England and Wales High Court (Admiralty Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMIRALTY COURT

SUMMARY

Limitation of time – Collision – Personal injury to claimant – Whether reasonable opportunity for arrest - Second claim form issued after expiry of time limit – Whether reasonable steps taken to serve first claim form – Whether prompt application - CPR Part 7.6 – Merchant Shipping Act 1995 s. 190

Mr Justice David Steel:

1. The Court has before it two related Applications in two related Actions. The Claimant, formally a Philippino seamen, claims damages in regard to injuries sustained by him in a collision between the vessel Baltic Carrier (on which he was employed as a seaman) and the vessel Flinterdam, which occurred on 16th March 1998 in the Kiel Canal.
2. The Claimant has commenced two Actions. The first, 1999 Folio 760, was issued on 8th June 1998 in which the two defendants are the repective owners of the two vessels. The Second Action, 2000 Folio 723, was commenced by a claim form dated 27th June 2000 in which the only Defendant is the owner of Flinterdam.
3. The Applications arise in this way. On 14th July 2000, Master Miller acceded to the Claimant’s application made ex parte by means of an Application Notice dated 12th July, for an order that the claim form in the First Action be renewed as against the Second Defendant. In the First Application before the court raised by an Application Notice dated 24th October 2000, the Second Defendants, the owner of Flinterdam, seek to set aside that order on the basis that the Claimant did not take reasonable steps to serve the claim form within the period of its validity and did not apply promptly to extend the period of the validity of the claim form: see CPR Part 7 .6.
4. The Second Application is brought by the Claimant. It is by way of an Application Notice dated 18th July 2000, for an order that the time allowed for bringing proceedings in the Second Action (which expired on the 16^th March 2000) be extended until 27th June 2000, pursuant to S.190 of the Merchant Shipping Act 1995.

Background

5. Some 6 months after the collision occurred, Captain Barry Turner of Messes Clyde & Co. was in the Philippines on business and was invited by the ITF to interview the Claimant. On 26th November 1998, Captain Turner advised the ITF that in his judgment the Claimant had sustained injuries as a result of the collision and recommended that he should attend on a specialist consultant in order to obtain a report for use in legal proceedings.
6. In anticipation of being instructed in due course by the ITF to act on the Claimant’s behalf, Messes Clyde & Co. on 11th January 1999, placed the vessel on their internal ship-watch system. The Clyde & Co. watch system is based on information furnished by Informea Publishing Company, formally Lloyds of London Press Limited, who maintain a database on the movement of almost all registered merchant vessels world-wide. The system was operated by an associate at Messrs Clyde & Co, Miss Hazel Adlam, and for present purposes can be conveniently divided into 2 parts. First, Informa provide a daily disc containing information of all vessels expected at English and Welsh ports. This information is derived from the main database. Secondly, Miss Adlam and various partners in Clyde & Co. have direct computer access to the database itself.
7. Flinterdam was put on “UK watch”, that is to say that Miss Adlam was requested to report if and when the vessel was said to be due to visit a port in England or Wales. (Although of course part of the UK, visits to Scottish ports were not addressed as such.) It was this decision to place the vessel on “UK Watch” only (and thus assess her movements by reference only to the information contained on the daily disc and not by reference to the main database) which formed the focus of the debate in the present applications.
8. In the summer of 1999 arrangements were duly made for a medical report to be prepared on the Claimant. This report is annexed to the particulars of claim. It records that the Claimant was examined shortly after the collision in Germany, having reported sleeping difficulties, headache, chest pain, back and right arm pain and severe palpitations. Although tests revealed no physical problem, the Claimant was discharged after a week, diagnosed as suffering from “severe nervousness, panic state, anxiety and post nervous gastritis”. He had been repatriated a week later.
9. On various occasions thereafter in 1998 and early 1999, the Claimant had been examined at various institutions in the Philippines. The primary diagnosis was that he was suffering from post concussion syndrome as well as post traumatic stress disorder. The prognosis was that he was unfit to work as a seaman, but might obtain employment to perform simple tasks.
10. Shortly before the medical report was completed, Messrs Clyde & Co. were instructed to pursue the claim on the Claimant’s behalf. In due course, on the 7th June 1999, Mr Nigel Kushner of Clyde & Co., who had responsibility for the case, received a notification from Miss Adlam that Flinterdam was reported as expected to arrive at the Medway on the 11th June. The very next day the internal watch system also reported that Baltic Carrier had arrived at Fowey. In these circumstances, the first claim form, Action 1999 760, was issued against both vessels.
11. Although the claim form (and warrant of arrest) was duly served on Baltic Carrier, Flinterdam did not in fact visit the Medway. Indeed on being telephoned by Mr Kushner, the Harbour Master at Medway advised that he had no records of the arrival of Flinterdam being anticipated. (Subsequent examination of the main data base has revealed that Flinterdam departed Soderhamn in Sweden on the 4th May and, having passed West through the Dover Strait on the 11th May, reached La Pallice in France on the 13th May.)
12. On the 19th August 1999, at about 2 o’clock in the afternoon, Mr Kushner happened to log on to the main database and was surprised to find that it showed that Flinterdam was recorded as currently at Fowey. Mr Kushner had received no warning from Miss Adlam with regard to this visit to Fowey. Subsequent investigations have revealed that the vessel had in fact arrived at Fowey at 23.20 on the 17^th August. He immediately telephoned the Harbour Master at Fowey and was informed that Flinterdam was due to leave within a few hours. (Indeed it appears that she departed at 16.15 that day.) He concluded, correctly in my view, that there was insufficient time to obtain instructions from the ITF, prepare the necessary paperwork and arrange for service of a claim form and the arrest of Flinterdam before she left.
13. On the 16th March 2000 the limitation period prescribed by s.190(3) of the Merchant Shipping Act 1995 expired. Unfortunately, Mr Kushner did not appreciate this. Indeed he was under the mistaken impression that the limitation period was not two years but three years pursuant to s.11 of the Limitation Act 1980.
14. This misapprehension is at least understandable if not excusable. The relevant time limit vis-a-vis the owners of Baltic Carrier was indeed three years pursuant to the 1980 Act. This is because s.190, so far as personal injury claims are concerned, only apply to proceedings to enforce a claim for damages against vessel’s owners where the fault of that vessel has caused injury to a person on board another ship: see The Niceto De Larrinaga [1966] P 80. In contrast, the claim against Flinterdam, being the other vessel, fell directly within the scope of s.190. Accordingly, the shorter period of two years thus prescribed takes effect: see The Alnwick [1965] P 357.
15. On the 7th June 2000 the period of 12 months permitted for service of the claim form in Action 1999 760 expired as against the owners of the Flinterdam. No application had been made prior to this expiration for renewal. This arose because Mr Kushner took the view that there was a risk that, in the event that he applied for renewal of the first claim form, such renewal might be successfully challenged following service on the Flinterdam on the grounds that there had been a reasonable opportunity for arresting her while the vessel had been at Fowey in August. Since he was under the impression that the limitation period was three years, he took the decision to wait and see whether Flinterdam returned within the jurisdiction prior to the expiration of the 12 month period and, in the event it did not, to issue a new claim form. This he duly did on the 27th June in the form of Action 2000 Folio 723..
16. The timing of the issuance of the new claim form was prompted by notification from the watch service that Flinterdam was expected at Newport that day. Mr Kushner in fact discovered that the vessel was at Bird Port on the River Usk and it was there that the vessel was arrested and the second claim form served upon her on the 28^th June.
17. The next day the vessel’s P & I Club, the North of England, furnished a letter of undertaking. Somewhat surprisingly this undertaking was posted without protest and despite the fact that it expressly recorded that the claim arose from a collision which had occurred on the 16th March 1998. This may be because the North of England thought that the claimant might have been serving on Flinterdam rather than Baltic Carrier or, more likely, like Mr Kushner, it had forgotten the shorter limitation period applicable to claims against the non carrying vessel.
18. The North of England woke up to the point on the 7th July and in a letter to Messrs Clyde & Co. commented:

“We therefore assume that you acknowledge this claim is time barred against our members and that you will return the club letter of undertaking issued on the 28th June 2001.”

19. On the 13th July, Clyde & Co.’s ship watch service reported that Flinterdam was expected to arrive a Shoreham on the 19th July. Messrs Clyde & Co. had already issued an application on the 12th July 2000 seeking renewal of the validity of the claim form in Action 1999 760. On an ex parte application, Master Miller granted the order extending the validity of the claim form on the 14th July. On 17th July 2000, the claim form in Action 1999 Folio 760 was served on the Flinterdam.
20. It is convenient to mention in passing that the owners of Flinterdam submitted to me that there had been a material non-disclosure in respect of the without notice application made to Master Miller. As I understood it, the focus of this point was a sentence in the Affidavit of Mr Kushner which read:-

“My firm did not receive advance notification as to the arrival of Flinterdam which in fact arrived a Fowey on 17th August 1999...”

21. It was contended that the Claimants failed to disclose that such notification would have been received if the vessel had been put on world-wide watch rather than UK watch only. This led in due course to the contention that, even if reasonable attempts to serve the claim form did not require a world-wide watch, nonetheless the renewal of the claim form could be set aside on the grounds of non-disclosure.
22. The next stage was that Messrs Clyde & Co. issued an application notice in Action 2000 Folio 723, seeking an order that time allowed for bringing proceedings in that action be extended until 27th June, pursuant to s.190 of the Merchant Shipping Act. There are two relevant sub-sections of that section: -

(5) Any Court having jurisdiction in such proceedings may, in accordance with Rules of Court, extend the period allowed for bringing proceedings to such extent and on such conditions as it thinks fit.

(6) Any such Court, if satisfied there has not been during any period allowed for bringing proceedings any reasonable opportunity for arresting the defendant’s ship within –

(a) The jurisdiction of the Court, or

(b) The territorial sea of the country to which the plaintiff’s ship belongs or in which the plaintiff resides or has his principal place of business which are material:-

shall extend the period allowed for bringing proceedings to an extent sufficient to give a reasonable opportunity of so arresting the ship”.

Extension pursuant to Merchant Shipping Act 1995

23. Whilst, in due course, on 24 October 2000, the owners of Flinterdam issued their own Application Notice seeking an order setting aside the order of Master Miller extending the validity of the claim form in the first set of proceedings, it is convenient to deal with the Application made under s.190 first. (The Claimant has made it plain that he will not proceed with both Actions and in the event that he is entitled to proceed with the second claim form it will be unnecessary for him to proceed with the first claim and it will be discontinued.)
24. The Claimant asserted that by virtue of s.190 (6) there was a mandatory extension available. In this context, it is common ground that during the course of the two years from the date of the injury the vessel Flinterdam did not enter the territorial sea of the country where the Claimant resides, namely the Philippines. It follows that the only issue under subsection (6) is whether there was a reasonable opportunity of arresting the vessel within the jurisdiction of the Court in England and Wales. The Claimant’s case on this aspect was that no reasonable opportunity was afforded for an arrest during the unheralded visit of the vessel to Fowey in August 1999. But while this clearly raises issues as to whether all reasonable steps had been taken to serve the first claim form, the issue under the Act is whether there has been a reasonable opportunity for an arrest during the limitation period. Then and only then is time to be extended to permit the bringing of proceedings. In my judgment this is to be approached objectively without regard to whether steps were actually taken in an attempt to arrest in a particular jurisdiction. It has not been suggested that, if this premise is correct, there was no reasonable opportunity of arresting Flinterdam at Fowey on one or more of the earlier occasions that she visited the port in 1998. Accordingly, I have come to the conclusion that the requirements of a mandatory extension of time have not been satisfied.
25. It follows that the question as to whether the second claim form is susceptible to the time bar depends on the outcome an application under sub-s.(5). But no rules have in fact been made pursuant to this section (nor indeed pursuant to the predecessor section, section 8 of the Maritime Conventions Act 1911). However the absence of any rules of court does not eliminate the discretion: see HMS Archer [1919] P 1. Furthermore, since the provision has in the past been construed so as to permit the extension of the validity of the existing claim form as well as extending time so as to validate the issue of the claim form out of time (see The Espanoleto [1920] P 223), the practice which accordingly has developed is to treat applications pursuant to the discretionary power accorded by virtue s.190 on similar principles to applications to extend the validity of the claim form pursuant to the relevant Rules of Court: see The Seaspeed America [1990] 1 Lloyd’s Rep. 150. The Myrto (No. 3) [1987] AC 597.
26. The relevant provision of CPR is Part 7.6: -

` “(1). The Claimant may apply for an order extending the period within which the claim form may be served.

(2) The general rule is that an Application to extend the time for service must be made,

(a) within the period for serving the claim forms specified by Rule 7.5 or

(b) where an order has been made under this rule within the period for service specified by that order.

(3). If the Claimant applies for an order to extend time for service of the claim form after the end of the period specified by Rule 7.5 or by an order made by this Rule, the Court may make such an order only if:-

(a)….

(b)The Claimant had taken all reasonable steps to serve the claim form but has been unable to do so and,

(c)In either case the Claimant has acted promptly in making the Application.

27. This provision is in substantially different terms from its predecessor RSC Ord.6 r.8 and I accordingly agree with the observation of Rix J. in The Hai Hing [2000] 1Lloyd’s Rep.300 at p. 306 that: “the previous jurisprudence may be illuminating but I would not regard it as binding in the new circumstances.” It follows that there is in my judgment an unfettered discretion to extend time subject to the express limitations where, as here, the application is not only made after the expiry of the time limit but also after the expiration of such proceedings as were brought within time.
28. It is appropriate to consider the two threshold conditions before turning to more general consideration relevant to the exercise of the discretion. It was the Defendant’s case that the claimants failed to satisfy either limb: the Claimant, it was contended, had not taken all reasonable steps to serve the first claim form during its validity and had not acted promptly in making his application.
29. As regards to the first limb, I reject the submission made, albeit tentatively, by the Defendants that any visits of Flinterdam into the jurisdiction prior to the issuance of the first claim form in June 1999 were material to the question of whether reasonable steps had been taken to serve the claim form. It seems to me that the question of whether such reasonable steps had been taken only arises for consideration once a claim form has been issued. The fact that the vessel called at Fowey in June, July and August 1998 is not to the point.
30. The main thrust of the Defendant’s submissions on this part of the case was to say that Messes Clyde & Co. ought as reasonably competent solicitors acting on behalf of their clients to have put Flinterdam on World-wide Watch and, if they had, they would have received sufficient warning of the vessel’s arrival at Fowey in August 1999 so as to permit service of the claim form.
31. I take the latter issue first, namely whether putting the vessel on World-wide Watch would have in fact made any difference. It is clear that at some stage information came available from the Lloyd’s agent at Le Havre that the vessel Flinterdam had departed La Havre on 16th August bound for Fowey. However it appears that, either because of delays in despatch from La Havre or because of delays in inserting the information onto the database, such may not have become available on the database until as late as the 23rd August. In a letter dated 11th July 2000, LLP Limited the proprietors of the database stated:-

“I would suggest that if the vessel had been on watch service in August 1999, we would not have informed you the vessel was even bound for Fowey until at least August 24/25....”.

32. This delay whatever its cause is in my judgment confirmed by the fact that when Mr Kushner looked at the database by chance at 2 p.m. on 19th August the only information available was that the vessel had arrived at Fowey. By definition this must have been derived from sources in England. It is of course a possibility that Miss Adlam missed information on the database on the 17th or 18th of August, but in that context I bear in mind and accept the evidence of Mr Fisher of Messes Clyde & Co., who in a statement prepared for the purposes of this hearing recorded that his cargo practice was such that he maintained a daily watch on some 482 vessels, relying almost exclusively on the internal watch system maintained by Clyde & Co., and that in his experience Miss Adlam had never failed to advise him of a vessel arriving in port in England and Wales.
33. In the course of their investigations the Defendant’s solicitors obtained a faxed copy of a report from the Lloyds agent Le Havre dated 17th August reporting on the departure of Flinterdam for Fowey the previous day. This information was faxed to “Shipping Movements” at LLP. However it is not clear when the information was faxed. Even assuming that it was faxed that day the covering letter of explanation from Mr. Keith Creer of the Informa (the new name of the database company) does not instil any confidence that the material would have reached the Website in due time. I quote his letter:-

“The standard procedure in respect of the listings forwarded is that the previous days callings at the port are collated and are forwarded to this office by fax the next day following. Depending on the actual time of receipt here, the advice, having been logged, and checked for legibility etc., and then passed through to the individual analyst for validation, the expectation would generally be that said message would be processed (i.e. on the database) within 24 hours of receipt although it has to be stressed this is not always achieved. In relation to the date specified (August 1999), there is no way I can guarantee this would have been the case in this particular instance.”

34. I read this letter as confirming that even on the assumption that the material was duly forwarded on the 17th, it might find its way on to the database during the course of the 18th but having regard particularly to the fact that this occurred in August there might be further delay. It seems to me that the overwhelming probability is that the daily disc on 17th and 18th had no reference to the arrival of the vessel, either actual or anticipated at Fowey.
35. Taken overall the evidence before the Court gives rise to the clear conclusion that, even if a world-wide watch had been maintained, that is to say by way of daily perusal of the main database and not the daily disc, nonetheless, information about the arrival of Flinterdam at Fowey would probably not have been available any earlier than about the time it was discovered at 2 p.m. and certainly not in time for steps to be taken to serve proceedings on the vessel.
36. It follows that even if a reasonably competent solicitor would have required the watch to be maintained on a world-wide basis, rather than UK only basis, this would have occasioned no difference. It also follows that in my judgment the allegation of non-disclosure (assuming it to be proper to categorise it as such) fails on the facts, namely that there was nothing material to disclose.
37. For the sake of completeness I now turn to the allegation of fault itself, namely that a reasonably competent solicitor would not have restricted the watch to UK only. The support for this submission is contained in paragraph 9 of the second statement of the Defendant’s solicitor, Mr John Tolcher. He said as follows:-

“In my experience the placing of a vessel on ship-watch is only one of the steps that a competent Admiralty Solicitor is reasonably required to take in order to ensure that an opportunity to serve proceedings on a vessel is not missed. In the circumstances of the present case I would have expected a reasonably competent Shipping Solicitor to place the vessel on a world-wide search and kept a very close eye on the vessel’s movements particular given that proceeding had already been served on the Baltic Carrier on the 8th June 1999, and there was as Mr Kushner states in paragraph 14 of his first Affirmation an intention to pursue the claim as against both vessels. By closely tracking the vessel with the assistance of a world-wide search it would have been possible to monitor the vessel’s trading patterns and to anticipate her likely destination port. If the search revealed that the vessel was at a French port I would have expected a competent solicitor to anticipate the possibility that she was subsequently call at a port in England and Wales. That possibility would be increased if the vessel was in a port such as Le Havre from which vessels often sail to ports in England.”

38. This assertion in my judgment is based on some misconceptions. First of all it proceeds on the basis that only a world-wide search will reveal the intended port of destination if in England and Wales. This seems to me to be wrong in fact. The daily disc furnished in respect of the UK search will contain, as I understand it, all material relating to the vessel derived from the main database to the extent that it records the actual or potential arrival at, presence in or departure from an English or Welsh port.
39. Secondly, it proceeds on the assumption that there would be added value so far as the Flinterdam itself was concerned in monitoring the trading pattern so as to assess her likely destination port. The trading pattern of Flinterdam as emerges from the print-out in the papers before the Court was entirely restricted to European ports. Flinterdam was in fact a small cargo vessel of some 3000 tonnes dead-weight. The concept that she was in some way more likely to visit England on departure from Le Havre as opposed to departure from Antwerp, Brunsbuttel, Rotterdam or Hamburg and so on, is difficult to follow. The reality is as I see it that given her trading pattern, it was inevitable that for the purposes of a potential arrest in England, it was desirable to restrict the scope of the watch to UK only.
40. An earlier statement from Mr. Tolcher suggests to me that he had at one stage been under the misapprehension that the internal watch system at Clyde & Co. constituted something akin to the tracker service which is also available from Lloyds (albeit at a substantially greater expense) whereby direct contact is maintained with Lloyds Agents with a view to ascertaining the trading schedule of a particular vessel.
41. Once it emerged that this was indeed a misunderstanding of the position, Mr Tolcher felt able to fall back on a alternative claim to the effect that it was unreasonable not to maintain a world-wide watch. I have to add that such a complaint would, in my judgment, be difficult to make good in the absence of convincing evidence from an experienced source that such was indeed the common practice amongst solicitors acting for Personal Injury or Cargo Claimants.
42. I have come to the conclusion that despite the fact that the vessel did visit Fowey during the period 17th - 19th August 1999, nonetheless the Claimant took all reasonable steps to serve the claim form during the course of the validity of the claim form. That was the only occasion when it was possible so to do and the failure to accomplish service was not attributable to any failure to take all reasonable steps.
43. This leads to the second threshold requirement to the effect that the Claimant “has acted promptly in making the Application.” Here the Claimant is on more vulnerable ground. This is because the second claim form was issued in circumstances where there had been a conscious decision taken during the limitation period to apply to renew the first claim form and that decision was promoted by a complete misunderstanding as to what the appropriate period was.
44. However it is noticeable that both the requirements of CPR 7.6 (3) (b) and(c) are only in circumstances where the claim form has expired. It follows that by definition at the time when such an Application is made to renew there a period of time that has already elapsed since the claim form has expired. It considering the issue whether the terms of sub-rule (c) have been met in the present case the following matters are, in my judgment, pertinent:

i. Although the limitation period had expired some three months earlier, the validity of the first claim form had only expired some three weeks earlier.

ii. Further the court has always treated the principles applicable to renewal and extension in circumstances of the lack of practicable opportunity for an arrest as the same.

iii. If an application to renew the first claim form had been made in place of the issuance of the second claim form, such application would (and I do not that the contrary was contended) have been fairly categorised as promptly made.

Conclusion

45. Bearing in mind withal the overriding objective of the rules, I conclude that the threshold requirements of CPR 7.6 have been satisfied and I now turn to issues material the exercise of the discretion. The following aspects are in my judgment significant: -

i. Whilst strictly speaking the owners of Flinterdam are being deprived of the advantage of the time bar, it must be borne in mind throughout that there was no reasonable opportunity for service or arrest until the visit to the River Usk in June.

ii It remains notable as already recorded that following the arrest of Flinterdam on 28th June, the North of England P & I Association were no more alert to the implications of the 2 year time limit than had been the Claimants and their solicitors. Once the point was taken by the North of England on 7th July, the Application to extend the earlier claim form was duly issued some 5 days later.

iii. The attempt to avoid the vulnerability of an application to renew the existing claim form for failure to act during the visit of Flinterdam to Fowey in August has in fact not afforded any advantage to the Claimant because that very issue has arisen in the context of the second claim form.

iv. I have not forgotten that the claimant is still in a position to proceed against the carrying vessel Baltic Carrier. But it seems almost inevitable that Baltic Carrier if found liable to the claimant will seek to make a recovery from the owners of Flinterdam for an appropriate contribution by reference to the fault of Flinterdam (sole responsibility for a collision between 2 vessels underway being very much an exception rather than the rule). Thus avoidance of proceedings brought by the Claimant from the Defendants’ point of view would not necessarily result in the avoidance of proceedings arising out of a collision altogether

46. It follows that, although the penny dropped late as to the relevant limitation period, I consider that there are good grounds for extending time and I do not perceive any material hardship or prejudice to the Defendants in the event that an extension is granted.
47. This conclusion makes it unnecessary to consider the Defendants’ application to set aside the order of Master Miller.