FAMV No. 24 of 2001
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 24 OF 2001 (CIVIL)
(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACV NO. 868 OF 2000)
|THE OWNERS OF CARGO LATELY LADEN ON BOARD THE SHIP OR VESSEL "ALMERINDA"
|- AND -
|THE OWNERS AND/OR DEMISE CHARTERERS OF THE SHIP OR VESSEL "ALMERINDA"
|ASSURANCEFORENINGEN SKULD (GJENSIDIG)
Appeal Committee: Chief Justice Li, Mr Justice Chan PJ and Mr Justice Ribeiro PJ
Date of Hearing: 30 October 2001
Date of Determination: 30 October 2001
Chief Justice Li:
1. Mr Justice Ribeiro will deliver the determination of the Appeal Committee.
Mr Justice Ribeiro PJ:
2. The claim which underlies this application is brought by the owners of a cargo of steel bars carried from Brazil to Hong Kong on the defendants' vessel the "ALMERINDA". Upon discharge in Hong Kong in July 1993, the steel bars were found to have suffered rust-damage which the plaintiffs say was caused by the ingress of seawater into the vessel's cargo holds. They seek damages totalling some $1.2 million, representing the alleged difference in value between sound and damaged steel bars.
3. The facts relevant to this application have been fully set out in the judgments of Stone J (HCAJ 222/1994) and of Rogers VP, giving the decision of the Court of Appeal ( 2 HKC 596). Mr Clifford Smith SC appears for the vessel's P&I Club, Interveners who have provided security for the claim. Mr John Bleach SC appears for the plaintiff cargo owners.
4. Mr Smith seeks leave to appeal to the Court of Final Appeal against the interlocutory ruling of Stone J, upheld by the Court of Appeal, granting the plaintiffs leave to amend their statement of claim.
5. The writ was issued on 18 June 1994, generally indorsed as follows :-
"The Plaintiffs' claim against the Defendants who are, or were, at all material times the owners and/or demise charterers of the ship or vessel 'ALMERINDA' is for damages for breach of a written contract contained in or evidenced by Bill of Lading No. 1 dated Hong Kong 20th May 1993 and/or oral contract dated in or about May 1993 and/or duty and/or negligence in or about the loading, handling, custody, care and discharge of the Plaintiff's cargo of prime quality high tensile steel deformed bars and the carriage thereof on board the Defendants' ship or vessel 'ALMERINDA' from Vitoria, Brazil to Hong Kong during the months of May, June and July 1993 which resulted in loss and/or damage and/or delay."
6. Three different bills of lading had apparently been issued in relation to the carriage, causing confusion in relation to the delivery and reception of the cargo in Hong Kong, as well as to the plaintiffs' perception of the nature of their claim in the action. However, as the pleadings show, it is not in dispute that the bill of lading referred to in the indorsement on the writ is the bill referred to as "the Jardine bill".
7. In the unamended statement of claim, the plaintiffs pleaded the Jardine bill, alleging that it had been signed for and on behalf of the defendant shipowners who thereby acknowledged shipment of the cargo on board their vessel. On this basis, the plaintiffs claimed that they were parties to a contract of carriage with the defendants, evidenced by the Jardine bill and that they were owed duties by the defendants as bailees or carriers for reward. The defendants filed a defence denying that the Jardine bill had been issued by them or on their behalf. To meet this defence, the plaintiffs sought to amend their pleadings and, in an intermediate draft of the amendment, sought to rely instead on one of the other bills of lading which is not mentioned in the writ.
8. The amendment now sought to be made has been re-formulated so that the claim desired to be asserted is put as follows :-
"...... the Defendants (by delivering the cargo to the Plaintiffs ......) attorned to the Plaintiffs and acknowledged that the Plaintiffs were a party to the contract for the carriage of the cargo from Vitoria, Brazil to Hong Kong contained in or evidenced by the Jardine Bill of Lading."
9. The plaintiffs therefore seek once more to found their claim on the Jardine bill, referred to in the writ. The amendment also seeks to put the plaintiffs' reliance on that bill on the basis of an implied contract upon its terms, being a contract of a nature similar to that recognized in Brandt v Liverpool Steam Navigation Co Ltd  1 KB 575. In that case, the court recognized the existence of an implied contract deduced from the conduct of the parties in relation to the delivery and acceptance of the cargo at the vessel's destination.
10. The defendants resist the amendment on the ground that the proposed Brandt claim is time-barred. Their argument may be summarised in these terms :-
(1) The plaintiffs' claim is subject to the Hague-Visby Rules, including the time-bar contained in Article III r 6 which provides that :-
"...... the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered."
(2) The only suit brought within the relevant year was one founded on the Jardine bill with the plaintiffs asserting rights of suit derived from the Bills of Lading Ordinance then in force.
(3) The Brandt claim now sought to be asserted involves an entirely different cause of action, not encompassed by the indorsement on the writ. This is clear from the relevant contract being there described as a "written" contract. Therefore, no Brandt claim was brought in time.
(4) Where a claim is out of time, it is not merely subject to a procedural bar, the carrier is discharged from all liability by Art III r 6: Aries Tanker Corporation v Total Transport...