The claim in this action related to damaged cargo. The goods were shipped from Vitoria, Brazil, to Hong Kong from May-July 1993. On arrival in Hong Kong, some of the goods were found to have been rusted or corroded. The cause of that was alleged to be an ingress of seawater. The owners of the cargo on the Almerinda (the plaintiffs) alleged that the owners or demise charterers of the Almerinda (the defendants) were responsible for that damage.

The goods were delivered in July 1993, and in June 1994, the plaintiffs issued a generally endorsed writ against the defendant. This was followed by the statement of claim, which was filed in November 1994. Paragraph 1 of the statement of claim referred to the bill of lading dated 20 May 1993. There was no dispute between the parties that this was called the 'Jardine' bill of lading. Paragraph 2 pleaded that the plaintiffs were at all material times the owners of the goods and consignees to whom the property had passed upon and by virtue of the consignment. Paragraph 3 said that the defendants were under a duty as bailees and/or carriers for reward and/or under the contract of carriage contained in or evidenced by the bill of lading to take reasonable care of the cargo and to deliver the same. The plaintiffs were allowed to amend the statement of claim by the Court of First Instance.

For present purposes, para 1 of the amended statement of claim was in a similar form to the original statement of claim, save that it included a reference to paras 5A and 5B, which explained how the bill of lading came to be issued. In para 2 of the amended statement of claim, it was pleaded in the alternative that the plaintiffs became the cargo owners because of a contract of sale that was contained in or evidenced in a contract dated 22 June 1993. The new pleading recited in paras 5A and 5B revealed that originally the plaintiffs held three original bills of lading issued by Asian Transport Ltd (the ATL bills of lading). When the vessel arrived in Hong Kong on 15 July 1993, the defendants served a notice of readiness on the plaintiffs. The notice stated that the vessel had arrived in Hong Kong and was 'in all respects ready to discharge your cargo'. The notice went on to request the plaintiffs to commence discharging immediately. Paragraph 5B(3) recited that Jardine Shipping informed the plaintiffs that the defendants refused to accept the ATL bills of lading, but were informed that if the ATL bills of lading were surrendered to Jardine Shipping, Jardine Shipping would issue substitute bills of lading. That was done, and the cargo was discharged. Paragraph 5C of the amended statement of claim read: 'In the premises, the defendants (by delivering the cargo to the plaintiffs as aforesaid) 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.'

The objection taken by the defendants was that this amendment introduced a new cause of action. The thrust of the defendants' case on the appeal was that the cause of action now sought to be pleaded had been extinguished and ceased to exist due to art 3.6 of the Hague-Visby Rules. As a result, the Court had no jurisdiction to allow the time-barred claim to be added by way of amendment.

Held: The defendants' appeal is dismissed.

The defendants' argument misconstrues art 3.6 of the Hague-Visby Rules. Article 3.6 is concerned with notice and the commencement of suit. The first two paras concern notice of loss or damage. It is perhaps of some interest to observe that such notice must be given promptly. It must be given in writing to the carrier or its agent at the port of discharge before or at the time of the removal of the goods or, if the loss or damage is not apparent, within three days. The third paragraph of art 3.6 reads:

Subject to paragraph 6bis, 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. This period may, however, be extended if the parties so agree, after the cause of action has arisen.

The object of the time limit is to give shipowners immediate notice of the likelihood of a claim and to protect them from stale claims.

When shorn of the legal trappings by which it is averred that the plaintiffs can formulate their claim, the essence of the original claim and that which the defendants aver, is that the new claim has the following essential features which are identical: (1) the goods are the same; (2) the voyage is the same; (3) the terms of the contract of carriage are the same and contained in the same document, namely the Jardine bill of lading; (4) the damage is the same; (5) the breach of duty is the same.

The plaintiffs bring what is essentially the same claim. Such an amendment is permissible.

[For the unsuccessful appeal to the Court of Final Appeal, see The Owners of Cargo Lately Laden on Board the Ship or Vessel 'Almerinda' v The Owners and/or Demise Charterers of the Ship or Vessel 'Almerinda' [2001] HKCFA 26 (CMI1344).]