ESGAME CO LTD v. FREIGHT OVERSEAS CO LTD AND ANOTHER

ESGAME CO LTD v. FREIGHT OVERSEAS CO LTD AND ANOTHER

The court struck out Freight Overseas Company Limited (FOCO Hong Kong) because the bills of lading plainly named FOCO Taiwan (Qian Sheng) as the contractual carrier and the evidence established FOCO Hong Kong and FOCO Taiwan were separate legal entities; FOCO Hong Kong was therefore wrongly joined and must be removed as party. The Plaintiff was permitted to amend to substitute FOCO Taiwan as defendant. Questions on limitation/time bar and applicability of terms on the reverse of the B/Ls were left for FOCO Taiwan to raise when properly served.

Citation
ESGAME CO LTD v. FREIGHT OVERSEAS CO LTD AND ANOTHER
Parties
Plaintiff: Plaintiff; 1st Defendant: Freight Overseas Company Limited (FOCO Hong Kong); 2nd Defendant: Marine Power Company Limited
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
27 July 2007
Case Number
DCCJ1845/2006
Procedural Posture
Civil: Contract of Carriage / Bailment (goods), Maritime / Interlocutory Application to Strike Out Party and for Time Bar; Hearing of Strike Out Application
Outcome
Name of 1st Defendant Freight Overseas Company Limited struck out as party; Plaintiff allowed to reinstate the actual carrier FOCO Taiwan by re-amending pleadings; time-bar and applicability of terms on the back of the bills reserved; costs nisi to Applicant.
Legal Topics
Bills of Lading, Contract of Carriage, Jurisdiction and Service Out of Jurisdiction, Striking Out a Party, Limitation/time Bar, Piercing the Corporate Veil, Agency
Source Language
EN
Maritime Law Contract Law Civil Procedure Company Law Commercial Law Bills of Lading Contract of Carriage Jurisdiction and Service Out of Jurisdiction +4 more

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Parties

Plaintiff

Plaintiff

Freight Overseas Company Limited (FOCO Hong Kong)

1st Defendant

Marine Power Company Limited

2nd Defendant

Procedural Posture

Civil: Contract of Carriage / Bailment (goods), Maritime / Interlocutory Application to Strike Out Party and for Time Bar; Hearing of Strike Out Application

Legal Issues

  1. 1 Whether FOCO Hong Kong was properly joined as the carrier named on the bills of lading
  2. 2 Whether the Plaintiff's claims are time-barred under District Court Rules Order 15 r.16(2)(a) and Order 18 r.19(1)
  3. 3 Whether the corporate veil can be pierced to treat FOCO Hong Kong and FOCO Taiwan as the same entity

Ratio Decidendi

The court struck out Freight Overseas Company Limited (FOCO Hong Kong) because the bills of lading plainly named FOCO Taiwan (Qian Sheng) as the contractual carrier and the evidence established FOCO Hong Kong and FOCO Taiwan were separate legal entities; FOCO Hong Kong was therefore wrongly joined and must be removed as party. The Plaintiff was permitted to amend to substitute FOCO Taiwan as defendant. Questions on limitation/time bar and applicability of terms on the reverse of the B/Ls were left for FOCO Taiwan to raise when properly served.

Court Disposition

Name of 1st Defendant Freight Overseas Company Limited struck out as party; Plaintiff allowed to reinstate the actual carrier FOCO Taiwan by re-amending pleadings; time-bar and applicability of terms on the back of the bills reserved; costs nisi to Applicant.

Orders

  • Strike out the name of Freight Overseas Company Limited (FOCO Hong Kong) as 1st Defendant
  • Plaintiff permitted to reinstate FOCO Taiwan (Qian Sheng) as 1st Defendant by re-amending the writ and statement of claim