FASTPORT CARGO SERVICE LTD v. KFIC LOGISTICS (HONG KONG) LTD

DCCJ 4438/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4438 OF 2013

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DECISION

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Introduction

1.  By way of summons (“the Summons”) dated 30 December 2013, the defendant applies to strike out the Statement of Claim dated 15 November 2013 on the grounds that it is frivolous or vexatious and/or it is otherwise an abuse of the process of the court pursuant to O 18, r 19(1)(b) & (d) of the Rules of District Court and the inherent jurisdiction of the court.

The plaintiff’s claim

2.  I set out the plaintiff’s pleaded case in the Statement of Claim as follows.

3.  The plaintiff is a Hong Kong company carrying on the business of forwarder.

4.  As evidenced by a facsimile transmission (“the Fax”) dated 9 September 2010 from the defendant to the plaintiff, the defendant retained the plaintiff (“the Contract”) to ship from Hong Kong to New York, USA 40 drums of goods (“the defendant’s Goods”) described and/or represented by the defendant in the Fax as “HAIR FRESH SUPPLY” (“the Representation”).

5.  But unbeknown to the plaintiff, the Representation was untrue.  The defendant’s Goods were in fact garlic oil.

6.  In performing the Contract, the plaintiff in turn retained Capital Express International Inc (“Capital Express”), a company incorporated in the USA, to ship the defendant’s Goods to New York.

7.  In reliance of the Representation, the plaintiff entered into a bill of lading (“the Bill of Lading”) with Capital Express on or about 13 September 2010 describing and/or representing the defendant’s Goods to be “HAIR FRESH SUPPLY”.

8.  The defendant’s Goods, together with other goods (“the Other Goods”), were shipped by Capital Express to New York in the same container (“the Container”).

9.  The defendant’s Goods “contaminated” the Other Goods in the Container.  Upon arrival in New York, it was discovered that the Other Goods were “damaged” by the odour of the defendant’s Goods (“the Contamination”).

10.  As a result of the Contamination, the plaintiff, Capital Express, together with other 4 defendants, were sued by VX Intimate Inc by way of summons dated 6 October 2011 in a civil action under Index No 11 CIV 7068 in the United States District Court, Southern District of New York for damages exceeding US$300,000.00 (“the US Claim”).

11.  Both the plaintiff and Capital Express had incurred legal expenses in retaining US lawyers to act for them in the US Claim.  The plaintiff had paid US$3,908.50 to Freehill Hogan & Mahar LLP whereas Capital Express had paid US$7,380.00 to Mark Mckew, PLLC.

12.  Eventually both the plaintiff and Capital Express, upon legal advice, settled the US Claim with VX Intimate Inc. The plaintiff and Capital Express each made payment of US$8,000.00 to VX Intimate Inc.

13.  Under the Bill of Lading, the plaintiff was responsible for indemnifying, and the plaintiff has indemnified, Capital Express of the sum of US$8,000.00 paid to VX Intimate Inc in the US Claim and the legal fees of US$7,380.00 paid to Mark Mckew PLLC.

14.  Accordingly, the plaintiff has suffered loss and damages of US$27,288.50 (being the sum of US$3,908.50, US$7,380.00, US$8,000.00 and US$8,000.00).  

15.  By reason of the aforementioned, the plaintiff claims against the defendant for US$27,288.50 with interest and costs.

Legal principles applicable to striking-out

16.  As stated at the outset, the defendant alleges that the Statement of Claim is frivolous or vexatious and/or it is otherwise an abuse of the process of the court and applies to strike it out.

17.  Mr Yim, counsel for the defendant, accepts that the Statement of Claim discloses reasonable cause of action.  He is not relying on O 18, r 19(1)(a) of the Rules of District Court.

18.  The principles applicable to striking out are well-established as set out in Hong Kong Civil Procedure 2014 Vol 1:-

“It is only in plain and obvious cases that the court should exercise its summary powers to strike out … any pleading under this rule. There should be no trial upon affidavit. Disputed facts were to be taken in favour of the party sought to be struck out. Nor should the court decide difficult points of law in striking out proceedings. The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out. If the court does not think the matter to be clear beyond doubt or if it fails to be satisfied that … the proceedings are frivolous or vexatious, then, there should be no striking out …

It is for the party seeking to strike out an indorsement on a writ or pleading to demonstrate that the case is a plain and obvious one in which the other party’s claim is bound to fail” (see paragraph 18/19/4 at pp 426-427).

“The object of the rule is to stop cases which ought not to be launched – cases which are obviously frivolous or vexatious, or obviously unsustainable …

The expression ‘frivolous or vexatious’ includes proceedings which are an abuse of the process … A proceeding is frivolous when it is not capable of reasoned argument, without foundation or where it cannot possibly succeed. A proceeding is vexatious when it is oppressive and/or lacks bona fides” (see paragraph 18/19/8 at pp 428-429).

“Paragraph (1)(d) [of O. 18, r. 19 of the Rules of High Court] confers upon the court in express terms powers which the court has hitherto exercised under its inherent jurisdiction where there appeared to be ‘an abuse of the process of the Court’. This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent the improper use of its machinery, and will, in a proper case (… where the claim is time-barred …), summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation” (see paragraph 18/19/10 at pp 430-431).

Time-bar argument

19.  Mr Yim argues that the plaintiff’s claim against the defendant in the present action is frivolous or vexatious and/or it is otherwise an abuse of the process of the court because it is time-barred, either by way of an implied contractual term or by virtue of the Hague Rules as amended pursuant to section 3 of the Carriage of Goods by Sea Ordinance (Cap 462).

20.  I shall begin by dealing with the first limb of Mr Yim’s time-bar argument.

21.  Mr Yim advances the time-bar argument by way of an implied contractual term as follows:-

(1) Both the plaintiff and the defendant are fellow freight forwarders;

(2) On 9 September 2010, the defendant placed a shipment order with the plaintiff by the Fax and subsequently concluded with Capital Express as the principal of the plaintiff on 13 September 2010;

(3) No terms and conditions had been expressly discussed and agreed in the above transaction.  In support, Mr Yim refers to paragraph 6 of the affirmation of Mr Fong Hon Kam (the plaintiff’s Operation Manager) (“Mr. Fong”).  Mr Yim submits that even the plaintiff accepts this as a matter of fact;

(4) “The terms and conditions which govern [plaintiff] and [defendant] are thus implied (necessary for the business efficacy); some, though not all, of which are evidenced (evidence only) in the back sides of bill of ladings which should be issued by [plaintiff] to [defendant] (“DBL”), and/or issued by Capital Express (via P) to D (“FHK-1”), and/or issued by any other sub-bailee(s)’ to [plaintiff], when sub-bailment was impliedly consented (otherwise Capital Express could never be engaged by [plaintiff])”[1];

(5) “One of the implied terms and conditions is that each and every complaint related to any shipment has to be made within one year (“the one-year limitation clause”), which should/may be evidenced in the back side of DBL and/or in the back side(s) of any other sub-bailee(s)’s bill of lading(s) (which have never been provided by [plaintiff] to [defendant])”[2];

(6) The plaintiff has however only commenced the present action against the defendant after the expiration of the one-year limitation period.  The delay involved is more than 2 years and is inordinate and inexcusable; and

(7) The plaintiff’s pursuit of the present action against the defendant regardless of the time-bar is frivolous or vexatious and/or it is otherwise an abuse of the process of the court.      

22.  First of all, it is unclear whether, as submitted by Mr Yim, no terms and conditions had been expressly discussed and agreed when the defendant retained the plaintiff to ship the defendant’s Goods on 9 September 2010.  As submitted by Mr Lee, counsel for the plaintiff, all that Mr Fong states at paragraph 6 of his affirmation is “only the front side of BoL has been faxed by the plaintiff to the defendant”.  It is not correct to assume that the plaintiff has accepted that no express terms and conditions had been agreed.  Disputed facts are in any event to be taken in favour of the plaintiff as the party sought to be struck out.

23.  In the course of the hearing, Mr Yim hands up two additional cases.  He draws my attention to paragraph 8 of Deputy Judge W Lam’s decision in Ascoba Company Limited v Safco International Freight Corporation & Others, DCCJ 1463/2004 (unreported, judgment dated 20 June 2005) stating “ … [a]s Carver on Bills of Lading (1^st Ed) says at paragraph 3-001, a BL is only evidence of a contract of carriage, which ‘in the vast majority of cases’ would be made without formality and before the issue of a BL”.    

24.  The other case is Deputy High Court Judge B Yu SC’s decision in Madison International Ltd v Fong Ting Bor, trading as Hung Fat Trading Co, HCA 13786/1997 (unreported, judgment dated 25 July 2002).  Mr Yim seeks to rely on it for the proposition, as set out at paragraph 24 therein, that “[t]erms of agreement can either be expressly agreed between the parties or ascertained by reference to a course of dealing adopted between them or from trade custom (Chitty on Contracts, 28^th Ed paras 12-011, 12-012; Scrutton on Charterparties and Bills of Lading 20^th Ed p 56)”.   

25.  I do not believe there is any dispute regarding the legal principles above.  Neither has Mr Lee made any submission otherwise.  The question rather is whether the one-year limitation period could be implied into the Contract to bind the plaintiff when commencing the present action against the defendant as submitted by Mr Yim.

26.  Mr Yim stresses that the one-year limitation period should be implied because it is “necessary for the business efficacy”.  The requirements for implying a term in a written contract are well-established.  Lord Simon of Glaisdale in BP Refinery (Westernpoint) Pty Ltd v Shire of Hastings (1978) 52 ALJR 20 stated at p 26 (quoted by the Court of Final Appeal with approval in Kensland Realty Ltd v Whale View Investment Ltd & Another (2001) 4 HKCFAR 381):

“ … for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that ‘it goes without saying’; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract”.

27.  I have been reminded by Mr Lee, and I undoubtedly bear in mind, that it is for the party seeking to strike out a pleading to demonstrate that the case is a plain and obvious one in which the other party’s claim is bound to fail.  The defendant however has failed to show how the one-year limitation period has met the requirements above to be made an implied term of the Contract to render the plaintiff’s claim against the defendant in the present action time-barred.

28.  Mr Yim first argues by reference to the affirmation of Mr Yuen Chi Wai Bryan (the defendant’s Manager) (“Mr Yuen”). I note apparent inconsistency on the defendant’s own case.  Mr Yuen initially says at paragraph 7 of his affirmation that “[o]ne year limitation clause is contained in every BoL.  Also, it is a common industry knowledge and practice that each and every complaint related to any shipment has to be made promptly within a year otherwise insurance will not be covered” [emphasis added].  But then he says at paragraph 11.5 that it is only “very common” for bills of lading to have one-year limitation clause.

29.  In any event, I do not understand Mr Yim to be suggesting for a moment that the court should take unreservedly from the defendant’s evidence to answer the questions whether each and every bill of lading consists of a clause stipulating a one-year limitation period and what the common knowledge and practice in the industry is.

30.  Mr Yim’s other argument is that the one-year limitation period should/may be evidenced as contained on the back sides of the bill of ladings issued by the plaintiff to the defendant, by Capital Express (via the plaintiff) to the defendant and/or by other sub-bailee(s).

31.  The defendant however has not begun to identify the relevant clause stipulating the one-year limitation period.  The defendant has not produced a single “full and complete” bill of lading.  As stated by Mr Yuen at paragraph 5 of his affirmation, “ … [a]t this stage, however, we [defendant] are unable to locate the copy of the back page of the above BoL which contains all the terms and conditions; at the moment, we [defendant] are trying very hard to locate it back from our warehouse which keeps records of shipments concluded more than a year ago”.

32.  In view of such assertion, Mr Fong exhibits a “full and complete” pro-forma bill of lading prepared by Capital Express under “FHK-1” to his affirmation.  The plaintiff points to clause 9 thereof as what the defendant should have in mind.  It reads as follows:-

“NOTICE OF LOSS TIME BAR

(1) Unless notice of loss of or damage to the Goods and the general nature of it is given in writing to the Carrier at the place of delivery be lose [sic] or at the time of the removal of the Goods into the custody of the person entitled to delivery thereof under this Bill of Lading or if the loss or damage be not apparent within seven consecutive days thereafter such removal shall be prima facie evidence of the delivery by the Carrier of the Goods as described in this Bill of Lading.

(2) Subject to paragraph (3) below, the Carrier shall be discharged of all liability under this Bill of Lading unless suit is brought and written notice thereof given to the Carrier within nine months after delivery of the Goods. In the case of total loss of the Goods the period shall begin to run two months after the Goods have been received for transportation.

(3) Notwithstanding paragraph (2) above if the whole of the carriage undertaken by the Carrier is limited to the carriage from a CY or CFS in or immediately adjacent to the sea terminal at the port of discharge the Carrier shall be discharged from all liability whatsoever in respect of the Goods unless suit is brought within one year of their delivery or of the date when they should have been delivered”.

33.  As submitted by Mr Lee, clause 9, on its plain wording, however concerns claims against a carrier.   

34.  Clause 14, on the other hand, concerns a shipper’s responsibility.  It is significant to note that the clause contains no limitation on claims against a shipper contrary to Mr Yim’s submissions.  It reads as follows:-

“(1) The Shipper warrants to the Carrier that the particulars relating to the Goods as set out overleaf have been checked by the Shipper on receipt of this Bill of Lading and that such particulars and any other particulars furnished by or on behalf of the Shipper are correct.

(2) The Shipper shall indemnify the Carrier against all loss, damage and expenses arising or resulting from inaccuracies in or inadequacy of such particulars. The right of the Carrier to such indemnity shall in no way limit his responsibility and liability under this Bill of Lading to any person other than the Shipper”.

35.  Mr Yim also draws analogy to the sub-bailment situation in the present case.  He submits that had sub-bailment not been implied into the Contract, Capital Express could never have been engaged by the plaintiff to ship the defendant’s Goods.  He argues that one-year limitation period should be implied in the same way as sub-bailment.

36.  With respect, I fail to see the basis of Mr Yim’s argument.  There is no evidence to support Mr Yim to make the submission that the plaintiff had retained Capital Express to ship the defendant’s Goods pursuant to an implied term.  More significantly, as submitted by Mr Lee, even assuming that sub-bailment operates by way of animplied term, it does not necessarily mean that one-year limitation period should likewise be implied into the Contract.  The fact that sub-bailment could meet the requirements to qualify as an implied term does not mean that one-year limitation period could also meet the same.      

37.  By reason of the matters above, I reject Mr Yim’s argument that there was an implied term in the Contract to the effect that the plaintiff should claim against the defendant within one year or otherwise it would be time-barred for the plaintiff to do so.

38.  I shall now deal with the second limb of Mr Yim’s time-bar argument.

39.  Mr Yim argues further or alternatively that the plaintiff’s claim against the defendant in the present action is subject to the Hague Rules as amended.  Section 3 of the Carriage of Goods by Sea Ordinance provides that subject to subsection (3) the Hague Rules as set out in the Schedule shall have the force of law.

40.  Mr Yim quotes Article III under the Schedule:-

“6. … Subject to paragraph 6bis the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered.  This period may, however, be extended if the parties so agree after the cause of action has arisen …” (“Paragraph 6”); and

“6bis. An action for indemnity against a third person may be brought even after the expiration of the year provided for in the preceding paragraph if brought within the time allowed by the law of the Court seized of the case.  However, the time allowed shall be not less than three months, commencing from the day when the person bringing such action for indemnity has settled the claim or has been served with process in the action against himself” (“Paragraph 6bis”).

41.  As submitted by Mr Lee, the plain wording of Paragraph 6makes provision for clams against a carrier and the ship in respect of the goods.  Mr Yim himself accepts this when he submits “[o]n the face of the wordings in paragraph 6, it seems to suggest that one-year limitation applies to claims against carrier and the ship, ie bailee(s), from the shipper only”[3].

42.  Mr Yim however criticizes the plaintiff to have adopted an “ambiguous” position on this issue when Mr Fong merely states at paragraph 10 of his affirmation that “[e]ntirely without in any way admitting the legal effect and/or applicability of the terms appearing on the back side of the BoL, I would like to point out to the Court that the limitation period(s) under clause 9 was/were only for the protection of the carrier, not the shipper”.

43.  I see nothing wrong in Mr Fong stating generally that the plaintiff does not admit the legal effect and/or the applicability of the terms.  More importantly, the plaintiff has explicitly stated its reading of clause 9 being there toprotect a carrier not a shipper.

44.  Mr Yim further argues: “Indeed, though, paragraph 6 of Article III of the Hague-Visby Rules is silent on whether the one-year limitation could apply for claims against shipper, reading in conjunction with the wordings – ‘[a]n action for indemnity against a third person may be brought even after the expiration of the year provided for in the preceding paragraph’ – in paragraph 6bis, one would convince [sic] that paragraphs 6 and 6bis meant to apply one-year limitation to claims against shipper as well (in accordance with the business efficacy)”[4].

45.  I fail to see whyby reading Paragraphs 6 and 6bis in conjunction I should be convinced that the one-year limitation period under Paragraph 6 should apply against shipper as well.  As submitted by Mr Lee, the Hague Rules as amended would have contained express provision to cover shipper had there been intent to do so.

46.  In the premises, the defendant has failed to show that the plaintiff’s claim against the defendant in the present action is time-barred by operation of Paragraph 6.

Potential jurisdiction problem/forum non conveniens

47.  Separately Mr Yim raises the argument that “ … United States District Court, Southern District of New York is the Court which seized of the case (otherwise, [plaintiff] would never have a case against [defendant], it is questionable whether concurrent jurisdiction exists or not – not to mention the consequential problems of potential wasted legal costs and disharmonic results between the two jurisdictions”[5]. He argues further or alternatively that “forum non conveniens is another potential problem as the origin of the present proceedings, the US lawsuit, was held and concluded in another jurisdiction which [defendant] was never joint nor informed”[6].

48.  Mr Yim indicates in the course of the hearing that he would wish to rely on the above arguments to support the defendant’s case that the plaintiff’s claim against the defendant in the present action is frivolous or vexatious, and/or it is otherwise an abuse of the process of the court.

49.  Mr Lee complains that he is taken by surprise, and objects to these arguments.  He submits that they should not be allowed to be raised by the defendant.

50.  I can understand Mr Lee’s complaint and also see force in his objection.  The defendant has not indicated in the affirmation of Mr Yuen that other than the time-bar argument it would rely on other matters to supportthat the Statement of Claim is frivolous or vexatious and/or it is otherwise an abuse of the process of the court (and hence the defendant’s application to strike out).  Even Mr Yim himself fairly admits that this is the case and that the plaintiff has not been put on “notice” as such.

51.  Mr Yim alsostresses in his submissions that the potential jurisdiction problem and/or forum non conveniens are only advanced by him “in passing”.

52.  In all fairness, the defendant should not be allowed to rely on these arguments to strike out the Statement of Claim.  But even if they are to beadvanced, as Mr Yim himself recognizes, the defendant should have other more appropriate courses to take as opposed to applying for striking out.

Conclusion

53.  To conclude, the defendant has failed to show that the plaintiff’s claim in the present action is time-barred such that it is frivolous or vexatious and/or it is otherwise an abuse of the process of the court.  The defendant’s application to strike out the Statement of Claim is unmeritorious.

54.  Accordingly, I dismiss the Summons with costs to the plaintiff, with certificate for counsel as agreed between the parties.