The Hague Rules time bar. Can suit be commenced in a Hamburg Rules jurisdiction?



The Golden Endurance [2016] EWHC 2110 (Comm) involved cargo claims arising out of a shipment from  three West African ports, Lome, Takoradi and Owendo to Morocco in June and July 2013 and has already been the subject of an anti-suit injunction application that came before Burton J in November 2014,  [2014] 1 Lloyds’ Rep 266. After the decision to grant the injunction in relation to one of the cargo claims, but not in relation to the other two, three proceedings remained afoot: London arbitration in relation to the Lome claims; a declaration of non-liability in the High Court in relation to the other two claims; proceedings by cargo insurers in Morocco in relation to the other two claims which resulted in a judgment against the carrier in February 2015.  The carrier then sought summary judgment in the second of these proceedings, on the grounds that the cargo claims were time-barrred as suit had not been commenced within one year of delivery, as per art III r6 of the Hague Rules which applied to the bills of lading.

Phillips J first rejected cargo insurers’ argument that the Moroccan judgment estopped the carrier, per rem judicatam, from proceeding with its claim for a declaration. The carrier by requesting the dismissal of the claim in Morocco in favour of arbitration proceedings, had not voluntarily submitted to the jurisdiction of the Moroccan court. He then held that for the purposes of the one year Hague Rule time bar under art. III r6, suit can be commenced in any competent court, and that includes a court in a State which applies the Hamburg Rules, such as Morocco where proceedings had been commenced within one year of delivery. Phillips J was also of the view suit that would not be commenced by the carrier’s initiation of proceedings  for a declaration of non-liability.

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Professor Simon Baughen

Professor Simon Baughen was appointed as Professor of Shipping Law in September 2013 (previously Reader at the University of Bristol Law School). Simon Baughen studied law at Oxford and practised in maritime law for several years before joining academia. His research interests lie mainly in the field of shipping law, but also include the law of trusts and the environmental law implications of the activities of multinational corporations in the developing world. Simon's book on Shipping Law, has run to seven editions (soon to be eight) and is already well-known to academics and students alike as by far the most learned and approachable work on the subject. Furthermore, he is now the author of the very well-established practitioner's work Summerskill on Laytime. He has an extensive list of publications to his name, including International Trade and the Protection of the Environment, and Human Rights and Corporate Wrongs - Closing the Governance Gap. He has also written and taught extensively on commercial law, trusts and environmental law. Simon is a member of the Institute of International Shipping and Trade Law, a University Research Centre within the School of Law, and he currently teaches at Swansea on the LLM in:Carriage of Goods by Sea, Land and Air; Charterparties Law and Practice; International Corporate Governance.

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