XCHRX KANEMATSU (HONG KONG) LIMITED v. MULTI-LINK LIMITED

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

COMMERCIAL LIST
No.CL239 of 1995

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J U D G M E N T

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Findlay, J.:

1. The plaintiff claims the sum of US$1,458,273.60 from the defendant being the CIF value of a cargo of steel billets received by the defendant under a bill of lading which required delivery of the cargo to the lawful holder. The plaintiff says it was the lawful holder of the bill of lading, but that the defendant has failed to deliver the cargo to it.

2. An affirmation by Mr Hideharu Kamiji, filed on behalf of the plaintiff in support of an Order 14 summons, establishes the plaintiff's case. In response, the defendant has filed an affirmation by Ms Nannette Kwong, a solicitor employed by the defendant's solicitors. This affirmation is largely argument. In so far as it seeks to establish facts, Ms Kwong has no direct knowledge of them and does not disclose the source of her information.

The first argument raised by the defendant is that it is not clear that the plaintiff is the owner of the cargo. It is not necessary to decide this because the plaintiff is entitled to succeed as the lawful holder of the bill of lading, if there is no other arguable defence.

3. The other defence suggested by Ms Kwong is that there is evidence that justifies the inference that the plaintiff consented to the defendant delivering the cargo to Nicco Industry & Co. Limited (Nicco), the eventual purchaser of the cargo. This evidence is said to be the fact that, although the plaintiff was notified of the ETA of the vessel in Bangkok as 24 December 1994, the plaintiff did not demand delivery of the cargo until October 1995. Ms Kwong says that the defendant's agent has been informed by Nicco that it is discussing settlement of the contract price with the plaintiff. This evidence is said to show a likelihood that the plaintiff consented to Nicco taking delivery of the cargo.

4. The plaintiff explains the delay by confirming what the defendant's agent was told; that the plaintiff has been seeking to recover the price from Nicco.

5. The evidence adduced by the defendant does not, in my judgment, justify any argument that the plaintiff consented to the cargo being delivered to Nicco. The evidence is that the defendant's agent delivered the cargo to Nicco against a letter of indemnity. If it is so that the cargo was delivered to Nicco because the plaintiff had consented to this, the very least one would expect is some direct evidence from the defendant relating to this. If the plaintiff consented, they did not keep this to themselves; the consent must have been communicated in some way to Nicco and the defendant. If it was communicated to Nicco, in the first instance, one would expect that Nicco told the defendant that the plaintiff had consented to delivery to Nicco. If there was consent, it was not a secret; the fact that there had been consent had no value unless the fact was passed onto the defendant. But the defendant does not say that it released the goods to Nicco because it had been told that the plaintiff so consented. In fact, I am not told why the defendant so released the cargo without being presented with the bill of lading. Even if the defendant acted only on the say-so of Nicco that the plaintiff had consented, why has the defendant not said this? And why has the defendant not sought to adduce evidence from Nicco that the plaintiff so consented? I am told that the defendant's agent has discussed the matter with Nicco since this action commenced. If the defendant believed that the plaintiff had consented to the delivery, one would have thought that the first question that would be asked of Nicco was - "Did Kanematsu consent to you taking delivery?" If there had been a satisfactory reply, from the point of view of the defendant, I have no doubt that I would have been told this.

6. Accordingly, in my view, there is no direct evidence of consent, and there is no evidence from which such a consent could be inferred.

7. In the result, the plaintiff is entitled to judgment in the sum of US$1,458,273.60, with interest and costs of suit, and I grant this accordingly.