How does the Hague-Visby time limit operate when suit is commenced within the one year period, but by the wrong party? Can they amend the statement of claim to add or substitute the correct party? A resounding ‘no’ is the answer recently given in Feyha Maritime Ltd v Miloubar Central Feedmill Ltd and Another – Civil Leave to Appeal 7195/18, Supreme Court of Israel (Hendel J) – 12 May 2019.
MCF alleged that it imported a cargo of corn to Israel from the Ukraine on the defendant’s ship. The Phoenix Insurance Co Ltd (Phoenix) insured the cargo. A fire broke out on the ship on 13 May 2015 and the cargo never reached its destination. On 4 February 2016 MCF filed a claim against Phoenix in the Magistrates’ Court and on 5 April 2016 MCF amended its statement of claim to add the shipowners as an additional defendant. That same day Phoenix filed a claim against the shipowners in the District Court of Haifa which claim was subsequently settled. MCF continued to pursue its claim against the shipowners on the basis that it had not received a full indemnity from Phoenix in respect of the damage to the cargo. The shipowners filed a motion to dismiss MCF’s claim on the basis that the bill of lading identified the consignee as “Miloubar Cooperative Agricultural Society Ltd” (MCAS) and not MCF.
The Magistrates’ Court agreed that MCF had no cause of action against the shipowners. MCF argued that it was possible to amend the statement of claim to add or substitute MCAS as plaintiff. The Magistrates’ Court agreed and rejected the shipowners’ motion to dismiss MCF’s claim in limine. Adding MCAS as a plaintiff constituted an amendment that was merely technical and formal. The shipowners filed a motion for leave to appeal to the District Court who rejected the motion for different reasons. The shipowners appealed, arguing the Hague-Visby Rules time bar was a substantive limitation that rescinded the right of claim itself.
The Supreme Court agreed. To allow amendment of the statement of claim without affecting the limitation period of the claim, the original statement of claim had to demonstrate a cause of action against the defendant, but here MCF’s original statement of claim revealed no cause of action against the defendant. The term “suit” in article III rule 6 related to the existence of a proper claim between appropriate parties. The claim filed by Phoenix against the shipowner could not stop accrual of the limitation period with respect to a claim of the owner of the insured cargo against the carrier.
Parallel claims filed in different forums were capable of stopping accrual of the limitation period (see The Nordglimt), but those cases mostly focused on the question whether a claim filed by a party entitled to do so in a foreign forum with jurisdiction to hear the claim could stop accrual of the limitation period for another claim between the same parties (or between parties with relevant nexus) filed in a different forum. It was not appropriate to conclude from judicial precedents permitting claims filed in another forum to stop accrual of limitations, that a claim filed by another plaintiff could also be permitted to do so. The identity of the parties was an integral part of the term “cause” of the story being heard, for purpose of statutes of limitation, and a rule allowing the identity of the plaintiffs to be changed without such having any implications on the limitation period undermined certainty in the rules of limitation and the principle of claim preclusion.
Leave to appeal was granted, and the appeal accepted, meaning that the claim would be dismissed in limine for having reached its limitation period.