海上保险错误放货索赔的诉讼时效问题
FIMBank p.l.c. v. KCH Shipping Co. Ltd (Giant Ace) [2022] EWHC 2400 (Comm) Background 本案涉及一艘从印尼运载一批煤炭前往印度的船舶。船东签发了不记名提单(Congenbill格式)。租约链上各方,指示船东将煤炭凭保函卸到码头堆场后放货。提单被抵押给了一家名为"FIMBank"的银行,该银行没有收到债务人还款,故凭正本提单起诉船东错误放货。FIMBank启动仲裁时,时间距货物卸下船已超过一年。仲裁庭于2021年9月1日作出裁决,该索赔已经超过海牙规则下,一年的诉讼时效。银行不服判决,根据1996年仲裁法第2(2)(b)条对2021年9月1日仲裁庭的部分最终裁决(“裁决”)提出上诉。This appeal relates to claims made by the Claimant ("FIMBank"), which is a trade finance bank headquartered in Malta regulated by the Maltese Financial Services Authority, against the Defendant ("KCH"), which is a Korean-incorporated company. The appeal is brought by permission of Butcher J given on 22 December 2021 pursuant to s.69(2)(b) of the Arbitration Act 1996 against the Partial Final Award (the "Award") of an Arbitral Tribunal dated 1 September 2021. FIMBank brings claims as holder of various bills of lading for misdelivery of cargo against KCH as carrier. The charterparty chain is described by Cockerill J in The Giant Ace [2020] 2 Lloyd's Rep 511 and need not be explained further for the purpose of the matters to be decided in this judgment. In short, the question of law that arises in this case is whether the limitation of liability in Article III, r.6 of the Hague Visby Rules applies to claims for misdelivery of cargo after discharge from the vessel. This question has not been decided previously by the courts in this jurisdiction, having been left open in The Alhani [2018] 2 Lloyd's Rep 563 at [86], and raises as Butcher J pointed out a matter of general public importance.The Award decided certain preliminary issues, so that the background facts have yet to be ruled upon. In brief, 13 sets of bills of lading dated 4 and 14 March 2018 on the Congenbill form were issued 'to order' for and on behalf of the Master of the M/V GIANT ACE for about 85,510MT in aggregate of coal in bulk. KCH had bareboat chartered in the vessel from Mirae Wise SA (a Panama company and the registered owner of the vessel) and the claim is brought against KCH as carrier. By way of incorporation from the charterparty, the bills of lading (as the Arbitral Tribunal held) were subject to the Hague-Visby Rules (the "Rules" which term also includes the Hague Rules depending on context), including the time-bar in Article III rule 6 of one year after delivery which applies to claims against the carrier. The coal was loaded in Indonesia and arrived at the Indian ports of Jaigarh and Dighi around two weeks later. It was discharged between 1 and 18 April 2018 against letters of indemnity which ran up the charterparty chain. It was then placed in discharge port stockpiles. What actually happened to it has not been explored in the facts before the court, and is in dispute. FIMBank appealed The Commercial Court decision (a) The First Issue FIMBank argued that the wording of Article III r.6 gave no immunities to carriers post-discharge. None of the provisions of the Rules contain or regulate an obligation to deliver. Therefore, they said, the carrier’s “period of responsibility” in relation to the goods under the Rules and the immunities provided to them ended when the goods were discharged from the vessel. After this, it was still open to the parties to contract into the Rules. As no such terms were contained in the current contract, FIMBank argued that the Rules did not apply and the one year time bar was therefore inapplicable. The Court rejected this argument and upheld the decision of the tribunal. Article III r.6 was designed to allow carriers to close their books after a year. The time bar contained in the Rules has consistently been given a broad construction to achieve finality and there was “no sound objective reason” for applying fine distinctions on discharge and delivery. The Court went on to emphasise the tribunal’s consideration that it was “not commercially sensible or even reasonable” for the carrier’s period of responsibility to end immediately post-discharge. Certainly, in the current case, FIMBank did not immediately present the bill of lading to the carrier when the goods were discharged. For the carrier to lose the protections provided by the Rules in circumstances where they had to hold the goods post- discharge for an undefined period would not make commercial sense. (b) The Second Issue The Court held that clause 2(c) did not operate to disapply the Rules after the discharge of goods. FIMBank sought to rely on The MSC Amsterdam, a 2007 case in which the Court of Appeal held that the bill of lading did indeed dis-apply the Rules. In this instance, the Court held that the terms of the current bill of lading had “materially different terms” to those considered in The MSC Amsterdam and the terms in question in that case did not consider Article III r.6. A similar decision to The MSC Amsterdam was not, therefore, warranted. The Court's reasoningThe Court upheld the tribunal's decision on both questions, and accordingly dismissed the appeal. On the first question, it concluded that, on its true construction, Article III r 6 of the Hague-Visby Rules applies to claims for misdelivery of cargo after discharge. The Court noted that this conclusion avoided the need for fine distinctions as to the point at which discharge ended, and accorded with the objective of the rule which was intended to achieve finality and to enable the shipowner to clear its books. It further observed that, although certain common law authorities and commentaries might be said to support the construction of Article III r 6 for which FIMBank contended (including Carver on Charterparties and Voyage Charters), there was no international judicial or academic consensus to that effect. The Court held that, even if its conclusion above was wrong, the tribunal's decision was in any event justified by its finding that the bills of lading contained an implied term providing that the Hague-Visby Rules obligations and immunities are to continue after actual discharge and until delivery takes place, in line with the reasoning of the Court of Appeal in The MSC Amsterdam [2007] EWCA Civ 794. On the second question, the Court held that, on a proper construction, Clause 2(c) did not disapply the Hague-Visby Rules to the period after discharge. Although FIMBank relied in this regard on The MSC Amsterdam, in which the express terms of the bill of lading concerned were held to have disapplied the Hague Rules after discharge, the Judge held that that decision did not warrant a different result, insofar as it featured a bill of lading with materially distinguishable terms. Simon Rainey K.C. of Quadrant Chambers and Matthew Chan of Twenty Essex acted for KCH, instructed by Kyri Evagora and Thor Maalouf of Reed Smith LLP. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Comment The decision is important for parties involved in the carriage of goods by sea. It has confirmed that the immunities conferred by the Rules apply during the period between discharge and delivery. This is obviously good news for carriers and their insurers.It is, however, important to note that the case involved the particular contract in issue. Whilst a precedent has been set that the Rules in principle apply in the period after discharge until delivery, whether the parties have contracted out of the Rules will depend on the particular wording of the contract. The MSC Amsterdam shows that language that is substantially different to clause 2(c) of the Congenbill could result in a different conclusion.