The appellant, Njoka Tanners Ltd (Njoka), was the owner of the relevant goods, Kenya wet blue tanned hides weighing 40,000 kg. Njoka contracted the first respondent, Ocean Freight (EA) Ltd (Ocean), a common carrier shipping goods from Kenya, to ship the hides from the Port of Mombasa to Modena through Leghorn in Italy to a consignee named EMC SRI. Ocean entered into the contract as an agent and on behalf of the second respondent, Mediterranean Shipping Co SA Geneva (MSC), who were the foreign principals.

As a result of the contract, Njoka claimed to have paid Ocean the freight. Ocean then, on behalf of MSC, issued a bill of lading No MSCUM-0785156. Ocean, contrary to the implied or express terms of their agreement, released the goods to the consignee without authority from the appellant or production of the bill of lading.

Ocean and MSC both denied liability. Ocean stated that it neither entered into a contract with Njoka nor did it issue a bill of lading as alleged. Ocean claimed that Njoka, upon handing over the goods for shipping, lost its proprietary interest in them and thus had no locus standi in the current suit and that the alleged lost goods were shipped as per terms of the bill of lading and fresh instructions from the appellant that varied the place of delivery.

MSC argued that the goods in issue were released to the consignee with authority from Njoka once the consignee had settled its account; and that, since it was joined into the suit outside the one-year period within which the appellant should have instituted the suit against it, as provided in the Hague Rules and the contract of carriage in the bill of lading, the claim against it was time-barred.

The High Court ruled in favour of MSC, dismissing Njoka’s suit against it. The High Court found that by virtue of the Hague Rules and the bill of lading terms, the claim against MSC was time-barred as MSC was joined to the action against Ocean two months too late. The Court held that the joinder of MSC to the amended suit did not relate back to the date the suit was instituted against Ocean, but to the date MSC was joined as a party to the suit. Njoka appealed.

Held: Appeal dismissed.

The cause of action is governed by the contract between the parties, which was governed by the bill of lading. On the issue whether Njoka's action was time-barred, The Aries [1977] 1 Lloyd's Rep 334 (CMI2194) supports the provision of art 3.6 of the Hague Rules to the effect that if a suit is not filed within the 12 months of discharge of cargo by carrier, the cause of action is extinguished. Further, in Ketteman v Hansel Properties Ltd [1988] 1 All ER 38 it was held that: 'Where a person is added as a defendant to an action the joinder does not relate back to the issue of the writ against the original defendant. Instead the action is considered to have been brought against the added defendant when that defendant was joined as a party to the action.' The Antares (Nos 1 and 2) [1987] Lloyd’s Reps sets out that a Judge's discretion cannot override the time limit set out in art 3.6 of the Hague Rules.

Both parties agree that it is not in contention that the plaint against MSC was filed more than a year after the cause of action arose. The relation back principle cannot apply in this case. As was stated in the case of The Jay Bola [1992] 3 All ER 329, 330 (CMI2049): 'Where a cargo owner who was party to a bill of lading contract incorporating the Hague Visby Rules sought to join a new party to a writ after the expiry of the one-year time limit laid down in art III, para 6, the principle of relation back did not apply to enable the defendant to be treated as if the proceedings against him had been commenced on the original date of issue of the writ...'