The plaintiff was the consignee on a bill of lading for a shipment of cement by the defendant carrier. The defendant's vessel arrived in Rabaul on 17 August 2011. During a combined inspection by the defendant’s and plaintiff’s representatives during discharge, it was discovered that the cargo had suffered water damage and was completely destroyed. The plaintiff claimed against the defendants for damage due to negligence under the Sea-Carriage of Goods Act 1951 (Papua). The claim was only filed on 20 August 2012. The defendant denied liability and applied to dismiss the claim on grounds of the statutory time bar or inordinate and inexcusable delay by the plaintiff in prosecuting its claim.

Held: Defendant’s application allowed. Plaintiff's claim dismissed. The claim was time-barred and there was inordinate and inexcusable delay by the plaintiff in prosecuting its claim.

Article 3.6 of the Hague-Visby Rules, incorporated by ss 2 and 4 of the Sea-Carriage of Goods Act 1951, requires any claim for cargo damage under a bill of lading to which it is subject to be filed within one year from discharge of cargo. The plaintiff here entered into a contract of carriage of goods by sea evidenced by a bill of lading which incorporated the Hague-Visby Rules, and the cargo was discharged on 17 August 2011. Since proceedings were not commenced until 20 August 2012, three clear days late, the action was time-barred by statute.

Order 10 r 5 of the National Court Rules provides that the court may dismiss the proceedings if the plaintiff fails to set proceedings down for trial within 6 weeks after close of pleadings. The power to dismiss proceedings for want of prosecution is discretionary (see Kai Ulo v The State [1981] PNGLR 148 and Burns Philip (New Guinea) Limited v Maxine George [1983] PNGLR 55). The principles governing its exercise are as follows:

1. The plaintiff's default was intentional or allowed for inordinate and inexcusable delay. The defendant’s application to dismiss the entire proceedings was filed six months ago but the plaintiff had still not filed any affidavit in response.
2. No reasonable explanation was given by the plaintiff for the delay. The plaintiff's counsel explained that there was lack of appropriate instructions from his client, which was unacceptable.
3. The delay caused injustice or prejudice to the defendant. The defendant discharged its legal duties and obligations under the bill of lading by discharging the cargo at Rabaul and allowing a combined joint inspection of the cargo.
4. The conduct of the parties and their lawyers. The defendant wrote to the plaintiff to consider discontinuing the matter through a combined consent order and amicable settlement, which would have been cost-effective and have provided a win/win outcome. The plaintiff failed to consider the offer.
5. Interests of justice. No reasonable explanation was given as to the delay.