STARLIGHT EXPORTS LTD AND ANOTHER v. CTO (HK) LTD

HCCL 55/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO. 55 OF 2004

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J U D G M E N T

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I.  INTRODUCTION

1.  Between March and August 2003 CTO issued 3 Bills of Lading (the B/Ls) (numbered 6390, 6425 and 6790) to the Plaintiffs.  The B/Ls covered shipments of electronic goods from Hong Kong to Naples.  The goods shipped were all consigned “To Order of Shipper”.  The “Notify Party” named under all B/Ls was Hilevel Consumer Italia SpA, which had ordered the goods from Plaintiffs.

2.  Although it had paid deposits for the goods shipped under the B/Ls, Hilevel experienced difficulty in paying the full price due to the Plaintiffs. 

3.  In late 2003, at Hilevel's instigation, the Plaintiffs asked CTO to issue new B/Ls.  The new B/Ls stated that they had been issued on 24 November 2004.  In addition, the “Shipped on Board” dates on the old B/Ls were crossed out from the new B/Ls.  The new B/Ls were otherwise similar to the old B/Ls, including the specification that goods shipped were consigned “To Order of Shipper”.

4.  It was hoped that the new B/Ls would enable Hilevel to factor the goods and obtain the financing which it needed to pay the Plaintiffs.  The issue date on the old B/Ls was altered because the factor house (MPS Leasing & Factoring SpA) would only lend on the security of B/Ls evidencing shipments made no more than 1 month before.  In the event, financing never materialised for the goods under the 3 B/Ls.

5. Hilevel never paid the balance due on the goods shipped by the Plaintiffs.  The Plaintiffs consequently never instructed CTO to deliver the goods to Hilevel.  Instead, in December 2003 the Plaintiffs told CTO to transport the goods back to Hong Kong.  Eventually, the Plaintiffs discovered that between May and November 2003 CTO's Italian agent had released the goods to Hilevel without production of either old or new B/Ls.

6. The Plaintiffs now claim the value of the goods as damages for CTO's wrongful delivery of the goods to Hilevel.  The Plaintiffs seek US$859,275 plus interest.

7.  CTO contends that it is not liable on one or more of the following alleged grounds:-

(1) The Plaintiffs are not party to a contract of carriage with CTO.

(2) The goods, having been sold FOB Hong Kong, do not belong to the Plaintiffs.  Property in the goods passed to Hilevel in Hong Kong when the goods passed across the rails of the vessels on board which they were shipped.  CTO thus had no option but to deliver the goods to Hilevel upon the latter's demand.

(3) The old B/Ls had been cancelled and the new B/Ls (being false) were nullities.  There was thus no obligation to deliver the goods only upon presentation of the old or new B/Ls.

(4) The Plaintiffs agreed to the delivery of the goods to Hilevel by consenting in their delivery to Gedes SrL (a Naples customs broker).

(5) Suit not having been brought within 9 months, the Plaintiffs' action is time-barred by cl. 17 of the Standard Conditions governing the B/Ls.

(6) The Plaintiffs did not mitigate their loss.

(7) The Plaintiffs have not proved the quantum of their loss.

8.  The Plaintiffs are subsidiaries within the Starlight group of companies.  For the purposes of these proceedings, the Plaintiffs have been treated as interchangeable, each having acted as the other's agent.  In this Judgment, I shall not distinguish between the Plaintiffs.

II.  DISCUSSION

A.  Alleged defence 1: No contract of carriage

9.  Mr. Paul Harris SC (appearing for CTO) observes that, because the goods were sold FOB Hong Kong, Hilevel was responsible for paying the freight.  The FOB term was reflected in the words “Freight Collect” typed on the face of the B/Ls (old and new). 

10.  Mr Harris submits that, since Hilevel had to (and did) pay freight to CTO's Italian agent before obtaining release of the goods, the contracts of carriage (evidenced by the B/Ls) must have been between CTO and Hilevel.  Mr. Harris says that the Plaintiffs can consequently assert no rights in relation to the contracts of carriage evidenced by the B/Ls.

11.  I disagree with Mr. Harris' submission.

12.  The “FOB” term concerns the contractual obligations between Hilevel and the Plaintiffs in respect of the goods ordered.  CTO is not a party to such agreements between the Plaintiffs and Hilevel.  To see what (if any) obligations CTO owed to anyone, it is necessary instead to consider the terms of the contract of carriage evidenced by the B/Ls and their Standard Conditions.

13.  The B/Ls (both old and new) expressly name the Plaintiffs (or one or other of them) as “Consignor”.  The Standard Conditions governing the B/Ls then define the “Consignor” named on the face of the B/Ls as “the person who concludes the multi-modal transport contract with the Freight Forwarder”.  It is therefore plain that the B/Ls and the Standard Conditions treat the Plaintiffs as party to a contract of carriage.

14.  The “Freight Forwarder” is defined as the person issuing the B/Ls and whose name appears on the face of the B/Ls.  Such person “assumes liability for the performance of the multi-modal transport cont[r]act as a carrier”.  In this case, that person must be CTO which actually signed the B/Ls “as carrier”. 

15.  The Standard Conditions define “Merchant” as including “the Shipper, the Consignor, the Consignee, the Holder of this FBL, the Receiver and Owner of the Goods”.

16.  Clause 13.3 of the B/Ls stipulates that “[a]ll dues, taxes and charges or other expenses in connection with the goods shall be paid by the Merchant”. 

17.  It follows that, as Consignor, the Plaintiffs are liable to pay freight due in respect of the goods to CTO as Freight Forwarder.

18.  This is confirmed by Clause 13.6 which reads:-

“Despite the acceptance by the Freight Forwarder of instructions to collect freight, charges or other expenses from any person in respect of the transport under this FBL, the Merchant shall remain responsible for such monies on receipt of evidence of demand and the absence of payment for whatever reason.”

19.  The Plaintiffs as Consignor (and thereby “Merchant” and party to the contract of carriage) have undertaken to be responsible for the freight in the event that (say) CTO cannot collect from Hilevel.  Such undertaking (contrary to any suggestion by Mr. Harris) constitutes sufficient consideration for the obligations of carriage owed by CTO under the B/Ls.

20.  Note that, even if there had been no contract of carriage between the Plaintiffs and CTO, there would still have been a bailment between them.  The Plaintiffs having bailed the goods with CTO for the purposes of carriage, CTO as bailee came under an obligation to deal with the goods in accordance with the Plaintiffs' instructions.

21.  Mr. Harris submits that there is no evidence of a bailment, in the sense of a handing over by the Plaintiffs as bailor of possession, custody or control of the goods to CTO as bailee.

22.  However, the evidence shows that CTO undertook to perform the carriage in its own name as principal (and not as mere agent).  This is explicitly acknowledged in Standard Conditions cls. 2.1 and 2.2. 

23.  CTO chose to fulfil its obligations to the Plaintiffs by sub-bailing the goods to the Evergreen Line for shipment to Naples.  As far as I can see from the documents, CTO contracted in its own name as principal with Evergreen. 

24.  In those circumstances, CTO must have obtained possession, custody or control of the goods from the Plaintiffs, enabling it to sub-bail the goods to Evergreen for shipment to Italy.

B.  Alleged defence 2: No property in the goods

25.  Under a Trade Policy Agreement dated 29 May 2003 Hilevel proposed to order electronic goods from the Plaintiffs from time to time.  Under the Policy Agreement, goods would be sold “with FOB (Hong Kong or Yian Tien) term as defined by Incoterms 2000”. 

26.  The Policy Agreement stated that, in supplying goods, the Plaintiffs could grant Hilevel credit of 75 days from shipment date.  In such case, Hilevel would provide a non-refundable 10% deposit for goods ordered and the balance of 90% would be paid on “D/P terms through bank”. 

27.  Pursuant to the Policy Agreement, Hilevel ordered the goods which came to be shipped under the B/Ls.

28.  Mr. Harris argues that, goods having been sold on FOB terms, then absent any indication of a contrary intention, property in the goods passed upon shipment from Hong Kong.  It follows that, even without presentation of any B/Ls and despite explicit instructions by the Plaintiffs to the contrary, CTO was bound (Mr. Harris contends) to release the goods to Hilevel upon the latter's demand at Naples.

29.  I disagree.

30.  Although an FOB term may mean that property passes when goods are loaded on board a vessel, there is no invariable rule to that effect.

31.  An FOB term notwithstanding, a seller may reserve his right to the disposal of the goods.  A seller commonly does this when goods are sold on credit (as was the case here).  Where the seller reserves his right to the disposal of the goods, the FOB term simply means that risk of loss or damage to the goods passes to the buyer once the goods are loaded on board ship.

32.  The Policy Agreement provided that FOB sales between the Plaintiffs and Hilevel were to be construed in accordance with the International Chamber of Commerce's “Incoterms 2000”. 

33.  That publication says this of an FOB sale (at p. 49):-

“‘Free on Board' means that the seller delivers when the goods pass the ship's rail at the named port of shipment.  This means that the buyer has to bear all costs and risks of loss of or damage to the goods from that point.  The FOB term requires the seller to clear the goods for export....”

34.  The publication adds the following (at pp. 50-1):-

“A.  THE SELLER'S OBLIGATIONS

....

A5.  Transfer of risks

The seller must, subject to the provisions of B5, bear all risks of loss of or damage to the goods until such time as they have passed the ship's rail at the named port of shipment.

B.  THE BUYER'S OBLIGATIONS

....

B5.  Transfer of risks

The buyer must bear all risks of loss of or damage to the goods

• from the time they have passed the ship's rail at the named port of shipment; and

• from the agreed date or the expiry date of the agreed period of delivery which arise because he fails to give notice in accordance with B7, or because the vessel nominated by him fails to arrive on time, or is unable to take the goods, or closes for cargo earlier than the time notified in accordance with B7, provided, however, that the goods have been duly appropriated to the contract, that is to say, clearly set aside or otherwise identified as the contract goods.”

35.  The explication of FOB in Incoterms 2000 is couched in terms of the passage of risk, rather than of property.  That explication does not support Mr. Harris' argument that the FOB term implies that property (as opposed to risk alone) passed to Hilevel upon shipment of the goods from Hong Kong.

36.  Indeed, there is every indication that the Plaintiffs reserved their right to the disposal of the property in the goods. 

37.  First, the Plaintiffs expressly stated in the B/Ls that property was consigned to “The Order of the Shipper”.  This means that the Plaintiffs reserved the right to instruct CTO to deliver the goods at Naples to whomever the Plaintiffs might instruct.

38.  Second, as stated in their original invoices, the goods shipped under the B/Ls were sold to Hilevel on “D/P [Documents against Payment] AT SIGHT” terms.  This provision accords with the Policy Agreement.  It means that the B/Ls were only to be released to Hilevel upon payment of the balance of the purchase price due for each lot of goods shipped.  Commercially, a D/P term allows a seller (or his bank) to hold onto B/Ls until receipt of payment. 

39.  Bills of lading are documents of title to goods.  Their retention by a seller (or his bank) has the consequence that property in goods does not pass until payment by the buyer in accordance with the sale contract.  If a buyer does not pay, the seller retains rights in the goods and can re-sell them to third parties.

40.  Third, at least in the case of B/L Nos. 6390 and 6425, the retention by the Plaintiffs of the right of disposal is corroborated by 2 faxes dated 23 April 2003.  In those, the Plaintiffs instructed that the relevant goods “CANNOT BE RELEASED WITHOUT PRESENTATION OF FULL SET OF ORIGINAL BILL OF LADING”.

41.  Mr. Harris' submission does not take account of the consignment of the goods to the shipper's order. 

42.  Further, Mr. Harris' argument would render the D/P term pointless as a commercial arrangement.  There would be little use to a seller holding onto documents of title against payment if a freight forwarder could simply release the subject goods to a would-be buyer on demand by the latter.

43.  I have so far assumed that there were individual sales contracts between the Plaintiffs and Hilevel for each lot of goods shipped under the B/Ls.  In the course of his cross-examination and submissions, Mr. Harris submitted that there was no apparent sales contract between the Plaintiffs and Hilevel in respect of the goods shipped under the B/Ls.

44.  The trial bundle in fact contains 3 documents, each headed “Sale Contract”, relating to the goods shipped under the 3 B/Ls respectively.  These 3 documents are all dated 14 November 2003. 

45.  The documents post-date the actual shipping dates of the goods under the old B/Ls.  The evidence is that the documents were prepared by the Plaintiffs in November 2003 at Hilevel's request in support of Hilevel's application for factoring finance from MPS.  Having been so created ex post facto, these documents (Mr. Harris says) cannot be the contracts pursuant to which the goods shipped were sold.

46.  Mr. Harris may be right.  But even so, I am unable to see how the argument advances his case.

47.  Contracts can arise in writing, orally or by conduct.  It is true that the Plaintiffs have not produced individual written contracts pre-dating the shipment dates of the goods covered under the B/Ls.  But that does not mean that there were no individual sales contracts for each B/L shipment.

48.  The goods would not simply have been despatched to Hilevel in Naples out of the blue.  There was presumably conduct between the Plaintiffs and Hilevel leading to the shipment of the subject goods. 

49.  The totality of the evidence shows that in all likelihood Hilevel ordered the goods and expected their shipment.  In fact, Hilevel paid deposits and further deposits for the goods. 

50.  The specific terms upon which the goods shipped to Hilevel were sold may be gleaned from the Policy Agreement and the invoices sent to Hilevel for each of the 3 lots of goods.  The copies of those invoices contained in the trial bundle are actually those sent to Hilevel at the time of the original shipments of the goods between March and August 2003.

51.  There is then ample material by which the Court can infer that there were individual contracts between the Plaintiffs and Hilevel for the goods shipped under the B/Ls.

52.  But let us assume that Mr. Harris is right.  In that case, Mr. Harris's case would run into severe difficulty.

53.  If the goods had never been sold to Hilevel, property in them would unquestionably remain with the Plaintiffs.  CTO would have to explain why in those circumstances it authorised the release of the goods to someone who was not the owner (Hilevel). 

54.  The heart of CTO's defence hinges on there having been individual sale contracts on FOB terms.  As we have seen, at the end of the day the FOB term provides no help to CTO in this case.  But at least the term gives rise to an argument (however weak).  Without the FOB term, there would be nothing at all for CTO to say.

C.  Alleged defence 3: No operative B/Ls

55.  Mr. Harris submits that, since the old B/Ls had been cancelled and the new B/Ls (bearing a deceptive date of issue) were nullities, CTO could release the goods to Hilevel even without presentation of any bills of lading.

56.  I disagree.

57.  The key consideration is that, by the consignment of the goods to the shipper's order and by the April 2003 faxes, CTO must have been fully aware that it was only to release the goods upon the Plaintiffs' further instruction. 

58.  Such instruction could come in a number of ways. 

59.  One way might be by presentation of a bill of lading endorsed by the Plaintiffs to a holder. 

60.  Another way might be by direct instruction of the Plaintiffs communicated by (say) fax or letter.  An example of this was the 4 December 2003 fax to CTO whereby the Plaintiffs ordered that the goods should be shipped back to Hong Kong.  At the time, the Plaintiffs were unaware that the goods had already been released to Hilevel.

61.  Nothing in the Plaintiffs' request for new B/Ls could have reasonably led CTO to believe that CTO was authorised to release the goods to Hilevel without further reference to the Plaintiffs.  If anything, the issue of new B/Ls should have suggested that the Plaintiffs still required CTO to hold onto the goods until at least the new B/Ls were presented to CTO by a holder. 

62.  Even if one assumes (without necessarily accepting) that the old and new B/Ls were wholly inoperative for one reason or another, it does not logically follow that CTO was free to release the underlying goods to Hilevel.

63.  Mr. Harris cites the following passage from Carver on Bills ofLading (2nd ed.) §6-018 in support of his argument:-

“...  [T]here is no general principle in the law of carriage that the consignee named in the contract of carriage can claim delivery only on the production of the carriage document, or any other document.  Prima facie, a contract by which a bailee (A) of goods promises the bailor (B) to deliver the goods to a third party (C) is performed by such delivery without the need for C to produce any document containing or evidencing the contract of bailment; this is true whether A is a carrier or some other kind of bailee.  The requirement of the production of an order bill by C is best regarded as an exception to this general rule.”

64.  I do not think that the citation helps CTO's case. 

65.  Note first the context of the passage.  It is taken from a discussion of the need (or lack of it) for a third party to produce a bill of lading when claiming goods shipped under a straight bill.  The B/Ls here were order bills (that is, bills made out to the order of the shipper) not straight bills (that is, bills identifying a specific person as consignee). 

66.  But let us proceed on the basis that the analysis in Carver is correct.  The fact is that the Plaintiffs (as bailor) never instructed CTO (as bailee) to deliver to Hilevel.  CTO of its own opted to release the goods to Hilevel in disregard of the Plaintiffs' actual instructions.  The situation described by the passage simply does not arise in the present case.

67.  The simple truth is that CTO misunderstood the instruction that goods were consigned to the shipper's order.  CTO erroneously believed that, just because the sale was on FOB terms and Hilevel as buyer was liable for freight, Hilevel somehow automatically became owner of the goods even if had not fully paid for them.

68.  This mistake on CTO's part is starkly revealed by its own evidence. 

69.  Mr. Joey Ng (CTO's sea-freight manager) candidly stated:-

“The words ‘to the order of shipper' were added in the house bills of lading after Terry [of the Plaintiffs] sent us Starlight's relevant invoices to Hilevel.  On those invoices, the consignee was said to be ‘to the order of shipper'.  My understanding of these words was that the goods should be released to those buyer that Starlight wanted us to release to, in this case, Hilevel.  The names of the consignor were also copied from the relevant invoices.”

70.  Mr. Ng continued:-

“However, the payment of price of the goods was not a matter of concern to CTO (HK) Limited as the good were shipped under ‘FOB' term.  That means that all ocean charges would have to be paid by Hilevel and therefore the property of the goods were transferred to Hilevel.  Further, under the contract between Starlight and Hilevel, it was agreed that freight forwarder was to be nominated by Hilevel.  In fact, CTO (HK) was subsequently nominated by CTO Italy at the request of Hilevel.  CTO (HK) was therefore not the agent of Starlight but just a freight forwarder nominated by CTO Italy to handle the shipment for the goods of Starlight.”

71.  Mr. Ng concluded:-

“... [T]here are words ‘to the order of shipper' in the house bills of lading.  However, the house bills of lading were not documents of title.  CTO (HK) was just agent of CTO Italy to arrange shipment for Hilevel.  Starlight had no contract with CTO (HK).”

72.  Mr. Ng apparently thought that house bills of lading (such as the B/Ls) could be ignored and that all along CTO had no obligations to the Plaintiffs.  In reality, the nullity or falsity of the B/Ls do not seem to have entered into CTO's considerations. 

73.  We have seen from the discussion in the earlier sections of this Judgment that Mr. Ng's beliefs were wrong.  Ignorance of the law, however, does not excuse acting in breach of the terms of a contract or bailment.

D.  Alleged defence 4: Consent to delivery

74.  The goods were cleared through Italian customs by Gedes, a customs broker nominated by Hilevel.  Mr. Harris suggests that, on the evidence, the Plaintiffs consented to the delivery of the goods to Gedes and so agreed to Hilevel obtaining possession of them.  Mr. Harris relies on the fact that, in relation to other shipments not the subject of these proceedings, goods were released to Gedes without demur by the Plaintiffs.

75.  There is no evidence that the Plaintiffs consented to the delivery of the goods here to Gedes.  I do not see how other transactions, without more, imply that the Plaintiffs consented in the relation to the B/Ls here.

76.  In any event, there is no evidence that the Plaintiffs agreed that Gedes could hold the goods at Hilevel's absolute disposal without any need for Hilevel to pay the full price due.

77.  Gedes may have been nominated by Hilevel as customs broker to clear the goods.  But this by itself would not turn Gedes into Hilevel's agent for all purposes, including holding the goods absolutely for Hilevel once those goods were cleared from Italian customs. 

78.  Indeed, in cross-examination, Mr. Francesco Uria (CTO Italy's manager) denied that Gedes could be regarded as Hilevel's agent and appeared to suggest that Gedes was more rightly viewed as CTO Italy's agent for the purpose of clearing the goods through customs.

E.  Alleged defence 5: No suit within time

79.  The Standard Conditions provide:-

“Clause 6:  Freight Forwarder's Liability

6.1 The responsibility of the Freight Forwarder for the goods under these conditions covers the period from the time the Freight Forwarder has taken the goods in his charge to the time of their delivery.

6.2 ....

6.3 Arrival times are not guaranteed by the Freight Forwarder. However, delay          in delivery occurs when the goods have not been delivered within the time expressly agreed upon or, in the absence of such agreement, within the time which would be reasonable to require of a diligent Freight Forwarder, having regard to the circumstances of this case.

6.4 If the goods have not been delivered within ninety consecutive days following such date of delivery as determinates in Clause 6.3, the claimant may, in the absence of evidence to the contrary, treat the goods as lost.

6.5 ...

Clause 7:  Paramount Clauses

7.1 These conditions shall only take effect to the extent that they are not contrary to the mandatory provisions of International Conventions or national law applicable to the contract evidence by this FBL.

7.2 The Hague Rules contained in the International Convention for the unification of certain rules relating to Bills of Lading, date Brussels 25th August 1924, or in those countries where there are already in force the Hague-Visby Rules contained in the Protocol of Brussels, dated 23rd February 1968, as enacted in the Country of Shipment, shall apply to all carriage of goods by sea and also to the carriage of goods by inland waterways, and such provisions shall apply to all goods whether carried on deck or under deck.

7.3 ....

Clause 17:  Time Bar

The Freight Forwarder shall, unless otherwise expressly agreed, be discharged of all liability under these conditions unless suit is brought within 9 months after the delivery of the goods, or the date when the goods should have been delivered, or the date when in accordance with clause 6.4, failure to deliver the goods would give the consignee the right to treat the goods as lost.”

80.  The writ was issued on 13 February 2004.

81.  The goods shipped under the B/Ls arrived in Naples on 17 April, 6 May and 4 October 2003.  The goods under B/L Nos. 6390 and 6425 were released to Hilevel on 2 October and 2 May 2003 respectively.

82.  Mr. Harris argues that by cl. 17 the time for bringing suit in respect of the goods shipped under B/L Nos. 6390 and 6425 had long expired by 13 February 2004.  Mr. Harris accepts that the Plaintiffs have brought suit in respect of the goods shipped under B/L No. 6790 within time.

83.  I do not think that, on its true construction, cl. 17 is applicable. 

84.  The reference to “delivery” in cl. 17 must mean “delivery in accordance with the terms of the relevant bill of lading”.  It would be absurd if CTO could on a whim simply release the goods to a stranger and then claim that time for suit began to run from such date of “delivery” to the stranger.

85.  The Plaintiffs never instructed CTO to deliver to Hilevel.  It follows that the 9 months stipulated by cl. 17 cannot run from the date of release to Hilevel.  Time under cl. 17 would not have run against the Plaintiff from the time of purported deliveries to Hilevel on 2 October and 2 May 2003.

86.  In any event, in the case of goods shipped under B/L No. 6390, the 9 month time limit from date of delivery would not have run out by the time the writ was issued on 13 February 2004.

87.  Cl. 17 refers to other dates from which the stipulated 9 month limitation might run.  None of the alternative dates could be applicable here.

88.  One such alternative date is “the date when the goods should have been delivered”. 

89.  The goods were consigned to the Plaintiffs' order.  The only order that the Plaintiffs in fact gave for delivery was in December 2003, when it instructed CTO to return all the goods to Hong Kong.  Even if time started to run from the making of such order in December 2003, the 9 months would not have expired as at February 2004.

90.  The remaining alternative is “the date when in accordance with clause 6.4 failure to deliver ... would give the consignee the right to treat the goods as lost”. 

91.  Clauses 6.3 and 6.4 concern delays in delivery.  However, apart from CTO's non-compliance with the December 2003 order to return the goods to Hong Kong, there has been no delay in the delivery of the goods.  This is because, aside from the December 2003 instruction, the Plaintiffs never instructed CTO to deliver the goods to any specific person.  Instead, CTO agreed to hold the goods to the Plaintiffs' order (subject of course to the Plaintiffs' undertaking to be responsible for storage charges).  It follows that the circumstances envisaged by cls. 6.3 and 6.4 do not bite here.

92.  On Day 1 of trial, I drew counsel's attention to the Carriage of Goods by Sea Ordinance (Cap. 462) (COGSA).  Since this case involves a shipment from Hong Kong, COGSA has the effect that the Hague-Visby Rules (HVR) govern the carriage by operation of law.

93.  HVR Art. III, Rule 6 requires that suit in respect of goods carried by sea be brought “within one year of their delivery or of the date when they should have been delivered”.  HVR Art. III, Rule 8 states that any clause in a bill of lading which purports to relieve a carrier of liability otherwise than as provided in the HVR “shall be null and void and of no effect”.

94.  Clause 17 attempts to impose a shorter limit for commencing an action than that found in HVR Art. III, Rule 8.  Given my view that purely as a matter of construction that cl. 17 is inapplicable, it is unnecessary to consider whether cl. 17 would have been nullified by HVR Art III, Rule 8. 

95.  I am, however, grateful to counsel on both sides for the submissions made at my invitation on the effect of the Hague-Visby Rules.

F.  Alleged defence 6: No mitigation

96.  Mr. Harris suggests that in mitigation the Plaintiffs should have sued Gedes in Italy for the return of the goods.  It is hard to see how that could be a practical or reasonable suggestion. 

97.  First, for a long time the Plaintiffs did not know that the goods had been released to Hilevel between May and November 2003.  It was only some time after the Plaintiffs' December 2003 request to CTO for the return of the goods that they eventually discovered the goods had been misdelivered to Hilevel.

98.  Second, one is only required to act reasonably to mitigate loss.  I do not see how the Plaintiffs can reasonably be expected to have sued Gedes in Italy.  The Plaintiffs' contract was with CTO in Hong Kong.  CTO was their bailee.  Why (one asks rhetorically) should the Plaintiffs have to sue Gedes (with whom they had no direct contractual or bailment relationship) before they might bring an action against CTO?

G.      Alleged defence 7: No proof of loss

99.  The Plaintiffs claim the invoice value of the goods shipped to Naples and misdelivered to Hilevel.  Mr. Harris suggests that the Plaintiffs have not adduced sufficient evidence of the damages suffered.  He submits that the Plaintiffs' invoices are not good enough evidence.

100.  I disagree.

101.  The measure of the Plaintiffs' damages is the sound arrived value of the goods at the time of the misdelivery to Hilevel in Naples.  The invoices (charging Hilevel what it had agreed to pay for the Plaintiffs' goods) constitute good prima facie evidence of that sound arrived value.

102.  Mr. Harris says that the better evidence is a written submission by Hilevel to a Livorno court claiming release of the goods from CTO.  That Livorno submission alleges that the goods had lost half their value since date of shipping.

103.  In my view, the Livorno submission is no evidence at all.  It is mere assertion.  It is not backed by hard figures.  Nor has it been tested by cross-examination as CTO did not call the maker of the Livorno submission.  The material is pure hearsay and should not be accorded weight.

104.  Mr. Uria vaguely stated that “the price of DVD and home theatre products [that is, the electronic products shipped] kept on going down”.  But he makes no attempt to particularise over what period or by what amount prices are said to have fallen.  I am unable to regard Mr. Uria's throwaway remark as any reliable evidence.

H.  Summary

105.  CTO agreed to deliver the goods to the Plaintiffs' order.  The Plaintiffs specifically instructed CTO in April 2003 not to release the goods to Hilevel except upon production of a full set of B/Ls.  At all times up to the time of their misdelivery to Hilevel, the Plaintiffs remained the owner of the goods, having reserved the right to their disposal.

106.  CTO ignored the Plaintiffs' instruction to deliver the goods only to the Plaintiffs' order.  CTO instead released the goods to Hilevel, under the mistaken belief that Hilevel was the absolute owner of the goods.  In so doing, CTO breached its contract with the Plaintiffs.  CTO also acted in breach of bailment.  The misdelivery further constitutes conversion.

107.  The Plaintiffs are entitled to damages representing the value of the goods at the time of wrongful delivery to Hilevel.  The Plaintiffs are prepared to give credit for deposits previously paid by Hilevel in respect of the goods.

108.  The invoice value of the goods shipped under the B/Ls is prima facie evidence of their value at the time of wrongful delivery.  The unpaid balance of the invoiced purchase price of the goods is US$859,275.  The Plaintiffs are accordingly entitled to judgment in that sum.

109.  Mr. Kat (appearing for the Plaintiffs) asks for pre-judgment interest from the date of misdelivery of the goods.  I think that the Plaintiffs are entitled to such interest.  The question is how such interest is to be reckoned.

110.  CTO's evidence is that the goods were delivered to Hilevel on the following dates:-

(1) Goods under B/L No. 6390: 2 October 2003.

(2) Goods under B/L No. 6425: 2 May 2003.

(3) Goods under B/L No. 6790: 27 November 2003.

111.  Mr. Kat queries the delivery date of 2 October 2003 for goods under B/L No. 6390.  He notes that CTO Italy prepared a release instruction for the goods as early as 17 April 2003.  How is it (Mr. Kat asks) that the goods were not actually released to Hilevel until 2 October 2003?

112.  I cannot infer, from the mere fact that a release for the goods was prepared in April 2003, that the 2 October 2003 date must be wrong.  Mr. Uria gave evidence that CTO Italy commonly prepared release documents in advance.  It may be that, for some reason or other (including (possibly) the labour strikes hinted at by Mr. Uria), despite advance preparation of a release instruction, goods were not in fact provided to Hilevel until months later.

113.  In addition to deposits made before shipment, Hilevel paid sums of US$119,000 and US$100,375 on 11 and 18 December 2003 respectively for the goods.

114.  In light of those circumstances, rather than work through the niceties of when pre-judgment interest should run from what amount on what date, a rough-and-ready commercial approach should be adopted in the award of interest.

115.  Mr. Kat suggests that the Court start interest running on a rough average of the amount outstanding at a given time, possibly commencing on a date arrived at by weighting the amounts due.  He accordingly submits that interest might be awarded at a commercial rate on (say) US$1 million from 1 September 2003 to date of judgment.

116.  I accept Mr. Kat's suggestion.  I therefore propose to award pre-judgment interest at 1% over US$ prime from time to time on the amount of US$1 million.  In the event that I held against his clients, Mr. Harris was agreeable to this proposal.

117.  There is a dispute among the parties on whether the price due on the goods shipped under B/L No. 6425 was fully paid by Hilevel.  I do not think that the dispute is material.  This is because (as Mr. Kat points out) the Plaintiffs are giving credit for all payments by Hilevel in respect of the 3 shipments (including under B/L No. 6425).  It should therefore make little difference whether the amounts paid by Hilevel are wholly or partly attributed to this or that B/L shipment.

III.  CONCLUSION

118.  There will be judgment for the Plaintiffs in the principal amount of US$859,275 (the principal amount). 

119. The Plaintiffs are awarded interest (the interest amount) at 1% over US$ prime on the sum of US$1 million from 1 September 2003 to date of judgment. 

120. The Plaintiffs are awarded interest from date of judgment until date of payment on the aggregate of the principal and interest amounts at the judgment rate.

121.  I will hear counsel on costs and consequential orders.