Denton International Ltd v. The London Steamship Owner' Mutual Insurance Association Ltd

HCA006439/1981

IN THE HIGH COURT OF JUSTICE

BETWEEN

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Coram: Hon. Liu J.

Date: 4th July, 1983.

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JUDGMENT

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1. Cargo were shipped from Poland to Nigeria on board a vessel named "Hwa Ho". The ship arrived at Nigeria on the 4th June 1980. Damage to cargo was alleged.

2. The P and I Club gave a standard undertaking to the cargo owners which, in effect, offered, in consideration of the cargo owners refraining from having the vessel arrested and taking other steps, to pay to the cargo owners on demand sum or sums as may be found due to them from the owners of the vessel by final judgment of the Courts of Hong Kong or by agreement in writing between the parties subject to the statutory limit and to a ceiling of US$40,000 inclusive of interest and costs. The undertaking is contained in the Agreed Bundle of documents and marked No. 13.

3. The claim by the plaintiff arose wider this undertaking. By agreement, no evidence was led in addition to Agreed Bundle which has been agreed between the parties in every respect.

4. Subsequent to the undertaking given by the F and I Club, the plaintiff through its London solicitors wrote to the defendant's agent in Hong Kong on the 26th February 1981. That letter can be found in item 20 of the Agreed Bundle. A sum was put forward for the consideration of the defendant inclusive of suggested interest calculated at 15% per annum for 243 days from the 30th June 1980 to the 28th February 1981 totalling US$21,518.54. The plaintiff through its said London solicitors was prepared to forgo costs.

5. By a letter from the defendant's agent in Hong Kong to the plaintiff's said London solicitors dated the 22nd June 1981, item 27 in the Agreed Bundle, an offer of "a round sum" of US$20,000 in full and final settlement of the plaintiff's claim was made in these terms:

"We are prepared to offer the round sum of US$20,000 in full and final settlement to (sic) this claim and would be obliged to receive your client's views on this at your convenience."

The offer as stated was made in the circumstances set out in paragraph 2 of the same letter which reads:

"Despite further efforts we have failed utterly to obtain develop (sic) any information from Owners who are now in liquidation."

6. By a letter in reply dated the 26th June 1981, the plaintiff's London solicitors disclosed that they had sought their client's instructions upon the proposal. On the 29th June 1981, the plaintiff's said London solicitors followed up by a telex to the defendant's Hong Kong agent in the following terms:

"Thanks your letter of June 22nd. We have taken our clients' instructions and they have asked us to agree to the payment of US$21,000 inclusive of interest and costs, provided that there is a prompt settlement.Can we agree on this basis?"

7. There were two further telexes from the plaintiff's said London solicitors to the defendant's Hong Kong agent. Suffice it for me to say that in both telexes they described the offer in the above telex dated the 29th June 1981 as their proposal. In the telex dated the 27th July 1981, it enquired in the following terms:

"We should be grateful if you would kindly confirm that our proposal is acceptable to you and that a remittance is being made."

And in the telex dated the 4th August of the same year, they threatened to "protect" their client's interest "with tie consequent increase in costs" but again repeated the same message in these terms:

"Can you now confirm that the proposal made in our telex of 29.6.81 is acceptable."

8. The question for the court's decision is whether the defendant's original offer was accepted or rejected. The correspondence in the terms repeated verbatim cannot be simpler, clearer or more direct. Any further analysis of the language so used would only introduce unnecessary complexity. In my vies, the original offer was plainly rejected by the very clear counter offer made by the plaintiff in its said London solicitors' telex to the defendant's Hong Kong agent dated 29th June 1981. The telexes sent by the plaintiff's said London solicitors can, on no account in the circumstances known, be taken as a request for information or being merely exploratory. The position is, in my view, beyond doubt that the original offer of the defendant was in effect rejected by the very clear terms of the counter offer made on behalf of the plaintiff by its said London solicitors.

9. There was a further matter in dispute, viz. whether the original offer of the defendant, if still subsisting, was revoked by the telex, dated the 4th August 1981. Counsel for the defendant reserved his position despite of the passing comments made on behalf of the plaintiff by its counsel. It is only befitting for counsel for the defendant not to have gone into the question of revocation. The position vis-a-vis the plaintiff and the defendant is crystal clear. Any attempt to be drawn into arguments in connection with the question of revocation would only be redundant and unnecessarily prolonging these proceedings.

10. In view of the conclusion that I have arrived at, it remains for me to order the plaintiff's action to be dismissed with costs to the defendant.

Representation:

Mr. Ronny Tong instructed by Robertson, Double & Boase for the Plaintiff.

Mr. Robert Ribeiro instructed by Johnson, Stokes & Master for the Defendant.