Perfect Marine Ltd. v Sodrugestvo Turkey Tarim Tasimacilik Ithalat Ihracat Ticaret A.S. & Ors

Summary judgment is inappropriate where a claim raises a novel or undecided issue of Hague Rules construction whose resolution depends materially on the facts. The one-year time bar in Article III Rule 6 may arguably permit a broad approach to amendments where the existing claim and the amended claim concern the same cargo, damage and alleged breach, but the issue must be determined at trial if the factual relationship is material. A party should not ordinarily re-open a time-bar objection after inviting the court to allow an amendment to proceed to trial. Reliance in misrepresentation claims is ordinarily a factual issue where the claimant’s knowledge of the relevant falsity was partial. A deceit claim must identify the natural person alleged to have made the representation or possessed the relevant dishonest state of mind. A new claim pleaded in a reply need not be struck out where the parties have fully addressed it and re-pleading would serve no useful purpose.

The claimant sought summary judgment and strike out of counterclaims brought by the defendants in a cargo claim. The counterclaims concerned alleged damage to soybeans carried under bills of lading incorporating the Hague Rules, a shortage said to result from cargo being discarded during the voyage, and deceit and negligent misrepresentation arising from the issue of switch bills of lading.

The claimant relied principally on the one-year time bar in Article III Rule 6 and contended that the defendants had no realistic prospect of proving reliance on the alleged misrepresentations. It also challenged the adequacy and procedural form of the pleadings. The court had to decide whether these issues could properly be disposed of summarily or should proceed to the trial already directed.

1. Applications dismissed. The claimant’s applications for summary judgment and strike out were refused.
2. The summary judgment test is whether the claim has a realistic, rather than fanciful, prospect of success and whether there is any other compelling reason for trial: Swain v Hillman [2001] 1 All E.R. 91, Three Rivers DC v Bank of England (No.3) [2003] 2 AC 1 and ED & F Man Liquid Products v Patel [2003] EWCA Civ 472.
3. The claimant had invited Jacobs J to allow the Shortage Claim to proceed to trial without deciding the time-bar issue. The resulting case management order included disclosure, responsive pleadings and trial directions on that issue. Re-opening the point would effectively vary or revoke the order under Civil Procedure Rules 1998, rule 3.1(7), without any material change in circumstances. The approach in Tibbles v SIG Plc [2012] 1 WLR 2591 was therefore engaged.
4. The construction of Article III Rule 6 was an undecided and important question. The authorities, including The Pionier [1995] 1 Ll Rep 223, The Leni [1992] 2 Ll. Rep. 48, The Kapetan Markos [1986] 1 Ll Rep 211 and The Giant Ace [2024] UKSC 38, supported at least an arguable broad approach. The relationship between the original and amended claims was fact-sensitive and had to be resolved at trial.
5. The reliance challenge to the Misrepresentation Claims failed. The defendants could argue that they knew only of some visible damage, not the full extent of the wet damage or the alleged discarding. Whether the representations induced their conduct was a factual issue. The duty-to-speak case and reliance on that duty were unaffected by the application.
6. The pleading adequately identified the alleged implied representations and, following further information, identified the Master and Captain Karelas as the relevant natural persons. The wider reference to other crew and shore personnel was presently too broad, but did not justify striking out the claim.
7. Although a reply should not ordinarily introduce a new claim under CPR PD 16.9.2, the court retained discretion. Given the procedural history and the parties’ full pleading of the Misrepresentation Claims, striking them out merely to require re-pleading would be formalistic and contrary to the overriding objective.