Is the claim raised by Insignia Co.

Ltd time barred in view of incorporation of Hague-Visby

Rules into the Charterparty?

Article III Rule 6 of the Hague Rules provide that -

“In any event the carrier and the ship shall be discharged from all liability in respect of 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.1”

In Borgship Tankers Inc. vs. Product Transport Corporation ltd.2 The Casco was delivered on
time charter but following a survey, the time charterers issued a letter of protest. In this matter
Creswell J. held the clause was concerned with what would be regarded in the marine market as
cargo claims or claim sufficiently connected with cargo, namely, those which were normally
brought by cargo interests claiming loss or damage arising in relation to the cargo and measured
by reference to the cargo. As no claims were made for the loss of cargo, damage to cargo, loss in
connection with cargo or damage in connection with cargo, the claim in question was not a cargo
claim and hence was not time barred.

Likewise in the present matter the issue is not relating to the damage to the goods or loss to the
goods but due to the delay in delivery there was extra loss that was incurred and that includes
charges for ship-to-ship transfer, off-hire charges, additional bunker charges etc. and hence the
claim would not be time barred under the present condition.

In Consolidated Investment and Contracting Co v Sapononia Shipping Co Ltd. The courts

approached the concept of undue hardship by reference to such factors as the size and strength of
the claim, the extent of the claimantʹs fault, the pendency of negotiations between the parties,
whether the respondents had been obstructive, the extent to which the respondents would suffer
prejudice in addition to the loss of their time bar defence if time were extended and generally
whether the hardship was not only excessive but undeserved and unmerited. Thus in the present

1
Stephen Girvin, Carriage of goods by sea, Second Edition, Oxford University Press.
2
[2005] EWHC 273 (Comm.)
matter also the claims had arisen due to the mistake and faults of the ship owner and thus time
barring of the claim of Insignia would be detrimental to the overall justice.

Thus overall the claim would not be time barred since the appropriate provision would not apply
as the claim is due to the fault of the shipper i.e. Marlboro Co. Ltd. and also the claim is not
restricted to loss or damage on the goods.