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]
Background
The action concerned a collision at sea between Changhong Group’s cargo vessel, the CF Crystal, and a tanker owned by Bright Shipping, the Sanchi. The collision took place at around 19:50 hours on 6 January 2018 at a location about 125 nautical miles from Changjiang Kou Light Ship in the East China Sea.
The CF Crystal flied the Hong Kong flag and her port of registry was Hong Kong. She was laden with nearly 64 m.t. of sorghum cargo and was on a voyage from Port Kalama in the USA to Port Machong, Guangdong, PRC. Her crew were all Chinese nationals. She was managed by Changfeng Shipping, a company incorporated in Hong Kong. Changhong Group was a Hong Kong incorporated company with a registered office in Hong Kong.
The Sanchi flied the Panamanian flag. Her crew were Iranian and Bangladeshi. She was loaded with 115,000 tonnes of natural gas condensate and was on her way from Iran to South Korea. She was managed by an Iranian company, National Iranian Tanker, which had a representative office in Shanghai. Bright Shipping was incorporated in Belize. The evidence before the court did not show that Bright Shipping had any business operation other than owning the Sanchi.
The Sanchi exploded immediately upon collision and both vessels caught fire. The CF Crystal managed to reverse her engine and escape the fire. Her crew abandoned the vessel but returned to successfully extinguish the fire on board. Afterwards, she safely proceeded to and berthed at Zhousan, Zhejiang, PRC.
The Sanchi kept burning and drifting after the collision. Eventually, she sunk at a location around 151 nautical miles southeast of the point of collision on 14 January 2018. Tragically, none of her officers or crew survived the accident. Pollution resulted from the collision in the form of spilt bunkers and natural gas condensate. Some of the pollutant made landfall in the PRC as well as Japan.
The Mainland authorities had been heavily involved in all aspects of the aftermath of the collision, including investigation and pollution issues. A multi-national task force, led by the Shanghai Maritime Safety Administration (MSA) (with participants from Hong Kong, Iran and Panama), carried out an investigation. On 11 May 2018, a 191 page report of the joint investigation dated 10 May 2018 (Report) was submitted to the International Maritime Organisation. The Report is publicly available via the website of the Organisation.
The collision was followed by a number of legal actions, including Changhong Group’s proceedings against Bright Shipping and National Iranian Tanker in the Shanghai Maritime Court, and the Hong Kong legal action in question. These inter-ship actions were commenced simultaneously on 9 January 2018.
On 9 January 2018, Changhong Group also applied to establish in the Shanghai Maritime Court two limitation funds, one for personal injury and one for property.
In addition, the insurers of the CF Crystal’s cargo brought an action in the Shanghai Maritime Court against, Changhong Group, Bright Shipping and National Iranian Tanker in respect of the loss of cargo on the CF Crystal. Further, there were emergency response and pollution related claims, two of such actions involved Bright Shipping.
Bright Shipping did not submit to the jurisdiction of the Mainland court in any of these proceedings.
The Hong Kong legal action in question was an in personam collision action brought by Bright Shipping against Changhong Group. There was no dispute that the jurisdiction of Hong Kong court was invoked by Bright Shipping as of right, having served the legal proceedings on Changhong Group at its registered address in Hong Kong. However, Changhong Group made an application for stay of the Hong Kong legal proceedings on the ground of forum non conveniens.
Issues
What underpinned the jurisdictional dispute before the Hong Kong court was the very different tonnage limitation in the Mainland and in Hong Kong. The relevant monetary limit applied in Hong Kong is roughly 3.6 times of those in the Mainland.
Changhong Group contended that: (a) the overwhelming “centre of gravity” of the case in question was in Shanghai, the Shanghai Maritime Court was an available and experienced specialist court which was dealing with pollution and civil claims arising from the collision and would apply various legislation based on international conventions, and it would not be reasonably open to the Hong Kong court to hold that substantial justice could not be obtained in the Shanghai Maritime Court; and (b) the questions of inter-ship liability and assessment of Changhong Group’s loss were going to be tried in its proceedings against Bright Shipping in the Shanghai Maritime Court in any event (lis alibi pendens).
Bright Shipping’s case was that the collision took place on the high seas and there was no natural forum to determine such a collision. Changhong Group’s case did not get pass the stage 1 requirement to establish that the Shanghai Maritime Court was “clearly and distinctly” more appropriate than the Hong Kong court to determine the inter-ship disputes: see The “Spiliada” [1987]. Further, even if Changhong Group succeeded in discharging its burden for the stage 1 analysis, the significant difference in tonnage limitation applied in Hong Kong and the Mainland was a decisive personal juridical advantage in favour of refusing a stay.
Law
The Spiliada is the seminal authority on forum non conveniens (FNC). There are many authorities which contain a distillation of the principles expounded in that case. The Judge referred to the summary adopted by the Court of Final Appeal in SPH v SA (2014) 17 HKCFAR 364 :
“1. The single question to be decided is whether there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of an action ie in which the action may be tried more suitably for the interests of all the parties and the ends of justice? 2. In order to answer this question, the applicant for the stay has to establish that first, Hong Kong is not the natural or appropriate forum (‘appropriate’ in this context means the forum has the most real and substantial connection with the action) and second, there is another available forum which is clearly or distinctly more appropriate than Hong Kong. Failure by the applicant to establish these two matters at this stage is fatal. 3. If the applicant is able to establish both of these two matters, then the plaintiff in the Hong Kong proceedings has to show that he will be deprived of a legitimate personal or juridical advantage if the action is tried in a forum other than Hong Kong. 4. If the plaintiff is able to establish this, the court will have to balance the advantages of the alternative forum with the disadvantages that the plaintiff may suffer. Deprivation of one or more personal advantages will not necessarily be fatal to the applicant for the stay if he is able to establish to the court’s satisfaction that substantial justice will be done in the available appropriate forum.”
Location of the collision
The collision took place outside the PRC’s territorial waters. Although the location lied within international waters, it was within the PRC’s exclusive economic zone (EEZ) pursuant to the United Nation Convention on the Law of the Sea (UNCLOS) to which the PRC acceded in 1997. Article 3 of UNCLOS provides that the breadth of the territorial sea does not exceed 12 nautical miles. The collision position was thus far beyond the territorial seas of the PRC. Article 55 of UNCLOS defines the EEZ as an area beyond and adjacent to the territorial sea. Article 57 provides that the breadth of the EEZ shall not extend beyond 200 nautical miles. The point of collision also lied within the EEZ of Korea and Japan. It was within 155 miles of Jeju, South Korea and 190 miles of Me Shima, Japan.
Appropriate forum
Bright Shipping submitted that there was no natural forum for a collision in international waters. Hong Kong is not the natural forum for the inter-ship litigation. However, Bright Shipping was entitled to bring the action in question as of right given that Changhong Group was a Hong Kong company.
Bright Shipping relied on the dicta of Lord Goff in The Spiliada :
“ [T]here are cases where no particular forum can be described as the natural forum for the trial of the action. Such cases are particularly likely to occur in commercial disputes, where there can be pointers to a number of different jurisdictions … or in Admiralty, in the case of collisions on the high seas. I can see no reason why the English court should not refuse to grant a stay in such a case, where jurisdiction has been founded as of right.”
The Judge was also referred to Meeson and Kimbell, Admiralty Jurisdiction and Practice, 5th edn, and the observations made by Sheen J in The “Coral Isis” [1986] 1 Lloyd’s Rep 413 :
“ The same cannot be said of an action arising out of a collision in international waters between two ships of different nationality. It must frequently happen that when such a collision has occurred no Court can properly be described as “the natural forum” or even “a natural forum”. The reasons are self-evident. The two ships may be registered in different countries; their owners or managers may be companies incorporated in yet other countries; the master and crew may be nationals of still different countries; after the collision the ships may go into repair yards in other countries …”
The Judge did not take the view that the occurrence of the collision in international waters necessarily precluded the Hong Kong court from concluding that Shanghai was clearly and distinctly more appropriate than Hong Kong as the forum for the inter-ship action. On the other hand, it was clearly an important factor to evaluate whether Shanghai had the most real and substantial connection with the inter-ship action.
The Judge referred to the dicta of Recorder Ma SC (as he then was) in Rambas Marketing Co LLC v Chow Kam Fai David [2001] 3 HKC 250 :
“ The burden is on the defendant to show that the courts of Nevada are clearly or distinctly more appropriate than the Hong Kong courts for the trial of the action. Mere convenience is not enough nor is it enough simply to point to factors which connect a case or the parties to any particular jurisdiction. The approach in forum non conveniens applications is not just an exercise in loading up with factors which point to any particular jurisdiction. The court is required to focus on the appropriateness of a forum from the point of view of the trial of the action. This would in part explain the need to identify the particular court in favour of which the action is to be stayed, for it is to the appropriateness of that court for the trial that the court’s attention is directed.”
The evaluation required the court to focus on the inter-ship action. The primary issues for trial in such action were (a) the inter-ship apportionment of liability for the collision and (b) assessment of the parties’ respective quantum of loss.
On the liability issue, it could not be seriously doubted that with the availability of the Voyage Data Recorder (VDR) data from the Sanchi (those of the CF Crystal was lost) and the Report, which contains a detailed summary of the evidence collected from the investigation, the most important evidence was readily available in documentary form.
In The “Peng Yan” [2008] 5 HKLRD 418, Reyes J summarised the approach of the court in assessing liability in a collision that was investigated by maritime authorities :
“ … I doubt that much (if any) evidence can usefully be obtained from the crew many months after the event. In contrast, the collision was thoroughly investigated by the MD1 and MSA shortly after the accident occurred. I suspect that the evidence supporting their reports (including records of interviews with The Peng Yan third officer) will be more useful to any trial judge. That body of evidence from the MD and MSA will likely be largely agreed for the purposes of trial. That will mean that the task of the Court will essentially be hearing submissions on how such evidence is to be assessed from the standpoint of the law generally and the International Regulation for the Prevention of Collisions at Sea 1972 specifically. That body of evidence would likely be available to both the Hong Kong and Ningbo Courts.” 1 Hong Kong Marine Department.
The decision of Reyes J was affirmed by the Court of Appeal: [2009] 1 HKLRD 144, per Ma CJHC :
“ [I]t was far from clear in any event what relevant testimony would come from crew members. The main evidence going to the issue of the respective fault of both ships would come from the reports of the incident compiled by the Hong Kong Marine Department and the Shenzhen Maritime Safety Administration.” “ Here, the careful analysis undertaken by the Judge directed at what was likely to occur at trial (which analysis was not really challenged on appeal) clearly justified his conclusion it could not be shown that the Ningbo Maritime Court was clearly or distinctly the more appropriate forum for the trial of the disputes.”
As regards the assessment of damages, Bright Shipping’s suggestion that all of the evidence on quantum was likely to be available to the Hong Kong court was not contradicted. The vast majority of contracts, invoices and receipts concerning the claim of the Sanchi for loss arising from the collision were in the English language. The evidence of the value of the Sanchi was likely to come from international experts adopting a market comparables approach and, in relation to the CF Crystal, international surveyors (including surveyors based in Hong Kong) who had inspected the vessel at a shipyard on 1 February 2018.
Changhong Group’s case that Shanghai Maritime Court was clearly and distinctly the more appropriate forum rested heavily on lis alibi pendens. In addition, a number of factors had been identified by Changhong Group, as pointing in favour of Shanghai Maritime Court as the appropriate forum. These factors included the lack of commercial operation in Hong Kong in respect of both Changhong Group and Changfeng Shipping; the CF Crystal was managed by the Shanghai operation of Changfeng Shipping; and the CF Crystal’s crew, as well as 2 independent witnesses, were based in the Mainland.
The Judge did not believe that these factors assisted Changhong Group’s case. It could readily be seen that it would be more convenient to Changhong Group that the inter-ship action be tried in the Mainland, but it did not follow that Shanghai was clearly and distinctly more appropriate than Hong Kong. It had to be said that the location of witnesses, in the absence of specificities about the relevance and importance of their evidence, was of little weight. Further, the location of witnesses is rarely a real obstacle. In the worst case, evidence might be given via video link. Furthermore, the Hong Kong court is well-placed and experienced in dealing with cases involving Mainland witnesses, documents in Chinese and Mainland law.
Lis alibi pendens
The evidence of Changhong Group was that Mainland court had, and had accepted, jurisdiction over the collision, being one which took place within the PRC’s EEZ. A jurisdictional challenge was indeed made by National Iranian Tanker before the Shanghai Maritime Court, which was rejected. The decision of the Shanghai Maritime Court had been upheld on appeal.
However, Bright Shipping submitted that there was inconsistency between the relevant law of the Mainland and the provisions of UNCLOS (in particular, Articles 55, 56 and 58 which set out the specific legal regime over the rights of exploration, exploitation and conservation of natural resources of the EEZ by costal states and the rights of other states to lawful use of the sea, including the freedom of navigation), and that the Shanghai Maritime Court did not have jurisdiction over the inter-ship claim as a matter of international law.
In The “Chou Shan” [2014] FCAFC 90, §102, the Full Court of the Federal Court of Australia (“Full Court”) held in respect of a collision that took place in the EEZ of the PRC that the lex causae was not the PRC law. Whilst noting that the law of the coastal state applied if the activity giving rise to damage was “closely connected with the exercise [of a state’s rights over the EEZ under UNCLOS]” (§90), the Court held that the activity concerned was the “freedom of both parties to navigate under Arts 58 and 90” and it was not relevant that pollution was caused by the collision. It was held that the “closest and most direct analogue” to a collision in the EEZ was a collision “on the high seas”, in respect of which the general maritime law as administered in the forum applies (§92).
Bright Shipping also submitted that any judgment obtained from the Shanghai Maritime Court would not be recognised in Hong Kong or common law jurisdictions applying similar conflict of laws rules. Apart from the lack of jurisdiction over the inter-ship claim, the Shanghai Maritime Court had not established in personam or in rem jurisdiction over Bright Shipping. Thus, the Shanghai Maritime Court’s jurisdiction would not be recognised as a matter of Hong Kong conflicts rules, and its judgment would not be enforceable.
As a matter of general principle, multiplicity of proceedings is not of itself a material factor for consideration of FNC but there might be exceptional cases where such proceedings may cause unusual hardship to a defendant: see Nan Tung Bank v Wangfoong [1999] 2 HKC 606, CA. Further, it is not unusual for there to be parallel proceedings in collision cases. In The “Peng Yan”, Ma CJHC observed that :
“ Further, as cases like The Kapitan Shvetsov (at p.217(2)) and Caspian Basin Specialised Emergency Salvage Administration v Bouygues Offshore SA (No 4) [1997] 2 Lloyd’s Rep 507 (at p.525(2)) show, the existence of parallel proceedings in admiralty matters is by no means unusual, nor should the mere existence of such by itself incline a court towards staying an action on the ground of forum non conveniens …”
In the case in question, the inter-ship proceedings before the Shanghai Maritime Court had not been served on Bright Shipping. The proceedings were therefore at the initiating stage, and of little relevance. Whilst the Judge was concerned about the possibility of inconsistent findings if the inter-ship dispute was litigated in 2 jurisdictions, this did not of itself render Shanghai the appropriate forum, nor would it constitute unusual hardship to Changhong Group in the context of a collision in international waters.
Finally, Changhong Group relied heavily on The “Chou Shan”, which was also a case involving a collision in the EEZ of the PRC. The jurisdiction of the Australian court was invoked by arresting “Chou Shan” in Australia. However, the Judge did not believe that The “Chou Shan” was of much assistance to Changhong Group’s case. Most importantly, the Australian court applied a rather different test from that of The “Spiliada” for the stay application, namely, whether Australia was a “clearly inappropriate forum”. As the Full Court explained, under the Australian test “[t]he focus is upon the chosen local forum – its advantage and disadvantages, rather than on a true comparative analysis”. It appeared that lis alibi pendens was a major factor in the Full Court’s determination to stay the Australian proceedings in favour of the Ningbo Maritime Court in the Mainland.
There was considerable force in Changhong Group’s submission that the undesirability of the same issues being tried in different courts at the same time was so obvious and should be avoided. On the other hand, the test applied by the Hong Kong Court is different. It appears that under Australian law, it is prima facie vexatious and oppressive for identical issue or the same controversy to be litigated in different countries, and that the courts “should strive” to avoid that situation.
In addition to the fact that the Shanghai Maritime Court inter-ship proceedings had not been served on Bright Shipping, it should not be overlooked that Changhong Group was sued in its place of incorporation. The Judge was unable to see any unusual hardship to Changhong Group in the circumstances of the case in question.
For these reasons, The Judge was driven to the conclusion that Changhong Group had failed to discharge its burden for the stage 1 analysis and its application had to fail.
The Judge also mentioned very briefly his view on 2 factors which would have led him to decline a stay in the case in question in the stage 2 analysis. Firstly, the significant disparity in the tonnage limitation. The Judge was inclined to agree with Bright Shipping that the Hong Kong High Court was bound by Court of Appeal authorities to the effect that a significant difference in tonnage limitation applied in Hong Kong and the competing jurisdiction was a very important, if not decisive, personal juridical advantage in favour of refusing a stay: see The “Adhiguna Meranti” [1987] HKLR 904, per Hunter JA and The “Kapitan Shvetsov” [1997] HKLRD 374, per Litton VP. Secondly, all the PRC claims subject to limitation had to be brought against the limitation funds within a time limit, which had expired on 9 June 2018. Hence, an inter-ship action by Bright Shipping brought in Shanghai would not result in an effective remedy. The Judge did not believe that Bright Shipping could be criticised for allowing the time limit to lapse or for forum shopping. Apart from the lack of natural forum for the collision, it was entitled to bring the legal proceedings against Changhong Group at its place of incorporation, and to take into account the disparity in the tonnage limitation.
In the premises, The Judge did not believe that substantial justice would be done in Shanghai.
Conclusions
For these reasons, the Changhong Group’s application was dismissed.
Please feel free to contact us if you have any questions or you would like to have a copy of the Decision.
23/F, Excel Centre, 483A Castle Peak Road, Lai Chi Kok, Kowloon, Hong Kong 香港九龍荔枝角青山道483A卓匯中心23樓 Tel: 2299 5566 Fax: 2866 7096 E-mail: gm@smicsl.com Website: www.sun-mobility.com A MEMBER OF THE HONG KONG CONFEDERATION OF INSURANCE BROKERS 香港保險顧問聯會會員
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.
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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]
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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]
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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.
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 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 25/8/2017 to determine whether the Hong Kong Court or the Yangon Court was the natural and appropriate forum in an in rem legal proceedings in relation to a cargo damage claim of USD143,852.02. [HCAJ 101/2015]
The Hong Kong 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]
Are Standard Trading Conditions (“STC”) equivalent to the House Bill of Lading (“HB/L”) terms or the House Air Waybill (“HAWB”) terms? We have been frequently asked this question by our forwarder clients.
The 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]
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 Hong Kong High Court issued a Decision on 11 May 2021 staying a South Korea container terminal’s legal action in Hong Kong with respect to its allision claims of more than US$90,000,000 against the owners of a container ship. [HCAJ 31/2020] [2021 HKCFI 1283]
The Hong Kong High Court issued a judgment on 12/4/2016 to dismiss a cargo owner’s action in respect of breaking a barge owner’s tonnage limitation. [HCAJ 178/2014]
The Hong Kong High Court issued a Decision on 25 February 2019 dealing with Changhong Group’s delayed application for leave to appeal in relation to the collision case reported in our Chans advice/218 and Chans advice/215. [HCAJ3/2018, 2019HKCFI542]
The Hong Kong High Court issued a Decision on 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 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 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]
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 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 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]
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 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]
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 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]
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]
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]
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]
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 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 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 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 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 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 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 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 decision on 31 May 2022 ordering a South Korean shipowner to provide a Hong Kong shipowner with security for costs in the amount of HK$600,000 in relation to a ship collision case that happened in Hong Kong during the super typhoon Hato in August 2017. [HCAJ 80-85/2019] [2022 HKCFI 1631]
In 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 our Chans advice/169 last month, we mentioned the English Court’s Judgment dated 14/10/2014 holding CSAV’s bill of lading’s English jurisdiction clause to be an exclusive jurisdiction clause. In this issue, let’s look at that English High Court Judgment [2013 Folio No 1248, 2014 EWHC 3632 Comm, 2014 WL 5113447] issued by Justice Cooke in detail.
The Hong Kong High Court issued a Judgment on 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 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 ruling on 2/12/2016 dealing with a shipowner’s interrogatory application in relation to an uncollected cargo case. [HCAJ 118/2015]
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 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]
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 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]
To continue our recent series of loss prevention articles, we would like to discuss in this issue the major provisions of the PRC Maritime Code as far as the international carriage of goods by sea is concerned.
The 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]
Remember our Chans advice/163 about the English High Court’s Judgment holding the Hague Visby Rules instead of the Hague Rules to apply to the cargo damage claim case in excess of US$3.6 million? The English Court of Appeal issued a Judgment on 24/2/2016 upholding the High Court’s conclusion but with different reasons. [Case No: A3/2014/1285, 2016 EWCA Civ 101, 2016 WL 00692394]
The Hong Kong Court of Appeal issued a Judgment on 18/12/2014 in connection with a cargo misdelivery claim of US$27,835,000 involving also anti-suit injunction and worldwide freezing order issued by the English Court. [CACV 243/2014 & HCMP 1449/2014]
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 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]
What is the difference between a straight bill of lading and an order bill of lading? This can be illustrated in the Wuhan Maritime Court’s Judgment dated 17 September 2019 concerning a cargo misdelivery claim of US$89,838.
The Hong Kong High Court 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]
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.
SMIC has finally jumped on the bandwagon of the cyber media rush by its presence on the Facebook. We would have done this for a long time had it not been for the daily chores and that we were then not too convinced of its value in the commercial world. Thereafter, it becomes obvious that more and more firms are capitalizing on this new media; and unlike the old economies where information flow was imperfect, consumers of the new economies tend to prefer looking up for information by themselves from the web, or augmenting information they are given.
In our last issue of Chans advice/253, the Hong Kong District Court’s judgment dated 26 April 2022 mentioned a case authority of China Ocean v Mitrans Shipping. We would like to discuss this judgment dated 11 July 1995 of the Hong Kong Court of Appeal in our Chans advice this month. [1995 No. 71 Civil]
