The claimant's vessel, Papa John, loaded a cargo of soybeans in Barcarena, Brazil, for carriage to Pivdennyi, Ukraine. Clean bills of lading were issued. At Pivdennyi, the vessel was unable to discharge. Upon the parties' agreement, the vessel proceeded to Aliaga in Turkey, where the cargo was jointly inspected, revealing that it was not in apparent good order and condition. Switch bills of lading, incorporating the Hague Rules, were issued to the defendants, back-dated to the loading of the cargo in Brazil and attesting to the good order and condition of the cargo as at the original date and place of shipment. While the vessel was off Ukraine, the crew had discarded some cargo from the vessel.

The discharge of the cargo was completed on 17 June 2021. The one-year time bar in art 3.6 of the Hague Rules began to run from this date, being the date of 'delivery of the goods or the date when the goods should have been delivered'.

By a claim form dated 16 July 2021, the claimant claimed a declaration that it was not liable to the defendants in relation to the damaged cargo. There was an agreed stay of proceedings between 20 September 2021 and 8 July 2022. The claimant served the particulars of claim on 11 August 2022. In response, the defendants served a defence and counterclaim on 6 October 2022. They claimed damages based on the diminution in value of the parcels of cargo that were delivered to them. Subsequently, the defendants sought consent from the claimant to add a new allegation and a new claim for damages based on discarding part of the cargo in Ukraine (the shortage claim). The claimant refused to consent on the basis that it alleged that it was time-barred pursuant to art 3.6 of the Hague Rules. Consequently, the second defendant applied for permission to amend.

Following a case management conference (CMC), Jacobs J granted the defendants permission to amend their counterclaim on the basis that: (i) any time-bar defence that the claimant had at the date of the CMC was preserved and/or not affected by the permission; and (ii) in respect of any time-bar defence the claimant may have, the second and third defendants' position was not improved by permission to amend being granted.

Disclosure was ordered as part of the general scope of the CMC directions. The defendants submitted that the documents disclosed by the claimant clearly showed that while the vessel was off Ukraine, the crew discarded cargo. The claimant admitted that it had found damage to the cargo at the time of discarding the cargo. The defendants argued, among other things, that the claimant was under a duty to clause or not to issue the switch bills of lading (the misrepresentation claim).

The claimant applied for the striking out of, or summary judgment dismissing, various counterclaims that the defendants have pleaded by amendments. The claimant attacked the arguability of the shortage and misrepresentation claims by way of summary judgment on the basis that the defendant's claims had no realistic prospect of success at trial and by way of strike out on the basis that each of the claims disclosed no reasonable grounds for bringing the claim. The claimant submitted, among other things, that the result for which it contended was consonant with the object and purpose of art 3.6.

Held: Applications dismissed.

The time bar issue turned upon the correct construction of art 3.6 of the Hague Rules. The question of law underlying the time bar issue was arguable and not one that was appropriate to be dealt with finally on a summary judgment or, for that matter, a strike out application. For that reason alone, there was a compelling reason for the art 3.6 question to be decided at trial in the light of the relevant facts as found in relation to the various claims in issue.

The phrase 'unless suit is brought' has given rise to much uncertainty, and much case law has been devoted to working out how it is to be applied in other contexts, such as who is to be the subject of proceedings, where and before whom the proceedings are to be brought, who the claimant must be, etc. In the context of the present time-bar issue, the point was undecided and there were sufficient statements in the cases and in the commentaries to support a wide approach to the words, or, at least, not to support an approach which focuses rigorously and strictly upon the precise factual formulation and cause of action invoked and loss claimed for, for which approach the claimant contends. That, at this stage, was enough to give the defendants a sufficiently arguable case on an important question of law, bearing on the interpretation of a key provision in an international Convention, which has given rise to extensive litigation.

While it was clear that the purpose of the time bar was to bring finality and closure, that did not address the different question of what a claimant cargo owner must do to stop time running. If the purpose was to ensure that the need for factual investigation was identified reasonably close in time to the events which have to be investigated, then it might be thought sufficient (or at least, at this stage, arguably sufficient) for the claimant to put the particular cargo and the carrier's breach of duty in relation to it in issue in broad terms and that fine distinctions would not have been in the mind of the drafters. To take the example of the shortage claim: in the context of a claim for deterioration of cargo due to want of cargo care and unseaworthiness, is there a sensible purpose in distinguishing between the main claim for cargo still on board and cargo discarded by the crew because it was wet and therefore damaged and deteriorated? There was no direct authority, and there was no prevailing view in the textbooks.

If anything, the matters relied upon by the claimant demonstrate that the point was not straightforward and one which was open to considerable debate. While it was clear that this was not a case of developing law, the time-bar issue was a novel and undecided point with far-ranging consequences for the effect of art 3.6. The interrelationship on the facts between the original claim and facts relied upon and the subject of the amendment may be highly relevant. That was pre-eminently a matter for trial.

The defendants contended that the claimant's claim for a negative declaration constituted the bringing of suit for all purposes under art 3.6, and that art 3.6 did not apply to a claim in deceit or for a party's own fraud and therefore could have no application at all to the misrepresentation claim. The Judge had difficulty with the first argument on the language of the time bar in art 3.6 in the context of the preceding paras in art 3.6, all of which must be read together. The Judge also had great difficulty with the second argument as a matter of settled English law. Given that the summary judgment was refused on other grounds, it was not necessary to express a concluded view on these two arguments.