The defendants, the owners of the Vadne, applied to stay the plaintiffs' salvage action because it was not maintainable due to the two-year time bar under s 8 of the Maritime Conventions Act 1911 (MCA). The plaintiffs claimed to have rendered salvage services on 12 July 1957. They first notified the defendants about their claim on 11 November 1958. The writ was issued on 21 August 1959, about five weeks late.

On 12 July 1957, the plaintiffs were the civilian crew of an Admiralty harbour diesel launch, the HMS Dolphin. A collision was observed. The first plaintiff was the coxswain of the launch, a civilian seaman in the employ of the Admiralty. The coxswain reported to the duty officer at HMS Dolphin and received permission to render assistance. Subsequently, the coxswain reported to the duty officer and formed the impression that the report would be passed to the Admiralty and that the Admiralty would assist to put forward a salvage claim for the plaintiffs. The Admiralty did nothing. In September 1958, the first plaintiff consulted his union at Portsmouth. The matter went forward with the union acting on behalf of the plaintiffs. The correspondence between the union and the defendants was not shown to the Court because it was 'without prejudice' correspondence. Nevertheless, the Court was told that the first letter was written by the union official concerned to the defendants on 11 November 1958. Subsequently, the question arose as to the position of the Admiralty. Some months-long correspondence took place between the union and the Admiralty. On 27 February 1959, the union official concerned wrote to the Admiralty asking that consent be granted by the Admiralty to a claim being made by these civilian employees of the Admiralty. The matter was acknowledged by the Admiralty, who said that they were investigating the matter. It was not until 25 May 1959, that the Admiralty, expressing regret for the delay caused by making inquiries, informed the union that they would consent to the salvage claim. From 26 May 1959, the plaintiffs had received permission from the Admiralty to proceed. There was still about six weeks' worth of time to issue a writ. But nothing was done. The union official went on annual leave at about that time.

There were further discussions between the union official and the defendants' solicitors. But nothing material happened until 29 July 1959, when the plaintiffs' present solicitors came on the scene and started correspondence with the defendants' solicitors. Just before the writ was issued the defendants raised the time bar. The question was whether the Court should exercise its discretion to extend time under MCA s 8.

Held: Application to stay proceedings allowed.

The action was not maintainable. All further proceedings were stayed. Section 8 of the MCA provides for the limitation of actions and stipulates in the case of salvage that the action shall not be maintainable unless it is brought within two years from the date when the salvage services were rendered. There is, however, a proviso to that section which 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 extent and on such conditions as it thinks fit ...

Parties accepted that no Rules of Court were made, but the discretion, which must be exercised judicially, remains.

The defendants pointed out that all the parties here were local. They all were in or about Portsmouth. This was not a case where a distant party caused delay. The defendants also argued that the considerations in a case of salvage were different from compensation claims. Case law did not indicate any salvage case in which leave had been granted under MCA s 8. The defendant's main point was that these provisions limiting the period to two years are statutory. The time bar was the result of a series of international agreements. It was on the statute book for very nearly 50 years. The defendant argued that there must be substantial reasons for the exercise of the Court's discretion under the proviso of s 8 of the MCA: The Hesselmoor and the Sergeant [1951] 1 Lloyd's Rep 146 (CMI2609). In that case, Willmer J allowed a similar application to stay further proceedings in a salvage action. Willmer J referred to two decisions of Hill J for the legal principles. First, in The Llandovery Castle [1920] P 119, 125 (CMI2651) 125, Hill J said:

the section fixes a period of two years, and the discretion can only be used in favour of a plaintiff if there are special circumstances which create a real reason why the statutory limitation should not take effect.

Second, in The PLM 8 [1920] P 236 (The PLM 8) 240, Hill J said:

It must be remembered that the Act gives the defendants a right, and it is a right that can only be taken away on sufficient grounds.

Despite expressing sympathy for the plaintiffs, the Court applied the principles set out in The PLM 8 240 and The Llandovery Castle 125: ie that the MCA gives to the defendants a right that can only be taken away on sufficient grounds. There were no sufficient grounds here.

The Court must construe the MCA in its terms, which says 'two years' with the possibility of extension. It would be wrong to emphasise the fact that the delay was only five weeks and not longer as in other cases. Even though the claim here is small (GBP 200), the Court must apply the same principles in construing the proviso notwithstanding the quantum.

The plaintiffs' best argument was that the first plaintiff did nothing because he mistakenly thought that the Admiralty were looking after the interests of himself and of his crew. After some 15 months the plaintiffs wisely consulted their union. The official seems to have acted with diligence but it may be that he was not familiar with the MCA. It is regrettable that the plaintiffs' solicitors were not instructed earlier. Nevertheless, the Court must deal with the matters as they are, and not to look back and to try to find reasons for the delay.