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 forwarder sued Natural Dairy in October 2011 for outstanding freight and related charges of approximately $4.4 million in respect of 67 invoices issued from May to September 2011. There was no written contract between the parties. The forwarder alleged that the contract was made orally at various meetings held between February and April 2011, evidenced by or to be inferred from correspondence spanning a period of 11 months from November 2010 to September 2011, quotations and invoices and payments by or for Natural Dairy and/or was to be inferred or implied from previous dealings. Natural Dairy’s defence was that it was not the contracting party. The meetings were attended not only by Natural Dairy but also by UBNZ (Natural Dairy’s supplier). The defence was that the contract was made between the forwarder and UBNZ, with Natural Dairy only being responsible for “extra charges”. After the close pleadings, the action was stayed for about 7½ months pending mediation. That process failed on 8/2/2013.
Pursuant to an order made prior to the stay, the parties were to file and serve their respective lists of documents within 28 days of the termination of the mediation, i.e. by 8/3/2013. Following the failed mediation, in early March, several days before the deadline for lists to be exchanged, the parties were engaged in settlement discussions. In view of those discussions, the parties agreed to apply for a 14 day adjournment by consent, with the new deadline being 22/3/2013. While the forwarder produced its list on 22/3/2013, Natural Dairy applied by summons on that day for a 14 day extension. The forwarder’s response was a summons for an unless order returnable on the same day as Natural Dairy’s application.
On 2/4/2013 Master Levy ordered that “unless” Natural Dairy filed and served its list on or before 16/4/2013, the forwarder shall be at liberty to apply for judgment against Natural Dairy together with interest and costs (“the April order”). The forwarder’s application for an unless order was allowed to be withdrawn.
On the following day Natural Dairy terminated the engagement of its former solicitors who however were not able to come off the record until 17/4/2013, the day after the deadline for Natural Dairy to lodge its list. As a result, Natural Dairy whose director had endeavoured to prepare a list (“the 1st list”) was unable to file it although a copy was delivered to the forwarder’s solicitors before the deadline. On 17/4/2013, a document with identical contents except for an amended back sheet (“the 2nd list”) was received by the forwarder’s solicitors. It was accepted that the 1st and 2nd lists were deficient and non-compliant.
The forwarder lost no time in taking out a judgment summons which it did on 29/4/2013.
Natural Dairy engaged its new solicitors on 3/5/2013. Their request to the forwarder for time (30 days) to review the documents and to prepare the list was refused.
Natural Dairy’s solicitors then prepared a list (“the 3rd list”) that was exhibited (as exhibit YWTAW-1) to the affirmation of Abraham Yung filed on 9/5/2013, the day after they filed their notice to act. The 3rd list was not formally filed as Natural Dairy’s list until 21/8/2013.
Initially, Natural Dairy had opposed the judgment summons by filing Mr Yung’s affirmation only. On 18/7/2013, out of an abundance of caution, Natural Dairy took out a relief summons. That summons and the forwarder’s judgment summons were heard together on 31/7/2013 and 20/8/2013, culminating in the August order. At the hearings in July and August, the master appeared to have proceeded on the basis that the April order was an unless order, noting that Natural Dairy was 2½ months late in applying for relief from sanction. But that would be correct only if the April order were a conventional unless order, namely, the type of order described in paragraph 2 of Practice Direction 16.5, triggering 0.2, r.4.
The April order’s terms were unusual. Although the expression “unless” formed part of the order, on analysis, the April order was not an “unless” order as it is normally understood.
In pertinent part, Practice Direction 16.5 reads:
2. The common form of peremptory order known as an ‘unless’ order should prescribe the period within which an act is to be done, failing which the ordered consequences will follow. … 3. The other form of peremptory order in common use does not carry within its wording the sanction for disobedience … An order of this nature is only preliminary to an ‘unless’ order and on disobedience a supplementary order in ‘unless’ form, setting out the sanction, should be obtained. Until then the earlier order cannot be enforced.
So when a party fails to perform what has been ordered by a conventional unless order within the time prescribed, the sanction specified in the order automatically takes effect unless within 14 days of the failure the party in default applies and obtains relief from the court: see Daimler AG v Leiduck [2012] 3 HKLRD 119 at §47; O. 2, r. 4.
The so-called sanction in the April order did not have automatic effect. Nothing would happen unless and until the party not in default made a further court application and obtained a further order. The sanction or punishment for non-compliance was thus not automatic.
In the Judge’s view, when, even at face value, the April order was not a conventional unless order, it would be incumbent on the court to take into account its true effect and, if necessary, all relevant facts that led to the making of the April order.
Its effect put into question the premise that the forwarder must be entitled to enter judgment for non-compliance with the April order once it made the application required. But was the application to be a mere formality? Had that been the intended effect, there would have been no reason for a conventional unless order not to have been made in the first place. The fact that the master allowed the forwarder’s summons for an unless order to be withdrawn reinforced the view that the order made was not a conventional unless order.
In the Judge’s view, it would be wrong to approach the judgment summons on the basis that, prima facie, the forwarder was entitled to enter judgment. To do so would be to give the April order an effect that could not have been intended. Otherwise there would have been no reason for the master to have eschewed a conventional unless order.
That conclusion rendered relevant the material events that led to the making of the April order. Critically, the time summons culminating in the April order was Natural Dairy’s first request. There had been no prior breach. Prior to the time summons there had been no breach on the part of Natural Dairy, the extension to 22/3/2013 was by consent of the parties as earlier explained. Non-compliance with the consent order of 8/3/2013 was the first occasion Natural Dairy had breached an order of the court and, of itself, would not have warranted a conventional unless order because there had been no history of failure to comply with court orders.
The judgment summons was supported by two affirmations of the forwarder. The first complained about the failure of Natural Dairy to comply with the April order and the fact that the 1st list received by the forwarder before the deadline had been prepared by a director of Natural Dairy without first obtaining the leave of the court. The complaints were technical in nature. The forwarder’s 2nd affirmation filed on 24/5/2013 was that all three of Natural Dairy’s lists bore a striking resemblance to the forwarder’s list and were improper and/or grossly insufficient and illusory. It was said that Natural Dairy’s lists were organized and described in the same manner as the forwarder’s list. In short, the complaint was that there had been extensive, if not wholesale, copying of the forwarder’s list rendering Natural Dairy’s lists illusory.
As regards the 3rd list, it was accepted that what appeared under the heading “(D) Other Documents” comprising 7 items or categories of documents was not copied from the forwarder’s list.
In its written submissions and orally at the hearing the forwarder took a number of new points. First, it criticized the absence in the 3rd list of any written or e-mail communications between Natural Dairy (or its subsidiaries) and UBNZ. It was said that if the defence advanced had any validity, Natural Dairy would have in its possession “extensive communications” forwarding the forwarder’s invoices to UBNZ and discussing which should be classified as “freight charges” and which as “extra charges”. Next the forwarder criticised Natural Dairy’s failure to disclose documents unfavourable to its defence but plainly in its possession, custody and power. The documents referred to included, inter alia, two affidavits, one said to have been made by Natural Dairy’s chief marketing officer, a Mr Shum and the other by a director of NZ Dairy, said to be the defendant’s associated company. It was strenuously urged upon the court that those matters demonstrated that Natural Dairy was deliberately acting in breach of its discovery obligations and they were circumstances from which continuing non-compliance could be inferred.
The difficulty with the new points made was that they were not made in the forwarder’s affirmations. As a result, Natural Dairy had not had the opportunity to respond to them. While Natural Dairy attempted to proffer oral explanations at the hearing regarding the two specific instances mentioned (i.e. absence of written communications between the defendant and UBNZ and the failure to disclose the affidavits), the court simply could not begin to go into the merits or otherwise of the new complaints, absent any proper evidentiary basis. Accordingly, they must be disregarded for the purposes in question.
Extensive copying of the forwarder’s list was a major complaint. On that issue, what Natural Dairy had done was not what ought to have been done under the rules. It was probable that given the circumstances in which it found itself, having dispensed with the services of its solicitors without first securing a replacement firm and the fact that there was a vast amount of common documents (i.e. inter partes correspondence and commercial documents passing between the parties), Natural Dairy decided to take a ‘shortcut’. It was a layman’s attempt to meet the deadline only to find that the 1st list could not be filed because the former solicitors were still on the record. In any event, the 1st list was non-compliant.
Natural Dairy’s unorthodox conduct which had been a source of intense irritation to the forwarder could not be condoned. In so far as what was copied comprised common documents, no real prejudice could have been caused.
Paragraph 2 of the August order reads:
The Defendant be relieved from the sanction imposed by the Order of Master Levy herein dated 2 April 2013 for failure to file and serve its List of Documents by 4:00 pm on 16 April 2013 on the condition that the Defendant do make a payment into Court in the sum of HK$4,427,336 which sum shall be paid by 4 instalments as follows: …
It is apparent from those terms that the master’s order was premised on the basis that there was an automatic sanction for breach of the April order. The condition imposed was the price Natural Dairy had to pay for relief. But as the premise upon which the order was based was false, the appropriateness of the condition must be called into question.
Order 2, rule 3 (1) empowers the court to order a party to pay a sum of money into court where that party has, without good reason, failed to comply with a court order.
Natural Dairy did fail to comply with the April order under which it was required to file its list by 16/4/2013. Disregarding the 1st and 2nd lists accepted to be non-compliant, the 3rd list was provided to the forwarder (although not formally filed) on 9/5/2013. Even if the 3rd list were also to be disregarded because no list had been filed as required by the rules, that failure would constitute a breach of the April order and a second breach of court orders by Natural Dairy.
In deciding the appropriate order to make, those were the only facts to which regard was to be had. No question of any relief from sanction under a conventional unless order arose because the April order did not give rise to any such sanction.
The condition (of payment in) imposed is the type of condition associated with summary judgment applications and normally imposed where, for example, there is a good ground in the evidence for believing that the defence set up is a sham defence. Quite apart from the fact that the application in question was not one for summary judgment, the case in question was not about a sham defence. Whether the defence (that the contracting party was not the defendant but its supplier UBNZ) would ultimately succeed was a matter for trial but there was nothing in the papers that would warrant a conclusion that the defence advanced was a sham defence. Where there was no proper basis for regarding a defence as a sham defence, it was evident that the imposition of a condition requiring full payment in of the amount claimed (a sum in excess of $4.4 million) would have serious consequences for Natural Dairy. Apart from affecting its cash flow, the condition could seriously hamper or even stifle the ability of Natural Dairy to defend the claim.
In exercising its discretionary powers, it has to be borne in mind that the primary objective is to secure a just resolution of the dispute in accordance with the substantive rights of the parties. In the Judge’s view, the condition imposed would not have furthered that objective.
Natural Dairy submitted that the condition imposed served merely to punish and, as such, was not a proper reason for the exercise of the power. Natural Dairy referred to the decision of Buckley J in Mealey Horgan plc v Horgan, (1999) The Times, 6/7/1999 for guidance as to the circumstances that would warrant its exercise. That case concerned a breach of an order to file the defendant’s witness statement by a certain date. The claimant had submitted that the court should be tough to ensure compliance with the new rules (i.e. the CPR) and that failure to adhere to them should be penalised. But Buckley J considered that:
a payment into court might be appropriate if a party had behaved worse than the defendants had in this case; that is, where there was a history of repeated breaches of timetables, court orders or something in the conduct of the party that gave rise to the suspicion that it was not bona fide and the court thought the other side should have protection.
On the facts, the defendant’s default (being 2 weeks late in serving its witness statement but which was served 6 weeks before trial) had not prejudiced the trial and had not significantly prejudiced the claimant. In those circumstances the court considered that there could be no reason to require payment into court other than as pure punishment and Buckley J did not read the rules as encouraging the courts to punish this type of default.
The Judge respectfully agreed with the approach of Buckley J. That is consistent with the approach of Millett J in Logicrose Ltd v Southend Football Club Ltd, The Times, 5/3/1988, a decision of the pre-CPR era, where it was held that deliberate disobedience of a peremptory order, while a contempt, should not deprive a litigant of his right to a fair trial unless that conduct was deserving of punishment because that failure had rendered it impossible to conduct a fair trial.
The concept of proportionality is a relevant consideration in circumstances where the court is minded to sanction a party for breach or non-compliance with the rules and court orders. The sanction has to be commensurate with the gravity of the ‘crime’. In Husband’s of Marchwood v Drummond Ltd [1975] 1 WLR 603, Russell LJ considered (at 606 G-H) that a condition requiring the defendants to pay the balance of the claim into court or be barred from defending the action because they had failed to comply with the discovery order to be “something which is quite inappropriate, in the sense that it is a punishment which does not fit the crime.” Proportionality of the sanction is a weighty factor in the weighing exercise to be undertaken on a fresh exercise the discretion: see per Fok JA in Daimler AG at §§ 57 et seq.
The condition imposed on the defendant to pay into court the amount claimed prior to trial is draconian. On the facts of the case in question, it was wholly out of proportion to the breaches that had occurred. The order made was plainly wrong and unsustainable.
The proceedings were at an early stage and no milestone had yet been reached. Clearly, the objective must have been to progress the action. To that end proper discovery must go forward. At the time the August order was made, Natural Dairy had not yet filed its list. Clearly it would have been appropriate for a conventional unless order to have been made at that stage having regard to the prior breaches but that was now water under the bridge since Natural Dairy’s list was filed the day after the August order pursuant to paragraph 5 of that order. If the forwarder were to take the view that specific documents had been omitted, there were avenues it could pursue if so advised.
In exercising the discretion afresh, the Judge had no hesitation in setting aside the condition requiring payment into court. In all other respects, the August order was to take effect. There was to be an order nisi of costs in favour of Natural Dairy with certificate for counsel.
Please feel free to contact us if you have any questions or you would like to have a copy of the Judgment.
23/F, Excel Centre, 483A Castle Peak Road, Lai Chi Kok, Kowloon, Hong Kong 香港九龍荔枝角青山道483A卓匯中心23樓 Tel: 2299 5566 Fax: 2866 7096 E-mail: gm@smicsl.com Website: www.sun-mobility.com A MEMBER OF THE HONG KONG CONFEDERATION OF INSURANCE BROKERS 香港保險顧問聯會會員
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The 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 16 January 2019 dealing with the appeal of the wasted costs’ case reported by our Chans advice/214. [HCA1919/2016] [2019HKCFI127]
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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 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]
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]
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]
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 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 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]
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]
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.
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 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 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]
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 Judgment on 11 January 2019 dealing with a dispute of US$335,858.31 between a bunker supplier and a ship agent. [HCA119/2015] [2019HKCFI57]
The 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)]
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]
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 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 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 District Court issued a Decision on 8 May 2020 upholding a summary judgment ordering one forwarder to pay outstanding airfreight charges of HK$440,000 to another forwarder. [DCCJ1202/2018] [2020HKDC307]
In this issue, we would like to continue with the case (CSAV v Hin-Pro) mentioned in our monthly newsletter of Chans advice/169 two months ago. The Hong Kong Court of Appeal issued its Judgment on 11/3/2015 discharging the Mareva Injunctions and the receivership orders granted by DHCJ Saunders against Hin-Pro and Soar. [CACV 243/2014]
The Hong Kong High Court issued a Judgment on 13 August 2021 holding a forwarder liable to pay nominal damages of HKD1,000 to a shipper in a cargo misdelivery claim case of USD1,299,189.87. [HCA 937/2016] [2021 HKCFI 2310]
The High Court of Hong Kong issued a Judgment on 3/2/2012 concerning which currency (US$ or Euro) should be the proper one for the cargo owners in a shipment to claim against the forwarder for compensation in a cargo damage case. [HCAJ 152/2010]
The Hong Kong 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 High Court of Hong Kong issued a Decision on 23 May 2018 allowing a shipowner to be represented by 2 different firms of solicitors (one appointed by its hull underwriters and the other appointed by its P&I Club). [HCAJ84/2017] [2018HKCFI1136]
In Chans advice/191 and Chans advice/206, we reported a case relating to a shipping company’s claim against its former deputy general manager (Mr Ma) over the alleged theft of the company’s money. The Hong Kong High Court on 16 December 2020 sentenced Mr Ma to 15 years’ imprisonment. [HCCC 20/2018] [2021 HKCFI 195]
The Hong Kong High Court issued a 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]
In the issue of our Chans advice last month, we talked about the major provisions of the Montreal Convention (which is for the international carriage of goods by air). In this issue, we would like to discuss the major terms of an equally important international convention for the international carriage of goods by sea, viz. the Hague Visby Rules.
The Hong Kong Court of Appeal issued a Judgment on 9/7/2015 in relation to the High Court Judgment dated 21/7/2014 (reported in our Chans advice/167 dated 28/11/2014). [HCMP 2315/2014]
The 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]
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 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 on 13/8/2013 held a shipper liable to a shipping company for paying demurrage of US$1,645,286.74 plus interest and costs. [HCAJ 166/2011]
The Hong Kong High Court issued a Decision on 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 English High Court issued a Judgment on 15/5/2015 maintaining an anti-suit injunction to restrain the Xiamen Maritime Court’s legal proceedings in breach of a London arbitration agreement. [Case No: 2015-515], [2015 WL 2238741], [2015 EWHC 1974 COMM]
The Hong Kong 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 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 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]
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]
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]
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 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]
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]
In Chans advice/215, we reported the High Court of Hong Kong refused Changhong Group’s application to stay the Hong Kong action. The Court of Appeal also subsequently dismissed Changhong Group’s appeal. On 13 July 2020, the Court of Final Appeal finally dismissed Changhong Group’s application for leave to appeal. [FAMV No. 34 of 2020] [2020 HKCFA 24]
The 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.
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 ruling on 2/12/2016 dealing with a shipowner’s interrogatory application in relation to an uncollected cargo case. [HCAJ 118/2015]
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.
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.
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 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]
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.
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 Judgment on 21/7/2014 discharging a Mareva injunction in relation to a cargo misdelivery claim of about US$12 million. [HCA 2368/2012]
What is the difference between a straight bill of lading and an order bill of lading? This can be illustrated in the Wuhan Maritime Court’s Judgment dated 17 September 2019 concerning a cargo misdelivery claim of US$89,838.
The Hong Kong High Court issued a Judgment on 2/6/2017 dealing with the liability apportionment among 3 vessels in 2 almost simultaneous collisions that happened near Hong Kong on 14/5/2011. [HCAJ158/2012 and HCAJ49/2013 and HCAJ48/2011]
The Hong Kong High Court issued a decision on 11/9/2013 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 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]
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 Court of Appeal issued a Judgment on 4 October 2019 upholding the High Court’s Decision dated 9 April 2018 (reported in our Chans advice/208). [CACV593/2018][2019HKCA1101]
The Hong Kong 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 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 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]
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.
Remember Chans advice/142 dated 31/10/2012 that the High Court of Hong Kong held the forwarder liable for cargo misdelivery without production of original bills of lading? The High Court of Hong Kong issued another Judgment on 4/12/2012 dealing with the interest and costs. [HCCL 20/2011 & HCCL 21/2011]
The 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 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 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]
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.
