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Italia Marittima S.p.a. And Another v Translink Shipping (Hong Kong) Ltd

Judgment Cited authorities 2 Cited in Precedent Map Related
Judgment Date19 November 2009
Citation[2010] 1 HKLRD 98
Judgement NumberDCCJ5080/2006
Year2009
CourtDistrict Court (Hong Kong)
DCCJ005080/2006 ITALIA MARITTIMA S.p.A. AND ANOTHER v. TRANSLINK SHIPPING (HONG KONG) LTD

DCCJ 5080/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5080 OF 2006

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BETWEEN

ITALIA MARITTIMA S.p.A.
(formerly known as LLOYD TRIESTINO DI NA VIGAZIONE SOCIETA per AZIONI)		 1st Plaintiff
ITALIA MARITTIMA HONG KONG LIMITED (formerly known as LLOYD TRIESTINO PACIFIC LTD.) 2nd Plaintiff
and
TRANSLINK SHIPPING (HONG KONG) LIMITED Defendant

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Coram: Deputy District Judge Bernard Mak in Court

Date of Trial: 12th –13th , 16th March 2009

Date of Handing Down Judgment: 19th November 2009

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JUDGMENT

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The Claim

1. The 1st Plaintiff, an ocean carrier, and the 2nd Plaintiff, the 1st Plaintiff’s agent in Hong Kong, claimed against the Defendant, a freight forwarder, for contractual and/or common law indemnity in respect of container demurrage and expenses incurred in connection with two containers carried by the 1st Plaintiff from Hong Kong to Barcelona. The total sum claimed amounted to Euro €30,342.67.

Factual Background

2. Whilst there were a large number of documents not admitted by the opposite sides, after trial, the factual disputes between the parties were indeed within a short compass. I set out in the following paragraphs such facts as were either not in dispute or I found to have existed.

3. On 13 May 2005, the Defendant faxed a shipping order to the 2nd Plaintiff reserving shipping space on vessel Ever Growth. On the same day, the 2nd Plaintiff issued a "booking confirmation" to the Defendant (“1st Booking”). On 18 May 2005, Future Star International Ltd ("Future Star"), a customer of the Defendant for whom the Defendant made the 1st Booking, collected an empty container from the Plaintiffs and packed goods into it. The stuffed container was then delivered to the terminal operators in Hong Kong. The Terminal receipt dated 18 May 2005 named the Defendant as the Shipper.

4. On the shipping order of the 1st Booking filled in by staff of the Defendant, the “Exporter” was named as “Translink Shipping (HK) Ltd”; at that time the Consignee was not named yet and the Notify Party was stated as “same as consignee”. On 19 May, 2005 the Defendant by fax notified the 2nd Plaintiff that the Shipper shall be “Translink Shipping (Hong Kong) Ltd O/B Future Star International Ltd”; the bill was supposed to be an Order bill and “Hamann International SA” in Spain was named as the Notify Party. On 20 May 2005, the Defendant, by a fax which was a copy of the draft Bill of Lading (No. 854585144419) with manuscripts of staff of the Defendant, requested that there should not be any reference to the Defendant in the description of the Shipper and that “Hamann International SA” should be named as both the Consignee and Notify Party. The ultimate bill issued, backdated to 19 May 2005, bears description of the various parties pursuant to the said request of the Defendant (“the 1st Bill of Lading”). The goods were described in all these documents as “Glass Cup”.

5. The Defendant made another booking for Future Star on 23 May 2005 via another shipping order. Again, the 2nd Plaintiff issued a "booking confirmation" to the Defendant on the same date (“2nd Booking”). Notwithstanding the Defendant’s specific requests regarding descriptions of the various parties in respect of the 1st Bill of Lading, the shipper order of the 2nd Booking contained descriptions of parties identical to that in the shipping order of the 1st Booking. The container was picked up and packed by Future Star and the terminal receipt was dated 29 May 2005. Again the Defendant was named as the Shipper in the terminal receipt.

6. On 3 June 2005, the Defendant faxed a document under its own letterhead titled “Bill of Lading Information” to the 2nd Plaintiff in which it was stated that, for the 2nd booking, the Shipper should be “Translink Shipping (Hong Kong) Ltd O/B Future Star International Ltd”, the notify party should be the same as the consignee which should be “Hamann International SA”. There is another undated document from the Defendant, which I found to have been sent by the Defendant soon after 3 June 2005 to the 2nd Plaintiff, by which the Defendant requested that for the “Bill of Lading (LTNV854585154406) … delete Shipper Name “Translink Shipping (Hong Kong) Ltd” other particular remain unchange [sic]”. The Bill of Lading (No. 854585154406) dated 1 June 2005 bears amendments by the 2nd Plaintiff as per the said request by the Defendant (2nd Bill of Lading). Again the goods were described as “Glass Cup” in all the documents.

7. The two containers were then shipped to Barcelona and arrived on about 18 June 2005 and 2 July 2005 respectively. The Consignee and Notify party, Hamann International SA, was notified but refused to take delivery. On about 26 August 2005, the Spanish Customs Authorities inspected the containers and found that the containers were packed with fireworks behind a few layers of cartons of glass cups. As a result, 'classification' or 'certification' was conducted by the Spanish Customs Authority on 17 September 2005 and 1 October 2005 respectively. The English translations of the official documents indicated that after the containers had been emptied and inspected, they were re-filled by the Spanish Customs Authority. Further, the documents provided by the 1st Plaintiff’s Spanish Agent suggested that the contents of the two containers were confiscated on about 17 September 2005 and 1 October 2005 respectively.

8. On 25 November 2005, the 19th Court of First Instance of Barcelona made an order that the confiscated goods should be destroyed and that the containers, once emptied, should be returned to their legal owner. But the goods were only destroyed on about 26 November 2006 and 27 January 2007, and the containers were returned to the Plaintiffs on 28 November 2006 and 3 February 2007 respectively.

Liability

9. The Plaintiffs alleged that the Defendant was liable for breach of contract as regards each shipment, the Defendant was a contracting party with them on two contracts: (1) an “antecedent contract” contained in or evidenced by the respective shipping order and corresponding booking confirmation; and (2) the “bill of lading contract” contained in or evidenced by each of the 1st and 2nd Bills of Lading. The Defendant agreed with such “double-contract” analysis but contended that it was not liable to indemnify the Plaintiffs’ loss and damage. The Defendant’s arguments were that firstly the Antecedent Contracts had been superseded by the Bill of Lading contracts, and that it was not a party to the Bill of Lading Contracts.

10. I reckon that there are indeed the following issues:

1) Whether the Defendant contracted with the Plaintiffs as principal or agent in the Antecedent Contracts?

2) Whether the Bill of Lading Contracts superseded the Antecedent Contracts?

3) If answer to question (1) is yes, whether any supersession affected the liability of Defendant to the Plaintiffs?

The position of the Defendant as a forwarding agent

11. The nub of the Defendant’s contentions was that, being a forwarding agent, it would only contract with the Plaintiffs as agent of its client and not as a principal, which position must be understood or ought to have been known by the 2nd Plaintiff.

12. I disagree. In Hong Kong Hua Guang Industrial Co v Midway International Ltd [2000] HKEC 278, in the context of whether a forwarding agent acted as the carrier vis-à-vis its client, the Court of Appeal observed that:

“As the cases show, what is included within the scope of what a forwarding agent may undertake to do by a specific contract is not fixed. It is clear that the mere title freight forwarder or forwarding agent may not of itself decide the nature of the liabilities. The distinction between a carrier and freight forwarder does not, it seems to me, depend upon the title that one contracting party is given or chooses to adopt. Nor does it depend solely upon the kind of business which the person in question carries on or holds himself out as carrying on. Obviously, a person who usually acts as a forwarding agent, pure and simple, can act as a carrier and vice-versa.”

13. Turning to the oral evidence, Mr. Chiu Man Yiu, Senior Manager of the Defendant, who did not have personal knowledge of the bookings, gave evidence that he believed that when making the booking, staff of the Defendant company made known to the Plaintiffs that there was an underlying customer and that the shipment was not for the Defendant company itself. Naturally, Mr. Chiu was not able to provide any documents to support such an assertion, nor did anyone else from the Defendant give evidence to say that they had such a conversation.

14. Mr. Chiu’s evidence was to the effect that the Defendant only acted as agents; the Defendant only booked space and effected contracts of carriage on behalf of customers. They would, in such capacity, give instructions regarding the content of the bill of lading on behalf of customers, as well as make payments and collect bills.

15. But the question is whether the Defendant dealt as a principal vis-à-vis the Plaintiffs. On this point the following further observations in Hong Kong Hua Guang Industrial Co v Midway International, ibid, are helpful:

“Bean J said in Hair and Skin Trading Co. Ltd v. Norman Air Freight Carriers and World Transport Agencies Ltd [1974] 1 Lloyd's Rep. 443 at 445 :-

"... when a judge has to decide whether a party is acting as a principal or an agent it is very much a matter of impression, what impression the evidence forms."

“… The nature and basis of charging, in particular whether an all-in fee was charged, leaving the...

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