HYUNDAI MERCHANT MARINE CO. LTD. AND ANOTHER v. SUPER RICH SHIPPING LTD.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL ACTION NO. HCA9774 OF 1998

_______________________

__________________

J U D G M E N T

__________________

1. This is an assessment of damages. In these proceedings the plaintiffs brought suit against the defendant for damages in respect of the loss of eight 40 foot dry reefer containers that the 1st plaintiff, through the 2nd plaintiff, had hired to the defendant.

The Facts

2. The evidence filed revealed the following matters: the plaintiff is the owner of eight 40 foot dry reefer containers and the 2nd plaintiff was its Hong Kong agent at all material times. The defendant is a freight forwarder operating in Hong Kong.

3. Pursuant to a hire arrangement, the defendant took delivery on 30 December 1997 of the eight aforementioned containers. Under this hire arrangement the defendant ought to have returned the containers to the plaintiffs in or about January 1998. This did not occur by reason of the fact that the containers were stolen on 27 January 1998. The plaintiffs declared total loss of these eight containers on 4 February of the same year.

4. For the purpose of assessment, the plaintiffs urge the court to adopt 4 February 1998 as the material date against which damages should be assessed. The plaintiffs brought suit against the defendant for damages. An interlocutory judgment was entered on 25 June 1999.

5. I am satisfied that the defendant has been duly informed of today's assessment and has not appeared for reasons which are not known to the court. I was prepared to proceed with today's hearing, having been shown a letter sent by the plaintiffs' solicitors to the defendant notifying it of today's hearing. The solicitors for the plaintiffs have undertaken to file an affirmation of service within seven days hereof.

6. The plaintiffs adduced expert evidence from one Cheng Siu-ming. His statement has been filed pursuant to orders given on directions. I am satisfied that Mr Cheng has sufficient expertise from which to speak to the values of these missing containers. He opined that the depreciated value of the eight reefer containers as at 4 February 1998, namely, the date when total loss was declared, was HK$1,340,000. That is an amount which the plaintiffs pursue today by way of assessment.

7. Miss Suen for the plaintiffs very helpfully drew my attention to McGregor on Damages, The Common Law Library No. 9, 16th Edition and, in particular, to a quote taken at paragraph 957 which states:

"Where the hirer fails to surrender the goods at the end of the contractual period of hire, he is liable for the market value of the goods at the time of breach by failure to surrender."

8. That essentially is what happened in this case. The defendant had, through default, failed to surrender the eight reefer containers and it should therefore be liable for damages flowing therefrom.

9. Upon the basis of the expert evidence from Mr Cheng Siu-ming, I hold that the 1st plaintiff has suffered damages in the sum of HK$1.34 million. That is an amount which I award to the 1st plaintiff in this assessment. To that must be added interest which will be at judgment rate from the date of the issue of the writ until today and thereafter at judgment rate until full payment.

10. The plaintiffs shall also have the cost of this assessment.