
According to the Hague-Visby Rules, the carrier shall be discharged of all liability in respect of the cargoes unless suit is brought within one year of their delivery or the date when they should have been delivered. The English High Court issued a Judgment on 22nd July 2025 explaining the meaning of “suit”. [2025 EWHC 1878 (Comm)]
The Hong Kong High Court issued a ruling on 2/12/2016 dealing with a shipowner’s interrogatory application in relation to an uncollected cargo case. [HCAJ 118/2015]
The Hong Kong Court of Appeal issued a Judgment [CACV144/2017] [2018HKCA299] on 29/6/2018 upholding the High Court’s Judgment dated 2/6/2017 (which was reported in our Chans advice/201).
The English Court of Appeal issued a Judgment on 13/12/2017 dealing with a cargo damage claim of EUR2,654,238 and a charter hire claim of USD1,012,740 in connection with a NYPE charterparty. [2017 EWCA Civ 2107] [2017 WL 06343564] [Case No. A3/2016/4770]
The High Court of Hong Kong issued a summary Judgment on 28/9/2012 holding a forwarder liable for US$626,389 plus costs and interest for misdelivery of cargoes without production of the original bills of lading. [HCCL 20/2011 & HCCL 21/2011]
The Hong Kong High Court issued a Decision on 2 October 2024 dismissing a shipping company’s application to strike out a forwarder’s third party indemnity claim in a cargo (frozen beef) damage case. [HCAJ 9/2023, HCAJ 22/2023, 2024 HKCFI 2708]
The Hong Kong Court of Appeal issued a Judgment on 20 February 2019 dismissing Changhong Group’s appeal against the High Court’s Decision of 15 November 2018 (reported in Chans advice/215) because Changhong Group had not obtained leave to appeal from the Hong Kong High Court. [CACV576/2018] [2019HKCA246]
Remember our Chans advice/171 of 31/3/2015 reporting that the Hong Kong Court of Appeal discharged the Mareva injunctions against Hin-Pro? The Hong Kong Court of Final Appeal issued a Judgment on 14/11/2016 reversing the Court of Appeal’s Judgment of 11/3/2015. [FACA No. 1 of 2016]
The Hong Kong High Court issued a Decision on 22 January 2021 dealing with an appeal against a Small Claims Tribunal’s award concerning a dispute over a container terminal’s storage charges. [HCSA 44/2020] [2021 HKCFI 200]
The English Commercial Court issued a Judgment on 7/11/2012 holding a carrier liable for US$458,655.69 owing to its issuing 13 clean Bills of Lading for a consignment of steel pipes which had some pre-shipment damage. [2012 EWHC 3124 (Comm)]
The Hong Kong High Court issued a Judgment on 18/11/2016 dismissing a shipping company’s application for summary judgment against its former deputy general manager (Mr Ma) for restitution of the sum of HK$387,655,303.70 on the ground of money had and received and/or unjust enrichment. [HCA 619/2016]
The VGM laws have come into operation in Hong Kong since 1/7/2016. They are mainly contained in Section 3 and Section 3A of the Merchant Shipping (Safety) (Carriage of Cargoes and Oil Fuel) Regulation (Chapter 369AV) as follows:
The limit of liability for international carriage of cargoes by air under the Montreal Convention has been revised from 19 SDR/Kg to 22 SDR/Kg of the gross weight of the cargoes effective from 28 December 2019. We have received many enquiries from freight forwarders about changing their house Air Waybills’ terms to cope with the new limit of liability. We would like to take this opportunity to discuss some essential terms in house Air Waybills.
The United States District Court (Southern District of New York) issued an order on 29 November 2021 to deny a shipping company’s motion to rely on the Singapore jurisdiction clause in its bill of lading. [1:19-cv-5731-GHW-RWL]
The Hong Kong High Court issued a judgment on 21/4/2016 and disallowed a cargo owner’s application for summary judgment against a forwarder in connection with a cargo (a diamond) missing claim of US$900,000. [HCCL 10/2015]
The 12th annual SMIC seminar on uncollected cargoes pulled some 300 participants to attend with much curiosity for 3 hours in the YMCA Assembly Hall. The accumulated questionmarks and enigmas about the subject matter lurking in the trade were unleashed among the audiences.
The Hong Kong High Court issued a Judgment on 2/6/2017 dealing with the liability apportionment among 3 vessels in 2 almost simultaneous collisions that happened near Hong Kong on 14/5/2011. [HCAJ158/2012 and HCAJ49/2013 and HCAJ48/2011]
In our Chans advice/169 last month, we mentioned the English Court’s Judgment dated 14/10/2014 holding CSAV’s bill of lading’s English jurisdiction clause to be an exclusive jurisdiction clause. In this issue, let’s look at that English High Court Judgment [2013 Folio No 1248, 2014 EWHC 3632 Comm, 2014 WL 5113447] issued by Justice Cooke in detail.
The Hong Kong High Court on 13/8/2013 held a shipper liable to a shipping company for paying demurrage of US$1,645,286.74 plus interest and costs. [HCAJ 166/2011]
We reported in our Chans advice/252 that the Hong Kong High Court held Hyundai Hong Kong’s ex-Deputy General Manager (Mr Ma) liable to compensate HK$387,655,303.70 to Hyundai Hong Kong in the case of his theft of his employer’s money. On 23 December 2022, the Hong Kong High Court issued a decision ordering a sum of HK$500,000 (which was deposited by Mr Ma as bail money) to be released to Hyundai Hong Kong in partial satisfaction of Mr Ma’s judgment debt. [HCA 619/2016] [2022 HKCFI 3798]
Remember our Chans advice/163 about the English High Court’s Judgment holding the Hague Visby Rules instead of the Hague Rules to apply to the cargo damage claim case in excess of US$3.6 million? The English Court of Appeal issued a Judgment on 24/2/2016 upholding the High Court’s conclusion but with different reasons. [Case No: A3/2014/1285, 2016 EWCA Civ 101, 2016 WL 00692394]
The Hong Kong Court of Appeal issued a Judgment on 18/12/2014 in connection with a cargo misdelivery claim of US$27,835,000 involving also anti-suit injunction and worldwide freezing order issued by the English Court. [CACV 243/2014 & HCMP 1449/2014]
In the last issue of Chans advice, we reported the case that the Hong Kong Court of Appeal rejected the mortgagee’s appeal against the High Court’s order of granting a stay until 24 April 2019 for the sale of the Vessel Brightoil Glory. On 17 May 2019, the Court of Appeal issued another judgment refusing the shipowners’ appeal in respect of their application for a further stay of the sale of the Vessel until 22 May 2019. [CAMP81/2019] [2019 HKCA 561]
The Hong Kong Court of Appeal issued a Judgment on 9/7/2015 in relation to the High Court Judgment dated 21/7/2014 (reported in our Chans advice/167 dated 28/11/2014). [HCMP 2315/2014]
The Hong Kong High Court issued a Judgment on 22/11/2013 concerning an unless order in relation to a freight forwarder’s claims for outstanding freight charges of HK$4,427,336. [HCA 1755/2011]
The High Court of Hong Kong issued a Decision on 21/9/2017 dealing with the principles in respect of the real risk of dissipation of assets in a case of Mareva Injunction involving a shipowner and a charterer. [HCMP 1010/2017]
The Ningbo Maritime Court issued a Judgment on 25/5/2016, and dismissed a cargo insurer’s (PICC Ningbo) recovery claim of USD25,238.40 against Mitsui O.S.K. Lines Ltd (“MOSK”) in relation to the vessel MOL Comfort sinking into the Indian Ocean on 17/6/2013.
Without even knowing, we have published including this one 200 issues of the Chans Advice. As this is a monthly bulletin, 100 issues took more than 8 years and 200 issues took 17 years to run.
The Hong Kong High Court issued a Decision on 29 January 2019 dismissing Changhong Group’s application for stay of the legal proceedings against it brought by the consignee and the insurer of the cargo on board the Sanchi. [HCAJ6/2018, 2019HKCFI263]
To continue our recent series of loss prevention articles, we would like to discuss in this issue the major provisions of the PRC Maritime Code as far as the international carriage of goods by sea is concerned.
The English High Court issued a Judgment on 15/5/2015 maintaining an anti-suit injunction to restrain the Xiamen Maritime Court’s legal proceedings in breach of a London arbitration agreement. [Case No: 2015-515], [2015 WL 2238741], [2015 EWHC 1974 COMM]
The Hong Kong Court of Appeal issued a Judgment on 12/2/2018 to deal with the cargo owners’ seeking leave to appeal against the High Court’s Judgment reported in our Chans advice/209 last month. [CAMP 38/2017] [2018 HKCA77]
The High Court of Hong Kong issued a Decision on 15 November 2018 concerning the tragic collision between the cargo vessel CF Crystal and the tanker Sanchi, which happened on 6 January 2018 and led to the death of all the officers and crew of the Sanchi. [HCAJ3/2018] [2018HKCFI2474]
The Hong Kong High Court issued a Judgment on 29/4/2013 relating to a discovery order ancillary to and in support of a Mareva injunction. [HCA 2124/2011]
Cargo Misdelivery The Hong Kong High Court issued a Judgment on 12/1/2016 refusing to grant a shipowner an anti-suit injunction because of the shipowner’s delay in applying for the anti-suit injunction. [HCMP 2399/2015] By an Originating Summons dated 25/9/2015 (“OS”), the owner of the vessel MV Zagora (“Vessel”) applied for an anti-suit injunction against a […]
We have received some enquiries from our forwarder clients about the FCR e.g. what is FCR? How many types of FCR are there? What are the uses of FCR? We would like to discuss these in this issue.
The Hong Kong High Court issued a Judgment on 25/8/2017 to determine whether the Hong Kong Court or the Yangon Court was the natural and appropriate forum in an in rem legal proceedings in relation to a cargo damage claim of USD143,852.02. [HCAJ 101/2015]
On 12/4/2017, the Hong Kong High Court dismissed an application made by a cargo owner for stay of proceedings commenced by two forwarders in relation to an uncollected cargo case. [HCA 1927/2016]
The High Court of Hong Kong issued a Judgment on 3/2/2012 concerning which currency (US$ or Euro) should be the proper one for the cargo owners in a shipment to claim against the forwarder for compensation in a cargo damage case. [HCAJ 152/2010]
In our newsletter last month, we talked about some essential terms in house Air Waybills. In this issue, as the continuation of the loss prevention exercise for freight forwarders, we would like to discuss some essential terms in house Bills of Lading.
The High Court of Hong Kong issued a Decision on 31/8/2018 concerning a feeder company’s claim against a shipping company’s lawyer for wasted costs. [HCA1919/2016] [2018HKCFI1879]
The Hong Kong High Court issued a Judgment on 11 January 2019 dealing with a dispute of US$335,858.31 between a bunker supplier and a ship agent. [HCA119/2015] [2019HKCFI57]
The Hong Kong High Court issued a Judgment on 3/2/2017 holding Natural Dairy liable to pay HK$4,360,948.38 to Schenker being the outstanding freight charges. In the Judgment, the Judge also explained the principles regarding the meaning of notice of the forwarder’s standard trading conditions. [HCA 1755/2011].
The Hong Kong High Court issued a decision on 31 May 2022 ordering a South Korean shipowner to provide a Hong Kong shipowner with security for costs in the amount of HK$600,000 in relation to a ship collision case that happened in Hong Kong during the super typhoon Hato in August 2017. [HCAJ 80-85/2019] [2022 HKCFI 1631]
In our Chans advice/244, we reported the Hong Kong High Court case [HCA937/2016] [2021 HKCFI 2310] that the forwarder was held liable to pay nominal damages of HKD1,000 to the shipper in the cargo misdelivery claim of USD1,299,189.87. On 20 October 2021, the Hong Kong High Court issued a Decision on Costs holding the shipper liable to pay the costs of the forwarder. [2021 HKCFI 3021]
The Hong Kong High Court issued a judgment on 30/4/2015 dealing with the legal principles in respect of the order of priorities in distributing the sale proceeds of an arrested ship. [HCAJ 129/2013]
The Hong Kong High Court issued a Decision on 21 July 2023 in relation to a case that an aircraft (worth at least USD 80 million) and its cargoes were destroyed by a fire caused by the goods of chlorine dioxide disinfection tablets. [HCA 837/2022] [2023 HKCFI 1896]
The Hong Kong High Court issued a Judgment on 23/12/2013 dealing with an application for security for costs in relation to a ship sinking case. [HCAJ 213/2009]
Remember our Chans advice/138 regarding the Hong Kong High Court’s Judgment holding the He Da 98’s owners fully liable in the collision that happened off Shanghai? The Hong Kong High Court issued its Decision on 18/1/2013 dealing with the damages to be paid to the Pontodamon’s owners. [HCAJ 200/2007]
In the transport industry, the contracts of carriage (e.g. Bills of Lading, Air Waybills) usually contain an exclusive jurisdiction clause for settling disputes. However, it is not uncommon that the shippers and consignees sue the transport operators in a court other than the one specified in the exclusive jurisdiction clause. In Hong Kong, the transport operators may rely on the Foreign Judgments (Restriction on Recognition and Enforcement) Ordinance to tackle this kind of situation.
The amendment to the International Convention for the Safety of Life at Sea (SOLAS) 1974 Chapter VI, Regulation 2 in respect of the verified gross mass of a container carrying cargo (laden container) is for entry into force globally on 1 July 2016.
The Hong Kong High Court issued a Judgment on 22/8/2016 dealing with a case that a forwarder wanted to strike out a cargo misdelivery claim on the ground that the claim disclosed no reasonable cause of action. [HCCL 5/2015]
As reported in our Chans advice/170 dated 27/2/2015, the English High Court on 14/10/2014 held CSAV’s bill of lading’s English jurisdiction clause as an exclusive jurisdiction clause. On 23/4/2015, the English Court of Appeal issued its Judgment reaching the same conclusion. [Neutral Citation No: 2015 EWCA Civ 401, Case No: A3/2014/3584]
The Court of Appeal of Hong Kong issued a judgment on 28 March 2019 dealing with a matter concerning the sale pendente lite of an oil tanker Brightoil Glory. [CAMP49/2019][2019HKCA395]
The Hong Kong High Court issued a Decision on 22 Feb 2021 holding that the wreck removal claims of a ship sunk were not subject to the Convention on Limitation of Liability for Maritime Claims 1976. [HCAJ 98/2019] [2021 HKCFI 396]
This continues the Q&A in our off-line real seminar on Uncollected and Undelivered Cargo on 28 May 2024. Participants were keen to know more about seaway bills, how war plays in insurance? How modes of transport differ mis-delivery claims handling? What is insurers’ attitude towards transloading claims? And finally, why mis-delivery and uncollected cargo claims deserve special attention. SMIC deals with similar questions daily. Each case varies in its cause, and therefore healing recipe differs. But if you are conversant with fundamentals. They could be simple.
We have received a lot of cargo claims from our forwarder clients in the recent months. In this issue, we would like to discuss in general how the forwarders should handle the cargo claims.
In the issue of our Chans advice last month, we talked about the major provisions of the Montreal Convention (which is for the international carriage of goods by air). In this issue, we would like to discuss the major terms of an equally important international convention for the international carriage of goods by sea, viz. the Hague Visby Rules.
The Hong Kong District Court issued a Decision on 8 May 2020 upholding a summary judgment ordering one forwarder to pay outstanding airfreight charges of HK$440,000 to another forwarder. [DCCJ1202/2018] [2020HKDC307]
The High Court of Hong Kong issued a Decision on 23 May 2018 allowing a shipowner to be represented by 2 different firms of solicitors (one appointed by its hull underwriters and the other appointed by its P&I Club). [HCAJ84/2017] [2018HKCFI1136]
The Hong Kong High Court issued a Decision on 13 May 2021 to deal with an interpleader action concerning the stakeholding of US$700,000 in relation to a dispute over some management fees between two transport operators. [HCMP510/2020] [2021 HKCFI 1373]
The English High Court issued a Judgment on 2/4/2014 holding the Hague Visby Rules instead of the Hague Rules (as incorporated by a Paramount Clause) to apply to a shipment ex Belgium. [Case No: 2012 Folio 102, 2014 EWHC 971 Comm, 2014 WL 1219313]
The Hong Kong High Court issued a Judgment on 21/7/2014 discharging a Mareva injunction in relation to a cargo misdelivery claim of about US$12 million. [HCA 2368/2012]
The Hong Kong Court of Final Appeal (“the CFA”) issued a Judgment on 10/9/2014 dismissing a cargo owner’s (“the Assured”) cargo insurance claim of US$1,555,209.00 against an insurance company (“the Insurer”) on the ground that the Assured had breached an insurance warranty relating to the carrying vessel’s deadweight capacity. [FACV No. 18 of 2013]
Are Standard Trading Conditions (“STC”) equivalent to the House Bill of Lading (“HB/L”) terms or the House Air Waybill (“HAWB”) terms? We have been frequently asked this question by our forwarder clients.
The High Court of Hong Kong issued a Judgment on 4/5/2012 explaining some legal principles as to when shipowners should fear the arrest of their ships. [HCAJ 141/2010]
We mentioned in our Chans advice/225 that the limit of liability under the Montreal Convention for carriage of cargoes was increased from 19 SDR/kg to 22 SDR/kg of the gross weight of the cargoes effective on 28 December 2019. We have recently received some forwarders’ request asking us to talk about the major terms in the Montreal Convention. We in this issue would like to introduce the Montreal Convention’s major provisions as follows:
The Hong Kong High Court issued a Judgment on 13 August 2021 holding a forwarder liable to pay nominal damages of HKD1,000 to a shipper in a cargo misdelivery claim case of USD1,299,189.87. [HCA 937/2016] [2021 HKCFI 2310]
The Hong Kong District Court issued a Judgment on 28/4/2014 dismissing a seller’s cargo misdelivery claim of US$122,302.80 against a freight forwarder and holding the seller liable to pay the outstanding freight charges of US$28,855 to the forwarder. [DCCJ 344/2010]
In Chans advice/215, we reported the High Court of Hong Kong refused Changhong Group’s application to stay the Hong Kong action. The Court of Appeal also subsequently dismissed Changhong Group’s appeal. On 13 July 2020, the Court of Final Appeal finally dismissed Changhong Group’s application for leave to appeal. [FAMV No. 34 of 2020] [2020 HKCFA 24]
In Chans advice/191 and Chans advice/206, we reported a case relating to a shipping company’s claim against its former deputy general manager (Mr Ma) over the alleged theft of the company’s money. The Hong Kong High Court on 16 December 2020 sentenced Mr Ma to 15 years’ imprisonment. [HCCC 20/2018] [2021 HKCFI 195]
Our Chans advice/191 reported a Hong Kong High Court’s case concerning a shipping company’s restitution claim against its former deputy general manager (Mr Ma) for HK$387,655,303.70. The latest development of this case is: the Hong Kong High Court issued a Judgment on 1/2/2018 and a Decision on 9/2/2018 holding that Mr Ma was in contempt of Court as a result of his breach of a Mareva Injunction Order and that he be committed to prison for 4 months. [HCMP1115/2017] [2018 HKCFI176] [2018 HKCFI328]
While the MOL Comfort incident was a disaster widely talked about among forwarders, all who suffered loss without exception will try whatever means to recover their losses down the line wherever the legal regimes permit.
More and more junior staff of the banks insist all the Bills of Lading to be signed and issued with the above remark “As agent for the Carrier”. This is of course right if the concerned Carrier does not have its own office in the place of issuing the Bill of Lading and therefore instruct its agent there to issue the Carrier’s Bill of Lading.
Following the Hong Kong Court of Appeal’s Judgment dated 11/3/2015 discharging the Mareva Injunctions and the receivership orders (mentioned in our monthly newsletter of Chans advice/171 two months ago), the Hong Kong High Court issued a Judgment on 12/5/2015 to determine the question of who should pay the remuneration to the receivers. [HCMP 1449/2014]
What is the difference between a straight bill of lading and an order bill of lading? This can be illustrated in the Wuhan Maritime Court’s Judgment dated 17 September 2019 concerning a cargo misdelivery claim of US$89,838.
The High Court of Hong Kong issued a Judgment on 26/8/2011 to determine which ship to blame in a collision case that occurred at Shanghai. [HCAJ 200/2007]
The District Court of Hong Kong issued a Judgment on 21/4/2011 dismissing a forwarder’s cargo indemnity claim of US$46,201.81 against a trucking company. [DCCJ 2092/2009]
The Hong Kong Court of Appeal issued a Judgment on 17/7/2014 holding a Hong Kong forwarder liable to pay US$852,339 plus costs and interest (as damages for conversion) to an Indian bank in an air cargo misdelivery case. [CACV 282/2012]
The Hong Kong High Court issued a Decision on 20/12/2017 dealing with a dispute of US$948,802.05 (as the price of bunkers supplied to a vessel) between a vessel charterer and a bunker supplier. [HCA2265/2016]
Remember Chans advice/142 and Chans advice/145 that the High Court of Hong Kong held the forwarder liable for cargo misdelivery without production of original bills of lading? The Court of Appeal of Hong Kong issued a Judgment on 31/1/2013 dismissing the forwarder’s applications for an extension of time to appeal. [HCMP 2366/2012 & HCMP 2367/2012]
The English High Court issued a Judgment on 31/7/2015 dismissing a cargo owner’s conversion claim US $565,891.58 against a shipowner in an uncollected cargo case. [(2015) EWHC 2288 (Comm), (2015) 2 C.L.C. 415]
The Hong Kong High Court issued a judgment on 12/4/2016 to dismiss a cargo owner’s action in respect of breaking a barge owner’s tonnage limitation. [HCAJ 178/2014]
The Hong Kong High Court issued a Judgment on 24/11/2015 dealing with a mandatory injunction and specific performance in respect of a letter of indemnity in connection with a delivery of cargo without production of the original bills of lading. [HCCL 12/2015]
There are three ways of fulfilling the deposit requirement of the Ministry of Transport (“MOT”) in the People’s Republic of China (“PRC”) for your NVOCC license.
The Hong Kong High Court issued a Judgment on 16 January 2019 dealing with the appeal of the wasted costs’ case reported by our Chans advice/214. [HCA1919/2016] [2019HKCFI127]
Remember our Chans advice/165 (reporting the Hong Kong Court of Appeal holding the Hong Kong forwarder liable to pay US$852,339 plus costs and interest to the Indian bank in the air cargo misdelivery case)? On 19/5/2016, the Court of Final Appeal dismissed the Hong Kong forwarder’s application for seeking leave to appeal. [FAMV Nos 45 & 52 of 2015]
The Hong Kong District Court issued a Judgment on 8/4/2014 holding that the one year’s suit time limit under the Hague Visby Rules does not apply to the carrier’s claims against the shipper. [DCCJ 4438/2013]
The Hong Kong High Court issued a Decision As To Costs on 5 December 2024 ordering a shipowner (which lost in an anti-suit injunction court case) to pay the winning party’s (a cargo owner) costs on an indemnity basis. HCCT 66/2024 [2024 HKCFI 3511]
The High Court of Hong Kong issued a Judgment on 22/5/2017 holding that the District Court has jurisdiction to determine bill of lading and bailment cases. [HCAJ 150/2014]
The Hong Kong High Court issued a Decision on 19 March 2018 dealing with some legal principles in relation to granting relief against unless orders in a ship collision case. [HCAJ 84/2017] [2018 HKCFI 609]
Against the post-Covid tide, we ran an off-line real seminar on Uncollected and Undelivered Cargo on 28 May 2024. Attendance could not be compared with any webinars but the number of enthusiastic questions in the Q&A session reflected the demand for transport liability issue solutions. For the sake of recapitulations and sharing the Q&A among the Chan Advice readership, we like to report the Q&A in two issues. We welcome any other questions you may have on the following.
The Montreal Convention is an international treaty agreed by 140 states in respect of governing carriers’ liability for injury or death of passengers, damage to or loss of baggage and cargo and losses caused by delays. Hong Kong has adopted it through the Carriage by Air Ordinance (Cap 500).
The Shanghai Maritime Court issued a Judgment on 24/12/2009 to deal with the question whether a shipping company could charge the container demurrage based on the tariff published on its website.
The Hong Kong High Court issued a Judgment on 9/4/2018 dealing with a cargo total loss case in which a NVOC in Malta was wrongly sued (because it had the same name as that of the correct NVOC in BVI). [HCAJ 65/2016], [2018 HKCFI 699]
The Hong Kong District Court issued a Judgment on 26 April 2022 dealing with a case concerned with transfer of business and lifting the corporate veil, and held a forwarder and its shareholder and director jointly and severally liable for a debt of HK$975,733.71. [DCCJ 2104/2019] [2022 HKDC 289]
Does the law require forklift trucks to have the third party insurance of motor vehicles? The Hong Kong High Court’s Judgment [Magistracy Appeal No 241 of 1996] dated 2/5/1996 explained the legal principles to answer this question.
The Hong Kong High Court on 18/11/2011 issued a Judgment concerning a quite confusing situation that three different laws (the USA, the PRC, and Hong Kong) might apply to the one shipment. [HCAJ 198/2009]
More than 10 years ago, we broke new grounds unheard of before among insurance brokers by introducing genuine claim support (by truly employing a team of professional transport claim handlers) independent of that from the insurers. Since then, the knowledge advantage of the insurer over that of the transport operator insured has been evened. Those who buy transport liability insurance are truly better protected with professionals standing at their side who really know the freight industry and are conversant in transport insurance and claims handling.
Following the issue of Chans advice last month, we would like to report the latest decision issued by the court over this theft case. On 17 January 2023, the Hong Kong High Court dismissed Mr Ma’s application to withdraw HK$1.5 million out of his frozen assets for paying the legal costs for his appeal against conviction in theft. [HCA 619/2016] [2023 HKCFI 197]
The Hong Kong Court of Appeal issued a Judgment on 4 October 2019 upholding the High Court’s Decision dated 9 April 2018 (reported in our Chans advice/208). [CACV593/2018][2019HKCA1101]
The Hong Kong High Court issued a Decision on 9/5/2017 allowing a time extension for some cargo interests to claim against the Tonnage Limitation Fund constituted by the owner of one of the two vessels involved in a collision that happened on 7/11/2013. [HCAJ 189/2013]
The PRC Supreme Court on 26/11/2015 issued a Judgment holding a shipping company’s container demurrage claim against a shipper time barred. [2015民提字第119號]
On 5/8/2011, the District Court of Hong Kong dismissed a shipping company’s container claims against a forwarder for want of prosecution and abuse of process. [DCCJ 765/2005]
The Hong Kong High Court issued a Decision on 4 March 2020 dismissing a shipowner’s application for a stay of proceedings in favour of arbitration in a case of cargo misdelivery without presentation of original bill of lading. [HCAJ 5/2019] [2020 HKCFI 375]
In Chans advice/215, we reported that the Hong Kong High Court refused Changhong Group’s application to stay the Hong Kong proceedings; and in Chans advice/234, we reported that the Court of Final Appeal dismissed Changhong Group’s application for leave to appeal. On 7 April 2022, the Hong Kong High Court issued a Decision dealing with Changhong Group’s action to re-litigate its stay application. [HCAJ 3/2018] [2022 HKCFI 920]
The Hong Kong Court of Appeal issued a Judgment on 20 September 2019 declining to give leave of appeal to Changhong Group in relation to the High Court Decision dated 29 January 2019 (reported in our Chans advice/221). [CAMP197/2019] [2019HKCA1061]
Remember our Chans advice/112 that the Hong Kong High Court held the Rotterdam terminal liable to pay the cargo value of €950,071.20 for the misdelivery of one container of Sony Play Stations? On 2/4/2013, Judge To of the Hong Kong High Court issued another Judgment holding that the forwarder was entitled to limit its liability to US$24,392 in accordance with its B/L terms. [HCAJ 106/2008]
The High Court of Hong Kong issued a Judgment on 1/11/2012 ordering the USA/Canada owners of a cargo (a yacht) to put up HK$250,000 as further security for costs in their legal action against the ship owners. [HCAJ 177/2009]
The Hong Kong High Court issued a Decision on 15 March 2021 converting a domestic Mareva injunction into a worldwide Mareva injunction in a shipowner’s freight and demurrage claim against a charterer. [HCMP 1190/2020] [2021 HKCFI 680]
The Hong Kong High Court issued a Decision on 11 May 2021 staying a South Korea container terminal’s legal action in Hong Kong with respect to its allision claims of more than US$90,000,000 against the owners of a container ship. [HCAJ 31/2020] [2021 HKCFI 1283]
The Hong Kong Court of Appeal on 1 December 2021 allowed a charterer’s appeal against a High Court’s Decision dated 13 April 2021 (which disallowed the charterer’s charter hire claims of US$234,955 against the shipowner because the High Court was not satisfied the claims were well founded). [CACV 294/2021] [2021 HKCA 1865]
