Rowan Companies Inc. v Lambert Eggink Offshore Transport Consultants VOF [QBD (Comm)]
| Jurisdiction | England & Wales |
| Judge | David Steel J. |
| Judgment Date | 17 June 1999 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 17 June 1999 |
Queen's Bench Division (Commercial Court)
David Steel J.
David Garland (instructed by Clyde & Co) for Rowan.
Simon Rainey (instructed by Jackson Parton) for the defendants.
The following cases were referred to in the judgment:
Aiken v Stewart Wrightson Members Agency Ltd (The Pulbrook Syndicates) [1995] CLC 318; [1995] 1 WLR 1281
Bank of America National Trust & Savings Association v Chrismas (“The Kyriaki”)UNK [1994] 1 All ER 401
Central Electricity Board v Halifax CorpELR [1963] AC 785
Collin v Duke of WestminsterELR [1985] QB 581
Farmizer (Products) Ltd, ReUNK [1997] BCC 655
Henderson v HendersonENR (1843) 3 Hare 100; 67 ER 313
Keystone Knitting Mills Trade Mark, ReELR [1929] 1 Ch 92
Leivers v Barber Walker & CoELR [1943] KB 385
Pratt v Cook Son & Co (St Paul's) LtdELR [1940] AC 437
Rowan Companies Inc v Lambert Eggink Offshore Transport Consultants vof [1998] CLC 1574
Welsh Development Agency v Redpath Dorman Long LtdWLR [1994] 1 WLR 1409
West Riding County Council v Huddersfield CorpELR [1957] 1 QB 540
Shipping — Joinder — Limitation — Towage contract — Claimant took proceedings against Dutch partnership for breach of contract — After partnership dissolved plaintiff applied to join partners as defendants — Whether claim against partners statute-barred — Civil Procedure Rules, r. 19.4(3) — Limitation Act 1980, s. 8, 9.
This was an application by the claimant to join the partners of a dissolved Dutch partnership as defendants to an action against the partnership.
In 1990 during the course of a tow of an oil rig owned by the claimant, “Rowan”, the rig grounded. Rowan took proceedings on an alleged towage contract made on the Towcon form with the first defendant, a Dutch partnership or “VOF”. The writ was issued within one year as required by cl. 24 of the Towcon form and served on the VOF out of the jurisdiction. In 1993 the claimants were informed by solicitors acting for the VOF that it had been dissolved. The claimants accordingly sought to join the three partners in the VOF as defendants. The Court of Appeal held that the partners could not rely on the time-bar in cl. 24 because the claim against them did not arise under the contract but by virtue of art. 18 of the Dutch Commercial Code. The Court of Appeal refused to order the partners to be joined and remitted the matter to the Admiralty Judge. The defendants opposed joinder on grounds that the claim against the partners was barred by virtue of the six year time limit in s. 9 of the Limitation Act 1980.
Held, refusing the application for joinder:
1. The claim that the partners were liable for the obligations of the firm under art. 18 of the Dutch Commercial Code was a claim “upon a specialty” within s. 8(1) of the Limitation Act 1980 but the action was within the exception contained in s. 8(2) where another period of limitation was prescribed and that was the six year period applicable to an action to recover any sum recoverable by virtue of any enactment under s. 9(1). The word “sum” in s. 9(1) was apt to encompass a claim for unliquidated damages. Actions on a specialty were not confined to claims for liquidated sums and the scheme of the Act was to impose a six year limitation period on claims for money under an enactment thus constituting an exception to the general rule as regards specialties. Accordingly the claim against the partners was time-barred by virtue of s. 9. (Aiken v Stewart Wrightson Members Agency Ltd (The Pulbrook Syndicates)[1995] CLC 318; [1995] 1 WLR 1281 and Re Farmizer (Products) LtdUNK[1997] BCC 655considered.)
2. Under s. 35 of the 1980 Act and Civil Procedure Rules, r. 19.4(3) the partners could not be joined because their joinder was not necessary. The partners were not estopped from relying on the limitation period. The court could not back date the order for joinder to a date within the limitation period and would not be minded to do so even if it could.
David Steel J: This litigation has a depressingly long history. It arises out of contract on a Towcon form which the claimants (“Rowan”) allege was made with first defendants (“VOF”). During the course of a tow of an oil rig owned by Rowan undertaken by tugs operated by the second and third defendants, the rig grounded. This casualty occurred as long ago as 15 February 1990. Accordingly, it is not surprising that the issues between the parties with which I am now concerned nearly a decade later relate to questions of limitation.
The procedural history is as follows. The writ was issued on 14 February 1991. This was intended to satisfy the requirements of cl. 24 of the Towcon form:
“[A]ny suit shall be brought within one year of the time when the cause of action first arose. If [this condition] is not complied with the claim and all rights whatsoever and howsoever shall be absolutely barred and extinguished.”
Leave to serve the writ out of the jurisdiction on VOF was obtained by virtue of the exclusive jurisdiction clause in the contract. The writ was duly served on VOF in April 1991. VOF acknowledged service on 2 May 1991.
The action then went to sleep until a notice of intention to proceed was served by the claimants on 26 May 1993. Shortly thereafter the claimant's solicitors were informed by solicitors acting for VOF that VOF had been dissolved. Inquiries revealed that VOF had ceased trading in August 1992. The precise nature of a VOF was not clear but it appeared to be akin to a partnership. The plaintiffs accordingly sought to join the three partners as defendants.
By now, of course, the one year contractual time limit had expired but the plaintiffs advanced the proposition in their affidavit supporting the application to join the partners that, since VOF had been sued in time, the time bar was irrelevant as regards the partners.
The application to join the partners came before the Admiralty Registrar in November 1994. There is a note of his decision in the papers before the court. The application was not made ex parte (without notice) but on notice to the three partners. The partners appeared by counsel and opposed the joinder. The plaintiffs argued that VOF and all three partners were parties to the contract and that suit brought against VOF was sufficient to stop time running against the individual partners. In the event the Admiralty Registrar refused the application. His reasons are summarised on p. 8 of the note of his judgment as follows:
“At the end of the day I am quite satisfied that the true construction of cl. 24 does not allow suit brought against one defendant in respect of one cause of action to suspend the time bar provision against another defendant and beyond that I do not need to go. I apprehend that...
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