ARKO SHIP LEASING LTD (formerly known as ARKO SATELLITE LTD) AND ANOTHER v. WINSMART INTERNATIONAL SHIPPING LTD AND ANOTHER

ARKO SHIP LEASING LTD (formerly known as ARKO SATELLITE LTD) AND ANOTHER v. WINSMART INTERNATIONAL SHIPPING LTD AND ANOTHER

Court found the 1st Plaintiff was the undisclosed principal of the 2nd Plaintiff for these dealings but there was no clear trade practice requiring declaration of container tare weight, no implied contractual term obliging Winsmart to supply gross container weight, and no proven misrepresentation by Winsmart or Sinokor; the vessel sank due to overloading (gross container weight exceeded the prudent 80% DWT guideline) and master error; accordingly Plaintiffs' claims failed and Defendants' counterclaims succeeded against the 1st Plaintiff.

Citation
ARKO SHIP LEASING LTD (formerly known as ARKO SATELLITE LTD) AND ANOTHER v. WINSMART INTERNATIONAL SHIPPING LTD AND ANOTHER
Parties
1st Plaintiff: ARKO SHIP LEASING LIMITED (formerly ARKO SATELLITE LIMITED); 2nd Plaintiff: YINGGAO SHIPPING (H.K.) LIMITED (formerly ARKO SHIPPING LIMITED); 1st Defendant: WINSMART INTERNATIONAL SHIPPING LIMITED; 2nd Defendant: SINOKOR (Sinokor, ocean‑going carrier)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 October 2015
Case Number
HCAJ213/2009
Procedural Posture
Admiralty Action (court of First Instance, High Court of Hksar) / Judgment on Liability (trial Concluded); Assessment of Quantum and Damages Deferred to Admiralty Registrar
Outcome
Plaintiffs' claims dismissed; interlocutory and liability judgments entered for 1st and 2nd Defendants against the 1st Plaintiff; Defendants' counterclaims succeed on liability; quantum and assessment of damages to be determined separately.
Legal Topics
Misrepresentation, Implied Terms (business Efficacy), Trade Practice on Weight Declaration, Seaworthiness and Safe Carriage, Vicarious Liability, Causation (overloading), Evidence/hearsay and Viva Voce Requirement, Costs and Interlocutory Judgment
Source Language
EN
Admiralty/maritime Law Contract Law Tort (misrepresentation) Negligence Agency Law Bailment/carriage of Goods Misrepresentation Implied Terms (business Efficacy) +6 more

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Parties

ARKO SHIP LEASING LIMITED (formerly ARKO SATELLITE LIMITED)

1st Plaintiff

YINGGAO SHIPPING (H.K.) LIMITED (formerly ARKO SHIPPING LIMITED)

2nd Plaintiff

WINSMART INTERNATIONAL SHIPPING LIMITED

1st Defendant

SINOKOR (Sinokor, ocean‑going carrier)

2nd Defendant

Procedural Posture

Admiralty Action (court of First Instance, High Court of Hksar) / Judgment on Liability (trial Concluded); Assessment of Quantum and Damages Deferred to Admiralty Registrar

Legal Issues

  1. 1 Whether the contracts were concluded with the 1st Plaintiff or the 2nd Plaintiff (identity of contracting party)
  2. 2 Whether trade practice required shippers to declare gross container weight inclusive of container tare
  3. 3 Whether a term should be implied that Winsmart must provide accurate gross container weight based on past dealings

Ratio Decidendi

Court found the 1st Plaintiff was the undisclosed principal of the 2nd Plaintiff for these dealings but there was no clear trade practice requiring declaration of container tare weight, no implied contractual term obliging Winsmart to supply gross container weight, and no proven misrepresentation by Winsmart or Sinokor; the vessel sank due to overloading (gross container weight exceeded the prudent 80% DWT guideline) and master error; accordingly Plaintiffs' claims failed and Defendants' counterclaims succeeded against the 1st Plaintiff.

Court Disposition

Plaintiffs' claims dismissed; interlocutory and liability judgments entered for 1st and 2nd Defendants against the 1st Plaintiff; Defendants' counterclaims succeed on liability; quantum and assessment of damages to be determined separately.

Orders

  • Plaintiffs' claims are dismissed and judgment entered for the Defendants on liability
  • Interlocutory judgment entered in favour of the 1st Defendant against the 1st Plaintiff for damages to be assessed under paragraph (i) of its re‑amended defence and counterclaim dated 9 October 2014