Trafigura Beheer BV v Golden Stavraetos Maritime Inc

Article III Rule 6 of the Hague Visby Rules requires limitation to be assessed by reference to actual delivery where the goods are delivered, rather than automatically by the date on which delivery should have occurred. Delivery is a question of fact determined in all the circumstances. It may occur under a contract of carriage varied during the voyage and at a different discharge port, provided the transaction is not entirely separate and distinct. Relevant considerations include the identity and continuity of the goods, vessel, parties, contractual arrangements, bill of lading and bailment. The carrier is not discharged where suit is brought within one year of actual delivery.

Charterers appealed from summary judgment entered for vessel owners on a cargo-damage claim. The Commercial Court held that the one-year period under Article III Rule 6 had expired and resolved an extension-of-time issue in the owners’ favour. Permission was granted on the limitation issue but refused on the extension point.

The cargo, rejected at Lagos, was later carried on the same vessel to Agioi Theodori and delivered there on 1 April 2000. The claim form was issued on 27 March 2001. The central issue was whether delivery in Greece constituted delivery within Article III Rule 6, or whether time ran from the date when delivery should have occurred at Lagos. The extension point became unnecessary if the appeal succeeded on limitation.

Lord Justice Clarke delivered the judgment, with the Vice-Chancellor and Lord Justice Kay agreeing. The appeal was allowed and a declaration was ordered that the suit was brought within one year of delivery and that the owners were not discharged from liability by Article III Rule 6.

1. Construction of Article III Rule 6. The rule is disjunctive. It does not require selection of whichever is the earlier or later date. If there was actual delivery, the relevant question is whether suit was brought within one year of that delivery. If there was no delivery, the court must identify when the goods should have been delivered and apply the one-year period from that date. Suit brought within one year of actual delivery prevents discharge even if more than one year has elapsed since the goods should have been delivered (paras [31]–[32]).
2. Meaning of delivery. Whether delivery occurred is a question of fact determined in all the circumstances. The central inquiry is whether the delivery was made in performance of the relevant contract of carriage, even if that contract was varied during the voyage, or instead under an entirely separate and distinct transaction. The existence of more than one bill of lading is not necessarily decisive (paras [49], [53], [59]–[60]).
3. Article III Rule 6 is not confined to delivery at the original contractual destination or to an amendment made without reference to a breach. The question is the broader one whether the delivery was delivery within the rule. The approach was consistent with The Ot Sonja [1993] 2 Lloyd's Rep 435, and the American authorities, including Western Gear Corporation v States Marine Lines Inc (1966) F 2d 328, Cerro Sales Corporation v Atlantic Marine Enterprises Inc 1976 AMC 376 and Universal Ruma Company v Mediterranean Shipping Company 2001 AMC 110, assisted in distinguishing delivery under the contract from delivery under a separate transaction.
4. Here the same cargo remained on the same vessel and was delivered by the same owners, at the charterers’ request, to receivers nominated by the charterers. The later voyage arose from the problems at Lagos and from the cargo remaining on board. The parties contemplated an addendum and continuation of contractual terms. There was no transhipment or new bill of lading, and the contractual bailment continued until delivery at Agioi Theodori. That delivery therefore fell within Article III Rule 6. The extension-of-time issue did not require determination.

• Court of Appeal (Civil Division): Appeal allowed; declaration made that suit was brought within one year of delivery and that the owners were not discharged under Article III Rule 6: [2003] EWCA Civ 664.
• Queen’s Bench Division, Commercial Court: Morison J entered summary judgment for the owners on 12 June 2002, holding that the limitation period had expired and deciding the extension-of-time issue in the owners’ favour. Permission was granted on the limitation point but refused on the extension point.