These were two appeals on points of law under s 69 of the Arbitration Act 1996 (UK) (the Act) arising from an arbitration award given on 16 February 2023. Pedregal Maritime SA (the defendant) was the carrier and owner of the Taikoo Brilliance. Batavia Eximp & Contracting (the claimant) was the holder of four bills of lading issued by the defendant for timber cargo. The carriage took place from New Zealand to Kandla, India. Two of the bills of lading referred to the fact that part of the cargo was carried on deck. One bill referred to 22,994 pieces, another to 11,092 pieces. The bills provided for any dispute to be referred to arbitration.

The cargo was discharged in Kandla, India, on 16 September 2019. The bills were unavailable, and the cargo was delivered against a letter of indemnity. There was a misdelivery claim.

On 18 August 2020, the claimant issued a writ to the High Court of Singapore for the arrest of the Navios Koyo, a sister ship to the Taikoo Brilliance. The Navios Koyo was arrested on 18 September 2020. On 25 September 2020, the ship was released upon providing security.

The defendant applied for a stay of Singapore proceedings in favour of the arbitration. A stay was granted on 20 December 2020. The Singapore High Court later confirmed the decision on 15 March 2021, and the Singapore Court of Appeal on 19 October 2021 (see The Navios Koyo CMI1415).

The arbitration proceedings did not commence until 22 or 24 December 2020. That was more than a year after the alleged misdelivery.

The hearing commenced on 18 May 2022. The owners argued that the claim was time-barred according to art 3.6 of the Hague-Visby Rules. The arbitrator decided that the time bar applied only in respect of the cargo carried under deck. The award was issued on 16 February 2023.

On 26 June 2023, Bright J gave leave to appeal under s 69 of the Act. The hearing was listed pending the result of the appeal to the UK Supreme Court in The Giant Ace (CMI2555). The relevant questions of law were decided in line with the Supreme Court decision in The Giant Ace and were not elaborated on in the relevant judgment.

Two questions of law remained.

(1) Whether the Singapore proceedings constituted a 'suit' for the purposes of art 3.6 of the Hague-Visby Rules.

(2) What is required by the words 'which by the contract of carriage is stated as being carried on deck' in the definition of 'goods' in art 1.c of the Hague-Visby Rules.

Held: The first question was decided in the defendant's favour; the second question was decided in the claimant's favour.

Knowles J addressed the issue of proper interpretation of the Hague-Visby Rules. Here, the Judge relied upon The Giant Ace [34] which stated that:

(1) International Conventions should be interpreted by reference to broad and general principles of interpretation rather than narrower domestic law principles.

(2) The general principles include art 31.3 of the Vienna Convention on the Law of Treaties 1969: 'A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.'

(3) The general principles include art 32 of this Convention, which provides that recourse can be made to 'supplementary means of interpretation'.

(4) Concerning the Hague Rules, such supplementary means may be the travaux préparatoires.

(5) In considering the object and purpose of the Hague Rules, it is appropriate to consider their history, origin, and context.

(6) It can be appropriate to consider the French text of the Hague Rules, as this is the official and authoritative version.

(7) As international Conventions should be interpreted uniformly, regard should also be had to how the courts of different countries have interpreted them.

The first question

The purpose of art 3.6 of the Hague-Visby Rules is 'to achieve finality and to enable accounts and books to be closed' (The Giant Ace [84] referring to The Aries 188 (CMI2194), and The Captain Gregos [1990] 1 Lloyd's Rep 310, 315).

The Singapore proceedings were for security, and they would not decide the claim. Although the ordinary meaning of the word 'suit' can extend to proceedings for security, this contradicts the object and purpose of the Hague-Visby Rules. Knowles J rejected the claimant's argument that this involved an 'unjustified gloss on the text'. The passage of the year with no action on the merits should clear the books. The Judge reacted similarly to the claimant's other argument that if the claimant seeks security and this is known to the defendant, the defendant should understand that it is unsafe to clear its books. However, this interpretation would lead to the situation where the defendant must leave its books open for an indefinite period until the claimant decides to bring an action on the merits.

Therefore, Knowles J confirmed the arbitrator's position that the relevant part of the claim was time-barred according to art 3.6 of the Hague-Visby Rules.

The second question

The defendant argued that, for art 1.c of the Hague-Visby Rules to apply, the bills of lading had to identify not just the quantity of the cargo carried on deck but the precise parcels so carried. The defendant could add these words 'quickly and easily' to the identification quality required by the Hague-Visby Rules. Knowles J accepted that this would be desirable. However, the Judge also emphasised that this takes the matter further than the relevant provision allows.

The Judge referred to Timberwest v Gearbulk Pool Ltd (CMI1020) and Gearbulk Pool Ltd v Seaboard Shipping Co Ltd (CMI1028). In these cases, the deck cargo was identified by percentage of all the cargo. The courts found the description sufficient to allow calculating the extent of the shippers' risks. Therefore, the type of identification that is sufficient depends on the type of cargo and other circumstances of the carriage.

Even though the cargo was identified imperfectly, the arbitrator decided that the description was sufficient to identify which cargo was carried on deck and, therefore, exempted from the Hague-Visby Rules. The Judge refused to reconsider the arbitrator's factual conclusion on the sufficiency of description.