Sirunyan v NCO Europe Ltd

Permission to appeal should be refused where the proposed appeal has no realistic prospect of success. The Court of Appeal may reject new factual points raised for the first time on appeal, particularly where a limitation period required them to be investigated earlier. A contractual exclusion clause may defeat a cargo claim where the evidence establishes that the relevant seals remained intact. A claim based on ownership or bailment remains subject to the applicable one-year time bar, including where the claimant alleges that the shipped goods were replaced before delivery.

The claimants sought permission to appeal from summary judgment entered for the defendant ship owner. The dispute concerned drums said to contain coltan ore which arrived containing sand and pebbles. The High Court held that neither claimant had a contractual right to sue under the bill of lading, that the second claimant’s ownership or bailment claim was time-barred, and that clause 11 of the bill of lading defeated the claim because two seals were intact on delivery.

The proposed appeal challenged those conclusions on title to sue, limitation, the interpretation of the bill of lading, the factual evidence concerning the seals, and the suitability of summary judgment.

1. Permission refused. The proposed appeal was doomed to fail, so permission could not properly be granted.
2. The Court of Appeal declined to entertain two factual points raised for the first time on appeal. Such points should be taken within the one-year period governed by the Hague Rules, while the evidence is sufficiently fresh for investigation. In any event, the apparent discrepancy in a container number was overwhelmingly likely to be a misprint in information supplied by or on behalf of the claimants.
3. The judge was inevitably correct to conclude that the discharge survey showed two seals intact. Clause 11 of the bill of lading therefore excluded liability for the alleged shortage. The unexplained replacement of the cargo while leaving two seals intact was also incompatible with any realistic case on the merits.
4. The conclusions on title to sue were likewise unanswerable. The first claimant was not acting on behalf of the goods owner, and the shipper was not acting as its agent. The second claimant might have had a claim in tort or bailment if the facts justified it, but that claim was time-barred.
5. Article 3, Rule 6 of the Hague-Visby Rules applied from delivery or the date when the goods should have been delivered. The alleged non-delivery of the claimed coltan ore did not prevent the time bar from running. Section 1(4) of the Carriage of Goods by Sea Act did not assist because the provision concerned negotiable documents, whereas the bill of lading was a trade straight bill.
6. Although summary judgment is appropriate only in clear cases, this was such a case. The High Court’s summary judgment was left undisturbed.

• High Court of Justice, Commercial Court: Andrew Smith J set aside a default judgment. Males J subsequently granted the defendant summary judgment, holding that the claimants lacked contractual title to sue, that the second claimant’s ownership or bailment claim was time-barred, and that clause 11 of the bill of lading defeated the claim.
• Court of Appeal (Civil Division): Arden LJ dismissed the permission application on the papers. Longmore LJ refused permission again, finding that the proposed appeal was bound to fail. The lower court’s summary judgment therefore remained in force.