P & O Nedlloyd BV v Arab Metals Company and Others
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE TOMLINSON,Mr. Justice Tomlinson |
| Judgment Date | 05 October 2006 |
| Neutral Citation | [2005] EWHC 1276 (Comm),[2006] EWHC 2433 (Comm) |
| Docket Number | Case No: 2004–190,Case No: 2004 Folio 190 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 05 October 2006 |
[2005] EWHC 1276 (Comm)
Colman J.
Case No: 2004 Folio 190
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Mr Simon Rainey QC and Mr Nicholas Craig (instructed by Richards Butler) for the Claimant
Mr Michael Davey (instructed by Ince & Co) for the Defendants
Hearing dates: 19 and 20 April 2005
Judgment Approved by the court
for handing down
(subject to editorial corrections)
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Mr Justice Colman: :
Introduction
This is an application by the Claimant shipowners to amend their Particulars of Claim. The underlying facts are very unusual and remarkably old. The Second and Third Defendants oppose the application on the grounds that the proposed claims are time-barred and that they do not arise out of the same facts or substantially the same facts as the existing claims within CPR 17.4(2) and they argue further and alternatively that, even if this court does have jurisdiction, it should not exercise its discretion in favour of allowing the amendment in the circumstances of this case.
The existing claim may be summarised as follows.
It is said that the claimants were the carriers under a bill of lading contract in respect of two containers of scrap for carriage from Alexandria to Felixstowe on board the Claimant's vessel, UB Tiger, followed by on-carriage to a final destination in the UK to be nominated. Both Defendants dispute the allegation that the contract provided for carriage beyond Felixstowe. The First Defendants were the shippers, the Second Defendants were named consignees and the Third Defendants were indorsees of the bill of lading from the Second Defendants. Shipment from Alexandria took place on 7 May 1998 and the bills of lading were endorsed on 18 May 1998. On 27 May 1998 the Claimants were asked by fax from W M Martin & Co (Marine) Ltd, agents acting, it is alleged, on behalf of one or some of the Defendants, to deliver the containers to the Third Defendants at Hamilton in Scotland.
On about 1 June 1998 the Claimants tendered delivery of one of the containers to the Third Defendants at Hamilton, but delivery was rejected on the grounds that the contents were radio-active. The Claimants then carried the containers to the premises of their agents at Coatbridge where they were tested and radio activity was confirmed, to the effect that the contents were considered to be radioactive waste under the Radioactive Substances Act 1993. On 18 June 1998 the Claimants requested both the Second and Third Defendants to take delivery of the containers under clause 20 of the bill of lading contract. That provided:
"..(2) The Merchant shall take delivery of the Goods within the time provided in the Carrier's applicable Tariff (see clause 2). If the Merchant fails to do so the Carrier shall be entitled, without notice, to unpack the Goods if packed in Containers and/or to store the Goods ashore, afloat, in the open or under cover, at the sole risk of the Merchant. Such storage shall constitute due delivery hereunder and thereupon the liability of the Carrier in respect of the Goods stored as aforesaid shall wholly cease, and the costs of such storage (if paid or payable by the Carrier or any agent or Sub-Contractor of the Carrier) shall forthwith upon demand be paid by the Merchant to the Carrier."
The Claimants also requested that delivery should be taken under Section 12 of the Torts (Interference with Goods) Act 1977 which gives a statutory right to sell uncollected goods.
The Defendants failed to take delivery in accordance with these requests and it is pleaded that they were thereby in breach of contract and statutory duty.
There is also a claim based on the allegation that the Defendants tendered to the Claimants dangerous goods for carriage and/or goods which were not properly described in the bill of lading and not properly packed or marked or labelled.
It is then pleaded that by reason of those matters the claimants have suffered loss and damage. This is explained in the following particulars:
"(i) The Containers remain stored at Coatbridge. They cannot be moved (either within the United Kingdom or for export) until the Owner of the contents of the Containers completes the Standard Document for the Supervision and Control of Shipments of Radioactive Waste (Directive 92/3/Euratom). Further, they cannot be destroyed or otherwise disposed of in the United Kingdom without specific authorisation from the Scottish Environment Protection Agency which authorisation it has not given."
The loss and damage is quantified as including container demurrage for over five and a half years, storage charges at Coatbridge for a similar period, survey and inspection fees and accounts from the Scottish Environment Protection Agency, the total amounting to about £148,000. The relief claimed is set out in the prayer as follows:
"(1) A declaration that the First and/or Second and/or Third Defendants are the owners of the contents of the Containers.
(2) A declaration that the First and/or Second and/or Third Defendants are jointly and severally liable to take delivery of the Containers.
(3) A declaration that the Claimants are entitled to abandon the Containers and their responsibility for the same (insofar as they have such) has ceased.
(4) An order by way of specific performance of the contract of carriage contained in and/or evidenced by the Bill of Lading that the First and/or Second and/or Third Defendants take delivery of the Containers in accordance with any requirements which may be imposed by the Scottish Environmental Protection Agency or other regulatory authority.
(5) An indemnity as aforesaid.
(6) Further or alternatively, damages in addition to specific performance.
(7) Interest.
(8) Further or other relief."
The very considerable periods of time by reference to which the claims for container demurrage and storage charges have been calculated is due to the continuing immobilisation of the containers at Coatbridge where they still remain. The Scottish Environmental Protection Agency (SEPA) has repeatedly made it known to the Claimants that it will not allow the containers to be moved unless they are returned to Egypt under special safety arrangements with the Egyptian Government. No such arrangements have been made, although the Claimants have made considerable efforts to obtain governmental consent. They are not to blame for the lack of progress. Not even the Foreign and Commonwealth Office has been able to persuade the Egyptian Government to co-operate in the disposal of the consignment.
The claim form was not issued until 8 March 2004, five years and ten months after shipment and was served on the Second Defendant on 29 April 2004 and on the Third Defendant on 15 April 2004, the First Defendants being served in Egypt with leave of this court The Claimants had given no previous indication to either defendant that they were about to commence proceedings. Indeed, there had been no communication from them to the Third Defendants since June 1998 or to the Second Defendants since 13 March 2000. Both defendants assumed that the matter was closed in so far as they were concerned.
Following service of the particulars of claim, the Second and Third Defendants served defences on 22 July 2004. They relied on substantially the same points, their main contention being that the Claimants' bill of lading contract did not provide for carriage beyond Felixstowe. The Second Defendants pleaded that they had divested themselves of any further obligations in respect of the goods by their endorsement of the bills of lading to the Third Defendants. They further denied that in sending the request to the Claimants by fax on 27 May 1998 to deliver the containers to the Third Defendants at Hamilton, W M Martin & Co (Marine) Ltd had been acting as agents for the Second Defendants. The Third Defendants' defence alleged that the only claim that could lie against them was in respect of the on-carriage from Felixstowe, but no such contract had been pleaded.
Following service by the Claimants of Requests for further information from both the Second and Third Defendants in August 2004 and Responses from both which were served in September 2004, on 18 and 19 October 2004 the Claimants' solicitors wrote to all three defendants requesting consent to the amendments of the Particulars of Claim the subject of this application. The Second and Third Defendants both objected on the grounds that new causes of action were being relied upon which were time-barred. No response was received from the First Defendants. The Claimants then issued this application on 8 December 2004, six and a half years after they had tendered the goods for delivery to the Third Defendants. Unfortunately, the hearing could not take place until 19 April 2005, nearly seven years after the Claimants had tendered delivery.
The amendments introduce the following new matters.
i) There is a minor change to the name of the Second Defendants to which no objection is taken.
ii) There was in the alternative to the terms of the bill of lading as originally pleaded, a variation of the bill of lading contract by the fax of 27 May 1998 to the effect that the delivery place was to be the Third Defendants' premises at Hamilton.
iii) Alternatively, there was a new, additional contract of carriage under which the Claimants were to carry the containers to Hamilton. That additional contract ("the Alternative Contract") was on the same terms as the bill of lading contract.
iv) It was pleaded in the alternative that the defendants were in breach of the...
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