Paul Bugden, Bugden + Co., London
Batavia Eximp v Pedregal Maritime (The Taikoo Brilliance) [2025] EWHC 1878 Robin Knowles J.
Two important issues on the Hague Visby Rules were engaged by this suit. The first question was whether Singaporean arrest proceedings by holders of bills lading (the Holders) constituted “suit” for the purposes of Article III (6) in circumstances where it was given that these proceedings were validly brought. The second question concerned the applicability of the Hague-Visby Rules to cargo “which by the contract of carriage is stated as being carried on deck” in the exception to the definition of “Goods” in Article I(c) of the Rules.
The dispute concerned four bills of lading subject to London arbitration clauses in respect of a shipment of pine logs from New Zealand to India. Part of the cargo was carried on deck. The cargo was discharged in India without presentation of the bills, leading to a claim for mis-delivery by the Holders. The Holders had initiated proceedings in Singapore to arrest a sister ship for security but arbitration was not commenced until over a year later. The Owners argued that the claim was time-barred. Firstly, because the Singapore arrest proceedings did not amount to “suit being brought” for the purpose of validly protecting time under Article III (6) of the Hague-Visby Rules, and secondly, because the logs carried on deck were inadequately identified as such by the Bills in the result that they fell within, rather than without, the Hague-Visby Rules regime.
The arbitration tribunal found that the claim was time-barred under Article III(6) of the Hague-Visby Rules, but only in respect of the under-deck cargo. Both parties appealed on points of law under section 69 of the Arbitration Act 1996.
Article III (6) of the Hague-Visby Rules
This Article provides:
“Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading. The notice in writing need not be given if the state of the goods has, at the time of their receipt, been the subject of joint survey or inspection.
Subject to paragraph 6 bis the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered. This period, however, may be extended if the parties so agree after the cause of action has arisen.
In the case of any actual or apprehended loss or damage the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods.”
The purpose of the Article in question is “to achieve finality to provide for the discharge of claims after 12 months to meet an obvious commercial need, namely, to allow shipowners, after that period, to clear their books” – per Lord Wilberforce in The Aries [1977] 1 WLR 185] at p 188 and Bingham LJ in Cia Portorafti Commerciale SA v Ultramar Panama Inc [1990] 3 All ER 967 (“The Captain Gregos”) at pp 973 to 974.
The Singaporean proceedings were, and remained, for security; a determination on the merits of the Holders’ claim for mis-delivery would (absent further agreement) require arbitration. They would not decide the claim. The judge thought that “suit” for the purposes of the Article means proceedings that can decide the claim so that if time is to stop running it is substantive proceedings that are required to be issued; that is proceedings to establish liability. On the Holders’ analysis, the carrier would be required to leave its books open for an indefinite period of time, simply by security being sought and without the certainty as to whether there would be any substantive proceedings.
Article I(c) of the Hague-Visby Rules
As to the second question Article I(c) of the Hague-Visby Rules provides as follows:
” In these Rules the following words are employed, with the meanings set out below: –
…
(c) “Goods” includes goods, wares, merchandise, and articles of every kind whatsoever except live animals and cargo which by the contract of carriage is stated as being carried on deck and is so carried.”
The Bills stated that 22,994 and 11,092 pieces respectively were carried on deck and the Arbitrators concluded that such notation was by the Rules sufficient to identify the amount of cargo carried on deck as deck cargo for the purpose of the Article.
The Owners argued however that if a bill of lading contains only a statement of quantity carried on deck, there is no item in relation to which it can be said that it is “stated as being carried on deck“. Rather, all that can be said to be stated (save, presumably, where the quantity is the whole of the cargo on deck) is that the item is part of a bulk of cargo which is in fact carried on deck.
The judge thought that the Owners’ case asked too much of a definition that is simply and practically expressed in the Hague-Visby Rules. Issues about commingled cargo, and what happens where some cargo on deck is damaged but not all, may remain but these issues of course could also arise in contexts other than Article 1(c) and may engage with cargo below deck just as much as above deck. Best practice, to promote greater certainty, may call for a bill of lading to contain a statement that improves on that seen in this case and the requirement for a statement may have been undertaken imperfectly here, but as the Judge observed the Arbitrators concluded that the notation was undertaken sufficiently for the purpose of the present Article and, the parties having chosen the Arbitrators to resolve their dispute, their factual conclusion on that was to be respected.
Accordingly on the time bar point Owners succeeded; arrest or other like security proceedings do not amount to “suit” under Article III(6) and only substantive proceedings stop time running. However as to the deck cargo point the Holders succeeded; the statement on the Bills was sufficient to exclude that cargo, but not that below deck cargo, from the Hague-Visby regime and hence from the application of the time bar therein.