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]
Background
The Plaintiffs were the shipper, consignee/receiver and insurer respectively of a “reefer” container containing frozen beef (“Cargo”) carried from Australia to Japan under a contract of carriage by sea evidenced by a house sea waybill issued by the forwarder Toll HK to the 1st Plaintiff dated 16 June 2022 (“Toll Waybill”).
OOCL was the shipping company which carried the Cargo. OOCL agreed to carry the Cargo under a contract of carriage by sea entered into via dealings by Toll Australia on OOCL’s online platform. That contract was evidenced, in part, by the OOCL Waybill issued also on 16 June 2022 to Toll Australia.
The Plaintiffs claimed damages against both Toll HK and OOCL in respect of the alleged total or constructive loss of the Cargo. They alleged that the Cargo was sound on loading and was found damaged on arrival, giving rise to a prima facie cause of action. Further, the reefer mechanism had failed at some point, causing the Cargo to warm, and the Cargo was rendered unsaleable in Japan.
Toll HK in turn brought a claim for indemnity against OOCL. Toll HK was a member of the Toll group of companies (“Group”) operating internationally. Toll Australia operated in Australia. Toll HK was based in Hong Kong and, as part of its business, issued house sea waybills as carrier for cargoes arranged by other companies within the Group. It held the NVOCC licence for the Group.
The 1st Plaintiff dealt with Toll Australia in booking the carriage of the Cargo. Toll Australia in turn dealt with OOCL for the actual sea carriage. The 1st Plaintiff was provided with an OOCL container in which the Cargo was packed and the container was then returned to OOCL. Toll Australia, acting on behalf of Toll Hong Kong, then issued the Toll Waybill to the 1st Plaintiff. The 1st Plaintiff and Toll HK were therefore in a contractual relationship as shipper and carrier under the Toll Waybill.
It was the case of Toll HK that Toll Australia, acting as forwarder and booking party, booked the carriage of the container with OOCL, obtained the OOCL Waybill and was named as shipper on that document.
Toll HK said that in this case, Toll HK, not being the actual carrier, was dependent on information from OOCL to defend the Plaintiffs’ claim. The proposition sat with common sense.
Strike out
The Third Party (OOCL) filed a Summons on 29 February 2024 seeking to strike out the Defendant’s (Toll HK) Third Party Statement of Claim (“TPSOC”) against OOCL. The strike out was based on O18, r19(1)(b) and (d), and the grounds were set out in the Summons :
(1) Toll HK’s claims under OOCL’s Master Sea Waybill (“OOCL Waybill”) were contractually time-barred; (2) Toll HK’s claims were made under the OOCL Waybill to which Toll HK was not a party, and which did not otherwise afford Toll HK locus standi to bring the claims; (3) Toll HK’s claims were brought in bailment, under the Carriage of Goods by Sea Ordinance, Cap 462, and other bases without any locus standi.
Issue
In truth, there was only 1 issue in this application, namely, whether Toll HK had a contract with OOCL by which Toll HK was entitled to sue. This was the “locus” issue.
Toll HK had made it clear that Toll HK was not relying on bailment. As for the time bar, there was no issue that Toll HK’s claim against OOCL was brought within time, the point was whether the claim was a valid one. Hence, it was the same locus point.
Applicable principles
Given that this was a strike out application, the threshold which OOCL had to meet was high. A claim is frivolous if the “litigant brings a claim knowing that there is no substance in it or that it is bound to fail, or if the claim is on its face so manifestly misconceived that it can have no prospect of success”, and a claim is vexatious if the litigant does something beyond what is necessary for the conduct of litigation with “some spite, or desire to harass the other side to the litigation, or some other improper motive”. A claim is frivolous or vexatious (O18, r19(1)(b)) is a serious finding to make: Yifung Properties Ltd v Manchester Securities Corp, unrep, HCA 1341 & 1359/2014, 19 October 2015, [12]-[14].
Under O18, r19(1)(d) (abuse of process), the court has the power to ensure that its process is used properly and must not be abuse. The court will prevent its machinery from being misused for a groundless action, e.g., one which is time-barred or one entirely without substance. This jurisdiction is discretionary and only to be exercised in plain and obvious case: Hong Kong Civil Procedure 2024, vol 1, [18/19/9].
Undisclosed principal
OOCL submitted that the only gateway for Toll HK to succeed in its third party contractual claim was to establish that it was an undisclosed principal to the OOCL Waybill. Hence, this strike out turned solely on the issue whether Toll Australia was acting as an agent for an undisclosed principal (Toll HK) in relation to the OOCL Waybill.
The principles on undisclosed principal can be found in the judgment of the Privy Council in the case of Siu Yin-kwan v Eastern Insurance Co Ltd [1994] 1 HKLR 77 at 83 :
“(1) An undisclosed principal may sue and be sued on a contract made by an agent on his behalf, acting within the scope of his actual authority. (2) In entering into the contract, the agent must intend to act on the principal’s behalf. (3) The agent of an undisclosed principal may also sue and be sued on the contract. (4) Any defence which the third party may have against the agent is available against his principal. (5) The terms of the contract may, expressly or by implication, exclude the principal’s right to sue, and his liability to be sued. The contract itself, or the circumstances surrounding the contract, may show that the agent is the true and only principal.”
In the Judge’s view, the issue of Toll HK being the principal contracting party had been adequately pleaded in paras 8 and 10 of the TPSOC :
“8. [Toll HK] via its local agent in Australia, [Toll Australia], sub-contracted the carriage of the Container and/or the Cargo to OOCL. … 10. At all material times, [Toll HK], as principal contracting party, was the person entitled to sue in respect of the Container and/or Cargo and/or a party to the [OOCL Waybill] and/or the party entitled to demand delivery of the Container and/or Cargo under the [OOCL Waybill] and/or the lawful holder of the [OOCL Waybill].”
In paras 3(5) and (8)(a) of Toll HK’s Third Party Reply and Defence to Counterclaim, it was pleaded that (a) in the online booking with OOCL, Toll Australia’s name was entered as both “Shipper” and “Forwarder” and (b) in the subsequent “Forwarding Instruction” sent by Toll Australia to OOCL online, Toll Australia was referred to as the “Forwarder”.
In respect of OOCL’s complaint of inadequacy of Toll HK’s evidence on undisclosed principal, the Judge was unable to agree. Putting aside whether such complaint had a place in a strike out application, the evidence in support of an undisclosed principal may be inferred. The Toll Waybill was issued in Australia by Toll Australia “on behalf of the Carrier” – Toll HK. The indisputable factual matrix of this case demonstrated that Toll Australia was not acting as the carrier. Vis-à-vis the Plaintiffs, Toll HK was the carrier, and one of its sister companies, Toll Australia, was acting as its agent in dealing with the actual carrier – OOCL. These facts were in any case evident on the face of the Toll Waybill. Further, they had been sufficiently set out in the affirmation of Toll HK dated 30 April 2024.
The Judge did not believe that the criticism that Toll HK had adduced no evidence that the Toll Waybill was issued by Toll Australia was a good point. It was quite clear from the evidence that there was no other entity in Australia who would have done that.
The above arrangement went a long way to show that Toll Australia was acting as the agent of Toll HK in entering into a contract with OOCL.
Whether OOCL knew about the existence of undisclosed principal was irrelevant. OOCL did not dispute that Toll HK, as principal, was entitled to sue in its own name without joining its agent.
The Judge agreed with Toll HK that if there was any factual dispute, it was a matter for trial.
Disposition
In the premises, the Judge was unable to see any sound basis for striking out Toll HK’s claim against OOCL. The Summons had to be dismissed.
Please feel free to contact us if you have any questions or if 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
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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]
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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]
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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]
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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]
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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]
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We have received a lot of cargo claims from our forwarder clients in the recent months. In this issue, we would like to discuss in general how the forwarders should handle the cargo claims.
The Hong Kong 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).
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 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 PRC Supreme Court on 26/11/2015 issued a Judgment holding a shipping company’s container demurrage claim against a shipper time barred. [2015民提字第119號]
The Hong Kong High Court issued a Decision 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]
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.
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.
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 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]
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 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 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]
We reported in our Chans advice/252 that the Hong Kong High Court held Hyundai Hong Kong’s ex-Deputy General Manager (Mr Ma) liable to compensate HK$387,655,303.70 to Hyundai Hong Kong in the case of his theft of his employer’s money. On 23 December 2022, the Hong Kong High Court issued a decision ordering a sum of HK$500,000 (which was deposited by Mr Ma as bail money) to be released to Hyundai Hong Kong in partial satisfaction of Mr Ma’s judgment debt. [HCA 619/2016] [2022 HKCFI 3798]
The Court of Appeal of Hong Kong issued a judgment on 28 March 2019 dealing with a matter concerning the sale pendente lite of an oil tanker Brightoil Glory. [CAMP49/2019][2019HKCA395]
The English 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 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]
The Hong Kong Court of Appeal issued a Judgment on 20 February 2019 dismissing Changhong Group’s appeal against the High Court’s Decision of 15 November 2018 (reported in Chans advice/215) because Changhong Group had not obtained leave to appeal from the Hong Kong High Court. [CACV576/2018] [2019HKCA246]
Following the issue of Chans advice last month, we would like to report the latest decision issued by the court over this theft case. On 17 January 2023, the Hong Kong High Court dismissed Mr Ma’s application to withdraw HK$1.5 million out of his frozen assets for paying the legal costs for his appeal against conviction in theft. [HCA 619/2016] [2023 HKCFI 197]
The High Court of Hong Kong issued a Decision on 31/8/2018 concerning a feeder company’s claim against a shipping company’s lawyer for wasted costs. [HCA1919/2016] [2018HKCFI1879]
The Hong Kong High Court issued a Judgment on 13 August 2021 holding a forwarder liable to pay nominal damages of HKD1,000 to a shipper in a cargo misdelivery claim case of USD1,299,189.87. [HCA 937/2016] [2021 HKCFI 2310]
The Hong Kong High Court issued a Decision on 9/5/2017 allowing a time extension for some cargo interests to claim against the Tonnage Limitation Fund constituted by the owner of one of the two vessels involved in a collision that happened on 7/11/2013. [HCAJ 189/2013]
The 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]
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]
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.
