Hong Kong: Legal development - misdelivery claims


Published: 11 April 2014

The Association is grateful to Ken T.C. Lee, Barrister-at-law in Hong Kong for contributing to this update.

In a recent court decision in Hong Kong it was held that where a terminal had mis-delivered cargo, the contractual carriers were not able to rely on time bar exclusions within the bills of lading when suit was brought against them by the cargo side. Furthermore the cargo claimant was entitled to summary judgment, although the contractual carriers were able to limit liability to a per kg limitation sum.

The cargo concerned was a high value consignment of computer consoles, and there is evidence that a fraudster was involved in procuring delivery of the cargo from the terminal to an unauthorised receiving agent.

The Judge approached the liability of the contractual carrier defendants in this case as almost strict in terms of loss of or damage to the cargo in their care under the terms of the bill of lading. There was also a view that where there was sub-contracting by the contractual carriers, then they need to ensure the sub-contractors comply with the same high standards.

This case highlights the very strict attitude that courts take towards mis-delivery situations, where the carrier - irrespective of their own contractual / sub-contracting arrangements - are held directly responsible to cargo interests for the failure to deliver the cargo to the right receiver. Even though actual delivery was effected by the sub-contracted terminal.

The advice would be that in case of doubt as to the identity of the true receiver, it may be better to delay delivery than to risk delivery to an unauthorised receiver. Where Members are concerned or in doubt they should contact the Association, and in case of urgency a Master should not hesitate to seek assistance from local correspondents.

If practical, it can be useful to pre-agree with charterers and shippers that actual details of the receiver / the receiver's delivery agent are supplied in advance, including mobile phone numbers and Government issued picture identification documents like the picture page of a passport.

In the meantime the Association has advised in detail on fraud risks in the maritime industry in the following Loss Prevention Guide.

In case Members have further queries, they are asked to contact the Association.