Jangmi, The (known as The Grigorpan)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KERR,LORD JUSTICE NOURSE,LORD JUSTICE TAYLOR |
| Judgment Date | 08 March 1989 |
| Neutral Citation | [1989] EWCA Civ J0308-1 |
| Docket Number | 89/0220 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 March 1989 |
[1989] EWCA Civ J0308-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMIRALTY COURT
(MR. JUSTICE SHEEN)
Royal Courts of Justice
Lord Justice Kerr
Lord Justice Nourse
and
Lord Justice Taylor
89/0220
1985 Folio 216
Admiralty action in rem against: the ship or vessel "Jang Mi" now known as "Grigorpan"
MR. BERNARD EDER (instructed by Messrs. Holman, Fenwick & Willan, Solicitors, London EC3N 3AL) appeared on behalf of the Defendants (Appellants).
MR. JULIUS MALINS (instructed by Messrs. Clyde & Co., Solicitors, London, EC3M 1JP) appeared on behalf of the Plaintiffs (Respondents).
This is an appeal from a judgment given by Mr. Justice Sheen in the Admiralty Court on 27th May 1988. He rejected an application in a damage to cargo action by the defendant shipowners to disallow an amendment which had been made to a writ issued in rem before it had been served. The amendment was merely to alter the date of the voyage during which the alleged damage had occurred from "1983" to "1984". It is common ground that it was a pure slip which caused the wrong year to be inserted in the general endorsement of the writ and that it has not misled anyone. It would be difficult to conceive of a more trivial and unmeritorious point. On its technical aspects it is in my view a waste of time and costs. Mr. Justice Sheen had no difficulty in rejecting the application. Nor have I. We found it unnecessary to call on Mr. Malins on behalf of the plaintiffs.
The facts are not in dispute. The history begins with the discharge of a cargo of plywood and blockboard which had been carried from Indonesia to Cardiff in this vessel, then named "Jang Mi". That was on 27th September 1984. There was a formal notice of a claim to the vessel's agents in October that the cargo had turned out wet and damaged on that date. By March of 1985 those representing cargo had put the owners' managers on notice that there was a pending claim for US $72,789.
On 25th March 1985 the writ was issued. It was headed "Admiralty action in rem against the ship or vessel 'JANG MI'". The plaintiffs were the owners of cargo lately laden on board the ship or vessel. The defendants were the owners and demise charterers of the "Jang Mi". There was a general endorsement in the following terms:
"The plaintiffs' claim is for damages for breach of contract and/or duty in and about the loading, handling custody, care and discharge of the plaintiffs' cargo and the carriage thereof on board the defendants' ship 'Jang Mi' in the year 1983".
As can be seen, that was a slip, because the alleged damage had happened in 1984, as everyone concerned knew perfectly well.
That writ could of course only be served if the Jang Mi, or whatever she might thereafter be called, or a sister ship, were to come within the jurisdiction. That did not happen for a long time.
The remainder of 1985 was taken up with the usual exchanges in this type of case between those representing cargo and ship. The shipowners' P & I club came into the picture in July 1985, and later that year the club agreed to a six months' extension of the Hague Rules limitation period running from the known date of discharge in 1984. A further six months was granted in March 1986, and on 26th March of that year the twelve-month period from the issue of the writ expired. Accordingly there was an application for the renewal of writ for a further twelve months, until 25th March 1987. That was granted, as it would be in this type of case, since there had been no opportunity of serving the writ during the previous year. A point had been taken below, which was abandoned on this appeal, that that renewal and the two subsequent renewals of the writ should not have been granted, but we have not had to consider that aspect. Presumably there is everless in that point, whatever it was.
There was then a further extension of time in September 1986. Then in October 1986 the P & I club rejected the claim, at any rate for the time being.
On 18th March 1987 the writ was renewed for the second time, until 25th March 1988. In March 1988 there were two applications on behalf of the plaintiffs. First, there was the third application to renew the writ since the vessel had still not come within the jurisdiction. Secondly, there was an application, not then proceeded with, to amend the name of the vessel from "Jang Mi" to "Grigorpan", which by then had become her name, no doubt because her ownership had changed. But that would not affect the validity of a claim in rem against the ship.
On 25th March 1988 the writ was again renewed until 25th March 1989. It was on that occasion that the plaintiffs' solicitors discovered that throughout these three years this writ—this piece of paper which had been lying in their office—had mistakenly referred to "1983" instead of "1984". This, of course, made no difference to anyone. I doubt whether the ship's agents or the P & I club had seen a copy of the writ by then, or that they were in the least bit interested in it. They had had all the documents in relation to the claim. This was a normal situation in which they knew perfectly well that a writ would have been issued with a general endorsement in common form. The only question was whether sooner or later the vessel or a sister ship would come within the jurisdiction, in which case the writ would be served on her. Having discovered this mistake and the writ not having been served, the plaintiffs' solicitors amended "1983" to "1984" without leave. They did so pursuant to 0. 20 r.1, to which I come in a moment.
On about 30th March 1988 the Grigorpan did come within the jurisdiction and the writ was served on her. There was then also the hearing of the application which was granted to amend the name of "Jang Mi" to the new name of the vessel, "Grigorpan". Nothing turns on that.
The writ having been served, the defendants' solicitors, Holman, Fenwick & Willan, waging one of many battles on behalf of a P & I club with Clyde & Co. on behalf of Cargo Underwriters, spotted that in addition to the amendment in green from "Jang Mi" to "Grigorpan" there had been before service an amendment in red from "1983" to "1984". They decided to issue a summons claiming that this amendment should be disallowed on the ground that the Hague Rules limitation period, albeit extended on a number of occasions, had by then finally expired, as it undoubtedly had. They submitted that when the date of the year was amended in March 1988, a limitation period had accrued in favour of the defendants. On another point on which we have not had to hear him Mr. Eder submits that this is not a "relevant limitation period" within the last paragraph of 0. 20 r.5(2), though I do not see why not. But however that may be, the defendants say that because the Hague Rules period had by then expired, there was no right to alter the date from "1983" to "1984".
Mr. Eder relied on two decisions of this court. In each of them it was held that a fresh cause of action may not be raised by amendment after the expiry of a limitation period. The cases are Mabro v. Eagle Star & British Dominions Insurance Co., Ltd. (1932) 1 King's Bench 485, decided long before the change of the rules to their present form, and Lucy v. W.T. Henleys Telegraph Works Co., Ltd. (1970) 1 Queen's Bench 393, in which the court upheld the principle of Mabro by a majority after the change in the rules had taken place. But it should be noted that in both cases the plaintiffs sought to add a new party. Adding a claim by or against a new party must obviously raise a new cause of action in relation to that party. Those cases are of no assistance here. The issue in the present case is whether the change of the date from "1983" to "1984" had the effect of adding a new cause of action after the expiry of the time limit under the Hague Rules.
To deal with that question, one is mainly concerned with 0.20. But it may be helpful to begin by considering the requirements for general endorsements on writs, since that is what we are concerned with here. 0. 6 r.2(l) provides that where a writ is not endorsed with a statement of claim it must be endorsed
"with a concise statement of the nature of the claim made or the relief or remedy required in the action begun thereby".
There is no reference to causes of action.
Note 6/2/2 discusses what should be comprised in a properly drawn general endorsement. It states that both for claims in contract and tort it is appropriate to include the date of the contract and tort respectively. In that regard this was not a sufficiently particularised endorsement, as Sheen J. also clearly thought. However, the note goes on as follows, omitting the references to the authorities:
"Where an endorsement of claim lacks particularity, the defect does not render the writ a nullity….The defect may be cured by amendment or by the service of a statement of claim….or by the defendant's delay, especially where he is at all times aware of the nature of the action which the writ was intended to initiate;…but the endorsement of the nature of the claim may be sufficient without amendment of the writ to justify a claim pleaded in a later statement of claim….If the endorsement of the writ is defective, e.g., simply claiming '£500 damages and for loss of...
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