On 28 April 1962, the plaintiff's husband, a crane driver, was crossing the River Tyne as a passenger in a foy-boat. A collision occurred between the boat and the tug Alnwick, resulting in the death of the plaintiff's husband. Evidently, the foy-boat was passing between the sterns of the Alnwick and another vessel called the Braemar. Following this, the plaintiff initiated legal action to claim compensation against the tug Alnwick alone, although it was noted that she could have also sued the foy-boat on which her husband was traveling and the Braemar.

The plaintiff received legal aid and on 3 December 1963 issued a writ against the Alnwick. The proceedings were in rem and for negligence against the tug. Subsequently, the plaintiff filed a preliminary act by the end of December, and on 14 February 1964, the Alnwick filed a preliminary act.

The defence of the Alnwick was due on 6 March 1964. However, it was only filed on 2 May 1964, despite the plaintiff's efforts to expedite the Alnwick's response and obtain delivery of its overdue defence. This date was significant because two years from the date of the cause of action had elapsed. In its defence, the Alnwick alleged negligence and placed blame on the Braemar for the incident that led to the plaintiff's claim.

On 8 July 1964, leave was granted, and the plaintiff added the Braemar as a second defendant to the claim. The plaintiff's solicitors wrote to the Braemar's representatives, informing them of their intention to take action, and accordingly amended their writ and delivered it on 19 August 1964. The writ was served, and the second defendant entered an unconditional appearance and, at some point, proceeded with the case. They were also pressured by the plaintiff to deliver a preliminary act.

The matter continued until 7 December 1964, when the second defendant filed a motion seeking an order and a remedy, claiming that the action against the Braemar was not maintainable due to the proceedings against the second defendant commencing after the two-year limitation period prescribed by s 8 of the Maritime Conventions Act 1911 (UK) (the Act). Hewson J issued an order to stay the action against the second defendant. The plaintiff appealed.

Held: Appeal allowed (Sellers, Winn LJJ; Willmer LJ dissenting).

Sellers LJ stated that s 8 of the Act applied to matters, including 'loss of life', and that it extended the period for commencing a claim regarding loss of life from one year to two years. It was also noted that the limitation period under the Act was not rigidly fixed. Therefore, the plaintiff relied on this qualification by arguing that the proviso to s 8 of the Act applied. This provision states, 'Provided that any court having jurisdiction to deal with an action to which this section relates may, in accordance with the rules of court, extend any such period, to such an extent and on such conditions as it thinks fit'.

It was noted that the wording of this provision was broad, and the considerations taken into account by the court were not limited to the circumstances created by the party relying on the limitation. However, Sellers LJ interpreted the section by referring to the case of The Kashmir [1923] P 85, which held that there must be a 'substantial reason' for enlarging the two-year limit.

Sellers LJ found that the first defendant's failure to comply with their obligations under the rules by not submitting its defence in a timely manner was a good reason to consider whether the plaintiff should be subject to the time limit, or whether it justified extending the time limit under the proviso in s 8 of the 1911 Act. Sellers LJ found that this reason, along with various others, went a long way in justifying such an extension.

Willmer LJ stated that the question of whether the time limitation under s 8 of the Act should be extended beyond the prescribed two years is a matter left to the discretion of the Judge who hears the application. In all matters where discretion is left to the Judge, this Court does not and should not interfere unless it is satisfied that the Judge has applied a wrong principle or that, for some other reasons, the exercise of discretion was plainly wrong.

Willmer LJ quoted the findings of Hill J and the Court of Appeal in The Kashmir case, which stated that the Act, by section 8, extended the time from 12 months to two years. This limitation period is not rigidly fixed and is subject to a proviso left to the discretion of the court. However, it is a limit to which the defendants are prima facie entitled to benefit. It is a statutory limitation that protects them from being sued in respect of life claims after a period of two years. This is the starting point, and the burden is on the plaintiff seeking to extend that period to show that there are substantial reasons why the defendant should be deprived of that right to limitation granted by law.

If there exists any impetus to change the law as it stands, for example, due to the change in climate, that is a matter which Parliament is best suited to address. Furthermore, the reason why Parliament has not sought to alter the provisions of the Act is that it incorporates the terms of an international Convention to which this country was a party, and to which most of the maritime countries were parties. It is important to remember that these limitation provisions must be applied to foreign ships that enter this country, and equally, it must be expected that our ships will be subject to similar provisions when they visit ports in foreign countries. Therefore, the provisions of s 8 of the Act must be applied with some strictness. Here, there was no substantial ground for extending the limitation period and depriving the second defendants of their statutory right.