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]
Background
The action in question arose out of a claim of misdelivery of computer accessories in 7 containers (“the Cargos”) without presentation of the original bills of lading (“Bs/L”). The shipper was a Samoa-incorporated company, based in Taiwan and was the manufacturer and seller of the Cargos. The forwarder was a Hong Kong company, which provided logistics services and who arranged for the Cargos to be shipped.
One distinct feature of the action in question was that, unlike many misdelivery cases, the Cargos were ultimately delivered to the shipper’s end buyer, Koodoo Technologies (“Koodoo”). It was not disputed that the shipper was paid by Koodoo for at least part of the Cargos, although the final amount of payment was in dispute.
The shipper claimed against the forwarder for US$1,299,189.87, together with interest, representing the invoice value of the Cargos and deducting part payment from Koodoo.
Undisputed facts
In September and October 2014, the shipper sold the Cargos to Esdida Limited (“Esdida”), a Cypriot company related to Koodoo, for US$1,412,584.47. Sales invoices were issued by the shipper to Esdida, whilst Koodoo remained the ultimate buyer of the Cargos.
The shipper, through its agent, Western Shipping, placed shipping orders with the forwarder to arrange for the transportation of the Cargos from Hong Kong to Kotka, Finland. Between October to November 2014, 7 Combined Bills of Lading (“the CBs/L”) were issued by the forwarder as carrier to the shipper. The Cargos, loaded into 7 containers in total, were shipped from Hong Kong via Hamburg to Kotka, Finland, in 2 shipments:
(a) 4 of the containers were carried in October 2014 on the vessel YM Uniform (“the YMU Containers”). (b) The remaining 3 containers were carried in November 2014 on the vessel Helsinki Bridge (“the HB Containers”).
The forwarder did not own any vessels. To arrange for the carriage of the Cargos, it contacted Yang Ming, the actual ocean carrier represented by its agent YM HK. Two ocean Bs/L (“OBs/L”) were issued by Yang Ming as carrier and the forwarder as shipper, one OB/L for the YMU Containers shipment and one OB/L for the HB Containers shipment.
Under all the CBs/L and the OBs/L, Net Logistic (the forwarder’s Finland agent) was named as the consignee.
The YMU Containers and the HB Containers arrived at Kotka on 8 November 2014 and 11 December 2014 respectively. At some time between November 2014 and March 2015, the Cargos were released by the forwarder and Yang Ming without presentation of any of the original CBs/L (“the Release”). The Cargos were eventually delivered to Koodoo.
On 16 March 2016, Western Shipping emailed the forwarder to confirm the status of the Cargos. Thereafter, email correspondence and negotiations were exchanged between the shipper, the forwarder, Western Shipping, Yang Ming, YM HK, and Koodoo concerning the status of the Cargos. On 29 March 2016, the forwarder wrote an email to A4 Tech, an associate company of the shipper, informing it of the Release. It was the shipper’s case that this was the first time that it learned of the Release.
On 12 April 2016, the writ in the action in question was issued.
The shipper’s case – summary
The shipper claimed that the Release was made by the forwarder without the knowledge of the shipper, without obtaining the original CBs/L, and/or written authorisation from the shipper. The shipper had held the original CBs/L and had never given any authorisation for the release of the Cargos to any party. The shipper pleaded that the forwarder had deliberately concealed or failed to disclose the Release to the shipper.
The CBs/L evidenced the terms of the carriage agreement between the shipper and the forwarder (“the Carriage Agreement”). As a result of the Release, the forwarder breached the terms of the Carriage Agreement, was negligent and/or breached its duty of care. This also amounted to a breach of the “Presentation Rule”: Carewins Development (China) Ltd v Bright Fortune Shipping Ltd (2009) 12 HKCFAR 185, §§21-23 per Ribeiro PJ.
In May 2016, Koodoo paid US$113,394.60 to the shipper. And the shipper thereafter adjusted the quantum of its claim to US$1,299,189.87.
The forwarder’s case – summary
The forwarder did not dispute that the Cargos were released in Kotka and that no CBs/L were presented. Despite this, the forwarder raised a number of defences.
The forwarder as Agent Only
The forwarder’s case was that the CBs/L were contracted or issued by the forwarder as agent for and on behalf of Yang Ming. And as such, the forwarder was not liable.
The forwarder principally relied on the following:
(a) the CBs/L state that the forwarder signed “AS AGENT”; (b) the terms of the CBs/L.
The forwarder further submitted that the shipper must have known at the time of the Carriage Agreement that Yang Ming was acting as the principal under the Carriage Agreement.
Telex releases
The shipper and the forwarder had a long-standing telex arrangement which could be utilised to release cargos without presentation of the Bs/L. The forwarder said that in the case in question it had consent of the shipper to release the Cargos in the form of telex release instructions. Following the Release, a telex release fee of HK$500 per container for the Cargos was invoiced by the forwarder and paid for by the shipper.
In respect of the YMU Containers, the forwarder further relied on an email dated 30 September 2014 from Western Shipping (“30 September 2014 Email”) in submitting that telex releases of the Cargos were explicitly authorised by the shipper. The said email read:
“Dear Tiffany, We confirm the above mention B/L is OK. (Telex release) Please kindly send the invoice to us asap.”
For the HB Containers, the forwarder submitted that because the telex release fees were prepaid, there must, similarly, be instructions from Western Shipping for the release of the HB Containers. It was the forwarder’s case that it was not uncommon for Western Shipping to give oral release instructions by telephone.
The shipper had not provided any explanation as to why there was an approximate 18-month time gap between the Release and the time when the shipper started raising issues.
Time Bar
In relation to time-bar issues, the forwarder raised 2 lines of defence: –
(a) Clause 8.2.1 of the CBs/L Clause 8.2.1 of the CBs/L:
“The CTO shall be discharged of all liability under this Bill of Lading unless suit is brought and written notice thereof given to the CTO within nine months after delivery of the goods. In the case of total loss of the goods the period shall begin to run two months after the goods have been received for transport.”
The forwarder relied on the “total loss” limb and submitted that it covered situations such as goods were not delivered or misdelivered. As such, the 11-month limitation period had expired by the time the writ was issued.
(b) Hague Visby Rules (HVR) Article III, rule 6:
“…the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered…”
No Loss
The forwarder further submitted that even if liability was established, the shipper had failed to prove its losses. The forwarder referred to (i) a spreadsheet prepared by the shipper dated 22 January 2016 headed “KOODOO Payment Record – 2014 Orders” (“the Payment Record”) and (ii) email correspondence between A4 Tech and Koodoo in April 2016, to suggest that the shipper was in fact paid in full by Koodoo.
The forwarder further submitted that if there be any confusion with the shipper’s accounts, that the shipper had failed to call any evidence to properly explain the same and as such the Court might draw adverse inferences as a result of such failure.
The shipper’s responses
The forwarder as Agents
It was the shipper’s case that the forwarder was not Yang Ming’s authorised agent. Rather, the forwarder was the contractual carrier. The shipper relied on the following matters:-
(a) On the OBs/L issued by Yang Ming, the forwarder was named as the shipper. (b) YM already had a Hong Kong agent, YM HK, as named on the OBs/L. (c) If the CBs/L were issued by the forwarder as Yang Ming’s agent, they would have named Yang Ming as principal on the front of the document. (d) There was no written authority from Yang Ming authorising the forwarder to act as Yang Ming’s agent and bind it to contracts.
The shipper submitted that although the forwarder might have used Yang Ming often as carrier, this of itself obviously did not create any form of agency.
The shipper averred the forwarder was the CTO pursuant to the definition in the CBs/L under Clause 1.3:
“Combined Transport Operator (CTO) is the person by whom or for whom this Bill of Lading is signed.”
The forwarder was the person “by whom” the CBs/L was signed.
Telex Release Arrangement
It was the shipper’s case that it had never given any telex release letters or instructions to the forwarder regarding the Cargos. The 30 September 2014 Email was merely an arrangement made in advance for a potential telex release and that no actual release instructions were given. The telex release fees were paid to set up the potential telex release. The shipper emphasised that for a telex release to be carried out, further procedures were required. Telex release was a 2-step process: (i) a prior telex release arrangement; and (ii) an actual telex release request or instruction from the shipper. Step 2 was not taken in respect of the Cargos.
Time Bar Defence
As regards the forwarder’s defence of time-bar pursuant to clause 8.2.1 of the CBs/L:-
(a) The shipper first submitted that the clause should be construed contra proferentem. (b) Moreover, the forwarder must be put to an election between the “delivered” limb and the “total loss” limb as the two limbs were inconsistent factual assertions. (c) In respect of the “total loss” limb eventually elected by the forwarder, the shipper submitted that construing clause 8.2.1 contra proferentem, “total loss” should be narrowly construed to cases where the goods were physically totally lost and where the forwarder had given prompt notice of that to the shipper.
As regards HVR Article III, rule 6:-
(a) The shipper submitted that the obligations under HVR only apply during ocean carriage and discharge operations themselves. It did not apply to the case in question as the losses occurred after the discharge of the Cargos from ships at Kotka. (b) The shipper submitted that the obligations under HVR only apply during ocean carriage and discharge operations themselves. It did not apply to the case in question as the losses occurred after the discharge of the Cargos from ships at Kotka. (c) Moreover, rule 6 should not be applied to breaches of the telex release arrangement.
No Loss Defence
The shipper claimed that it was only paid in part by Koodoo for one of the seven containers in a sum of US$113,394.60 by two bank transfers. There was not any further repayment from Koodoo in relation to the Cargos.
The payments referred to by the forwarder, as recorded in the Payment Record, were submitted (from the bar table) to have been reallocated for the release of containers not relevant to the case in question. The shipper and Koodoo had something like a running account where the buyer would send funds when it could and ask for containers to be released. Such reallocation was noted by A4 Tech in emails as a request from Koodoo’s management.
Furthermore, the shipper drew the Court’s attention to an email from Koodoo to A4 Tech dated 4 May 2016, whereby Koodoo offered to repay the Plaintiff the outstanding sum, with a proposed payment plan.
Analysis
Although this was a case of “misdelivery”, the cargos in question were eventually delivered to the buyer, Koodoo, and indeed Koodoo had made part payment in respect of some of the Cargos.
The shipper had called no evidence whatsoever in support of its case. The shipper had informed the Court that the shipper would not rely on any factual witness statement, nor adduce factual witness evidence at the trial.
The forwarder as Agent
The Judge had no doubt that the forwarder was not the authorised agent of Yang Ming. The Judge agreed with the shipper’s submissions in this regard.
Furthermore, there was no formal agency agreement with Yang Ming, and there was no written authority authorising the forwarder to act as Yang Ming’s agent.
The forwarder relied heavily on the fact that each relevant CB/L had “AS AGENT” printed on it. The Judge concluded that this did not assist the forwarder’s case. The inscription did not say whose agent the forwarder was supposed to be.
As the shipper pointed out, the forwarder took the two OBs/L from Yang Ming in the forwarder’s own name as shipper, and that if the forwarder was the agent of Yang Ming, it would make no sense that the forwarder was listed as shipper on the OBs/L. The shipper submitted that a carrier would never list its own agent, who acts for the carrier, as shipper, as this would mean the carrier was the shipper, which is nonsensical. The Judge agreed.
The shipper also submitted that by its email dated 22 December 2014, the forwarder sought to hold Yang Ming and/or the Net Logistic liable for the misdeliveries, which itself was inconsistent with the agency defence advanced.
In all these circumstances, the Judge found that the forwarder was not acting as the agent of Yang Ming, and this defence failed.
The Telex Release Issue
The forwarder’s case was that the YMU Containers were released pursuant to the shipper’s explicit authority to do so, as provided in the 30 September 2014 Email. Furthermore, that while the forwarder was unable to find a similar email for the HB Containers, there must have been an instruction like the 30 September 2014 Email because the telex release fee was also included for the HB Containers.
However, the Judge noted the admission made by the forwarder in the 22 December 2014 Email, that Yang Ming’s own Finland agent had released the Cargos without the forwarder’s authorisation. Furthermore, the shipper retained the originals of the CBs/L which would not have occurred if the shipper had in fact authorised telex releases of the Cargos.
Having carefully considered the evidence, the Judge had no doubt that there must be in place an actual telex request for the actual release of goods. The brief wording in the 30 September 2014 Email amounted to no more than the first step together with the telex release payment which provided the foundation for a telex release. This of itself did not amount to an actual telex request for release of the Cargos.
The forwarder’s telex release defence failed.
Time Bar
The time bar defence rested on CBs/L Clause 8.2.1 and the HVR Article III, rule 6.
Clause 8.2.1 of the CBs/L:
The forwarder relied on the “total loss” limb. The forwarder submitted that “if the
Plaintiff cannot get its goods, then to that plaintiff the goods are lost.” The forwarder confirmed that it had no direct authority to offer in support of this proposition, although the forwarder did refer the Court to Hong Kong and Kowloon Wharf and Godown Co Ltd v Bank Negara Indonesia [1980] HKLR 161 where the carrier misdelivered the goods shipped to Hong Kong to a person with a forged delivery note. McMullin JA remarked at p.169 that:
“It is not denied that it was failure to check the signatures which occasioned the misdelivery and hence the total loss of the plaintiff of these drums.”
However in that case, the goods disappeared as a result of fraudulent conversion. In that sense, there was a total loss to the plaintiff. In the case in question, the goods concerned ended up in the possession of the contractual buyer who made at least a part payment for them.
The Judge proceeded on the basis submitted by the shipper that if there was any doubt about Clause 8.2.1, the Court would exercise the doubt against the forwarder, and in the shipper’s favour. Further, these were the forwarder’s own standard terms utilising the forwarder’s own wording. If the forwarder had wanted to exclude liability altogether, it could do so, but would need to use very clear wording to achieve this.
The shipper addressed the contra proferentem principle and relied first at Arab Lawyers Network Co Ltd v Thomson Reuters (Professional) UK Ltd [2021] EWHC 1728 (Comm) at §44. The shipper stressed, and the Judge agreed, that in construing the relevant contractual provision, regard must be had to its language, purpose, contextual background, and its place in the contract as a whole.
The shipper also relied upon Carewins Development (China) Ltd v Bright Fortune Shipping Ltd (2009) 12 HKCFAR 185 in which Ribeiro PJ held as follows:
“62. An essential purpose of the contract is, as previously discussed, that the goods should be delivered by the carrier only against surrender of an original bill of lading. If, therefore, clause 2(b) is given a construction reflecting the full width of the words used, it would mean that the carrier could with impunity consciously disregard that primary contractual purpose by releasing the goods well knowing that the recipient has not provided any bill of lading relative to the cargo. That is a construction which the court inclines against as it would deprive the shipper of an essential protective obligation and seriously undermine the purpose of bills of lading. 63. One must therefore ask whether clause 2(b) is wholly unambiguous in conferring such a purported exemption on the carrier. Is it clear and fairly susceptible of that one meaning only? Or is it also fairly susceptible of a meaning which does not result in the negation of that primary contractual purpose? 64. In my view, it is plain that clause 2(b) is susceptible to more than one meaning and that it can be given adequate content as an exemption clause which operates without nullifying the cardinal obligation embodied in the presentation rule. Given its natural and ordinary meaning, the word “misdelivery” is capable of covering a range of situations which all involve the cargo being delivered to the wrong person. But many of those situations will not involve a conscious disregard of the presentation rule on the carrier’s part.”
The shipper submitted that “total loss” in the context here meant a maritime loss under a shipping contract where, for example, the vessel sunk with total loss of all cargo aboard with much publicity such that the recipient of the cargo would know about it (a notorious loss).
The shipper further submitted that the Clause did not apply to situations where (a) the goods were not lawfully delivered in return for original Bs/L, (b) the goods were not notoriously lost, (c) the goods were lost but not in the usual maritime sense of that word but rather by secret and unlawful release, (d) the forwarder did not tell the shipper so the shipper did not know, and (e) the forwarder had not exercised its rights to give the shipper notice under Clause 16.3 which dealt with deemed delivery in case of non-collection.
In the Judge’s view, the expression “total loss”, on the face of it, could apply to all claims, even claims for breach of the presentation rule. Furthermore, it could be read as applying (or not) to claims the shipper did not know about. To this extent at least, the Clause was ambiguous, and as such the Judge construed it narrowly and, where appropriate, in favour of the shipper, taking into account the contract’s nature and purpose.
In Carewins, Litton NPJ at para 89 said this:
“Fundamental to the tripartite arrangement between the shipper, the carrier and the consignee was that the carrier would only deliver the 23 containers on production of the bill of lading. The question then is: Are the general words in clause 2(b) precise enough to exempt the carrier from liability in such a case? It would seem very odd if that were so. On the face of the document the carrier acts at his peril by delivering the goods without production of the bill of lading; turn the document over, and it says the carrier acts with impunity by so doing. The parties cannot be deemed to have achieved such a bizarre result, by the general words used in clause 2(b). In my judgment the words in clause 2(b) are not precise enough to exempt the carrier from liability when, with eyes open, it delivers the 23 containers without production of the bill of lading.”
In the Judge’s view and considering this in the context of maritime loss under a shipping contract, the general words used in Clause 8.2.1 were not precise enough to cover a breach of the presentation rule. The shipper further submitted that taken in context, it was not a “total loss” where the goods were delivered without surrender of an original bill of lading and the shipper was not told about this for eleven months. The Judge agreed.
In the Judge’s view, the forwarder’s reliance on CBs/L Clause 8.2.1 failed.
The HVR Time Bar:
The shipper relied principally on the Court of Appeal judgement of Cheong Yuk Fai & Another v China International Freight Forwarders (HK) Co Ltd [2005] 4 HKLRD 544, at §§30 – 50, for the proposition that HVR obligations only apply during ocean carriage and discharge operations, and not during carriage or handling after discharge from the vessel.
Furthermore, the forwarder could not bring itself within the wording of rule 6 because this was not a case where the goods were either delivered or should have been delivered by an identifiable date.
The forwarder sought to distinguish Cheong Yuk Fai and Trafigura Beheer BV v Mediterranean Shipping Co SA [2007] 2 CLC 379; [2007] EWCA Civ 794 (also relied on by the shipper), and relied on TheAlhani [2018] 2 CLC 63; [2018] EWHC 1495 (Comm) for the proposition that HVR obligations did apply to misdelivery.
The Alhani case was unique in that the cargo (bunker fuel) was discharged and misdelivered at the same time. The Court was bound by Cheong Yuk Fai, and there was no evidence that the eventual transmission of the Cargos to Net Logistic was part of the “discharge operations”.
The Judge further accepted the shipper’s submission that there was no evidence of any date when the Cargos “should have been delivered”.
The forwarder’s reliance on the HVR time bar failed.
Damages
The shipper claimed that it suffered damages of US$1,299,189.87 together with interest.
The forwarder pleaded that the Cargos had all been paid for, and denied that the shipper suffered any loss or damage and put the shipper to strict proof.
Onus
The shipper submitted that its loss was incurred and the various causes of action were all complete when the forwarder or its agent parted with the Cargos without permission. The shipper further submitted that it had proven its loss by “proving loss of dominion of the Cargos by reason of the forwarder’s acts or omissions.” The shipper then submitted that the forwarder bore the onus of pleading and proving that Koodoo paid any of the unpaid invoices, e.g. by interrogatories. The shipper also submitted that the forwarder faced the burden of persuading the Court that the shipper was “perpetuating a pointless, risky, and costly fraud on the Court to recover unmerited double-payment”.
The Judge did not accept the shipper’s characterisation that the forwarder was in any way alleging a fraud upon the Court. The shipper pleaded that it had suffered damages, and the forwarder simply put the shipper to strict proof of this. There was no question of any fraud upon the Court.
In relation to the shipper’s argument as to loss of dominion over the 7 containers being a loss in itself, the shipper relied on the decision of Stone J in Trafigura Beheer BV Amsterdam v China Navigation Co Ltd [2001] 1 HKLRD 17 at p.31A-B:
“In my view, the loss in this case was caused by and consequent upon the misdelivery, the cause of action vesting the plaintiff was not a “windfall”, and the plaintiff is entitled to recover therefor.”
Further, at p.24J-25A:
“The plaintiff pursues its claim for misdelivery in terms of contract, conversion and bailment, and quantifies its primary loss in the sum of US$953,037.47, representing the agreed value of the cargo … as at 29 April 1998, the date of the misdelivery.”
In the Judge’s view, there was no doubt that the cause of action vested in the shipper upon misdelivery of its goods. In the Trafigura Beheer case, the loss was calculated by reference to the invoice value of the cargo. In the case in question, however, the Cargos were in fact delivered to the rightful buyer and indeed on the shipper’s case, part payment was made in respect of the same by that buyer.
The Court of Appeal considered this matter in Kuwait Petroleum Corp v I & D Oil Carriers Ltd (“The Houda”) [1994] C.L.C. 1037. The Court held at 1050:-
“I can see no good reason to depart from the general rule that the owners do not fulfil their contractual obligations if the cargo is delivered to a person who cannot produce the bill of lading. Of course, if such a delivery is made and the person to whom the cargo is delivered proves to be the true owner no damages would be recoverable. In this context, it is helpful to draw attention to the speech of Lord Blackburn in Glyn Mills Currie & Co v East and West India Dock Co (1882) 7 App Cas 591 at p. 610:
‘[The master] would not fulfil his contract if he delivered [the goods] to anyone [other than someone producing the bill of lading], though if the person to whom he delivered was really entitled to the possession of the goods, no one might be entitled to recover damages from him for that breach of contract.’”
Considering the particular facts of the case in question, where the Cargos were in fact delivered to the correct buyer (Koodoo), and where the buyer then made at least part payment to the shipper, it was in the Judge’s view incumbent upon the shipper to prove that it had in fact suffered loss and damage as a result of the misdelivery. The onus of proving its loss plainly resided with the shipper.
The Documentary Evidence
No factual evidence had been called and there was a paucity of the documentary evidence consisting mainly of email chains (which on occasion appeared to be incomplete). There was also the Payment Record in relation to the Cargos in question. The shipper did not make discovery of this document, which was produced by the forwarder.
Payment Record
The Payment Record was sent under cover of an email from A4 Tech, the shipper’s associated company, to Koodoo on 22 January 2016. It read:
“Dear Vasily I have updated the balance sheet to you, please have a check. Best Regard [Amy]”
This Payment Record was a crucial document. In short it disclosed that all 7 containers, the subject matter of the proceedings in question, had been paid for, and that at least 5 of them had been released. The document was a detailed one. It contained the precise dates the final payments were made and the details of the deposits in respect of all 7 containers. It was not alleged that this Payment Record was in any way a forgery. The shipper submitted there were various “problems” with the Payment Record, but these problems, if they be such, were simply as to what certain wording had in fact meant.
The Court proceeded on the basis that as at 22 January 2016, this Payment Record, being the shipper’s own document, unequivocally disclosed that full payment had been made for the 7 containers in question.
The Emails
There were a number of important emails passing between the shipper (through its associated company A4 Tech) and Koodoo in April and May 2016.
The email from Koodoo was dated 25 April 2016 to A4 Tech, in which Koodoo stated:-
“However, last week we received a notification from ADL, saying, that you are retrieving the same amount from them as well. That means that you are retrieving the payments from ADL, which you had received from Buyer. Twice. That made us feel very confused, as we were thinking, that we are discussing everything in transparent way… According to the record with your confirmation, all the 2014, including “7 ADL containers” were paid by us.”
In reply to Koodoo’s email of 25 April 2016, A4 Tech replied, again on 25 April 2016:-
“Dear Anna, Thank you for your long email and concern. 1. According to the record, Koodoo has paid for the amount of the 7 containers (ADL issue), but this has nothing to do with the legal issue. Why? Because although Koodoo has “supposedly’ paid for the 7 containers, but the management in Koodoo company has requested our sales to release other containers, not the 7 containers. That is perfectly why we still hold “the original B/L paper on our hand for the 7 containers.”
Quite apart from the shipper’s Payment Record, the Court had evidence of an assertion, from the buyer Koodoo, that it had paid for the 7 containers and, crucially, an admission by A4 Tech on behalf of the shipper that according to its own records, Koodoo had paid for the 7 containers. The shipper then relied on an email from Koodoo to A4 Tech dated 4 May 2016, in which Koodoo attached a “Payment Agreement” which proposed payment dates for the 7 containers. The shipper submitted that this was evidence “from the horse’s mouth” that the 7 containers remained unpaid, and that there could be no better evidence than an offer from the debtor to pay.
The Court restricted itself to considering the evidence before it. The shipper had the onus of proving its loss. It called no evidence in order to do this. By contrast, the Court had before it the shipper’s own Payment Record, which unequivocally recorded that the 7 containers had all been paid for by Koodoo. Added to this was the admission by A4 Tech on behalf of the shipper that according to the shipper’s record, Koodoo had paid for the 7 containers.
The shipper declined to call any witnesses to give evidence to the Court concerning the alleged loss of the shipper. There was no credible explanation provided for the absence of witnesses, and in all the circumstances the Judge drew adverse inferences from their absence and silence. It was reasonable to infer that witnesses had not been called because if they were, their evidence would be unfavourable to the shipper. The Judge added that even absent these inferences, the Judge would have found that the shipper had failed to discharge its burden of proving that it had suffered loss and damage as a result of the forwarder’s acts or omissions.
The Judge had considered carefully the shipper’s submission that by its email dated 4 May 2016, Koodoo had acknowledged that it had not made payment for the 7 containers, and provided a payment agreement setting out the details for proposed future payments for the Cargos. The Judge put little weight on this email. First, the shipper had described Koodoo as being itself “deceptive”, having deceived the shipper by its silence. Second, there was no evidence as to how the payments admitted by the shipper in its Payment Record and email exchange were somehow discarded in favour of the Payment Agreement proffered by Koodoo in its 4 May 2016 Email. Third, even if there was an offer by Koodoo to make future payments, the shipper had advanced no evidence to establish whether or not such payments were made.
The Court concluded that the shipper had failed to establish its claim of loss and damage.
Disposition
The shipper had succeeded in establishing the forwarder’s liability in the case in question and there be judgment for the shipper in this respect.
The shipper had failed, however, to establish that it had suffered the loss and damages claimed. In consequence, its claim for damages was dismissed.
The shipper was awarded nominal damages in the sum of $1,000.
Please feel free to contact us if you have any questions or you would like to have a copy of the Judgement.
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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 Court of Appeal issued a Judgment on 9/7/2015 in relation to the High Court Judgment dated 21/7/2014 (reported in our Chans advice/167 dated 28/11/2014). [HCMP 2315/2014]
The Hong Kong High Court issued a Judgment on 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 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 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 Court of Appeal issued a Judgment on 17/7/2014 holding a Hong Kong forwarder liable to pay US$852,339 plus costs and interest (as damages for conversion) to an Indian bank in an air cargo misdelivery case. [CACV 282/2012]
Remember Chans advice/142 dated 31/10/2012 that the High Court of Hong Kong held the forwarder liable for cargo misdelivery without production of original bills of lading? The High Court of Hong Kong issued another Judgment on 4/12/2012 dealing with the interest and costs. [HCCL 20/2011 & HCCL 21/2011]
The Hong Kong 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 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]
Against the post-Covid tide, we ran an off-line real seminar on Uncollected and Undelivered Cargo on 28 May 2024. Attendance could not be compared with any webinars but the number of enthusiastic questions in the Q&A session reflected the demand for transport liability issue solutions. For the sake of recapitulations and sharing the Q&A among the Chan Advice readership, we like to report the Q&A in two issues. We welcome any other questions you may have on the following.
The Hong Kong High Court issued a judgment on 30/4/2015 dealing with the legal principles in respect of the order of priorities in distributing the sale proceeds of an arrested ship. [HCAJ 129/2013]
Cargo Misdelivery The Hong Kong High Court issued a Judgment on 12/1/2016 refusing to grant a shipowner an anti-suit injunction because of the shipowner’s delay in applying for the anti-suit injunction. [HCMP 2399/2015] By an Originating Summons dated 25/9/2015 (“OS”), the owner of the vessel MV Zagora (“Vessel”) applied for an anti-suit injunction against a […]
In the last issue of Chans advice, we reported the case that the Hong Kong Court of Appeal rejected the mortgagee’s appeal against the High Court’s order of granting a stay until 24 April 2019 for the sale of the Vessel Brightoil Glory. On 17 May 2019, the Court of Appeal issued another judgment refusing the shipowners’ appeal in respect of their application for a further stay of the sale of the Vessel until 22 May 2019. [CAMP81/2019] [2019 HKCA 561]
The Hong Kong High Court issued a 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 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]
Remember Chans advice/142 and Chans advice/145 that the High Court of Hong Kong held the forwarder liable for cargo misdelivery without production of original bills of lading? The Court of Appeal of Hong Kong issued a Judgment on 31/1/2013 dismissing the forwarder’s applications for an extension of time to appeal. [HCMP 2366/2012 & HCMP 2367/2012]
The Hong Kong High Court issued a Judgment on 9/2/2010 holding a carrier entitled to rely on its bill of lading clause to lien the cargoes for the damages, costs, expenses, charges resulting from the shipper’s overloading the cargoes in the containers. [HCA 1579/2008]
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:
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]
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 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 3/8/2011 holding that a Korean shipping company could not rely on its Bill of Lading’s Korean jurisdiction clause to stay a Hong Kong legal action. [HCCL 13/2010]
The Ningbo Maritime Court issued a Judgment on 25/5/2016, and dismissed a cargo insurer’s (PICC Ningbo) recovery claim of USD25,238.40 against Mitsui O.S.K. Lines Ltd (“MOSK”) in relation to the vessel MOL Comfort sinking into the Indian Ocean on 17/6/2013.
The High Court of Hong Kong issued a Decision on 31/8/2018 concerning a feeder company’s claim against a shipping company’s lawyer for wasted costs. [HCA1919/2016] [2018HKCFI1879]
The District Court of Hong Kong issued a Judgment on 21/4/2011 dismissing a forwarder’s cargo indemnity claim of US$46,201.81 against a trucking company. [DCCJ 2092/2009]
The Hong Kong High Court issued a Judgment on 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]
On 5/8/2011, the District Court of Hong Kong dismissed a shipping company’s container claims against a forwarder for want of prosecution and abuse of process. [DCCJ 765/2005]
The 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.
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 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]
The Hong Kong District Court issued a Judgment on 8/4/2014 holding that the one year’s suit time limit under the Hague Visby Rules does not apply to the carrier’s claims against the shipper. [DCCJ 4438/2013]
The Hong Kong High Court issued a decision on 11/9/2013 concerning a shipowner’s application to extend the validity of a writ of summons against a Taiwan hull and machinery insurer. [HCAJ 95/2012]
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]
In our Chans advice/244, we reported the Hong Kong High Court case [HCA937/2016] [2021 HKCFI 2310] that the forwarder was held liable to pay nominal damages of HKD1,000 to the shipper in the cargo misdelivery claim of USD1,299,189.87. On 20 October 2021, the Hong Kong High Court issued a Decision on Costs holding the shipper liable to pay the costs of the forwarder. [2021 HKCFI 3021]
The Hong Kong 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]
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.
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 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 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]
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 Judgment on 11/12/2013 holding that a Hong Kong plaintiff needed to put up a security for costs in a court case concerning a yacht sinking incident. [HCCL 5/2013]
The English High Court issued a Judgment on 26/2/2010 holding that a shipping company could follow the shipper’s instructions to change the consignee and the destination in its bill of lading and that the original consignee became having no title to sue. (2010 WL 606031)
Following the issue of Chans advice last month, we would like to report the latest decision issued by the court over this theft case. On 17 January 2023, the Hong Kong High Court dismissed Mr Ma’s application to withdraw HK$1.5 million out of his frozen assets for paying the legal costs for his appeal against conviction in theft. [HCA 619/2016] [2023 HKCFI 197]
The High Court of Hong Kong issued a Judgment on 21/7/2014, in which some legal principles relating to the in rem jurisdiction of the Court to arrest vessels were explained. [HCAJ 241/2009]
The 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 3/2/2017 holding Natural Dairy liable to pay HK$4,360,948.38 to Schenker being the outstanding freight charges. In the Judgment, the Judge also explained the principles regarding the meaning of notice of the forwarder’s standard trading conditions. [HCA 1755/2011].
The 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]
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 Court of Appeal issued a Judgment [CACV144/2017] [2018HKCA299] on 29/6/2018 upholding the High Court’s Judgment dated 2/6/2017 (which was reported in our Chans advice/201).
The Hong Kong High Court issued a Judgment on 11 January 2019 dealing with a dispute of US$335,858.31 between a bunker supplier and a ship agent. [HCA119/2015] [2019HKCFI57]
The Hong Kong High Court issued a Judgment on 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]
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]
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 High Court of Hong Kong issued a Judgment on 1/11/2012 ordering the USA/Canada owners of a cargo (a yacht) to put up HK$250,000 as further security for costs in their legal action against the ship owners. [HCAJ 177/2009]
The High Court of Hong Kong issued a summary Judgment on 28/9/2012 holding a forwarder liable for US$626,389 plus costs and interest for misdelivery of cargoes without production of the original bills of lading. [HCCL 20/2011 & HCCL 21/2011]
The High Court of Hong Kong issued a Judgment on 26/8/2011 to determine which ship to blame in a collision case that occurred at Shanghai. [HCAJ 200/2007]
The Hong Kong High Court issued a Judgment on 29/4/2013 relating to a discovery order ancillary to and in support of a Mareva injunction. [HCA 2124/2011]
The Hong Kong High Court on 13/8/2013 held a shipper liable to a shipping company for paying demurrage of US$1,645,286.74 plus interest and costs. [HCAJ 166/2011]
The 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 Judgment on 7/6/2011 explaining the concept of the package limitation of the United States Carriage of Goods by Sea Act. [HCAJ 181/2008]
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 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 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 on 18/11/2011 issued a Judgment concerning a quite confusing situation that three different laws (the USA, the PRC, and Hong Kong) might apply to the one shipment. [HCAJ 198/2009]
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 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 21/7/2014 discharging a Mareva injunction in relation to a cargo misdelivery claim of about US$12 million. [HCA 2368/2012]
The Hong Kong High Court issued a 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 this issue, we would like to continue with the case (CSAV v Hin-Pro) mentioned in our monthly newsletter of Chans advice/169 two months ago. The Hong Kong Court of Appeal issued its Judgment on 11/3/2015 discharging the Mareva Injunctions and the receivership orders granted by DHCJ Saunders against Hin-Pro and Soar. [CACV 243/2014]
The Hong Kong High Court issued a Decision on 22 Feb 2021 holding that the wreck removal claims of a ship sunk were not subject to the Convention on Limitation of Liability for Maritime Claims 1976. [HCAJ 98/2019] [2021 HKCFI 396]
The English Court of Appeal gave a Judgment on 6/7/1987 explaining how to calculate the suit time limit for the indemnity claim under the Hague Visby Rules. ([1987] 1 W.L.R. 1213)
Remember our Chans advice/112 that the Hong Kong High Court held the Rotterdam terminal liable to pay the cargo value of €950,071.20 for the misdelivery of one container of Sony Play Stations? On 2/4/2013, Judge To of the Hong Kong High Court issued another Judgment holding that the forwarder was entitled to limit its liability to US$24,392 in accordance with its B/L terms. [HCAJ 106/2008]
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]
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 District Court issued a Judgment on 28/4/2014 dismissing a seller’s cargo misdelivery claim of US$122,302.80 against a freight forwarder and holding the seller liable to pay the outstanding freight charges of US$28,855 to the forwarder. [DCCJ 344/2010]
The Hong Kong High Court issued a Decision on 2 October 2024 dismissing a shipping company’s application to strike out a forwarder’s third party indemnity claim in a cargo (frozen beef) damage case. [HCAJ 9/2023, HCAJ 22/2023, 2024 HKCFI 2708]
The Hong Kong High Court issued a Decision on 30 September 2021 holding a shipowner’s Defences as an abuse of process in a case of unpaid crew wages. [HCAJ 76/2020] [2021 HKCFI 2961] [HCAJ 91/2020]
The Hong Kong High Court issued a Decision on 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 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 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]
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 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.
Does the law require forklift trucks to have the third party insurance of motor vehicles? The Hong Kong High Court’s Judgment [Magistracy Appeal No 241 of 1996] dated 2/5/1996 explained the legal principles to answer this question.
According to the Hague-Visby Rules, the carrier shall be discharged of all liability in respect of the cargoes unless suit is brought within one year of their delivery or the date when they should have been delivered. The English High Court issued a Judgment on 22nd July 2025 explaining the meaning of “suit”. [2025 EWHC 1878 (Comm)]
The Hong Kong 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]
There are three ways of fulfilling the deposit requirement of the Ministry of Transport (“MOT”) in the People’s Republic of China (“PRC”) for your NVOCC license.
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 English Commercial Court issued a Judgment on 7/11/2012 holding a carrier liable for US$458,655.69 owing to its issuing 13 clean Bills of Lading for a consignment of steel pipes which had some pre-shipment damage. [2012 EWHC 3124 (Comm)]
The Hong Kong High Court issued a Judgment on 11/8/2009 holding a shipping company could rely on two letters of indemnity to seek compensation of US$253,655.50 from a forwarder and a trading company in a case of cargo release without production of original bills of lading. [HCA 208/2008]
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 High Court issued a Decision As To Costs on 5 December 2024 ordering a shipowner (which lost in an anti-suit injunction court case) to pay the winning party’s (a cargo owner) costs on an indemnity basis. HCCT 66/2024 [2024 HKCFI 3511]
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]
Remember our Chans advice/165 (reporting the Hong Kong Court of Appeal holding the Hong Kong forwarder liable to pay US$852,339 plus costs and interest to the Indian bank in the air cargo misdelivery case)? On 19/5/2016, the Court of Final Appeal dismissed the Hong Kong forwarder’s application for seeking leave to appeal. [FAMV Nos 45 & 52 of 2015]
The High Court of Hong Kong issued a Judgment on 4/5/2012 explaining some legal principles as to when shipowners should fear the arrest of their ships. [HCAJ 141/2010]
More than 10 years ago, we broke new grounds unheard of before among insurance brokers by introducing genuine claim support (by truly employing a team of professional transport claim handlers) independent of that from the insurers. Since then, the knowledge advantage of the insurer over that of the transport operator insured has been evened. Those who buy transport liability insurance are truly better protected with professionals standing at their side who really know the freight industry and are conversant in transport insurance and claims handling.
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 21 July 2023 in relation to a case that an aircraft (worth at least USD 80 million) and its cargoes were destroyed by a fire caused by the goods of chlorine dioxide disinfection tablets. [HCA 837/2022] [2023 HKCFI 1896]
The Hong Kong High Court issued a 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 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 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 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 District Court issued a Judgment on 8/2/2011 holding a Hong Kong forwarder liable for its refusing to release the cargoes to a consignee without production of the original straight Bill of Lading. [DCCJ 3467/2009]
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 Judgment on 23/12/2013 dealing with an application for security for costs in relation to a ship sinking case. [HCAJ 213/2009]
The English Court of Appeal issued a Judgment on 31/7/2009 holding a charterparty clause (concerning late redelivery) as a penalty clause and thereby unenforceable. [2009] EWCA Civ 855;[2009] All ER (D) 35 (Aug)
The English High Court issued a Judgment on 15/5/2015 maintaining an anti-suit injunction to restrain the Xiamen Maritime Court’s legal proceedings in breach of a London arbitration agreement. [Case No: 2015-515], [2015 WL 2238741], [2015 EWHC 1974 COMM]
The 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 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 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 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 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 Court of Appeal’s Judgment dated 11/4/2008 explained some legal principles relating to whether indemnity claims are allowed by in rem legal actions against vessels. [CACV 257/2007]
Remember our Chans advice/138 regarding the Hong Kong High Court’s Judgment holding the He Da 98’s owners fully liable in the collision that happened off Shanghai? The Hong Kong High Court issued its Decision on 18/1/2013 dealing with the damages to be paid to the Pontodamon’s owners. [HCAJ 200/2007]
The 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 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 Court of Appeal issued a Judgment on 29/1/2016 dealing with a case of one or two days’ delay in appeal in relation to a barge sinking accident. [HCMP 3172/2015]
The Hong Kong 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 Hong Kong High Court issued a Judgment on 5/8/2015 holding that a shipment of formula milk powder without the legally required export licence should not be forfeited. [HCMA171/2015]
The Hong Kong High Court issued a decision on 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 English High Court issued a Judgment on 2/4/2014 holding the Hague Visby Rules instead of the Hague Rules (as incorporated by a Paramount Clause) to apply to a shipment ex Belgium. [Case No: 2012 Folio 102, 2014 EWHC 971 Comm, 2014 WL 1219313]
The Hong Kong High Court issued a Judgment on 27/5/2011 in relation to an air shipment that a forwarder issued two sets of its House Air Waybills to two different parties for one lot of cargoes. [HCCL 117/1994]
Remember our last issue Chans advice/129 that the forwarder was held liable for its refusing to release the goods to the named consignee without original straight Bill of Lading? On 12/8/2011, the Hong Kong Court of Appeal issued a Judgment dismissing the forwarder’s application for leave to appeal. [HCMP 683/2011]
The 10th annual SMIC seminar on Forwarders’ Standard Trading Conditions wrapped a decade of unabated effort hammering for the freight industry’s attention to loss prevention by proper freight documents. The topic had attracted over 300 participants to attentively listening for 3 hours in the YMCA Assembly Hall. We thank them all for the patience.
The Hong Kong High Court issued a Judgment on 22/11/2013 concerning an unless order in relation to a freight forwarder’s claims for outstanding freight charges of HK$4,427,336. [HCA 1755/2011]
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 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]
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.
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 12th annual SMIC seminar on uncollected cargoes pulled some 300 participants to attend with much curiosity for 3 hours in the YMCA Assembly Hall. The accumulated questionmarks and enigmas about the subject matter lurking in the trade were unleashed among the audiences.
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]
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.
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$89,838.
The Hong Kong High Court issued a Judgment on 24/11/2015 dealing with a mandatory injunction and specific performance in respect of a letter of indemnity in connection with a delivery of cargo without production of the original bills of lading. [HCCL 12/2015]
The Shanghai Maritime Court issued a Judgment on 24/12/2009 to deal with the question whether a shipping company could charge the container demurrage based on the tariff published on its website.
Without even knowing, we have published including this one 200 issues of the Chans Advice. As this is a monthly bulletin, 100 issues took more than 8 years and 200 issues took 17 years to run.
The High Court of Hong Kong issued a Judgment on 3/2/2012 concerning which currency (US$ or Euro) should be the proper one for the cargo owners in a shipment to claim against the forwarder for compensation in a cargo damage case. [HCAJ 152/2010]
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 English Court of Appeal issued a Judgment on 20/1/2011 holding two clauses in the standard trading conditions of the British International Freight Association valid. One of them was about all sums due to the forwarder to be paid without reduction or deferment on account of any claim, counterclaim or set-off. The other was about the 9-month suit time limit. [2011] All ER (D) 128 (Jan); [2011] EWCA Civ 18
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]
