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.
This was the trial of CSAV’s claim for a permanent anti-suit injunction and for declarations and damages in respect of alleged breaches of Hin-Pro of the jurisdiction clause contained in bills of lading by taking proceedings in China. Hin-Pro did not attend the trial. It chose to ignore the proceedings, and indeed the related action in 2012, and was in breach of various court orders. In the context of the 2012 action, it was found to be in contempt of court.
Hin-Pro was a freight forwarder registered in Hong Kong. The disputes between CSAV and Hin-Pro concerned allegations of mis-delivery. Hin-Pro alleged that CSAV wrongly delivered cargo without production of original bills of lading in various ports in Venezuela. The bills of lading in question were all CSAV bills, showing shipments from China to Venezuela. The bills were straight bills naming Raselca as consignee. Some of those bills named Hin-Pro as shipper, but others named different companies, namely Hefei Hauling and Moonlight Trading.
It was CSAV’s position in the Chinese proceedings that no mis-delivery took place, because Venezuelan law required that cargo should be delivered to the storage provider authorised by the Venezuelan Government. The exception to the rule arose where a direct discharge or urgent shipment request was made, but that did not apply to the shipments in question. Thus, CSAV were legally obliged under Venezuelan law to deliver the goods to the authority which then had sole control over the goods. CSAV’s case was that not only was delivery so made, but that all the goods were in fact on-delivered to Raselca, Hin-Pro’s agents in Venezuela, and then on-delivered by them to the buyers of the cargo.
What was sought from the English court was an injunction in relation to the Chinese proceedings, which were said to have been begun in breach of the jurisdiction clause.
The amounts claimed in the Chinese proceedings involved the value of the cargo carried under the bills, the freight which Hin-Pro claimed it was entitled to receive, and an exchange rate loss, port and other charges and attorney’s costs. The biggest sum was the alleged value of the cargo at approximately $24 million.
Hin-Pro were freight forwarders. It was hard to see how they could be the sellers of the goods, or to have suffered the loss claimed in respect of the cargo value. It was CSAV’s case that the actual sellers were Chinese companies, who sold on a C & F basis, and who had in fact been fully paid for the goods. The claim made in China was, therefore, said to be dishonest.
In 2012 Hin-Pro commenced proceedings in the Wuhan Maritime Court against CSAV under 5 bills of lading.
In November 2012, CSAV commenced action 2012 Folio No 1519 in the English High Court, seeking an anti-suit injunction prohibiting Hin-Pro from pursuing or taking any further steps in the Wuhan proceedings on the basis of a breach of the jurisdiction clause in the bills of lading. Burton J granted an ex parte interim injunction, and that was continued as an inter partes hearing by order of Andrew Smith J at the end of November 2012. Hin-Pro did not in fact attend the inter partes hearing in London, and did not comply with the order. Instead, it progressed the matter in Wuhan. In consequence, there was a committal hearing in the English High Court on 21/3/2013, at which it was found that both Hin-Pro and its sole director, Ms Su were in contempt of court. Ms Su was sentenced to imprisonment for 3 months, and permission was given for writs of sequestration to be issued against Hin-Pro.
Between May and July 2013, Hin-Pro commenced 23 sets of proceedings in Guangzhou, Qingdao, Tianjin, Ningbo and Shanghai in respect of a further 70 bills of lading. In each, Hin-Pro alleged that it was the named shipper on the bill, or, alternatively, that “Although not specified as the shipper on the bill, it was the statutory and actual shipper” CSAV challenged the jurisdiction of the court in China, but its challenges were dismissed, since Chinese courts apparently disregard agreed jurisdiction clauses.
The English legal proceedings in question was then begun by CSAV, and permission to serve out of the jurisdiction was granted. A claim form was served at Hin-Pro’s offices in Hong Kong on 10/10/2013.
On 10/10/2013 an application notice was served on Hin-Pro seeking an inter partes anti-suit injunction in relation to the 2013 proceedings commenced in China. No response was received to the application notice, and no evidence filed by Hin-Pro. On 29/11/2013 Blair J granted an inter partes anti-suit injunction in this action. Once again, however, that injunction was ignored.
On 27/5/2014 the Ningbo Court issued a judgment in one of the cases before it. The Chinese court awarded damages for the value of the cargo claimed, some $360,000, and legal costs in Chinese currency of 100,000. However, the court disallowed Hin-Pro’s claim for freight on the basis that they were sellers on C & F terms. The sums awarded by the court in that action have been paid by CSAV to Hin-Pro.
An ex parte worldwide freezing order was granted by Walker J on 13/6/2014. When granting it on CSAV’s application, he said:
“I am satisfied that there is good reason for concern that Hin-Pro’s activities in China involve a fraudulent bringing of proceedings and there are good grounds to fear that they may result in execution in China so as to force CSAV to pay a sum which, when combined with costs in this country, would total something in the region of USD27,845,000. Similarly I am satisfied that there are strong grounds for thinking that a cause of action has accrued now, even though a substantial part of the damages may not be suffered until sometime in the future … Great care has been taken by those advising CSAV to ensure that appropriate proceedings are brought here and in Hong Kong.”
The order froze assets worldwide up to the sum of $27.835 million and required disclosure of worldwide assets and a verifying affidavit. On the return date Hin-Pro did not attend, and the freezing order was continued by Eder J on 27/6/2014. At about the same time, a freezing order was sought and obtained on an ex parte basis in Hong Kong. Hin-Pro was a Hong Kong registered company, and the assistance of the Hong Kong court was considered necessary to seek to preserve Hin-Pro’s assets there. The Hong Kong order was served on 17/6/2014, and once again time limits passed without Hin-Pro complying with the order for disclosure of information or an affidavit as to assets. Hin-Pro did not attend on the return date in Hong Kong on 20/6/2014.
In those circumstances, CSAV sought and obtained the appointment of a receiver in Hong Kong on 17/7/2014, and it was following that that Hin-Pro appointed lawyers in Hong Kong to act for it, and commenced attempts to stay or set aside the Hong Kong freezing order and the appointment of the receiver.
A further judgment was then handed down by the Ningbo court on about 10 September, and a sum of $652,936 was awarded in respect of cargo value, with legal costs in local currency of 100,000 again. The claim in respect of freight was once more disallowed.
As Walker J remarked in the context of granting a worldwide freezing order, there were good reasons for considering that the claims brought in China by Hin-Pro were dishonest claims, based on false documents purporting to show contracts in the form of a master agreement and sales confirmations between Hin-Pro and Raselca. On the evidence, Hin-Pro was a freight forwarder, and, as it recognised itself in correspondence in 2012, would not suffer any loss in relation to the value of the cargo unless the seller for the cargo remained unpaid and then sued Hin-Pro for its value. Initially that was how Hin-Pro described its potential claim in a letter of complaint sent on 8/6/2012. In October 2012 Hin-Pro also agreed to withdraw the Wuhan proceedings if CSAV paid $1.8 million by the end of the month, and stated that it would not file any law suit against CSAV for the shipments so long as nobody lodged claims against it in respect of mis-delivery. The claims in China which were issued thereafter, however, did seek to claim the value of the cargo. The statements of claim put forward the position that “a foreign client” commissioned Hin-Pro to “arrange for the shipment of some purchased cargo” from China to Venezuela, with the role of Hin-Pro being described as “booking space and arranging for shipment”. Hin-Pro thus described itself in classic terms of freight forwarding.
In April 2014, however, Hin-Pro disclosed in the Ningbo court a master sale agreement supposedly dated 20/1/2011 between Hin-Pro and Raselca. That showed an intention for Hin-Pro to sell, and Raselca to buy, various different types of product ranging from shoes, to industrial parts, to medical instruments and supplies, up to a total value of US$45 million. The master sale agreement noted that quantities and individual prices were to be specified in separate orders, and provided for bills of lading to be sent to the buyer when Hin-Pro received payment of the purchase price. The agreement purported to contain a signature on the part of Raselca, but with no stamp from Raselca or any indication of the identity of the signatory. Furthermore, some 79 sales confirmations were produced by Hin-Pro which again purported to show Hin-Pro as seller and Raselca as buyer of the various cargoes which were the subject matter of the bills of lading. The sales confirmations took much the same form as each other, providing for payment by cash on delivery, with the buyer being obliged to pay the price 10 days after the cargo arrived at destination. The option for payment by a letter of credit had not been utilised, but the ensuing clause which set out documents required to be submitted for banks for negotiation and collection was completed. The sales confirmations purported to contain a signature on behalf of Raselca, but without any stamp from Raselca or indication of the signatory. In China, Hin-Pro alleged that the master agreements and sales confirmations which they had produced were signed on behalf of Raselca by Mr Salazar. Mr Salazar had confirmed to CSAV that he did not sign these documents or enter into any such sale contracts with Hin-Pro at all. Mr Lopez of Raselca signed a similar statement stating there were no sale contracts between Raselca and Hin-Pro, and that Raselca did not sign the documents produced by Hin-Pro. In fact, house bills of lading were issued, as was often the way when the ocean bill of lading named freight forwarders as shippers. Those house bills were issued by an affiliated company of Hin-Pro called Soar International. They had the same registered office in Hong Kong, and Ms Su was the sole director of both these companies. The Soar bills named various Chinese companies as shippers and various Venezuelan companies as consignee. Contact had been made with a limited number of the companies in China whose names appeared on the Soar bills, who indeed confirmed that they were sellers of goods direct to Venezuelan buyers, and that they had been paid for the cargo. Moreover, they said that they had never heard of Hin-Pro. CSAV also obtained copies of various documents relating to cargoes shipped under the bills, which showed that the sellers were not Hin-Pro. These included invoices from the Chinese companies on the Soar bills addressed to the Venezuelan companies appearing on those bills. Evidence was also obtained showing that these invoices had been paid. CSAV thus believed that the documents produced by Hin-Pro did not evidence genuine transactions at all, and that the actual sales were between the various Chinese and Venezuelan companies whose names appeared on the Soar bills of lading. Thus, it was said that Hin-Pro’s assertions in the Chinese proceedings that they were unpaid sellers entitled to claim the price of cargoes were false and fraudulent and based on forged documents. Hin-Pro continued to claim for over $25 million as an unpaid seller, and had two judgments in its favour in relation to specific cargoes.
Clause 23 of the bills of lading reads as follows:
“Law and jurisdiction. This Bill of Lading and any claim or dispute arising hereunder shall be subject to English law and the jurisdiction of the English High Court of Justice in London. If, notwithstanding the foregoing, any proceedings are commenced in another jurisdiction, such proceedings shall be referred to ordinary courts of law. In the case of Chile, arbitrators shall not be competent to deal with any such disputes and proceedings shall be referred to the Chilean Ordinary Courts.”
By the first sentence of this clause each party agreed to submit to the jurisdiction of the English High Court and to the application of English law as the governing law of the contract contained in, or evidenced by, the bill of lading. The question which arose was whether or not the parties had agreed to the exclusive jurisdiction of the English court, with the result that proceedings taken elsewhere, such as those in China, amounted to a breach of contract. If the first sentence of the clause stood alone, it would, by reference to a body of authority, constitute an exclusive jurisdiction clause. In Svendborg v Wansa [1997] 2 Lloyd’s Rep 183 the clause read as follows:
“Wherever the Carriage of Goods by Sea Act 1936 (COGSA) of the United States of America applies … this contract is to be governed by United States law and the United States Federal Court Southern District of New York is to have exclusive jurisdiction to hear all disputes hereunder. In all other cases, this Bill of Lading is subject to English law and jurisdiction.”
Staughton LJ, with whom the other members of the Court of Appeal agreed, said this, referring to his own earlier judgment in the Court of Appeal decision in Sohio Supply Co v Gatoil [1989] 1 Lloyd’s Rep 588 :
“It can be argued that the express mention of exclusive jurisdiction in the first part of the clause excludes any implication that the second part provides for exclusive jurisdiction. On the other hand it can be argued that the author wished to provide for exclusive jurisdiction throughout, and did not think it necessary to repeat the word “exclusive” in the second part… I conclude that the clause does confer exclusive jurisdiction on the English courts. My reasons are in substance, first those which I stated in Sohio Supply Co v. Gatoil (USA) Inc (1989) 1 Ll R 588 at pp. 591–2, and in particular that I could think of no reason why businessmen should choose to go to the trouble of saying that the English Courts should have non-exclusive jurisdiction. My second reason is that the parties in the second part of the clause were plainly saying that English law was to be mandatory if the American Carriage of Goods by Sea Act did not apply; it seems to me that they must have intended English jurisdiction likewise to be mandatory in that event.”
Justice Cooke did not find the first reason entirely persuasive, because parties might wish to provide for a neutral court to have agreed jurisdiction, where they wished to be able to institute proceedings, whilst accepting that other courts might also exercise jurisdiction by reference to their own connection to the dispute and their own procedural rules. The second reason was, in Justice Cooke’s judgment, more compelling, namely that, in agreeing to English law as the governing law, and ex hypothesi therefore the mandatory governing law which allowed of no other law being applied, the parties must be taken also to have intended that the English courts should have exclusive jurisdiction. Self-evidently, English courts would be seen by the parties as best able to apply the provisions of English law which the parties agreed to be applicable in the circumstances.
In British Aerospace v Dee Howard [1993] 1 Ll R 368, Waller J considered a clause which read as follows:
“This agreement shall be governed by and be construed and take effect according to English law and the parties hereto agree that the courts of law in England shall have jurisdiction to entertain any action in respect hereof … ”
He also referred to the Sohio decision and Staughton LJ’s comment that he could think of no reason why parties should go to the trouble of saying that the English courts should have non-exclusive jurisdiction, but could think of every good reason why the parties should choose that some courts should have exclusive jurisdiction, so that both sides could know where all cases were to be tried. He went on to say:
“In the instant case the parties have expressly agreed English law and there would be no need to expressly agree that the English court should have jurisdiction or the English court to have non-exclusive jurisdiction. The English court would in any event have such jurisdiction, and by expressly agreeing to English jurisdiction they must be seeking to add something, i.e. that the English court should have exclusive jurisdiction.”
The tenor of these decisions and Austrian Lloyd Steamship Company v Gresham Life Assurance Society [1903] 1 KB 249, and other decisions to which Justice Cooke had been referred, was clear. An agreement to English law and jurisdiction, absent any other relevant provision in the contract, is generally to be taken not only as an agreement to the mandatory application of English law, but also to the exclusive jurisdiction of the English court.
Under clause 23 of the relevant bills of lading “Any claim or dispute arising under such bills of lading ‘shall be subject to English law and the jurisdiction of the English High Court’”. This was, on its face, clear and applied to all such claims and disputes. The parties agreed that they were to be determined in the English High Court, and, by necessary inference, agreed that they should not be determined elsewhere. The clause was not simply an agreement to submit to the jurisdiction of the English court, which could be read as allowing proceedings to be brought elsewhere, but required that claims and disputes be determined in accordance with English law by the English court.
The issue which arose, however, was whether the clause as a whole, and this sentence when read with the second and third sentences, effectively provided for different courts to have jurisdiction in different circumstances.
The bills of lading provided in clause 2 for a clause paramount and for the application of the Hague Rules, save in three situations. First, where as a matter of English law and the English Carriage of Goods by Sea Act 1971 the Hague-Visby Rules were compulsory applicable. In such circumstances, those Rules would fall to be applied. Secondly, where there were shipments to and from the United States of America, US COGSA was to apply. Thirdly, where the bill of lading was subject to legislation which made the Hamburg Rules compulsorily applicable, then those rules would apply “Which shall nullify any stipulation derogating therefrom to the detriment of shipper or consignee”.
The terms of clause 23 of the bills and the exclusive jurisdiction clause (if that was what it was) must be seen in the light of this provision. There could be no doubt that the second and third sentences of the clause envisaged and provided for the situation where proceedings were brought elsewhere than England. The third sentence specifically referred to Chile, the country where CSAV was incorporated. Chile is a party to the Hamburg Rules. Whereas neither the Hague nor the Hague-Visby Rules make any provision about jurisdiction, the Hamburg Rules, by contrast, do. Article 21 essentially provides that the claimant, at his option, may institute an action in a court within the jurisdiction of which (a) the defendant has his principal place of business or habitual residence; (b) the contract was made; (c) the cargo was loaded or discharged; or (d) any additional places designated by the contract of carriage. Article 23 then provides that any stipulation in the contract is null and void to the extent that it derogates from the provisions of the Convention. An exclusive jurisdiction clause is, therefore, to be of no effect, to the extent that it does not permit actions to be brought in the places designated in Article 21.
Having struggled with the terms of the clause for some time, and in particular the second and third sentences, which provided that proceedings elsewhere than England “shall be referred to ordinary courts of law” and “the Chilean ordinary courts” respectively, Justice Cooke came to a clear conclusion. It seemed odd to Justice Cooke that if the clause was intended to provide for the exclusive jurisdiction of the English courts, it should then go on to provide in the second and third sentences for any breach to be restricted to courts rather than arbitration. The explanation for this lay in the terms of clause 2, the paramount clause of the bill of lading. It was recognised in the bills themselves that, notwithstanding the choice of English law and English jurisdiction, US COGSA or the Hamburg Rules might have application in certain circumstances. If, for example, proceedings were brought by a claimant against CSAV in Chile, as the place where CSAV was incorporated and where the Hamburg Rules would be applied, the first sentence of clause 23 providing for English law and jurisdiction would be null and void under Article 23 of those rules, and Article 21 would be applied to allow suit in Chile under Chilean law. Justice Cooke was persuaded that the words “If, notwithstanding the foregoing”, which followed the first sentence of the clause and preceded the second and third sentences, did indeed take effect as if the clause expressly read “If, notwithstanding the parties agreement that all claims or disputes arising under the bill of lading shall be determined in accordance with English law and by the English High Court”, any proceedings commenced elsewhere shall be determined by ordinary law courts and not by some other mechanism such as arbitration. In short, the second and third sentences did provide a fallback defence, where it was known that the first sentence would be ineffective in some foreign courts.
The result was, in Justice Cooke’s judgment, however odd it might appear, that proceedings begun by a claimant in Chile against CSAV would be brought in breach of clause 23, and CSAV would be entitled to seek an anti-suit injunction, subject to consideration by the court of all other relevant factors. Thus, proceedings brought in China by Hin-Pro were, in Justice Cooke’s judgment, brought in clear breach of clause 23, as was held in the English High Court on an interim basis by Blair J and Andrew Smith J in the 2012 proceedings of a similar kind.
The principles to be applied when proceedings are brought in breach of an exclusive jurisdiction clause are those laid down by the Court of Appeal in The Angelic Grace [1995] 1 Ll R 87. In essence, an anti-suit injunction will be granted where there is a breach of an exclusive jurisdiction clause unless there are strong reasons not to do so. In the case in question there were no strong reasons not to grant an injunction, and every reason why such an injunction should be granted. It was pointed out that proceedings in England would be time barred. The 1-year time bar expired in about June 2013, but before that expiry Hin-Pro knew that CSAV relied on clause 23 as an exclusive jurisdiction clause and knew that the English court had been satisfied that it was an exclusive jurisdiction clause for the purpose of granting an anti-suit injunction in the 2012 proceedings, and knew that the English court regarded Hin-Pro’s conduct in continuing in China as contempt. Nonetheless, it commenced 23 actions in China in May to July 2013 in breach of the clause. That was its own deliberate decision with knowledge of the English High Court’s view. Thus, the falling of the time bar could not amount to a reason, let alone a good reason, to refuse an anti-suit injunction in such circumstances. It would only be where a defendant acted reasonably in not protecting its claim in a contractual forum that it would become a relevant factor.
The English High Court was not concerned with the substance of the dispute between the parties. The English High Court was satisfied that there was a good arguable case that fraud was being perpetrated in China. The prosecution of the action in China in that context rather than the contractually agreed forum certainly had the effect of putting unfair pressure on CSAV. In Justice Cooke’s judgment, CSAV were clearly entitled to a permanent mandatory injunction.
Justice Cooke turned to the claim for damages. Costs incurred in foreign proceedings brought in breach of an exclusive jurisdiction clause are recoverable as damages for breach of contract. That is clear from a number of authorities. Furthermore, CSAV claimed damages in respect of the substantive sums claimed against it in China, including sums which had been paid, sums for which it had been found liable to pay, and sums which might yet be awarded against it in China. Such sums would have to be paid by CSAV to avoid arrests or other disruptive enforcement procedures in relation to its ships. CSAV was not claiming sums which would put it in pocket. It was claiming sums equivalent to those which it had already had to pay or would have to pay. Damages fell to be assessed to put CSAV in the same position that it would have been if Hin-Pro had not broken the contract. In Justice Cooke’s judgment, it was clear that the breach which had occurred was the breach committed by Hin-Pro in bringing foreign proceedings at all. The breach did not consist in failing to bring them in the English courts. The relevant comparison with the no-breach situation was therefore a situation in which no proceedings were brought at all.
Hin-Pro had contracted not to seek relief in any forum other than England. In breach of that obligation it had sought relief in China. If it had complied with its obligations, there would be no current or future judgments in China at all. Absent any claim against CSAV in England, CSAV’s loss and damage arising from Hin-Pro’s breach amounted to all the sums awarded to Hin-Pro in China. The court would not engage in considering the hypothetical question of what might be the result if Hin-Pro had brought a claim in the English court. That stance has been approved by the Court of Appeal in its second decision in the Alexandros T [2014] EWCA (Civ) 1010 at paragraphs 19 and 20.
Thus, CSAV was entitled to the sums awarded in China and, in the absence of Hin-Pro’s advancement of its claims in the English court, the English High Court would not engage in consideration of what hypothetically might happen if the claims had been brought in the English court. If Hin-Pro had in fact brought a claim in the English court, then CSAV’s claim for damages in the amount of the judgments payable in China might be reduced by a set-off or counterclaim by Hin-Pro if Hin-Pro could show that there was liability on CSAV in the English proceedings. The fact was that Hin-Pro had deliberately disregarded England as a forum to make its claims, and indeed had disregarded the orders made by the English court in relation to the proceedings it had brought elsewhere.
Even were the English High Court to consider what liability CSAV might have to Hin-Pro in proceedings brought in the English courts in accordance with the clause, the result would not avail Hin-Pro. The reason was that all its claims were time barred. Justice Cooke had already referred to clause 2 of the bill of lading and the clause paramount, where the Hague Rules would bring in Article 3 Rule 6 and the 1-year time bar. There was also an additional clause 18 in the bills of lading which provided for a discharge from claims in relation to loss or damage, freight charges or expenses, or any claim of whatsoever kind, nature or description with respect to, or in connection with, the goods if suit was not brought within one year of delivery or the date when delivery should have taken place.
It was clear that CSAV was, in Justice Cooke’s judgment, entitled to damages in the amount of any sums awarded in China, and no credit or consideration needed to be given to claims Hin-Pro might have brought in the English court had it sought to exercise its rights to do so, because those claims were time barred. In such circumstances, Justice Cooke made an order in the terms sought, both in relation to a permanent anti-suit injunction and in relation to a continued worldwide freezing order.
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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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 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 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 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]
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.
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 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.
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]
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 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 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]
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 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 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]
We reported in our Chans advice/252 that the Hong Kong High Court held Hyundai Hong Kong’s ex-Deputy General Manager (Mr Ma) liable to compensate HK$387,655,303.70 to Hyundai Hong Kong in the case of his theft of his employer’s money. On 23 December 2022, the Hong Kong High Court issued a decision ordering a sum of HK$500,000 (which was deposited by Mr Ma as bail money) to be released to Hyundai Hong Kong in partial satisfaction of Mr Ma’s judgment debt. [HCA 619/2016] [2022 HKCFI 3798]
The Hong Kong 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]
We have received a lot of cargo claims from our forwarder clients in the recent months. In this issue, we would like to discuss in general how the forwarders should handle the cargo claims.
In the 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 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 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 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 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 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 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]
In Chans advice/215, we reported that the Hong Kong High Court refused Changhong Group’s application to stay the Hong Kong proceedings; and in Chans advice/234, we reported that the Court of Final Appeal dismissed Changhong Group’s application for leave to appeal. On 7 April 2022, the Hong Kong High Court issued a Decision dealing with Changhong Group’s action to re-litigate its stay application. [HCAJ 3/2018] [2022 HKCFI 920]
The Hong Kong High Court issued a Judgment on 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]
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 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]
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.
The Hong Kong High Court issued a judgment on 21/4/2016 and disallowed a cargo owner’s application for summary judgment against a forwarder in connection with a cargo (a diamond) missing claim of US$900,000. [HCCL 10/2015]
The Hong Kong High Court issued a Decision on 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]
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 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]
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 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 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 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 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]
In our last issue of Chans advice/253, the Hong Kong District Court’s judgment dated 26 April 2022 mentioned a case authority of China Ocean v Mitrans Shipping. We would like to discuss this judgment dated 11 July 1995 of the Hong Kong Court of Appeal in our Chans advice this month. [1995 No. 71 Civil]
The Hong Kong 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 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]
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)]
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 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]
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]
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$12 million. [HCA 2368/2012]
Against the post-Covid tide, we ran an off-line real seminar on Uncollected and Undelivered Cargo on 28 May 2024. Attendance could not be compared with any webinars but the number of enthusiastic questions in the Q&A session reflected the demand for transport liability issue solutions. For the sake of recapitulations and sharing the Q&A among the Chan Advice readership, we like to report the Q&A in two issues. We welcome any other questions you may have on the following.
We recently have received a lot of uncollected cargo claim cases from our forwarder clients, which have kept our 6 claim handlers very busy. We would like to take this opportunity to talk about this troublesome problem of uncollected cargoes. Actually, the forwarders have been facing this real headache in at least these two decades.
The Hong Kong High Court issued a Judgment on 16 January 2019 dealing with the appeal of the wasted costs’ case reported by our Chans advice/214. [HCA1919/2016] [2019HKCFI127]
The Hong Kong High Court issued a Decision on 2 October 2024 dismissing a shipping company’s application to strike out a forwarder’s third party indemnity claim in a cargo (frozen beef) damage case. [HCAJ 9/2023, HCAJ 22/2023, 2024 HKCFI 2708]
The Hong Kong High Court issued a Judgment on 11/12/2013 holding that a Hong Kong plaintiff needed to put up a security for costs in a court case concerning a yacht sinking incident. [HCCL 5/2013]
The High Court of Hong Kong issued a Judgment on 26/8/2011 to determine which ship to blame in a collision case that occurred at Shanghai. [HCAJ 200/2007]
The High Court of Hong Kong issued a Judgment on 3/2/2012 concerning which currency (US$ 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 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 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 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]
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 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 23/12/2013 dealing with an application for security for costs in relation to a ship sinking case. [HCAJ 213/2009]
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.
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).
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]
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]
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]
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:
In our newsletter last month, we talked about some essential terms in house Air Waybills. In this issue, as the continuation of the loss prevention exercise for freight forwarders, we would like to discuss some essential terms in house Bills of Lading.
The Hong Kong Court of Appeal issued a Judgment on 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 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]
To continue our recent series of loss prevention articles, we would like to discuss in this issue the major provisions of the PRC Maritime Code as far as the international carriage of goods by sea is concerned.
In the 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 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 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 ruling on 2/12/2016 dealing with a shipowner’s interrogatory application in relation to an uncollected cargo case. [HCAJ 118/2015]
We have received some enquiries from our forwarder clients about the FCR e.g. what is FCR? How many types of FCR are there? What are the uses of FCR? We would like to discuss these in this issue.
The Hong Kong High Court 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 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 English Court of Appeal issued a Judgment on 13/12/2017 dealing with a cargo damage claim of EUR2,654,238 and a charter hire claim of USD1,012,740 in connection with a NYPE charterparty. [2017 EWCA Civ 2107] [2017 WL 06343564] [Case No. A3/2016/4770]
The Hong Kong High Court issued a Judgment on 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]
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 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 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 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]
On 12/4/2017, the Hong Kong High Court dismissed an application made by a cargo owner for stay of proceedings commenced by two forwarders in relation to an uncollected cargo case. [HCA 1927/2016]
The Hong Kong 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 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]
The Hong Kong High Court issued a Judgment on 2/6/2017 dealing with the liability apportionment among 3 vessels in 2 almost simultaneous collisions that happened near Hong Kong on 14/5/2011. [HCAJ158/2012 and HCAJ49/2013 and HCAJ48/2011]
The Hong Kong High Court issued a Decision on 11 May 2021 staying a South Korea container terminal’s legal action in Hong Kong with respect to its allision claims of more than US$90,000,000 against the owners of a container ship. [HCAJ 31/2020] [2021 HKCFI 1283]
The 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 District Court issued a Decision on 30 April 2021 dealing with a personal injury case in relation to a container terminal. [DCPI 110/2020] [2021 HKDC 463]
The Hong Kong High Court issued a 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 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 Chans advice/215, we reported the High Court of Hong Kong refused Changhong Group’s application to stay the Hong Kong action. The Court of Appeal also subsequently dismissed Changhong Group’s appeal. On 13 July 2020, the Court of Final Appeal finally dismissed Changhong Group’s application for leave to appeal. [FAMV No. 34 of 2020] [2020 HKCFA 24]
The 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 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]
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]
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]
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 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).
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 18/11/2016 dismissing a shipping company’s application for summary judgment against its former deputy general manager (Mr Ma) for restitution of the sum of HK$387,655,303.70 on the ground of money had and received and/or unjust enrichment. [HCA 619/2016]
The Hong Kong High Court issued a decision on 31 May 2022 ordering a South Korean shipowner to provide a Hong Kong shipowner with security for costs in the amount of HK$600,000 in relation to a ship collision case that happened in Hong Kong during the super typhoon Hato in August 2017. [HCAJ 80-85/2019] [2022 HKCFI 1631]
The 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]
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.
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 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 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]
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 Court of Appeal issued a Judgment on 12/2/2018 to deal with the cargo owners’ seeking leave to appeal against the High Court’s Judgment reported in our Chans advice/209 last month. [CAMP 38/2017] [2018 HKCA77]
Remember our Chans advice/163 about the English High Court’s Judgment holding the Hague Visby Rules instead of the Hague Rules to apply to the cargo damage claim case in excess of US$3.6 million? The English Court of Appeal issued a Judgment on 24/2/2016 upholding the High Court’s conclusion but with different reasons. [Case No: A3/2014/1285, 2016 EWCA Civ 101, 2016 WL 00692394]
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 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]
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 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)]
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 District Court issued a Decision on 8 May 2020 upholding a summary judgment ordering one forwarder to pay outstanding airfreight charges of HK$440,000 to another forwarder. [DCCJ1202/2018] [2020HKDC307]
The Hong Kong High Court issued a Decision on 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]
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.
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]
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]
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]
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 amendment to the International Convention for the Safety of Life at Sea (SOLAS) 1974 Chapter VI, Regulation 2 in respect of the verified gross mass of a container carrying cargo (laden container) is for entry into force globally on 1 July 2016.
The Hong Kong High Court issued a Decision on 22 Feb 2021 holding that the wreck removal claims of a ship sunk were not subject to the Convention on Limitation of Liability for Maritime Claims 1976. [HCAJ 98/2019] [2021 HKCFI 396]
The Hong Kong High Court issued a 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 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 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].
