On 28 April 2012, the claimant’s vessel, Melissa K, collided with the defendant’s vessel, Tomsk. The parties agreed on the jurisdiction of the English courts and provided security in consideration of the other party’s agreement to refrain from arresting the vessels involved in the collision.

On 23 April 2014, the parties agreed to an extension of time until 28 October 2014. On 24 October, a second extension of time was agreed until 28 April 2015 (second extension). On 26 March 2015, the defendant offered to settle liability on a 50/50 basis. The covering email made it clear that the deadline of 28 April 2015 was a final deadline which would not be extended (the offer).

On 28 April 2015, the claimant issued an in rem claim form. On 15 May 2015, the claimant accepted the offer. On 24 June 2015, the claimant served the claim form on the defendant. The defendant indicated that it intended to challenge the jurisdiction of the court on the basis that the claim was time-barred.

The claimant applied for an order confirming that liability for the collision had been settled upon the claimant's acceptance of the offer; alternatively, a mandatory extension of time pursuant to s 190(6) of the Merchant Shipping Act 1995 (UK) (the Act), or a discretionary extension pursuant to s 190(5) of the Act; or an order pursuant to CPR 3.10 remedying any procedural errors. The defendant applied for a declaration that the claim form had not been validly served and was incapable of being validly served and/or that the Court had no jurisdiction to try the claim; alternatively, that the claim be struck out pursuant to CPR 3.4(2).

Held: The claimant’s applications are dismissed. The Court has no jurisdiction.

In accordance with ss 190(3), 190(5), or 190(6) of the Act (based on art 7 of the Collision Convention 1910), in the absence of an extension or agreement, proceedings had to be brought (ie issued) within two years from the date of the collision. In the event of proceedings in rem, the claimant would then have a further 12 months after the date of issue within which to serve the claim form.

The second extension introduced a deadline for service of any claim form as well as issue. It constituted an agreed abridgment of the time for service. The issue was whether the claimant was entitled to accept the offer even after the expiry of the second extension. If the offer was no longer capable of acceptance after the deadline, the Court did not have jurisdiction unless the claimant could obtain an extension of time so as to validate its service of proceedings. Although limitation is a defence which has to be pleaded, and not a matter which goes to the Court's jurisdiction, the claim form in this action was issued in time so no question of limitation arose. The question was whether it has been or can be validly served, which is a question which goes to the exercise of jurisdiction over the defendant.

The effect of the offer was that it would no longer be open for acceptance after 28 April 2015 if no proceedings had been served. Nothing happened thereafter to vary the terms proposed. Accordingly, there had been no compromise. Nor had the defendant waived its right to raise a limitation defence.

The claimant is not entitled to a mandatory extension under s 190(6) or a discretionary extension under s 190 (5) of the Act. These sections are concerned with extensions of time for the bringing of proceedings, but the proceedings were brought within the agreed extension. The claimant needed an extension of time for service of that claim form so as to validate the invalid service, an application which (if it had been made) would have been governed by CPR 7.6. Nevertheless, it was relevant, when deciding whether to extend the time for service of a claim form, to consider whether the requirements of ss 190(5) or 190(6) of the Act were satisfied. This is because an extension of time for service would be given in circumstances where the claimant would satisfy the requirements for an extension of time to bring proceedings.

Section 190(6) provides:

Any such court, if satisfied that there has not been during any period allowed for bringing proceedings any reasonable opportunity of arresting the defendant ship within: (a) the jurisdiction of the court, or (b) the territorial sea of the country to which the plaintiff’s ship belongs or in which the plaintiff resides or has his principal place of business, shall extend the period allowed for bringing proceedings to an extent sufficient to give a reasonable opportunity of so arresting the ship.

It was common ground that there was no reasonable opportunity to arrest the vessel within any relevant jurisdiction at any material time. Section 190(6) had no application to a situation in which a jurisdiction agreement had been concluded enabling proceedings to be served whenever a party chose to do so and where the parties had agreed not to arrest the other party's vessel. The relevance to 'any reasonable opportunity of arresting the defendant ship' must refer to an opportunity of which the claimant could have taken advantage, not to an opportunity of which the claimant had agreed not to take advantage.

Section 190(5) provides:

Any court having jurisdiction in such proceedings may, in accordance with rules of court, extend the period allowed for bringing proceedings to such extent and on such conditions as it thinks fit.

A two-stage approach applies to the exercise of discretion under this section. The first question is whether there is a good reason for the grant of an extension of time. Ordinarily this means that a good reason must be shown why proceedings have not been brought within the two-year limitation period (or, as the case may be, why a claim form has not been served within its initial period of validity). In that regard carelessness or the making of a mistake by the claimant or its advisers will not usually constitute a good reason. It is only if such good reason can be shown that the second question arises, which is whether, as a matter of discretion, to grant the requested extension. This involves, among other things, weighing the balance of hardship to the claimant if an extension is refused against the hardship to the defendant if it is granted. No good reason had been shown for the grant of a discretionary extension of time under s 190(5). The claimant could have both issued and served a claim form at any time prior to the agreed deadline if it wished to do so.

The claimant had not taken all reasonable steps to serve the claim form in time. Therefore, any application under CPR 7.6 had to fail.

The claimant's failure to serve proceedings by 28 April 2015 was not an 'error of procedure' which could be remedied under CPR 3.10. CPR 3.10 could not be used to circumvent the requirements of CPR 7.6(3) or s 190(5) of the Act.