XCHRX SHKOTOVO (OWNERS OF CARGO) v. SHKOTOVO (OWNERS)

1994, Folio No. AJ272

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ADMIRALTY JURISDICTION

_____________________

__________________________

_______________________

REFERENCE TO REGISTRAR

_______________________

1. On 31 January 1993 the Defendants delivered a cargo of 2348.065 metric tonnes of 500 SN base oil and 185.645 metric tonnes of 150 BS oil which were damaged and short delivered due to contamination that had taken place in the vessel. In lay terms, the cargo was damaged by salt water and contaminated by quantities of calcium, potassium and magnesium.

2. As a result of the contamination, the cargo could no longer be used or sold for its original purpose and the Plaintiffs set about finding various ways in which the damage could be mitigated.

3. In August 1994 these proceedings were issued with a Statement of Claim being filed on 3 October the same year and interlocutory judgment being entered in the same month.

4. In due course directions were sought from the Judge who ordered that damages be assessed under Order 75 Rule 41, the Plaintiffs might proceed by way of affidavit evidence, service on the Defendants was dispensed with, the reference might be heard in chambers and any further requirements of Order 37 and Order 75 Rule 41 were dispensed with.

5. The evidence before me consists of two Affidavits. The main evidence is contained in that of Mr. Padoong Pleanrungsi who is a senior officer in Caltex Thailand which is one of the Plaintiffs in the Action. The other Plaintiff is Caltex Singapore. The Deponent was authorised by both companies to give evidence.

6. The other evidence is contained in an affidavit of Low Seng Kee, also an employee of the Plaintiffs. His evidence formally confirmed certain matters in Mr. Pleanrungsi's Affidavit.

7. Mr. Pleanrungsi's evidence set out with admirable clarity all that had happened in this matter and the very proper steps that had been taken by the Plaintiffs to dealing with the spoilt cargo. No purpose will be served by my repeating it here.

8. There is nothing in that evidence which I find inherently improbable and, of course, in the circumstances of this case, it has not been contested or attacked by the Defendants.

9. During the hearing, Mr. Kerr drew my attention to a small mathematical error which appeared in the evidence. I accept the correctness of what he says and that the result is to increase very slightly the final figure in Mr. Pleanrungsi's evidence. Such discrepancy is neither surprising nor sinister, bearing in mind that some of the transactions are calculated in Baht, some in U.S. dollars, some measures in metric tonnes, some in litres and so on. The mathematics is very complex but at the end of the day I am satisfied, on the evidence before me, that all proper efforts were made to mitigate the damage but the eventual loss to the Plaintiffs amounts to US$820,018.60. That is the amount I award.

10. There will be interest on that sum at 1% over prime rate from 31 January 1993 to today. I award costs to the Plaintiffs with a Certificate for Counsel.