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]
On 26/2/2010, BHP Billiton commenced an action in England against Transfield Shipping which was a Panama company, for breach of a Freight Forward Swap Agreement (“the Swap Agreement”). The Swap Agreement was contained in or evidenced by a written confirmation dated 14/2/2008 (“the Confirmation”). The Confirmation provided that legal proceedings may be validly served on Transfield Shipping at an address at Harbour Road, Wanchai, Hong Kong (“the Harbour Road Address”). The Confirmation also provided a HSBC’s bank account held in the name of Transfield ER Maritime (“the Account”) as Transfield Shipping’s account for the purpose of the transaction under the Swap Agreement. In the English proceedings, the court granted leave to BHP Billiton to serve the proceedings out of jurisdiction at Transfield Shipping’s registered address in Panama and the Harbour Road Address. The Harbour Road Address was later found to be occupied by Transfield Resources, which was another company associated with Transfield Shipping. Transfield Shipping did not respond to the English proceedings. On 15/7/2010, default judgment in the sum of US$2,194,964.41 was entered against Transfield Shipping in the English court (“the UK Judgment”). BHP Billiton proceeded to effect service of the UK Judgment on Transfield Shipping. It was then discovered that the Harbour Road Address was empty. According to the record of the Companies Registry in Hong Kong, the registered office of Transfield Recourses was changed to another address at Lockhart Road, Wanchai, Hong Kong (“the Lockhart Road Address”). With the leave of the English court, the UK Judgment was served on Transfield Shipping at the Lockhart Road Address.
In the end of 2010, BHP Billiton discovered that Transfield Shipping was involved in another legal proceedings with a company called RTI in the English court. The legal proceedings were subsequently settled, and RTI paid a sum of US$14,000,000 to Transfield Shipping by means of a telegraphic transfer to the Account on about 16/5/2011. Such information was obtained as a result of BHP Billiton obtaining a disclosure order in the English proceedings against RTI’s solicitors. The disclosure order required RTI’s solicitors to provide information in relation to any sums which were due and owing to Transfield Shipping from RTI pursuant to the settlement agreement made between them, whether such monies had been paid and if so when, how much, into what account, etc.
The payment of such sum of money prompted BHP Billiton to apply for a Mareva injunction against Transfield Shipping. On 2/6/2011, a worldwide Mareva injunction was obtained by BHP Billiton against Transfield Shipping in the English court up to the value of US$2,650,000 (“the UK Injunction”). Undertakings Nos 6 and 7 of the UK Injunction order read as follows:
The Claimant will not without the permission of the Court use any information obtained as a result of this order for the purposes of any civil or criminal proceedings, either in England and Wales or in any jurisdiction, other than this claim.
The Claimant will not without the permission of the Court seek to enforce this order in any country outside England and Wales or seek an order of a similar nature including orders conferring a charge or other security against the Defendant or the Defendant’s assets.
BHP Billiton also made various attempts to serve the UK Injunction order on Transfield Shipping but without any success. In December 2011, it was discovered that Transfield Resources had changed its registered address to another address at Lockhart Road.
On 15/12/2011, BHP Billiton obtained a Mareva injunction in Hong Kong (“the HK Injunction”) before Carlson DHCJ in aid of the English proceedings up to the value of US$2,650,000. By the order of Yam J on 28/12/2011, the HK Injunction was ordered to be continued until further order of the court. Both the UK injunction order and the HK Injunction order directed that Transfield Shipping must not withdraw money from the Account.
Transfield Shipping had at no stage taken part in any aspect of the English or the Hong Kong Proceedings.
Obviously, BHP Billiton wanted to find out what happened to Transfield Shipping’s money paid into the Account on 16/5/2011. BHP Billiton took out a summons on 15/2/2012 pursuant to s 21 of the Evidence Ordinance, Cap 8 (“the Discovery Summons”) requesting HSBC to disclose, inter alia, the bank statements of the Account and the flow of funds in the Account in the period from 16/5/2011 to 15/12/2011 (“the Relevant Period”). HSBC, by its letter dated 16/2/2012, indicated that it did not contest BHP Billiton’s Discovery Summons. Transfield ER Maritime opposed the Discovery Summons and applied for leave to intervene. On 18/9/2012, Master de Souza granted leave to Transfield ER Maritime to be joined for the purpose of the Discovery Summons. The learned Master also allowed BHP Billiton’s application and made the discovery order against HSBC (“the Discovery Order”).
Shortly before the hearing on 14/9/2012, Transfield ER Maritime’s solicitors wrote to BHP Billiton’s solicitors enquiring whether BHP Billiton had complied with Undertaking Nos 6 and 7 before lodging the application for the HK Injunction. By the letter dated 17/9/2012, BHP Billiton’s solicitors replied that Transfield ER Maritime did not have the requisite locus to seek confirmation in relation to the said queries. Upon realising its failure to comply with Undertaking No 7, BHP Billiton made an application for retrospective leave to commence the Hong Kong proceedings in the English court on 8/10/2012. It was BHP Billiton’s case that there was an inadvertent breach of Undertaking No 7 and such breach was not noticed until it was brought to BHP Billiton’s attention by the letter of Transfield ER Maritime’s solicitors dated 14/9/2012. On 11/11/2012, Smith J made an order in the English proceedings granting permission to BHP Billiton to have issued the Hong Kong proceedings and to continue such proceedings for the enforcement of the UK Judgment and the UK Injunction. According to the transcript of the proceedings before Smith J, it seemed that the learned judge accepted that there was no breach of Undertaking No 6. Again, Transfield Shipping did not appear in the hearing.
On 26/2/2013, BHP Billiton obtained default judgment against Transfield Shipping in the Hong Kong proceedings herein in the sum of US$2,194,964.41 with interest thereon (“the HK Judgment”).
Transfield ER Maritime appealed against the Discovery Order. Transfield ER Maritime opposed the Discovery Order on the following grounds:
BHP Billiton’s claim was not a proprietary claim, and so there was no justification for the court to make the Discovery Order which had the effect to “trace” into the Account;
the scope of the disclosure sought was wider than the terms of the HK Injunction order;
BHP Billiton had failed to establish that the Account belonged to Transfield Shipping, whether in form or in substance;
HSBC should not be ordered to disclose the information by reason of confidentiality and privacy; and
by not informing Carlson DHCJ, Yam J and Master de Souza of the fact the HK Injunction was obtained without the leave of the English court, BHP Billiton was in contempt of court and had failed in its duty to make full and frank disclosure.
The Judge saw no merit in these arguments.
It is well established that one purpose for which information relating to a party’s assets may be needed is to aid a Mareva injunction, in the sense of assisting the working of the injunction and making the injunction effective. In A v C [1981] QB 956, Goff J said, at 960C, that “the court should, where necessary, exercise its powers to order discovery or interrogatories in order to ensure that the Mareva jurisdiction is properly exercised and thereby to secure the objective which is … … the prevention of abuse.” In A v C, Goff J distinguished the scope of the disclosure order which the court will be prepared to make in cases where: (i) the plaintiff has a proprietary claim and is seeking to trace property belonging to him; and (ii) the plaintiff is the beneficiary of a Mareva injunction, whose purpose is the prevention of the abuse constituted by the defendant of disposing of his own assets in order to avoid the risk of having to satisfy any judgment which may be entered against him. In the former case of a proprietary claim, the court can make orders designed to ascertain the whereabouts of the defendant’s property (see 959D). In the latter case where the plaintiff has the benefit of a Mareva injunction, the court would not make use of a general power to enable the plaintiff to discover whether the defendant has assets in the jurisdiction, but disclosure orders may be made about particular assets of the defendant which the plaintiff has identified and, if the asset is a bank balance in respect of which the plaintiff is entitled to discovery, the court may exercise the power under s 7 of the Bankers Books Evidence Act 1879 which is equivalent to s 21 of our Evidence Ordinance.
BHP Billiton confirmed that its claim was not a proprietary claim and BHP Billiton was not seeking to trace its money into the Account. BHP Billiton was just saying that it was the beneficiary of a Mareva injunction and was seeking to prevent Transfield Shipping from disposing of its own assets in order to avoid the risk of having to satisfy an adverse judgment.
Transfield ER Maritime confirmed that there was no application to discharge the UK or the HK Injunction order. By the making of such injunction orders, the courts had prima facie accepted that the fund paid by RTI into the Account was Transfield Shipping’s asset, and so Transfield Shipping should be asked to give information about the whereabouts of such asset. If the fund transferred into the Account by RTI had been transferred out to other bank accounts of Transfield Shipping or Transfield Shipping’s associated companies, BHP Billiton should be entitled to take action to prevent the dissipation of such asset on the part of Transfield Shipping.
As Transfield Shipping had failed to appear in both the English and the Hong Kong proceedings, the only way to give effect to the disclosure obligation on the part of Transfield Shipping was to require HSBC to disclose information about the flow of funds in the Account after the making of the telegraphic transfer by RTI. To achieve the object of the Mareva injunction in trying to prevent Transfield Shipping from dissipating its assets, the Discovery Order was, therefore, a necessary measure.
Further, as BHP Billiton had since the hearing before the Master become a judgment creditor of Transfield Shipping in the Hong Kong proceedings, there was much stronger reason for the court to make the Discovery Order against HSBC at this stage.
The Judge agreed with BHP Billiton, that the following propositions could be derived from the judgment of Kerr LJ in Babanaft International Co SA v Bassatne [1990] 1 Ch 13 at 42G-43C and that of Colman J in Gidrxslme Shipping Co Ltd v Tantomar-Transportes Maritimos Lda [1995] 1 WLR 299 at 309F-312F (see also: Chinachem Charitable Foundation v Chan Chun Cheun & Anr, HCAP 8 of 2007 (decision on 27/2/2012) at §§37-39):
unlike the position before judgment, after judgment a plaintiff is able to attach assets of the defendant against whom he has obtained judgment;
after judgment has been obtained, there is no objection in principle to the judgment debtor being required to give disclosure of his assets worldwide under examination of debtor, injunction or appointment of receiver proceedings;
the object of ordering such disclosure is to render the judgment effective;
in a post-judgment situation, the jurisdiction to make a disclosure order arises both as a power ancillary to and in support of a Mareva injunction and independently of the injunction as a power in support of the execution of the judgment; and
it is just and convenient for a judgment creditor to have all the information he needs to execute the judgment or award anywhere in the world.
Hence, BHP Billiton was entitled to the information under the Discovery Order both as a beneficiary of the Mareva injunction and as a judgement creditor to facilitate the execution of the Injunction orders and the judgments obtained in the English and the Hong Kong courts. Further, Transfield Shipping had all along ignored the English and the Hong Kong proceedings, and so the most practical if not the only way to find out information about Transfield Shipping’s assets was through the Discovery Order.
Transfield ER Maritime submitted that the Account could not be subject to the Discovery Order because the Account was held in the name of Transfield ER Maritime and not Transfield Shipping.
The Judge disagreed. It had long been established by the English cases that such kind of discovery order may be made where the evidence shows that the defendant has been using for his own purpose a bank account which is in the name of a third party. In South Staffordshire Tramways Company v Ebbsmith [1895] 2 QB 669 at 675, Lord Esher MR said the following:
… … if the Court were satisfied that in truth the account which purported to be that of a third person was the account of the party to the action against whom the order was applied for, or that, though not his account, it was one with which he was so much concerned that items in it would be evidence against him at the trial … …. then they might order the inspection … … … I think that the party asking for the inspection ought to be able to show the Court very strong grounds for suspicion, almost amounting to certainty, that there are items in the account which would be material evidence against the defendant upon the matters in issue.
Such test had been applied in the subsequent decisions of Ironmonger & Co v Dyne (1928) 44 TLR 579 and D B Deniz Nakliyati Tas v Yugopetrol [1992] 1 WLR 437. In D B Deniz, the English Court of Appeal said (at 443E) that such test was applicable to orders made both in pre-trial and post-judgment cases.
In the case in question, there was ample evidence to show, quite certainly, that the “items” in the Account were Transfield Shipping’s assets and Transfield Shipping had been using the Account as its own account. Firstly, Transfield Shipping provided the Account as its operative account in the Swap Agreement. Secondly, the sum of US$14,000,000 remitted by RTI into the Account belonged to Transfield Shipping. It was because of these reasons that the UK and HK Injunctions orders had expressly identified the monies in the Account as one of the assets which Transfield Shipping was restrained from disposing of or dealing with. With the UK and the HK Injunction orders remained intact the effect of which was to freeze the Account, the court was perfectly justified to make the Discovery Order against the Account though, in form, it was held in the name of Transfield ER Maritime.
The Judge also did not accept that confidentiality and privacy were reasons to deny the making of the Discovery Order. As mentioned in Commercial Injunctions by Gee, 5 ed at §22.006 to 22.008, confidentiality may be overridden if the disclosure is needed to make the Mareva relief effective. Here, the English and Hong Kong courts saw it fit to impose a Mareva injunction over the Account of Transfield ER Maritime. By so doing, the courts accepted that Transfield Shipping had been using the Account for its own purpose and disclosure was therefore needed to make the Mareva relief effective. Further, Transfield Shipping had tried to adopt a “catch-me-if-you-can” tactic and ignored both the English and the Hong Kong proceedings. Without the Discovery Order, there was simply no way for BHP Billiton to locate the assets of Transfield Shipping. In such circumstances, confidentiality should give way to the doing of justice between the parties, and the making of the Discovery Order was necessary to give effect to the object of the Mareva injunction and to enable BHP Billiton to identify the assets of Transfield Shipping for the purpose of the execution of the UK and the HK Judgments.
Transfield ER Maritime complained that the information sought in the Discovery Order would prejudice its interests as both BHP Billiton and Transfield ER Maritime were in the shipping industry. However, the information sought should not reveal commercially sensitive materials such as the commercial terms relating to the business undertaken between the Transfield ER Group and its customers, and so the Judge could not see how the revelation of such information would prejudice its commercial interests. In any event, Transfield ER Maritime had allowed Transfield Shipping to use the Account as its operative account, and so the court should not allow Transfield Shipping to hide the whereabouts of its assets by using the bank account of another associated company in the same group. Furthermore, BHP Billiton would be subject to an implied undertaking that the information obtained would be used only for the purposes of the action in question. In such circumstances, there was minimal risk for the misuse of the information obtained.
The Judge also did not accept that the scope of the Discovery Order was too wide. The disclosure sought related to the period between 16/5/2011 (the date of the transfer of the fund into the Account by RTI) and 15/12/2011 (the date when the HK Injunction order was made), which was a period of 7 months prior to the making of the HK Injunction order. As such injunction order was intended to restrain Transfield Shipping from disposing its assets in Hong Kong, the information requested would be necessary to know what had become of the identified asset, including any remission of the asset prior to the date of the HK Injunction order.
In addition to the bank statements, the Master had also ordered HSBC to disclose information on the following matters:
instructions received by it in relation to remittances to the Account and the identity of the remitters of the funds to the Account during the Relevant Period; and
records showing the identities of those persons and/or entities authorised to operate the Account.
Taking into account that the jurisdiction of the court to order discovery arises both as a power ancillary to and in support of a Mareva injunction and as a power in support of the execution of the judgement, one cannot complain that the scope of the discovery is too wide. As the court could not expect any co-operation from Transfield Shipping in providing information about its assets, BHP Billiton, being a judgment creditor, should be entitled to such information with a view to identify the assets of Transfield Shipping and to ascertain whether the assets in the Account belong to Transfield Shipping or Transfield ER Maritime. The Discovery Order was therefore necessary to facilitate the execution of the UK and the HK Judgments.
Finally, the Judge did not agree with Transfield ER Maritime that the Discovery Order should be set aside because of the breach of the undertakings contained in the UK Injunction order. Firstly, such breach might be a ground for the discharge of the ex parte HK Injunction order. But since there was no such discharge application before the court, there was nothing to prevent the court from making the Discovery Order which was only ancillary to the Mareva injunction itself and as a measure to facilitate the execution of the HK Judgment. Secondly, although it was a serious matter that BHP Billiton had not obtained the leave of the English court before instituting the Hong Kong proceedings, the English court had granted retrospective leave to BHP Billiton to have instituted and to continue the Hong Kong proceedings. The absence of leave, at most, only afforded a ground to Transfield Shipping or Transfield ER Maritime to discharge the ex parteMareva injunction, but in the Judge’s judgment, the propriety of the Mareva injunction continued after the granting of the retrospective leave could not be challenged. Hence, there was no reason for the Judge to disturb the Discovery Order granted by the learned Master and the Judge dismissed Transfield ER Maritime’s appeal accordingly. The stay of execution of the Discovery Order was also set aside.
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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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 Court of Appeal issued a Judgment on 12/2/2018 to deal with the cargo owners’ seeking leave to appeal against the High Court’s Judgment reported in our Chans advice/209 last month. [CAMP 38/2017] [2018 HKCA77]
The 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 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 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]
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 Decision on 20/12/2017 dealing with a dispute of US$948,802.05 (as the price of bunkers supplied to a vessel) between a vessel charterer and a bunker supplier. [HCA2265/2016]
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.
To continue our recent series of loss prevention articles, we would like to discuss in this issue the major provisions of the PRC Maritime Code as far as the international carriage of goods by sea is concerned.
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 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]
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$3.6 million? The English Court of Appeal issued a Judgment on 24/2/2016 upholding the High Court’s conclusion but with different reasons. [Case No: A3/2014/1285, 2016 EWCA Civ 101, 2016 WL 00692394]
Following the Hong Kong Court of Appeal’s Judgment dated 11/3/2015 discharging the Mareva Injunctions and the receivership orders (mentioned in our monthly newsletter of Chans advice/171 two months ago), the Hong Kong High Court issued a Judgment on 12/5/2015 to determine the question of who should pay the remuneration to the receivers. [HCMP 1449/2014]
The Hong Kong Court of Appeal issued a Judgment on 20 September 2019 declining to give leave of appeal to Changhong Group in relation to the High Court Decision dated 29 January 2019 (reported in our Chans advice/221). [CAMP197/2019] [2019HKCA1061]
The Hong Kong High Court issued a judgment on 12/4/2016 to dismiss a cargo owner’s action in respect of breaking a barge owner’s tonnage limitation. [HCAJ 178/2014]
The High Court of Hong Kong issued a Judgment on 3/2/2012 concerning which currency (US$ 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/165 (reporting the Hong Kong Court of Appeal holding the Hong Kong forwarder liable to pay US$852,339 plus costs and interest to the Indian bank in the air cargo misdelivery case)? On 19/5/2016, the Court of Final Appeal dismissed the Hong Kong forwarder’s application for seeking leave to appeal. [FAMV Nos 45 & 52 of 2015]
The Hong Kong District Court issued a Judgment on 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 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 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 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).
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 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]
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.
Without even knowing, we have published including this one 200 issues of the Chans Advice. As this is a monthly bulletin, 100 issues took more than 8 years and 200 issues took 17 years to run.
The Hong Kong High Court issued a Decision on 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 English High Court issued a Judgment on 2/4/2014 holding the Hague Visby Rules instead of the Hague Rules (as incorporated by a Paramount Clause) to apply to a shipment ex Belgium. [Case No: 2012 Folio 102, 2014 EWHC 971 Comm, 2014 WL 1219313]
The 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.
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.
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 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]
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)]
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 High Court of Hong Kong issued a Decision on 31/8/2018 concerning a feeder company’s claim against a shipping company’s lawyer for wasted costs. [HCA1919/2016] [2018HKCFI1879]
The English Commercial Court issued a Judgment on 7/11/2012 holding a carrier liable for US$458,655.69 owing to its issuing 13 clean Bills of Lading for a consignment of steel pipes which had some pre-shipment damage. [2012 EWHC 3124 (Comm)]
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]
There are three ways of fulfilling the deposit requirement of the Ministry of Transport (“MOT”) in the People’s Republic of China (“PRC”) for your NVOCC license.
The Hong Kong 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]
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.
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.
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]
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.
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 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 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 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 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 High Court of Hong Kong issued a Judgment on 1/11/2012 ordering the USA/Canada owners of a cargo (a yacht) to put up HK$250,000 as further security for costs in their legal action against the ship owners. [HCAJ 177/2009]
The Hong Kong High Court issued a 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]
The English Court of Appeal issued a Judgment on 13/12/2017 dealing with a cargo damage claim of EUR2,654,238 and a charter hire claim of USD1,012,740 in connection with a NYPE charterparty. [2017 EWCA Civ 2107] [2017 WL 06343564] [Case No. A3/2016/4770]
The High Court of Hong Kong issued a 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]
The High Court of Hong Kong issued a Judgment on 22/5/2017 holding that the District Court has jurisdiction to determine bill of lading and bailment cases. [HCAJ 150/2014]
The Hong Kong High Court issued a 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 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’s Judgment dated 11/4/2008 explained some legal principles relating to whether indemnity claims are allowed by in rem legal actions against vessels. [CACV 257/2007]
The Hong Kong High Court issued a Decision on 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]
As reported in our Chans advice/170 dated 27/2/2015, the English High Court on 14/10/2014 held CSAV’s bill of lading’s English jurisdiction clause as an exclusive jurisdiction clause. On 23/4/2015, the English Court of Appeal issued its Judgment reaching the same conclusion. [Neutral Citation No: 2015 EWCA Civ 401, Case No: A3/2014/3584]
The Hong Kong Court of Appeal issued a Judgment on 17/7/2014 holding a Hong Kong forwarder liable to pay US$852,339 plus costs and interest (as damages for conversion) to an Indian bank in an air cargo misdelivery case. [CACV 282/2012]
The Hong Kong High Court issued a 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]
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 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]
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.
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]
In our newsletter last month, we talked about some essential terms in house Air Waybills. In this issue, as the continuation of the loss prevention exercise for freight forwarders, we would like to discuss some essential terms in house Bills of Lading.
The 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]
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 United States District Court (Southern District of New York) issued an order on 29 November 2021 to deny a shipping company’s motion to rely on the Singapore jurisdiction clause in its bill of lading. [1:19-cv-5731-GHW-RWL]
The 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).
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 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]
We refer to our Chans advice/251 last month reporting the Hong Kong High Court’s decision to sentence Mr Ma (Hyundai Hong Kong’s former deputy general manager) to 15 years’ imprisonment. The High Court issued another Judgment on 27 April 2022 holding Mr Ma liable to compensate HK$387,655,303.70 to Hyundai Hong Kong. [HCA 619/2016] [2022 HKCFI 1153]
The Hong Kong 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]
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 Decision on 15 November 2018 concerning the tragic collision between the cargo vessel CF Crystal and the tanker Sanchi, which happened on 6 January 2018 and led to the death of all the officers and crew of the Sanchi. [HCAJ3/2018] [2018HKCFI2474]
The Hong Kong High Court issued a 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 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 Judgment on 22/11/2013 concerning an unless order in relation to a freight forwarder’s claims for outstanding freight charges of HK$4,427,336. [HCA 1755/2011]
The 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 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]
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.
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 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 English High Court issued a Judgment on 15/5/2015 maintaining an anti-suit injunction to restrain the Xiamen Maritime Court’s legal proceedings in breach of a London arbitration agreement. [Case No: 2015-515], [2015 WL 2238741], [2015 EWHC 1974 COMM]
The Hong Kong Court of Appeal issued a Judgment on 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 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]
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]
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 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 on 18/11/2011 issued a Judgment concerning a quite confusing situation that three different laws (the USA, the PRC, and Hong Kong) might apply to the one shipment. [HCAJ 198/2009]
The Hong Kong High Court issued a Decision on 15 March 2021 converting a domestic Mareva injunction into a worldwide Mareva injunction in a shipowner’s freight and demurrage claim against a charterer. [HCMP 1190/2020] [2021 HKCFI 680]
The 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:
Remember our Chans advice/171 of 31/3/2015 reporting that the Hong Kong Court of Appeal discharged the Mareva injunctions against Hin-Pro? The Hong Kong Court of Final Appeal issued a Judgment on 14/11/2016 reversing the Court of Appeal’s Judgment of 11/3/2015. [FACA No. 1 of 2016]
The Hong Kong 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 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]
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 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.
Cargo Misdelivery The Hong Kong High Court issued a Judgment on 12/1/2016 refusing to grant a shipowner an anti-suit injunction because of the shipowner’s delay in applying for the anti-suit injunction. [HCMP 2399/2015] By an Originating Summons dated 25/9/2015 (“OS”), the owner of the vessel MV Zagora (“Vessel”) applied for an anti-suit injunction against a […]
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]
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 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]
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.
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 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]
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 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 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 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 18/12/2014 in connection with a cargo misdelivery claim of US$27,835,000 involving also anti-suit injunction and worldwide freezing order issued by the English Court. [CACV 243/2014 & HCMP 1449/2014]
In 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]
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.
We mentioned in our Chans advice/225 that the limit of liability under the Montreal Convention for carriage of cargoes was increased from 19 SDR/kg to 22 SDR/kg of the gross weight of the cargoes effective on 28 December 2019. We have recently received some forwarders’ request asking us to talk about the major terms in the Montreal Convention. We in this issue would like to introduce the Montreal Convention’s major provisions as follows:
The Hong Kong High Court issued a 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 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]
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]
In Chans advice/215, we reported that the Hong Kong High Court refused Changhong Group’s application to stay the Hong Kong proceedings; and in Chans advice/234, we reported that the Court of Final Appeal dismissed Changhong Group’s application for leave to appeal. On 7 April 2022, the Hong Kong High Court issued a Decision dealing with Changhong Group’s action to re-litigate its stay application. [HCAJ 3/2018] [2022 HKCFI 920]
The 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]
In Chans advice/14 dated 28/2/2002, we discussed this topic 15 years ago. In its Judgment dated 16/10/2017, the District Court of New South Wales in Australia had to deal with, inter alia, a malpractice that a forwarder issued its own house B/Ls but signed off with as agent for China Ocean Shipping, Pacific International Lines, Mitsui O.S.K. Lines Limited or Orient Overseas Container Line without authority. [2017 NSWDC 279]
The Hong Kong High Court issued a Decision on 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 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 High Court issued a Judgment on 9/4/2018 dealing with a cargo total loss case in which a NVOC in Malta was wrongly sued (because it had the same name as that of the correct NVOC in BVI). [HCAJ 65/2016], [2018 HKCFI 699]
The Hong Kong 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 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 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 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]
