Paul Bugden, Bugden + Co., London
Ref: Perfect Marine Ltd v Sodrugestvo Turkey [2025] EWHC 1940 (Comm)
This interesting recent case discussed, but without needing to decide, the meaning of the phrase “unless suit is brought” found in the Article III Rule 6 Hague Visby Rules time bar. This phrase is one which has given rise to much uncertainty and much case law has been devoted to working out how it is to be applied in other contexts, such as who is to be the subject of proceedings, where and before whom are the proceedings to be brought, who the claimant must be etc. As the judge observed there are sufficient statements in the cases and in the commentaries to support a wide approach to the words, or, at least, not to support an approach which focusses rigorously and strictly upon the need for a precise formulation of the cause of action invoked and loss claimed to avoid the time bar.
Such cases include The Pionier [1995] 1 Lloyd’s Rep 223 where Phillips J said: “Provided that suit is brought… which alleges that the shipowner is liable for breach of duty owed in relation to the cargo carried it seems to me that the suit will suffice to satisfy the requirements of the Hague Rules.” and The Leni [1992] 2 Ll. Rep. 48 where Judge Diamond QC concluded “The wording of the rule is quite general and apparently free from technicality. Bearing these considerations in mind, I turn to consider what has to be done under the rule to preserve the continuing validity of a claim and to prevent the carrier from being discharged from all liability in respect of it. It seems to me that all that is necessary is that a suit must have been brought to enforce the claim within the one-year period. For a claim to qualify as one brought to enforce the claim it must, I think, be one to enforce a claim for loss or damage arising under a “contract of carriage” as defined in art. I(b) of the Convention and as referred to in art. II. Provided that the suit has been brought in time and has been brought to enforce a claim arising under the particular contract of carriage in question, then prima facie the carrier is not discharged from liability under the rule.”
As the judge observed if the purpose is to ensure that the need for factual investigation is identified reasonably close in time to the events which have to be investigated then it might be thought sufficient for the claimant to put the particular cargo and the carrier’s breach of duty in relation to it in issue in broad terms and that fine distinctions would not have been in the mind of the drafters. In the context of a claim for example for deterioration of cargo due to want of cargo care and unseaworthiness, is there a sensible purpose, he asked, in distinguishing between a claim for damaged cargo and one for cargo discarded by the crew by reason of the damage?
A shortage claim might as such in this instance properly be considered as properly brought by amendment after the expiry of the time limit provided the main claim for contamination damage was advanced within time.