FIMBANK PLC V KCH SHIPPING CO LTD

[2022] EWHC 2400 (Comm), KBD (Comm Ct), Sir William Blair, sitting as a High Court Judge, 28 September 2022

Contracts (bills of lading) – Misdelivery – Claim for misdelivery following discharge – Time bar – Whether Hague-Visby Rules time bar applicable to claims for misdelivery of cargo after discharge from the vessel – Contractual application of Hague-Visby Rules – Period between discharge and delivery – Hague-Visby Rules article III rule 6

The claimant was a trade finance bank and the defendant was the carrier of goods under certain bills of lading held by the bank. The bills of lading were on the Congenbill form and subject to the Hague-Visby Rules by way of incorporation from the charterparty. Discharge of the cargo of coal had taken place into stockpiles at Indian ports, against letters of indemnity. In arbitration, the bank brought a misdelivery claim against the carrier. The carrier successfully argued that the claim was time-barred by the Hague-Visby Rules article III rule 6, because the arbitration had been commenced more than one year after discharge. The claimant obtained permission to appeal the award on this point of law, arguing that the time bar did not apply to a claim for misdelivery following discharge and that clause 2(c) of the Congenbill terms disapplied the Hague-Visby Rules to the period following discharge. Clause 2(c)provided in essence that the carrier was not to be responsible for loss or damage prior to loading and after discharge.