VICO ENTERPRISES LTD t/a VICO SHIPPING CO AND ANOTHER v. LEE WOON MING

DCCJ 1668/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1668 OF 2005

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ASSESSMENT  OF  DAMAGES

1.  The plaintiff is a shipping company, the defendant is a trader of printing machine components.  The plaintiff agreed to carry the defendant’s goods using a container supplied by one of the plaintiff’s agents, TS Lines Limited, under a bill of lading, in December 2004.

2.  The defendant also signed a letter of indemnity and guarantee for delivery without bill of lading for the plaintiff on 4 December 2004.  Thus the defendant agreed to indemnify the plaintiff for any loss or damage sustained by the plaintiff in respect of the plaintiff’s delivery of the defendant’s goods under the said bill of lading.

3.  On 8 December 2004, at the defendant’s request, the plaintiff gave a release order to the defendant for the collection of the container to load the defendant’s goods.  The container was collected by the defendant from the terminal on 13 December 2004. 

4.  Under the parties’ agreement and the plaintiff’s contract with his agent, TS Lines Limited, the defendant was given seven (7) days, up to 19 December 2005, to return the said container.  The daily hire charge after the expiry of the seven days was set out in the supply form and arrival notice (on page 24 to 25 of the bundle) at HK$400 a day.

5.  Despite repeated requests the defendant failed to return the said container to the plaintiff, and the defendant further failed to pay to the plaintiff any detention charges after the expiry of seven days.  The plaintiff issued a writ against the defendant on 12 April 2005 for the loss and damages suffered by it and for the detention charges due to the defendant’s failure to return the container after seven days.

6.  On 15 June 2005 the plaintiff obtained a final interlocutory judgment against the defendant and judgment for the detention charges of $29,200, with costs and interest.

7.  At today’s hearing for the assessment of damages the plaintiff asks for the damages suffered by it for it was not able to locate the defendant, obtain any acknowledgement of the whereabouts of the container and the payment for the defendant’s detention of the container.

8.  Eventually, the plaintiff opted to treat the container as lost and pay the agent, TS Lines Limited, for the loss charges.  TS Lines Limited charged the plaintiff the sum of US$3,200, an equivalent to HK$25,024, as loss charges of the lost container, and this sum was duly paid by the plaintiff.  A receipt was issued for the sum by TS Lines Limited.  The receipt, dated 2 March 2005, produced, showed also that TS Lines Limited charged the sum of $14,400 for detention charges of the container.

9.  The plaintiff’s witness, Miss Ko, said the sum was reduced because TS Lines Limited gave the plaintiff a discount.  Under the circumstances, it is apparent that the plaintiff’s loss is $14,400 plus $25,024 loss charges, a total of $39,424.  Consequently, damages suffered should be adjusted accordingly. 

10.  I assess the plaintiff’s loss to be $10,224.  This is subtracting the $14,499 from $29,200.  There is an overpayment of $14,800.  Deducting that from the $25,024, the loss is $10,224.

11.  Miss Cheung submitted that the plaintiff is entitled to recover $29,200 detention charges at $400 per day, therefore, no deduction should be made.  However, under the letter of indemnity and guarantee, the defendant agreed, under clause 1, to indemnify the plaintiff’s loss and damage, which the plaintiff may sustain, the defendant did not guarantee the plaintiff should profit more than it had actually lost.  Therefore, I assess the plaintiff’s loss, under the contract of indemnity signed by the defendant, to be $10,224.  This is my assessment.  Interest on $10,224 from date of writ to date of judgment at half judgment rate and thereafter at judgment rate until payment and costs of the assessment be to the plaintiff.