The Alhani (Deep Sea Maritime Ltd v Monjasa A/S)  EWHC 1495 (Comm), 15 June 2018, deals with two important issues relating to the scope of one year Hague Rules time limit. First, does it apply to a misdelivery claim? Second, if so, what is the effect of commencing proceedings within the one year limit in a foreign jurisdiction, in breach of an exclusive jurisdiction clause in favour of the English High Court?
The case involved a bill of lading for the carriage of bunker fuel for Lome, Togo, to Cotonou, Benin. The bill was subject to the Hague Rules and incorporated the terms of a charter in terms that were sufficient to incorporate its exclusive English jurisdiction clause. In November 2011 the cargo was discharge through a ship-to-ship transfer into another vessel, without production of the bill. Proceedings were commenced in Tunisia with the vessel’s arrest in April 2012. The Tunisian court subsequently dismissed the claim for want of jurisdiction. At the time of the hearing there was a pending appeal to the Court of Cassation against the dismissal. In February 2017 owners sought a declaration of non-liability in the English High Court and shortly afterwards, and well outside the one year limit, the claimant commenced proceedings against the owner in the English High Court.
On the first issue, David Foxton QC, acting as a judge of the High Court, held that the one year time bar will nonetheless apply provided the misdelivery took place within the temporal scope of the Hague Rules, from the start of loading to the completion of discharge. This was the case here where the delivery had occurred with the discharge of the cargo. Although it was debatable whether the Hague Rules imposed any obligation on the carrier with regard to delivery, Article III Rule 6 was not limited to breaches of the Hague Rules, and also covered breaches of the carrier’s obligations which take place during the period of Hague Rules responsibility, and which have a sufficient nexus with identifiable goods carried or to be carried. The position would be the same under the Hague-Visby Rules
On the second issue, he held that the commencement of suit in Tunisia, in breach of the exclusive jurisdiction clause, could not be relied upon by the claimant as the bringing of suit for the purposes of Article III Rule 6 in other proceedings commenced outside the one year period. However, for reasons of comity, he was not prepared to grant a declaration as to whether the Tunisian proceedings were time barred.