MEDIATEK INCORPORATION AND ANOTHER v. MORRISON EXPRESS CORP. LTD AND OTHERS

HCAJ 153/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO. 153 OF 2009

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BETWEEN

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J U D G M E N T

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1.  There will be judgment on liability with damages to be assessed.

2.  Assume the HAFFA terms apply.  Under those terms, the 2^nd Defendant (“D2”) may be acting as principal or as agent of the Plaintiffs.  In all depends on the facts of a particular transaction whether D2 acts as principal or as agent.

3.  Ms Lau says the Court should look at the course of dealing between the parties to determine whether in this transaction D2 acted as principal or as agent.  But if that is the defence, it was incumbent on D2 to adduce evidence or particulars of transactions with the Plaintiffs showing that D2 regularly acted as the Plaintiffs’ agent in the appointment of local carriers (such as the 3^rd Defendant (“D3”)).  No such evidence has been adduced and no particulars have been given.

4.  On the contrary, the evidence and particulars now before the Court are all one way.  D3 was appointed by D2 in September 2008.  D2 was only engaged by the Plaintiffs to carry the goods in this case in October 2008.  In those circumstances, it is hard to see how D2 could have been acting as the Plaintiffs’ agent in September 2008 before D2 was engaged by the Plaintiffs to carry the goods here.

5.  The terms of the Letter of Indemnity signed by D3 in favour of D2 (not the Plaintiffs) in September 2008 also suggest that D2 engaged D3 while acting as principal in its own behalf and not as agent for the Plaintiffs.

6.  D3 was undoubtedly negligent in allowing a pallet of the goods to be carried by lift from the ground floor to the 9^th floor of the relevant building.  That was only inviting a theft of the goods anywhere between the ground floor and the 9^th floor.

7.  Accordingly, D2 must be vicariously liable for D3’s negligence.

8.  On quantum, there will be unconditional leave to defend.  Assuming that it is possible the Quotation Terms apply, given Nanyang Credit Card Co. Ltd. v Ying Wei Cargo Service, Civ App No. 119 of 1992, 27 January 1993 (CA), it must be arguable that the quantum of D2’s liability may be zero or nominal.  Further, the reasonableness of the limitation or exclusion clauses in the Quotation Terms would, in my view, be a triable question.