Santos v Owners and/or demise charterers of the ship or vessel 'Baltic Carrier' [QBD (Admiralty)]
| Jurisdiction | England & Wales |
| Judge | David Steel J |
| Judgment Date | 21 February 2001 |
| Court | Queen's Bench Division (Admiralty) |
| Date | 21 February 2001 |
Queen's Bench Division (Admiralty Court).
David Steel J.
Richard Lord (instructed by Clyde & Co) for the claimant.
C Wright (instructed by Grant and Horton) for the defendants.
The following cases were referred to in the judgment:
Alnwick, TheELR [1965] P 357.
Bua International Ltd v Hai Hing Shipping Co Ltd [2000] CLC 603.
Espanoleto, TheELR [1920] P 223.
HMS ArcherELR [1919] P 1.
Kleinwort Benson Ltd v Barbrak Ltd (“The Myrto”) (No. 3)ELR [1987] AC 597.
Niceto de Larrinaga, TheELR [1966] P 80.
Seaspeed America, TheUNK [1990] 1 Ll Rep 150.
Shipping — Procedure — Service of claim form — Time limit for proceedings against owners or ship — Extending time allowed for bringing proceedings — Solicitors placing vessel on “UK watch” had taken all reasonable steps to serve claim form — CPR, r. 7.6(3)(b), (c) — Merchant Shipping Act 1995, s. 190(3), (5), (6).
These were two applications, the first by owners to set aside renewal of a claim form on the grounds that the claimant did not take reasonable steps to serve the claim form within the period of its validity and did not apply promptly to extend the period of the validity of the claim form under CPR, r. 7.6, and the second by the claimant for an order that the time allowed for bringing proceedings in a second action should be extended pursuant to s. 190 of the Merchant Shipping Act 1995.
The claimant, “S”, was a seaman on the vessel Baltic Carrier who alleged that he had sustained personal injuries in a collision between the Baltic Carrier and the vessel Flinterdam in the Kiel Canal in March 1998. S's English solicitors placed the vessels on “UK watch” and in June 1999 issued proceedings against both vessels which were served on the Baltic Carrier when it visited an English port. The limitation period in relation to S's claim against the Flinterdam, as the other vessel in the collision, was two years under s. 190(3) of the Merchant Shipping Act 1995. The proceedings were not served on the Flinterdam before that period expired in March 2000, although the Flinterdam visited an English port in August 1999, since the solicitors did not find out about the visit until it was too late to effect service. In June 2000 the period of 12 months permitted for service of the claim form expired. Later in June 2000 S's solicitors, believing that the limitation period had not expired, issued and served a new claim form against the Flinterdam when it visited England. They also obtained a without notice renewal of the validity of the first claim form and served that on the Flinterdam in July. The owners of the Flinterdam applied to set aside that order on the basis that the claimant had not taken reasonable steps to serve the claim form within the period of its validity and had not applied promptly to extend the period of its validity required by CPR, r. 7.6(3)(b), (c). S applied for an extension of time for bringing the second action under s. 190(5) and (6).
Held extending time under s. 190(5):
1. The claimant would be entitled to a mandatory extension under s. 190(6) if there had been no reasonable opportunity for arresting the defendant's ship within the jurisdiction in the two year period. But the test was objective, without regard to whether steps were actually taken, and on that basis there had been a reasonable opportunity of arresting the Flinterdam since she had visited England in 1998 and 1999.
2. The court had a discretion to extend time under s. 190(5) to be exercised on similar principles as applied under the CPR. (The Seaspeed AmericaUNK[1990] 1 Ll Rep 150 and The Myrto (No. 3)ELR[1987] AC 597 applied.)
3. Applying CPR, r. 7.6 the claimant therefore had to show that he had taken all reasonable steps to serve the first claim form during the period of its validity and had acted promptly in making his application. The evidence before the court was that even if a world-wide rather than a UK watch had been maintained, information about the arrival of the Flinterdam in England in August 1999 would probably not have been available any earlier than about the time it was and not in time for steps to be taken to serve the proceedings on the vessel. It was appropriate in the case of the Flinterdam to restrict the scope of the watch to UK only. Therefore the solicitors did take all reasonable steps to serve claim form. S had acted promptly in making the application. Although the limitation period had expired some three months earlier, the validity of the first claim form had only expired some three weeks earlier. The court had always treated the principles applicable to renewal and extension in circumstances of the lack of practicable opportunity for an arrest as the same, and if an application to renew the first claim form had been made in place of issuance of the second claim form, such application would have been fairly categorised as promptly made. As a matter of discretion there were good grounds for extending time and no material hardship or prejudice to the defendants.
David Steel J: 1. The court has before it two related applications in two related actions. The claimant, formerly a Philippino seaman, claims damages in regard to injuries sustained by him in a collision between the vessel Baltic Carrier (on which he was employed as a seaman) and the vessel Flinterdam, which occurred on 16 March 1998 in the Kiel Canal.
2. The claimant has commenced two actions. The first, 1999 Folio 760, was issued on 8 June 1999 in which the two defendants are the respective owners of the two vessels. The second action, 2000 Folio 723, was commenced by a claim form dated 27 June 2000 in which the only defendants are the owner of Flinterdam.
3. The applications arise in this way. On 14 July 2000, Master Miller acceded to the claimant's application made ex parte by means of an application notice dated 12 July, for an order that the claim form in the first action be renewed as against the second defendants. In the first application before the court raised by an application notice dated 24 October 2000, the second defendants, the owners of the Flinterdam, seek to set aside that order on the basis that the claimant did not take reasonable steps to serve the claim form within the period of its validity and did not apply promptly to extend the period of the validity of the claim form: see CPR, r. 7.6.
4. The second application is brought by the claimant. It is by way of an application notice dated 18 July 2000, for an order that the time allowed for bringing proceedings in the second action (which expired on 16 March 2000) be extended until 27 June 2000, pursuant to s.190 of the Merchant Shipping Act 1995.
5. Some six months after the collision occurred, Captain Barry Turner of Clyde & Co was in the Philippines on business and was invited by the ITF to interview the claimant. On 26 November 1998, Captain Turner advised the ITF that in his judgment the claimant had sustained injuries as a result of the collision and recommended that he should attend on a specialist consultant in order to obtain a report for use in legal proceedings.
6. In anticipation of being instructed in due course by the ITF to act on the claimant's behalf, Clyde & Co on 11 January 1999, placed the vessel on their internal ship-watch system. The Clyde & Co watch system is based on information furnished by Informa Publishing Co, formerly Lloyd's of London Press Ltd, who maintain a database on the movement of almost all registered merchant vessels world-wide. The system was operated by an associate at Clyde & Co, Miss Hazel Adlam, and for present purposes can...
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