XCHRX TOYMAX (H.K.) LTD. v. DUBOIS INTERNATIONAL S.A. and Another

No. CL 121 of 1992

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

COMMERCIAL LIST

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J U D G M E N T

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1. The Plaintiff applies for leave to amend its Writ and the Statement of Claim to join the 1st Third Party as a co-Defendant. The only ground on which the 1st Third Party has hitherto resisted the application is that the proposed claim against it is bound to fail. That is because the Plaintiff's proposed claim is said to be barred by the limitation period set out in para. 6 of Art. III of the Hague-Visby Rules ("the Rules"). In the course of the hearing of the application, Mr. Stewart Wong, who represents both the 1st Third Party and the Defendant, abandoned their resistance to the application in the sense that they no longer oppose the application, though they do not consent to it.

2. I do not believe that the limitation defence is bound to succeed. Whether it will succeed or not depends on whether the Rules apply to alleged breaches of contract or torts committed by the carrier "after the time [the goods] are discharged from the ship" (Art. 1(e)). An application for leave to amend is not the appropriate occasion on which to determine an issue on which courts in various common law jurisdictions have reached different views. It is sufficient, I think, to say that there is an argument for saying that the references to the "custody" and "care" of the goods in Art. II of the Rules apply only to the custody and care of the goods before they are discharged from the ship, and do not apply to the custody and care of the goods once they have been delivered to the warehouse where they are to be collected by the buyer's agent. Since the Plaintiff's proposed cause of action against the 1st Third Party relates to its alleged failure to cause the goods to be returned to the Plaintiff when the buyer failed to pay the Plaintiff for the goods, and since that failure occurred only after the goods had been delivered to the warehouse, it is at the very least arguable that the limitation period set out in the Rules does not apply to this cause of action. Having said that, though, I should add that that view is based only on the submissions made by Mr. Andrew Cheung for the Plaintiff, because Mr. Wong did not develop his submissions on the topic once I had indicated to him that an application for leave to amend was not the appropriate occasion for the final determination of the issue.

3. For these reasons, I propose to grant the Plaintiff the relief sought in its summons dated 16th December 1994, save that the appropriate costs order as between the Plaintiff and the 1st Third Party should be that the costs of the summons be in the cause, save that the costs of today's hearing should be the Plaintiff's costs in the cause.