IMATION HONG KONG LTD. v. WEI FUNG INTERNATIONAL CO. LTD.

HCA3834/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.3834 OF 2000

--------------------

--------------------

----------------------

J U D G M E N T

----------------------

1. This is the trial of an action brought by the plaintiff against the defendant for the breach of the contract of carriage under which the plaintiff has entrusted goods to the value of US$22,264.50 to the defendant for express carriage from Hong Kong to Canton.

2. The only issue in this case as agreed by Mr Wai Chi Pang, the Director and Principal person of the defendant who appeared at the trial, is the question of whether the oral contract of carriage made was between the plaintiff and the defendant, or between the plaintiff and CTS Express Service ("CTS") with the defendant acting as agent for CTS.

3. The evidence that was heard by the court came from principally two witnesses. One is Ms Yeung Hang Yi, a Senior Customer Service Coordinator of the plaintiff, a lady who was obviously able, capable, experienced, and who gave excellent evidence before the court. She told the court of the procedure of how she came on behalf of the plaintiff to do business with the defendant, starting with the November 1999 first transaction. The account given by her is that the plaintiff was given a form with the heading of CTS for the plaintiff to fill in. It was said that this was a standard form, nothing was said that CTS was going to be the carrier, or that the defendant was acting as an agent of CTS. It was said the form of CTS was used because CTS might be engaged by the defendant for customs clearing purposes. That was all.

4. The procedure that was adopted was the form at p.61 of the Bundle, after it was filled in by the plaintiff and after agreement of the freight, would be faxed to the defendant, the goods would then be delivered by the plaintiff to the warehouse of the defendant accompanied by a delivery order, an invoice, a packing list and a copy of the p.61 form filled in. The delivery order would be chopped by the defendant and sometimes, I believe, on that occasion in November 1999, a copy of p.61 form filled in was also chopped and given back to the plaintiff. A few days later, a manifest prepared and issued by the defendant, for the purpose of making the declaration to Hong Kong Customs, was faxed to the plaintiff. The goods, in November 1999, arrived a few days later. That was the totality of the documentation given by the defendant to the plaintiff and on that basis they certainly suggest that the carrier in question was the defendant. In fact, the manifest at p.106 of the Bundle in relation to the November 1999 shipment shows conclusively that the carrier company for the shipment was Wei Fung International Company Limited, namely the defendant. It is clear that, throughout the November 1999 shipment, the defendant was the carrier and there was no question that the defendant might not be the carrier but might be acting as agent for CTS in entering into the contract of carriage. The Invoice at p.107 is from the defendant, not from CTS. Nor is there any qualification in that Invoice to suggest that the defendant was issuing the Invoice as agent for CTS. This was the first transaction and similar transactions followed, starting from December 1999 until we reach the January 2000 transaction which is the subject of this claim. The same procedure was followed and the goods, after the blank form at p.61 was filled in and faxed, were delivered to the defendant for carriage by the defendant to Canton. I think it is common ground that goods did not arrive in Canton at all.

5. The first time that the plaintiff heard about some problems was when it received a fax from its Canton associate or subsidiary to say that there had been problem with the goods being impounded by or fined by the Chinese Customs. It is not necessary for me to go into the question of the various irresponsible steps taken by the defendant or not taken by the defendant in relation to this so-called seizure of the goods by the Chinese Customs. The responsibility of the entire carriage rests with the defendant, that is to say for the whole period from when the goods were first given in Hong Kong to the defendant until the delivery by the defendant of the goods in Canton to the designated consignee. How the defendant carried out that duty as a carrier is up to the defendant. But it is clear that the goods never arrived and various excuses were given but that is not the concern at the trial before this court because the only issue is on the identity of the contracting party.

6. I have no doubt that Ms Yeung's evidence is correct. She in fact was not even challenged with her evidence. On the vital issue of whoever the carrier was the defendant or was CTS, I think there is a clear evidence and admission by Mr Wai that the carrier was the defendant. It seems to me that the overwhelming evidence in this case is that the contract of carriage agreed between Ms Yeung on behalf of the plaintiff and Mr Wai on behalf of the defendant is that the carrier and the carriage contract was that of the defendant. CTS never came into the picture.

7. Therefore, I have no difficulty in coming to the conclusion that the judgment must be given in favour of the plaintiff. I therefore enter judgment in the amount of US$22,264.50. I also award interest from the date of the writ until today at the rate of 10%. So far as costs is concerned, the plaintiff of course must have the costs of the action. I now assess the costs of the action by way of gross sum assessment under Order 62, rule 9(4)(b).