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]
Background
The Plaintiff Mr Chu was employed by the Defendant YN Logistics as a container truck driver since 1 March 2017 and was instructed to work at the designated parking area of YN Logistics at Area 2 (“the Area”) of the River Trade Terminal (“River Trade”). Mr Chu believed that the Area was exclusively used by YN Logistics. On 24 March 2017, Mr Chu was instructed to clean the interior of a container trunk parked at the Area after goods were unloaded. When Mr Chu stepped down from the Container and was still in the Area, he was tripped by some rubbish left on the ground and lost balance (“the Accident”).
Mr Chu’s solicitors issued a letter before action dated 12 March 2019 asking YN Logistics, inter alia, that if they would contend that somebody else was at fault, they had to reply with particulars of the parties and the reason why such party was at fault.
YN Logistics was sued as the sole defendant in the Writ of Summons issued by Mr Chu on 13 January 2020. In the Statement of Claim filed on 13 January 2020, YN Logistics was sued as the employer of Mr Chu and the occupier of the Area, and YN Logistics was alleged to have failed to provide a reasonably safe place of work.
In the Defence filed on 27 March 2020, YN Logistics denied that it was the occupier of the Area, and claimed that they were a customer of River Trade which provided to YN Logistics area in the terminal to store containers and cargos.
By a letter dated 24 June 2020, YN Logistics’ Solicitors attached the draft Amended Defence in which YN Logistics pleaded that the Area was a common area and Bentat Logistics (“Bentat”) was a contractor engaged by River Trade to manage the Area.
Application
Mr Chu made an application for leave to join River Trade and Bentat as the 2nd and the 3rd Defendants respectively.
River Trade opposed the application on the grounds that, first, River Trade had properly discharged its duty to provide a reasonably safe environment, and therefore, there should be no cause of action against River Trade, and secondly, Mr Chu’s claim was time-barred.
Bentat did not file any affirmation in opposition, nor did they appear at the substantive hearing.
The law
Section 27(3) & (4) of the Limitation Ordinance (“the Ordinance”) provides that subject to section 30, an action for personal injuries claim should not be brought after the period of 3 years from (a) the date on which the cause of action accrued; or (b) the date (if later) of the plaintiff’s knowledge.
Section 27(8) of the Ordinance provides that a person’s knowledge includes knowledge which he might reasonably have been expected to acquire (a) from facts observable or ascertainable by him; or (b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek, but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.
Any cause of action against River Trade
River Trade argued that it had discharged its duty by providing a reasonably safe environment at the terminal and should not be sued. River Trade submitted that Bentat, being River Trade’s independent contractor, was required to rectify the danger in the terminal, such as to clean and remove any rubbish, and that there was no evidence to suggest that River Trade did not act reasonably in entrusting the cleaning work to Bentat. River Trade had issued a letter to Bentat on 12 November 2015 to remind them of its obligation to ensure a reasonably safe environment at the terminal. Apart from that, River Trade would arrange frequent patrolling at the terminal.
Whether River Trade had taken reasonable steps to supervise the work of Bentat and whether they had discharged their duty to provide a reasonably safe place was a question of facts. The Court considered that this issue should be decided at the trial, and it would not be appropriate to make a decision at the interlocutory stage.
The Court was not satisfied that this was a plain and obvious case that Mr Chu’s claim against River Trade should be dismissed for want of cause of action.
Actual knowledge
Mr Chu’s case was that he did not have actual knowledge about the involvement of River Trade in the cleaning of the Area. River Trade did not take issue in light of the test being subjective in nature.
Having considered the evidence, the Court agreed that Mr Chu did not have actual knowledge on the involvement of River Trade.
Constructive knowledge
Section 27(8) of the Ordinance deals with constructive knowledge, i.e. knowledge imputed to a plaintiff by the court where on the facts he should have made certain enquiries and had he done so would have discovered and become aware of the relevant facts. The burden of proving constructive knowledge is on the intended defendant, and the test is objective.
As held by Purchas LJ in Nash v Eli Lilly & Co [1993] 4 All ER 383, at 392, the required knowledge is a condition of mind that imports a degree of certainty which may reasonably be regarded as sufficient to justify the claimant embarking upon preliminaries to the making of a claim, such as taking legal or other advice. Knowledge does not mean knowing for certain, but may mean a reasonably firmly held belief that warrants a claimant taking steps to investigate the claim. The court must assess the intelligence of the plaintiff in understanding the information obtained and consider as a matter of fact whether he comprehended such information.
River Trade submitted that Mr Chu should have constructive knowledge by relying on the following facts:
a) River Trade’s logos and names were displayed at the three entrance gates of the terminal, b) River Trade’s name was visible on the signage containing the terms and warnings at each entrance gate, c) Vehicles of River Trade with its’ logos printed on their bodies would patrol the terminal, d) River Trade’s logos were printed on the side of the terminal office building and on the cranes used to transport containers within the terminal.
River Trade submitted that the fact that names and logos of River Trade were all over the terminal warranted Mr Chu taking steps to investigate the claim. YN Logistics also argued that the circumstances were apparent and overwhelming that, even if they did not specifically point to a particular entity to be responsible for the cleaning of the Area, it was objectively clear and reasonable that there was a possibility that River Trade could be involved in the management of the Area. YN Logistics further said, which was agreed and adopted by River Trade, that a simple search in the Land Registry would reveal that the terminal was owned by River Trade.
The main argument was whether Mr Chu should have sufficient knowledge or information that would alert him to conduct investigation. In this regard, the Court had the following observations:
a) While River Trade’s logos and/or names were displayed at the entrance gates and the terminal building, there was no evidence of any signage bearing River Trade’s logos and/or names placed in the Area. b) From the photo showing the Area, River Trade’s logo did appear at the top of the crane which was used to transport containers within the terminal. While one might suspect that the crane itself was owned or operated by the company with that logo, Mr Chu could not be expected to investigate whether the crane owner or operator would also be the occupier of the Area. c) The layout plan and the photos could show that the Area was a large area in which containers were stacked in a number of columns. One would expect that the distance of the entrance gates and the terminal building on the one hand, and the Area on the other hand would not be close. The mere fact that the names and the logos of River Trade appeared in the building and the entrance gates would not enable Mr Chu to form a belief that warranted him to take steps to investigate the claim against River Trade.
In the Court’s judgment, the mere fact that the names and the logos of River Trade appeared in the building, the entrance gate, the crane and the vehicles patrolling there would not put the workers of YN Logistics (including Mr Chu) on constructive notice that the Area was occupied by somebody other than YN Logistics.
River Trade and YN Logistics both argued that Mr Chu should have conducted a land search which could reveal that the terminal was owned by River Trade. In this regard, the Court agreed with the judgment of Seagroatt J in the case of Lau Yan Chor v Hang Lung (Administration) Limited, HCPI355/199 (unreported, 19 September 2000) as follows:
“It is relevant to recall that this accident happened at about 6:30 am in a flooded basement when [the plaintiff] was acting in the course of his employment. His automatic, logical and in my view entirely reasonable reaction was to pursue his remedy against his employers, as employers and occupiers of the premises. It may well be that there are more than two or three occupiers of the premises but he commenced his action against the prime or principal occupiers. It would not be logical for him to consider that [the third party] (even if he knew its identity) might be responsible for the flooding of the basement or the circumstances in which he sustained this accident whilst trying to carry out his duty. I take this view as the appropriate one, however long he had been employed in that capacity as attendant. It is also clear to me that until he saw the Third Party Statement of Claim he would be in no position to frame a case against [the third party]. Accordingly, and sensibly, he has adopted the Defendants’ allegations against [the third party] in his re-Amended Statement of Claim.”
Having considered the judgment and the facts of the case in question, it would be reasonable for Mr Chu to pursue his remedy against his employer being the employer and occupier of the premises. Even if a land search was obtained by Mr Chu, the information would not be sufficient for the purpose of section 27(6) of the Ordinance.
The Court must assess the evidence according to the information obtained by Mr Chu there and then, and consider as a matter of fact whether he comprehended such information. Mr Chu said that the Area was exclusively used by YN Logistics. He had never seen any truck other than YN Logistics’ parking in the Area. There was one cleaner responsible for the cleaning of the Area and Mr Chu believed that the cleaner was engaged by YN Logistics to perform the cleaning work. It was not a situation where Mr Chu had been working in the Area for a considerable period of time. Mr Chu only started working there on 1 March 2017 when the Accident happened on 24 March 2017. There was no evidence that Mr Chu had any previous communication or any dealing with the staff of River Trade direct. He could not be expected to speculate if the Area was an area occupied by somebody other than YN Logistics.
The Court was of the view that Mr Chu could not have been expected to acquire knowledge of the identity and involvement of River Trade prior to the expiry of the primary limitation period. Mr Chu’s claim against River Trade was made within time.
Discretion under s.30 of the Ordinance
If the Court was wrong on the above analysis, the Court had to consider whether to exercise its discretion to allow such time barred claim to proceed under section 30(1) of the Ordinance.
The Court would perform a balancing exercise by looking at (a) the prejudice to each party, (b) the 6 specific but non-exhaustive factors contained in section 30(3) of the Ordinance, and (c) all the circumstances of the case.
The post-expiry delay was about 5 months. In any view, it was not a particularly long period of delay, and the Court found such period of delay to be acceptable.
River Trade criticised that Mr Chu had failed to act promptly after the Defence was filed on 27 March 2020 because it was specifically pleaded that YN Logistics was a customer of River Trade which provided area in the terminal to store containers and cargoes. Mr Chu submitted that it was not until YN Logistics’ Solicitors’ letter dated 24 June 2020 attaching a copy of the draft Amended Defence that full particulars had been provided.
It appeared that no substantive steps were taken by Mr Chu between 27 March 2020 and 24 June 2020. Nevertheless, in any case, the primary limitation period had expired at the time when the Defence was filed on 27 March 2020. Since Bentat had been de-registered, application was made on 22 July 2020 to restore the company. The Order was granted by the Court of First Instance on 6 August 2020. The application in question was taken out on 12 August 2020. The Court considered that Mr Chu had acted promptly and reasonably in the circumstances.
In the application in question, River Trade argued that they had acted reasonably in selecting the subcontractor and had supervised the work of Bentat reasonably. Copies of the Agreement with Bentat and the guidelines issued to Bentat had been produced. There was no evidence that River Trade’s ability to investigate the Accident and to conduct its defence was impaired. Nor was it suggested that the lapse of time had any effect on the quality of the evidence. There was no suggestion on the part of River Trade that previously available witnesses or documents were lost, or available witnesses had increased difficulty in remembering the event as a result of that period of delay.
River Trade argued that prejudice had been suffered by River Trade since Bentat had been de-registered and they could not retrieve the relevant cleaning record and the staff record. No mention of this kind of prejudice was made in its affirmation in opposition. It was not until the substantive hearing that River Trade made an oral application to file a supplemental affirmation to cover this issue. Having heard the arguments of all parties, the Court rejected the application. First, that was a late application. If River Trade wished to file a further affirmation to elaborate on the issue of prejudice, they should have done so at a much earlier stage. More importantly, if River Trade’s defence was that they had reasonably entrusted Bentat to perform the cleaning work and had properly supervised the work, whether Bentat could retrieve the relevant cleaning record and the staff record was neither here nor there.
River Trade argued that they would suffer prejudice if they were deprived of the complete defence under the Limitation Ordinance. Mr Chu drew the Court’s attention to para. 109 of the judgment of Pang Kwok Lam v Schneider Electric Asia Pacific Limited, HCPI 90/2010 (5 January 2011, unreported) which referred to an English case of Cain v. Francis; McKay v Hamlani & anor [2009] 2 All ER 579. Basically, if loss of the limitation defence was the only prejudice the defendant would suffer, that must be contrasted with the case where forensic prejudice was suffered by a defendant who had not for many years been notified of a claim in any detail to enable him to investigate it. In this regard, the Court agreed that it should ascertain whether, and to what extent, a defendant suffered any forensic disadvantage in investigating a claim or collating evidence in support of the defence. In the situation in question, there was insufficient evidence to show that River Trade had suffered any forensic prejudice.
Balancing all the factors, the Court considered that this was an appropriate case to exercise its discretion in favour of Mr Chu. In case the Court was wrong on the issue of secondary limitation period, the Court was prepared to uplift the time bar to allow Mr Chu to claim the relief against River Trade and Bentat.
Conclusion
In the circumstances, leave was granted to Mr Chu to join River Trade and Bentat as the 2nd and 3rd Defendants respectively in the proceedings in question.
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
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]
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 Decision on 22 Feb 2021 holding that the wreck removal claims of a ship sunk were not subject to the Convention on Limitation of Liability for Maritime Claims 1976. [HCAJ 98/2019] [2021 HKCFI 396]
The Hong Kong High Court issued a Decision on 4 March 2020 dismissing a shipowner’s application for a stay of proceedings in favour of arbitration in a case of cargo misdelivery without presentation of original bill of lading. [HCAJ 5/2019] [2020 HKCFI 375]
The 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 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 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]
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.
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]
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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 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]
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.
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]
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]
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 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 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]
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 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 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 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 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 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 11 January 2019 dealing with a dispute of US$335,858.31 between a bunker supplier and a ship agent. [HCA119/2015] [2019HKCFI57]
The Hong Kong High Court issued a 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 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]
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 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 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]
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 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).
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.
More and more junior staff of the banks insist all the Bills of Lading to be signed and issued with the above remark “As agent for the Carrier”. This is of course right if the concerned Carrier does not have its own office in the place of issuing the Bill of Lading and therefore instruct its agent there to issue the Carrier’s Bill of Lading.
The Hong Kong High Court issued a Decision on 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 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]
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 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 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 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 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 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]
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 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]
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 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 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 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]
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.
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.
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 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 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 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 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 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 31 May 2022 ordering a South Korean shipowner to provide a Hong Kong shipowner with security for costs in the amount of HK$600,000 in relation to a ship collision case that happened in Hong Kong during the super typhoon Hato in August 2017. [HCAJ 80-85/2019] [2022 HKCFI 1631]
The Hong Kong Court of Appeal issued a Judgment on 12/2/2018 to deal with the cargo owners’ seeking leave to appeal against the High Court’s Judgment reported in our Chans advice/209 last month. [CAMP 38/2017] [2018 HKCA77]
Remember our Chans advice/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]
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.
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.
On 12/4/2017, the Hong Kong High Court dismissed an application made by a cargo owner for stay of proceedings commenced by two forwarders in relation to an uncollected cargo case. [HCA 1927/2016]
The Hong Kong High Court issued a Decision on 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 English High Court issued a Judgment on 31/7/2015 dismissing a cargo owner’s conversion claim US $565,891.58 against a shipowner in an uncollected cargo case. [(2015) EWHC 2288 (Comm), (2015) 2 C.L.C. 415]
The 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]
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 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 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 Judgment on 16 January 2019 dealing with the appeal of the wasted costs’ case reported by our Chans advice/214. [HCA1919/2016] [2019HKCFI127]
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.
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 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 amendment to the International Convention for the Safety of Life at Sea (SOLAS) 1974 Chapter VI, Regulation 2 in respect of the verified gross mass of a container carrying cargo (laden container) is for entry into force globally on 1 July 2016.
The 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]
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 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]
We recently have received a lot of uncollected cargo claim cases from our forwarder clients, which have kept our 6 claim handlers very busy. We would like to take this opportunity to talk about this troublesome problem of uncollected cargoes. Actually, the forwarders have been facing this real headache in at least these two decades.
The Hong Kong High Court issued a Decision on 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]