Aery Express Corp Ltd v. Charterers & Consolidators (HK) Ltd

DCCJ006069/1975

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO. 6069 OF 1975

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Coram: Judge Mayo, D.J. in Court.

Date of Judgment:

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JUDGMENT

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1. At the conclusion of the hearing of this case I stated that I would give my reasons in writing for my decision.

2. The amount of the claim is $1,062.06, which moneys represent the amount which the Plaintiff claims the Defendant owes it as a result of a consignment of goods which were airfreighted being calculated on the basis of the weight of the consignment rather than the volume thereof.

3. It is the Plaintiff's case that Mr. Man, the Marketing Manager of the Defendants telephoned Mr. Roy, a Director of the Plaintiff on the 15th March 1975 and requested the Plaintiff to quote a price for a cargo to be airfreighted to Amsterdam and Mr. Roy then quoted the figure of HK$7.32 per kilo conditional upon the cost of the freight being calculated on the volume of the consignment rather than its weight. The whole of the dispute revolves around whether or not this condition was imposed. It is the Plaintiff's case that Mr. Roy referred to this requirement both over the telephone and subsequently at a meeting which took place when Mr. Man attended at Mr. Roy's office later that morning which was also attended by Mrs. Roy who works as the Operations Manager of the Plaintiff. Both Mr. and Mrs. Roy gave evidence of what transpired and also gave evidence of the surrounding circumstances and in particular that market conditions were favourable and that even though the flight in question was on the 17th March they nonetheless had available to them alternative cargo which could have been airfreighted on the flight even if the Defendant had not contracted to utilise the space. The reason which both witnesses gave for the acceptance of the Defendant's cargo was that it was a bulky cargo and would accordingly complement the weight orientated cargo they already had in hand. Evidence was also given that it is a matter of prime importance to the profitability of airfreighting goods to obtain a satisfactory balance between the volume and weight of a cargo so as to ensure the maximum utilisation of all available-space. Mr. Roy stated that there was an implied agreement between the parties that they would be bound by the measurements and weights of the charterer, and that he was informed later in the evening of the 15th March after the Defendant's goods had been weighed and measured that their weight was such that the cost of transportation would be based on this rather than the volume as had been represented by Mr. Man at their meeting when he said that although he did not have an accurate measurement or weight of the cargo he was confident that it would be a volume cargo by 200 or 300 kilos. Mr. Roy said that he did not have an opportunity of taking the matter up with Mr. Man until a chance encounter with him and his principal Mr. John Fung at the King Hon Restaurant in Tsimshatsui on March 17. He said that he broached the topic at this time and that the Defendants did not raise any objection to the cost of freight being increased from $7.32 per kilo so that it might accord with prevailing rates for a weight orientated cargo.

4. Mr. Man was the only witness to give evidence for the Defendant. He denied having telephoned Mr. Roy and stated that he only attended at the Plaintiff's office and communicated with Mrs. Roy. He said that his motive in thus communicating was to endeavour to obtain a bargain rate for the transportation to Amsterdam of a consignment and that he knew that the Plaintiffs had unfilled space on its hands. He denied that there was any disoussion concerning the requirement that the cargo should be a volume cargo and referred to a written memorandum Mrs. Roy had prepared and given to him which gave particulars of the airway bill and other relevant matters and also contained a notation that the rate should be US$1.44 per kilo which using a conversion factor of US$1 to HK$5.085 resulted in a rate of HK$7.32 and not 7.63 as was being claimed in the Particulars of Claim. He denied any meeting with Mr. Roy on the 17th March and said that the first he knew of any problem existing was the receipt by him of the Plaintiff's invoice on the 19th March which sought payment of the account calculated at the 7.63 rate. He gave evidence that he assumed that this invoice had been prepared in error and therefore instructed a member of his accounts staff to amend the invoice so as to incorporate the amount calculated at the rate of $7.32. He claimed that there was a luncheon meeting with Mr. Roy on the 21.3 and on this occasion Mr. Roy requested him to allow an increase in the agreed rate because of the considerable profit the Defendants had been able to make on the transaction. Mr. Man said he refused to agree to this request.

5. Having carefully observed the demeanour of all of the witnesses who gave evidence I have no hesitation in accepting Mr. and Mrs. Roy's evidence and rejecting that of Mr. Man. Mr. and Mrs. Roy both impressed me most favourable as witnesses. I regret that I did not obtain such a favourable impression of Mr. Man. He appeared to me to be a fairly bright young man who had made a mistake and wished to absolve himself from responsibility for it. I am quite unable to believe that a dialogue could take place between persons experienced in the airfreight business concerning the transportation of cargo and for the parties not to refer to the question as to whether the cost was to be calculated on volume or weight. I do not think that the existence of the memorandum prepared by Mrs. Roy assists the Defendant's case. It is obvious that no attempt was made by Mrs. Roy to reduce the agreement to writing in the memorandum and all that she was attempting to do was to prepare an aide memoire. Such an aide is similar to the type of note which a travel agent prepares when discussing alternative means of travel. It would be idle to expect such a note to include conditions incorporated in the contract between the parties. It is clearly intended as a note of matters which could not normally be memorised by an average person for more than a short period of time.

6. The whole of this case depends upon which conflicting version of the evidence I accept and my impression of the witnesses who gave evidence appears to be supported by the nature of the background circumstances. The Plaintiffs therefore were entitled to judgment as claimed and costs on the lower scale.

Representation: