These were applications for interlocutory orders amending/correcting the name of the defendant carrier in statements of claim. The defendant opposed amendment on the basis that liability of the proposed new defendant was already extinguished by art 3.6 of the Hague-Visby Rules, given domestic effect in New Zealand under the Maritime Transport Act 1994.

The plaintiffs, exporters of chilled meat, arranged shipments through Maersk Line. Until early 2015, bills of lading had been issued on a Maersk Line form describing the carrier as 'A.P. Møller - Maersk A/S trading as Maersk Line'. In February 2015, the plaintiffs arranged cargo to be carried on the Maersk Alexandra. The bills of lading were signed by the carrier 'Maersk Line A/S'. The Maersk Alexandra broke down en route from New Zealand, which affected delivery of the meat.

In 2016, the plaintiffs filed proceedings naming AP Møller - Maersk (trading as Maersk Line) as the defendant. In 2019, Maersk Line A/S changed its name to Maersk A/S. On 1 April 2022, the plaintiffs sought an order to correct a 'misnomer' by amending the name of the defendant in each of the four proceedings under r 1.9 of the High Court Rules 2016 (amendment of defects and errors). On 19 April 2022, the defendant indicated that it did not consent to this proposed 'correction'. Its position was that the plaintiffs were seeking a different company to be substituted for the existing defendant in circumstances where the cause of action against the new defendant had been extinguished. The defendant submitted that the proposed substitution of the new defendant in these circumstances was not available under r 1.9 and that, if the plaintiffs intended to pursue joinder of Maersk A/S, an application should be made under r 4.56 (striking out and adding parties), which would be opposed.

Held: The plaintiffs should be permitted to amend the statements of claim in these proceedings as sought.

A two-stage test applies. The first stage is to consider whether there has been a misnomer. If so, it is then necessary to consider whether prejudice to the respondent/intended defendant is such that, notwithstanding the policy that a plaintiff should not be shut out from access to the courts, the application should be refused.

It is clear that a reasonable person receiving the document would understand it to be addressed to the carrier, that is Maersk Line A/S (now Maersk A/S), and not the named defendant AP Møller - Maersk. First, the claim is intended to be against the carrier. That is clear from the reliance on the Hague Rules in para 1.2(2) and the contract cause of action, and also the pleaded allegation that the defendant accepted the cargo in para 1.4. This is notwithstanding the alternative descriptions of the defendant in the introductory para 1.1(3), the defendant's reliance on fixture notes indicating that AP Møller - Maersk was the charterer, and the reference to the 'defendant's vessel' in para 1.2. Reference to the defendant's vessel is explicable, since the carrier is responsible even if it does not own the ship or employ the crew (and the shipowner may well be unknown). These are non-delegable duties. Also, it is not plausible that the plaintiffs were seeking to sue the charterer, as they have no contractual relationship with the charterer. Secondly, the plaintiffs' mistake is explicable given that up until early 2015, bills of lading had been issued on a Maersk Line form describing the carrier as 'AP Møller - Maersk A/S trading as Maersk Line'. Thirdly, the statement of defence admitted the relevant allegations. Fourthly, the same amendment was made by consent in the earlier Maersk Bratan proceedings on equivalent facts.

The defendant relied on cases from England and Hong Kong for the proposition that a misnomer cannot be corrected where the time bar under the Hague Rules has expired. These decisions draw a distinction between limitation periods which extinguish a right (which they treat as being substantive in nature) and those which bar a remedy (which they treat as being procedural in nature), holding that statutory limitation periods are to be treated as 'procedural' and the Hague Rules limitation as 'substantive'. The plaintiffs submitted that the New Zealand cases apply equally to limitation under the Hague Rules, and that the English cases that reject the approach of treating the correction as having effect from the date the proceedings were filed are based on the English Court Rules.

As indicated in Payabi v Armstel Shipping Corp (The Jay Bola) [1992] QB 907, [1992] 2 Lloyd's Rep 62 (QB) (CMI2049), English law regards the time bar in the Hague Rules as one of a special kind which extinguishes the claim such that it simply ceases to exist. Accordingly, amendment of the defendant's name in that case depended on a doctrine of 'relation back', that is treating the amendment as dating back to the filing of the original claim (consistent with the New Zealand approach to misnomer). In The Jay Bola, Hobhouse J concluded that a Rule of Court not linked with the Limitation Act (O 20, r 5) cannot deprive a party of a substantive defence.

On the other hand, in Nikolayi Malakhov Shipping Co Ltd v Seas Sapfor Ltd [1998] 44 NSWLR 371 (CMI2023), the New South Wales Court of Appeal concluded by a majority (after trial, there having been no appeal at the joinder stage) that a mistake in naming the correct defendant was amenable to correction under the Court Rules despite the intervening expiry of the limitation period in the Hague Rules. The majority declined to follow English law.

At least in relation to limitation under New Zealand's Limitation Act 1950 or Limitation Act 2010, Cowan v Martin [2014] NZCA 593 and Registered Securities Ltd (in liq) v Jensen Davies & Co Ltd [1999] 2 NZLR 686 (CA) provide for relation back in the case of misnomer. In New Zealand, those Court of Appeal authorities prevail over the ultra vires concern raised in The Jay Bola even if the Rules of Court are comparable. However, those authorities do not address limitation under the Hague Rules. Nor does the High Court of Australia's treatment of all limitation periods as 'substantive' for conflict of laws purposes assist in the present context. Here, the question is whether the Rules of Court may allow substitution of a defendant after the expiry of a substantive (extinguishing) limitation period in the case of a misnomer. Counsel advise that there is no New Zealand authority on point.

In relation to the immediate issue of joinder, the High Court Rules do not deprive a party of a substantive defence so as to give rise to an ultra vires issue. Joinder is procedural. It does not preclude a limitation defence being raised. It would be different where the limitation issue is effectively determined at the joinder stage, which may be appropriate where sufficient material is before the Court. However, that would not be appropriate here. The Court does not have all the necessary factual information, and the point was not fully argued. The Court's decision is limited to permitting a pleading amendment to correct a misnomer; it is not a determination of the limitation defence. For these reasons, the proposed amendment does not give rise to substantial prejudice in relation to the limitation period.