Carewins Development (China) Ltd v. Bright Fortune Shipping Ltd

FAMV No. 65 of 2007

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 65 OF 2007 (Civil)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV No. 328 of 2006)

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Between:

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FAMV No. 66 of 2007

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 66 OF 2007 (Civil)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV No. 329 of 2006)

_______________________

Between:

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 28 April 2008

Date of Determination: 28 April 2008

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D E T E R M I N A T I O N

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Mr Justice Ribeiro PJ:

1.We are satisfied that three issues of great general or public importance arise in this matter which justify the grant of leave to appeal.

2.The first involves the following question: Where goods are shipped under a straight bill of lading, that is, a bill of lading that is not consigned to “order” but only to a named consignee, does the carrier attract liability for delivering to the named consignee without production of the straight bill of lading?

3.The second  concerns the efficacy or otherwise of the exemption clause appearing in the bill of lading, which is a clause covering subject matter that is almost always found in bills of lading although in varying formulations, to exclude liability arising from the delivery without production of a bill of lading.

4.The third concerns the construction of the “before and after clause” and, in particular, as to the meaning of “discharge”.  In this context, we note that an argument in relation to the correct application of the relevant per-package limitation provisions could possibly arise.

5.Accordingly we grant leave in respect of these questions.

Mr Colin Wright (instructed by Messrs H H Lau & Co) for the Applicants

Mr Benjamin Chain (instructed by Messrs Ho, Tse, Wai & Partners) for the Respondent