CL-2021-000431 - [2025] EWHC 1940 (Comm)

The Time Bar Issue

The Time Bar Issue turns upon the correct construction of Article III Rule 6 of the Hague Rules, as applied to the facts relating to the procedural position in the present case.

Article III Rule 6 provides (emphasis supplied):

“In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered.”

The relevant facts are (i) that the Claimant commenced proceedings seeking “a declaration that it is not liable to the Defendants (or any of them) in relation to the damaged cargo” within the relevant one year time period; (ii) that the Defendants counter-claimed in the terms already set out above, also within time (allowing for the effect of the agreed stay).

The Claimant’s case was put in these terms: “The new claim will not be the same as the original claim if the facts on which the cause of action is based are substantially different and/or if the loss or damage in respect of which the new claim is made is different from the loss or damage originally claimed” :Skeleton, para. 27. (Although in other places, the formulation was more stringently put, e.g. “When ‘suit is brought’ (as the Hague Time Bar puts it), limitation is interrupted only for claims that (1) arise out of the same facts and (2) concern the same loss and damage as the ‘suit’ brought in time” (para. 34), Mr MacDonald Eggers KC confirmed in oral argument that the Claimant’s case was as summarised in para. 27.)

The Claimant contended that the Shortage Claim and Misrepresentation Claims did not arise out of the same or substantially the same facts already impleaded and since the calculation of loss and damage in the Shortage Claim (loss of cargo with market value, rather than sound vs damaged values) and Misrepresentation Claims (reliance losses) are different, the “suit” already brought did not stop time running in respect of these different claims.

The Defendants contended that both the Shortage Claim and the Misrepresentation Claims are essentially or substantially based on the same facts as are already in issue in respect of the existing Counterclaim which alleges firstly “In breach of duty and/or in breach of the Contracts of Carriage, the Claimant failed to deliver the Cargo to the Defendants in good order and condition” (para. 69), which is a wide and all-embracing claim and bringing of suit, and, secondly, “the loss and damage to the Cargo was caused by the negligence of the Claimant, their servants or agents and/or their failure properly and carefully to load, handle, stow, carry, keep, care for and/or discharge the Cargo in breach of the Contracts of Carriage and/or Article III, rule 1 and/or Article III rule 2 of the Hague Rules” (para. 71), which is an equally wide and all-encompassing putting in issue of the Claimant’s care and custody and handling of the Cargo in general terms.

In oral argument, Mr Robert Thomas KC (who appeared with Ms Hosking) took a narrower approach than certain passages in the Defendants’ Skeleton Argument might have been thought to have been capable of being read. For example, in para. 47, where it was said that “the Defendants’ own counterclaim, which it is common ground was brought within time, satisfies the time bar and is a once and for all matter such that the time bar cannot be relied upon for any subsequent amendments”.

The Claimant argued that this meant that the Defendants’ case was that if a cargo-owner brings a claim in respect of something within time, time stops for all purposes and that any other claim of whatever nature can thereafter be brought at any time.

In answer, Mr Thomas KC, when questioned by me in oral argument, confirmed that he accepted there had to be some broad factual connection between the claim brought in time and the amendment, but he stressed that the position would be broadly and generously approached, and eschewing any technical approach.

Here, he submitted, the amendments in relation to the Shortage Claim related to the allegedly remedial discarding of damaged cargo where damage to the same cargo at the same time and in the same way was already directly in issue. Further, the alleged failure to speak out and the alleged misrepresentation of the true position as to the cargo related similarly to the very damage already in issue on the face of the original Counterclaim and to the Switch Bills already sued upon under the Counterclaim.