Raayan Al Iraq Company Ltd et Al v Trans Victory Marine Inc. et Al
| Jurisdiction | England & Wales |
| Judge | Mr Justice Smith |
| Judgment Date | 23 August 2013 |
| Neutral Citation | [2013] EWHC 2696 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 23 August 2013 |
| Docket Number | Claim No: 2013 Folio 250 |
[2013] EWHC 2696 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
COMMERCIAL
Royal Courts of Justice
Rolls Building
7 Rolls Buildings
Fetter Lane
London EC24 1NL
The Honourable Mr Justice Andrew Smith
Claim No: 2013 Folio 250
Mr. Ennet Goldrick for the Claimant
Mr. Mark Jones for the Defendant
Hearing date: Friday, 23rd August 2013
This is an application by the claimant for an extension of two days for the service of their particulars of claim. They were due on 23 rd July 2013. In fact, they were served on 25 th July 2013. The purpose of their application is to regularise the position.
The action is about a cargo claim that is brought after consignments of cargo such as cartons of fruit juice apparently went overboard in the course of a voyage off the MAG Victory in December 2013 [sic] the voyage being from the UAE to Iraq. Some cargo was lost and other parts of the cargo were recovered but damaged. Apparently, the claim is for something in the order of 850,000 US dollars.
The defendants' evidence goes somewhat further by way of a description of the incident and gives more details but I need not go into that except to acknowledge that the defendants say that the problems that the vessel encountered are not straight forward and as it is put:
"A number of phases and a number of different potential causative factors…will require careful analysis and Hague Rules regime" if the case comes to trial.
Two defendants are named in the proceedings. The bills of lading give the name of MAG Shipping Company Inc. as the carrier. The first defendant is not the carrier named in the bills of lading but is the owner of the vessel at the relevant time. The owners are not said to have issued bills of lading and the claim against them is pleaded in tort or bailment and it is also alleged that the vessel was unseaworthy at the start of the voyage.
The position of the second defendants, MAG Shipping Company LLC, is not clear. It might be that they are mistaken as the name carriers on the bills of lading. Mr Iain Butterworth of Myton Law, who are on the record for the defendants, says in his witness statement that the company named in the bills no longer exists and that it "was closed down a couple of years ago." However, that might be, the particulars of claim do not assert a claim against the second defendants named on the claim form and apparently the claimants have no security for a claim against them. It seems possible that the claim against the second defendants will not, in the end, be pursued but I cannot say whether that is so or not and it is certainly not for me to decide that today.
What are the merits of the claim otherwise? Mr Stuart Armstrong, a partner in Hill Dickinson of the claimant's solicitors, says in a witness statement that he believes that the claimants' claims are good. Mr Butterworth in a witness statement expresses disagreement and disputes that the vessel was unseaworthy and that the claimants were negligent and he indicates how the defendants might defend the claim referring, inter alia, to bad weather and to a Himalaya clause in the bills of lading and to other provisions in the bills including a time bar provision that:
"The carrier shall be discharged of all liability whatsoever in respect of suit unless suit is brought in the proper form and written notice, thereof, received by the carrier…within 12 months in respect of port to port shipment after the delivery of the goods or the date when the goods should have been delivered."
He also says that the defendants are entitled to the protection of a one year time bar under the Hague-Visby Rules. I shall refer in this judgment to the Hague Rules for the sake of simplicity.
The claims, to my mind, are properly arguable and equally the points made by Mr Butterworth are apparently arguable. On an application of this kind I cannot begin to form any more specific view of the merits about the underlying issues in this case. It is not sufficiently clear for that. I proceed on the basis that there is a genuine dispute in which both sides have respectable arguments.
As I have said, there is an issue about whether the first defendants were protected by a one year time limit under the Hague Rules or other contractual provision but there were agreed extensions of any time limit until 13 th March 2013. Mr Butterworth sets out the details. On 18 th February 2011 an extension was granted until 19 th June 2011. Thereafter there were a series of extensions for three month periods, the last being given on 6 th December 2012 and expiring, as I have said, on 18 th March 2013. Before the time limit expired, these proceedings were issued on 21 st February 2013 by Messrs Hill Dickinson on behalf of the eleven claimants, all of whom claim an interest in the cargo. No particulars of claim were served. CPR 58.5 provides that if particulars of claim are not contained in or served with the claim form the claimant must serve them within 28 days of the filing of an acknowledgment of service indicating an intention to defend.
Before the proceedings were issued, there were discussions between the cargo underwriters and the club representing the vessel which resolved many cargo claims arising from this incident but there remained live the claims the subject of these proceedings. Mr Armstrong observed that this is not a case in which the claimants or their representatives have been inactive in the period between when the causes of action arose and the issue of the claim form and Mr Butterworth acknowledges that. However, Mr Butterworth also points out that before the claim forms were issued:
(i) A formal claim was presented only in a letter of 18 th July 2010.
(ii) UK solicitors became involved only in the last year or so before proceedings were issued.
(iii) There were some without prejudice discussions on two occasions in December 2010 and September 2011.
Mr Butterworth did not dispute Mr Armstrong's evidence that many claims have been settled. He also said that the claimants had not sought to explain their title to sue but does not suggest that the defendants have ever pressed them to do so. Presumably the insurers on both sides recognise that they were dealing with subrogated claims and the identity of the insured on the different bills of lading was not of immediate commercial importance. However, Mr Butterworth states in his evidence:
"That the claimants did not, before issuing the proceedings, write a letter before action and that this was a breach of the commercial court guide and pre-action protocol. In this context he says that the presentation in the particulars of claim of a claim in bailment and tort came as a surprise the discussions having been 'premised' on a Hague Rules analysis."
I do not propose to say much about that because, as I understand it, the negotiations were without prejudice. However, a claim in tort and bailment is not inconsistent with the parties' rights and obligations being governed by a Hague Rules regime. In any case, Mr Butterworth's complaint does not, to my mind, fairly reflect the commercial court guide. The commercial court guide at B3.2 observes that:
"Subject to complying with the Practice Direction and any applicable approved protocol, the parties to proceedings in the Commercial Court are not required, or generally expected, to engage in elaborate or expensive pre-action procedures, and restraint is encouraged."
Mr Butterworth does not explain what purpose would have been served by such a letter. The claims had, no doubt, been discussed by experienced adjusters and the issues ventilated. The protocols are not designed to impose on the parties the expense of (inaudible) procedural hoops and no complaint was made about the absence of a letter before action before particulars of claim were late and the claimants put in the position where they had to make this application. It is said that any issues about title to sue or about the proper defendants might have been clarified but that is speculation. In my experience it is quite often the case that issues about title to sue are not resolved in cases of this kind by the time that proceedings have been brought and are generally resolved, consensually, in the course of proceedings. The point about not sending a letter before action appears to me opportunistic and not a matter that should weigh heavily on the exercise of my discretion.
After the claim form was issued Hill Dickinson asked Myton whether they had authority to accept service doing so on 9 th May 2012 and were eventually told by Myton that they did not. However, on 12 th May 2013 they had confirmed that they had been authorised and on 17 th June 2013 they agreed to accept electronic service. An acknowledgment of service was served late on 24 th June 2013 and is to be treated under the Rules as served on the 25 th June 2013 and it indicated an intention to dispute the claim. Accordingly, under CPR 58, particulars of claim were due on 23 rd July 2013 but as I have said, they were served two days late. When they were served nothing was said about them being two days late and Hill Dickinson and, in particular, Mr Armstrong, are criticised in that regard. I do not find that criticism compelling. It was put in terms of impropriety and I reject that criticism. It is a pity that if an allegation of impropriety was to be made, proper notice of it was not given to Hill Dickinson and it was referred to only in the skeleton action before this hearing. I suspect that Hill Dickinson thought the delay was such that the defendants would be entirely unconcerned and there is no proper basis for any implied assertion that they thought Mr Butterworth would overlook it. Even if they did think that, I hesitate to criticise...
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