NOMADIC COLLECTIONS LTD AND OTHERS v. CHINA DISTRIBUTION CONTAINER LINES AND OTHERS

HCAJ188/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO.188 OF 2004

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J U D G M E N T

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1. I have before me an application for Order 14 by the cargo owners, (the plaintiffs), against the 2^nd and 3^rd defendants who are the contractual carriers and sued under the Bills of Lading.  Large number of defences have been raised in the Defence but all of them had been abandoned and, in fact, at the hearing today there is only one issue raised or attempted to be raised.

2. That issue was certainly not pleaded in the Defence that was filed, nor was it in fact raised expressly in the affidavit of Florence Yuen.  What Mr Wong attempted to do today at the hearing was to rely on a letter at p.122, where there was a suggestion that the storage position of the three containers were second tier and therefore submitted that there is a triable issue.

3. There is no dispute that out of the four containers, the bottom tiers of the cargoes in three containers suffered sea water damage.  The fact that it is sea water damage is not in dispute.  The particular cartons can be seen in the colour photograph produced to the court (p.65), and they show that there was a watermark on the cartons — external watermark up to a level of about 22 inches. 

4. The fact that there was sea water damage which can be plainly demonstrated has to be explained, and the defendants had not sought to condescend on the particulars to show how the damage which submitted could have occurred without their fault.  They could have produced the stowage plans; the cargo reports, both in and out.  They could need to condescend on particulars in order to persuade the court that there is a triable case.  This they have totally failed to do, as can be demonstrated by the defence.  The defence nowhere alleged anything of that kind. 

5. So, although with considerable skill, Mr Wong tried to persuade this court that there is triable issue,  I am not persuaded that on the material put before the court, that I should give leave to the defence. 

6. Summary judgment therefore should be given in favour of the plaintiffs in the sum of HK$99,403.91 as prayed for in paragraph 49 of the affidavit together with costs on the District Court scale (costs of the action including costs of today).