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]
Introduction
The forwarders as defendants applied for the transfer of the case from the High Court to the District Court. The plaintiffs were the cargo interests i.e the shippers, consignees, sellers and subrogated insurers of a cargo of 2,867 cartons of frozen salmon fillet strips, which were carried in 3 containers on board 3 vessels, successively, from Ustka, Poland to Lat Krabang, Thailand. The forwarders were said to be the contractual carriers under the bills of lading and bailees for reward of the cargo.
Under the bills of lading the carriage was by multimodal transport. It was alleged the cargo was damaged in the course of sea transit from Gdynia, Poland to Singapore, in that one of the containers was found to be defective upon arrival in Singapore and therefore replaced, but the cargo inside that container had been damaged due to exposure to improper temperature during the sea carriage.
The forwarders were said to have caused the damage “[n]egligently and/or in breach of their duties as bailees and/or as carrier for reward and/or in breach of the contract contained in or evidenced by the Bills of Lading and/or in breach of its duties and/or obligations under the Hague‑Visby Rules as set out above, in particular Article III Rule 2 …”.
The loss claimed was particularised as the 2 sums of JPY8,475,704 and BHT90,971.40, which together were equivalent to approximately HK$629,000, and thus within the monetary limit of the District Court’s jurisdiction of HK$1 million.
S 43 of the District Court Ordinance (Cap 336) provides: “(1) The Court of First Instance may, either of its own motion or on the application of any party, order the transfer to the Court of all or part of an action or proceeding, other than a counterclaim, which appears to the Court of First Instance likely to be within the jurisdiction of the Court. (2) An order may be made under this section at any stage of the proceedings of the motion of the Court of First Instance itself or on the application of any party. (3) The Court of First Instance is required to make an order under this section unless it is of the opinion that, by reason of the importance or complexity of any issue arising in the action or proceeding, or for any other reason, the action or proceeding ought to remain in the Court of First Instance.”
The cargo interests opposed the application for transfer. First, they contended the case did not fall within the jurisdiction of the District Court because (i) the District Court had no Admiralty jurisdiction; and (ii) the District Court had no jurisdiction to determine a claim in bailment. Secondly, it was argued that the cargo interests had a right to bring the action in the Court of First Instance by virtue of s 12B of the High Court Ordinance (Cap 4).
Admiralty jurisdiction
It was submitted on behalf of the forwarders, correctly in the Judge’s view, that while s 12A of the High Court Ordinance sets out the Admiralty jurisdiction of the Court of First Instance and the plaintiffs’ claim here falls within s 12A(2)(g) “any claim for loss of or damage to goods carried in a ship” and (h) “any claim arising out of any agreement relating to the carriage of goods in a ship …”, there is nothing in that Ordinance to suggest that the Court of First Instance has exclusive jurisdiction over such a claim. The phrase in s 12A(1) that “[t]he Admiralty jurisdiction of the Court of First Instance shall consist of” is apt to confer jurisdiction but not exclusive jurisdiction. Where the legislature has sought to give a particular tribunal exclusive jurisdiction, this is done in clear and express terms; see eg s 7 of the Labour Tribunal Ordinance (Cap 25) and s 5 of the Small Claims Tribunal Ordinance (Cap 338). There is nothing similar to confine the matters falling within s 12A to the exclusive province of the Court of First Instance.
The matters referred to in s 12A — under the general heading of Admiralty jurisdiction — are wide ranging and varied in nature. There are no doubt certain claims there that lie outside the jurisdiction of the District Court, though this is not because s 12A excludes the jurisdiction of tribunals other than the Court of First Instance, but simply because those claims do not fall within the terms of the statute that confers jurisdiction on the District Court. Conversely, there were in the Judge’s view undoubtedly in personam claims in s 12A that fell within the jurisdiction of the District Court because, for example, they were founded on contract, quasi‑contract or tort and the amount claimed did not exceed the monetary limit. The fact that a ship or bills of lading feature in such claims did not, in the Judge’s view, deprive the District Court of jurisdiction. Thus, in Pacific Bridge Services Ltd v Wide Tech Shipping Ltd (unrep, HCA 12492/1999; 25 October 2000), Waung J, a most experienced Admiralty judge, ordered the transfer to the District Court of a High Court action involving a defence of time‑bar under the Hague‑Visby Rules even though, it would appear, the action was within the Admiralty jurisdiction of the Court of First Instance. Likewise, in The APL Malaysia (unrep, HCAJ 152/2010; 3 February 2012) at §40, Master de Souza said that the District Court regularly tried disputes involving loss or damage to goods carried on ships (which would fall within s 12A(2)(g)).
The relevant question in the case in question was whether the cargo interests’ claim fell within the terms of the statutory provisions conferring jurisdiction on the District Court (especially s 32 of the District Court Ordinance), and not whether it falls within s 12A of the High Court Ordinance.
Jurisdiction in relation to bailment
This was the other point made by the cargo interests on jurisdiction, namely, that the cargo interests’ action involved, amongst others, a claim in bailment, which (the cargo interests submitted) did not clearly fall within s 32(1) of the District Court Ordinance, which provides: “The Court has jurisdiction to hear and determine any action founded on contract, quasi‑contract or tort where the amount of the plaintiff’s claim does not exceed $1,000,000.” The cargo interests submitted it was doubtful if a claim in bailment was “founded on contract, quasi‑contract or tort”. The cargo interests referred to Palmer on Bailment (3rd ed), §§1.001 & 1.047, as well as the dictum of Windeyer J in Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220, 241 that “it may well be that the duty of the bailee to use due care does not arise from contract or tort”.
To determine what an action is founded on, the court has to look at the substance of the matter rather than the form. The foundation of an action consists in those facts which are necessary to maintain it: Bryant v Herbert (1877) 3 CPD 389. Where both causes of action were relied upon, it seems to the Judge there was no reason in the general law or in the District Court Ordinance why an action could not be poised both in contract and in tort. For the purposes of s 32, it is unnecessary to distinguish between contract and tort.
The Judge accepted that a bailment might arise in the absence of contract. However, the case in question was concerned with a case of contractual bailment. There was a contract of carriage contained in or evidenced by the bill of lading of which the bailment was an incidence. Insofar as the cause of action was breach of the duties arising from the contract of carriage, the action should in the Judge’s view be regarded as founded on contract.
It is true that a bailee, even without a contract, is subject to a duty to take reasonable care to keep the goods safe, which is more onerous as regards burden of proof than the general duty of care under the law of negligence, because if the goods are lost or damaged whilst in his possession, he is liable unless he can show that the loss or damage occurred without neglect or default or misconduct of himself or his servants: Morris v C W Martin & Sons Ltd [1966] 1 QB 716, 726. The Judge also recognised that modern exposition tended to regard such a duty as arising from bailment as distinct from contract and tort. But it by no means followed that an action for breach of such a duty could not be said to be founded on tort for the purposes of the District Court Ordinance.
As Greer LJ said in Jarvis v Moy, Davies, Smith, Vandervell & Co [1936] 1 KB 399, 405: “where the breach of duty alleged arises out of a liability independently of the personal obligation undertaken by contract, it is tort, and it may be tort even though there may happen to be a contract between the parties, if the duty in fact arises independently of that contract. Breach of contract occurs where that which is complained of is a breach of duty arising out of the obligations undertaken by the contract.”
Similarly, in Chesworth v Farrar [1967] 1 QB 407, after the plaintiff had occupied the premises of one Farrar for some years as a statutory tenant, Farrar recovered possession pursuant to a judgment obtained against the plaintiff. After Farrar died, the plaintiff sued the administrators of his estate claiming damages for loss of her goods whilst in Farrar’s possession at the premises, alleging that Farrar had become bailee of her goods. Edmund-Davies J, following Turner v Stallibrass, held (at 416D) that: “the claim rests basically upon the simple fact of possession of the plaintiff’s goods and is independent of the circumstances which gave rise to that possession. If this is right, it follows that the claim is one ‘in respect of a cause of action in tort’ …”
One thing that is clear from the legislative history is that no discernible reason in logic, policy or practicality exists for claims in bailment to be carved out specifically and excluded from the civil jurisdiction of the District Court. Rather, it seemed to the Judge that the general intent was that the District Court should have jurisdiction over claims arising from the common law of personal obligations which was covered by contract and tort: see Bryant v Herbert, supra, at 390.
The Judge concluded that for the purpose of s 32 of the District Court Ordinance, an action in bailment should, depending on the facts of the particular case, be characterised as a claim founded on contract or on tort or on both. Accordingly, the claim in bailment posed no obstacle to the transfer of the action in question to the District Court.
S 12B(1) of the High Court Ordinance
The cargo interests submitted that by virtue of s 12B(1) of the High Court Ordinance, they had a right to bring an Admiralty claim in the Court of First Instance, and that this right could not or should not be frustrated by an order for transfer to the District Court. The Judge thought this contention was misconceived. S 12B is concerned with the mode of exercise of Admiralty jurisdiction and, in particular, whether an action may be brought in personam or in rem and, if in rem, against what ship and property. Thus s 12B(1) provides that an action in personam may be brought in the Court of First Instance in all cases within the Admiralty jurisdiction of this court. It stands in contrast to s 12B(2)–(5) which provides that an action in rem may be brought only in certain limited cases and against specified ships or property. In the Judge’s opinion s 12B(1) did not confer an absolute right for the plaintiffs to insist on their claim being heard and determined by the Court of First Instance, or detract from the provisions on transfer of proceedings in s 43 of the District Court Ordinance.
Reasons against transfer
The cargo interests submitted that, in any event, the High Court should exercise its discretion against ordering a transfer. While s 43(1) confers a discretion by using the word “may”, s 43(3) makes clear that the High Court is required to order a transfer unless the case ought to remain in the High Court “by reason of the importance or complexity of any issue arising” or “for any other reason”. The burden was on the cargo interests to demonstrate that the case positively ought to remain in the Court of First Instance.
Importance and complexity are matters of degree. The cargo interests pointed to a number of issues joined on the pleadings in relation to the application of the Hague‑Visby Rules such as whether the forwarders could be bailees of the containers without being bailees of the cargo inside and whether the Rules only applied to the sea carriage. As to the latter point, the forwarders clarified that the forwarders were merely contending that the Hague‑Visby Rules applied compulsorily only to sea carriage; there was no dispute that they could apply more widely by agreement express or implied. The Judge did not think they were so important or complex as to show that the case ought to be tried in the High Court. In Pacific Bridge Services Ltd, supra, Waung J considered that the fact there may be a point of law involved, and the Admiralty judge may be able to deal with it somewhat faster, is no reason for the court to refuse the transfer. The Judge also disagreed with the cargo interests’ submission that judges of the District Court could not be expected to have any knowledge of the Hague‑Visby Rules. As the authorities show, cargo claims have frequently come before the District court.
As for the “any other reason” limb of s 43(3), the cargo interests submitted that it was not limited to situations of an exceptional nature and that the existence of the Admiralty List in the Court of First Instance with a specific judge in charge of it was a reason for retaining the case in the High Court. The Judge did not think this was a sufficient reason.
Disposition
For all the above reasons, the Judge ordered the action to be transferred to the District Court.
Please feel free to contact us if you have any questions or you would like to have a copy of the Judgement.
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
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]
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.
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 PRC Supreme Court on 26/11/2015 issued a Judgment holding a shipping company’s container demurrage claim against a shipper time barred. [2015民提字第119號]
The Hong Kong High Court issued a Decision on 19 March 2018 dealing with some legal principles in relation to granting relief against unless orders in a ship collision case. [HCAJ 84/2017] [2018 HKCFI 609]
In 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]
Following the issue of Chans advice last month, we would like to report the latest decision issued by the court over this theft case. On 17 January 2023, the Hong Kong High Court dismissed Mr Ma’s application to withdraw HK$1.5 million out of his frozen assets for paying the legal costs for his appeal against conviction in theft. [HCA 619/2016] [2023 HKCFI 197]
We 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 Judgment on 9/4/2018 dealing with a cargo total loss case in which a NVOC in Malta was wrongly sued (because it had the same name as that of the correct NVOC in BVI). [HCAJ 65/2016], [2018 HKCFI 699]
In our newsletter last month, we talked about some essential terms in house Air Waybills. In this issue, as the continuation of the loss prevention exercise for freight forwarders, we would like to discuss some essential terms in house Bills of Lading.
The High Court of Hong Kong issued a 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]
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.
We reported in our Chans advice/252 that the Hong Kong High Court held Hyundai Hong Kong’s ex-Deputy General Manager (Mr Ma) liable to compensate HK$387,655,303.70 to Hyundai Hong Kong in the case of his theft of his employer’s money. On 23 December 2022, the Hong Kong High Court issued a decision ordering a sum of HK$500,000 (which was deposited by Mr Ma as bail money) to be released to Hyundai Hong Kong in partial satisfaction of Mr Ma’s judgment debt. [HCA 619/2016] [2022 HKCFI 3798]
The Hong Kong 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 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.
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 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 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 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 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 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 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 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]
The Hong Kong High Court issued a Decision on 11 May 2021 staying a South Korea container terminal’s legal action in Hong Kong with respect to its allision claims of more than US$90,000,000 against the owners of a container ship. [HCAJ 31/2020] [2021 HKCFI 1283]
The Hong Kong 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 Hong Kong High Court issued a Judgment on 16 January 2019 dealing with the appeal of the wasted costs’ case reported by our Chans advice/214. [HCA1919/2016] [2019HKCFI127]
In 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]
Our Chans advice/191 reported a Hong Kong High Court’s case concerning a shipping company’s restitution claim against its former deputy general manager (Mr Ma) for HK$387,655,303.70. The latest development of this case is: the Hong Kong High Court issued a Judgment on 1/2/2018 and a Decision on 9/2/2018 holding that Mr Ma was in contempt of Court as a result of his breach of a Mareva Injunction Order and that he be committed to prison for 4 months. [HCMP1115/2017] [2018 HKCFI176] [2018 HKCFI328]
The Hong Kong 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]
We recently have received a lot of uncollected cargo claim cases from our forwarder clients, which have kept our 6 claim handlers very busy. We would like to take this opportunity to talk about this troublesome problem of uncollected cargoes. Actually, the forwarders have been facing this real headache in at least these two decades.
The Hong Kong High Court issued a 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]
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 on 9/5/2017 allowing a time extension for some cargo interests to claim against the Tonnage Limitation Fund constituted by the owner of one of the two vessels involved in a collision that happened on 7/11/2013. [HCAJ 189/2013]
The Hong Kong High Court issued a Decision on 22 Feb 2021 holding that the wreck removal claims of a ship sunk were not subject to the Convention on Limitation of Liability for Maritime Claims 1976. [HCAJ 98/2019] [2021 HKCFI 396]
The Hong Kong High Court issued a 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]
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 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 High Court of Hong Kong issued a Decision on 21/9/2017 dealing with the principles in respect of the real risk of dissipation of assets in a case of Mareva Injunction involving a shipowner and a charterer. [HCMP 1010/2017]
The Hong Kong High Court issued a Decision on 15 March 2021 converting a domestic Mareva injunction into a worldwide Mareva injunction in a shipowner’s freight and demurrage claim against a charterer. [HCMP 1190/2020] [2021 HKCFI 680]
This continues the Q&A in our off-line real seminar on Uncollected and Undelivered Cargo on 28 May 2024. Participants were keen to know more about seaway bills, how war plays in insurance? How modes of transport differ mis-delivery claims handling? What is insurers’ attitude towards transloading claims? And finally, why mis-delivery and uncollected cargo claims deserve special attention. SMIC deals with similar questions daily. Each case varies in its cause, and therefore healing recipe differs. But if you are conversant with fundamentals. They could be simple.
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]
In the transport industry, the contracts of carriage (e.g. Bills of Lading, Air Waybills) usually contain an exclusive jurisdiction clause for settling disputes. However, it is not uncommon that the shippers and consignees sue the transport operators in a court other than the one specified in the exclusive jurisdiction clause. In Hong Kong, the transport operators may rely on the Foreign Judgments (Restriction on Recognition and Enforcement) Ordinance to tackle this kind of situation.
The English High Court issued a Judgment on 31/7/2015 dismissing a cargo owner’s conversion claim US $565,891.58 against a shipowner in an uncollected cargo case. [(2015) EWHC 2288 (Comm), (2015) 2 C.L.C. 415]
Without even knowing, we have published including this one 200 issues of the Chans Advice. As this is a monthly bulletin, 100 issues took more than 8 years and 200 issues took 17 years to run.
The Hong Kong Court of Appeal 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 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 Hong Kong District Court issued a Judgment on 26 April 2022 dealing with a case concerned with transfer of business and lifting the corporate veil, and held a forwarder and its shareholder and director jointly and severally liable for a debt of HK$975,733.71. [DCCJ 2104/2019] [2022 HKDC 289]
The Hong Kong High Court issued a Decision on 4 March 2020 dismissing a shipowner’s application for a stay of proceedings in favour of arbitration in a case of cargo misdelivery without presentation of original bill of lading. [HCAJ 5/2019] [2020 HKCFI 375]
The Hong Kong High Court issued a Decision on 22 January 2021 dealing with an appeal against a Small Claims Tribunal’s award concerning a dispute over a container terminal’s storage charges. [HCSA 44/2020] [2021 HKCFI 200]
The Hong Kong High Court issued a Decision on 13 May 2021 to deal with an interpleader action concerning the stakeholding of US$700,000 in relation to a dispute over some management fees between two transport operators. [HCMP510/2020] [2021 HKCFI 1373]
The Hong Kong 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 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 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]
In our Chans advice/244, we reported the Hong Kong High Court case [HCA937/2016] [2021 HKCFI 2310] that the forwarder was held liable to pay nominal damages of HKD1,000 to the shipper in the cargo misdelivery claim of USD1,299,189.87. On 20 October 2021, the Hong Kong High Court issued a Decision on Costs holding the shipper liable to pay the costs of the forwarder. [2021 HKCFI 3021]
The High Court of Hong Kong issued a Decision on 23 May 2018 allowing a shipowner to be represented by 2 different firms of solicitors (one appointed by its hull underwriters and the other appointed by its P&I Club). [HCAJ84/2017] [2018HKCFI1136]
In our last issue of Chans advice/253, the Hong Kong District Court’s judgment dated 26 April 2022 mentioned a case authority of China Ocean v Mitrans Shipping. We would like to discuss this judgment dated 11 July 1995 of the Hong Kong Court of Appeal in our Chans advice this month. [1995 No. 71 Civil]
The Hong Kong 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 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]
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.
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 District Court issued a Decision on 8 May 2020 upholding a summary judgment ordering one forwarder to pay outstanding airfreight charges of HK$440,000 to another forwarder. [DCCJ1202/2018] [2020HKDC307]
The Hong Kong High Court issued a 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 12/4/2016 to dismiss a cargo owner’s action in respect of breaking a barge owner’s tonnage limitation. [HCAJ 178/2014]
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]
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 judgment on 21/4/2016 and disallowed a cargo owner’s application for summary judgment against a forwarder in connection with a cargo (a diamond) missing claim of US$900,000. [HCCL 10/2015]
The Hong Kong High Court issued a 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]
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 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.
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 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).
In Chans advice/191 and Chans advice/206, we reported a case relating to a shipping company’s claim against its former deputy general manager (Mr Ma) over the alleged theft of the company’s money. The Hong Kong High Court on 16 December 2020 sentenced Mr Ma to 15 years’ imprisonment. [HCCC 20/2018] [2021 HKCFI 195]
The Hong Kong High Court issued a Judgment on 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]
Against the post-Covid tide, we ran an off-line real seminar on Uncollected and Undelivered Cargo on 28 May 2024. Attendance could not be compared with any webinars but the number of enthusiastic questions in the Q&A session reflected the demand for transport liability issue solutions. For the sake of recapitulations and sharing the Q&A among the Chan Advice readership, we like to report the Q&A in two issues. We welcome any other questions you may have on the following.
The Hong Kong 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 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 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 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]
