528. Golden Endurance Shipping SA v RMA Watanya SA & others (the “Golden Endurance No.2”) [2016] EWHC 2110 (Comm)

Time bar under Hague Rules – foreign proceedings qualifying as a “suit” – negative claim for non-liability not doing the same.

The Facts

Wheat bran pellets were shipped to Morocco from three ports, Awendo in Gabon, Lomé in Togo and Takoradi in Ghana.

On arrival in Casablanca, it was discovered that the cargo was damaged by the presence of live insects and black mould.

Discharge was halted after approximately one third of the cargo had been discharged.

The vessel was arrested by the insurers of cargo interests.

It was allowed to sail upon security being provided. The remainder of the cargo was discharged and sold at Cadiz.

A cargo claim was instituted in Morocco in respect of the 1st and 3rd bills.

Owners filed particulars of claim claiming a declaration of non-liability and a final anti-suit injunction.

Owners instituted London arbitration in respect of the 2nd bill.

Findings

Burton J issued an anti-suit injunction in respect of the proceedings relating to the second bill where arbitration had commenced in London.

He refused an anti-suit injunction in respect of the Moroccan proceedings relating to the first and third bills (Golden Endurance No.1).

By the time the claim for a declaration of non-liability came before Phillips J, owners had lost at first instance and on appeal in Morocco.

The question for summary judgment was whether either the proceedings in Morocco where insurers’ claimed damages from the owners or the owners’ application for a declaration of non-liability qualified as a “suit” brought within one year of delivering cargo.

Article III, Rule 6 of the Hague Rules reads as follows:

In any event the carrier and ship shall be discharged from all liability in respect of all loss or damage unless suit is brought within one year of the delivery of the goods or the date when the good should have been delivered.”

Referring to a number of decisions, Phillips J held that the institution of foreign proceedings qualified as a “suit” to interrupt prescription.

Phillips J referring to the Leni in which Diamond QC held that a suit brought by the wrong party nevertheless interrupted prescription, and the Tatry (ECJ) where it was held that a claim for non-liability had the same effect as an action for damages, said that he would not so have found: in his view for a claim for non-liability did not have the same object as a claim for damages and so did not qualify as a “suit” for the purposes of Article III, Rule 6.

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