22nd June 2018
In this case, in James Watthey (led by Stephen Kenny QC and instructed by E.G. Arghyrakis & Co) appeared, the Commercial Court finally answered one of the most important and long-standing points of controversy on the application of the Hague Rules: does the time bar in Article III Rule 6 apply to a claim for wrongfully delivering the cargo without presentation of the bill of lading?
A cargo of oil was loaded onboard the tanker “ALHANI” for carriage and a straight consigned bill was issued. The bill of lading contained a Clause Paramount which it was common ground had the effect of applying the Hague Rules as a matter of contract. It was also common ground by the time of the hearing that there was an exclusive English jurisdiction clause.
The cargo was discharged and delivered by ship-to-ship transfer without presentation of the bill of lading in November 2011. Claims were brought by the cargo owner (Monjasa A/S) in Tunisia within a year, but English proceedings were not commenced for another 5 years.
The Hague Rules time bar applies to “all liability in respect of loss or damage”. The Hague Visby Rules time bar by contrast applied to “all liability whatsoever in respect of the goods”.
The arguments against application of the time bar were as follows:
According to David Foxton QC sitting as a Judge of the High Court, the answer is that such claims are indeed caught by the Hague Rules time bar. The Judge’s reasoning was as follows:
Thus, suit had to be brought within one year, i.e. by November 2012. Whilst the Tunisian proceeding were brought in time, the English proceedings were issued in early 2017. The Judge said that the Tunisian proceedings were not sufficient to stop time running because they had been brought in breach of the English jurisdiction clause; it made no difference that Monjasa were unaware of the clause, which was contained in a charterparty they had not seen. However, it would have been enough if the Tunisian courts had been a competent jurisdiction.
To see the full judgment click here.
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