Hong Kong Intermodal Transportation Ltd v. Afea Shipping Agency Co Ltd
Read the full judgment text of HCA 4547/1980 on BabelCite. This High Court CFI judgment.
1. In this case, in a most bizarre fashion, the trial of a so-called preliminary issue was listed before me. The preliminary issue was not in accordance with the form prescribed by known principles. If the preliminary issue had gone forward in this form, evidence would have been required and it would not have settled the case finally. However, due to the common sense of Counsel, this had been resolved by a waiver of procedural irregularities and the handing in of an agreed statement of facts and
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HCA004547/1980
----------------- Counsel's Notes of the Judgment of THE HONOURABLE MR. JUSTICE JACKSON-LIPKIN in Court ------------------------------------------------------------------------------------- Coram: M.H. Jackson-Lipkin Date of Judgment: 21st October 1981 Appearances: Mr. Lai for the Plaintiff. Mr. Ribeiro for the Defendant. ----------------- JUDGMENT ----------------- 1. In this case, in a most bizarre fashion, the trial of a so-called preliminary issue was listed before me. The preliminary issue was not in accordance with the form prescribed by known principles. If the preliminary issue had gone forward in this form, evidence would have been required and it would not have settled the case finally. However, due to the common sense of Counsel, this had been resolved by a waiver of procedural irregularities and the handing in of an agreed statement of facts and issue for the decision of the Court signed by both Counsel. 2. The issue arising is simple, whether, on the agreed facts, the Defendants are liable under the annexed contract. The agreed facts are:-
3. Mr. Lai very valiantly and in the face of numerous interruptions put forward a good plea on behalf of the Plaintiff. His point is a simple and straightforward one: There are old rules relating to foreign principals: Bowstead said these rules have been abrogated. I do not think this is right; the rules have been modified. The Law Merchant is changing constantly, for example, as a result of innovations such as the telex. Mr. Lai has urged on me that I should look upon the remarks in the case of Teheran-Europe Co. Ltd. v. S.T. Belton (Tractors) Ltd. (No. 2) [1971] Q.B. 491 as obiter. They are, but they are very persuasive. The "foreign principal rule" has been extensively modified since 1873. 4. The fact that a principal is a foreigner is a consideration, but it is also important to ask where and how the contract was concluded. Here two parties have agreed, with a foreign principal appearing on the face of the contract. I look to see if there is any ambiguity in the contract to enable me to open a door into the minds of the contracting parties. I have had regard to the cases of Miller Gibb & Co. v. Smith Tyrer Ltd. [1917] K.B. 141 the Teheran-Europe case (supra), Reardon Smith Line Ltd, v. Yngvar Hansen-Tangen (trading as 9.E. Hansen-Tangen) [1976] 1 W.L.R. 989. On the other hand, due respect must be paid to Prenn v. Simmonds [1971] 1 W.L.R. 381 and in particular the passages at p. 1384 to which I have referred Counsel. One must also give weight to passages in Halsbury's Laws of England Volume 1 at page 512 paragraph 854 and also at page 496 paragraph 825. 5. In my judgment the wording of the contract is so clear and unambigious as to exclude personal liability of the Defendant. In this respect I pay particular regard to the speech of Cave L.C. in Universal Steam Navigation Co. Ltd. v. James Mckelvie & Co. [1923] A.C. 492; he particularly deals with foreign principals at page 526. I have also taken account of the words of Lord Shaw at page 498 and of Lord Summer at page 501. 6. At first when I saw the word "principals" in the contract I gave more weight to Counsel's submission that the Defendant may be additionally liable. But the word "agents" is also in the plural, so I ought not to attach too much significance to the "s" after "Principal" in 7 places on page 1, 8 places on page 2 and 4 places on page 3 of the contract. What I do regard as important is how the Defendant signed, and the form of signature which the Plaintiff accepted without demur. This is very important. Any pre-contract doubts which the Plaintiff had are irrelevant. The Plaintiff signed against a very clear agency endorsement, stating very clearly that it was intended to exclude the liability of the Defendant entirely. It would lead to a confused and unusual situation if I were to construe it otherwise. There is no ambiguity. The answer to the preliminary issue is, therefore, "no".
Representation: Solicitors: Holman, Fenwick & Willan Chan & Lo Mr. Lai for the Plaintiff. Mr. Ribeiro for the Defendant. |