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]
Background
The Plaintiff was the Korean operator of a commercial maritime terminal at the port of Busan (“Terminal”) offering berths for loading and unloading container vessels with large movable gantry cranes.
The Defendants were the joint owners of the vessel “Milano Bridge” (“Vessel”), owned as to 90% by Doun Kisen, a company incorporated in Japan, and 10% by Mi-das Lines, a company incorporated in Panama. The Vessel flew the Panamanian flag. The shipowners were both managed from Japan. The Vessel was sub-chartered to Ocean Network Express (“ONE”), which was incorporated in Singapore with operations worldwide, including Busan, South Korea.
The terminal operator operated on, inter alia, (i) its Standard Terms and Conditions 2019 (“STC”) and (ii) specially negotiated agreements, such as the Terminal Services Agreement dated 1 April 2014 (“TSA”) between the terminal operator and various liner operators comprising a consortium called The Alliance.
The shipowners were not party to the TSA. However, both the charterer and ONE were contracting parties to the TSA. The terminal operator had made a claim against ONE under the TSA in South Korea.
The shipowners were not party to any STC either. The terminal operator said that the STC were relevant only to liner operators (not vessel owners) who had executed the requisite agreement.
However, the shipowners sought to refer to the STC which provided at clauses 18.2 and 19.3 for a contractual limitation of liability of US$15m for both parties. The TSA similarly provided at clauses 18.2 and 19.3 a contractual limitation of liability of US$20m for both sides.
The legal action in question concerned an Allision between the Vessel and Berth 8 at Pier 2 at the Terminal which took place at 14:49 on 6 April 2020, involving contact between the Vessel and some of the terminal operator’s cranes and another vessel. At the time of the Allision, the Vessel was under compulsory pilotage of a Korean pilot and was assisted by Korean tugs, one at the bow and one at the stern. Also, there were maritime works in progress by Korean contractors to remove Todo Islet, a small island at the approach to the berth.
The shipowners said that Todo Islet presented a hazard to ships arriving at the Terminal, which explained the need for its removal.
The terminal operator said that Cranes 81, 83 and 84 were partially damaged. Crane 85 had collapsed onto the deck of the Vessel and was very significantly damaged. The terminal operator asserted that the Allision was caused by the negligence of the shipowners, their servants or agents in the navigation and management of the Vessel and that it had suffered loss and damage in terms of (i) physical damage to the cranes with resulting monetary loss in terms of repair and replacement cost; and (ii) business interruption. The alleged “Material Damage” amounted to US$30,116,930.01, and the alleged “Business Interruption” loss had been quantified at US$60,851,879.83.
All relevant events which gave rise to liability occurred in South Korea, all physical damage was incurred on land in South Korea and all economic loss was suffered in the same country.
The legal action in question was commenced when a sister ship of the Vessel, “CMA CGM Musca”, called at Hong Kong on 24 June 2020 and was arrested. Except for the fact that the sister ship called at Hong Kong, the dispute in question had nothing to do with Hong Kong.
The shipowners filed an application by Summons on 5 November 2020 for the Hong Kong legal action be stayed in favour of the courts of South Korea on the grounds of forum non conveniens (“FNC”) and/or lis alibi pendens (“LAP”).
Other proceedings
The terminal operator had initiated a claim against ONE under the TSA.
In addition, the Allison had given rise to various sets of proceedings in the courts of South Korea as follows :
(1) Action by the shipowners against the Korean Government in respect of pilot liability, Todo Islet works and Vessel Traffic Service Centre liability; (2) Action by the shipowners against the terminal operator which was essentially a ‘mirror image’ action to the proceedings in question; (3) Action by the shipowners against the Pilot for negligence; (4) Action by the shipowners against the Tug Owners for negligence; (5) Action by the shipowners against Daelim Industrial, the Todo Islet contractors, for negligence; (6) The shipowners’ Limitation Action;
In respect of the Limitation Action (Action (6)), the terminal operator had filed a claim against the Limitation Fund on a without prejudice basis.
In addition to these civil actions, there were criminal proceedings pending against the Master of the Vessel in South Korea.
The Korean Maritime Safety Tribunal (“KMST”) was conducting an investigation to determine the cause of the maritime incident, any administrative sanctions against Korean officeholders and appropriate corrective measures to avoid similar situations in the future. The terminal operator was participating in the investigation.
In addition to these proceedings, the terminal operator had commenced materially identical proceedings against the shipowners in Japan. Thus, the shipowners said that they were being vexed twice by the terminal operator in respect of the Incident.
The terminal operator’s position was that it wished to have the dispute determined in Hong Kong, ‘failing which’ Japan.
Insurance
The terminal operator was insured by Samsung Fire & Marine Insurance Co Ltd (“SFMI”), which was located in South Korea. SFMI had appointed loss adjusters in South Korea, McLarens Korea.
Shipowners’ limitation of liability
There is a different shipowners’ liability limitation regime in Hong Kong (and Japan) on one hand and South Korea on the other. The terminal operator’s evidence suggested that from the outset the terminal operator and its advisers had targeted Hong Kong as a forum for the dispute in question, by way of sister ship arrest, because of the limitation regime in Hong Kong.
South Korea is not party to any international convention on shipowners’ limitation of liability. However, it has enacted a domestic limitation regime within the Korean Private International Law Act based on the Convention on Limitation of Liability for Maritime Claims 1976 (“LLMC 76”). Unlike Hong Kong, under the Korean Act, questions of whether a shipowner is entitled to limit, and if so in what amount, are determined under the law of the flag of the vessel concerned. In the case in question, it was the law of Panama.
On 24 April 2020, the shipowners commenced a limitation action in respect of the Incident in the Changwon District Court (Action (6) above). On 11 May 2020, the Changwon District Court ordered the shipowners to deposit in court SDR 16,792,098 plus interest at 6% from the date of Incident to date of deposit, an amount calculated in accordance with the Korean Act and Panamanian Law. On 18 May 2020, the shipowners deposited in court KDW28,293,827,486 (about US$24m), inclusive of interest, to constitute the Limitation Fund. On 8 October 2020, the terminal operator lodged a claim against the Limitation Fund on a without prejudice basis.
Under Hong Kong law, by virtue of the Merchant Shipping (Limitation of Shipowners Liability) Ordinance, Cap 434, limitation is governed by LLMC 76 as amended by the 1996 Protocol (effective in Hong Kong on 3 May 2015), including the June 2015 limit increases (effective in Hong Kong on 4 December 2017).
On 26 June 2020, in order to secure the release of the sister ship from arrest in Hong Kong, the shipowners put up security in the form of a letter of undertaking from the Japan P&I Club responding to any judgment of the Hong Kong High Court in the maximum amount of US$82.6m. Such amount was calculated broadly in accordance with the Hong Kong limit. Hence, the difference between the Korean and Hong Kong limits was US$58.6m (US$82.6m – US$24m).
Applicable principles
The applicable test for FNC was set out in SPH v SA (2014) 17 HKCFAR 364, adopting the seminal principles enunciated by the House of Lords in The Spiliada [1987] 1 AC 460 :
(1) The single question is whether there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial, ie, in which the action may be tried more suitably for the interests of all the parties and the ends of justice; (2) To answer this, the defendant must establish, firstly, Hong Kong is not the natural or appropriate forum. ‘Appropriate’ in this context means the forum that has the most ‘real and substantial’ connection with the action. Secondly, there is another available forum ‘clearly or distinctly’ more appropriate than Hong Kong. Failure to establish these two matters at this stage is fatal. This is commonly known as the Stage 1 consideration; (3) If the defendant establishes both matters, then the plaintiff may show that if the action is tried in a forum other than Hong Kong he will be deprived of a legitimate personal or juridical advantage available to him in Hong Kong (Stage 2); (4) If the plaintiff can establish that, the court balances the advantages of trial in the alternative forum with the disadvantage(s) the plaintiff will suffer. Deprivation of such advantage(s) will not necessarily be fatal to the defendant if he can establish to the court’s satisfaction that ‘substantial justice will be done’ in the available appropriate forum (Stage 3).
Stage 1(a) – natural or appropriate forum
Under the most ‘real and substantial connection’ requirement, the court looks for connecting factors and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction and the places where the parties respectively reside or carry on business (The Spiliada, 478A-B).
The terminal operator accepted that the first question of natural or appropriate forum was answered in favour of South Korea. The concession was plainly right given the almost exclusive connection with that country in respect of nearly all the relevant factors. The following factors had been rightly identified by the shipowners :
(1) All elements of the alleged tort occurred in South Korea, either in Korean territorial waters in port environs, or in the case of the physical loss, on Korean soil. The conduct complained of occurred in Korea, by the Korean pilot, the Korean tugs or the Master of the Vessel; (2) The terminal operator conducted business solely in South Korea, under Korean law. Any economic loss from the physical damage, including any disruption of business, was suffered in Korea; (3) The terminal operator’s business records would largely be in Korean; (4) Repair works were carried out in South Korea, save that the gantry cranes were repaired in Mainland China; (5) The terminal operator was insured by a Korean insurer, which appointed Korean loss adjusters and a Korean based surveyor; (6) The terminal operator and the other parties against which the shipowners sought recourse, namely, the pilot, the tug owners, the Todo Islet contractors and the South Korean Government were all in Korea; (7) The Korean authority, KMST, was investigating the Incident; (8) The shipowners operated from Japan but were in the shipping business conducting it worldwide, including in South Korea; (9) The sub-charterer against which the terminal operator had made a claim under the TSA, dealt with the terminal operator by its Korean subsidiary.
The highest that could be said about Hong Kong as a forum for these matters was that jurisdiction had been founded in Hong Kong by service on a sister ship making a call at Hong Kong, and that the Hong Kong court was available.
Stage 1(b) – more appropriate forum
In determining whether there is another forum that is ‘clearly or distinctly’ more appropriate than Hong Kong for the trial of the action, the court is entitled to examine a broad range of connecting factors, but this process is not a mechanical exercise of simply totting-up the number of factors connecting the claim with a particular jurisdiction and those against. The court is required to focus on the appropriateness of a forum from the point of view of the trial of the action: Rambas Marketing Co LLC v Chow Kam Fai David [2001] 3 HKC 250, at 255B. There was no dispute that the burden of proof on this issue was on the shipowners (The Spiliada, 476D-F).
Issues in the trial
The exercise should begin with an identification of the issues to be tried.
The principal liability issues to be tried were whether: (a) the Vessel caused the Allision; (b) the shipowners were liable; and (c) the terminal operator was itself responsible to any degree. In addition, there would be issues as to loss and quantum.
Witnesses and Evidence
Liability
The witnesses on liability were likely to be the Master and other crew, the pilot and the tug crews. The Master and other key members of the crew were Indian. They would have to travel to either South Korea or Hong Kong to give evidence. The pilot and the crew of the tugs were Korean.
There were independent contemporaneous records of the Incident, including video footage of the Allision from four angles, all the information automatically recorded in the VDR, and the investigation report by the KMST.
There was no suggestion that the South Korean courts were unable to conduct maritime litigation concerning events in Korean ports competently or fairly. Given that South Korea is a major maritime, engineering and trading economy, it must be assumed that its courts are equally capable in dealing with the disputes in question.
The Judge was inclined to agree with the terminal operator that in light of the independent contemporaneous evidence, the dispute on liability might not be extensive. On the other hand, there appeared to be issue(s) of third party liability, eg, that of the pilot. Hence, it should not be assumed that the trial of these matters would be a straightforward exercise.
The third parties were all based in South Korea. Their witnesses were likely to be in Korea and documents were likely to be in Korean. These must be factors in favour of having these matters tried in South Korea. Indeed, it was not easy to see why these parties should be dragged into the court of Hong Kong in a litigation over the Incident.
Whilst the Judge agreed with the terminal operator that with the availability of modern technology, location of witnesses did not normally present any serious obstacle for having a trial in Hong Kong, especially when the incident had been investigated by the local authorities with the benefit of contemporaneous records. The real point was not whether the Hong Kong court was capable of trying these matters despite the location of witnesses overseas but whether, when compared with the South Korean court, the latter was clearly or distinctly the more appropriate forum.
Most of the documentary documents were likely to be in Korean. Whilst they might be translated for use in Hong Kong, the translation cost could be saved with a trial in South Korea. More importantly, there was much to be said that important documents should be read in their original text, so that they could be accurately understood. In short, the South Korean court certainly would be more suited to dealing with a trial where most of the documents were in Korean.
Quantum
Turning to the evidence on quantum, the main witness would be Mr Kim, the terminal operator’s CEO, who was Korean and based in Busan. Whilst Mr Kim could give evidence in English, it could not be doubted that it was more convenient, economical and appropriate for him to give evidence in the place where the Incident took place and in his mother tongue.
The Judge was inclined to agree with the shipowners that in a claim of this magnitude with the attendant complexity it might well transpire closer to trial that other internal terminal operator witnesses who reported to Mr Kim would also need to give evidence to justify the components of the claim. It was unlikely for all such witnesses to be able to give evidence in English.
The terminal operator’s primary loss adjusters were McLarens Korea, based in South Korea, and the terminal operator’s primary surveyor was also based there. Moreover, the vast majority of the terminal operator’s business records would be in Korean.
Expert witnesses
The re-insurer of the terminal operator had appointed the following expert advisors whom the terminal operator intended to call as witnesses:
(1) Mr Armour, an English-speaking Singapore based consultant maritime civil engineer, who would give evidence, technical and financial, on the extent of the damage to the cranes and necessary remedial measures. Mr Armour had relied on the service of a Korea based surveyor Mr Searle; (2) Mr Browne, an English-speaking Hong Kong based navigation expert, who would give evidence on liability; (3) Mr Kwan, an English-speaking Hong Kong based business loss accounting expert.
The engagement of these non-Korean based experts was the subject matter of criticisms by the shipowners. Firstly, it had not been explained in the terminal operator’s evidence why they were engaged in a case which had everything to do with South Korea, and thus it was self-evidently inconvenient to instruct such experts. Secondly, South Korean is an advanced nation with a large maritime economy and a large population. A wide choice of appropriate witnesses of all 3 disciplines was likely available in Korea, including witnesses who could communicate effectively both in English, for the purpose of liaising with the international insurers, and in Korean, when giving evidence.
The terminal operator should not be allowed to pull itself up by its own bootstraps by attempting to generate a factor in favour of proceedings in Hong Kong, said the shipowners.
The Judge could see some substance in the criticisms. The court should no doubt be alive and vigilant to such tactics. On the other hand, in the sphere of maritime disputes, it is not unusual to see Hong Kong and Singapore based maritime experts being instructed. However, one might not be able to say the same for a Hong Kong based accounting expert.
Governing law
There was no dispute that the governing law of the terminal operator’s tortious cause of action was Korean law.
In VTB Capital, supra, it was held that the governing law is in general terms a positive factor in favour of trial in the place where that law is applied, because it is generally preferable, other things being equal, that a case be tried in the country whose law applies. Further, this factor takes on particular force if issues of law are likely to be important and there is evidence of relevant differences in the legal principles or rules applicable to such issues in the countries proposed as the appropriate forum (per Lord Mance JSC at §46).
In rem cases (service as of right)
The terminal operator had placed emphasis on the fact that the legal proceedings in question were brought as of right. However, the Judge did not believe that the FNC principles were applied differently to in rem cases, especially a case like the one in question where the jurisdiction of the admiralty court was invoked based only on the arrest of a sister ship and Hong Kong had no connection to the events giving rise to the Incident.
In The Spiliada, Lord Goff held (477E) that the burden rests on the defendant to show that the alternative forum is ‘clearly or distinctly’ more appropriate than England, and “in this way, proper regard is paid to the fact that jurisdiction has been founded in England as of right”.
Lord Goff went on to hold at 477F-G: “if … the connection of the defendant with the English forum is a fragile one (for example, if he is served with proceedings during a short visit to this country), it should be all the easier for him to prove that there is another clearly more appropriate forum for the trial overseas”.
Further, in New Link Consultants Ltd v Air China [2005] 2 HKC 260 §§65-66, DHCJ Poon referred to the above dicta of Lord Goff and held that “while proper regard must be paid to the fact that jurisdiction is founded as of right, it is the connecting factors that determine whether the Hong Kong court or the other forum is clearly more appropriate. Thus, if the connecting factors clearly point to the latter as the more appropriate forum for the trial, the ‘as of right’ point, however weighty that may be, will not tilt the balance back in favour of the Hong Kong court.”
In The Kappa Sea, [2017] 1 Lloyd’s Rep Plus 102, §35, Ng J held that :
“… the fact that the vessel is Hong Kong-registered is irrelevant. It has no relation to the claim, it is not a material fact and does not have any bearing on the question where this action can most appropriately be tried. Also irrelevant is the fact that the plaintiffs elected to institute and serve proceedings in Hong Kong. To hold otherwise would be an official endorsement of the practice of forum-shopping since a plaintiff can without undue difficulty institute and serve proceedings in a forum of its choice and use that fact to boost the preferred forum’s connection with the action. At the risk of stating the obvious, the whole point of this application is to determine whether the plaintiff’s choice of forum, ie Hong Kong, is inappropriate and whether there exists another forum which is more suitable for the trial of the action in the interest of all parties and the ends of justice …”
Forum shopping
The Judge was troubled by the evidence of the terminal operator which suggested that the significantly higher tonnage limitation applicable to Hong Kong was the main driver of the decision to institute proceedings in Hong Kong. Although the Judge could understand that commercial entities were naturally driven by such consideration, the court had always disapproved of forum shopping for good reasons.
LAP and Cambridgeshire factor
It is well established that LAP is not a separate doctrine but one of the relevant factors that the court may take into account in addressing the Stage 1 question of whether an applicant for a stay has demonstrated that another jurisdiction is clearly or distinctly more appropriate than Hong Kong (Bright Shipping Ltd v Changhong Group (HK) Ltd [2020] HKCFA 24, §10, per Fok PJ). The existence of parallel proceedings is not by itself a decisive factor in favour of staying an action on the ground of FNC. However, it is part of the Stage 1 consideration for the court to evaluate the adverse impact and hardship which the parallel proceedings may have on the defendant, eg, the expenses and the risk of inconsistent findings (Bright Shipping Ltd v Changhong Group (HK) Ltd (No 2), CA, [2019] 5 HKLRD 30, §§52-57).
Amongst the existing legal proceedings in South Korea, 2 of them involved the terminal operator. Neither of the 2 actions (Actions (2) and (6)) had progressed very far.
In respect of the Korean Limitation Action (Action (6)), the terminal operator had filed a protective conditional claim on 8 October 2020 when the deadline for filing claims under that action was due to expire solely to ensure that it would not be time-barred in the event that the shipowners succeeded in the application in question. Further, the terminal operator had made clear that it would only proceed in the Korean Limitation Action if it was shut out in both Hong Kong and Japan.
As to the shipowners’ action against the terminal operator (Action (2)), the terminal operator had suggested that it should be stayed in favour of the Limitation Action to avoid multiple proceedings within Korea and to tie those proceedings together. Action (2) had not advanced beyond initial stages and had been adjourned pending the determination of the KMST. The shipowners’ claims in Action 2 were: (a) the gantry cranes were in the wrong position; and (b) the terminal operator should have advised the Vessel of the work taking place at Todo Islet. It was common ground that these were in the nature of counterclaims aimed at reducing liability. There was no reason why these could not be brought as a counterclaim in the legal proceedings in question in the event of refusal of the shipowners’ application.
The shipowners prayed in aid the Cambridgeshire factor. That principle applies where there is ‘very heavy litigation’ in a case involving, eg, difficult scientific questions and the parties involved had already participated in a substantial part of the trial of a similar action. Thus, the legal teams and experts would have gained much learning and experience in dealing with the same or similar issues. Such advantage may be taking into account in the ‘objective interest of justice’ (see The Spiliada, 485F-486B and Bright Shipping, CA, §52).
The Judge agreed with the terminal operator that the Cambridgeshire factor had no application to this case. It was not a case of huge technical complexity, nor was it the case that any of the Korean legal proceedings was in an advanced stage.
Conclusion on Stage 1(b)
It was plain from the factors identified above that the court of South Korea was clearly or distinctly the more appropriate forum. As analysed, all the relevant considerations, eg, the location of evidence (both witnesses and documents) and applicable law, pointed to the place of alleged commission of the tort as the distinctly more appropriate forum.
The lack of connection to Hong Kong served to highlight the ersatz nature of the terminal operator’s suggestion that the case in question could just as easily be tried in Hong Kong. One could accept that with the advancement of technology, a trial of these matters could be conducted in any modern city anywhere in the world. But why should the Korean witnesses and documents be dealt with by the Hong Kong court rather than the South Korea court? It was not a matter of mere convenience when, with the exception of the experts and the crew of the Vessel, all the witnesses were in Korean and the documents were largely in Korean.
As to the experts, it must be part of their job to travel to where they are needed.
The Judge was unable to accept the terminal operator’s submission that the trial would likely involve little, if any, live evidence. The Judge had pointed out the involvement of third party liability. In addition, the Business Interruption claim by itself ran to US$60.85m, US$46.90m of which was made up of “Increase in Cost of Working”. The Judge agreed with the shipowners that it was quite unlikely that such a claim would be resolved without proof from witnesses who would be cross-examined in detail.
For completeness, the Judge did not believe that the issue of LAP was a weighty factor in the consideration in question.
Juridical advantage and forum shopping (Stage 2)
The Judge turned to the nub of the dispute in the application in question. It was common ground that the higher tonnage limit in Hong Kong was a juridical advantage in favour of the terminal operator.
First of all, the Judge was unable to accept that the terminal operator’s submission that the deprivation of such a juridical advantage would be conclusive such that a stay should be refused.
An advantage of a forum to the plaintiff will often give rise to a corresponding disadvantage to the defendant or deprive him of an equal but opposite advantage in the alternative forum (The Spiliada, 482D; The Kappa Sea, §45). The Judge certainly agreed with the shipowners that the court no more favoured claimants (be they foreign or local) than it did defendants (be they foreign or local).
The issue of lower damages abroad was addressed in The Spiliada, 482E-G (see also de Dampierre v de Dampierre [1988] 1 AC 92, 101E-F and 110B-F) :
“The key to the solution of this problem lies, in my judgment, in the underlying fundamental principle. We have to consider where the case may be tried “suitably for the interests of all the parties and for the ends of justice.” Let me consider the application of that principle in relation to advantages which the plaintiff may derive from invoking the English jurisdiction. Typical examples are: damages awarded on a higher scale; a more complete procedure of discovery; a power to award interest; a more generous limitation period. Now, as a general rule, I do not think that the court should be deterred from granting a stay of proceedings, or from exercising its discretion against granting leave under R.S.C. Ord. 11, simply because the plaintiff will be deprived of such an advantage, provided that the court is satisfied that substantial justice will be done in the available appropriate forum. …”
The shipowners put special emphasis on the dicta at 483B-C :
“… Then take the scale on which damages are awarded. Suppose that two parties have been involved in a road accident in a foreign country, where both were resident, and where damages are awarded on a scale substantially lower than those awarded in this country. I do not think that an English court would, in ordinary circumstances, hesitate to stay proceedings brought by one of them against the other in this country merely because he would be deprived of a higher award of damages here.”
The Judge was inclined to agree with the shipowners that the above dicta applied to the situation in question.
Neither the Incident nor the parties had anything to do with Hong Kong (save for the calling of a sister ship) and Hong Kong was chosen as a forum primarily on the higher tonnage limit. Whilst the Judge had no difficulty accepting the terminal operator’s suggestion that the case in question was about economics with the respective insurers behind the parties, this was no licence for forum shopping.
In The Adhiguna Meranti, 907I-908B, it can be seen that, in dealing with the Stage 3 consideration, the Court of Appeal took the view that the deprivation of juridical disadvantage would not outweigh a case where proceedings were started in Hong Kong for little more than reason of forum shopping :
“… If the answer to (II) is yes, a court has to balance the advantages of (I) against the disadvantages of (II), Abidin Daverper Lord Brandon at p. 419. Deprivation of one or more personal or juridical advantages will not necessarily be fatal to the applicant provided that the court is satisfied that notwithstanding such loss “substantial justice will be done in the available appropriate forum” (p.991H). The court must try to be objective (p. 991F). Proof of this, which can fairly be called the ultimate burden of persuasion, rests upon the applicant for the stay. By these means he establishes that on balance the other forum is more suitable “for the interests of all the parties and the ends of justice”. This may be another way of saying that the plaintiffs’ choice of forum has been shown to be so inappropriate as to deserve the pejorative description of “forum-shopping” and to be restrained accordingly, cp. Lord Reid in The Atlantic Star [1974] AC 436.”
Stage 3
At the end of the day, there was little to speak for having the dispute resolved in Hong Kong with the exception of the deprivation of a higher tonnage limitation. There could be no serious suggestion that justice would not be done to the parties in the court of South Korea. The Judge was in no doubt that it was for the interests of all the parties and the ends of justice that the proceedings in question should be stayed notwithstanding the deprivation of juridical advantage to the terminal operator.
For completeness, the Judge agreed with the shipowners that given that the terminal operator was a South Korean entity operating its business there under the applicable legal regime, it lay ill in its mouth to complain that the tonnage limitation there had not kept up with inflation. Quite possibly, the terminal operator had benefited from the lower Korean limit when it was called upon to pay compensation, and from the lower insurance premium which should apply in light of the Korean limit.
Disposition
In the premise, the Judge ordered that the legal proceedings in question be stayed.
Please feel free to contact us if you have any questions or you would like to have a copy of the Decision.
23/F, Excel Centre, 483A Castle Peak Road, Lai Chi Kok, Kowloon, Hong Kong 香港九龍荔枝角青山道483A卓匯中心23樓 Tel: 2299 5566 Fax: 2866 7096 E-mail: gm@smicsl.com Website: www.sun-mobility.com A MEMBER OF THE HONG KONG CONFEDERATION OF INSURANCE BROKERS 香港保險顧問聯會會員
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 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]
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]
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]
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.
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]
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 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]
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 High Court issued a Decision As To Costs on 5 December 2024 ordering a shipowner (which lost in an anti-suit injunction court case) to pay the winning party’s (a cargo owner) costs on an indemnity basis. HCCT 66/2024 [2024 HKCFI 3511]
The Hong Kong 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 High Court of Hong Kong issued a Judgment on 26/8/2011 to determine which ship to blame in a collision case that occurred at Shanghai. [HCAJ 200/2007]
The Hong Kong High Court issued a Judgment on 11/12/2013 holding that a Hong Kong plaintiff needed to put up a security for costs in a court case concerning a yacht sinking incident. [HCCL 5/2013]
The Hong Kong High Court issued a Decision on 30 September 2021 holding a shipowner’s Defences as an abuse of process in a case of unpaid crew wages. [HCAJ 76/2020] [2021 HKCFI 2961] [HCAJ 91/2020]
The English Court of Appeal issued a Judgment on 13/12/2017 dealing with a cargo damage claim of EUR2,654,238 and a charter hire claim of USD1,012,740 in connection with a NYPE charterparty. [2017 EWCA Civ 2107] [2017 WL 06343564] [Case No. A3/2016/4770]
In the transport industry, the contracts of carriage (e.g. Bills of Lading, Air Waybills) usually contain an exclusive jurisdiction clause for settling disputes. However, it is not uncommon that the shippers and consignees sue the transport operators in a court other than the one specified in the exclusive jurisdiction clause. In Hong Kong, the transport operators may rely on the Foreign Judgments (Restriction on Recognition and Enforcement) Ordinance to tackle this kind of situation.
The Hong Kong Court of Appeal issued a Judgment on 20 February 2019 dismissing Changhong Group’s appeal against the High Court’s Decision of 15 November 2018 (reported in Chans advice/215) because Changhong Group had not obtained leave to appeal from the Hong Kong High Court. [CACV576/2018] [2019HKCA246]
The Hong Kong 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]
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 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]
On 5/8/2011, the District Court of Hong Kong dismissed a shipping company’s container claims against a forwarder for want of prosecution and abuse of process. [DCCJ 765/2005]
The 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]
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 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 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 High Court issued a Decision on 19 March 2018 dealing with some legal principles in relation to granting relief against unless orders in a ship collision case. [HCAJ 84/2017] [2018 HKCFI 609]
The Hong Kong 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 Judgment on 29/4/2013 relating to a discovery order ancillary to and in support of a Mareva injunction. [HCA 2124/2011]
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.
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 Court of Appeal issued a Judgment on 12/2/2018 to deal with the cargo owners’ seeking leave to appeal against the High Court’s Judgment reported in our Chans advice/209 last month. [CAMP 38/2017] [2018 HKCA77]
The 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 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 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 Judgment on 13 August 2021 holding a forwarder liable to pay nominal damages of HKD1,000 to a shipper in a cargo misdelivery claim case of USD1,299,189.87. [HCA 937/2016] [2021 HKCFI 2310]
The Hong Kong High Court issued a 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 Hong Kong Court of Appeal issued a Judgment on 18/12/2014 in connection with a cargo misdelivery claim of US$27,835,000 involving also anti-suit injunction and worldwide freezing order issued by the English Court. [CACV 243/2014 & HCMP 1449/2014]
The High Court of Hong Kong issued a Decision on 31/8/2018 concerning a feeder company’s claim against a shipping company’s lawyer for wasted costs. [HCA1919/2016] [2018HKCFI1879]
The Hong Kong High Court issued a Judgment on 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].
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 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 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 VGM laws have come into operation in Hong Kong since 1/7/2016. They are mainly contained in Section 3 and Section 3A of the Merchant Shipping (Safety) (Carriage of Cargoes and Oil Fuel) Regulation (Chapter 369AV) as follows:
The Hong Kong High Court issued a 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 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]
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.
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 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 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).
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.
As reported in our Chans advice/170 dated 27/2/2015, the English High Court on 14/10/2014 held CSAV’s bill of lading’s English jurisdiction clause as an exclusive jurisdiction clause. On 23/4/2015, the English Court of Appeal issued its Judgment reaching the same conclusion. [Neutral Citation No: 2015 EWCA Civ 401, Case No: A3/2014/3584]
In Chans advice/14 dated 28/2/2002, we discussed this topic 15 years ago. In its Judgment dated 16/10/2017, the District Court of New South Wales in Australia had to deal with, inter alia, a malpractice that a forwarder issued its own house B/Ls but signed off with as agent for China Ocean Shipping, Pacific International Lines, Mitsui O.S.K. Lines Limited or Orient Overseas Container Line without authority. [2017 NSWDC 279]
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 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)]
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 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 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 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 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]
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 High Court of Hong Kong issued a Judgment on 22/5/2017 holding that the District Court has jurisdiction to determine bill of lading and bailment cases. [HCAJ 150/2014]
The Hong Kong High Court issued a Decision on 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 Judgment on 9/4/2018 dealing with a cargo total loss case in which a NVOC in Malta was wrongly sued (because it had the same name as that of the correct NVOC in BVI). [HCAJ 65/2016], [2018 HKCFI 699]
The Hong Kong 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]
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 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$600,000 in relation to a ship collision case that happened in Hong Kong during the super typhoon Hato in August 2017. [HCAJ 80-85/2019] [2022 HKCFI 1631]
Against the post-Covid tide, we ran an off-line real seminar on Uncollected and Undelivered Cargo on 28 May 2024. Attendance could not be compared with any webinars but the number of enthusiastic questions in the Q&A session reflected the demand for transport liability issue solutions. For the sake of recapitulations and sharing the Q&A among the Chan Advice readership, we like to report the Q&A in two issues. We welcome any other questions you may have on the following.
The High Court of Hong Kong issued a Judgment on 3/2/2012 concerning which currency (US$ 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]
In our Chans advice/244, we reported the Hong Kong High Court case [HCA937/2016] [2021 HKCFI 2310] that the forwarder was held liable to pay nominal damages of HKD1,000 to the shipper in the cargo misdelivery claim of USD1,299,189.87. On 20 October 2021, the Hong Kong High Court issued a Decision on Costs holding the shipper liable to pay the costs of the forwarder. [2021 HKCFI 3021]
The Hong Kong Court of Appeal’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 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 High Court of Hong Kong issued a summary Judgment on 28/9/2012 holding a forwarder liable for US$626,389 plus costs and interest for misdelivery of cargoes without production of the original bills of lading. [HCCL 20/2011 & HCCL 21/2011]
The High Court of Hong Kong issued a Judgment on 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]
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]
According to the Hague-Visby Rules, the carrier shall be discharged of all liability in respect of the cargoes unless suit is brought within one year of their delivery or the date when they should have been delivered. The English High Court issued a Judgment on 22nd July 2025 explaining the meaning of “suit”. [2025 EWHC 1878 (Comm)]
The 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]
Following the Hong Kong Court of Appeal’s Judgment dated 11/3/2015 discharging the Mareva Injunctions and the receivership orders (mentioned in our monthly newsletter of Chans advice/171 two months ago), the Hong Kong High Court issued a Judgment on 12/5/2015 to determine the question of who should pay the remuneration to the receivers. [HCMP 1449/2014]
In our newsletter last month, we talked about some essential terms in house Air Waybills. In this issue, as the continuation of the loss prevention exercise for freight forwarders, we would like to discuss some essential terms in house Bills of Lading.
In our Chans advice/169 last month, we mentioned the English Court’s Judgment dated 14/10/2014 holding CSAV’s bill of lading’s English jurisdiction clause to be an exclusive jurisdiction clause. In this issue, let’s look at that English High Court Judgment [2013 Folio No 1248, 2014 EWHC 3632 Comm, 2014 WL 5113447] issued by Justice Cooke in detail.
The Hong Kong High Court issued a 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 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]
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 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 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]
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 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 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]
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 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 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 Court of Appeal on 1 December 2021 allowed a charterer’s appeal against a High Court’s Decision dated 13 April 2021 (which disallowed the charterer’s charter hire claims of US$234,955 against the shipowner because the High Court was not satisfied the claims were well founded). [CACV 294/2021] [2021 HKCA 1865]
The Hong Kong High Court issued a Judgment on 21/7/2014 discharging a Mareva injunction in relation to a cargo misdelivery claim of about US$12 million. [HCA 2368/2012]
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]
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 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 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 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.
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]
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 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 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 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 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]
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 High Court issued a ruling on 2/12/2016 dealing with a shipowner’s interrogatory application in relation to an uncollected cargo case. [HCAJ 118/2015]
The Hong Kong High Court issued a Judgment on 23/12/2013 dealing with an application for security for costs in relation to a ship sinking case. [HCAJ 213/2009]
The Hong Kong Court of Appeal issued a Judgment on 20 September 2019 declining to give leave of appeal to Changhong Group in relation to the High Court Decision dated 29 January 2019 (reported in our Chans advice/221). [CAMP197/2019] [2019HKCA1061]
The Hong Kong 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).
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 12th annual SMIC seminar on uncollected cargoes pulled some 300 participants to attend with much curiosity for 3 hours in the YMCA Assembly Hall. The accumulated questionmarks and enigmas about the subject matter lurking in the trade were unleashed among the audiences.
The Hong Kong High Court 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 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]
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.
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 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]
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 Hong Kong High Court issued a Decision on 21 July 2023 in relation to a case that an aircraft (worth at least USD 80 million) and its cargoes were destroyed by a fire caused by the goods of chlorine dioxide disinfection tablets. [HCA 837/2022] [2023 HKCFI 1896]
The Hong Kong High Court issued a Judgment on 5/8/2015 holding that a shipment of formula milk powder without the legally required export licence should not be forfeited. [HCMA171/2015]
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]
In Chans advice/215, we reported the High Court of Hong Kong refused Changhong Group’s application to stay the Hong Kong action. The Court of Appeal also subsequently dismissed Changhong Group’s appeal. On 13 July 2020, the Court of Final Appeal finally dismissed Changhong Group’s application for leave to appeal. [FAMV No. 34 of 2020] [2020 HKCFA 24]
Remember 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]
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 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 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]
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]
