Nagusina Naviera v Allied Maritime Inc. (The Maria K)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MANCE,LORD JUSTICE LATHAM,LORD JUSTICE SIMON BROWN |
| Judgment Date | 16 July 2002 |
| Neutral Citation | [2002] EWCA Civ 1147 |
| Docket Number | A3/2001/2834 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 July 2002 |
[2002] EWCA Civ 1147
Lord Justice Simon Brown
Vice President of the Court of Appeal, Civil Division
Lord Justice Mance
Lord Justice Latham
A3/2001/2834
IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
(Mr Justice Andrew Smith)
MR C HANCOCK QC (instructed by Constant & Constant, Sea Containers House, 20 Upper Ground, London EC1) appeared on behalf of the Appellant
MR S BRYAN (instructed by Mills & Co, Milburn House, Dean Street, Newcastle upon Tyne) appeared on behalf of the Respondent
Wednesday 10 July 2001
This is an appeal with permission against the judgment and order of Andrew Smith J dated 6 December 2001. The appellants were the owners of the vessel "Maria K". By an interim award, published on 23 January 2001, they failed to obtain relief against the charterers, the respondents to this appeal, in respect of alleged slowness in discharging a vessel which had been time chartered for a trip.
The judge described the essential issue in paragraph 3 of his judgment as being:
"whether charterers, under a trip charter with no duration are under any obligation as to the time within which discharge of the cargo is to be effected and, if so, what the nature of that obligation is."
It is, one might say, an unusual contention that charterers are under such an obligation under such a charter, but Mr Hancock QC, who appears before us for the appeallants, says that the point does, on any view, raise a matter of general importance which could have considerable financial implications; in particular, one supposes, if the market had gone up or perhaps where owners had lost some subsequent engagement about which the charterers had known.
The respondent charterers are Allied Maritime Co, a company incorporated in Iberia but evidently carrying on business in Greece. They argued successfully that their payment of hire, as stipulated in the trip time charter, was not accompanied by any further relevant obligation. The owners wished to appeal against the arbitrator's conclusion in favour of the charterers on that point. But the owners' club, the Newcastle P&I Association, after considering the cost, decided not to support them. That was on or about 9 February 2001.
The owners therefore instructed Constant & Constant themselves and issued a Part 8 claim form on 13 February 2001. On the same day they obtained an order from David Steel J in terms as follows:
"This application is not in proper form. [There followed a reference to the Arbitration Practice Direction, paragraph 4.] Leave to service out is probably appropriate. The application for extension of time is not understood. Leave to serve out."
The reason the judge did not understand the application for an extension of time was no doubt that it was not explained. It probably referred to the fact that under the Practice Direction in respect of Arbitration, paragraph 27.2, the appellant owners had 21 days from 23 January 2001 to serve the Part 8 claim form.
What the owners did, having issued the claim form on the 21st day, the last day for such service, was to fax a copy to the charterers in Greece—it is not suggested that this could constitute service—and also sent a copy by fax for the attention of Mr Ayliffe at the Newcastle P&I Association, since this happened also to be the respondent charterers' P&I club, and had acted for the respondent charterers in the arbitration. Mr Ayliffe was the club's in-house lawyer with the conduct of the arbitration for the charterers. The fax was, however, sent after business hours at 18.28. It read as follows:
"Please find attached copies of the following:
• Part 8 Claim Form.
• Application Notice.
• Witness Statement of Graham Crane. No doubt, you will be nominating solicitors, since this is now a court matter. Service process is now in train but to avoid unnecessary costs we suggest that you also instruct solicitors to acknowledge service within the jurisdiction. An Order granting leave to serve out of the jurisdiction was obtained today and we shall forward a copy of the sealed Order to you tomorrow."
The association and the charterers did not respond by appointing solicitors as requested.
On 22 May 2001 the owners instructed Greek lawyers to effect service in Greece and on 31 May 2001 they asked the Senior Master to effect service through judicial channels. The judge described the delay as "unexplained". Mr Hancock acknowledges that such information as does exist about what was going on between 13 February 2001 and the end of May 2001 is of the sparsest. It appears that translations were made during this period. That is all that has been said in evidence and it clearly cannot excuse the very great bulk of the delay of over three months from mid-February to the end of May 2001. Service was in the event only effected through judicial channels on or about 3 September 2001.
The charterers on 13 September 2001 maintained that such service was out of time, referring to the 21-day period in paragraph 27.2 of the Practice Direction—Arbitration, and on 28 September 2001 they applied for a declaration that the court had no jurisdiction over them, both on this and other grounds.
On 22 November 2001 the appellant owners informed the respondent charterers that they themselves intended to apply, and on 23 November they did apply, for a number of orders, including an extension of the validity of the claim form of 13 February 2001 under CPR 7.6, coupled with an extension of time for service under CPR 3.1(2)(a); an order for service by an alternative method under CPR 6.8; and relief remedying a procedural error under CPR 3.10, or various alternative relief. We were told that a hearing for the respondents' application had already been fixed on the basis that some such counter-applications would be forthcoming, and the delay in formally announcing them is unlikely to have added to the overall delay. Andrew Smith J refused the appellants any of the relief they had sought. He declared in the respondents' favour that the claim form had not been served within the period of its validity and set aside the service which had been effected.
The appellants seek to challenge certain critical aspects of the judge's reasoning. I can summarise the points now in issue as being basically four, although in order to clarify them for the purposes of this judgment I would express them slightly differently from the way in which Mr Hancock has put them in his skeleton.
Did the copying of the fax of 13 February 2001 to Mr Ayliffe at the respondents' club constitute service on the respondent charterers? If so, then the only question arising is whether, having regard to the fact that it was sent after office hours, an extension of time of one day ought to be granted to validate such service. It is not, I think, seriously suggested that in those circumstances such an extension should not be granted. On that basis, if the question is answered affirmatively the appeal should succeed.
If the owners fail on point 1, the next question is whether the 21-day time limit in Practice Direction—Arbitration paragraph 27.2 is the only relevant time limit, or whether CPR 7.5 also constitutes an overlapping or additional obstacle. Practice Direction—Arbitration paragraph 27.2 reads:
"In the case of an appeal to the Court under section 1(2) of the Arbitration Act 1979, the application for permission to appeal, where permission is required, and the Part 8 claim form must be served and the appeal entered, within 21 days after the award has been made and published to the parties. Provided that, where reasons material to the appeal are given on a date subsequent to the publication of the award, the period of 21 days shall run from the date on which the reasons are given."
The latter proviso does not here apply. CPR 7.5 read, in the form in which it was at the relevant time:
"(1) After a claim form has been issued, it must be served on the defendant.
(2) The general rule is that a claim form must be served within 4 months after the date of issue.
(3) The period for service is 6 months where the claim form is to be served out of the jurisdiction."
If CPR 7.5 does constitute an additional hurdle, can the appellants either satisfy the requirements of CPR 7.6 for obtaining an extension of the period within which the claim form may be served; or avoid the whole problem by seeking an order under CPR 6.8 for alternative service?
If CPR 7.5 is inapplicable, the only obstacle remains the Practice Direction—Arbitration 27.2. Can the owners overcome that obstacle by seeking an extension of the 21-day period under CPR 3.1(2)(a); or by (as Mr Hancock has stressed before us) simply seeking an extension of the 21-day period for the issue and service of a new claim form?
A possible fifth issue is whether the judge was right to strike out the claim for want of due dispatch. However, it is accepted, as I understand it, that the answer to this must essentially follow from the answers given on the previous issues.
I turn to these issues.
I take the first: did the copying of the fax to the club constitute service? The judge said as to this:
"18. It is convenient first to consider Mr Hancock's argument that the claim form was served on 13 February 2001. He says that it was served when it was sent by fax that day to Mr Ayliffe. As he points out, under CPR Part 6.2(1), 'a document may be served by any of the following methods … (e) by fax or other means of electronic communication...
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