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]
Introduction
The defendant Tai Shing Transport was carrying on the business in the provision of logistics services whereas the plaintiff Airsupply International Logistics was providing import and export air freight services.
Airsupply International Logistics claimed that Tai Shing Transport failed to pay the airfreight charges from July to August 2017 as demanded by Airsupply International Logistics’ six invoices totalling HK$442,332.52 (“the Invoices”) except a partial payment made on 17 November 2017 in the sum of HK$2,332.52. The outstanding amount stood at HK$440,000.
Master Jacqueline Lee made an Order dated 3 December 2019 (“the Order”) acceding to Airsupply International Logistics’ application for summary judgment, and final judgment in the sum of HK$440,000 was entered against Tai Shing Transport with costs.
Tai Shing Transport sought to appeal against the Order.
The respective pleaded cases of the parties
Tai Shing Transport denied any business relationship with Airsupply International Logistics; it denied having made any request for any service to Airsupply International Logistics. It further denied having been provided with any service by Airsupply International Logistics. It lastly denied having received any invoices from Airsupply International Logistics and made any partial payment to Airsupply International Logistics. Essentially, Tai Shing Transport shifted all the blame on one Mr Chung who allegedly dealt with Airsupply International Logistics without its consent and authority.
The directors of Tai Shing Transport were Mr Ho and his wife Madam Tsao. Mr Chung had previously worked in freight forwarder business.
In or about late 2015, Mr Chung proposed to Mr Ho and Madam Tsao that Tai Shing Transport should attempt to start freight forwarder business with his consignor clientele of his former employer. He suggested that Tai Shing Transport could contract other freight forwarders to arrange the carriage and transportation of the goods to the consignees of the consignors. Mr Chung reassured to them that no payment was required to be paid by Tai Shing Transport to the freight forwarders before the consignors settled their payment to Tai Shing Transport.
Tai Shing Transport accepted the proposal of Mr Chung in reliance of his representations. Tai Shing Transport agreed to authorize Mr Chung to carry on the freight forwarder business under the name of Tai Shing Transport. Mr Chung agreed to account to Mr Ho and Madam Tsao the full details of all the transactions. In these circumstances, Tai Shing Transport commenced its freight forwarder business managed by Mr Chung in December 2015.
However, in August 2016, due to the failure of Mr Chung to give a full account of the freight forwarder business and some cash flow problems, Tai Shing Transport expressly instructed and ordered Mr Chung to stop all such business and he ceased to be authorized to carry on such business on behalf of Tai Shing Transport any further. Mr Chung agreed.
On 27 September 2017, Tai Shing Transport received a demand letter from a freight forwarder demanding payment of a sum of HK$11,293,398.26 being outstanding transportation service charges.
Tai Shing Transport then confronted Mr Chung with the demand and he admitted that after being expressly instructed to cease all freight forwarder business, he nevertheless continued such business and contracted with other freight forwarders including Airsupply International Logistics under the name of Tai Shing Transport without Tai Shing Transport’s authority, knowledge and consent.
Tai Shing Transport’s alternative plea was that Mr Chung contracted with Airsupply International Logistics to render transportation services to the consignors without the authority, knowledge and consent of Tai Shing Transport.
Tai Shing Transport’s another alternative plea was that Airsupply International Logistics rendered such purported transportation service directly to the consignors and/or Mr Chung but not Tai Shing Transport.
Airsupply International Logistics pointed out that Mr Chung on behalf of Tai Shing Transport started engaging Airsupply International Logistics for its airfreight services in April 2016. From 15 April 2016 to 25 July 2017, Mr Chung placed altogether 7 shipment orders (“the Previous Orders”). The Previous Orders were duly completed and Airsupply International Logistics issued 7 invoices for those transactions. Tai Shing Transport duly settled all those 7 invoices.
From 31 July to 7 August 2017, Airsupply International Logistics received 6 shipment orders from Mr Chung by way of emails. These six shipment orders (“the Subject Orders”) were the subject transactions covered by the Invoices of HK$442,332.52.
Airsupply International Logistics pleaded that Mr Ho only informed Airsupply International Logistics of the termination of the employment of Mr Chung with Tai Shing Transport by his email dated 15 March 2018 (“the Email”). Prior to that, Airsupply International Logistics relied on the representations of Tai Shing Transport that Mr Chung dealt with Airsupply International Logistics as General Manager of Tai Shing Transport.
Analysis
The central issue was whether Mr Chung had the authority to place the Subject Orders with Airsupply International Logistics and procure its freight forwarding services. If Mr Chung did not have the actual authority, Airsupply International Logistics relied on his apparent authority.
It was not disputed that at the outset Tai Shing Transport expressly gave Mr Chung the authority to carry on freight forwarding business in the name of Tai Shing Transport. In doing so, Mr Chung had to contact freight forwarders to arrange carriage of goods for the consignors whom Mr Chung knew. Tai Shing Transport did not challenge the validity of the Previous Orders. Nor did it allege that those transactions should be set aside and the payments made to Airsupply International Logistics should be refunded.
The key question was whether Tai Shing Transport could discharge its onus to show that there was at least a triable issue as to whether such an authority had been revoked before the Subject Orders were placed.
On this critical issue, the evidence of Tai Shing Transport was unsatisfactory. The evidence relating to the alleged revocation was tenuous. In the affirmation of Madam Tsao, the exact identity of the individual who allegedly told Mr Chung to cease the freight forwarding business in August 2016 was even not disclosed. It must be apparent to Tai Shing Transport that the transactions then handled by Mr Chung would not be terminated immediately upon the alleged revocation of his authority. Alarmingly, Tai Shing Transport did not find it necessary to follow up such transactions or at the very least made enquires with Mr Chung as to whether there were any outstanding matters of the freight forwarding business. The Judge found it unreasonable for Tai Shing Transport to do nothing after the alleged revocation and was content to give Mr Chung a free hand to wind down the business especially when its financial interest was at stake.
In the Email, Mr Ho merely told Airsupply International Logistics that Mr Chung was dismissed in December 2017 but said nothing about the alleged revocation in August 2016, which should be more relevant to the validity of the Subject Orders.
The Judge could accept that such a revocation could be made orally. However, apart from the bald assertion, there was a glaring lack of collaborative evidence. The Judge was unable to accept the alleged revocation on such evidence and that Tai Shing Transport had shown a triable issue as to whether Mr Chung ceased to have actual authority to contract with Airsupply International Logistics by the Subject Orders in July and August 2017.
Even if there was a triable issue as to actual authority, the Judge would accept the submission of Airsupply International Logistics that it was entitled to rely on the rule in Turquand’s case. Mr Chung had the apparent authority to place the Subject Orders with Airsupply International Logistics rendering Tai Shing Transport liable for the Invoices.
The leading authority in the law of apparent/ostensible authority is Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Limited and Anor. [1964] 2 QB 480. At pp. 505 – 506, Diplock LJ set out the following four conditions which must be fulfilled to entitle a contractor to enforce against a company a contract entered into on behalf of the company by an agent who had no actual authority to do so:
(a) that a representation that the agent had authority to enter on behalf of the company into a contract of the kind sought to be enforced was made to the contractor; (b) that such representation was made by a person or persons who had ‘actual’ authority to manage the business of the company either generally or in respect of those matters to which the contract relates; (c) that he (the contractor) was induced by such representation to enter into the contract, that is, that he in fact relied upon it; and (d) that under its memorandum or articles of association the company was not deprived of the capacity either to enter into a contract of the kind sought to be enforced or to delegate authority to enter into a contract of that kind to the agent.
In the case in question, Tai Shing Transport’s consent to Mr Chung’s due completion of the transactions in respect of the Previous Orders on its behalf gave rise to a representation to Airsupply International Logistics that Mr Chung did have the authority to enter on behalf of Tai Shing Transport into such contracts for carriage/transportation services with Airsupply International Logistics.
The effect of such a representation was continued to be relied upon by Airsupply International Logistics when it completed the Subject Orders, which were no different from the Previous Orders in nature. There was nothing to cast doubt on the authority of Mr Chung.
There was no suggestion, let alone evidence, that Airsupply International Logistics had any knowledge of the alleged revocation of authority in August 2017.
The representation came from Tai Shing Transport and not just by Mr Chung himself. It sufficed for the purpose of establishing apparent/ ostensible authority.
The Judge came to the conclusion that Tai Shing Transport had failed to show any triable issue as to the authority of Mr Chung at the material time. It was clear to the Judge that Mr Chung did have the actual or apparent authority to place the Subject Orders with Airsupply International Logistics to procure its carriage/transportation services on behalf of Tai Shing Transport. Tai Shing Transport was hence liable to pay for the outstanding amount of the Invoices.
Tai Shing Transport raised three other issues.
First, Tai Shing Transport submitted that Airsupply International Logistics’ pleaded case was not a contractual claim and there was not an express plea of a contract. Tai Shing Transport further relied on the assertion of Airsupply International Logistics that the booking forms or shipping orders pertaining to the Subject Orders were not contractual documents. The court could not, thus, give judgment on the basis that there was a contractual relationship between the parties.
The Judge found no merit in these submissions. It was clearly pleaded that Airsupply International Logistics provided services in its ordinary course of business pursuant to the requests of Tai Shing Transport and the claim was for the outstanding charges for such services. There could be no question that the claim was made on the basis of the contractual relationship between the parties. The Judge could not accept Tai Shing Transport’s submission that the parties acted in the absence of a contract.
On the other hand, how Airsupply International Logistics characterized the booking forms and shipping orders could not in any way alter their legal nature and was not a matter of concern to the court.
The Judge was of the view that the statement of claim did serve its function. If all the material facts pleaded therein were proven, the Judge saw no reason why Airsupply International Logistics should be deprived of the outstanding charges, particularly in the absence of any dispute about the quantum of those charges.
Next, Tai Shing Transport submitted that it merely acted as the agent of the shippers and the actual contracting parties should be Airsupply International Logistics and the shippers. Being an agent, Tai Shing Transport could not be personally liable for the contracts entered into on behalf of its principals. Tai Shing Transport relied on some booking forms which show that it was neither the shippers nor the consignees.
This submission had no substance. In the first place, it was against Tai Shing Transport’s own pleaded case. The business which Tai Shing Transport expressly authorized Mr Chung was to contract with freight forwarders to arrange carriage/transportation of the goods of the consignors to their consignees.
This submission was further against the wealth of contrary evidence too. In the emails exchanged between Airsupply International Logistics and Mr Chung, there was not a shred of evidence that Tai Shing Transport procured the shipping services as an agent of its consignors only. The fact that the services were to be rendered to a third party upon the requests of Tai Shing Transport did not alter the legal position of Tai Shing Transport as a contracting party.
Airsupply International Logistics was only a freight forwarder and it had to subcontract the shipping tasks in the Subject Orders to two other onward shipping agents, namely, A-Sonic Logistics and Scan-Shipping. Neither Airsupply International Logistics nor Tai Shing Transport was the actual carriers, consignors or consignees and there was no surprise that their names did not feature in the shipping documents. Such shipping documents per se were not contracts between Airsupply International Logistics and Tai Shing Transport. They came into being for the purpose of the fulfillment of the Subject Orders. The fact remained Tai Shing Transport procured Airsupply International Logistics to provide freight forwarding services to its clients and Airsupply International Logistics duly did so by its sub-contractors.
Lastly, Tai Shing Transport said that Airsupply International Logistics’ pleaded case was one of quantum meruit and as such, Airsupply International Logistics had failed to establish the essential element that the enrichment was at the expense of Airsupply International Logistics.
The Judge could not understand this submission. On any view, the pleaded case of Airsupply International Logistics consisted of no plea of quantum meruit. Airsupply International Logistics did not say that the parties had no agreement on the charges or that there was no contract for the services procured by Tai Shing Transport at all. It was simply not a restitutionary claim.
Conclusion
For the reasons above, the Judge concluded that Tai Shing Transport did not have a bona fide defence to the claim of Airsupply International Logistics and was unable to show any triable issues. The Order was rightly made and Tai Shing Transport’s appeal must be 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
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 25 February 2019 dealing with Changhong Group’s delayed application for leave to appeal in relation to the collision case reported in our Chans advice/218 and Chans advice/215. [HCAJ3/2018, 2019HKCFI542]
The Hong Kong High Court issued a Judgment on 16 January 2019 dealing with the appeal of the wasted costs’ case reported by our Chans advice/214. [HCA1919/2016] [2019HKCFI127]
The Hong Kong High Court issued a Judgment on 13 August 2021 holding a forwarder liable to pay nominal damages of HKD1,000 to a shipper in a cargo misdelivery claim case of USD1,299,189.87. [HCA 937/2016] [2021 HKCFI 2310]
The Hong Kong High Court issued a Decision on 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]
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 on 1 December 2021 allowed a charterer’s appeal against a High Court’s Decision dated 13 April 2021 (which disallowed the charterer’s charter hire claims of US$234,955 against the shipowner because the High Court was not satisfied the claims were well founded). [CACV 294/2021] [2021 HKCA 1865]
The PRC Supreme Court on 26/11/2015 issued a Judgment holding a shipping company’s container demurrage claim against a shipper time barred. [2015民提字第119號]
The Hong Kong High Court issued a 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].
In Chans advice/215, we reported that the Hong Kong High Court refused Changhong Group’s application to stay the Hong Kong proceedings; and in Chans advice/234, we reported that the Court of Final Appeal dismissed Changhong Group’s application for leave to appeal. On 7 April 2022, the Hong Kong High Court issued a Decision dealing with Changhong Group’s action to re-litigate its stay application. [HCAJ 3/2018] [2022 HKCFI 920]
The Hong Kong 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 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 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 High Court of Hong Kong issued a Decision on 21/9/2017 dealing with the principles in respect of the real risk of dissipation of assets in a case of Mareva Injunction involving a shipowner and a charterer. [HCMP 1010/2017]
The Hong Kong Court of Appeal issued a Judgment on 4 October 2019 upholding the High Court’s Decision dated 9 April 2018 (reported in our Chans advice/208). [CACV593/2018][2019HKCA1101]
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 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.
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]
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 12/4/2016 to dismiss a cargo owner’s action in respect of breaking a barge owner’s tonnage limitation. [HCAJ 178/2014]
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 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 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 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]
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.
In our last issue of Chans advice/253, the Hong Kong District Court’s judgment dated 26 April 2022 mentioned a case authority of China Ocean v Mitrans Shipping. We would like to discuss this judgment dated 11 July 1995 of the Hong Kong Court of Appeal in our Chans advice this month. [1995 No. 71 Civil]
The Hong Kong High Court issued a Judgment on 22/8/2016 dealing with a case that a forwarder wanted to strike out a cargo misdelivery claim on the ground that the claim disclosed no reasonable cause of action. [HCCL 5/2015]
The 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 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]
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 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 11 January 2019 dealing with a dispute of US$335,858.31 between a bunker supplier and a ship agent. [HCA119/2015] [2019HKCFI57]
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).
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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.
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 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]
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.
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]
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]
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 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]
On 12/4/2017, the Hong Kong High Court dismissed an application made by a cargo owner for stay of proceedings commenced by two forwarders in relation to an uncollected cargo case. [HCA 1927/2016]
The Hong Kong High Court issued a Judgment on 25/8/2017 to determine whether the Hong Kong Court or the Yangon Court was the natural and appropriate forum in an in rem legal proceedings in relation to a cargo damage claim of USD143,852.02. [HCAJ 101/2015]
The Hong Kong High Court issued a 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 Hong Kong Court of Appeal’s Judgment dated 11/4/2008 explained some legal principles relating to whether indemnity claims are allowed by in rem legal actions against vessels. [CACV 257/2007]
The Hong Kong High Court issued a Judgment on 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 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 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]
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.
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]
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 Ningbo Maritime Court issued a Judgment on 25/5/2016, and dismissed a cargo insurer’s (PICC Ningbo) recovery claim of USD25,238.40 against Mitsui O.S.K. Lines Ltd (“MOSK”) in relation to the vessel MOL Comfort sinking into the Indian Ocean on 17/6/2013.
The Hong Kong High Court issued a decision on 31 May 2022 ordering a South Korean shipowner to provide a Hong Kong shipowner with security for costs in the amount of HK$600,000 in relation to a ship collision case that happened in Hong Kong during the super typhoon Hato in August 2017. [HCAJ 80-85/2019] [2022 HKCFI 1631]
We refer to our Chans advice/251 last month reporting the Hong Kong High Court’s decision to sentence Mr Ma (Hyundai Hong Kong’s former deputy general manager) to 15 years’ imprisonment. The High Court issued another Judgment on 27 April 2022 holding Mr Ma liable to compensate HK$387,655,303.70 to Hyundai Hong Kong. [HCA 619/2016] [2022 HKCFI 1153]
The Hong Kong Court of Appeal 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.
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 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 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.
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 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 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 ruling on 2/12/2016 dealing with a shipowner’s interrogatory application in relation to an uncollected cargo case. [HCAJ 118/2015]
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]
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]
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 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 Court of Appeal issued a Judgment on 20 February 2019 dismissing Changhong Group’s appeal against the High Court’s Decision of 15 November 2018 (reported in Chans advice/215) because Changhong Group had not obtained leave to appeal from the Hong Kong High Court. [CACV576/2018] [2019HKCA246]
The Hong Kong 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 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]
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 VGM laws have come into operation in Hong Kong since 1/7/2016. They are mainly contained in Section 3 and Section 3A of the Merchant Shipping (Safety) (Carriage of Cargoes and Oil Fuel) Regulation (Chapter 369AV) as follows:
The Hong Kong High Court issued a Decision on 21 July 2023 in relation to a case that an aircraft (worth at least USD 80 million) and its cargoes were destroyed by a fire caused by the goods of chlorine dioxide disinfection tablets. [HCA 837/2022] [2023 HKCFI 1896]
The 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 High Court of Hong Kong issued a Judgment on 22/5/2017 holding that the District Court has jurisdiction to determine bill of lading and bailment cases. [HCAJ 150/2014]
The Hong Kong High Court issued a Decision on 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]
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 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 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]
