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]
The Assured sought to overturn the decision of the Court of Appeal and restore the judgment given in its favour by the High Court enabling it to recover the sum of US$1,555,209.00 (together with interest and costs) under a contract of marine insurance (“the Contract”) as against the Insurer. Liability had been disputed by the Insurer primarily on the basis of an insurance warranty in relation to the deadweight capacity of the vessel under the Contract. The essential question before the CFA was whether the Insurer could successfully do so.
By a Marine Cargo Insurance Application dated 2/1/2008 (“the Application”), the Assured applied to the Insurer for marine insurance coverage in respect of the shipment of a cargo of Malaysian round logs from “Malaysian Port” to Zhangjiagang in the PRC. The relevant carrying vessel was named as the “MV Ho Feng No. 7” (“the Vessel”) and the amount sought to be insured was US$1,500,000.00. The application was accepted and a Marine Cover Note (“the Cover Note”) was issued, confirming the insured interest as the logs valued at US$1,500,000.00. Three points were of note in relation to the Cover Note:-
Against the side heading “Ship”, there appeared the words “PER APPROVED VESSEL OR VESSELS TO BE DECLARED AND SUBJECT TO ANY ADDITIONAL SURCHARGE IF REQUIRED”.
Against the side heading “Conditions” was the clause “WARRANTED YEAR BUILT OF THE VESSEL NOT OVER 30 YEARS. WARRANTED DWT NOT LESS THAN 10,000” (“the Deadweight Warranty”).
The Cover Note also stated that the insurance cover would be subject to the terms, exceptions and conditions of the policy to be issued.
The policy replacing the Cover Note was dated 11/1/2008 (“the Policy”). The insured interest were the logs, but the value was stated to be US$1,555,209.00. Of note were the following on the face of the Policy:-
In the box marked “Vessel” was typed “M.V. HO FENG No. 7 V.712S”, in other words the Vessel and the identification of the relevant voyage.
In the box to identify relevant clauses and conditions, there was typed out the Deadweight Warranty.
In or about mid-January 2008, in the course of the voyage from Kuala Baram Malaysia to Zhangjiagang in the PRC, the Vessel sank and the cargo of logs was totally lost. A claim under the Contract was made by the Assured to the Insurer for the insured value of US$1,555,209.00. The claim was rejected by the Insurer on the basis that the Assured was in breach of the Deadweight Warranty: the vessel’s deadweight capacity was less than 10,000 tonnes.
The Marine Insurance Ordinance Cap 329 (“the MIO”) was enacted in Hong Kong in 1961. The MIO contains a part specifically addressing the nature of marine insurance warranties: ss 33 to 41. Only s 33 was relevant:-
33. Nature of warranty (1) A warranty, in the following sections relating to warranties, means a promissory warranty, that is to say, a warranty by which the assured undertakes that some particular thing shall or shall not be done, or that some condition shall be fulfilled, or whereby he affirms or negatives the existence of a particular state of facts. (2) A warranty may be express or implied. (3) A warranty, as above defined, is a condition which must be exactly complied with, whether it be material to the risk or not. If it be not so complied with, then, subject to any express provision in the policy, the insurer is discharged from liability as from the date of the breach of warranty, but without prejudice to any liability incurred by him before that date.
A number of points ought to be made in relation to this provision:-
The provision defines warranties as promissory in nature and the definition of this term includes the affirmation of the existence of a particular state of facts: s 33(l).
Although no particular form of words is required before a marine insurance warranty is created and the use of the word “warranted” does not conclusively mean that such a warranty exists, nevertheless the use of the word does raise a presumption that a warranty is intended.
Where a marine insurance warranty is breached, the insurer is discharged from liability; there is an automatic discharge from liability: see Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Limited (The Good Luck).It provides a complete defence to any claim made under the policy. There need not be any causal connection between the breach of warranty and any loss suffered by an assured for which a claim is made: see HIH Casualty and General Insurance Limited v New Hampshire Insurance Company.
In the appeal in question, reliance was placed by the Assured on waiver. A warranty will be ineffective if it is waived: see s 34(3) of the MIO. In the context of a waiver under s 34(3) of the MIO, in the light of the principle that the breach of a marine insurance warranty results in the automatic discharge of an insurer’s liability, the meaning of waiver is what has been termed waiver by estoppel: see Argo Systems FZE v Liberty Insurance (Pte) (The Copa Casino). This type of waiver, the same as an equitable estoppel, requires three elements to be established by the party relying on it: first, a clear and unequivocal representation by the person said to have waived rights (ie the Insurer), whether by words or conduct, that the representor’s legal rights will not be insisted upon; secondly, reliance by the representee (ie the Assured) on the representation; and thirdly, that it would be inequitable for the representor to go back on the representation.
The Assured accepted that the Deadweight Warranty was a marine insurance warranty and that s 33 of the Ordinance was therefore engaged. There was no doubt that the Deadweight Warranty was a marine insurance warranty. By this warranty, the Assured affirmed a particular state of facts, namely, that the carrying vessel of the cargo (the relevant interest insured under the Contract) would have a deadweight capacity of over 10,000 tonnes. The legal consequence of the Deadweight Warranty being a marine insurance warranty is that in the event of breach, an insurer will generally be discharged from liability under the relevant contract of marine insurance.
The Assured contended that the Insurer was prevented from relying on the Deadweight Warranty by reason of any one or more of the following: on a true construction of the Contract, rectification and waiver/estoppel.
THE CONSTRUCTION OF THE CONTRACT
It was apparent from the Assured’s submissions that reliance was still placed on the High Court’s reasoning that there was somehow an inherent inconsistency between naming a vessel in a contract of marine insurance and a warranty requirement regarding the deadweight capacity of that vessel (such as the Deadweight Warranty). In the CFA’s view, it was unarguable. The mere fact that a vessel is named in a contract of marine insurance does not mean in any way that an insurer is somehow prevented from insisting by way of warranty on that vessel possessing certain characteristics. Nothing in the Ordinance remotely suggests otherwise. Indeed, the references to express warranties and the various other warranties in the MIO all suggest that they would exist even where the relevant carrying vessel is known to an insurer. Just to give one illustration: it cannot seriously be contended that just because an insurer is aware of the name and voyage of a relevant vessel that the insurer is somehow prevented from insisting on compliance with the warranty of seaworthiness contained in s 39 of the Ordinance. The CFA saw no inconsistency in the Contract between the identification of the Vessel and the existence of the Deadweight Warranty. Nor was the analysis any different by reason of the fact that the Vessel may have been an “APPROVED VESSEL”.
Rather, the Assured’s position was that by reason of the Insurer’s knowledge of the Vessel’s deadweight capacity, it was prevented from relying on the Deadweight Warranty. The Assured submitted that the High Court made an express finding that at all material times the Insurer knew of the Vessel’s deadweight, that this finding should not be disturbed by the CFA and it should not have been disturbed by the Court of Appeal. As the Assured stated, this finding of knowledge “should form the basis of the adjudication of this appeal”.
The CFA found it difficult to accept that the special knowledge of a party to a contract might affect what otherwise would be the true construction (as opposed to the effectiveness) of the terms of that contract. Much less, in the exercise of construing a contract, could a party’s knowledge result in a term of contract being ‘red pencilled’ into oblivion by its total deletion, as the Assured submitted (concerning the Deadweight Warranty). A party’s knowledge may, however, result in some form of waiver on estoppel being applicable.
THE STATE OF KNOWLEDGE OF THE INSURER
The Assured contended first that the High Court made positive findings of primary fact to the effect that the Insurer did at all material times have knowledge of the Vessel’s deadweight capacity.
But the CFA was of the view that the High Court did not identify any evidence to support such a finding at all, if indeed the High Court did make such a finding in the first place. The Court of Appeal was of the view that no such finding of actual knowledge had been made by the High Court. Nor was the Assured really able to identify any evidence to justify what it submitted were the High Court’s findings of primary fact.
It was submitted, however, that the Assured having raised a prima facie case on the facts of actual knowledge, this prima facie position should be taken factually to be the established position in the absence of any contradictory evidence adduced by the Insurer. In other words, a prima facie case on the facts having been raised, adverse inferences could be drawn from the failure to adduce contradictory evidence, particularly where a party could be expected to provide such evidence; in such situations silence would be fatal.
However, before a prima facie factual situation can be said to exist, there must be evidence adduced of “sufficient cogency” to raise a prima facie case in the first place. The Assured did not reach this threshold. The Assured relied on the Statement of Claim in which there wasa reference (without any particulars) to actual knowledge; reliance was also placed on the fact that the Vessel’s deadweight capacity could be found on the internet. These were insufficient by a long way to make out a prima facie case on knowledge.
There being no evidence of actual knowledge, the Assured then tried to make out a case to suggest that some form of constructive knowledge was sufficient. The Assured’s submissions amounted to this: since the exercise in contractual construction involved the Court taking into account the factual matrix of the relevant contract and the factual matrix included all facts which might be “reasonably available” to the parties, the Vessel’s deadweight capacity being “reasonably available” to the partiesmeant that the Insurer was to be taken to have knowledge of the Vessel’s deadweight capacity; the result then was that the Deadweight Warranty should be given no effect.
The CFA could not agree with this argument. The account that one takes of the factual matrix of a contract is to assist in arriving at the true construction of the contract and its terms. It does not have some separate life of its own to undermine or nullify the effect of a clear term of the contract. The meaning and effect of the Deadweight Warranty is clear and no assistance can be derived by reference to the factual matrix of the Contract.
The Assured’s submissions on factual knowledge must fail, and insofar as some form of constructive or presumed knowledge was relied on, this did not advance the Assured’s case at all. Any information to which the Insurer may have had access did not affect the operation of the Deadweight Warranty.
RECTIFICATION
The Assured submitted (and the CFA agreed) that the correct approach to rectification of a contract where it does not accurately reflect the parties’ true agreement, is that set out in Agip SpA v Navigazione Alta Italia SpA (The Nai Genova and Nai Superba):-
As the law stands, the conditions which must be satisfied if rectification is to be granted on the grounds of common mistake may, in my opinion, be summarized as follows: First, there must be a common intention in regard to the particular provisions of the agreement in question, together with some outward expression of accord. Secondly, this common intention must continue up to the time of execution of the instrument. Thirdly, there must be clear evidence that the instrument as executed does not accurately represent the true agreement of the parties at the time of its execution. Fourthly, it must be shown that the instrument, if rectified as claimed, would accurately represent the true agreement of the parties at that time: (see generally Snell’s Equity, 28th ed. (1982) at pp. 612-614).
In support of its case, the Assured referred to the High Court’s judgment in which the High Court concluded that the insertion of the Deadweight Warranty must have been an error and did not represent the parties’ common intention. The High Court arrived at this conclusion by reference to two matters: the Deadweight Warranty had featured only rarely in the contracts of marine insurance previously entered into by the parties, and the view that the High Court took regarding what it saw as an inconsistency in the Contract between the naming of the Vessel and the Deadweight Warranty. The first reason, however, provided no basis at all for saying that the Deadweight Warranty was therefore somehow ineffective as a term of the Contract. This was notwithstanding even the fact that although previous policies may not have contained a deadweight warranty, the cover notes in relation to such policies did. The second reason was based on the High Court’s construction of the Contract, and that construction was in error. Further, the High Court also seemed to place reliance on the fact that the Assured’s employee (Ms Wong) was not sufficiently sophisticated to appreciate the significance of the Deadweight Warranty. This only had to be stated to be rejected as a ground for rectification.
The claim for rectification accordingly failed.
WAIVER AND ESTOPPEL
If the Deadweight Warranty was valid, the Assured contended that there had been waiver on the part of the Insurer. Reference was made to s 34(3) of the Ordinance. Under that provision, the meaning of waiver is waiver by estoppel or equitable estoppel. On the facts of the case in question, the Assured could not satisfy the requisite conditions for this form of waiver to apply:-
It was the Assured’s case that the Insurer made a representation to it that notwithstanding the Deadweight Warranty and notwithstanding the fact that the Vessel’s deadweight capacity did not comply with that warranty, the Insurer would nevertheless accept the Vessel for the purposes of marine insurance cover under the Contract. According to the Assured, the representation arose by reason of the following matters: the Insurer’s knowledge that the relevant vessel for the voyage was in fact the Vessel, the ease by which the Insurer could have found out about the Vessel’s deadweight capacity (through the internet), the issuance of the Policy and the acceptance of the premium. The Assured is said to have relied on this representation by not taking out any other policy of marine insurance. It was submitted that, accordingly, it would be inequitable to allow the Insurer to rely on the Deadweight Warranty.
This argument fell at the first hurdle. None of the matters relied on, whether singly or cumulatively, could possibly amount to the requisite clear and unequivocal representation contended for.
NON-DISCLOSURE
Both courts below dealt with the defence advanced by the Insurer that the Assured had breached the duty of disclosure under s 18 of the MIO. In its written Case, the Insurer maintained this defence.
The CFA did not see the relevance of non-disclosure, given the existence of the Deadweight Warranty. There is a certain illogicality in defending a marine insurance claim on the basis that a material fact should have been, but was not, disclosed by the assured to an insurer, when that very fact is the subject matter of a marine insurance warranty. Indeed, s 18(3)(d) of the Ordinance states that in the absence of inquiry, any circumstance which is superfluous to disclose by reason of an express warranty, need not be disclosed.
CONCLUSION
For the above reasons, the appeal was dismissed. Quite simply, the Deadweight Warranty was breached and there was no answer to that.
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
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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 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]
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]
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]
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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]
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 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]
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]
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]
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 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]
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 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]
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 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]
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 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 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]
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.
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 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.
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 issued a Judgment on 29/4/2013 relating to a discovery order ancillary to and in support of a Mareva injunction. [HCA 2124/2011]
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]
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.
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 23/12/2013 dealing with an application for security for costs in relation to a ship sinking case. [HCAJ 213/2009]
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.
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 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]
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]
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]
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 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 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]
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 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 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]
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]
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 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]
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.
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 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.
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 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]
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 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 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]
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]
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]
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 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 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]
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’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 Judgment on 16 January 2019 dealing with the appeal of the wasted costs’ case reported by our Chans advice/214. [HCA1919/2016] [2019HKCFI127]
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 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 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]
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]
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]
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]
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 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]
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 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 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]
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).
