THE OWNERS OF CARGO LATELY LADEN ON BOARD THE SHIP OR VESSEL "BRIJ" v. THE OWNERS AND/OR DEMISE CHARTERERS OF THE SHIP OR VESSEL "BRIJ"

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JUDGMENT

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1. I have before me an application to further amend the Statement of Claim and the Reply. The Plaintiffs owners of the goods claimed against the Defendants carrier for failure to deliver the goods. What happened is that the Defendants gave the goods to the Venezuelan Customs which released the goods to consignee without the production of the original bills of lading. The Defendants said that they were obliged under Venezuelan law to relinquish the goods to the custody of the Customs and upon such giving up to the Customs the Defendants have no liability for what the Customs did in relation to the Customs release of the goods to the consignee without the original bill of lading.

2. The primary duty of a carrier is to release the goods only to those entitled namely against the original bill of lading and to no one else and certainly not in the absence of the original bills of lading. The amendment now sought by the Plaintiffs is to allege an implied term that if the Defendants carrier is obliged to relinquish the goods to the Venezuelan Customs under Venezuelan law, then the Defendants had a duty to instruct the Customs not to release the goods to anyone without the original bills of lading. In my view this is a perfectly arguable implied term and it is arguably not contrary to the express term under clauses 7 and 10 of the Bills of Lading but in order to give force and to support the express Tse Hai Tong term. Much will depend on what the Venezuelan law says on this and it is simply impossible at this stage for the Court to conclude that as a matter of Venezuelan law, the implied term proposed is unarguable and must fail.

3. Mr. Lyne in his most attractive and helpful submissions pointed to various objections to the proposed amendments and I hope he would not consider it discourteous if I do not deal with each and every one of his many points but confine myself to briefly stating my reasons why in the circumstances, the proposed amendments should nevertheless be allowed.

4. It is of course true that the Plaintiffs have changed their ground with the new amendments but it is in response to the Defendants case on clauses 7 and 10 and Venezuelan law and actions of Venezuelan Customs. In any event, the question is not whether the ground is changed but whether the point is unarguable or should be shut out because it would cause irreparable prejudice to the Defendants. In my view as said before, the point is eminently arguable and seems to follow naturally from the stand taken by the Defendants.

5. For me the only serious question is whether the amendments which are made late (but not that late as we are still some way from a trial, the case merely at the stage of Summons for Directions and not yet having been set down) will cause any serious prejudice to the Defendants which cannot be compensated by any appropriate order for costs. It seems to me that there is no basis for the Court to hold that the Defendants would be placed in such a position. Venezuelan law would have to be proved on this and there would be a number of good lawyers and people familiar with the Venezuelan Customs practice who could assist both sides on this aspect. It is not seriously contended that if the implied term is proved that the Defendants were not in breach of it or that they had in fact given such instructions to the Customs people which the Defendants would be prejudiced in not being able to prove by this late amendment.

          I accept of course that the Defendants wish to go to trial as quickly as possible and that the proposed amendment will probably delay the trial somewhat but in my judgment the further delay would be minimal and the interests of justice does require the proposed amendment to be allowed. Accordingly, the applications for amendment of the Statement of Claim and the Reply are allowed but only on terms that the Plaintiffs to pay to the Defendants in any event, the costs of the applications and the costs of the amendments to be made by the Plaintiffs and the Defendants arising from the applications.