FIMBank p.l.c. v KCH Shipping Co. Ltd (The Giant Ace) [2023] EWCA Civ 569

Overview

The Court of Appeal (Males; Popplewell and Nugee LJJ) has today handed down judgment in FIMBank p.l.c. v KCH Shipping Co. (The Giant Ace), which started life as an appeal under section 69 of the Arbitration Act 1996, confirming that the time bar in Article III rule 6 of the Hague-Visby Rules will apply to claims in relation to misdelivery after discharge. 

The Court’s decision upholds the previous decisions of the LMAA tribunal (Julia Dias KC, Sir Bernard Eder and Tim Young KC) and of the Commercial Court (Sir William Blair). 

In so holding, the Court found that the travaux préparatoires to the Visby Protocol which amended, inter alia, the Hague Rules text of Article III, Rule 6 to give it very wide scope, gave a clear “bull’s-eye” for the purposes of Article 32 of the Vienna Convention on Interpretation of Treaties and the English law threshold (see e.g. The Giannis NK [1998] AC 605) and made it clear that this was the intention of the drafters. 

The decision confirms the closing of the “gap” left by the previous decision (on the Hague Rules) in The Alhani [2018] EWHC 1495 (Comm) in which it was held that misdelivery occurring before or simultaneously with discharge was covered by the Article III Rule 6 Hague Rules time bar but where the Court specifically left open the question of its application to misdelivery occurring after discharge.