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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