SAMSUNG HONG KONG LTD. v. KEEN TIME TRADING LTD.

1995, No. 12592

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 12592 OF 1995

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ASSESSMENT OF DAMAGES

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1. In this action, the Plaintiff claims against the Defendant damages for breach of a sales contract. The Writ was issued on 5 December 1995 and on 4 June 1996, interlocutory judgment for liability was entered against the Defendant with damages to be assessed.

Background

2. The sales contract between the parties was dated 13 November 1995 ("the Contract") under which the Plaintiff were to sell to the Defendant 200,000 kgs of "polyester staple fiber 1.5D x 38 MM semi-dull raw white A grade" at the total price of US$332,000. The Contract provided for delivery in Hong Kong by "End November 1995" and for payment to be made by "L/C in favour of Reter Trading Limited" ("Reter"). The L/C opening date was stipulated to be "PROMPT (13 Nov 1995)".

3. It is common ground that the negotiations for the sale were in fact conducted between the Plaintiff's office in Guangzhou and a Wah Ming Material Development Company in Guangzhou ("Wah Ming"). The Contract was only concluded after the Guangzhou parties had reached agreement on the sale. The arrangement was for the Defendant to resell the goods supplied under the Contract to Wah Ming under an undated Sales Confirmation ('the Sub-contract").

4. By another Sales Confirmation also dated 13 November 1995, the Plaintiff contracted with Reter for the supply of 200,000 kgs. of "100% polyester staple fiber 1.4D x 38 MM or 1.5D x 38 MM semi dull raw white A grade" at US$332,000, but with 1% commission to be refunded to the Plaintiff after payment ("the Supply Contract"). Under the Supply Contract, a L/C covering the payment had to be opened by 14 November 1995. It is not disputed that the Defendant knew that the Plaintiff was buying from Reter the goods to be sold under the Contract, and this is why the L/C to be opened by the Defendant was to be in favour of Reter.

5. Despite that the Defendant had faxed a copy of an Application for L/C in respect of the Contract, the Defendant, due to cashflow problem, was unable to open the L/C either by 14 November or by 5 December 1995 when the Writ herein was issued.

6. In the meantime, Reter had caused to be shipped to Hong Kong from Taiwan by a company related to Reter 200,000 kgs of 1.4D x 38MM polyester fiber and the goods arrived in Hong Kong on 29 November 1995. It is the Plaintiff's case, but which the Defendant disputes, that the Defendant was given notice of the shipment and of the actual arrival of the goods.

7. The goods shipped from Taiwan were kept at the carrier's warehouse known as Warhai Warehouse upon arrival and remained so after the free detention period expired on 4 December 1995. Subsequently on 23 December, the goods were delivered to and stored at a public warehouse called Yee Lim Godown. Around this period of time, Wah Ming had offered to the Plaintiff to buy back the goods and there is some disputes as to what was the offer from Wah Ming. Eventually on 4 January 1996, Reter sold the goods to a Skybest Company ("Skybest") at the price of US$1.45 per kg resulting in a loss of US$41,522.04. The evidence shows and the Defendant does not dispute that the price of polyester staple fiber had been on the decline since November 1995.

8. By a High Court Action no. A13154 of 1996, Reter claimed against the Plaintiff for damages for breach of the Supply Contract. Judgment was entered against the Plaintiff with damages assessed at HK$607,672.51 together with costs which had been agreed at HK$60,000. The amount of HK$607,672.51 represents Reter's loss in reselling to Skybest, the storage, devanning and transportation charges.

Issues

9. At the hearing of the assessment herein, the Plaintiff seeks to recover from the Defendant the sum of HK$641,975.71, being the aggregate of HK$607,672.51 and HK$60,000, less HK$25,696.80 which is the Plaintiff's 1% commission .

10. The Defendant's primary objection is that the Plaintiff is not entitled to any substantial damages as the Plaintiff was not in a position to supply the goods contracted for under the Contract. Alternatively, the Defendant contends that the Plaintiff could have opened a L/C to cover payment under the Supply Contract so as to avoid a claim by Reter. The Defendant also challenges the quantum of Reter's loss in reselling the goods and the storage charges.

11. The issues to be decided at this assessment of damages are :-

(1) Whether the Plaintiff has suffered any actual loss by reason of the Defendant's breach as would entitle the Plaintiff to claim for substantial damages ;

(2) If the Plaintiff is entitled to substantial damages, whether the loss suffered by Reter is a loss occasioned by and reasonably flowing from the Defendant's breach under the Contract ;

(3) If the answers to (1) and (2) are in the affirmative,

(a) Whether the storage charges were reasonably incurred such that the Defendant is liable to indemnify the Plaintiff for Reter's claim on the storage charges ; and

(b) What should be the basis for calculating the loss suffered by Reter in reselling the goods to Skybest.

The Plaintiff's Entitlement to Substantial Damages

12. The goods to be sold by the Plaintiff is described in the Contract as "polyester staple fiber 1.5D x 38MM semi-dull raw white A grade". The goods contracted for under the Supply Contract is "100% polyester staple fiber 1.4D x 38 MM or 1.5D x 38 MM semi dull raw white A grade". The goods which were shipped by Reter under the Supply Contract is described in the Certificate of Quality and Quantity dated 27 November 1995 issued by the Taiwanese supplier as "polyester staple fiber 1.4D x 38MM semi dull raw white A grade".

13. It is common ground that "polyester staple fiber" is used for cotton blending. While "38MM" refers to the length of the fiber, "1.4D" or "1.5D" relates to the fineness of the fiber. "D" stands for "Denier" which is the unit for measuring the fineness of the fiber and is defined as the weight in grams per 9000 meters of fiber. It follows that 1.4D fiber is finer than 1.5 fiber.

14. The Defendant's position is that as the goods supplied by Reter is 1.4D, it is not exactly the same goods as described in the Contract, being of a finer fiber. The Plaintiff, however, contends that there is no real difference between 1.4D fiber and 1.5D fiber in the textile trade. Further, 1.4D fiber is in fact superior in quality than 1.5D fiber.

15. Mr. Rolland Chan, the Plaintiff's manager, gave evidence that in his 14 years of experience in the trade, he had not come across any customer who took issue with whether the fiber was of 1.4D or 1.5D. The Plaintiff's expert, Dr. Tao Xiaoming, who is an Associate Professor with the Institute of Textiles and Clothing of The Hong Kong Polytechnic University, testified that the difference between 1.4D and 1.5D fibers is not significant having regard to their tolerance limits. Her evidence is that according to the International Bureau for Standardization of Man-Made Fibers, there is a 15% tolerance limit for fiber of less than 1.8D. The tolerance range for 1.5D fiber is therefore from 1.28D to 1.73D, such that 1.4D fiber is well within it. Dr. Tao further stated that overall speaking 1.4D fiber is better than 1.5D fiber in terms of the spinning process and the quality of the fabric produced. The Plaintiff had also called a Mr. Xiao Jianming, who is the manager of a spinning mill in Shaoguan of Guangdong Province and has been in the textile trade for 31 years. His evidence is that in terms of the spinning process and the end products, there is no practical difference between 1.4D and 1.5D fibers. Both 1.4D and 1.5D fibers are acceptable to his factory and there is also differentiation in the price for both fibers.

16. On the other hand, Mr. Li Ling Feng, the Defendant's manager, gave evidence that under the Contract, the Defendant would not accept 1.4D fiber. This is because Wah Ming had agreed with the Plaintiff's Guangzhou office that the fiber to be sold by the Plaintiff was of 1.5D. Hence, although the contract between Wah Ming and the Defendant did not set out the specification of the fiber, the Defendant was obliged to supply 1.5D fiber to Wah Ming. The manager of Wah Ming, Mr. Li Chiang Lian, also testified that Wah Ming would only accept 1.5D fiber as it had contracted with one Beijing City Cotton & Hemp Co to supply 1.5D fiber. According to the Defendant's expert, Mr. Leung Ka Wah, who heads the Guangdong Province Chemical Fiber Research Institute, 1.4 and 1.5D fibers cannot be used interchangeably as their specifications are different. His evidence is that for a factory which has been using 1.5D fiber, the spinning process and the quality of the products are bound to be affected if 1.4D fiber is to be used instead. He also suggested that the 15% tolerance limit prescribed by the International Bureau for Standardization of Man-Made Fibers referred to by Dr. Tao no longer exists.

17. There is no doubt to my mind that 1.4D x 38MM polyester staple fiber and 1.5D x 38MM polyester staple fiber are not identical goods. They are of the same generic nature, but with different specifications. I also have reservation as to whether they can be treated as the equivalent of one another commercially in all cases without any qualification.

18. Under the Chinese national standard "GBT 14464/93", fibers are divided into 4 grades with the permissible range of denier variation being +/- 3%, 4%, 6% and 8% respectively. Therefore by the Chinese standard, a 1.4D fiber can only come within the lower 2 grades of 1.5D fiber. As for the standard for international sales, this can be inferred from the various sales confirmations, invoices and L/Cs in the Bundle of Documents which relate to transactions outside the Chinese market. These documents were introduced for the purpose of showing a falling market in the price of polyester stable fiber, a point which is no longer in issue. These documents show that for international sales, the permissible range of denier variation for 1.5D fiber of A grade is either +/- 3 or +/- 4 %. A 1.4D fiber will therefore not come within the A grade of 1.5D fiber if its denier variation is less than 3%.

19. It thus appears that 1.4D fiber may not be regarded as the commercial equivalent of 1.5D fiber, depending on the denier variation of the 1.4D fiber and the customer's requirement and specification as to the denier variation.

20. In the present case, apart from specifying that fiber was to be of 1.5D, the Contract also stipulated that the fiber was to be of "A grade". Accepting the Plaintiff's case that the standard for international sale, and not the Chinese national standard, should apply since the Contract was on "CIF HK" term, the permitted denier variation will be +/- 3 to 4%. The range of denier variation permitted under the Contract is therefore from 1.44D to 1.56D. The goods shipped by Reter to Hong Kong is 1.4D with denier variation of +/- 3%, giving a range of 1.36D to 1.44D. It follows that not the entire lot of goods shipped by Reter can be regarded as the commercial equivalent of that contracted for under the Contract.

21. Although Mr. Chan of the Plaintiff said that there is no real or practical difference between 1.4D and 1.5D fibers in the trade, the documents adduced show that the trade does recognise a distinction between the two. While the Supply Contract refers to 1.4D or 1.5D, the Certificate of Quality and Quantity states the good to be of 1.4D. The description of the goods in the faxed copy of the Defendant's L/C Application Form was altered, admittedly by the Plaintiff's staff, from 1.5D to 1.4D. In addition, it is Mr. Xiao's evidence that he would check with the supplier whether the fiber to be supplied is 1.4D or 1.5D and the supplier would tell him accordingly.

22. On the other hand, I accept Dr. Tao's evidence that the difference between 1.4D and 1.5D fibers is not significant and that 1.4D fiber will bring about certain advantages to the blending and spinning process. I also accept her evidence that the spinning machine can be easily adjusted to take 1.4D fiber instead of 1.5D fiber and that the yarn or fabric made from blending 1.4D fiber with cotton will be of a softer and better quality. Dr. Tao is clearly a competent expert on textile products and, in particular, in relation to polyester stable fibers, albeit not on the marketing and trading aspect of the textile industry.

23. Although the Defendant's expert, Mr. Leung had referred to inevitable effect on the spinning process and the quality of the end product caused by using 1.4D fiber instead of 1.5D fiber, he was not specific as to what the effect was. Similarly, he was unable to name or particularize the latest international standard for the tolerance limit of polyester stable fiber when he suggested that the standard referred to by Dr. Tao no longer existed. He even went so far as suggesting that there was no international standard for man-made fiber. In my view, Mr. Leung may well be familiar with the national standard adopted in the Mainland, but he is far from conversant with the international standard on man-made fiber.

24. Likewise for Mr. Xiao, his understanding and experience of the operation of spinning mill is confined to his factory in Shaoguan as he had not worked in other mills. He is clearly on shifting ground when being confronted with the Chinese national standard on polyester stable fiber.

25. Mr. Lam submitted, and I accept, that the sale between the Plaintiff and the Defendant is a sale by description. Accordingly, section 15(1) of the Sale of Goods Ordinance ("the Ordinance") applies such that there is implied into the Contract the condition that the goods to be sold must answer the contract description. The question that arises here is whether on the facts found, the Defendant would be entitled to reject the goods supplied by Reter to the Plaintiff for non-compliance with description.

26. In Arcos Ltd. v. E.A. Ronaasen & Son [1993] A.C. 470 at p. 474, it was observed that "the fact that the goods were merchantable under the contract is no proper test to be applied in determining whether the goods satisfied the contract description," and "[i]f the article they have purchased is not in fact the article that has been delivered, they are entitled to reject it, even though it is the commercial equivalent of that which they have bought".

27. I have found the goods shipped by Reter to Hong Kong was not of the same description as that under the Contract. Although the difference is small, the goods was not in strict compliance with the contract description. On the authority of Arcos, the Defendant would be entitled to reject the goods for breach of the condition implied by section 15(1) of the Ordinance, notwithstanding that it is merchantable and, on Dr. Tao's evidence, of better quality and fit for the purpose of blending with cotton.

28. Mr. Whitehead had submitted that I should adopt a different approach by considering the nature and effect of the breach. He argued that only if the breach is so substantial as to deprive the Defendant of the whole benefit intended by the parties under the contract that it would be entitled to rejection. On this point, he referred me to a line of authorities starting from Hong Kong Fir Shipping Co. Ltd. v. Kawasaki Kisen Kaisha Ltd. [1962] 1 All E.R. 474 and several passages in Benjamin's Sale of Goods (15th edn) on "Classification of Statements as to Goods". While I accept that the authorities cited certainly recognize the merits of such an approach, I do not consider that the approach is open to me on the facts of this case. This is because for a sale by description, section 15(1) of the Ordinance has stipulated that the seller's obligation to supply goods answering the contract description is to be implied into the contract as a condition, the breach of which will give the buyer a right of rejection. The approach as set out in Hong Kong Fir Shipping and applied in The Hansa Nord [1976] 1 Q.B. 44 is only applicable where the parties had not expressly agreed and/or the statute does not provide for the effect of the breach.

29. It is true that the Contract between Wah Ming and the Defendant did not specify that the goods to be sold to Wah Ming by the Defendant was to be of 1.5D. But that is immaterial and does not affect the Defendant's right to insist on demanding for goods answering the contract description. The reasons are twofold. Firstly, it is plain on the evidence of Mr. Rolland Chan and Mr. Li Chiang Lian that the Plaintiff's Guangzhou office and Wah Ming had agreed that the goods to be sold to Wah Ming by the Plaintiff through the Defendant was of 1.5D. Secondly, the goods contracted for under the Contract was described as 1.5D fiber.

30. There is one other feature in the evidence that I need to deal with and it is this : Sometime between middle of December 1995 and early January 1996, Wah Ming and the Defendant had offered to the Plaintiff to open the L/C as stipulated under the Contract as their cashflow problem had been resolved. There were discussions and negotiations between the parties but no agreement was reached. Mr. Li of the Defendant said that at that time he did not know that the goods shipped to Hong Kong was of 1.4D. That I do not accept. The evidence of Mr. Li of Wah Ming shows that around that period of time, all the parties involved, including the Defendant, were aware that the goods in Hong Kong was of 1.4D. I find it difficult to believe the assertions that the Defendant did not receive the documentation showing the shipment details faxed by the Plaintiff and that it only realized the goods was 1.4D fiber after discovery in this action. I find as a fact that despite knowing that the goods available was 1.4D fiber, the Defendant had offered to continue with the Contract. The issue is whether this would entitle the Plaintiff to substantial damages for the Defendant's breach.

31. Mr. Whitehead submitted that the Defendant had in the circumstances waived its right to reject for non-compliance with contract description. Mr. Lam however said that the offer was no more than an unsuccessful attempt to settle the dispute between the parties and the litigation and should have no effect on the parties' rights under the Contract. I am in agreement. The Writ had already been issued and served before the offer was made. The parties' legal rights and obligations under the Contract became crystallized by then. The offer to continue with the Contract is an indication that the Defendant was prepared to take 1.4D fiber despite that the Contract provided for 1.5D fiber, but it cannot amount to waiver of the right to reject when the offer was not accepted and the negotiations to resolve the litigation failed

32. In my view, the Plaintiff's claim for substantial damages should be founded upon its ability to perform its contractual obligations independent of the Defendant's breach. This is because the Plaintiff is to be compensated for the loss of his bargain under the Contract and the amount of damages to be awarded is to be measured by its actual loss.

33. In The Mihalis Angelos [1971] 1QB 164, Lord Denning M.R. observed at p.196G-H that : "Seeing that the renunciation itself is the breach, the damages must be measured by compensating the injured party for the loss he has suffered by reason of the renunciation. You must take into account all contingencies which might have reduced or extinguished the loss. ... It follows that if the defendant has under the contract an option which would reduce or extinguish the loss, it will be assumed that he would exercise it. Again, if it is reasonable for him to take steps to mitigate his loss, he must do it. And so forth. In short, the plaintiff must be compensated for such loss as he would have suffered if there had been no renunciation : but not if he would have lost nothing."

34. Further at pp.209H -210B of the report, Megaw L.J. added that :"In my view, where there is an anticipatory breach of contract, the breach is the repudiation once it has been accepted, and the other party is entitled to recover by way of damages the true value of the contract rights which he has thereby lost, subject to his duty to mitigate. If the contractual rights which he has lost were capable by the terms of the contract of being rendered either less valuable or valueless in certain events, and if it can be shown that those events were, at the date of acceptance of repudiation, predestined to happen, then in my view the damages which he can recover are not more than the true value, if any, of the rights which he has lost, having regard to those predestined events".

35. Hence, the proper test in determining its entitlement is whether the Defendant could as a matter of law, but not whether it would as a matter of fact, insist on strict compliance with contract description. It will be going too far and speculative to conclude that, because the Defendant and Wah Ming were prepared to accept 1.4D fiber after these proceedings had commenced, the Defendant would not have insisted on demanding for 1.5D fiber had the Contract run its full course. The readiness to accept 1.4D fiber could be attributed to a number of considerations, including the Defendant's failure to open the L/C and the commencement of these proceedings.

36. To sum up, as the goods supplied by Reter to the Plaintiff for resale under the Contract did not correspond with the contract description, the Plaintiff was not in a position to perform its part under the Contract and the Defendant would be entitled to reject the goods and terminate the Contract. The Plaintiff has therefore suffered no actual loss as a result of the Defendant's breach of the Contract and cannot claim substantial damages against the Defendant. The Plaintiff is only entitled to nominal damages which I fix at $100. I consider that to award any lesser sum would render the award too insignificant to recognize the serious nature of the infringement of the Plaintiff's legal right under the Contract.

37. Although I have concluded that the Plaintiff is only entitled to nominal damages, I consider for completeness sake I should also deal briefly with the other issues canvassed by counsel.

Defendant's Liability for the Loss of Reter

38. It was submitted by Mr. Lam that although the Defendant had failed to open the L/C under the Contract, it does not necessarily follow that the Plaintiff had to break the Supply Contract and it is opened to the Plaintiff to open a L/C to cover payment to Reter.

39. In support of his submission, Mr. Lam referred me to the case of Trans Trust S.P.R.L. v. Danubian Trading Co. Ltd. [1952] 2 Q.B. 297. In that case, a seller under a contract of sale of goods claimed, inter alia, to be entitled to be indemnified by the buyer against any damages which the supplier might subsequently claim and recover against the seller, as a result of the buyer's failure to procure the opening of bank credit. The claim was rejected by the English Court of Appeal on the basis that the buyer had no knowledge that the supplier depended on the credit in order to get the goods so that it could not have been within the parties' contemplation that the supplier might have a claim against the seller.

40. In my view, the Defendant's liability to indemnify the Plaintiff for the loss of and the claim by Reter depends on whether it is within the reasonable contemplation of the Plaintiff and the Defendant that the Supplier Contract would be breached if the Defendant failed to open the L/C.

41. The Defendant undoubtedly knew that the Plaintiff was buying from Reter as the L/C to be opened by it was to be in Reter's favour. There is no evidence that the Plaintiff was not in a financial position to open the L/C in the stead of the Defendant. On the contrary, it is Mr. Rolland Chan's evidence that the Plaintiff was financially sound. Theoretically, the Plaintiff could have procured a L/C to cover payment to Reter and performed its part under the Supply Contract. In reality, one can see that the time available for the Plaintiff to do so was very limited. The Plaintiff was obliged to procure the L/C by 14 November 1995, one day after the Supply Contract was concluded, and the goods was to be delivered by Reter by 30 November 1995. The evidence of Mr. Rolland Chan shows that it was understood and agreed by all parties involved that it was a back to back sale. The L/C had to be opened by the Defendant directly to Reter in view of the time constraint. The Defendant must have known that the Plaintiff was depending on the Defendant's L/C to meet its contractual obligations to Reter. Accordingly, it must have been in the parties' reasonable contemplation that the Plaintiff would not be able to perform the Supply Contract if the Defendant did not open the L/C in time or at all. It is for this reason that I regard the case of Trans Trust to be distinguishable. The loss suffered by Reter, hence its claim against the Plaintiff, is not too remote to be recovered from the Defendant had the Plaintiff been entitled to substantial damages.

The Quantum of Storage Charges

42. The Defendant's contention under this head is that the goods shipped to Hong Kong by Reter should have been moved to a public warehouse immediately after the free detention period expired on 4 December 1995, instead of keeping it in the carrier's warehouse until 23 December 1995. It is common ground that the rental charged by carrier warehouse is known to be higher than that of public warehouses.

43. In explaining the decision to keep the goods in the carrier's warehouse until 23 December 1995, Mr. Irons Sze, sales manager of Reter, pointed out that a lot of other expenses, such as devanning and transportation charges, would be incurred in moving the goods to a public warehouse and he wished to avoid incurring them if possible. He also referred to the fact that the rental for public warehouse is reckoned on a monthly basis and payable in advance. In the hope that the Plaintiff and the Defendant might be able to resolve their dispute and/or that an alternative buyer could be found shortly, he therefore decided not to move the goods until 23 December when the Christmas and New Year vacation was approaching such that a solution was unlikely to be found within a short time.

44. I accept that it was no easy decision for Reter having regard to the considerations referred to by Mr. Sze. I also have no doubt that Mr. Sze did believe at the time that keeping the goods at the carrier's warehouse was a better option. But whether that was a reasonable decision as between the Plaintiff and the Defendant is to be judged by the timing of the institution of these proceedings. Mr. Sze could not recall when he was first made aware of the issue of the Writ herein on 5 December 1995. In my view, that knowledge would have put a reasonable man in Mr. Sze's position on the alert that the dispute between the Plaintiff and the Defendant was unlikely to be resolved within a matter of days. The reasonable decision would then be to place the goods in a public warehouse. As between the Plaintiff and the Defendant, the Plaintiff was under a duty to mitigate the loss by seeing to it that the storage charges should be minimized. The evidence does not show that the Plaintiff had been vigilant in keeping the storage charges at a reasonable level. The charges incurred by Reter should not be allowed to pass on to the Defendant in its entirety. Had the Plaintiff been able to recover substantial damages, the Defendant should only be responsible for the storage charges at the rate charged by Yee Lim Godown until 10 January 1996. After that day, the storage charges were to be paid by Skybest as agreed between Reter and Skybest.

The Quantification of Reter's Loss in Reselling to Skybest

45. In the action against the Plaintiff, Reter had claimed and was awarded the difference between the price under the Supply Contract and that paid by Skybest. In the cross-examination of Mr. Sze, it transpired that Skybest, of which Mr. Sze was a shareholder and director, had resold the goods 2 days after purchasing it from Reter at a profit. The unit price fetched by Skybest on the resale was HK$11.40 which is equivalent to US$1.47 whereas the unit price paid by Skybest to Reter was US$1.45.

46. I agree with Mr. Lam's submission that US$1.47 should be adopted in the calculation of the loss suffered by Reter upon a resale. Given the proximity in time between the sale to Skybest and the resale by Skybest, the unit price of US$1.47 is to be taken as the market price of the goods. Reter's loss in the resale should therefore be assessed at the difference between US$1.66, being the price under the Supply Contract and US$1.47, giving a total of US$38,200 (i.e. US$0.19 x 2,000 kgs.).

Conclusion

47. The Plaintiff is awarded nominal damages in the amount of HK$100.

48. As the Defendant has succeeded in resisting the Plaintiff's claim for substantial damages, I consider that the Defendant should be entitled to the costs of the assessment of damages. I therefore make an order nisi that the Plaintiff pays the Defendant the costs of the assessment of damages, to be taxed if not agreed, together with a certificate for counsel. The order to be made absolute upon the expiration of 14 days from the handing down of this decision.