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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Cosco Container Lines Company Ltd v Batchford (t/a County Contractors) & Anor [2013] EWHC 840 (QB) (24 April 2013) URL: http://www.bailii.org/ew/cases/EWHC/QB/2013/840.html Cite as: [2013] EWHC 840 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(sitting as a Judge of the High Court)
____________________
COSCO CONTAINER LINES COMPANY LIMITED |
Claimant |
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- and - |
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ROBERT JOHN BATCHFORD (trading as County Contractors) GUNTER SCHELLER (trading as Kent International Freight Services UK Ltd.) |
Defendants |
____________________
Shomik Datta (instructed by BTMK Solicitors LLP) for the first defendant
The second defendant did not appear and was not represented
Hearing dates: 18, 19, 20, 21, 22 and 25 March 2013
____________________
Crown Copyright ©
His Honour Judge Richard Seymour Q.C. :
Introduction
"It follows that where the agent upon whose "apparent" authority the contractor relies has no "actual" authority from the corporation to enter into a particular kind of contract with the contractor on behalf of the corporation, the contractor cannot rely upon the agent's own representation as to his actual authority. He can rely only upon a representation by a person or persons who have actual authority to manage or conduct that part of the business of the corporation to which the contract relates."
The evidence in relation to liability
"We have to load a total of 9x 40' HC [that is, high cube] containers this week, all with 25 to[nne] payload of building blocks in bales.
4 are from Witney, Oxon OX29, 2 from Church End, Herts and 3 from Chelmsford CM1.
POD [Port of discharge] is Haiphong/Vietnam.
Please advise your best rates and check availability of equipment."
"Above rates do not apply for shipment of dangerous cargo, smelling and obnoxious cargo, and commodities that can be [sic] damage the container. Commodities such as scrap, wastes, used motors, used monitors and TVs."
"Many thanks for your prompt quotation. We are pleased to place some of the bookings with yourselves as follows:
Please place 2x40' HC containers on Wednesday, 26.5.2010 at 13.00h and 14.30h resp[ectively] at
Country [sic] Contractors
Unit 5b
Hadham Industrial Estate
Church End
Little Hadham, Ware, Herts SG11 2DY
Tel. 07767478937 contact Bob after arrival on this mobile
And 3x40' HC containers on Friday, 28.5.2010 at 09.00h, 10.30h and 12.00h resp. at
Country [sic] Contractors
25 Beachs Drive
CM1 2NL Chelmsford
Tel. 07767478937 contact Bob after arrival on this mobile
Each container to be loaded with 32 bales of building blocks totalling 25 to[nne] ea[ch] for shipment with next available vessel from Felixstowe to Haiphong/Vietnam on prepaid basis as per your quotation of today.
Kindly let us have your booking confirmation and intended schedule."
"The merchants agree to be bound by the terms and conditions of this Bill of Lading as if each had personally signed this Bill of Lading."
"1. DEFINITIONS
"Carrier" means COSCO container lines company limited.
"Merchant" includes the consignor, the shipper, the receiver, the consignee, the owner of the Goods, the lawful holder or endorsee of this Bill of Lading, or any other person having any present or future interest in the Goods or this Bill of Lading, or anyone authorized to act on behalf of any of the foregoing.
…
2. CARRIER'S TARIFF
The terms of the Carrier's applicable Tariff and other requirements regarding charges are incorporated into this Bill of Lading. Particular attention is drawn to the terms contained therein, including, but not limited to, free storage time, Container and vehicle demurrage, etc. Copies of the relevant provisions of the applicable Tariff are obtainable from the Carrier or his agents upon request. In case of any inconsistency between this Bill of Lading and the applicable Tariff, this Bill of Lading shall prevail.
…
12. MERCHANT'S RESPONSIBILITY
(1) The parties defined as "Merchant" in clause 1 hereof shall, where applicable, be jointly and severally liable to the Carrier for the due fulfilment of all obligations undertaken by any of them under this Bill of Lading.
(2) The Merchant warrants to the Carrier that the particulars relating to the Goods as set forth on the front of this Bill of Lading have been checked by the Merchant on receipt of this Bill of Lading and that such particulars, and any particulars furnished by or on behalf of the Merchant, are adequate and correct. The Merchant also warrants that the Goods are lawful Goods and are not contraband.
(3) The Merchant shall indemnify the Carrier against all liabilities, costs, losses, damages, fines, penalties, expenses or other sanctions of a monetary nature arising or resulting from any breach of the warranties in Clause 12(2) hereof or from any other cause in connection with the Goods for which the Carrier is not responsible.
…
13. FREIGHT AND CHARGES
(1) All Freight shall be deemed fully, finally and unconditionally earned on receipt of the Goods by the Carrier and shall be paid and non-returnable in any event whatsoever.
…
(4) If the Merchant's description of the Goods in this Bill of Lading or in any document or certificate furnished to the Carrier by or on behalf of the Merchant shall prove to have been inaccurate, incorrect or misleading in any respect, the Merchant shall pay for the actual damage suffered by the Carrier.
…
(6) The parties defined as Merchants in clause 1 hereof shall, where applicable, be jointly and severally liable to the Carrier for payment of all Freight, demurrage, General Average and charges, including, but not limited to, court costs, expenses and reasonable attorney's fees incurred in collecting sums due [to] the Carrier, failing which shall be considered a default by the Merchant in payment of Freight and charges.
…
19. MATTERS AFFECTING PERFORMANCE
If at any time the carriage is or is likely in the judgment of the Master to be affected by any hindrance, risk, delay, difficulty or disadvantage of any kind, other than the inability of the Goods to be safely or properly carried or carried further, and howsoever arising (even though the circumstances giving rise to such matters as stated above existed at the time this contract was entered into or the Goods were received for shipment), the Carrier (whether or not the carriage is commenced) may, at his sole discretion and without notice to the Merchant:
…
(3) abandon the carriage of the Goods and place the Goods at the Merchant's disposal at any port or place where the Carrier may deem safe and convenient, whereupon the responsibility of the Carrier in respect of such Goods shall entirely cease. The Carrier shall nevertheless be entitled to full Freight on the Goods received for shipment, and the Merchant shall pay any additional costs of the carriage to, and delivery and storage at such port or place.
…
26. LAW AND JURISDICTION
(1) This Bill of Lading is governed by the laws of the People's Republic of China. …"
"Regarding to those goods contained in the above-mentioned containers, we have offered the price of RMB 3,000 per Unit to buy them.
Please be specially reminded that all of those goods have been picked up already; please kindly take note, thank you very much!"
Obviously the rate of exchange as between sterling and RMB fluctuates, but in recent times seems to have hovered around £1 = 10 RMB. It thus appears that the contents of each container was sold for the equivalent of about £300. For reasons to which I shall come, it appears that the Sold Goods were delivered to Ocean Luck between 21 and 26 September 2010.
"We refer to the above mentioned B/Ls and we have repeatedly requested outstanding payment through your freight forwarder Kent International Freight Services (UK) Ltd. your [sic] behalf and until to date you / or your agent failed to respond and / or settle the outstanding charges which have now reached a [sic] the amount GBP 167,830.15. As your agents can avoid liability claiming to be acting as your agents, all invoices raised in their name have now been re-issued into the name of their principals and / or the shippers named for these mis-declared consignments."
"Please find your returned invoices these are for Kent International Ltd. and Rasmus Flemmart Kjelgaard Peterson [sic].
1. We only loaded containers on Rasmus instruction, my payment was only loading charge for fork lift and ramp hire which was paid by yard at which we loaded.
2. Rasmus as the seller took all instructions from buyer and shipper, which is Yap Yoon in USA company name
JD1, LLC 1002 75T, Sioux City Iowa 51101 USA.
3. Rasmus dealt with all Yap shipping around the world, all payments for shipping where [sic] paid to him and Gunter at Kent International, or Rasmus bank account at Lloyds TSB London.
4. On this next point we have no written contract with Cosco or Gunter or Rasmus, we have not booked nothing [sic] with your company.
5. There is no way we would book containers at these prices you are saying we owe in these returned invoices.
6. We think Rasmus and Gunter where [sic] insider dealing at his company.
7. As for these 75no. containers where are they now in Haiphong port? We were told all containers were going to Hong Kong or Port Kelang.
We will try to help to resolve this problem amicably however not at my cost as we have not made one penny out of this deal as all buyers paid them and they paid your company."
"For clarity I need to make clear that my company has and never has been was [sic] anything other than an Agent that loaded the containers with the baled tyres under instruction from Kent International Freight Services who indentified [sic] the buyers and recieved [sic] all monies from the transactions. My company has never been paid nor were we aware that the B/L showed us or the tyres in an incorrect way.
In light of the above we must make clear that your debt sits with Kent International Frieght [sic] Services and not with us. We never have had nor were we ever aware of what a B/L contained nor ever authorised our company to be held out as the shipper.
On behalf of County Contractor [sic]
Regarding the product description, once again this was totally controlled by the FW."
"Broadly, our client's position can be summarised as follows:-
1. Our client runs a business in waste management, and most specifically undertakes the recycling of rubber tyres. Historically our client used [to] collect scrap tyres from his various contacts in the UK and then shred them.
2. More recently our client invested in a tyre baler and began turning scrap tyres into tyre bails [sic] for export. As you are no doubt aware tyre bails [sic] are used by the construction industry in the UK, and for a variety or [sic] reasons overseas. Our client manufactured these tyre bails [sic] to a PAS108 size and standard. Our client concentrated his efforts on preparing tyre bails [sic] for export.
3. Our client instructs that his involvement with the export of tyre bails [sic] was limited to loading containers in the UK and at his premises. At no point was he involved in arranging or contracting with any shipping lines or similar. He certainly never instructed your client under the disputed bills of lading.
4. It is our client's position that Mr. Rasmus Kjelgaard-Petersen and Mr. Gunter Scheller were responsible for all of the logistics and paperwork necessary to export the tyre bails [sic]. Unfortunately it seems that these individuals have used our client's name as the shipper, and this is simply not correct.
5. These two individuals carried on business as Eco Euro Waste and our client would therefore contend that these two individuals were the shippers in this matter, and that your client's claim should correctly be directed at them.
6. Our client was at all times aware of the legislation and regulations applicable to the export of tyre bails [sic]. It was our client's belief throughout his involvement with the export of tyre bails [sic] that they were being exported to permitted countries. However, we would reiterate that our client's involvement did not go any further than loading the bails [sic] into containers for exportation, in accordance with instructions.
7. It therefore follows that our client believes that Mr. Kjelgaard-Petersen and Mr. Scheller may have falsified records, re-routed cargo without our client's knowledge to blacklisted destinations and attempted to defraud our client. Our client instructs that at all times the Annex 7 documents and bills of lading were raised and controlled by them.
8. We are instructed that two other shipping lines, CMA and Hang Jin, have raised a similar complaint with our client and that they have found our client to be blameless."
"(a) as part of the First Defendant's waste management business, he formerly shredded tyres;
(b) costs of this process were increasing in about 2008 to 2009 and so he purchased and imported a tyre baler from the USA in order instead to recycle tyres into tyre bales which would be used (inter alia) in the construction industry and for building sea defences …
(c) tyre bales were accordingly created by the First Defendant to conform to recognised industry standards (BSI PAS 108);
(d) at or around the time of the purchase of the tyre baler (in the USA) the First Defendant was introduced to a businessman called Yap Yoon (also known as Mr. Yap), who operated a company called JD1 incorporated in Sioux City, Iowa, and who was involved in the export of tyre bales to markets in Asia;
(e) at the material time, the First Defendant was operating under the instructions of Mr. Yap, who was the buyer and shipper of the relevant tyre bales;
(f) the First Defendant's involvement in the process was limited to manufacturing the tyre bales and supplying them to Mr. Yap by loading the same into containers in accordance with the instructions of Mr. Yap's freight forwarders;"
"the First Defendant also understands that as well as acting as forwarders for Mr. Yap, the Second Defendant and Mr. Kjelgaard-Peterson [sic] may have been trading on their own account (as exporters of tyre bales) under the trading style Eco Euro Waste, but it is not known whether such trading relates to any of the containers in question herein;"
"to summarise, the First Defendant's only involvement with any containers relevant to the claims herein was to load the same with tyre bales he had manufactured on the instruction of the Second Defendant and/or Mr. Kjelgaard-Peterson [sic] for and on behalf of Mr. Yap;"
"Hope all is well. As you can see the 10 containers you last shipped were very expensive. I am working with Rasmus to try to get better shipping rates. Please continue loading containers with heavy weight to offset high shipping costs. Thanks again. If you need to reach me I am currently in the states. My number is 712-577-1126."
"16. During the trip to America I met a gentleman called Wally Welander. He was the sales manager at Eagle International (the seller of the baler). Out of interest I asked him how the tyre bales were moved around in America and he said that construction using tyre bales was only allowed in certain states.
17. Wally told me that every time someone bought a baler from him he put them in contact with Yap because Yap dealt in scrap tyre bales. Wally said to me that he thought that Yap Yoon paid around $500 per container in the USA.
18. Wally provided me with a contact number for Yap Yoon. He said that Yap was in the recycling business and had contacts all over the world. I thought to myself that this would be great for my future business.
19. I made contact with Yap by telephone to see if he would be able to take bales from me. He would then, using his contacts, dispose of the bales with his clients in and around Asia. I wasn't too interested in the intricacies of his business, I was just happy to have found a contact that could take the bales from yard.
During the telephone call he explained the whole process of exporting tyre bales to me. He said that he could find destinations all across the world for tyre bales. At this time I was under the impression that tyre bales were a construction commodity (used in flood defences, road construction and building construction) and that they could be moved freely across the world as explained in the PAS108 Specification Pamphlet.
20. I asked Yap what the market was for tyre bales and he said that the market value was constantly moving. He said that he would not be able to pay me the same amount as he pays to people in America because of the shipping charges. He told me to find out what the UK haulage, terminal handling and tax charges would be and then come back to him.
21.I then contacted Paul Bond at Transmotions, a small freight forwarder based in Essex. I understand that Paul then spoke to Yap's shipping agent and they discussed the likely charges.
We came to an agreement (via Paul) that Yap was going to pay the shipping freight (from the point of departure in the UK to its international point of arrival). I was to pay the UK haulage, terminal handling charges and taxes.
22. I would collect tyres from various places in my local area and I would typically be paid between £1 - £1.50 per tyre by my clients. …
23. I started shipping from my premises with Yap in around 2006/2007 [which Mr. Batchford corrected when he came to verify his statement to 2008/2009] under the arrangement set out above."
"I was paid by my clients (mostly tyre centres and garages) for collecting tyres from their premises. In that payment I would factor in the costs of actually collecting and then recycling the tyres and then paying for the UK haulage fees to have them taken away from my premises. Whatever was left after I had paid the above fees was my profit for the job. This all took place at my own yard at 25 Beeches Drive, Chelmsford."
"I would only get paid by my customer for loading the containers. I attach at pages 44 to 62 copies of the sort of invoices that I provided to my clients. I had no involvement at all with the shipping lines or shipping costs. My involvement ended once the containers left either my or my client's premises."
"Under the terms of FCL/FCL, the captioned laden containers were shipped per vessels from Felixstowe to Hong Kong for transhipment to final destination port: Hai Phong, Vietnam. However, it was then turned out that some other containers from the same shipper previously shipped to Hai Phong had been abandoned in the carrier's container yard, and that such containers were found to contain Used Tyres instead of the declared goods: Building Blocks. Parties concerned therefore suspected the goods in these containers were also Used Tyres instead, and requested us to hold a survey on the goods in this port later."
"12. Immediately the Witney information came into my hands I reported the matter to the Claimant who instructed that the shipments still short of Hong Kong should be inspected there. There is now produced and shown to me marked KL1 (pages 1 to 9) the inspection survey report prepared at Hong Kong in connection with the contents of the containers seized there. Pages 3 to 9 are a series of photographs showing the contents of the containers as seen upon inspection, fee note and labour charges. Those photographs were sent by the inspector to Captain Feng Chonggang at Claimant's Shanghai office and then forwarded by Claimant to me by email."
"On 2 August 2010, we attended at the carrier's container depot located as above where we found the containers were apparently sound with original seals intact. Together with staff members of the depot, we had the container doors opened and inspected the contents in situ without removing the contents. After inspection, we found all five containers contained no Building Blocks but Used Tires/Tyres instead."
"CMA CGM entered into various contracts of carriage (the 'Contracts') between it, the Shipper and the Shipper's Agent as detailed in Schedule 1, (the 'Cargo'), in consideration for which payment of the agreed freight and pre-carriage charges as listed would be made to CMA CGM by the Shipper and/or the Shipper's Agent"
"We had duly provided you with shipping instructions to establish bills of lading for the shipment above. After having approved these documents, we are obliged to ask you to modify the following data:
[Manuscript details of the changes]
We hereby undertake to hold Messrs. CMA CGM, its underwriters, subsidiaries, agencies, sub-agencies, all their representative directors and employees harmless in respect of any liability, loss or damage of whatsoever nature which you may sustain in respect with your complying with our instructions and confirm that we shall not make any claim, nor issue any proceedings for wrongful delivery of cargo."
"We herewith request amendment of Bill of Lading as per attached letter of indemnity with all relevant details."
"I enjoyed talking to you earlier today. It was a long call, but I am sure well worth in view of things to come …
As you know we have used only 3 different shipping lines so far for the 153 containers: CMA CGM, COSCO and Hanjin.
Hanjin have advised demurrage for 1 container HJCU 1341220 is USD 260 – to date.
Demurrage on the other s/ment with 8 containers will start on 9.8.2010 at USD 30,- per 40' HC per day.
The rate for the other two lines will be similar per day.
Obviously, the question of demurrage is an issue and probably a stumbling block for your negotiations with Shin as it will add up to a bit of money by the end of the day as and when (and if) the containers are being released for delivery. Strictly speaking, this would be Yap's responsibility, but will we ever hear from him again …?"
"Here are the B/L copies or drafts of all containers which already arrived at Haiphong.
As already mentioned over the phone earlier we only work with draft or proforma B/L's. Once the freight is paid the containers will be telex-released from the line,
and no originals need to be presented anywhere. This is the economical way of dealing with it, it saves you sending couriers backwards and forward.
Will send you the remaining B/L for shipments which are still on the water by separate mail."
"And here are the copies of the B/L drafts of the remaining containers which are currently on the water. Some of them may have arrived over this last week or are due any day now – I have not been able to check that on the various tracking websites."
"We would like to take this opportunity to introduce ourselves as the freight forwarder involved in the shipment of 153 x 40' HC containers from U.K. to Haiphong in close co-operation with Bob Batchford of County Contractors, Chelmsford.
I think Bob has already explained to you the unfortunate circumstances we find ourselves in after the freight charges for all of these boxes have not been paid and the actual client has disappeared for something like 3 weeks now without making any contact and not being contactable at all.
We are obviously delighted to hear that there is a very real possibility that you will take the containers instead as the new consignee after amending the documents accordingly. As some of these containers have already arrived in Haiphong and incur demurrage it is important to move this forward as quickly as possible in order to minimise further costs."
"If we don't get much further with the Japanese Shin tomorrow and I don't get a reply from that Nanning factory in China of which you provided the number we have to apply plan C.
Before we do that I believe you should go back to where you got the initial contact with Yap from – Rasmus tells me you got it from an American guy. He may have an idea of Yap's whereabouts. I phoned that number in U.S. which you provided – I got an automated recording that the mailbox is full and cannot take any more messages.
All very funny.
Plan C involves you (maybe along with me although I can't really go away from here under the circumstances) going over the weekend or Monday down to Haiphong, spend a night there, get a taxi the next morning to the address mentioned on the B/L and find out what is going on with these containers and where Yap is. …"
"56. It is correct that I travelled to Vietnam on Monday 20th September 2010. I was invited by Miss Chung to go there.
57. The purpose of this trip was to meet Miss Chung, a new buyer for the containers originally meant for Yap. Miss Chung was a contact provided by Gunter and Rasmus via EcoWaste this is the company that they used to sell the containers. This is the company that they advertised the containers for sale under on the internet. At pages 71 to 77 are e mails and adverts showing that Gunter and Rasmus were trading as Eco Euro Waste. Gunter calls himself 'Operations Manager' in these e mail [sic].
58. Whilst in Vietnam I met with Miss Chung and we discussed the containers. She introduced me to two people called Jack and Kim. Both of these individuals were running large companies dealing with recycling materials from around the world.
59. In this meeting Miss Chung, Jack and Kim told me that they wanted to buy the containers. I said that they had to deal with Gunter and Rasmus and they held the shipping documentation. They wanted to speak to me in person about how the containers were loaded in the UK and exactly what was in the containers. I was able to show them photographs. I thought that we would be visiting the containers with the buyers and so I could show them exactly what was in there. Otherwise there was no benefit to me being there. The whole experience was extremely intimidating.
60. Whilst I was there they all asked me where the containers were at that time. I said that I thought that they were all in Vietnam as this is what Rasmus and Gunter had told me. I am now aware that the containers shipped by the Claimant were not in Vietnam because they had been disposed of. I was still shocked that the containers had ended up in Vietnam in any event because I knew it was illegal to ship to this country.
61. I returned to the UK on Friday 24th September 2010 having not resolved anything save for confirming to the individuals that I met what products were inside the containers.
62. I reported back to Gunter and Rasmus and they said that they would continue to deal with Miss Chung and other buyers. I told them that my impression was that Miss Chung was willing to buy the containers."
Quantum
"In breach of contract the First Defendant and the Second Defendant:
(1) Failed to provide adequate and correct particulars of the Goods in each of the consignments referred to in that the Goods consisted of baled used tyres and not "Building Blocks";
(2) Failed to name a consignee who existed or in the alternative who was able and willing to collect each consignment upon delivery to Haiphong.
(3) Failed to pay freight and charges in respect of each cargo either before delivery of the Goods or at all.
(4) Failed to pay the additional costs incurred in respect of the consignments including but not restricted to demurrage until disposal could be effected and the costs of inspection at Hong Kong."
"10. The false description of each consignment as "Building Blocks" and or the use of a false export code and or identification of consignees who did not exist alternatively were unprepared to accept the goods upon delivery to Haiphong in Vietnam amounted to fraudulent misrepresentation and or deceit of the Claimant.
PARTICULARS OF MISREPRESENTATION/DECEIT
(1) The Claimant will rely upon the facts at paragraphs 2-7 and 9 above as evidence of misrepresentation/ deceit.
(2) In particular, the court will be invited to infer from his actions in supervising loading and sealing of the containers and signing off the collection notes as shipper that the First Defendant knew the descriptions of their contents were false.
(3) The court will be invited to infer from a letter dated 19 November 2010 signed by the First Defendant, from his emails dated 23 November 2010 and 24 November 2010 (to Coscon (UK)) and a letter dated 1 April 2011 written on his behalf by BTMK solicitors to James Chan and Co., copies attached hereto and together marked XI that the First Defendant when signing collection notes as shipper knew that the contents of the containers were misdescribed (and consisted of baled scrap tyres), knew that they were for export and knew of the legislation and export regulations applicable to the export of scrap baled tyres.
(4) The court will be invited to infer from the evidence as a whole including the content of the invoices described at 9 above that the purported consignments were a sham and their shipment by the First Defendant, arranged by the Second Defendant, was designed to achieve disposal of quantities of waste tyres more cheaply than was possible if lawfully disposed of in the UK.
(5) The representation by the Second Defendant that he was entitled to trade as Kent International Freight Services (UK) Limited constituted deceit.
(6) During unsuccessful negotiation for the sale of the consignments of scrap tyres in Haiphong and Hong Kong the Second Defendant accepted that a declaration that the containers held "used tyres" would, "not cause any problems".
(7) Upon report of the finding described at paragraph 8 above that containers from three of the consignments had been found by a surveyor to contain baled rubber tyres rather than "Building Blocks", the Second Defendant did not dispute that fact.
(8) As against the Second Defendant, the court will be invited to infer in particular that his repeated assertions to Coscon (UK) that the consignments contained "Building Blocks" and his instructions to George Baker Shipping Limited in respect of each shipment misdescribing the contents of each container evidence an intention to deceive the Claimant and also HMRC.
11. But for the matters of complaint set out at paragraph 10 the Claimant would have declined uplift of the containers in the UK or their onward shipment to Haiphong. Accordingly Defendants' misrepresentations and deceit were the cause of the whole of the Claimant's losses arising out of the uplift of baled scrap tyres from the UK and the agreements to carry them by sea to Haiphong."
"In the premises the Claimant which has suffered loss and damage is entitled under paragraphs 10 and 11 to damages for misrepresentation and or deceit by the First Defendant and the Second Defendant and under paragraph 13 to damages for their breaches of contract."
"The consignees named by the Second Defendant (at least two of whom were named in invoices from the First Defendant included with shipments) did not exist and or did not arrange collection of any of the consignments delivered at Haiphong. As a result the Claimant suffered substantial demurrage and other costs which it was obliged to pay prior to arranging the lawful disposal of the consignments each of which consisted of baled used tyres."
"15. Originally the Claimant invoiced the Second Defendant's dissolved company for freight and collection costs in its apparent capacity as the First Defendant's freight agent. Revised invoices including the additional costs incurred at Haiphong and Hong Kong together with a schedule showing their total of £167,830.15 were rendered to the First Defendant on 16 November 2010 and are attached hereto marked XIII. Nothing has been paid by either the Second Defendant or the First Defendant.
16. The Claimant was successful in mitigation of its loss in that it achieved clearance of 77/79 of the FEUs containing scrap tyres for lawful sale and received payment (less costs of sale) the equivalent of £21,777.04 thus reducing loss to £146,053.11."
"C has simply produced its own invoices in order to prove its loss [D192-209]. However such invoices are not adequate evidence of demurrage charges which should have been sought from C by the relevant port authority (in Haiphong). There is simply no evidence of payment (nevermind [sic] demand) of these charges. The demurrage charges represent some £66,304.16 [D209] – almost half of the total sum claimed."
"Since the Claimant now knew that onward shipment to Haiphong of the cargoes inspected was illegal (and was also aware that the consignees were unlocated) it was now obliged to incur demurrage/port storage charges at Hong Kong for the inspected containers as well as at Haiphong. All of that cargo continued to occupy Claimant's containers which therefore were out of use for transport of any other cargo. "
"In my role as Export Manager I am authorised to interrogate Cosco systems including IRIS2. This is a secure in house system in which all transactions are recorded and tracked. I have interrogated the system for information relevant to the claim by searching under the booking party for each shipment, Kent International Freight Services (UK) Limited. I have made a print out of all information relating to its bookings which I produce as exhibit JDM2."
"14. The Claimant is put to proof of paragraph 9, the contents of which are again outside the knowledge of the First Defendant. In relation to the asserted demurrage and lawful disposal, it is averred that:
…
(d) the First Defendant never received any notification from the Claimant of its intention to dispose of the contents of any or all of the relevant containers;
…
(f) in the circumstances, if it is found (which is denied) that the First Defendant is the shipper and so owner of the relevant goods or contents, the Claimant has wrongfully interfered with said goods and/or converted the same by disposing of the same without notice, reference or warning to the First Defendant, and at an apparent undervalue (for the sum set out in paragraph 16);
(g) accordingly, if the First Defendant is found to be the shipper and contracting party (contrary to its primary case) it will seek permission at trial to seek remedy and redress against the Claimant in relation to such unlawful interference and/or conversion.
…
23. The Claimant is put to proof of the matters set out in paragraph 16. It is averred that achieving £21,777.04 for the sale of the relevant goods was not adequate or reasonable mitigation. It is averred that the said contents should have realised some £88,000 on the open market. "
"8. As for Defence paragraphs 14(f), (g) and 21 of the Defence the Claimant will say that any such cross-claim as is intimated cannot succeed by reason of the First Defendant's case (albeit that case is not admitted) which is that he had sold the goods to Yap Yoon or JD1 prior to the shipments."
"Please call me, I am under pressure to resolve these charges with you by Wednesday next week (15.9.10) or we will take possession of the goods and cargo will be sold to an alternative buyer of our choosing."
"Your message noted. I am still on the case without much further progress during the last 2 days.
Will certainly try hard to get some real progress by tomorrow."
"Tomorrow is your last day to arrange payment for these 4 cntrs, after this I can do no more.
My HQ in Shanghai have already advised that they will take possession of the cargo and source alternative buyers if the cargo has not been paid for by Wednesday 15.9.10, as I have already explained to you in previous e mail.
Please contact me either way tomorrow so that I can reply accordingly to my HQ."
"Below noted, however as advised to you previously, we will now try to source buyers for this cargo.
We have been very patient with yourselves and even agreed a 50% reduction on the storage costs, but as yet you have still not paid any monies to us.
If you are able to pay for any of the cargo then please get in touch and if it has not been sold we will release it to you."
"Unless we receive a written commitment for acceptance of charges and payment from the shippers their Freight forwarders and/or consignees we should proceed to cargo disposal as instructed by Capt. Feng at Coscon HQ."
"Just to let you know that U.K. shipper is currently in Haiphong to finalise a deal there and then on the spot with one particular buyer who promised to take all remaining containers.
I should have more information on this by tomorrow."
"If still have no further proceeding for the cargo interests to pick up the containers and pay all extra charges before 0830L(+800) of Sept. 21st, 2010 we will inform "Ocean Luck" to pick up the containers for cargo disposal off to mitigate the losses on Sept. 21st, 2010.
Shipper and the forwarder should take all responsibility and pay all the charges occurred [sic]."
"Do you get the written commitment for acceptance of charges and payment from the shippers their Freight forwarders and/or consignees?
If no result, we will inform "Ocean luck [sic]" to pick up the cntr."
"No commitment was forthcoming from either Defendant hence the consignments were sold off at the best price available leading to the claim in the sum of £146,053.11 and interest."
Mr. Batchford's Part 20 claim against Mr. Scheller
"It would be just and equitable for such indemnity or contribution to be ordered as the Second Defendant is the party responsible for the matters complained of. This is explained in the Defence. The First Defendant further adopts the allegations set out in paragraphs 10 and 13 of the Claimant's Particulars of Claim herein as against the Second Defendant in this regard."
Conclusion