Paramount Commercial Co (A Firm) v. Mars Air Freight Ltd

HCA002919/1979

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 2919 OF 1979

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Coram: Hon. LIU, J. in Chambers

Date of Judgment: 11th April, 1980.

On appeal from Registrar's order dated 24th March 1980.

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DECISION

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1. After the reply of Mr. IU, counsel for the plaintiffs, and with his concessions, I find it quite unnecessary to further call upon Mr. Chan, counsel for the defendant.

2. In the Statement of Claim as it stands, the plaintiffs seek relief against the defendant on three fronts, namely, (1) on an alleged contract of carriage by the defendant as a common carrier, (2) on an alleged contract of carriage simpliciter and (3) on an alleged contract of bailment for reward. Having had the advantage of the meticulous submissions of Mr. Chan, Mr. Iu, counsel for the plaintiffs, conceded that there is a triable issue as to whether or not the defendant served as a mere forwarding agent whose liability was at an end upon the parting of possession of goods to Pan Am in Hong Kong. It was further conceded that there is a triable issue as to whether or not after dispatch of goods on an airway bill, the plaintiffs could sue in their capacity of assignors for damages. However, Mr. Iu contended strenuously that from the documents disclosed in these proceedings, the defendant negligently failed to make a declaration of the true or any value of the goods for the carriage by the second carrier, Eastern. It would be quite unnecessary for me to descend into the specifics elaborated by Mr. Chan. Suffice it for me to say that there are indeed these and other triable issues for adjudication. There is much to be said for the proposition that the defendant was a firm of mere freight forwarders exercising functions within a narrow spectrum. In the "Shipper's Instruction For Dispatch Of Goods", the defendant was self-styled "cargo forwarders", and Condition 1 on its reverse side limited its duties to provision of and arrangement for shipment of goods through selected carriers who were to become the plaintiffs' own agents; Condition 9 expressly relieved the defendant of further liability on delivery to the Air-Line.

3. Mr. Chan, counsel for the defendant, further submitted that the Statement of Claim is as well irregular as incomplete, hence, the plaintiffs' application for summary judgment ought never to have been entertained. I do not share counsel's optimism, and I find myself at variance with his analysis of the allegations in the Statement of Claim. Perfection in drafting has yet to be attempted. Admittedly, at least one lacuna will have to be filled so as to found the claim on the defendant's alleged omission to declare value for Eastern's airway bill, but I cannot say that the Statement of Claim, even as it now stands, discloses no good cause of action

4. With the concessions now made by Mr. Iu in the best tradition of the bar, obviously the Registrar's order cannot be supported. Had these concessions been made before the learned Registrar, the order, subject matter of this appeal, would not have been made. It remains for me to order: 1. Appeal allowed; 2. Order of Mr. Registrar Wilson dated 24th of March, 1980 be set aside; 3. The defendant do have unconditional leave to defend; 4. The plaintiffs do have general liberty to amend the Statement of Claim within 14 days from today; 5. The defendant do have 14 days after service of the amended Statement of Claim to file a Defence; 6. Costs up to the filing of Mr. Choi Siu Yiu's affirmation herein on the 4th October, 1979 together with costs of first appearance before the Registrar on the 8th October, 1979 be costs in the cause; 7. Costs of all subsequent hearings before the Registrar including that on the 24th of March, 1980 and of this appeal be costs against the plaintiffs in any event; 8. For the removal of doubt, if any, all hearings before the learned Registrar in connection with this Order 14 application be, whenever applicable, certified fit for counsel.

Representation:

Mr. Thomas Iu instructed by Messrs. King & Co. for Plaintiff (Respondent)

Mr. Edward Chan instructed by Messrs. L.H. Kwan for Defendant (Appellant)