This action arose out of a misdelivery claim in respect of computer accessories in seven containers. In September and October 2014, the plaintiff, a Samoa-incorporated company based in Taiwan, sold the cargo to Esdida Ltd (Esdida), a Cyprus company related to the plaintiff's end buyer, Koodoo Technologies (Koodoo), for a total amount of USD 1,412,584.47. Sales invoices were issued by the plaintiff to Esdida, whilst Koodoo remained the ultimate buyer. The plaintiff, through its agent, Western Shipping (HK) Ltd, placed shipping orders with the first defendant to arrange for the transportation of the cargo from Hong Kong to Kotka, Finland. Between October-November 2014, seven combined bills of lading were issued by the first defendant as carrier to the plaintiff as shipper. The cargo was shipped from Hong Kong via Hamburg to Kotka in two shipments: four of the containers were carried in October 2014 on the YM Uniform; the remaining three containers in November 2014 on the Helsinki Bridge. The cargo was carried by two sea-legs, from Hong Kong to Hamburg, and then from Hamburg to Kotka.

The first defendant contacted Yang Ming Transport Corp (Yang Ming), the actual ocean carrier, represented by its agent, Yang Ming Line (HK) Ltd. In respect of the arrangement between the first defendant and Yang Ming, two ocean bills of lading were issued by Yang Ming as carrier and the first defendant named as the shipper, with one bill for the YM Uniform containers and one for the Helsinki Bridge containers. The containers arrived at Kotka on 8 November and 11 December 2014. Following the discharge of the containers, they were released by the first defendant and Yang Ming to the second defendant, Net Logistic JVM Oy, a Finnish company nominated as the consignee, without presentation of any of the original combined bills of lading. The cargo was eventually delivered to the ultimate buyer, Koodoo.

The plaintiff claimed USD 1,299,189.87 from the first defendant, representing the invoice value of the cargo, and deducting part payment from Koodoo. The plaintiff argued that the first defendant had breached the terms of the carriage contract, was negligent and/or breached its duty of care, and had breached the presentation rule: Carewins Development (China) Ltd v Bright Fortune Shipping Ltd [2009] HKCFA 45 [21]-[23] (CMI554).

The first defendant contended, among other things, that the plaintiff's claim was time-barred under art 3.6 of the Hague-Visby Rules.

Held: The plaintiff has succeeded in establishing the first defendant's liability. However, the plaintiff has failed to establish that it suffered the loss and damage claimed. In consequence, its claim for damages is dismissed. The plaintiff is awarded nominal damages in the sum of HKD 1,000. The plaintiff's claim against the second defendant is dismissed.

The plaintiff relied principally on the Court of Appeal judgment of Cheong Yuk Fai v China International Freight Forwarders (HK) Co Ltd [2005] HKCA 528 [30]-[50] (CMI1144) for the proposition that Hague-Visby Rules obligations only apply during ocean carriage and discharge operations, and not during carriage or handling after discharge from the vessel. Furthermore, the plaintiff argued that the first defendant could not bring itself within the wording of art 3.6 of the Hague-Visby Rules, because this is not a case where the goods were either delivered or should have been delivered by an identifiable date.

The first defendant sought to distinguish Cheong Yuk Fai and Trafigura Beheer BV v Mediterranean Shipping Co SA [2007] EWCA Civ 794 (CMI36), and relied on The Alhani [2018] EWHC 1495 (Comm) (CMI154) for the proposition that Hague-Visby Rules obligations do apply to misdelivery.

The Alhani case was unique in that the cargo (bunker fuel) was discharged and misdelivered at the same time. Although the Cheong Yuk Fai case involved a land leg, this makes no appreciable difference. There is no evidence from the first defendant as to how and when Yang Ming parted with the cargo, or how and when the cargo was then handed to the second defendant. However, whatever the situation might have been, this Court is bound by Cheong Yuk Fai, and there is no evidence that the eventual transmission of the cargo to the second defendant was part of the 'discharge operations'. There is also no evidence of any date when the cargo 'should have been delivered'.

The first defendant's reliance on the Hague-Visby Rules time bar thus fails.

Considering the particular facts of this case, where the cargo was in fact delivered to the correct buyer (Koodoo), and where it is undisputed that the buyer then made at least part payment to the plaintiff, it is incumbent upon the plaintiff to prove that it had in fact suffered loss and damage as a result of the misdelivery. The evidence unequivocally discloses that full payment was made for the seven containers in question.