Jardine Freight Services (HK) Ltd v. A Class Fashion Manufactory
Read the full judgment text of CACV 215/1994 on BabelCite. This Court of Appeal judgment.
2. I am content to take the facts from his judgment. The defendant manufactures and trades in garments. The plaintiff provides air freight services. In 1992 the defendant engaged the plaintiff to air freight three consignments from Singapore to New York. They were sent in October and November 1992. The total contract price was US$118,661.40. Commission - which is not in issue - reduced this to the sum awarded.
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CACV000215/1994
----------------- Coram: Nazareth VP, Mortimer and Liu JJA Date of Judgment: April 7; August 24 1995 ----------------- JUDGMENT ----------------- Mortimer JA: This is a defendant's appeal against a judgment of Deputy Judge Burrell (as he then was) on 4 November 1994 in which he found for the plaintiff, it awarded US$98,884.50 and dismissed the counterclaim. The facts 2. I am content to take the facts from his judgment. The defendant manufactures and trades in garments. The plaintiff provides air freight services. In 1992 the defendant engaged the plaintiff to air freight three consignments from Singapore to New York. They were sent in October and November 1992. The total contract price was US$118,661.40. Commission - which is not in issue - reduced this to the sum awarded. 3. By its defence and counterclaim, the defendant contended that the agreement between the parties was made orally between Mr Tse for the defendant and Mr Chung for the plaintiff. It alleged that inter alia the contract contained the following terms:
4. Breaches of these terms were alleged because the consignments were sent by British Airways and delivery to New York was not made within the three days. In consequence, the defendant claimed a deduction of US$47,350.74 for late delivery which had been deducted by its New York customer. 5. Further, a quota visa in respect of one consignment necessary for the import of the goods into the United States was lost. The defendant claimed a further reduction for the cost of its replacement in order to clear customs amounting to US$21,634.62. 6. The oral agreement was denied by the plaintiff in reliance upon the documents which made no reference to such terms. There was no dispute that the quota visa had been lost but the plaintiff contended that it was. lost when in British Airways' hands with the consequence that it was exempt from any liability under the Hong Kong Association of Freight Forwarding Agents ("HAFFA") standard trading conditions which were expressly incorporated into the contract. The trial 7. At trial, the plaintiff relied upon the written documents and did not call Mr Chung to dispute the alleged oral contract. The defendant called Mr Tse but the judge roundly rejected his evidence and found against the defendant on the alleged oral terms. 8. On the loss of the quota visa the judge held that it had been lost by British Airways and was not in the "actual custody" of the plaintiff, that the HAFFA conditions were expressly incorporated in the contract and that the plaintiff was exempt from the liability for its loss under conditions 20(i) and (iv). Mr Chung's witness statement 9. Although the defendant chose not to call Mr Chung a recent and signed statement had been provided to the plaintiff as required by O38 r2A. At the close of the defendant's case, counsel for the defendant applied for leave to put in Mr Chung's statement under O38 or Part IV of the Evidence Ordinance, Cap. 8. The judge refused the application. 10. By its first ground of appeal, the defendant contends through Mr Ngai that the judge wrongly exercised his discretion and ought to have allowed the statement in. He submits that after the plaintiff had provided the statement in. He submits that after the plaintiff had provided the statement under O38 r2A he was taken by surprise when the plaintiff chose not to call the witness and as the statement appeared to support the defendant's version of the contract, the judge ought to have allowed the statement in spite of the late application and questions as to its weight. Its introduction would be in furtherance of justice and would not cause any prejudice or embarrassment to the plaintiff. 11. For the plaintiff Mr Houghton points out that the defendant was aware that Mr Chung was not to be called by the close of the plaintiff's case but no application was made when either for an adjournment or for the admission of Mr Chung's statement. The application was made after all the evidence in the case had been given. The purpose was to introduce just the statement and not to give the plaintiff an opportunity of serving a counter-notice to have the witness called by the defendant - even of this were practicable. If allowed therefore the usual safeguards for hearsay statements would have been absent. Further, the weight accorded to this statement was unlikely to be great and so the benefit to the defendant was likely to be marginal. 12. For my part, I do not think the defendant comes near to demonstrating that the discretion exercised by the Deputy Judge was plainly flawed. A witness's statement provided by one party to the other under O38 r2A loses its privilege but there is no obligation of any kind for the party to call the witness. It follows that there is no reason for the other party to assume that the witness will be called. Obviously, if in exceptional circumstances a party wishes to rely upon a witness statement provided by the other party, it may serve appropriate notices with the usual consequences. However, in this case, the application was not made until the evidence for both sides had been called and the usual safeguards for the introduction of hearsay statements had been lost I would hold that there were good reasons for the judge to exercise his discretion in the way he did. I would reject this ground of appeal. The HAFFA conditions 13. Having rejected the defendant's version of the contract and held that the terms were to be found in or evidenced by the document, there is no doubt that the HAFFA conditions were expressly incorporated by the words "all business is transacted subject to Hong Kong Association of Freight Forwarding Agent's standard trading conditions obtainable on request" which appeared at the bottom of the plaintiff's written quotations. 14. These conditions include the exemption clauses relied upon by the plaintiff which provide inter alia:
15. There is no dispute that the burden is upon the plaintiff to bring itself within the exemption clauses. Mr Ngai submits that it failed to discharge this burden because there is no direct evidence before the judge sufficient for him to find that the visa quota was lost when outside the "actual control" of the plaintiff and that it was lost by British Airways. 16. There was no direct evidence that these documents were handed to British Airways for carriage to New York. Neither was there any direct evidence to the contrary. The evidence at trial was that the three consignments had been sent by British Airways and the intention was to send the visa by the same means. Indeed, later it was the defendant's complaint that the visa had been sent with British Airways whereas it ought have been sent by separate means to the consignee. There can be little doubt that if the intended procedures were carried out the visa would have gone to British Airways at the same time as the consignment of goods. The judge made his findings in these terms"
17. In spite of the absence of direct evidence, it was open to the judge to make this finding of fact by inference on a balance of probability from the whole of the evidence and the circumstances before him. Nothing having been advanced to show that this finding is demonstrably wrong, it is not a conclusion with which this Court ought to interfere. 18. By a further submission Mr Ngai contends that 'goods' in Clause 20(1) is not wide enough to cover the lost documents. For my part I find this impossible to accept for two reasons. First, the clause itself was plainly intended to apply to any personal property put into the custody of the Company for onward delivery. Secondly, the well established meaning of 'goods' - which is the same as 'chattels' - covers all personal properly whatsoever and this includes documents. Waiver 19. The defendant also submits, as it did before the Deputy Judge, that the plaintiff has waived its rights to rely upon the exemption clause by accepting liability for the loss of the visa. This depends entirely upon a letter written by the plaintiff to the defendant in which the following appears:
20. The judge below answered this submission in these terms:
DFS/SIN is a reference to the Singapore company - Dynamic Freight Services (Singapore). 21. On this point I would unhesitatingly uphold the judge. It was a letter written very early in the discussions between the parties concerning the missing documents and the statement is not sufficiently clear to demonstrate that the plaintiff intended to vary or waive its legal rights. The reference was to a promise by the Singapore company without further endorsement. There was no consideration and there is no suggestion that the defendant understood that the plaintiff was waiving its rights or that the defendant acted upon any such understanding. The Respondent's Notice - interest 22. Finally, by a respondent's notice the Plaintiff seeks to reverse the judge's award of interest at 1% over "base rate" from December 1 1992. 23. The basis for the contention is Clause 19(d) of the Conditions which provides:
24. This clause was not relied upon by the Plaintiff until counsel applied to amend on the 20 October 1994 - the 2nd day of the 2 days hearing. The last previous pleading was served in July 1993. 25. It is clear from the transcript that counsel pursued this new point somewhat half-heartedly at trial. Given the lateness of this amendment and possible prejudice to the Defendant it was open to the judge to exercise his discretion to award interest in the way he did. There are no grounds demonstrated for this court to interfere with the judge's discretion. I would dismiss the cross appeal. Conclusion 26. For these reasons I would dismiss the appeal and this cross appeal and would order nisi that the Plaintiff should have the cost of the appeal and there should be no order for costs on the cross-appeal.
Nazareth V-P: I agree.
Liu JA: I also agree.
Representation: Miss Dominique C.T. Ngai (M/s Sousae & Hoosen) for Appellant/Defendant Mr Anthony Houghton (M/s Sinclair Roche & Temperley) for Respondent/Plaintiff |
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