Beacon No. 1 2004 - Skuld

Suit
For the purposes of English law, suit is
commenced as follows:
High Court:
Issuing of Claim Form
County Court:
Issuing of Claim Form
Arbitration – 2/3 man:
Appointment of an Arbitrator, notice of
the appointment being given to the
respondent and calling upon them to
appoint their Arbitrator.
Sole Arbitrator/LMAA Small Claims:
Calling upon the respondent to agree
a sole Arbitrator.
Who is protected by the time bar?
There has been significant discussion as
to who can claim the protection offered
by the time bar. We do not have time to
consider this in any detail, suffice it to
say that the ship and its owner will be
protected in relation to cargo claims
brought under bills of lading and those
brought under charterparties that
incorporate a Clause Paramount. While
the charterer as the carrier under a bill
of lading will also be able to rely on the
time bar, the charterer cannot rely on it
when facing an owner claiming against
them in relation to cargo, even if the
charterers are the carrier under the
relevant bill of lading.
It’s all in the delivery – when, where and to whom
What starts the clock
It is important for all parties to know
from what date the 12-month period
runs. At first glance, the rules answer
that question – it is the date of delivery
or the date on which the goods should
have been delivered. However, it is not
always as simple as it sounds; not least
because of the reliance placed on the
clause regarding the question of delivery.
Delivery -v- discharge
There seems to be no consensus on what
constitutes delivery, save that it is an
entirely different concept than that of
discharge. Discharge is a purely physical
act. Delivery is a legal concept. Despite
its importance to the rules, neither the
Hague nor the Hague-Visby Rules define
it. According to Carver on bills of lading,
delivery is "ordinarily taken to refer to the
transfer of possession to a consignee, or
to the consignee’s agent". Voyage
Charters by Cooke et al. also links
delivery to the passing of actual or
constructive possession. Given the
importance placed on the passing of
possession, it is, therefore, implicit that
the goods have been discharged into the
possession of the person entitled to the
goods (so, for example, delivery will
usually be taken as delivered if the cargo
was discharged against presentation of
an original bill of lading). Where there is
misdelivery, there will be no delivery for
the purposes of Article III, rule 6.
Place of delivery
The usual scenario is for cargo to have
been shipped from A to B. Complications
can arise where, for example, the owner
carries cargo from A to B, but following
rejection of the cargo by the receivers, it is
then carried to C where it is finally
delivered. Whilst cargo was eventually
delivered at C, it should have been
delivered at B sometime earlier. This is
particularly a problem where a cargo
claim is brought under a charterparty as
opposed to a bill of lading. In this
situation, the 12-month period could
either run from the date the cargo should
have been delivered at B or the date when
the cargo was actually delivered at C.
This was the dilemma faced by the owners
and charterers of the Sonia. Charterers
alleged cargo was damaged whilst on
board the ship en route from A to B and,
following its rejection at B, charterers sold
the cargo at a lower price for delivery at C.
Charterers paid additional freight to the
owners to carry the cargo and deliver it at
C. They then sought to claim their losses
from owners. They commenced
proceedings within 12 months of delivery at
C, but outside the 12–month period if it
were calculated from the date when the
cargo should have been delivered at B.
Owners sought summary judgment that
charterers’ claim was time barred and the
High Court Judge agreed with owners’
case. He held that the one-year period ran
from the date the goods should have been
delivered at B.
BEACON 25