The English Court of Appeal has affirmed Blair J’s decision in The Giant Ace: the 12-month time bar in Hague Visby Rules Article III, r.6 does protect the carrier against mis-delivery claims where the cargo is released from port environs cargo facilities well after discharge from the ship, in the case a bonded coal stockpile: [2023] EWCA Civ 569

The facts are in our post on Blair J judgment in October 2022: princeschambers.com/fimbank-plc-v-kch-shipping-2022-ewhc-2400-comm-the-giant-ace-a-s-69-arbitration-appeal/ 

The CA confirmed, as is well-established, that liability for mis-delivery is strict (not a due diligence standard), and filing an in rem Writ for security does not amount to commencing proceedings to stop time running for the purposes of an arbitration clause. 

The equivalent in the 1924 Hague Rules does not protect the carrier on the same facts. However, the CA looked at the travaux preparatoires of the 1968 Visby Protocol amendments and concluded that the drafters intended the amendments made to Article III, r.6 to institute the protection. Under the Vienna Convention on treaties, provisions are to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms in their context and in light of their object and purpose. 

The CA mentioned the Hong Kong cases referred to in our earlier post (Perfect Best Asset Management v ADL Express [2021] HKCFI 2310 where Edward Alder argued the point for the carrier, and  Cheong Yuk v China Intl Freight Forwarders [2005] 4 HKLRD 749 (CA)), but found them unconvincing. They did not consider the travaux preparatoires. 

It seems likely a Hong Kong Court would strive to follow The Giant Ace and seek to distinguish Cheong Yuk on the ground that a further full transport leg was involved in that case.