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]
According to the Statement of Claim filed in the legal proceedings commenced on 25 July 2016, the Plaintiffs were Mainland companies, the 2nd Plaintiff CTS Logistics being the parent company of the 1st Plaintiff Shenzhen CTS Logistics. CTS Logistics was the named issuer of 14 bills of lading (“Bills”) for the shipment of cargo from the USA to Gaolan in the PRC (“Port of Discharge”). The Defendant Dajiang Investment (which was a company incorporated and carrying on business in Hong Kong) was said to be the holder of the Bills.
The goods described in the Bills were stated to be “copper ingots” (“Goods”). According to the Statement of Claim, the Goods were consigned by Shenzhen Starway (“Starway”) to Shenzhen CTS Logistics for shipment, and Shenzhen CTS Logistics engaged the services of various carriers to ship the Goods from St Louis, the USA to the Port of Discharge. The Bills were assigned by Starway to Dajiang Investment. The Bills were made subject to the conditions of carriage printed on the reverse of the Bills (“Conditions”). The Conditions defined “Carrier” as the company stated on the front of the Bills as being the carrier and on whose behalf the Bills were signed. CTS Logistics was the carrier named on the Bills. The Conditions further define “Merchant” as meaning and including the shipper, consignor, consignee, the holder of the Bills and the owner of the goods.
Clause 5.1 of the Conditions provides as follows: “The Merchant shall be deemed to have guaranteed to the Carrier the accuracy, at the time the goods were taken in charge by the Carrier of all particulars relating to the general nature of the goods, their marks, number, weight, volume and quantity and, if applicable to the dangerous character of the goods as furnished by him or on his behalf for insertion on (the Bill). The Merchant shall indemnify the carrier against all loss, damage and expense resulting from any inaccuracy or inadequacy of such particulars. The Merchant shall remain liable even if (the Bill) has been transferred by him.The right of the carrier to such an indemnity shall in no way limit his liability under this (Bill) to any person other than the Merchant.”
The Plaintiffs claimed that whilst the Goods were in transit, they were delivered to the transit ports in Hong Kong and Shenzhen by the carriers, and for the purpose of preparing the cargo manifests and enabling the Goods to be delivered to the Port of Discharge, the carriers requested from the Plaintiffs, and the Plaintiffs in turn requested from Dajiang Investment, the following particulars (“Shipping Information”) of the Goods: (a) bill of lading number; (b) name and address of consignee; (c) number of packages; (d) gross weight of the cargo; (e) measurement of the cargo; (f) description of the cargo in Chinese; (g) contact person (including telephone number, fax number and email address); and (h) the name of the discharge terminal.
Despite repeated requests, Dajiang Investment allegedly failed to provide the Shipping Information to the Plaintiffs, and further failed or refused to take delivery of the goods. The Plaintiffs claimed that Dajiang Investment was in breach of clause 5.1 of the Conditions, as a result of which breach the carriers were unable to deliver the cargo of the Goods to the Port of Discharge. By reason of such breach, the Goods had been detained in the transit ports in Hong Kong and Shenzhen, and substantial storage fees were incurred and charged by the carriers against Shenzhen CTS Logistics.
By the legal proceedings in question, the Plaintiffs sought damages and an indemnity from Dajiang Investment in respect of all the loss and damage suffered by the Plaintiffs.
By their amendments to the Statement of Claim made in September 2016, the Plaintiffs included a claim by Shenzhen CTS Logistics as bailee of the Goods by virtue of Starway’s consignment of the Goods. The Plaintiffs averred that Dajiang Investment became the bailor of the Goods by virtue of Starway’s assignment of the Bills to Dajiang Investment, and was therefore liable for Shenzhen CTS Logistics’s remuneration and for the expenses and costs incurred by Shenzhen CTS Logistics in the performance of its duties under the bailment.
After the service of the Writ and the Amended Statement of Claim, Dajiang Investment applied by summons on 30 September 2016 (“Summons”) for the Plaintiffs’ provision of security for costs in the action, in the sum of HK$800,000. The Summons included Dajiang Investment’s application for extension of time to file its defence, stated to be without prejudice to Dajiang Investment’s right to apply to the court for stay of the proceedings. There was a further application made by Dajiang Investment on 29 November 2016 for extension of time to file its Defence, and on 5 December 2016, an Unless Order was made by the Court, for judgment to be entered against Dajiang Investment unless its defence was filed by 12 December 2016.
It was only on 7 December 2016, after the Plaintiffs applied for default judgment, that Dajiang Investment applied by summons (“Stay Summons”) for the legal action in question to be stayed under O 12 r 8 RHC, on the ground that Hong Kong was not the appropriate forum, that the Guangzhou Maritime Court (“GZ Court”) on the Mainland was the most appropriate and natural forum, and that there were existing proceedings between CTS Logistics and Dajiang Investment in the GZ Court, which was commenced by Dajiang Investment at the end of June 2016. At the same time, Dajiang Investment applied for the Statement of Claim to be struck out and for the action to be dismissed, on the ground that it was frivolous, vexatious or otherwise an abuse of the process of the court.
After reviewing the evidence and hearing submissions from the parties, Dajiang Investment’s application for stay was dismissed. The following were the Judge’s reasons for the dismissal.
Submission to HK jurisdiction
First, the Judge took the view that Dajiang Investment had already submitted to the jurisdiction of the Hong Kong Court. It was true that Dajiang Investment’s application for extension of time to file its defence was made without prejudice to its right to challenge the jurisdiction of the Hong Kong Court. However, that reservation of right was made only in respect of its application for suspension of the time to file its defence. The relief sought by the Summons included the application for security in respect of Dajiang Investment’s costs. Although Dajiang Investment’s affirmation in support claimed that security was sought only for costs up to the hearing of the stay application, a review of the skeleton bill relied upon by Dajiang Investment showed that the security sought was for Dajiang Investment’s costs incurred and to be incurred, from the service of the Statement of Claim, to seeking further and better particulars of the Statement of Claim, and up to seeking Counsel’s advice on merits and on evidence. The amount of security sought ($800,000) and the description of the work envisaged did not support the claim that security was confined to the hearing of the application for stay of the action.
The Summons further sought the striking out of the Plaintiffs’ Amended Statement of Claim and the dismissal of their action against the Defendant, unless security was provided by the Plaintiffs. Dajiang Investment itself accepted that the striking out order was sought, as an alternative relief in the Summons, should the stay not be granted.
By seeking the different and alternative relief sought in the Summons, not just for time for the filing of the defence to be suspended, but also for security for costs which extended to after the stage of the hearing of the stay application, and for striking out the Amended Statement of Claim and the action, Dajiang Investment was invoking the court’s jurisdiction to obtain an interlocutory or final order requiring the opposite party to perform some act. It was more than a defensive action. Coupled with the reservation of the right to challenge jurisdiction being confined to the application made for time, Dajiang Investment had not made it clear and unequivocal that it was not accepting the jurisdiction of the Hong Kong court.
The Judge found that Dajiang Investment had submitted to the jurisdiction of the Hong Kong Court.
No arguable defence
Significantly, and even if the Judge should be wrong that Dajiang Investment had submitted to the jurisdiction of the Hong Kong Court, Dajiang Investment had failed to identify any defence on the merits, to demonstrate that there were real issues requiring resolution between the parties to the action in question, so as to justify a stay of these proceedings. In Bayer Polymers Co Ltd v ICBC Hong Kong Branch [2000] 1 HKC 805, the court referred to Adria Services YU v Grey Shipping Co Ltd (Folio 212/1993, unreported), where Clarke J (as he then was) granted Order 14 judgment notwithstanding a stay application, and explained: “In my judgment if the plaintiffs satisfy me that the defendants have no arguable defence then, save in an exceptional case, the right course would be to refuse a stay and get judgment, because there would be no real issues between the parties which should be tried either here or elsewhere.” The same judge elaborated on this in Standard Charted Bank v Pakistan National Shipping Corp & Ors [1995] 2 Lloyd’s Rep 365 at 378, as follows: “It appears to me that in a case where a defendant has no arguable defence on liability and quantum that would be a strong reason to refuse a stay because … there would be no real issues between the parties which should be tried either here or elsewhere.” In Bayer itself, the court refused the stay on the same basis of the absence of an arguable defence.
The Plaintiffs’ claims against Dajiang Investment, even as set out in the original Statement of Claim, were clearly stated to be for damages and indemnity in respect of Dajiang Investment’s breach of clause 5.1 of the Conditions. Under clause 5.1, Dajiang Investment (as holder of the Bills) guaranteed the accuracy of all the particulars relating to the general nature of the Goods, and undertook to indemnify the carrier against all loss, damage and expense resulting from any inaccuracy or inadequacy of the particulars. The Goods were described in the Bills to be copper ingots. As a result of Dajiang Investment’s breach in failing to furnish the Shipping Information as requested, a joint survey of the Goods took place in Hong Kong in May 2016 (“HK Survey”). The HK Survey revealed that 41 of the 202 containers of the Goods were found to be not copper ingots as stated on the Bills, but were “damp mud”. A separate survey had also been conducted by the anti-smuggling authorities of the Mainland in May 2016. This also confirmed that 32 containers of the cargo in question contained grayish black solid substance, or granules, and not copper ingots. As a result of Dajiang Investment’s failure to provide the Shipping Information, and as a result of the discrepancies found in the surveys conducted, the Goods were detained in Hong Kong and Shenzhen, and could not be released for shipment to and delivery in the Port of Discharge. The storage charges and expenses were incurred by the Plaintiffs as a result, for which they were entitled under the guarantee and indemnity contained in clause 5.1 to seek recovery from Dajiang Investment.
Dajiang Investment had not raised any arguable defence, or real issue in dispute to the claims made by the Plaintiffs in the action in question. It only asserted that it had no obligation to provide the Shipping Information to the Plaintiffs, without further elaboration on any real or arguable basis, even after the results of the surveys conducted in Hong Kong and on the Mainland, showing the obvious inconsistencies and contradictions between the nature of the Goods as stated on the Bills and as revealed in the surveys, had been made known to Dajiang Investment.
These were sufficient, in the Judge’s judgment, to dispose of the application for stay.
The natural and appropriate forum
Further and in any event, Dajiang Investment had failed to discharge its burden of establishing that Hong Kong was not the natural or appropriate forum for the trial of the action in question.
The Writ was properly served in Hong Kong on Dajiang Investment, which was a company incorporated in Hong Kong, and which carried on business in Hong Kong. It had a registered office address and a place of business at Hutchison House in Hong Kong. The address was used by Dajiang Investment in its contemporaneous emails and correspondence relating to the subject matter of the action in question. Even in the PRC proceedings issued by Dajiang Investment against CTS Logistics, Dajiang Investment stated Hutchison House in Hong Kong as its address. The alleged breach of Dajiang Investment, in failing to furnish the Shipping Information to the Plaintiffs or to take delivery of the Goods, took place in Hong Kong where Dajiang Investment carried on its business.
A total of 129 containers containing the Goods under 9 of the Bills were being detained in Hong Kong, where the storage charges were being incurred.
A substantial and significant part of the evidence concerning Dajiang Investment’s breach was in Hong Kong. The HK Survey was undertaken by a Hong Kong company (“Union Star”) carrying on business in Hong Kong, and a survey report was prepared by Union Star in Hong Kong. The HK Survey revealed that 41 of the 202 containers of the Goods were found to be not copper ingots as stated on the Bills, but were damp mud. The HK Survey was undertaken in the presence of not only the Shenzhen CTS Logistics’s representatives, but also Dajiang Investment’s business manager (“Chen”) and employee (“Han”), both of whom stated their business address to be in Hong Kong. They would be witnesses to give evidence at trial.
A total of 129 containers of the Goods, including the 41 containers containing the damp mud, were being detained in Hong Kong. After the survey by the anti-smuggling authorities on the Mainland and the 3 reports made in May 2016, 73 containers of the Goods were detained in Shenzhen.
From the above matters, it could not be said that Hong Kong was not the natural or appropriate forum with the most real and substantial connection with the trial of the action. All the witnesses of Dajiang Investment were in Hong Kong. The evidence, documents and witnesses as to the HK Survey were in Hong Kong. Any further inspection of the Goods detained in Hong Kong would have to take place in Hong Kong. The Plaintiffs having served the Writ on Dajiang Investment with its place of business in Hong Kong and established jurisdiction in Hong Kong as of right, and the burden being on Dajiang Investment to show that Hong Kong was not the appropriate forum, the proceedings commenced in Hong Kong should not lightly be disturbed.
Clause 19 of the Conditions deals with jurisdiction and the applicable law. It states: “Actions against the carrier may be instituted only in the place where the carrier has his place of business as stated on the reverse of (the Bill) and shall be decided according to the law of the country in which that place of business is situated.” The Plaintiffs rightly argued that clause 19 only permits actions brought against the Plaintiffs as carriers to be instituted in the place where the Plaintiffs carry on business. It is not an exclusive jurisdiction clause which obliges the parties to litigate all actions on the Mainland. Nor does clause 19 require actions brought by the Plaintiffs, against other parties to the Bills, to be instituted on the Mainland.
On governing law, even if it could be argued that the Bills were subject to the laws of the PRC, there was no reason why the action against Dajiang Investment could not be tried in Hong Kong on expert evidence of PRC law. Nor had it been shown how the relevant PRC law was different to Hong Kong law so far as issues raised in the Amended Statement of Claim were concerned.
Dajiang Investment relied on the fact that it had, at the end of June 2016, commenced proceedings before the GZ Court, claiming that CTS Logistics failed to deliver the Goods to Dajiang Investment. It claimed that 2 hearings already took place before the GZ Court.
The Judge was not satisfied that Dajiang Investment had established that the GZ Court was clearly or distinctly more appropriate to try the issues in dispute between the Plaintiffs and Dajiang Investment in the proceedings in question.
Even if Dajiang Investment could establish that the GZ Court was clearly or distinctly the more appropriate forum, the Judge accepted the Plaintiffs’ case that if the dispute between the Plaintiffs and Dajiang Investment as to the shipment of the Goods was to be tried in the GZ Court, the Plaintiffs would be deprived of a legitimate juridical advantage. Any judgment that might be made in the GZ Court in favor of the Plaintiffs, including judgment on any counterclaim that might be raised by CTS Logistics, could not be directly enforced against Dajiang Investment which carried on business in Hong Kong, or against its assets in Hong Kong. Fresh proceedings, with the consequential and inevitable delay, would have to be commenced by the Plaintiffs in Hong Kong. The Mainland Judgments (Reciprocal Enforcement) Ordinance does not assist, since the GZ Court is not a designated or recognized court under that Ordinance.
The Judge rejected Dajiang Investment’s assertion that the Plaintiffs’ claims in these proceedings were an abuse of process. The Plaintiffs pleaded a clear and arguable cause of action against Dajiang Investment, both in the original Statement of Claim and, after the amendment in September 2016, in the Amended Statement of Claim on bailment.
Conclusion
For all the above reasons, the Dajiang Investment’s application for stay was dismissed, with costs to the Plaintiffs.
Please feel free to contact us if you have any questions or you would like to have a copy of the Reasons for the Decision given by the Judge.
23/F, Excel Centre, 483A Castle Peak Road, Lai Chi Kok, Kowloon, Hong Kong 香港九龍荔枝角青山道483A卓匯中心23樓 Tel: 2299 5566 Fax: 2866 7096 E-mail: gm@smicsl.com Website: www.sun-mobility.com A MEMBER OF THE HONG KONG CONFEDERATION OF INSURANCE BROKERS 香港保險顧問聯會會員
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 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 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]
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 16 January 2019 dealing with the appeal of the wasted costs’ case reported by our Chans advice/214. [HCA1919/2016] [2019HKCFI127]
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]
Our Chans advice/191 reported a Hong Kong High Court’s case concerning a shipping company’s restitution claim against its former deputy general manager (Mr Ma) for HK$387,655,303.70. The latest development of this case is: the Hong Kong High Court issued a Judgment on 1/2/2018 and a Decision on 9/2/2018 holding that Mr Ma was in contempt of Court as a result of his breach of a Mareva Injunction Order and that he be committed to prison for 4 months. [HCMP1115/2017] [2018 HKCFI176] [2018 HKCFI328]
The Hong Kong 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]
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]
Following the issue of Chans advice last month, we would like to report the latest decision issued by the court over this theft case. On 17 January 2023, the Hong Kong High Court dismissed Mr Ma’s application to withdraw HK$1.5 million out of his frozen assets for paying the legal costs for his appeal against conviction in theft. [HCA 619/2016] [2023 HKCFI 197]
The Hong Kong High Court issued a Judgment on 22/8/2016 dealing with a case that a forwarder wanted to strike out a cargo misdelivery claim on the ground that the claim disclosed no reasonable cause of action. [HCCL 5/2015]
The Hong Kong High Court issued a judgment on 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 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]
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 11 January 2019 dealing with a dispute of US$335,858.31 between a bunker supplier and a ship agent. [HCA119/2015] [2019HKCFI57]
We refer to our Chans advice/251 last month reporting the Hong Kong High Court’s decision to sentence Mr Ma (Hyundai Hong Kong’s former deputy general manager) to 15 years’ imprisonment. The High Court issued another Judgment on 27 April 2022 holding Mr Ma liable to compensate HK$387,655,303.70 to Hyundai Hong Kong. [HCA 619/2016] [2022 HKCFI 1153]
The 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.
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.
Against the post-Covid tide, we ran an off-line real seminar on Uncollected and Undelivered Cargo on 28 May 2024. Attendance could not be compared with any webinars but the number of enthusiastic questions in the Q&A session reflected the demand for transport liability issue solutions. For the sake of recapitulations and sharing the Q&A among the Chan Advice readership, we like to report the Q&A in two issues. We welcome any other questions you may have on the following.
The Hong Kong 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]
Remember our Chans advice/171 of 31/3/2015 reporting that the Hong Kong Court of Appeal discharged the Mareva injunctions against Hin-Pro? The Hong Kong Court of Final Appeal issued a Judgment on 14/11/2016 reversing the Court of Appeal’s Judgment of 11/3/2015. [FACA No. 1 of 2016]
The Hong Kong High Court issued a Decision on 15 March 2021 converting a domestic Mareva injunction into a worldwide Mareva injunction in a shipowner’s freight and demurrage claim against a charterer. [HCMP 1190/2020] [2021 HKCFI 680]
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 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 29 January 2019 dismissing Changhong Group’s application for stay of the legal proceedings against it brought by the consignee and the insurer of the cargo on board the Sanchi. [HCAJ6/2018, 2019HKCFI263]
The Hong Kong High Court issued a Judgment on 3/2/2017 holding Natural Dairy liable to pay HK$4,360,948.38 to Schenker being the outstanding freight charges. In the Judgment, the Judge also explained the principles regarding the meaning of notice of the forwarder’s standard trading conditions. [HCA 1755/2011].
The 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]
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 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]
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]
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 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]
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 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 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]
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]
We have received a lot of cargo claims from our forwarder clients in the recent months. In this issue, we would like to discuss in general how the forwarders should handle the cargo claims.
The 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 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]
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 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 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 Decision on 23 May 2018 allowing a shipowner to be represented by 2 different firms of solicitors (one appointed by its hull underwriters and the other appointed by its P&I Club). [HCAJ84/2017] [2018HKCFI1136]
The Hong Kong High Court issued a Judgment on 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]
Remember our Chans advice/163 about the English High Court’s Judgment holding the Hague Visby Rules instead of the Hague Rules to apply to the cargo damage claim case in excess of US$3.6 million? The English Court of Appeal issued a Judgment on 24/2/2016 upholding the High Court’s conclusion but with different reasons. [Case No: A3/2014/1285, 2016 EWCA Civ 101, 2016 WL 00692394]
The 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 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]
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]
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 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 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]
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.
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 High Court issued a Decision on 9/5/2017 allowing a time extension for some cargo interests to claim against the Tonnage Limitation Fund constituted by the owner of one of the two vessels involved in a collision that happened on 7/11/2013. [HCAJ 189/2013]
The Hong Kong High Court issued a 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 20/12/2017 dealing with a dispute of US$948,802.05 (as the price of bunkers supplied to a vessel) between a vessel charterer and a bunker supplier. [HCA2265/2016]
The Court of Appeal of Hong Kong issued a judgment on 28 March 2019 dealing with a matter concerning the sale pendente lite of an oil tanker Brightoil Glory. [CAMP49/2019][2019HKCA395]
The Hong Kong High Court issued a Decision on 22 January 2021 dealing with an appeal against a Small Claims Tribunal’s award concerning a dispute over a container terminal’s storage charges. [HCSA 44/2020] [2021 HKCFI 200]
The Hong Kong High Court issued a Judgment on 13 August 2021 holding a forwarder liable to pay nominal damages of HKD1,000 to a shipper in a cargo misdelivery claim case of USD1,299,189.87. [HCA 937/2016] [2021 HKCFI 2310]
The 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 decision on 31 May 2022 ordering a South Korean shipowner to provide a Hong Kong shipowner with security for costs in the amount of HK$600,000 in relation to a ship collision case that happened in Hong Kong during the super typhoon Hato in August 2017. [HCAJ 80-85/2019] [2022 HKCFI 1631]
The Hong Kong Court of Appeal issued a Judgment on 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]
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.
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 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]
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 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 ruling on 2/12/2016 dealing with a shipowner’s interrogatory application in relation to an uncollected cargo case. [HCAJ 118/2015]
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 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]
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.
In the transport industry, the contracts of carriage (e.g. Bills of Lading, Air Waybills) usually contain an exclusive jurisdiction clause for settling disputes. However, it is not uncommon that the shippers and consignees sue the transport operators in a court other than the one specified in the exclusive jurisdiction clause. In Hong Kong, the transport operators may rely on the Foreign Judgments (Restriction on Recognition and Enforcement) Ordinance to tackle this kind of situation.
The High Court of Hong Kong issued a Decision on 31/8/2018 concerning a feeder company’s claim against a shipping company’s lawyer for wasted costs. [HCA1919/2016] [2018HKCFI1879]
The Hong Kong 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 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]