Tanga Pharmaceuticals Plastics Ltd and Others v Emirates Shipping Line FZE

Hearing dates: 13 February 2025

Approved Judgment

This judgment was handed down remotely at 10:00am on 27/02/25 by circulation to the parties' representatives by e-mail and by release to the National Archives.

This judgment is concerned with the application of the Defendant for summary judgment against the Claimants, on the basis that the Claimants' claims are time-barred.

The assumed facts

It was common ground that, for the purposes of this hearing, the following facts could be assumed.

The Claimants are the owners of, or have interests in, 548 containers and their contents (the “Cargo”), which was shipped aboard MV “Alion” (the “Vessel”), for carriage by sea to Mombasa in September 2021. The Defendant was the carrier under the applicable bills of lading.

The Defendant chartered the Vessel from her owners, Alion Maritime Limited, under a time charter dated 9 August 2021.

The Cargo was shipped under identical bills of lading (the “Bills of Lading”), for carriage from India, the UAE, and Saudi Arabia to Mombasa, Kenya. The Bills of Lading were all issued by the Defendant and were all expressly governed by English law and subject to English jurisdiction.

The Vessel suffered a motor engine failure on 15 September 2021, off Salalah coast, in the Arabian Sea.

On 20 September 2021, Tsaviliris Salvage International (“Salvors”) rendered salvage services under the terms of a Lloyd's Standard Form of Salvage Agreement (“LOF”) to the Vessel and its cargo. The LOF was terminated and thereafter general average declared on or around 5 October 2021.

With the assistance of salvage agents, the Vessel discharged at Mombasa on 6 December 2021.

The Cargo was subsequently released to receivers at Mombasa, when salvage security and general average security had been provided.

Settlement agreements were reached between the Defendant and Salvors on 29 July 2022. The Claimants reached a settlement with Salvors at around the same time.

On 3 November 2022, the Claimants notified the Defendant of claims they intended to bring under the contract of carriage contained in or evidenced by the Bills of Lading, seeking indemnity for their liability to Salvors and (in some cases) for particular average.

On 18 November 2022, the Defendant granted the Claimants an extension agreement until 20 March 2023, expressly on condition that the claims were not already time barred. This extension was later renewed until 20 June 2023.

The Claimants issued a claim form dated 16 June 2023, asserting claims against the Defendant under the contracts of carriage contained in or evidenced by the Bills of Lading. As previously indicated, the claims related to the settlement with Salvors and to particular average costs and expenses.

On 27 June 2024, the Claimants obtained an order from the court, extending the period of the validity of the claim form for service, until 16 December 2024. Service took place on 5 July 2024.

The Bills of Lading

The front of each Bill of Lading identified the relevant container(s) and what it was said to contain, and included typical wording stating that they had been received for carriage:

“… on the terms and conditions hereof INCLUDING THE TERMS AND CONDITIONS ON THE REVERSE SIDE HEREOF.”

The terms on the reverse included the following:

“ 1. DEFINITIONS

“Carrier” means Emirates Shipping Line DMCEST

…

“Hague Rules” means the provisions of the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25 August 1924 or any national legislation making such Rules compulsorily applicable to this Bill of Lading.

…

2. CLAUSE PARAMOUNT

(1) Save where the English Carriage of Goods by Sea Act 1971 applies the Hague Visby Rules compulsorily to this Bill of Lading, in which event this Bill of Lading shall be subject to the Hague Visby Rules, the Hague Rules shall apply and the Carrier shall be entitled to the benefit of all privileges, rights and immunities contained in Articles I to VIII of the Hague Rules, save that notwithstanding the provisions of Article III Rule 8 of the Hague Rules, the limitation sum for the purpose of Article IV Rule 5 of the Hague Rules shall be £100 pounds sterling.

(2) Notwithstanding Clause 2(1) above, for shipments to and from the United States, this Bill of Lading shall be deemed to incorporate and shall give effect to the provisions of the United States Carriage of Goods by Sea Act (hereinafter “COGSA”) approved April 16, 1936 and nothing herein nor contained in the said Act shall be deemed a surrender by the Carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities thereunder, nor shall the Carrier be deemed to have warranted the seaworthiness of the Vessel. The provisions stated in COGSA shall govern the Goods before they are loaded on and after they are discharged from the Vessel and throughout the entire time that they are in the custody of the Carrier at a United States port and/or in the custody of any pre-carriers, on-carriers or subcontractors in the United States. The Carrier shall also have the benefit of Sections 181 to 189, inclusive of title 46 US Code and the benefits of Sections 4281 to 4286 inclusive and Section 4289 of the United States Revised Statutes, as amended, the same as if it were the owner of the Vessel or other water craft used to transport the Goods.

(3) Notwithstanding Clauses 2(1) and 2(2) above, if this Bill of Lading is subject to legislation which makes the Hamburg Rules compulsorily applicable to it, then this Bill of Lading shall have effect subject to the Hamburg Rules when an action is brought in the country from or to which the Goods have been shipped (without prejudice to Clause 24) and the Hamburg Rules are compulsorily applicable in such country, which shall nullify any stipulation derogating therefrom to the detriment of the shipper or consignee. If the Hamburg Rules are compulsorily applicable to this Bill of Lading by reason of the aforesaid, it is hereby agreed that the date of delivery of the Goods shall be six (6) months from the date of shipment.

…

9. CARRIERS RESPONSIBILITY PORT-TO-PORT SHIPMENTS, TRANSSHIPMENTS

Save as otherwise indicated on the face hereof, where the Carriage under this Bill of Lading is from the Port of Loading to the Port of Discharge, the liability (if any) of the Carrier for the loss of or damage to the Goods occurring from and during the loading onto any seagoing Vessel up to and during discharge from said Vessel or from another vessel into which the Goods have been transshipped shall be determined in accordance with Clause 2 hereof. Notwithstanding the above, the Carrier shall be under no liability whatsoever for loss of or damage to the Goods howsoever occurring, when such loss or damage arises prior to the loading on or subsequent to the discharge from said Vessel(s) unless the Goods are loaded or discharged at ports in the United States and save where the Hamburg Rules apply compulsorily.

Where the Goods under this Bill of Lading are to be transhipped and/or forwarded, then save as otherwise indicated on the face hereof the Carrier's responsibility as Carrier shall terminate when the Goods are delivered to the party transhipping and/or forwarding and the Carrier shall thereafter be under no liability whatsoever for loss of or damage to the Goods howsoever occurring. The party transhipping and/or forwarding the Goods shall thereafter be solely responsible vis-a-vis the Merchant and/or any interested party(ies) (owners of the Goods, shippers and/or consignees) for any loss of or damage to the Goods howsoever occurring after the moment when Carrier's responsibility shall terminate as aforesaid. In making arrangements for transshipment and/or forwarding, the Carrier shall (and is hereby authorised to) act only as AGENT for and on behalf of the MERCHANT.

…

18. NOTICE OF LOSS OR DAMAGE, TIME BAR

Unless notice of loss or damage and the general nature of such loss or damage is given in writing to the Carrier or his agent at the Port of Discharge or Place of Delivery as the case may be before or at the time of the removal of the Goods into the custody of the Merchant or if the loss or damage is not apparent, within three days after delivery, such removal shall be prima facie evidence of the delivery by the Carrier of the Goods as described in this Bill of Lading.

Any claim against the Carrier for any adjustment, refund of or with respect to freight, charges or expenses or any claim other than for loss or damage to Goods must be submitted fully documented to the Carrier or its agent in writing within 20 days from the day when the Goods were or should have been delivered, failing which such claim will be time-barred.

…

In any event, the Carrier and the Vessel shall be discharged from any liability for loss of or damage to the Goods or with respect to freight, charges or expenses, or the refund thereof or any claim of whatsoever kind, nature or description, with respect to or in connection with the Goods unless suit is brought within one year of delivery of the Goods or the date when the Goods should have been delivered, failing which all such claims will be time-barred. If this Bill of Lading shall be subject to the Hamburg Rules, any claim in relation to...