In The Alhani [2018] 2 Lloyd’s Rep 563 the Hague Rules one year time limit was held to apply to a misdelivery claim, where delivery was made on discharge within the ‘tackle to tackle period’. This left an open question as to whether the one year time limit would apply when delivery was made after discharge from the vessel. This question has now been answered by Sir William Blair (Sitting as a High Court Judge) in FIMBank PLC v KCH Shipping Co., Ltd [2022] EWHC 2400 (Comm). The case arose out of a misdelivery after discharge under a bill of lading on Congenbill form. The Tribunal, comprising three leading maritime arbitrators, Julia Dias QC, Sir Bernard Eder and Timothy Young QC, found that: (i) the Hague-Visby Rules time bar can in principle apply to claims relating to misdelivery occurring after discharge; and (ii) Clause 2(c) of the Congenbill form did not disapply the Hague-Visby Rules time bar to the period after discharge. On a s.69 appeal, two questions were posed.
i) Whether Art.III, r.6 of the Hague-Visby Rules applies to claims for misdelivery of cargo after discharge (the “first question”);
ii) Whether clause 2(c) of the Congenbill form disapplies the Hague-Visby Rules to the period after discharge (the “second question”).
The clause reads. “The Carrier shall in no case be responsible for loss and damage to the cargo, howsoever arising prior to loading into and after discharge from the Vessel of [which must mean “or”] while the cargo is the charge of another Carrier, nor in respect of deck cargo or live animals.”
Sir William Blair upheld the finding of the tribunal, giving a positive answer to the first question, and a negative answer to the second.
On the question of the applicability of the timebar to claims for misdelivery of cargo after discharge, he found the tribunal had correctly decided that on its true construction Art.III, r.6 of the Hague-Visby Rules, which includes the time bar but is concerned with delivery in a broader context, applies to claims for misdelivery of cargo after discharge. This conclusion avoids the necessity for fine distinctions as to the point at which discharge ends. It is also consistent with the authoritative statement of the objective of the article by Bingham LJ in The Captain Gregos ([1990] 1 Lloyd’s Rep. 310 at p.315 (col 2)) that it is, “like any time bar, intended to achieve finality and, in this case, enable the ship owner to clear his books”. In addition there no consensus to be shown among the courts of other jurisdictions, nor in the commentary.
Additionally, the application of the time limit to a misdelivery after discharge could be supported by the implication of a term as argued by Carver on Bills of Lading, Sir Guenter Treitel and Professor Francis Reynolds, 4th ed (2017) at [9-130] which states that the Rules may appear on their face to cease operation on discharge, but that consignees will normally collect them after some period of storage. The carriage contract arguably continues, and that under English law the carrier still holds the goods under the contract of carriage and under the Rules, unless it alters its responsibility for this stage by a term in the contract of carriage.
On the second question, the effect of cl.2(c) of the CONGENBILL, Sir William Blair upheld the tribunal’s conclusion that the clause did not disapply the Hague-Visby Rules to the period after discharge. The clause made no reference to any Hague-Visby Rules period. By contrast, the clause in The MSC Amsterdam [2007] EWCA Civ 794, [2007] 2 Lloyd’s Rep 622 was materially different in that its reference to loss “after the end of the Hague Rules period” showed that there was to be a period when the Hague Rules did not apply but would be be a time when the Owners may still have the obligations of a bailee in respect of the goods, and can agree that the terms of that bailment are not to be those of the Hague Rules.
