The High Court decision in the case of The Taikoo Brilliance has both emphasised the strictness of the Hague-Visby Rules’ one-year time bar where the Hague-Visby Ryles do apply, and provided some guidance as to when they will not. David Fittis, Associate, and Deven Choudhary, Legal Manager, summarise the findings in Batavia Eximp & Contracting (S) Pte Ltd v Pedregal Maritime SA [2025] EWHC 1878 (Comm) (the “Taikoo Brilliance”).

The High Court decision in The Taikoo Brilliance confirms that:

1. Security proceedings do not constitute “suit” under Article III, 6 of the Hague-Visby Rules; and

2. Whilst to be judged on a case-by-case basis, references in a bill of lading to the number of pieces carried on deck can be sufficient to exclude the applicability of the Hague-Rules under Article 1(c).

Background

Pedregal Maritime SA (“Owners”) were owners of the “Taikoo Brilliance” (the “Vessel”). Owners were also the carriers under bills of lading. Four bills of lading were issued by Owners to Batavia Eximp & Contracting (S) (the “Holders”) for carriage of 36,934 JAS CBM of New Zealand Pine Logs (the “Cargo”) from New Zealand to Kandla, India. The bills of lading contained an arbitration clause.

Of the four bills, two referred to the fact that some Cargo was carried on deck, specifically:

1. Bill 190502 referred to 22,994 pieces carried on deck; and
2. Bill 190504 referred to 11,092 pieces carried on deck.

Upon arrival at Kandla, discharge commenced on 16 September 2019 against a letter of indemnity and the Holders alleged misdelivery by the Owners.

On 18 August 2020, the Holders issued a writ in the Singapore High Court for the arrest of a sister vessel, the “Navios Koyo”. The sister vessel was arrested and then released once security was provided. Subsequently, the Owners applied for, and were granted, a stay of the Singapore proceedings in favour of the arbitration clause contained in the bills of lading.

The Holders did not commence arbitration proceedings until 22 or 24 December 2020, more than a year after delivery.

In the arbitration hearing, the Owners contended that, pursuant to Article III, 6 of the Hague-Visby Rules, the Holders’ claim was time barred. The arbitrator ultimately decided that the Holders’ claim was time barred, but only in respect of the Cargo carried under-deck.

Permission to appeal was granted under section 69 of the Arbitration Act 1996. Following the decision in The Giant Ace, two questions of law required determination:

1. Did the Singapore proceedings constitute a “suit” for the purpose of Article III, 6 of the Hague-Visby Rules?; and

2. What is required by the words “which by the contract of carriage is stated as being carried on deck”?

Issue 1

Article III, 6 of the Hague-Visby Rules provides that “the carrier and the ship shall be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or the date when they should have been delivered.”

In The Giant Ace, the Court held that the purpose of Article III, 6 was “to achieve finality and to enable accounts and books to be closed.”

Therefore, where the Singapore proceedings were commenced for security, they failed to provide finality. Determination of the substantive dispute was still required. The Judge did not accept that security proceedings satisfied the ordinary meaning of the word “suit”, when considered in context and when considering the purpose of the Hague-Visby Rules.

The Owners would be unable to close their books until the substantive dispute was determined, if time was held to be protected by proceedings commenced for security.

Issue 2

Article I(c) of the Hague-Visby Rules provides:

“"Goods" includes goods, wares, merchandise, and articles of every kind whatsoever except live animals and cargo which by the contract of carriage is stated as being carried on deck and is so carried."

Goods carried on deck therefore fall outside the scope of the Rules.

Consequently, the Court was required to consider whether the references to the quantity carried on deck entered on bills of lading 190502 and 190504 were sufficient to allow the Holders to identify whether the Hague-Visby Rules applied. This, the Court held, is the purpose of Article I(c).

Owners’ position was that references on bills of lading required identification of the precise parcels carried in order to satisfy the exception and fall outside the scope of the Hague-Visby Rules. If (as here) only a quantity is stated to have been carried on deck, then no specific item can be said to have been carried on deck and therefore outside of the Hague-Visby Rules.

The Court rejected Owners’ narrow interpretation that would require identification of each individual parcel of on-deck cargo in all circumstances. The approach to the drafting of bills of lading would depend on the individual circumstances, such as (e,g.) whether the cargo was homogenous.  There would be evidential questions requiring consideration on a case-by-case basis.

In the current case, the arbitrator had held that it was sufficient that the bills had identified the amount of the cargo on the deck, and the arbitrator could assess the value of the cargo on deck, and therefore to assess the damages for misdelivery. On the current facts, the Court held that the arbitrator was not wrong.

Comment

1. The Court once again emphasised on the strictness of the one-year time bar. Parties should:

1. Ensure commencement of substantive proceedings within the one-year time frame; and

2. Avoid reliance on proceedings, such as security proceedings, which do not provide finality in respect of the substantive dispute.

2. The Court also highlighted the importance of a practical approach to identifying deck cargo on bills of lading, whilst highlighting that there will be evidential queries in individual cases. Where possible, identification of parcels of on-deck cargo in bills of lading should be as clear as possible to avoid any dispute. While in this case it was sufficient to state merely the number of pieces carried on deck, the same may not be true in all cases, such as (perhaps) where there is comingled cargo, non-homogenous cargo and/or some but not all of the cargo carried on deck is damaged.