Forsa Multimedia Ltd v. C&C Logistics (HK) Ltd

DCCJ 3467/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3467 OF 2009

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Before: Her Honour Judge Mimmie Chan in Chambers (open to public)

Date of Hearing: 1 April 2011

Date of Delivery of Decision: 1 April 2011

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D E C I S I O N

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1.Under Section 63A(2) of the District Court Ordinance, the court shall not grant leave to appeal unless it is satisfied that the appeal has a reasonable prospect of success. The Court of Appeal has explained that this means that prospects of the appeal succeeding must be reasonable and therefore more than fanciful, without having to be probable.

2.I am not satisfied that the presentation of the original bill of lading, as a contractual provision in the contract of carriage, cannot be waived by Daesan as the party for whose benefit the provision was inserted.  At the trial the Defendant’s own witness acknowledged the common trade practice of the shipper’s agreement to release the goods without production of the original bill of lading. 

3.So far as the carrier, World Road, is concerned, it had acknowledged in the evidence produced at trial that it did not have any right nor any reason to hold the goods, and there was no evidence and no pleading that freight charges were due to World Road under the contract of carriage to which the bill of lading relates, and as such, World Road’s waiver of the presentation of the original bill was not called for.  The second ground of appeal cannot therefore add anything to the merits of the intended appeal.

4.Apart from that, insofar as the Defendant seeks to rely on the language used in the attestation clause, the clause was not even signed to signify its incorporation into the contract of carriage.  Although it was held that that does not affect the document being a bill of lading, I am not satisfied that the second ground of appeal assists the Defendant.

5.Since I am not satisfied that the appeal has a reasonable prospect of success, nor am I satisfied there is any other reason for the appeal to be heard, I will dismiss the application for leave, with costs to the Plaintiff, with certificate for counsel.

Mr Adrian Lai, instructed by Messrs Chak & Associates, for the Plaintiff

Miss Amanda Lee, instructed by Messrs WT Law Offices, for the Defendant

Defendant's application for leave to appeal dismissed by Court of Appeal. Please refer to HCMP683/2011 dated 12 August 2011