The appellant shipped goods on the respondent's ship. Some goods were not delivered. He sued in the Magistrate’s Court for the value of the goods missing. The magistrate settled issues at the hearing based on the respondent's written contention that an exclusion clause in a 'cargo receipt' applied. The magistrate found that the cargo receipt was not a contractual document. He also settled a further issue in his judgment, namely whether the limitation period for bringing an action in the Carriage of Goods by Sea Act (Cap 103) applied. He decided that he should apply the limitation period, although it was not relied upon by the respondents. As the appellant's claim was outside that period he thereupon dismissed the suit. The appellant appealed to the High Court.

Held: Appeal allowed. Judgment for the appellant.

The Magistrate was right in saying that a defence such as is embodied in the Carriage of Goods by Sea Act is a defence of statutory limitation and it must be specifically raised if reliance is placed upon it. In the context of Magistrates’ Court civil proceedings where formality of pleading is not to be insisted upon, it is not necessary to put it before the court as a pleading but it is still necessary for a party to raise specifically a defence of limitation. In this case the respondent raised a number of matters with the court in a letter and affidavit but, as the Magistrate said, it chose not to raise this defence. The Magistrate was not bound to raise the matter himself in the circumstances of this case and act upon it. There maybe a case when a magistrate dealing with unrepresented litigants might feel disposed to mention the availability of a defence of limitation to the parties but, even if circumstances so warranted, it must in the final analysis be for the party concerned to decide whether or not to rely upon it.

Even had the matter been raised in this way and even had it been relied upon by the respondent the limitation defence would not have succeeded. Article 3.6 of the Schedule to which the Magistrate refers in his judgment must be interpreted in accordance with the terms of art 1. Thus the 'carrier' protected by that paragraph 'includes the owner or the charterer who enters into a contract of carriage with a shipper'. In turn 'contract of carriage' is defined as applying:

only to contracts of carriage covered by a bill of lading or any similar document of title, insofar as such document relates to the carriage of goods by sea, including any bill of lading, or any similar document as aforesaid issued under, or pursuant to, a charter party, from the moment at which such bill of lading or similar document of title regulates the relation between a carrier and a holder of the same.

Indeed all the responsibilities and liabilities set out in art 3 apply only to a 'contract of carriage of goods by sea' as so defined (see art 2). Thus the first question becomes was the cargo receipt (which is the only relevant document) a 'bill of lading' or 'similar document of title'? When one turns to para 1 of the conditions of that document one finds the following: 'This document is a cargo receipt incorporating the condition upon which the goods ... are to be carried and is not negotiable and does not constitute a Bill of Lading or document of title to the goods'. Paragraph 2 incorporates some of the provisions of the Schedule to the Act in the contract but expressly avoids those which deals with bills of lading. Paragraph 3 puts the matter beyond doubt by stating: 'No Bill of Lading shall be issued by the carrier in respect of the goods.'

The Magistrate also found that the cargo receipt was not part of the contract between the parties. Thus it could not be said that the contract of carriage in this case was 'covered' by the cargo receipt, whatever type of document it was; nor could it be said that a moment was ever reached at which the cargo receipt regulated the relation between the appellant and respondent. On these two grounds, then, a finding that there was no 'contract of carriage' as defined in art 1 to the Schedule to the Act must have been made.

It must follow that, if there was not a contract of carriage as so defined, then art 3 did not apply to the contract between the appellant and the respondent and the defence of limitation in art 3.6 was not available to the respondent.