The claimant, Mr Ramon Santos, claimed damages for injuries sustained in a collision between the vessel Baltic Carrier (on which he was employed as a seafarer) and the vessel Flinterdam, which occurred on 16 March 1998.

The claimant's solicitors placed the Flinterdam on their internal ship-watch system on 'UK watch' to be informed if and when the vessel was due to visit a port in England and Wales. On 7 June 1999, the claimant's solicitors were notified that the Flinterdam was expected to arrive at the Medway, England, on 11 June. The very next day, they received reports that the Baltic Carrier had arrived at Fowey, England. A claim form was issued against both vessels and was duly served on the Baltic Carrier (the first action). The Flinterdam did not visit the Medway. On 19 August 1999 at 14h00, the claimant's solicitors discovered that the Flinterdam was currently at Fowey. Subsequent investigations revealed that the vessel had, in fact, arrived at Fowey on 17 August at 23h20 and was due to leave within a few hours on 19 August. The claimant's solicitors concluded that there was insufficient time to obtain instructions from the claimant, prepare the necessary paperwork and arrange for service of a claim form and the arrest of the Flinterdam before it left.

The two-year limitation period prescribed by s 190(3) of the Merchant Shipping Act 1995 (UK) (the Act) (based on art 7 of the Collision Convention 1910) expired on 16 March 2000. The claimant’s solicitors did not appreciate this, and were under the impression that the limitation period was three years.

On 7 June 2000, the period of 12 months permitted for service of the original claim form on the owners of the Flinterdam expired. No application had been made prior to this expiration for renewal as the claimant’s solicitors took the view that there was a risk that if they applied for renewal, such renewal might be successfully challenged on the grounds that there had been a reasonable opportunity for arresting the Flinterdam while it had been at Fowey in August. They issued a new claim form on 27 June 2000 (the second action). The Flinterdam was arrested at Newport, Wales on 28 June 2000.

On 14 July 2000, Master Miller acceded to the claimant's ex parte application for an order that the claim form in the first action be renewed as against the defendant, the owner of the Flinterdam. The defendant sought to set aside that order on the basis that the claimant did not take reasonable steps to serve the claim form within the period of its validity and did not apply promptly to extend the period of the validity of the claim form. The defendant submitted that the claimant's solicitors ought, as reasonably competent solicitors acting on behalf of their clients, to have put the Flinterdam on world-wide watch, and if they had, they would have received sufficient warning of the vessel's arrival at Fowey in August so as to permit service of the claim.

The claimant applied for an order that the time allowed for bringing proceedings in the second action be extended until 27 June 2000, pursuant to s 190 of the Act.

Held: The claimant’s application for a time extension was granted. It was unnecessary to consider the defendant's application to set aside the order of Master Miller.

The solicitors' misapprehension was at least understandable, if not excusable. The relevant time limit in relation to the owners of the Baltic Carrier was indeed three years. This is because s 190, in so far as personal injury claims are concerned, only applies to proceedings to enforce a claim for damages against vessel's owner where the fault of that vessel has caused injury to a person on board another ship. The claim against the Flinterdam, being the other vessel, fell directly within the scope of s 190.

Section 190 provides that:

(5) 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.

(6) Any such Court, if satisfied there has not been during any period allowed for bringing proceedings any reasonable opportunity for arresting the defendant’s ship within -

(a) The jurisdiction of the Court, or

(b) The territorial sea of the country to which the plaintiff resides or has his principal place of business:

shall extend the period allowed for bringing proceedings to an extend sufficient to give a reasonable opportunity of so arresting the ship.

Whether there has been a reasonable opportunity for an arrest during the limitation period was to be approached objectively, without regard to whether steps were actually taken to arrest in a particular jurisdiction. It was not suggested that there was no reasonable opportunity of arresting the Flinterdam at Fowey on one or more of the earlier occasions that it visited the port. Accordingly, the requirements of a mandatory extension of time under s 190(6) had not been satisfied.

Under s 190(5), there is an unfettered discretion to extend time subject to the limitations where, as here, the application is not only made after the expiry of the time limit but also after the expiration of such proceedings as were brought within time. The Court may make such an order only if the claimant had taken all reasonable steps to serve the claim form but has been unable to do so and, in either case, the claimant has acted promptly in making the application. The question of whether such reasonable steps had been taken only arises for consideration once a claim form has been issued. The fact that the Flinterdam called at Fowey in June, July, and August 1998 is not to the point.

Even if a world-wide watch had been maintained, information about the arrival of the Flinterdam at Fowey would probably not have been available in time for steps to be taken to serve proceedings on the vessel.

There were good grounds for extending time, and there would be no material hardship or prejudice to the defendant in the event that an extension is granted.