Yuen Shek-sang v. Hung Ching Travel & Enterprise Ltd

DCCJ001139/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO. 1139 OF 1980

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Coram: B.T. Caird, D.J.

Date of Judgment: 25th June, 1980.

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JUDGMENT

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1. This is an action for breach of contract brought by a Mr. YUEN Shek-sang against Hung Ching Travel & Enterprise Limited. The plaintiff is a merchant and in fact had the action been correctly pleaded the proper plaintiff would be Remoco (H.K.) Ltd. However, Mr. Chan on behalf of the defendant is not taking the point and I am proceeding as though the plaintiff were entitled to sue. It would be a matter that could have been easily rectified by amendment or adding the company as the plaintiff. It is unfortunate that this occurs where even those that plead fail to appreciate the distinction between ...(illegible) limited liability company and a man who runs it and probably owns it. I might also add that another matter was dealt with during the trial is. there was a great deal of hearsay evidence from the plaintiff. This was tendered without objection as his wife was called to give the original evidence.

2. It is claimed by the plaintiff that on the 12th July, 1978 he purchased from the defendant a normal fare (economy class) air ticket from Hong Kong to Tehran and return for the sum of $5,330. The defendant is in fact a travel agent and it is clear from the evidence of a Miss Chan, Manageress of the company, that the defendant is not an agent of Pan American World Airways Inc. but in fact has dealt through another agent who may or may not have (the evidence is silent as to this) a proper agency relationship with Pan Am.

3. The defence is simple. The defendant claims that the ticket issued to the plaintiff is what is known as a barter air ticket and the defence through Miss Chan also claimed that the plaintiff's wife knew full well what he was getting. There is no doubt that the wife in all her dealings with the defendant was noting as the plaintiff's agent.

4. I turn now to consider the type of ticket. This was issued for a flight to take place on the 23rd July 1978 to the plaintiff and on the face of the ticket itself in the third column on the left hand side of the ticket under the heading "coupons not valid after" appears in handwriting "December the 26th 1978". And under "endorsements restrictions" the words "non-endorsable" appear. We had evidence from a Mr. John Ho of Pan Am who explained this type of ticket. It is a ticket for which Pan Am never receive payment. They are issued as a value exchange to contractors to Pan Am, usually newspapers, hotels and restaurants, never to travel agents as Mr. Ho explained. I would add that Mr. Ho's evidence was accepted by both parties and it is common ground as to the type of barter ticket with which we are concerned. These tickets more-over are not refundable and Pan Am provide these to their contractors for use by the contractor, employees of the contractor and dependants. Pan Am if becoming aware of any situation where someone other than those three categories of persons is using a barter ticket, would cancel the ticket. Moreover the ticket is available only on Pan Am flights. It cannot be used on any other airline.

5. Appearing on the face of the ticket as the cost is a sum of $6,472 which is as we have been told, .represents the full economy air fare Hong Kong/Tehran return. An invoice was produced as Ex.P2 to Remoco (H.K.) Ltd. for the passenger, name appearing Mr. S.S. Yuen in the sum of $5,330 and again it is common ground that this amount was paid by the plaintiff to the defendant. Miss Chan in her evidence claimed that the ticket she was selling was normal fare less 20% and she claimed to make $150. In actual fact the mathematics of such normal fare are $6,472 less $1,294 being 20% equals $5,178 adding $150 to this is $5,328 rounded off would appear at $5,330. There are general conditions attaching to the ticket with which we are not concerned, and it is worth pointing out on the refund coupon appearing on the back of the ticket that this is not valid, i.e. no refund in respect of government transportation request or warrant or other credit contract, covering of course the barter situation.

6. The system whereby these barter tickets are used by members of the public and made available by travel agents contrary to the policy of the airline concerned is a practice which I personally find repre-hensible. However, the question of illegality does not arise as it has not been pleaded and has not been argued by either party.

7. The evidence of the parties is diamatrically opposed. The plaintiff and his wife have testified that they believed they were getting a full normal economy air ticket Hong Kong/Tehran return whereas Miss Chan on behalf of the defendant company claims that she explained that it was a barter ticket. She explained that it was valid only for 6 months or until December 26th of that year, that it was non-endorsable and not refundable. The evidence could not be more in conflict. During the course of cross-examination the plaintiff acknowledged that he was aware that there were conditions pertaining to normal tickets. This was well brought out by Mr. Chan and of course we are faced with a contract with on the face of it the ticket not being valid after the 26th December. I think it worth recording at this stage how the breach occured. We have had evidence from the plaintiff which I accept, that he was unable to travel on the 23rd July as originally planned because:

(a) There was trouble in Tehran itself; and

(b) Pan Am flights had been cancelled,

and it was not then until 10 months later when he wanted to travel to Tehran again, that he claims that he found the ticket could not be validated beyond the 26th of December.

8. I have been referred by Mr. Chan to two well-known cases: Parker v. The South Eastern Railway Co.⁽¹⁾ reported in Common Pleas Division where it was held that the question arose whether the company, in that case the railway company, did what was reasonably sufficient to give notice of conditions appearing on a ticket. This was an instance when articles were deposited at the cloak-room of a railway station. This case was considered and distinguished in the case of Thompson v. London Midland and Scotish Railway Company⁽²⁾ where a plaintiff had an excursion ticket and on the face of the ticket were printed the words "Excursion, for conditions see back". On the back there was a condition as to the company's liability in case of accident. In this case the plaintiff could not read but nevertheless a strong court held that the fact that she could not read did not alter the legal position in that she was bound by the special contract made on the excursion ticket on the acceptance of that ticket and that the indication of the special conditions by reference to the time table constituted sufficient notice of their existence and contents.

9. Here we face the situation where the ticket itself on its face, without reference to any other conditions, contains two vital restrictions: firstly the date of validation and secondly the non-endorsable aspect of the ticket.

10. It has been pointed out in the course of cross-examination by Mr. Pang and accepted by Miss Chan during that cross-examination that the words "non-refundable" do not appear anywhere on the ticket. From the evidence of Mr. Ho it was clear that 9% is the commission paid by Pan Am to the authorized agents and as Miss Chan told us when she is acting as a sub-agent she gets something like $200. Obviously she does not get 9%. It would be impossible for any agent whether sub-agent or head agent to Pan Am to issue a ticket, that is a normal economy ticket, for the sum of $6,472 less 20% and still make a profit, hence the practice of issuing or treating as a saleable commodity these barter tickets.

11. The plaintiff having acknowledged that he was aware that conditions do appear on tickets cannot in my view claim that the company had not taken reasonable steps to bring to his attention the conditions, and following the two cases referred to previously I find that the plaintiff must fail in his action.

12. Considering the question of which version I believe as to the events leading up to the issue of the ticket I find in favour of Miss Chan. This is not calling the plaintiff or his wife a liar. Its just that they cannot make out their case before me on the balance of probabilities. I find it intrinsically improbable that Miss Chan would issue such a ticket and call it a normal economy class return ticket. Being a travel agent she must be aware of the problems that could arise if a passenger tried to treat it as a normal ticket, trying to get a flight on another airline, keeping it for a period beyond the 26th of December to name but two of the problems that could arise. The action is dismissed with costs to the defendant on the higher scale to be taxed by the Deputy Registrar. Certificate for Counsel.

Representation:

(1) (1877) Common Pleas Division Vol.II

(2) (1929) 1 K.B. p. 41