Bhatia Shipping v. Alcobex Metals
In this case, the claimant carrier was held entitled to rely upon a nine-month time-bar in the contract of carriage as a defence to a claim by the defendant for misdelivery of a consignment of bronze tubes in the course of carriage from Avonmouth, UK, the port of discharge, to Stafford as the ultimate destination.
DMC Category Rating: Confirmed
"12. Liability for loss or damage when the stage of
transport where loss or damage occurred in known:-
22. Limitation of action:
(c) the place of taking charge of the goods for multimodal transportation or the place of delivery thereof."
The terms of clauses 22 and 23 essentially mirrored the terms of ss.24 and 25 of the Indian Multimodal Transportation Act of 1993 and thus reflected Indian law.
The goods were carried from Mumbai to Avonmouth on the vessel "Persey" and discharged there on 9 April 2002. Despite the fact that the carrier had appointed an agent to effect on-carriage to Stafford, the receivers arranged with the ship’s agents that the goods should be released to them in Avonmouth, without production of the bills of lading. The release probably took place sometime in early May, and certainly by 17 May 2002.
Alcobex alleged that the release was without its knowledge and consent and that the receivers had not paid for the goods, which had been sold on cash against documents terms. It accordingly advanced a claim against the carrier alleging misdelivery and conversion of the goods. Despite sending a number of "letters before action" in the course of 2002 and 2003, it was only in January 2004 that Alcobex commenced proceedings against, among others, the carrier, in the Indian High Court at Mumbai.
Meanwhile, in April 2003, the carrier had commenced this action against, among others, Alcobex, seeking a declaration that it was not liable to Alcobex on the ground that any claim by Alcobex against it was time-barred under the provisions of the MTDs. The claims against the other defendants were for damages or an indemnity if the carrier were held liable to Alcobex for the misdelivery. These proceedings were duly served on Alcobex, which purported to serve an acknowledgement of service. This acknowledgement was invalid as it failed to give an address for service within the jurisdiction. The carrier asked that the action be tried on its merits, in order to facilitate enforcement in India of any judgment in its favour – a default judgment not being enforceable under Indian law.
As regards the time-bar, the judge noted that cl.22 was in very wide terms, in that it referred to any action relating to the multimodal transport and thus encompassed whatever claim Alcobex might make in respect of the misdelivery, whether framed in contract or in tort. The nine-month period for the bringing of an action under cl.22 expired, at the latest, on 17 February 2003. Once that date had passed, any right of Alcobex to bring an action against the carrier was extinguished. The judge referred to Metalimpex Foreign Trade Corp. v. Eugenie Maritime  Lloyd’s Rep. 378 as authority that English courts would construe time-bar clauses as extinguishing the right to bring a claim, rather than as having some lesser effect.
He noted further that since the relevant contracts were MTDs, the Hague/Hague Visby Rules and the twelve-month time limit under those Rules were of no application. Even if they were relevant, the twelve-month time limit had also expired before Alcobex commenced their proceedings in India.
Finally, the judge considered this an appropriate case in which to exercise his discretion whether or not to issue a negative declaration, as requested by the carrier. In the first place, any claim by Alcobex was already time-barred. Secondly, a judgment on the merits in these terms should preclude Alcobex from continuing its claim against the carrier in India. Thirdly, a judgment to this effect would render it unnecessary for the carrier to pursue its claims against the other defendants, since they were all contingent upon the carrier having a liability to Alcobex.
The claimant was according entitled to the declaration that it sought.
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