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Benchmark Electronics (Thailand) Pcl And Others v Cargo Contrainer Line Ltd

Judgment Cited authorities 12 Cited in 1 Precedent Map Related
Vincent
Judgment Date04 October 2019
Neutral Citation[2019] HKCA 1101
Judgement NumberCACV593/2018
Citation[2019] 5 HKLRD 223
Year2019
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV593/2018 BENCHMARK ELECTRONICS (THAILAND) PCL AND OTHERS v. CARGO CONTRAINER LINE LTD

CACV 593/2018

[2019] HKCA 1101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 593 OF 2018

(ON APPEAL FROM HCAJ NO 65 OF 2016)

________________________

BETWEEN
BENCHMARK ELECTRONICS (THAILAND) PCL 1st Plaintiff
VIASAT, INC. 2nd Plaintiff
NAVIGATORS UNDERWRITING AGENCY LIMITED AND/OR ACE UNDERWRITING AGENCIES LIMITED SUING ON THEIR OWN BEHALF AND ON BEHALF OF ALL MEMBERS OF LLOYD’S SYNDICATE 1221 AND/OR LLOYD’S SYNDICATE 2488 AND THE OTHER INTERESTED UNDERWRITERS SUBSCRIBING TO COVERNOTE NO. B0753PC1206508000 AND/OR MARINE CARGO POLICY NO. MC-3019 3rd Plaintiff
SHIMANO EUROPE BIKE HOLDING B.V. 4th Plaintiff
SHIMANO EUROPE FISHING HOLDING B.V. 5th Plaintiff
SHIMANO BENELUX B.V. 6th Plaintiff
SHIMANO EUROPE HOLDING B.V. 7th Plaintiff
SOMPO JAPAN INSURANCE COMPANY OF EUROPE LTD. 8th Plaintiff
HUSQVARNA AB 9th Plaintiff
and
CARGO CONTAINER LINE LTD. Defendant

________________________

Before: Hon Kwan VP and Barma JA in Court
Date of Hearing: 10 September 2019
Date of Judgment: 4 October 2019

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. This is the defendant’s appeal against the decision of Anthony Chan J handed down on 9 April 2018 ([2018] 2 HKLRD 617), in which he refused to set aside the concurrent amended writ of summons and service on the defendant and to discharge the order of the master granting leave to the plaintiffs to issue the concurrent amended writ of summons and serve the same on the defendant out of the jurisdiction in the British Virgin Islands. The appeal was brought with leave granted by the Court of Appeal on 10 December 2018.

2. The appeal concerned a short point.

3. The plaintiffs brought this action for damages against the contract carrier under six bills of lading. The writ was issued by them against Cargo Container Line Ltd with an address in Malta. After the limitation period under the Hague-Visby Rules had expired, the plaintiffs obtained leave to issue a concurrent writ of summons on the defendant and serve it out of jurisdiction in Malta.

4. The plaintiffs subsequently amended the writ of summons without leave pursuant to Order 20 rule 1 of the Rules of the High Court, correcting the address of the defendant to an address in the BVI, and obtained leave to issue a concurrent amended writ of summons and serve it on the defendant out of jurisdiction in the BVI[1].

5. There are two different entities with the identical name of Cargo Container Line Ltd, one was incorporated in Malta (“CCL Malta”), the other in the BVI (“CCL BVI”), with different shareholders and directors in each. The bills of lading, which did not provide the address of the contract carrier or any information as to its whereabouts, were issued by CCL BVI, not by CCL Malta.

6. The issue is whether by correcting the address in Malta to the address in the BVI, this constituted the substitution of a new party. If the answer is in the affirmative, the plaintiffs’ claim has been extinguished upon the expiry of the limitation period under the Hague-Visby Rules[2] and the application of CCL BVI to set aside the writ and to discharge the order granting leave to serve the writ out of the jurisdiction in the BVI must be granted. The judge ruled on the issue in the negative and thereby dismissed the application of CCL BVI.

7. It is not necessary to go into further details of the relevant background facts, which are largely set out in the decision at §§4 to 15, nor is it relevant to have regard to how the genuine mistake had come about. And as these details are not necessary for the proper understanding of the legal arguments involved, we do not propose to set them out.

The decision below

8. The judge held that the issue – whether the entity named in the amendment was different from the existing one – is simply one of fact[3]. The general endorsement of the writ had identified the plaintiffs’ causes of action as those against the contract carrier under the bills of lading. Accordingly, there can be no doubt as to the party intended to be sued, namely, CCL BVI[4]. Given that there was no ambiguity over the intended defendant, the amendment of the address stated in the writ was only to clarify its identity and did not introduce a new party in substitution of the existing one[5]. He rejected the contention that the plaintiffs had not in the circumstances sued the correct party[6].

9. The judge said this at §40 of the decision:

“What the arguments boil down to is that the correctly named defendant with a wrong address happened to be a different entity. I do not believe that the law should depend on a matter of accident. If the combination of the right name with a wrong address did not disclose an existing entity, it is unlikely that this application would arise.”

The defendant’s arguments

10. Mr Charles Sussex, SC, who appeared for the defendant on appeal[7], took issue with the holding that the plaintiffs had intended to sue CCL BVI all along. He contended that it is clear the plaintiffs had intended to sue CCL Malta and had in fact sued CCL Malta when it issued the writ against the entity with the address in Malta. He pointed to the affirmation filed on the plaintiffs’ behalf in support of the original application to serve the writ outside the jurisdiction in Malta, in which the deponent described the address in Malta as the defendant’s “registered office address”[8], stated that the defendant “is and was at all material times a company incorporated under the laws of Malta”[9], and referred to the last annual return “filed by the Defendant with the Registry of Companies in Malta” which stated that its registered office address was in Malta[10]. He submitted that it cannot be suggested that CCL BVI was sued in the original writ.

11. In further support of this submission, Mr Sussex pointed to the following statements in the decision and argued that it is clear from the language the judge stated that the writ was originally issued against CCL Malta:

“By a mistake, the Writ was issued against a company with the same name as CCL BVI but was incorporated in Malta instead of the BVI.”[11]

“Plainly, it was a mistake that CCL Malta was sued instead of CCL BVI.”[12]

“The mistake over the address of CCL BVI had, somewhat fortuitously, resulted in a wrong party (CCL Malta) being sued under the Writ.”[13]

12. Article III, rule 6 of the Hague-Visby Rules provides that the contractual carrier shall be discharged from liability in respect of cargoes “unless suit is brought within one year of their delivery or of the date when they should have been delivered”[14] (emphasis supplied). The minimum requirements for bringing a suit under the above provision are that the correct plaintiff commenced proceedings before a competent court against the correct defendant[15]. The correct defendant in this instance is the legal entity that fits the description of the contractual carrier under the six bills of lading. Mr Sussex submitted that as the plaintiffs did not sue the correct defendant when the writ was issued on the last day of the limitation period, time did not stop running under Article III, rule 6 and their claim was extinguished on the day when the writ was issued[16].

13. Mr Sussex further submitted that it is insufficient the statement of claim specifies that the plaintiffs intended to sue the contractual carrier. The judge erred in attaching importance to the fact that the general endorsement of the writ had identified the plaintiffs’ causes of action as those against the contractual carrier under the bills of lading and that there can be no doubt as to the party intended to be sued, namely, CCL BVI. It is not a matter of the plaintiffs’ intention to sue the carrier, but which legal entity was in fact sued. It makes no difference that the plaintiffs’ error in commencing the action against CCL Malta was an accident. The situation here is the same as in these cases:

(1) The plaintiffs in The Jay Bola intended to bring an action against the contractual carrier under the bill of lading which was an owner’s bill (under which the contractual carrier is the current owner of the vessel) but the writ was issued against the former owner of the vessel instead of the current owner when the bill of lading was issued. It was conceded by the plaintiffs that the action started by the writ naming the former owner did not suffice to stop time running under the Hague‑Visby Rules (at 340d to e).

(2) In Win’s Marine Trading Co v Wan Hai Line (HK) Ltd & Anr [1999] 3 HKC 701, the plaintiff mistakenly sued the agent instead of the contractual carrier who issued the bill of lading and the court refused leave to join the carrier as a defendant after the time bar had expired.

(3) In The Leni [1999] 2 Lloyd’s Rep 48, the wrong plaintiff was named arising from confusion involving group companies. It was held that a suit had not been brought within the meaning of the Hague-Visby Rules.

14. Mr Sussex argued that as the plaintiffs had sued the wrong defendant (CCL Malta) by mistake, they would need to substitute the correct defendant (CCL BVI) to proceed with this action. The change of the specified corporate entity as the defendant must involve the substitution of a party, rather than the correction of a misnomer. The fact that the two entities in this case have the same name is immaterial. They are nonetheless two separate legal entities, and the commencement of an action against one entity is not the same as the commencement of an action against the other. Examples where...

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1 cases
  • Benchmark Electronics (Thailand) Pcl And Others v Cargo Container Line Ltd
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 23 April 2020
    ...(Respondents) Mr Charles Sussex SC and Mr Nick Luxton, instructed by Hill Dickinson Hong Kong, for the Defendant (Appellant) [1] [2019] 5 HKLRD 223 [2] [2018] 2 HKLRD 617 [3] Quoted in [2019] 5 HKLRD 223 at 234 §24 [4] Davies v Elsby Bros Ltd [1961] 1 WLR 170 at 176; J Robertson & Co Ltd v ......

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