The Hong Kong High Court issued a Judgment on 10/12/2012 dealing with a collision between two vessels off Shanghai. [HCAJ 218/2009]
On 4/3/2008 the container vessel OOCL China collided with the vessel Darya Bhakti off Shanghai in the Mainland.
As a result of the collision separate Admiralty actions were commenced by the 2 ship interests. The claims of the Darya Bhakti had been agreed.
By the Admiralty action in the Hong Kong High Court, the OOCL China’s owners and/or demise charterers (“OOCL”) claimed against the Darya Bhakti’s owners and/or demise charterers (“Darya”) for damages and/or loss and/or expenses incurred or suffered by OOCL by reason of the collision which collision was caused by the negligence and/or breach of duty of Darya and/or their employees and/or agents, with interest and costs. The parties had agreed to deal with the assessment of the claims of the OOCL China in the reference before the Judge and then to separately address issues of liability which the Judge was not concerned with. OOCL’s claims in the reference was filed on 12/8/2011. The defence was filed on 7/10/2011. OOCL’s reply was filed on 2/12/2011. OOCL’s filed an amended claim on 21/6/2012.
At the time of the collision the OOCL China was on time charter to Malaysian International Shipping Corporation (“MISC”) under a time charterparty dated 20/5/2005 and in the course of a voyage from Shanghai to Busan in South Korea. She was carrying 2,572 containers. MISC was at that time a member of the Grand Alliance under the Grand Alliance Operating Agreement (“GAOA”) between members of the Grand Alliance consisting of the linear consortium of OOCL, MISC, Hapag-Lloyd (“HL”) and Nippon Yusen Kaisha (“NYK”). Pursuant to the GAOA, members of the Grand Alliance provided ships for the various services operated by the Grand Alliance with a view to maximize profits and minimize expenses. MISC had time chartered the OOCL China for the purpose of providing a suitably sized ship for Grand Alliance’s Trans-Pacific Central China Express service (“CCX”) under the terms of the GAOA. Under the terms of the GAOA, the operating carriers chartered out slots on their ships to other Grand Alliance members. Although the OOCL China was chartered out by OOCL to MISC, 45.97% of the total slots were chartered back to OOCL. Of the total slot capacity, OOCL was allocated 45.97%, HL was allocated 22.18% and NYK was allocated 31.844%. MISC itself took no slots on the OOCL China.
As a result of the damage sustained in the collision the OOCL China was refused permission by her Class Society to complete the voyage and was required to undergo immediate repairs. On 13 and 14/3/2008 the containers were unloaded from the OOCL China at the Yangshan Container Terminal in Shanghai and then transshipped onto the OOCL Japan which was a reserve ship which had been standing by off Taiwan. The OOCL Japan was a sister ship of the OOCL China they being of the same size and build. There were temporary repairs carried out in Yangshan. The OOCL China then sailed in ballast to Kaohsiung in Taiwan where it was permanently repaired. The OOCL China was out of service for a total of 44.58 days.
By the order of the Court made on 22/6/2012 it was ordered, inter alia, that the parties filed a list signed by the parties of the items of OOCL’s claims which are not disputed, stating the amount which the parties agreed should be allowed in respect of each such item. Pursuant thereto, a List of Undisputed Claim Items (“the List”) dated 31/10/2012 was signed by the solicitors for the parties. The List was filed on 1/11/2012. The List contained a total of 56 Items. A large number of items had been agreed and that there were only a few disputed items:
In respect of items 1 to 8 inclusive and Items 34 to 48 in the List. These were described as the transshipment costs.
In respect of item 31 (loss of hire) in the List. The amount claimed was amended at the hearing to US$1,427,273.28.
The transshipment costs
On the evidence of OOCL, the Judge was satisfied as to the reasonableness of the quantum of the transshipment costs as claimed in the List. The collision occurred shortly after sailing from Shanghai. The Judge accepted, that there was no option available to the OOCL China other than to discharge her entire containers of cargo at the port of Yangshan in Shanghai as this was the nearest port that the OOCL China could seek refuge in after the collision. The Shanghai Shendong International Terminal (“the terminal”) was the only container terminal in Yangshan. This was not a simple container discharge operation but an emergency operation involving a damaged container ship with damaged containers which had toppled on deck. Also there were containers containing dangerous cargo.
However, there was a serious dispute between the parties as to whether Darya were liable to OOCL for the transshipment costs. Undoubtedly the claims against Darya were in tort and not in contract.
In The “Mineral Transporter” [1985] 2 Lloyd’s Rep. 303 it was held that the general proposition was that a time charterer was not entitled to recover for pecuniary loss caused by damage by a third party to the chartered vessel because a time charterer had no proprietary or possessory right in the chartered vessel and his only right in relation to the vessel was contractual.
The Judge was unable to accept Darya’s submission that the claim for the transshipment costs amounted to a claim for economic loss in tort which was not recoverable. The Judge agreed with OOCL that the claim for the transshipment costs was clearly not a claim for economic loss. The transshipment costs were port of refuge expenses arising out of the physical damage to the OOCL China as a result of the collision. This was not a claim for loss of profits or earnings but for costs which were necessarily incurred to repair the damaged vessel and to ensure that the cargo arrived at its destination. OOCL made it plain that the claim for the transshipment costs was made as owner in its own right and not in a derivative capacity on behalf of cargo owners or on behalf of MISC.
OOCL relied on Morrison Steamship Company Ltd v Greystoke Castle (Cargo Owners) [1947] AC 265. In that case two ships having been in a collision, one was afterwards held one-fourth to blame and the other three-fourths to blame. The latter had to put into port for repairs and there discharge and re-load her cargo, whereby a general average expenditure was incurred. The cargo owners who became liable to their shipowners for general average contribution, brought an action against the owners of the colliding ship, claiming one-fourth of this contribution. It was held by a majority of the House of Lords that the cargo owners had a direct claim against the owners of the colliding ship, for a proportion of the general average contribution, on the ground that their obligation was to share in that expenditure ab initio even though that responsibility might be divested or diminished by the subsequent chances of the voyage, and was not merely an obligation to contribute by way of indemnity towards the expenditure of the owners of the cargo-carrying ship; the cargo owners, being thus under a primary liability for their share of the expenses, had a direct claim against the appellants, not a derivative claim by way of subrogation. OOCL relying on Greystoke Castle submitted that a ship owner had an independent claim in its own right for port of refuge expenses.
There was no claim by the cargo owners in the case in question. However, there was a claim by MISC against Darya as a result of the collision on 4/3/2008. In May 2010 MISC arrested the vessel Darya Shakti being an associated vessel of the Darya Bhakti in the Republic of South Africa pursuant to a warrant of arrest in the Admiralty action brought by MISC in that jurisdiction. The claims made by MISC were, inter alia, for damages suffered by MISC in the nature of costs and expenses incurred by MISC in respect of, inter alia, the discharge, survey and transshipment of containers carried on board the OOCL China. The Darya Shakti was eventually released when the vessel’s hull underwriters provided a letter of undertaking by way of security. The South African proceedings had not been discontinued and the security had not been returned. OOCL also submitted that to prevent the situation arising where Darya would be paying twice for the transshipment costs, OOCL would undertake not to claim against MISC for the transshipment costs in the pending arbitration proceedings that they had brought against MISC in London.
The Judge accepted that a shipowner could make its own independent claim against the colliding ship for the port of refuge expenses. This was a claim in its own right and not a derivative claim on behalf of the cargo owners.
The problem with OOCL’s claim against Darya for the transshipment costs was that OOCL had neither incurred nor paid for the transshipment costs on the evidence before the Judge. At a meeting held in Shanghai on 20/3/2008 following the container discharge operation in Shanghai it was agreed by the representatives of OOCL, MISC, HL and NYK that the transshipment costs would be settled by MISC. MISC was no longer a party to the GAOA. As MISC was leaving the GAOA, there was a final accounting process in 2012 whereby MISC was due to pay OOCL the sum of US$7,912,960. However, on or about 21/2/2012 MISC paid OOCL the sum of only US$2,120,282.75. In arriving at this sum it seemed that MISC deducted certain sums which included the sums of US$37,584.78 (Items 1 to 8 in the List) and US$930,184.30 (Items 34 to 48 in the List). MISC deducted the transshipment costs which MISC had incurred and paid for in 2008. Apparently, in 2012 MISC were adopting a stance that the agreement that it had reached with OOCL on 20/3/2008 was only an interim arrangement.
OOCL submitted that although OOCL did not initially pay for the transshipment costs, OOCL had now paid for the costs by the deductions made by MISC. The Judge was unable to accept OOCL’s submission. OOCL gave evidence that the agreement reached with MISC on 20/3/2008 was a binding agreement. On OOCL’s evidence it was certainly not an interim arrangement, as suggested by MISC only in 2012 about 4 years after the meeting on 20/3/2008. Following the meeting on 20/3/2008 OOCL were proceeding on the basis that the transshipment costs were incurred and paid by MISC as there was a binding agreement with MISC. The Judge accepted that OOCL did not incur and was not liable for the transshipment costs. OOCL also did not pay the terminal the transshipment costs. OOCL also said that MISC was not entitled to make the deductions of the transshipment costs that it made in the final accounting process with OOCL. The Judge found that MISC made the deductions without the authority or consent of OOCL. The Judge was satisfied that there was a binding agreement between OOCL, MISC, HL and NYK that MISC would be liable for the transshipment costs. That being so, MISC was not entitled to deduct the same from payments due to OOCL in the final accounting process in February 2012. There was no reason why OOCL shouldn’t claim these back from MISC. Indeed OOCL intended to do so in the pending arbitration proceedings in London.
In the Judge’s judgment OOCL failed to establish the claim for the transshipment costs against Darya. This claim was disallowed.
Loss of hire
This was in respect of Item 31 in the List. The amount claimed was amended at the hearing to US$1,427,273.28. This was based on the loss of hire of the OOCL China for the off hire period which was agreed at 44.58 days. The daily loss was US$32,016 based on the financial capacity slot concept in the GAOA. The market rate was more or less the same. The Judge accepted, the vessel was earning hire at the rate of US$32,016 per day. OOCL therefore claimed US$1,427,273.28 (44.58 days x US$32,016).
Whilst OOCL was entitled to receive charter hire at the rate of US$32,016 per day from MISC, MISC was entitled to receive slot hire from OOCL for 45.97% of the total slot capacity of OOCL. There was no dispute that the slot hire payable by OOCL to MISC was calculated at the same rate as the charter hire payable by MISC to OOCL. Therefore, but for the collision OOCL would have been receiving a daily sum of US$32,016 but would also have been paying a daily sum of US$14,717.75 (US$32,016 x 45.97%).
OOCL submitted that the full cost of hire without deductions should be assessed as the loss of hire to OOCL. The Judge was unable to accept OOCL’s submission. OOCL Japan was the substitute vessel during the off hire period of the OOCL China. The containers that would have been carried on the OOCL China were all carried on the OOCL Japan. OOCL became entitled to 45.97% of the slots on the OOCL Japan. However, because the OOCL Japan was its own vessel OOCL did not have to pay any slot hire for the 45.97% of the slots on the OOCL Japan. Whereas OOCL had to pay MISC for the 45.97% of the slots on the OOCL China, it did not have to pay any slot hire for the 45.97% of the slots on the OOCL Japan. This represented a saving to OOCL. OOCL agreed that when the OOCL Japan was substituted as the vessel during the off hire period of the OOCL China, OOCL still managed to earn freight on the containers that were shipped on the OOCL Japan. There was, therefore, no loss of freight earning capacity. Instead of earning freight from the OOCL China, OOCL earned freight from the OOCL Japan.
The Judge found that the proper approach in assessing the loss of hire as a result of the collision was to deduct the saving that OOCL made by not paying slot hire for the 45.97% slot capacity for the containers shipped on board the OOCL Japan from the loss of hire during the off hire period. In the Judge’s view, this represented the real loss to OOCL. The Judge would assess the claim for loss of hire in the sum of US$771,156 ($32,016 – $14,717.75 x 44.58 days).
Conclusion
The Judge assessed OOCL’s claims in the total sum of US$5,158,561.16 made up as follows:
(1) The agreed items
US$ 4,094,864.25
(2) Item 32 in the List (bunkers consumed)
US$ 241,466.05
(3) Item 31 in the List (loss of hire)
US$ 771,156.00
(4) Item 56 in the List (agency, agreed at 1% of assessed amount)
US$ 51,074.86
US$ 5,158,561.16
Please feel free to contact us if you have any questions or you would like to have a copy of the Judgment.
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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]
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]
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 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 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 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 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 16 January 2019 dealing with the appeal of the wasted costs’ case reported by our Chans advice/214. [HCA1919/2016] [2019HKCFI127]
The Hong Kong Court of Appeal issued a Judgment on 20 September 2019 declining to give leave of appeal to Changhong Group in relation to the High Court Decision dated 29 January 2019 (reported in our Chans advice/221). [CAMP197/2019] [2019HKCA1061]
In our Chans advice/169 last month, we mentioned the English Court’s Judgment dated 14/10/2014 holding CSAV’s bill of lading’s English jurisdiction clause to be an exclusive jurisdiction clause. In this issue, let’s look at that English High Court Judgment [2013 Folio No 1248, 2014 EWHC 3632 Comm, 2014 WL 5113447] issued by Justice Cooke in detail.
The Hong Kong High Court issued a 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 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 21/7/2014 discharging a Mareva injunction in relation to a cargo misdelivery claim of about US$12 million. [HCA 2368/2012]
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:
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 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.
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 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 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 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 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 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.
The Hong Kong District Court issued a Decision on 30 April 2021 dealing with a personal injury case in relation to a container terminal. [DCPI 110/2020] [2021 HKDC 463]
The Hong Kong High Court 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]
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]
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.
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]
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]
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 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]
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.
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.
Are Standard Trading Conditions (“STC”) equivalent to the House Bill of Lading (“HB/L”) terms or the House Air Waybill (“HAWB”) terms? We have been frequently asked this question by our forwarder clients.
The 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.
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 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]
The Hong Kong High Court issued a Decision on 13 May 2021 to deal with an interpleader action concerning the stakeholding of US$700,000 in relation to a dispute over some management fees between two transport operators. [HCMP510/2020] [2021 HKCFI 1373]
The Hong Kong High Court issued a Decision on 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 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 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$90,000,000 against the owners of a container ship. [HCAJ 31/2020] [2021 HKCFI 1283]
In the transport industry, the contracts of carriage (e.g. Bills of Lading, Air Waybills) usually contain an exclusive jurisdiction clause for settling disputes. However, it is not uncommon that the shippers and consignees sue the transport operators in a court other than the one specified in the exclusive jurisdiction clause. In Hong Kong, the transport operators may rely on the Foreign Judgments (Restriction on Recognition and Enforcement) Ordinance to tackle this kind of situation.
Following the Hong Kong Court of Appeal’s Judgment dated 11/3/2015 discharging the Mareva Injunctions and the receivership orders (mentioned in our monthly newsletter of Chans advice/171 two months ago), the Hong Kong High Court issued a Judgment on 12/5/2015 to determine the question of who should pay the remuneration to the receivers. [HCMP 1449/2014]
In our newsletter last month, we talked about some essential terms in house Air Waybills. In this issue, as the continuation of the loss prevention exercise for freight forwarders, we would like to discuss some essential terms in house Bills of Lading.
The High Court of Hong Kong issued a Judgment on 3/2/2012 concerning which currency (US$ 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 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]
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 the issue of our Chans advice last month, we talked about the major provisions of the Montreal Convention (which is for the international carriage of goods by air). In this issue, we would like to discuss the major terms of an equally important international convention for the international carriage of goods by sea, viz. the Hague Visby Rules.
We 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 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]
Our Chans advice/191 reported a Hong Kong High Court’s case concerning a shipping company’s restitution claim against its former deputy general manager (Mr Ma) for HK$387,655,303.70. The latest development of this case is: the Hong Kong High Court issued a Judgment on 1/2/2018 and a Decision on 9/2/2018 holding that Mr Ma was in contempt of Court as a result of his breach of a Mareva Injunction Order and that he be committed to prison for 4 months. [HCMP1115/2017] [2018 HKCFI176] [2018 HKCFI328]
The English Court of Appeal issued a Judgment on 13/12/2017 dealing with a cargo damage claim of EUR2,654,238 and a charter hire claim of USD1,012,740 in connection with a NYPE charterparty. [2017 EWCA Civ 2107] [2017 WL 06343564] [Case No. A3/2016/4770]
In 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 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 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]
In Chans advice/14 dated 28/2/2002, we discussed this topic 15 years ago. In its Judgment dated 16/10/2017, the District Court of New South Wales in Australia had to deal with, inter alia, a malpractice that a forwarder issued its own house B/Ls but signed off with as agent for China Ocean Shipping, Pacific International Lines, Mitsui O.S.K. Lines Limited or Orient Overseas Container Line without authority. [2017 NSWDC 279]
The Hong Kong 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 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 22/5/2017 holding that the District Court has jurisdiction to determine bill of lading and bailment cases. [HCAJ 150/2014]
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]
