ERICSSON LTD AND ANOTHER v. KLM ROYAL DUTCH AIRLINES AND OTHERS

ERICSSON LTD AND ANOTHER v. KLM ROYAL DUTCH AIRLINES AND OTHERS

On the balance of probabilities the court found both thefts involved inside involvement by HACTL employees; that finding satisfied Article 25 intent limb enabling plaintiffs to break Article 22 limits; the AWC/Guadalajara do not preclude concurrent common law claims against agents where domestic law creates liability; plaintiffs' writ indorsements were sufficiently broad to stop time under Article 29; KLM (actual carrier) and ASG Sweden (contracting carrier) were liable and may not invoke Article 22 limits for these losses; HACTL must indemnify KLM and ASG Sweden under their contractual arrangements; claims against ASG Hong Kong and JASL dismissed.

Citation
ERICSSON LTD AND ANOTHER v. KLM ROYAL DUTCH AIRLINES AND OTHERS
Parties
1st Plaintiff: Ericsson Limited; 2nd Plaintiff: Ericsson Mobile Communications AB; 1st Defendant / Actual Carrier / 1st Third Party: KLM Royal Dutch Airlines; 2nd Defendant / Division (no Separate Legal Personality): KLM Cargo; 3rd Defendant / Contracting Carrier: Danzas AEI Continental AB (formerly ASG Air & Sea AB); 4th Defendant / Local Freight Forwarder: APC Asia Pacific Cargo (H.K.) Limited (formerly ASG Hong Kong Ltd); 5th Defendant / Cargo Terminal Operator / PACCO Operator: Hong Kong Air Cargo Terminals Limited (HACTL); 6th Defendant / Document Handling Agent: Jardine Airport Services Limited (JASL)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 December 2005
Case Number
HCCL202/1999
Procedural Posture
Commercial Action (hccl 202/1999 and HCCL 2/2000) / Judgment After Trial (reasons Delivered)
Outcome
Judgment for plaintiffs: Article 22 limit broken in both actions; judgments entered for 2nd plaintiff in the claimed invoice amounts against 1st (KLM), 3rd (ASG Sweden) and 5th (HACTL) defendants; claims against 4th (ASG Hong Kong) and 6th (JASL) defendants dismissed; HACTL ordered to indemnify KLM and ASG Sweden;...
Legal Topics
Amended Warsaw Convention (awc), Guadalajara Convention, Article 25 Breaking Limit, Article 29 Time Bar, Agency and Vicarious Liability, Limitation of Liability (article 22), Contribution (civil Liability (contribution) Ordinance), Quantum of Damages
Source Language
EN
Carriage by Air International Convention Law Contract Law Tort (negligence and Bailment) Contribution and Indemnity Amended Warsaw Convention (awc) Guadalajara Convention Article 25 Breaking Limit +5 more

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Parties

Ericsson Limited

1st Plaintiff

Ericsson Mobile Communications AB

2nd Plaintiff

KLM Royal Dutch Airlines

1st Defendant / Actual Carrier / 1st Third Party

KLM Cargo

2nd Defendant / Division (no Separate Legal Personality)

Danzas AEI Continental AB (formerly ASG Air & Sea AB)

3rd Defendant / Contracting Carrier

APC Asia Pacific Cargo (H.K.) Limited (formerly ASG Hong Kong Ltd)

4th Defendant / Local Freight Forwarder

Hong Kong Air Cargo Terminals Limited (HACTL)

5th Defendant / Cargo Terminal Operator / PACCO Operator

Jardine Airport Services Limited (JASL)

6th Defendant / Document Handling Agent

Procedural Posture

Commercial Action (hccl 202/1999 and HCCL 2/2000) / Judgment After Trial (reasons Delivered)

Legal Issues

  1. 1 Whether the AWC/Guadalajara constitute an exclusive code precluding common law claims against carrier's servants or agents
  2. 2 Whether plaintiffs' Convention claims were time-barred under Article 29
  3. 3 Temporal scope of liability of an actual carrier (when carriage continues while goods are 'in charge of the carrier')

Ratio Decidendi

On the balance of probabilities the court found both thefts involved inside involvement by HACTL employees; that finding satisfied Article 25 intent limb enabling plaintiffs to break Article 22 limits; the AWC/Guadalajara do not preclude concurrent common law claims against agents where domestic law creates liability; plaintiffs' writ indorsements were sufficiently broad to stop time under Article 29; KLM (actual carrier) and ASG Sweden (contracting carrier) were liable and may not invoke Article 22 limits for these losses; HACTL must indemnify KLM and ASG Sweden under their contractual arrangements; claims against ASG Hong Kong and JASL dismissed.

Court Disposition

Judgment for plaintiffs: Article 22 limit broken in both actions; judgments entered for 2nd plaintiff in the claimed invoice amounts against 1st (KLM), 3rd (ASG Sweden) and 5th (HACTL) defendants; claims against 4th (ASG Hong Kong) and 6th (JASL) defendants dismissed; HACTL ordered to indemnify KLM and ASG Sweden;...

Orders

  • Judgment entered in favour of 2nd plaintiff (Ericsson Mobile Communications AB) against 1st, 3rd and 5th defendants for HK$4,130,000 (first theft) and HK$12,352,000 (second theft) respectively
  • Claims by plaintiffs against 4th defendant (ASG Hong Kong) dismissed