This was an application by Win's Marine Trading Co (the plaintiff) to join a third defendant to this action, namely Wan Hai Lines Ltd (Wan Hai), and an application for leave to serve Wan Hai out of the jurisdiction, as it was a Taiwanese company.

In November 1997, the plaintiff agreed to purchase two consignments of cartons of frozen peeled shrimp from a wholesaler in Indonesia. The shipment was arranged by the wholesaler with Wan Hai's agent in Indonesia to ship the goods to Hong Kong on the vessel Wan Hai 203. Two bills of lading were issued by the Indonesian agent on behalf of Wan Hai.

Shortly after the arrival of the goods in Hong Kong, the notify party was informed of the arrival by the first defendant, who acted as the Hong Kong agent of Wan Hai, to prepare all necessary shipping documents in exchange for the release of the goods from the container terminal of the second defendant, Hong Kong International Terminals Ltd. However, when contractors were arranged to collect the goods which had arrived at the container terminal, it was discovered they had been wrongfully released to some unknown person by the presentation of forged release orders.

It appeared that those advising the plaintiff were mistaken in terms of the appropriate defendant. If the first defendant was merely the agent of the carrier Wan Hai, there would be no cause of action against it. The plaintiff filed for a joinder application and leave to serve Wan Hai out of jurisdiction on 4 December 1998. The time bar under the contract of carriage contained in the relevant bill of lading expired on 27 or 28 December 1998, so that by the time the plaintiff made its application, it was out of time.

The plaintiff argued that the Hague-Visby Rules did not apply in this case but even if they did, the court should exercise its discretion to allow joinder. The first defendant relied upon cl 25 on the reverse of the bill of lading which read:

(Notice of claim and Time for Suit)

(1) Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the Carrier at the port of discharge or place of delivery before or at the time of delivery of the Goods or, if the loss of damage be not apparent, within 3 days after delivery, the Goods shall be deemed to have been delivered as described on this Bill of Lading.

(2) In any event the Carrier shall be discharged from all liability in respect of non-delivery, misdelivery, delay, loss or damage unless suit is brought within one year after delivery of the Goods or the date when the Goods should have been delivered.

The first defendant also relied upon the exclusive jurisdiction clause which read:

The contract evidenced by or contained in this Bill of Lading shall be governed by Taiwan Law except as may be otherwise provided for herein, and any action thereunder shall be brought before the Taipei District Court in Taiwan Republic of China.

Held: Application denied.

As a matter of law the claim simply ceases to exist if suit is not brought within one year, and the Rules of the High Court do not give the Court the power to resurrect a claim which has ceased to exist. The Rules cannot create a substantive cause of action which does not exist, and the reference in the Rules to extending a time bar must apply to procedural time limits only.

The starting point is the speech of Lord Wilberforce in Aries Tanker Corp v Total Transport Ltd (The Aries) [1977] 1 WLR 185, 188C-G (CMI2194) which reads:

My Lords, if this case is to be decided on the terms of the contract it would appear to me to be a comparatively simple one. There is an obligation to pay freight, calculated upon the amount of cargo intaken, which obligation arises upon discharge. There is no dispute as to the amount: it is a liquidated claim. The contract contemplates the possibility of a cross-claim by the charterers in respect of loss or damage to the cargo and it expressly provides by incorporation of article III, r.6 of the Hague Rules that the carrier and the ship shall be discharged unless suit is brought within one year after the date of delivery or the date when delivery should have been made. This amounts to a time bar created by contract. But, and I do not think that sufficient recognition to this has been given in the courts below, it is a time bar of a special kind, viz., one which extinguishes the claim (cf. article 29 of the Warsaw Convention 1929) not one which, as most English statutes of limitation (e.g. the Limitation Act 1939, the Maritime Conventions Act 1911), and some international conventions (e.g. the Brussels Convention on Collisions 1910, article 7) do, bars the remedy while leaving the claim itself in existence. Therefore, arguments to which much attention and refined discussion has been given, as to whether the charterer's claim is a defence, or in the nature of a cross-action, or a set-off of one kind or another, however relevant to cases to which the Limitation Act 1939 or similar Acts apply, appear to me, with all respect, to be misplaced. The charterers' claim, after May 1974 and before the date of the writ, had not merely become unenforceable by action, it had simply ceased to exist, and I fail to understand how a claim which has ceased to exist can be introduced for any purpose into legal proceedings, whether by defence or (if this is different) as a means of reducing the respondents' claim, or as a set-off, or in any way whatsoever. It is a claim which, after May 1974, had no existence in law, and could have no relevance in proceedings commenced, as these were, in October 1974. I would add, though this is unnecessary since the provision is clear in its terms, that to provide for the discharge of these claims after 12 months meets an obvious commercial need, namely, to allow shipowners, after that period, to clear their books.

If it is wrong to decide that the contractual time bar has in fact extinguished the claim, it remains open to any defendant so joined to come in and plead an existing time-bar defence. There is a total absence of material placed before the Court upon which the Court could be invited to exercise its discretion, even if it were otherwise minded to do so.

It follows that the application is dismissed.