PMAX QUEEN SHIPPING LIMITED & Anor v OLAM AGRICOLA LTDA & Ors

At trial, a party may amend its pleading where the amendment causes no unfairness, difficulty or prejudice. Permission should be refused where an amendment would introduce a new, contentious and hypothetical factual investigation which does not arguably arise under the pleaded case. A party remains confined by the architecture of its pleaded case and cannot introduce a materially different legal or factual approach late in the trial. However, where the pleading has not specified the evidential basis for a valuation approach, the court may permit argument developing that approach on the material available, provided it does not amount to a new positive case.

The judgment concerned preliminary issues in a general average claim arising from damage to a vessel. The claimants sought permission to amend their Reply concerning the basis on which the vessel’s contributory value should be assessed. The proposed amendments addressed costs and alternative valuation approaches, including valuation by reference to scrap value and the cost of ballasting the repaired vessel from China to Montevideo.

The central questions were whether the amendments altered the pleaded cases materially, caused procedural prejudice, or introduced a new and unsupported factual inquiry, and what argument remained open on the existing pleadings.

1. Amendments concerning additional cost items. The proposed addition to paragraph 34(a)(iv) caused no unfairness, difficulty or prejudice. Whether the relevant head of cost properly formed part of the contributory-value calculation was an issue for argument. Permission was therefore granted. The consequential cross-reference in proposed paragraph 34(c)(iii) was also permitted.
2. Return-voyage costs. The proposed paragraph 34(c)(v), seeking to include the cost of ballasting the repaired vessel from China to Montevideo, was refused. On the defendants’ pleaded approach, that cost was not arguably part of the calculation. In any event, introducing it would have required a late investigation into a contentious and hypothetical factual issue.
3. Limits of the pleaded case. The claimants could not advance a new positive case based on the price which reasonable buyers and sellers would hypothetically have agreed for the damaged vessel at Montevideo. The pleadings and case-management directions had established the framework of the preliminary issues trial, and it would have been unfair to alter that framework materially at trial.
4. Scrap valuation. The claimants could nevertheless argue that scrap value was the appropriate valuation basis. Their pleading had not identified the factual or expert basis on which scrap value was said to be appropriate, and they had not been required to particularise it. The court could therefore consider whether the available material supported the conclusion that no reasonable buyer would have contemplated anything other than a scrap purchase. The defendants remained entitled to challenge whether the evidence permitted a satisfactory positive finding.
5. The Amended Reply was to include the permitted amendments but exclude paragraph 35(c)(v), with corresponding removal of the proposed return-voyage costs from Annexures C4 and C5.