SKYLINK INTERNATION FREIGHT LTD v. PREUMEC CO LTD

DCCJ1685/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1685 OF 2010

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BETWEEN

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Judgment

1.  This is the Plaintiff’s claim for damages in the total sum of $134,000 in connection with an agreement it entered into in early November 2009 with the Defendant for the delivery of the Defendant’s goods.

2.  According to the evidence of Lam Kam Wah (“Lam”), a director of the Plaintiff, in or around 2009, the Defendant approached the Plaintiff with a view to engage it to provide logistic services, and vehicle renting services. The Plaintiff had completed around 14 times of logistic services for the Defendant within a period of 6 months since 2009 until the time when the incident in question occurred.

3.  On or around 4 November 2009, the Plaintiff received a telephone order from the Defendant, instructing the Plaintiff to pick up some sodium silicate on the next day from Foshan, and to convey the same to Shek Kong, using the “tank cargo” supplied by the Defendant, instead of the trailer, which is attached to the tow truck.  The driver for the transaction is Wong Hon Kwong.

4.  On or around 5 November 2009, Lam received a phone call from Wong Hon Kwong who told Lam that the Defendant’s sodium silicate was detained by the Chinese Customs at Huanggang Border Check Point for inspection.  He immediately contacted the Defendant about this matter.  He told the Defendant that the Plaintiff still had to pay the demurrage/drayage expenses as the vehicle which was used to hold the sodium silicate was also detained by the Chinese Customs along with the sodium silicate.

5.  Wong Hon Kwong testified that on or around 5 November 2009, in Foshan, China, he picked up sodium silicate for the Defendant to be conveyed to Hong Kong.  When the vehicle reached the Huanggang Border Control Point, the vehicle and the sodium silicate were detained by the Chinese Customs. He was subsequently informed by the Chinese Customs Officers that there was something wrong with the sodium silicate, and that they needed to perform some laboratory tests on them.  On 4 December 2009, a Chinese Customs officer told him that they had tested the sodium silicate, and opined that there was nothing wrong with them.  The vehicle together with the tank cargo and the sodium silicate therein were released to him.

6.  On 1^st April, 2010 the Plaintiff’s solicitors wrote to the Defendant’s solicitors, stating that “the Tow Truck was detained because the clearance paper was invalid / expired and the Custom Officer wanted to examine the goods.”

7.  The basis of the Plaintiff’s case against the Defendant is  stated under paragraph 6 of the Statement of Claim:-

“The said detention of the tow truck was due to the improper customs clearance papers for which the Defendant is responsible. By reason of the said detention, the Plaintiff suffered damages which the Defendant is liable to pay.”

(Underlines provided)

There is nothing in the Plaintiff’s two witness statements or their evidence to show that the detention of the tow truck was due to any improper clearance papers.  What Wong Hon Kwong was told by the Customs Officers was that there was something wrong with the sodium silicate, and that they needed to perform some laboratory tests on them.  Eventually it turned out that there was nothing wrong with the sodium silicate.  There is simply no evidence to prove that the Defendant’s customs clearance papers were improper.  Hence there is no basis for the Plaintiff to make its claim against the Defendant.

8.  The remaining issue is whether the Defendant is liable to pay the Plaintiff the parking fees for the trailer in Hong Kong for 30 days at the daily rate of $70.  Lam said that Defendant agreed to pay the Plaintiff the parking fee of the trailer which was detached from the tow truck.  On the other hand, the Defendant’s witness Tong Siu Kit said that the Defendant had engaged the Plaintiff many times.  The Plaintiff had never requested it to pay any parking fee for the trailer in Hong Kong. 

9.  On 24^th July, 2009, the Plaintiff issued a quotation to the Defendant.  On the quotation, the fee quoted for the transportation of cargo tank (缸車 -- 拖運) from Shek Kong (Hong Kong) to Foshan is HK$4,400.  There is a note in the quotation stating that “Above transportation charge rates exclude Tunnel toll, Parking fee, Gate charge etc… ... .”  The phrase “above transportation charge rates” refers to the charge rates in respect of the transportation of a cargo tank.  For the transportation of a tank cargo, the trailer attached to the tow track must be detached, and then the tank cargo is attached to the tow truck.  So the trailer is not used in the transportation of the cargo tank; it has to be parked somewhere.  The parking of the trailer will incur parking fees.  The Plaintiff should have mentioned in the quotation parking fees for the trailer, if it had intended to impose such charge.  Nothing in this regard was no stated.  It is clear that the Plaintiff   had no intention of charging the Defendant such fees.  This is consistent with the Defendant’s evidence in this regard.  I accept the Defendant’s evidence.

10.  Due to the reasons above-said, I dismiss the Plaintiff’s claim.

Costs

11.  I make an order nisi, to be made absolute in 14 days’ time, that the Plaintiff do pay costs of these proceedings to the Defendant, to be taxed, if not agreed, with certificate for Counsel.