XCHRX SUHAIL & SAUD BAHWAN and Another v. HONG KONG AIR CARGO TERMINALS LTD. and Others

1993 No. CL114

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

___________

_______________

J U D G M E N T

_______________

1. The first defendant has taken out a summons asking for an order that a preliminary point of law be tried before the trial of the action. The point of law is said to be whether a servant or agent of a carrier by air performing the international carriage of cargo within the meaning of Article 1 of the amended Warsaw Convention as set out in the First Annex to Schedule 1 to the Carriage by Air (Overseas Territories) Order 1967 who is sued in the tort of detinue for the wrongful detention of such cargo may as a matter of law rely upon the provisions of the convention, including in particular Articles 18, 20, 21, 22, 24 and 25A for the purpose of limiting its liability.

2. The plaintiffs points of claim against the first defendant allege that the first defendant was a bailee for reward and owed a duty to look after the goods delivered to it; a cargo of 1366 watches. It is further alleged that the first defendant owed a duty to the plaintiffs not to convert or detain the goods wrongfully. It is said that the first defendant failed to look after the watches, converted them or wrongfully detained them.

3. The first defendant's defence admits that it was under a duty to take reasonable care of the goods, and a duty not to convert or detain the goods. It denies that it failed to discharge these duties, but, if it did, its liability is limited under Articles 22 and 25A of the Convention.

4. Article 22 provides for the limitation of liability. Article 25 of the Convention provides that the limits of liability shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents. done with intent to cause damage or recklessly and with knowledge that damage would probably result. Under Article 25A, if the action is brought against a servant or agent of the carrier, the servant or agent is entitled to avail himself of the limits applicable to the carrier if he proves he acted within the scope of his employment.

5. I take the law in this area to be, expressed somewhat crudely, that all the issues arising in an action should be tried together, unless there is a clear advantage to be gained by having the trial of one or more issues separately.

6. If it were so that a decision one way or another on the point of law raised would dispose of the matter, there might be a clear advantage in hearing it as a preliminary point. But this is not the case. If the point is decided against the plaintiffs, they still have open to them a case to avoid the limits, and the trial would proceed. If the point is decided against the first defendant, then the trial would also proceed on other issues. All that would be gained would be the disposal of one of a number of issues, without any significant advantage. It is possible, of course, that if this point of law is determined, the way may be made easier towards a settlement of the matter, but this advantage is not sufficiently clear to persuade me to exercise my discretion in favour of the first defendant. On the other hand, the advantages of not hearing the matter as a preliminary issue are clear. All issues would be determined at one hearing, with the consequent saving of costs and court time. If the point of law is, as was urged upon me on behalf of the first defendant, a short point, without the need for evidence, it will be the same at the main trial, and can be disposed of then with greater, or, at least, equal convenience.

7. Accordingly, I see no clear advantage in hearing the point of law before the trial of the action. The summons is dismissed. On the face of it, there seems no reason why the plaintiffs should not have their costs in any event, and I make an order nisi accordingly.