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]
This was the hearing of the cargo interests’ summons dated 5/8/2011 seeking summary judgment against the forwarder pursuant to Order 14 rule 1 of the Rules of the High Court.
The background
On 9/8/2007 the cargo interests consigned 11 containers (including Container HLXU 506006-7) to the forwarder for carriage from Shanghai to Tilburg via Rotterdam. The contract of carriage was evidenced by an Express Cargo Bill of Lading (B/L). The containers were stuffed with Sony Play Stations. Container HLXU 506006-7 is hereinafter referred to as Container X. The forwarder sub-contracted the sea carriage of the goods from Shanghai to Rotterdam to the shipping company. The containers having arrived in Rotterdam on 3/9/2007, they were stored at the Rotterdam terminal pending customs clearance. Such storage with the Rotterdam terminal was effected by the shipping company pursuant to a pre-existing Terminal Contract between (among other lines) the shipping company and the Rotterdam terminal. The forwarder’s Rotterdam agents cleared the consignment through customs and obtained the requisite customs clearance document (known as “the Sagitta”). The agents also arranged for the containers to be carried from Rotterdam to Tilburg by barge through inland waterways. The containers (including Container X) became registered in the Rotterdam terminal’s barge system. On 5/9/2007 Nico (a trucking company’s driver) arrived at the Rotterdam terminal, presented a copy of the Sagitta, gave the release number for Container X, and asked for Container X to be released to him for on-carriage by truck. The trucking company had obtained the copy of the Sagitta from (and had been instructed to collect Container X from the Rotterdam terminal by) unknown criminals claiming to act for a non-existent company (i-Tronics). The Rotterdam terminal employee handling Nico’s request was a trainee named Jimmy. When Jimmy attempted to comply with Nico’s request, he discovered that Container X was registered for delivery via the Rotterdam terminal’s barge system and not the Rotterdam terminal’s trucking system. At that stage, the Rotterdam terminal’s internal procedures required Jimmy to check with others whether Container X had in fact been re-routed from the barge to the trucking system. However, Jimmy did not carry out any checks. Instead, he re-routed Container X to the trucking system himself. He then issued Nico with the data card needed to obtain release of Container X from the Rotterdam terminal. Nico drove Container X to the persons who had instructed the trucking company. The latter unloaded Container X from Nico’s lorry and disappeared with the contents of Container X. Container X was later found abandoned.
On 19/11/2009, judgment was entered against the Rotterdam terminal in default of notice to defend. Its application to set aside that interlocutory judgment was dismissed by Judge Reyes on 25/2/2010 (“First Judgment”). On 1/3/2010, Judge Reyes gave judgment on quantum awarding the cargo interests damages in the amount of €950,071.20 plus interest and costs (“Second Judgment”). The Rotterdam terminal paid the judgment sum on 9/3/2010 but appealed against both judgments. The appeals were set down for hearing on 7/9/2010. In the meantime, the parties negotiated and settled the appeal in the sum of €800,000, representing a principal sum of €616,000 and a contribution of €184,000 in interest and costs. The surplus of the amount paid to the cargo interests was returned to the Rotterdam terminal. The appeal was dismissed by consent. The cargo interests then sought to recover the balance of their claims from the forwarder in the sum of €428,000, equivalent to the surplus returned to the Rotterdam terminal.
Cause of action extinguished defence
As result of the First Judgment and Second Judgment, the Rotterdam terminal paid the full amount of damages claimed in the amount of €1,056,810.87 including interest and costs to the cargo interests on 9/3/2010; and then filed a notice of appeal two days later. After that the parties entered into a series of negotiation and reached agreement to settle the appeal. On 24/8/2010, they obtained an order by consent from Rogers JA to dismiss the appeal upon the cargo interests refunding all sums over and above the sum of €800,000 to the Rotterdam terminal. The net result was that the cargo interests’ claim against the Rotterdam terminal was settled in the amount of €616,479 with a contribution of €183,521 as interest and costs. The cargo interests then sought to recover the balance of their loss in the amount of €440,331 against the forwarder.
The forwarder argued that as judgment for the full amount of damages claimed had been obtained against the Rotterdam terminal and paid to the cargo interests in full satisfaction of the judgment including interest and costs, the cargo interests’ claim was extinguished against all defendants, including the forwarder. The forwarder emphasized on the significance that the payment was made before the Rotterdam terminal filed its notice of appeal. The forwarder further submitted that the cause of action thus extinguished did not revive as a result of the cargo interests voluntarily refunding part of the judgment sum to the Rotterdam terminal and in so doing the cargo interests were effectively giving away their own property.
In Judge To’s view, the only question raised by this defence was whether it was reasonable so to settle.
The cargo interests submitted that once judgment was given, the judgment debtor was at liberty to pay the judgment sum to stop interest from accruing and then appeal. Judge To agreed. Interest at judgment rate was higher than the returns from most of the investment products available in the financial market. The payment by the Rotterdam terminal before filing its notice to appeal was but a neutral event and attracted no significance which the forwarder sought to emphasize. On the facts, the Rotterdam terminal’s payment under protest of an appeal was but provisional satisfaction pending appeal and negotiation. The cargo interests explained the basis of the settlement. Based on the Hague‑Visby Rules, the cargo interests considered the Rotterdam terminal’s offer reasonable and attractive. Though fully confident of their chance of success, bearing in mind the uncertainty of litigation and the costs of two appeals which would not be fully recovered from the Rotterdam terminal, the cargo interests made a practical management decision to settle by forgoing about one third of the damages in exchange for a dismissal of the appeals and then to pursue against the forwarder for the balance of their loss. The explanations tendered by the forwarder were credible and full of common sense. Even if the cargo interests were to wholly succeed on both appeals and awarded costs, bearing in mind the disparity between actual costs and taxed costs, the cargo interests would probably be better off settling than contesting and running the risk of uncertainty in litigation. This was not a case of a plaintiff, having obtained full satisfaction, made a gift of his fruit of litigation and then sought double recovery.
The reasonableness of the decision to settle had to be assessed as at the time when the decision was made. In Judge To’s view, having regard to all the circumstances, it was reasonable to have settled the appeal. As result of the settlement, the cargo interests avoided the costs and uncertainty of an appeal and preserved the two judgments of Judge Reyes. The net effect was that though the cargo interests obtained judgment against the Rotterdam terminal in the full amount of €950,071.20 plus interest and costs, they only recovered €616,000 plus €184,000. The cargo interests were not making a gift of their fruit of litigation to the Rotterdam terminal and then sought double recovery against the forwarder. The cargo interests were undoubtedly entitled to recover the balance of their claims from the other co‑defendants. There were no triable issues, whether of fact or of law, raised by this defence. There was no evidence to contradict the reasonableness of the cargo interests’ decision to settle. Were this issue to proceed to trial, the same evidence and arguments would be presented and the outcome would be just the same.
Failure to mitigate loss defence
The forwarder renewed its attack on the settlement by arguing that in voluntarily giving up a significant proportion of the amount they had received in satisfaction of the judgment, the cargo interests failed to mitigate their loss. The forwarder argued that it would have been reasonable for the cargo interests to defend any appeal brought by the Rotterdam terminal rather than commencing the litigation against the forwarder. The forwarder argued that the cargo interests seemed to have erroneously formed the view that the Rotterdam terminal had a meritorious argument on appeal by relying on the Hague‑Visby Rules.
It is a well settled principle that a victim is under a duty to mitigate his loss and may not recover such of his loss which he could reasonably have mitigated. But that does not mean he should, for the benefit of some other co‑defendants, pursue litigation against a particular co‑defendant against whom he had obtained judgment to the bitter end without regard to the expenditure in terms of time and costs. It is all a matter of balancing. He has to balance the chance of success, the costs involved, the means of the various co‑defendants in satisfying judgment and the relative ease with which he could recover from the various co‑defendants.
Weighing all those issues, the cargo interests considered the offer on the basis of the Hague‑Visby Rule very reasonable and attractive. Obviously, the cargo interests thought if insisted to recover beyond that limit which the Rotterdam terminal considered reasonable and the norm, the Rotterdam terminal would proceed with the appeal to try its luck. Thus, the cargo interests’ decision to settle was out of the consideration for the chance of success, the legal costs particularly those which would not be recoverable, and the limit of the Rotterdam terminal’s willingness to compromise. It might well be that as between the forwarder and the Rotterdam terminal, the latter was more to blame. That was a matter to be resolved among the Defendants. It was not for the cargo interests to do justice among those parties. On balance, from point of view of the cargo interests, Judge To considered the decision to settle the appeal reasonable.
Limitation of liability defence
The forwarder contended that its liability was limited to US$2 per kilogram gross weight of the stolen goods under clause 18.3 of the B/L. The compensation to which the cargo interests would be confined under this clause was US$24,392 or €18,863.30 which was 1.9% of the invoice value of the goods. The cargo interests’ contention was that the limitation under Clause 18.3 did not apply where the loss and damage was occasioned by the forwarder’s negligence. This dispute fell to be decided on the true construction of the B/L, particularly, Clauses 18.3, 18.4 and 23.2.
Clause 18 and 23.2 provide as follows:
18.1
When the Carrier is liable for compensation in respect of loss or damage to the Goods, such compensation shall be calculated by reference to the invoice value of the Goods plus freight charges and insurance if paid.
18.2
If there be no invoice value of the Goods, the compensation shall be calculated by reference to the value of such Goods at the place and time they are delivered to the Merchant in accordance with the contract or should have been so delivered. The value of the Goods shall be fixed according to the commodity exchange price or current market price, by reference to the normal value of Goods of the same kind and quality.
18.3
If in case of Combined Transport it can contrary to 17(B) II above not be proved where the loss or damage occurred compensation shall not exceed US$2., ‑ per kilogram of gross weight of the goods lost or damage unless a higher compensation is provided by applicable compulsory law. If it can be proved where the loss or damage occurred and if no compulsory law applies, compensation shall not exceed US$2., ‑ per kilogram of gross weight of the goods lost or damaged.
18.4
Higher compensation may be claimed only when, with the consent of the Carrier the value of the Goods declared by the Merchant has been stated in this Bill of Lading and the ad valorem freight rate is paid to the Carrier. In that case the amount of the declared value shall be substituted for the limits laid down in this clause. Any partial loss or damage shall be adjusted pro rata on the basis of such declared value.
18.5
The Carrier shall not, in any case, be liable for an amount greater than the actual loss to the person entitled to make the claim.
23.2
The Carrier shall not be entitled to the benefit of limitation of liability provided for in clause 18.3, if it is proved that the loss or damage resulted from an act or omission of the Carrier itself, done with intent to cause damage or recklessly and with knowledge that damage would probably result.
In his Second Judgment on quantum, Judge Reyes found in favour of the cargo interests against the Rotterdam terminal. His reasons were as follows. It was unclear whether the words “loss or damage” in Clause 18.3 only referred to loss or damage occasioned through no fault of the carrier or also extended to those occasioned through the carrier’s negligence, recklessness or deliberate fault. Given the principle of reading a contract contraproferentem, much clearer words, such as “whatever” or “howsoever arising” etc would need to be inserted into the clause to cover loss and damage caused by the carrier’s negligence. He considered Clause 23.2 as merely emphasizing that Clause 18.3 did not cover the extremely serious situation where the carrier had been deliberate or reckless. He did not read Clause 23.2 as implying that negligence by the carrier was covered by the limitation in Clause 18.3. Clearly all these dicta were obiter. The ratio decidendi was that the Rotterdam terminal was disentitled by Clause 23.2 from relying on the limit under Clause 18.3 by reason of its reckless conduct or that of its employee.
The cargo interests relied heavily on Judge Reyes’ construction of the two clauses in the Second Judgment. The cargo interests relied on the contra proferentum rule of construction and emphasized on the absence of express reference to mis‑delivery or clear language such as “whatsoever” or “howsoever arising” in Clause 18.3. The cargo interests argued, quoting Emjay Enterprises Pte Ltd v Skylift Consolidator (Pte) Ltd [2006] SGHC 28 per Phang J at §27, that Clause 18.3 was total exclusion of liability in disguise and fell to be construed to the exacting standard to which exclusion clauses were subject. The cargo interests also argued, quoting MacDonald, Exemption Clauses and Unfair Terms, 2nd Ed p 50 to p 62, that given the absence in Clause 18.3 of express reference to negligence or conversion or synonyms thereof, the clause was not to be taken to extend to liability for negligence.
On the other hand, the forwarder argued that the approach of the courts to limitation provision was different from the approach to provisions which purported to exclude liability absolutely. The forwarder referred to the following dictum of Lord Wilberforce in Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd [1983] 1 WLR 964 at 966G‑H:
Clauses of limitation are not regarded by the courts with the same hostility as clauses of exclusion: this is because they must be related to other contractual terms, in particular to the risks to which the defending party may be exposed, the remuneration which he receives, and possibly also the opportunity of the other party to insure.
Lord Fraser of Tullybelton was of the same opinion. He said at 970C‑F:
There are later authorities which lay down very strict principles to be applied when considering the effect of clauses of exclusion or of indemnity: … In my opinion these principles are not applicable in their full rigour when considering the effect of clauses merely limiting liability. Such clauses will of course be read contra proferentem and must be clearly expressed, but there is no reason why they should be judged by the specially exacting standards which are applied to exclusion and indemnity clauses. The reason for imposing such standards on these clauses is the inherent improbability that the other party to a contract including such a clause intended to release the proferens from a liability that would otherwise fall upon him. But there is no such high degree of improbability that he would agree to a limitation of the liability of the proferens, especially when, as explained in condition 4(i) of the present contract, the potential losses that might be caused by the negligence of the proferens or its servants are so great in proportion to the sums that can reasonably be charged for the services contracted for.
Exclusion or exemption clauses are different in nature from limitation clauses. The effect of the former is to exclude a contractor from the consequences of his conduct, be it deliberate, reckless, negligent, inadvertent or faultless. Such a clause is contrary to the general principle that a person is responsible and liable for the loss caused by his acts or omissions or breach of his contractual obligations. It is simply absurd where someone pays for the skill of another to perform certain services, that other will not be liable for the damage caused by his failure or negligence in performing those services. Exclusion clauses are often the result of unequal bargaining power, which is the imbalance which the strict principles developed by the courts were designed to redress. Limitation clauses, on the other hand, are different in nature. They do not exclude liability, but only limit the extent of the liability. They are largely creations arising out of cost and risk considerations. For example, an operator of a laundry business only charges a small fee for laundering clothes, but runs the risks of having to pay compensation for loss and damage to the clothes of his customers as a result of his negligence, inadvertence or causes for which he is not to blame. Some clothing could be very expensive. Under such circumstances, compensation would be way out of line with the relatively small fee he charges. Such risk is also out of proportion with his anticipated profit. Without somehow limiting the extent of his liability or unrealistically increasing his fees, the risk inherent in the business may make the business not worth operating and the services may not be available to the public. In more sophisticated businesses, eg the jewelry business, the limitation clause is sometimes fortified by insurance. A client presenting an expensive jewel for mounting may be informed of a limitation clause and advised to insure for damage or loss during the course of the work. This example demonstrates the purpose of exclusion and limitation clauses is to allocate the burden of insurance: see Photo Production v Securicor [1980] AC 827. Limitation clause spread the risk of loss between the contracting parties, while keeping the cost of the services low. They are the result of commercial reality. That is why they are regarded with less hostility by the courts. Genuine limitation clauses will be given effect to by the courts. Judge To agreed with the approach in Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd.
Judge To accepted that even if Clause 18 was a genuine limitation clause it must be construed contra proferentum and be subject to the same strict rule of construction. Judge To noted the absence of words such as “whatever” and “howsoever arising” in the second paragraph in Clause 18.3, and indeed throughout the entire clause. Judge To also agreed that Clause 18.3 should be read together with Clause 23.2. When read together with Clause 23.2, such absence supported the inference that the limitation did not apply to loss or damage caused by negligence, recklessness and deliberate conduct of the carrier as was held by Judge Reyes in the Second Judgment. Clause 23.2 avoided or annulled the limitation in Clause 18.3 if the loss or damage resulted from acts or omissions of the carrier itself committed under two different mental states: (1) with intent to cause damage or (2) recklessly and with knowledge that damage would probably result. Judge Reyes thought that was not a situation of expressio unius exclusion alterius and that Clause 23.2 merely emphasized two most serious situations where the carrier had been reckless, but in fact covered all situations of loss or damage caused by negligence, recklessness and deliberate conduct of the carrier.
Though Clause 18.4 was quoted in the Second Judgment, no argument was actually advanced by counsel on behalf of the Rotterdam terminal. That was understandable as the cargo interests had not paid the higher ad valorem freight rate and Clause 18.4 had no application. However, the presence of this sub‑clause in the B/L was not without significance and should not be overlooked in construing Clause 18.3 or Clause 18 as whole. The B/L must be construed as a whole together with all the relevant clauses in the light of the factual matrix. The compensation regime was that the consignor had two options. He might opt to pay the ordinary or lower freight rate and be bound by the limitation clause in Clause 18.3 limiting his compensation to US$2 per kilogram of gross weight of goods lost or damaged. Alternatively, he might opt to declare the value of his goods, pay a higher freight at ad valorem rate and have the comfort of being paid the full value of his goods under Clause 18.4 in case of loss or damage, whatever the cause. This second option was in effect a freight plus insurance option.
With this overall view of the regime in mind, Judge To looked at Clause 23.2 again from the point of view of the construction. This clause was carefully worded to dis‑entitle the carrier from the benefit of the limitation under two situations. These two situations were also very narrowly defined. They were acts or omissions of the carrier itself committed with two specific states of mind: (1) intent to cause damage; and (2) recklessly and with knowledge that damage would probably result. Given such express and clear wording, it would be very difficult to enlarge the mental state of the carrier beyond these two expressed states of mind to one where such specific intent was totally missing as in case of negligence. To do so would require adding to the clause words referring to negligence which were not there or deleting all reference to the two mental states which was there. This was tantamount to re‑writing the entire clause and not construing it. And when that was done, what purpose would be left to Clause 18.4? The limit under Clause 18.3 would not apply to loss or damage howsoever arising as result of the carrier’s conduct, whether deliberate, reckless or negligent. What did consignors pay the higher ad valorem freight rate for? Clause 18.4 would be rendered redundant. The wordings in Clause 23.2 could not be clearer. It annulled the limit under Clause 18.3 if the loss or damage was caused by the carrier’s conduct committed under either of the two mental states and no more. It would be unnecessary, and indeed superfluous, to add a phrase expressly excluding negligent conduct. Clause 18.3 was also very clear. The limit applied across the board to all loss and damage, even without words such as “whatsoever” or “howsoever arising”. It was only expressly excluded by the terms of Clause 23.2. When the drafting style was thus understood, Judge To thought these two clauses could not be clearer. There was no room for the use of words such as “whatsoever” or “howsoever arising”. No inference could be drawn for their absence. Clause 23.2 only had the effect of avoiding or annulling the limit under Clause 18.3 for loss or damage caused by deliberate or reckless conduct of the carrier, but not negligent conduct. Loss or damage caused by any other acts or omission of the carrier, including negligent conduct, should be subject to the limit under Clause 18.3 if the consignor opted to pay the ordinary freight rate or subject to the declared value if the consignor opted to pay the ad valorem freight rate. This was a very simple regime which could be readily understood. This compensation regime was precisely the kind of situation where the maxim, expressio unius exclusion alterius applied, otherwise Clause 18.4 would be rendered wholly redundant and consignors would be paying the higher freight rate for nothing. Clause 18 was a genuine limitation clause which the court would give effect to.
When viewed as a limitation clause, the above construction of Clause 23.2 along with Clauses 18.2 and 18.3 resulted in a compensation regime which was absolutely reasonable. A consignor might ship some very valuable goods, say gold bars instead of playstations. He opted to pay the regular freight, which covered the cost of the freight and usual profit for the carrier. He got an assurance that the carrier would not do any deliberate or reckless act to cause him loss or damages. The carrier got his usual business profit for the carriage. He was under a duty to exercise due diligence. In view of the relatively low freight charge, it would be unreasonable to require him to fully indemnify the consignor of the loss of his cargo, even if occasioned by carrier’s own negligence. By agreement, the parties agreed to limit the carrier’s liability under Clause 18.3. On the other hand, the consignor might opt to declare the value of his cargo and pay the higher ad valorem freight rate and be ensured of full compensation for all causes of loss and damage. Alternatively, he might, as what the cargo interests did in the case in question, opt to pay the ordinary freight rate and insure his cargo with a third party insurer. But, it would be Wednesbury unreasonable, if unknown to the carrier that the cargo contained very valuable goods and for the very low freight rate that it received, the carrier was required to fully indemnify the consignor for loss, even if caused by its negligence. Just imagine in the case in question, were the cargo consisted of gold bars of equal weight instead of playstations, the carrier would be asked to pay compensation of US$625 million for a negligible freight rate. Had the true value of the cargo been declared, the carrier might require the consignor to pay the ad valorem freight rate and step up its security measures, or insist on the limit of its liability or refuse to take the carriage altogether.
The claims in question were in fact subrogated claims by the cargo underwriters. Judge To thought the cargo interests appreciated the true meaning and consequence of all these clauses. Obviously, they knew they were not fully covered by the compensation under Clause 18.3 even if such loss and damage were caused by the negligence of the forwarder. That was why they took out insurance with the cargo underwriter. They chose not to declare the value of the containers and avoid paying the ad valorem freight rate, presumably because the terms of the insurance were more preferable. The B/L Clauses clearly expressed the parties’ commercial intention and also clearly intended the commercial purpose of allocating the burden of insurance to the cargo interests.
Judge To did not think the construction that he adopted was in anyway inconsistent with Judge Reyes’ Second Judgment. This was because Reyes J made a finding that the loss was caused by the Rotterdam terminal’s deliberate or reckless conduct. Clause 23.2 clearly applied. Whatever the learned judge said about extension of that clause to cover the carrier’s negligence conduct was obiter. That aspect of the construction was not even argued. The significance of Clause 18.4 was not considered. Judge To did not feel uncomfortable to differ from those obiter dicta.
The forwarder was entitled to the partial defence of limitation of liability and was bound to succeed.
Conclusion
Judge To dismissed all the defences raised on behalf of the forwarder, except the partial defence of limitation of liability, which in Judge To’s view was bound to succeed. On the basis of the limit under Clause 18.3, the cargo interests were entitled to judgment in the sum of US$24,392 or €18,863.30. In their summons, the cargo interests claimed the sum of €428,000. There were no factual disputes outstanding. The legal issues had been fully argued. It would be contrary to the underlying objective of Order 1A and a waste of time and costs to have the matter adjourned for assessment of damages when all the legal arguments would have to be repeated and the result would inevitably be the same. Having reached the conclusion that the forwarder had no defence on liability and having so construed the B/L, it was only appropriate that judgment be entered for quantum as well. Accordingly, Judge To entered judgment for the cargo interests against the forwarder in the sum of €18,863.30 with interest at judgment rate from 7/1/2011 and with an order nisi that the forwarder should pay the cargo interests’ costs of the action to be taxed at the District Court scale, if not agreed.
Please feel free to contact us if you have any questions or you would like to have a copy of the Judgment.
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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 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]
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 Judgment on 29/4/2013 relating to a discovery order ancillary to and in support of a Mareva injunction. [HCA 2124/2011]
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]
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 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 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]
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 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]
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 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]
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 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 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 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]
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 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 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]
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 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]
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]
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.
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]
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]
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 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]
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 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 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]
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 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 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 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]
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 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 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]
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 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]
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]
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.
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 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 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.
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]
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]
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]
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 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]
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.
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 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]
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]
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.
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.
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 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]
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 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 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]
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 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 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 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]
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]
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 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]
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 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 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]
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 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 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 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 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 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]
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 $565,891.58 against a shipowner in an uncollected cargo case. [(2015) EWHC 2288 (Comm), (2015) 2 C.L.C. 415]
Without even knowing, we have published including this one 200 issues of the Chans Advice. As this is a monthly bulletin, 100 issues took more than 8 years and 200 issues took 17 years to run.
The High Court of Hong Kong issued a Judgment on 3/2/2012 concerning which currency (US$ 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]
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]
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 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 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]
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 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]
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.
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 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 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 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 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]
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.
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 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 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]
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 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 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]
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.
