Vastfame Camera v. Birkart Globistics
This case concerned a claim against a freight forwarder for the value of cargo carried under an "order" bill of lading issued by the freight forwarder. The cargo had been mistakenly delivered by the freight forwarder’s agent at the port of discharge to a party not entitled to it, without production of the bill. The Court held that the freight forwarder, in issuing the bill, was acting as a principal, and not as an agent, and was therefore liable as carrier. Nor was it entitled to rely on certain exculpatory clauses in the bill, as the wording was unclear. The freight forwarder was held entitled to indemnity from its agent, but there are likely to be problems in practice in enforcing the judgment against the agent
DMC Rating Category: Confirmed
This case note has been contributed by Chris Potts, a partner in the firm Crump & Co., Hong Kong. Crumps are the international contributors to the website for Hong Kong
It was admitted by Moiroud that it did release the goods to HPI without the production of the bill of lading and the Defendant joined it in Third Party Proceedings.
The court entered a judgment in favour of the Plaintiff in the
main action and a judgment in favour of the Defendant in the 3rd
Party Action for US$143,815.00 together with interest and costs.
" Notice is hereby given that the Company is a private ‘freight forwarder’ and /or ‘forward agent’. All transactions and contracts which are entered into with the Company incorporate the company’s printed terms and conditions herewith contained and the Company does not accept any liability of a common carrier"
Conditions 3(i) and 3(ii) stated that:
"(i) The Agent is not a carrier (common or private, actual or contracting), and may on its sole and absolute discretion refuse to other (sic) its service to any person. The Agent does not contract hereunder for the carriage of goods.
(ii) The Agent is a forwarding agent whose principal business is to act as an agent in arranging for the transportation of goods on behalf of Customers from Hong Kong to overseas destinations principally by means of air and sea transportation."
The Defendant submitted that the only obligation undertake by them was limited to arranging for the carriage of goods, the "bill of lading" issued by the Defendant represented "an entirely neutral consideration." They also relied on Scrutton (20th ed.), page 376 which suggests such a "house bill of lading" is "at most a receipt for the goods coupled with an authority to enter into a contract of carriage on behalf of the shipper" and is not a document of title.
The Defendant further relied on Tetley on Marie Cargo Claims (3rd ed.) at 693, which notes, amongst other things, that "merely because a forwarder issues a document entitled ‘bill of lading’ does not necessarily mean that the forwarder is the carrier". As neither the Plaintiff nor the Defendant intended that the Defendant would assume the obligations of a contractual carrier, coupled with the facts that no freight charged was received by the Defendant apart from a sum of US$150 payable in terms of profit share by its co-operation partner, Moiroud, the relationship between the Plaintiff and the Defendant should be classified as an agency relationship only.
Furthermore, the court upheld and adopted the principle in The "Starsin"  2 WLR 711 (HL) which says that when a bill of lading contains on its face an apparently clear and unambiguous statement of who is the carrier, it is difficult to accept that the shipper would expect to have to resort to the detained conditions on the reverse of the bill in an attempt to discover with whom he was contracting.
2. Exclusion and limitation provisions
Clause 24(i)(a) read:
whilst Clause 24(iii) read:
It was submitted that the quantum limited according to clause 24 (iii) (b) would be HK$344,000 (688 cartons times $500 per carton) or US$50,000, approximately.
The court accepted the invoice value as evidence of the sound arrived value, it went on to say that instead of clause 24(iii) (b) as relied on by the Defendant, Clause 24(iii) (a) should apply and the invoice value of the relevant goods calculated on an FOB (Free on Board) basis represented the normal measure of loss in claims for delivery of goods without production of a bill of lading. The words "whichever be the lesser" in (b) referred to the two alternatives in (b) itself and not to the lesser of the results of (a) and (b).
Third Party Action
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