Batavia Eximp & Contracting (S) PTE LTD v Pedregal Maritime SA [2025] EWHC 1878 (Comm)

[2025] EWHC 1878 (Comm)Case No CL-2023-000144
IN THE HIGH COURT OF JUSTICE
THE BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
KING'S BENCH DIVISION
COMMERCIAL COURT
Venue Rolls Building, Royal Courts of JusticeDate 22/07/25
London
Before
THE HON MR JUSTICE ROBIN KNOWLES CBE
Between
BATAVIA EXIMP & CONTRACTING (S)ClaimantPTE. LTD.ClaimantPEDREGAL MARITIME S.A.Defendant“THE TAIKOO BRILLIANCE”
Nigel Eaton KC and Helen Morton (instructed by Preston Turnbull LLP) for Batavia Exipm & Contracting (S) Pte. Ltd. (“the Holders”)Chris Smith KC, Maya Chilaeva and Sam Mitchell (instructed by HFW) for Pedregal Maritime S.A. (“the Owners”)Hearing Hearing dates: 2 April 2025
JUDGMENT

Robin Knowles J, CBE:

[1]Two appeals on points of law under section 69 of the Arbitration Act 1996 (“the Act”) arise out of an arbitration award dated 16th February 2023 (“the Award”).[2]Pedregal Maritime SA (“the Owners”) were owners of the vessel “Taikoo Brilliance” (“the Vessel”) and carriers. Batavia Eximp & Contracting (S) Pte Ltd (“the Holders”) were holders of four bills of lading issued by the Owners (“the Bills”) in respect of a cargo of timber comprising 36,934 JAS CBM of New Zealand Pine Logs (“the Cargo”). The Cargo was carried on the Vessel from New Zealand to Kandla, India.[3]Two of the four Bills referred to the fact that some of the Cargo was carried on deck. Bill numbered 190502 referred to a total of 22,994 pieces as carried on deck. Bill numbered 190504 referred to a total of 11,092 pieces as carried on deck.[4]The Vessel arrived at Kandla. The Cargo was discharged in September 2019, commencing 16th September 2019. But the Bills were not available at Kandla. Discharge took place to one or more third parties without production of the Bills and against a letter of indemnity provided to the Owners by the charterer of the Vessel. The Holders alleged misdelivery by the Owners.[5]By an arbitration clause in the Bills the parties had agreed that any dispute would be referred to arbitration. No arbitration was commenced initially. Instead, on 18th August 2020, the Holders issued a writ in the High Court of Singapore for the arrest of the “Navios Koyo”, a sister ship of the Vessel (“the Singaporean Proceedings”). Arrest of the sister ship was effected on 18th September 2020. Security was provided for her release, and she was released on 25th September 2020.[6]The Owners applied for a stay of the Singaporean Proceedings in favour of the arbitration clause in the Bills. A stay was granted on 20th December 2020, a decision later confirmed by the Singapore High Court on 15th March 2021 and by the Singapore Court of Appeal on 19th October 2021.[7]In the event, arbitration proceedings were not commenced by the Holders until 22nd or 24th December 2020, that is, more than a year after the delivery, or alleged misdelivery, of the Cargo.[8]The hearing in the arbitration commenced on 18th May 2022. The Owners argued that the Holders’ claim was time-barred pursuant to Article III,6 of the Hague-Visby Rules. The Arbitrator decided that the time bar in Article III,6 did apply, although only in respect of cargo carried under-deck. The Award in the arbitration was issued on 16th February 2023.[9]On 26th June 2023, Bright J in this Court granted permission to appeal under section 69 of the Act to both the Holders and the Owners on a number of questions of law. The appeals were originally listed for hearing on 25th January 2024. That hearing was adjourned and re-listed pending the result of an appeal to the UK Supreme Court in FIMBank plc v KCH Shipping (“The Giant Ace”).[10]That decision on that appeal, at [2024] UKSC 38; [2024] Bus. LR. 1845, was expected to, and in the event did, resolve some of the questions of law on which the Holders had been granted permission to appeal by Bright J. Mr Eaton KC asks me formally to decide those issues (1-3) in line with the Supreme Court’s conclusions, rather than by his clients conceding, and I do so without elaboration in this judgment.[11]Two questions of law remain. Each concerns the requirements of the Hague-Visby Rules.

Interpretation

[12]The Hague-Visby Rules comprise an international instrument and the proper approach to their interpretation was summarised in TheGiant Ace by Lord Hamblen (with whom Lords Hodge, Sales, Leggatt and Richards agreed) at [34]. “The approach to the interpretation of the Hague and Hague-Visby Rules 34. The proper approach is set out in Alize 1954 v Allianz Elementar Versicherungs AG(The CMA CGM Libra) [2021] UKSC 51; [2021] Bus LR 1678 at paras 34 to 42. In summary:(1) International conventions should in general be interpreted by reference to broad and general principles of interpretation rather than any narrower domestic law principles.(2) The relevant general principles include article 31.1 of the Vienna Convention on the Law of Treaties 1969 which provides: "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”(3) They also include article 32 of the Vienna Convention which provides that recourse may be had to "supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion" in order "to confirm the meaning" or "to determine the meaning" when it is "ambiguous or obscure" or "leads to a result which is manifestly absurd or unreasonable".(4) Regard may therefore be had to the travaux préparatoires ("the travaux") as a supplementary means of interpretation of the Hague Rules.(5) In considering the object and purpose of the Hague Rules it is appropriate to have regard to their history, origin and context.(6) It may also be appropriate to have regard to the French text of the Rules, as this is the official and authoritative version.(7) International conventions should be interpreted in a uniform manner and regard should therefore be had to how they have been interpreted by the courts of different countries. This will be particularly important if there is shown to be a consensus among national courts in relation to the issue of interpretation.”

The First Question

[13]Article III,6 of the Hague-Visby Rules provides:
“Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading. The notice in writing need not be given if the state of the goods has, at the time of their receipt, been the subject of joint survey or inspection. Subject to paragraph 6bis the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered. This period, however, may be extended if the parties so agree after the cause of action has arisen. In the case of any actual or apprehended loss or damage the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods.”
[14]The first question is whether the Singaporean Proceedings constituted “suit” for the purposes of Article III,6. As Mr Nigel Eaton KC and Ms Helen Morton (for the Holders) point out, a distinction in the present case from the position in other authority cited to the Court is that the Singaporean Proceedings are to be taken as validly brought.[15]The purpose of the Article in question is “to achieve finality and to enable accounts and books to be closed”: see The Giant Ace at [84]. Lord Hamblen drew attention to these authorities as examples: “…(1) ".... to provide for the discharge of these claims after 12 months meets an obvious commercial need, namely, to allow shipowners, after that period, to clear their books" - per Lord Wilberforce in The Aries [1977] 1 WLR 185] at p 188.(2) "The inference that the one-year time bar was intended to apply to all claims arising out of the carriage (or miscarriage) of goods by sea under bills subject to the ... Rules is in my judgment strengthened by the consideration that article III,para 6 is, like any time bar, intended to achieve finality and, in this case, enable the shipowner to clear his books" - per Bingham LJ in Cia Portorafti Commerciale SA v Ultramar Panama Inc [1990] 3 All ER 967 ("The Captain Gregos") at pp 973 j to 974 a." The Holders also referenced “The Pionier” [1995] 1 WLR 223 at 227 (Phillips J).[16]The Singaporean Proceedings were for security; a determination on the merits of the Holders’ claim for misdelivery would (absent further agreement) require arbitration. Mr Eaton KC makes the point that the available materials show that if arrest was to be sought in Singapore then a substantive claim had to be asserted under the procedure there as described to this Court. The point is a fair one, but in my judgment it is met by the fact that the proceedings remain proceedings for security. They would not decide the claim.[17]I recognise that the ordinary meaning of the word “suit” is capable of extending to validly brought proceedings for security. However, I do not accept that proceedings for security are within the ordinary meaning of the word in the context and in the light of the object and purpose of the treaty provision. Those show, in my judgment, that “suit” for the purposes of Article III, 6 means proceedings that can decide the claim; Mr Chris Smith KC, Ms Maya Chilaeva and Mr Sam Mitchell are correct in their argument for the Owners, that if time is to stop running it is substantive proceedings that are required, that is, proceedings to establish liability.[18]The Holders argue that this interpretation involves “an unjustified gloss on the text”. In my judgment it is faithful to the text in its context and in the light of the object and purpose of the treaty provision. The passage of a year with no action on the merits does clear the books. If substantive proceedings are commenced within the year, then I accept there remains a risk of delay after that. However, the parties enjoy the certainty that there is a claim and it is underway, towards finality and clearing the books.[19]The Holders argue that a carrier who knows that the holder of a bill of lading is seeking security through proceedings knows that it is not safe to close its books. That is true, but knowledge that substantive proceedings on the merits are or may be intended to come at some future point does not clear the books. Also true is that there may be steps open to the carrier if, having sought security, claimants delay in bringing substantive proceedings (the example of the carrier applying to set aside the order for security is given). But those steps would be additional steps, required before the books would be closer to being cleared.[20]On the Holders’ analysis, the carrier is required to leave its books open for an indefinite period of time, simply by security being sought and without the certainty that there will be substantive proceedings. That is, with respect, uncommercial, when the context of the words of the treaty provision is commercial. In my judgment it is the answer to the question posed rhetorically by Mr Eaton KC and Ms Morton in their written argument: “Why should it make a difference that the first proceedings were brought to obtain security?”.[21]That answers the first question of law and I do not go further. I simply record that the Arbitrator did go on to consider the effect of the stay of the Singaporean proceedings.

The Second Question

[22]The second question concerns Article I(c) of the Hague-Visby Rules. The Article provides as follows:
“Article I In these Rules the following words are employed, with the meanings set out below: – … (c) “Goods” includes goods, wares, merchandise, and articles of every kind whatsoever except live animals and cargo which by the contract of carriage is stated as being carried on deck and is so carried.”

In these Rules the following words are employed, with the meanings set out below: –

[23]The question asks what is required by the words “… which by the contract of carriage is stated as being carried on deck …” in the (exception in) the definition of “Goods” in Article I(c)? The answer to this question goes to the applicability of the Hague-Visby Rules.[24]Leading textbooks do not deal with the question in depth: see Scrutton on Charterparties and Bills of Lading (24th ed.) [9-138], [14-067] fn 180; Carver on Bills of Lading (5th ed.) [9-119]; Voyage Charters (5th ed.) [66-73]; Bills of Lading (3rd ed.) at [11.86]. As I believe will be apparent from what follows, I do not think the question lends itself to treatment in depth that would be useful. The question of what is best practice is another matter.[25]The Owners argue that the Bills had to identify not just the quantity of cargo being carried on deck, but the precise parcels so carried. The words “which… is stated” import, they argue, an identification requirement in relation to each item, in order for that item to fall within the exception, and thus to fall outside the scope of the Hague-Visby Rules.[26]The Owners’ argument holds that if a bill of lading contains only a statement of quantity carried on deck, there is no item in relation to which it can be said that it is “stated as being carried on deck”. Rather, all that can be said to be stated (save, presumably, where the quantity is the whole of the cargo on deck) is that the item is part of a bulk of cargo which is in fact carried on deck.[27]I am in agreement that the purpose of Article 1(c) providing for a bill of lading to state that cargo is carried on deck is to allow a holder of the bill to identify whether or not goods carried on board a vessel fall within the scope of the Hague-Visby Rules. As the Owners say, this affects the liability regime that applies and it could be of importance for insurance.[28]The Owners would add the words “quickly and easily” to the quality of identification required, as in “to identify quickly and easily” whether or not goods carried on board a vessel fall within the scope of the Hague-Visby Rules. However desirable, that addition in my view takes the matter further than the words allow, even in context and even in the light of the object and purpose of the treaty provision.[29]The Court of Appeal for British Columbia considered Article I(c) in Timberwest v Gearbulk Pool Ltd [2003] BCCA 39 and Gearbulk Pool Ltd v Seaboard Shipping Co Ltd [2006] BCCA 552. (See also the Federal Court of Canada in de Wolf Maritime Safety BV v. Traffic-Tech International Inc. 2017 F.C. 23, [40], [41]-[42]). In the Gearbulk cases, bills of lading contained a notation to the effect that 86% of the cargo was stowed on deck and 14% was stowed under deck. The cargo carried on deck was damaged during transit. One of the questions arising at trial in Gearbulk had been whether or not the cargo was “stated” as being carried on deck in the bills of lading for the purposes of Article I(c) of the Hague-Visby Rules.[30]The Arbitrator in the present case was to point out the differences on the facts between that case and this (as do the Holders):
“Perhaps the most obvious difference between the two cases is that there were in Gearbulk two consignees, who were the purchasers from Timberwest of different numbers of packages of differing volume and value which were commingled to the extent that they were not separated during loading either on deck or under deck, so that … it was not possible to identify the percentage of each consignment loaded on deck or under deck, or, … the value of the on-deck and under-deck components.”
However, for present purposes the Owners rely on the contribution made by the decisions in Gearbulk to the question of interpretation of Article 1(c) of the Hague-Visby Rules as a matter of principle.[31]The matter reached the Court of Appeal for British Columbia on two occasions. On the first occasion, the Court of Appeal ([2003] BCCA 39 at [46]-[47]) wrote of: “… a construction of the definition of “goods” that accords with practical affairs and business efficacy, in that certainty is necessary for the parties to commercial transactions to assess their respective risks and determine the appropriate price for their goods and services. … a principled approach requires that the contract must be sufficiently clear so that the parties can determine their risks and responsibilities prospectively, not in the light of subsequent circumstances.” (Mr Smith KC also referred to [48] but that refers to a “determination” of quantity, whereas in the present case quantity is stated.)[32]On the second occasion, the Court of Appeal ([2006] BCCA 552 at [19]) referred to:
“… a principled approach that required a description that would permit a shipper to determine the extent of the risk presented by the cargo stowed on deck. Quantity and value are the elements of that risk and both must be included in the cargo identification sufficiently to allow the extent of the shippers’ risk to be calculated.”
[33]The reference to “value” being required to be included in the cargo identification (as a matter to be stated, as opposed to a matter that could be for determination) is not supported by the wording of Article 1(c). The position is clarified at [20]:
“It was common ground that the simplest manner of providing an adequate description would have been to identify lumber by package number, as all of the dimensions of the lumber within the package could be ascertained and value readily determined...”
. This quotation also shows that the Court of Appeal did not decide that identification of package numbers is the only manner of providing an adequate description.[34]In the present case, the Arbitrator concluded that it was sufficient that the Bills identified the amount of cargo carried on deck. The Holders note that the statements on Bills 502 and 504 were sufficient “to determine from the information in Bills 502 and 504 the value of the cargo carried on deck, and the Arbitrator did so in assessing the damages for misdelivery of that cargo”. It is true, as the Owners emphasise, that the exercise drew on additional paperwork.[35]In my judgment, it is important to recognise that it is an unavoidable consequence of the definition chosen by the Hague-Visby Rules at Article 1(c) that there will be evidential questions in each case. As Mr Eaton KC correctly points out, the definition clearly contemplates the possibility of evidential questions by its final words “and is so carried”.[36]The argument that I had the privilege to hear from the two teams of advocates confirmed me in a conclusion, not that one single approach to drafting a bill of lading was required, but that what was required might vary depending on the nature of cargo, perhaps including whether it was or was not homogenous, and the circumstances.[37]There can of course be degrees of certainty. In my judgment, the certainty provided by the Article has its limits. The Owners’ case asks too much of a definition that is simply and practically expressed in the Hague-Visby Rules.[38]The Owners argue that allowing the words “is stated as being carried on deck” to have what they term “a fluid definition”, with the exact requirements fluctuating on a case-by-case basis, is “a recipe for uncertainty”. But Mr Eaton KC for the Holders put it well, that while the construction of the Article may not vary from case to case, what is required to satisfy it may vary from case to case. A pragmatic and practical, commercial, approach is required.[39]Uncertainties will remain that require more than the relevant part of the definition of the exception in Article 1(c) was designed to resolve. Issues about commingled cargo, and what happens where some cargo on deck is damaged but not all, may remain. These issues of course can also arise in contexts other than Article 1(c) (and that is why I understand Mr Eaton KC to point out that those issues can engage with cargo below deck too).[40]In his oral argument in reply, Mr Smith KC characterised the reference in the Article to “being carried on deck” as a representation, with a factual inquiry required only if it was wrong. In my judgment the provision “which by the contract of carriage is stated as being carried on deck and is so carried” is, in terms and in context, better seen simply as a provision asking two factual questions. It may sometimes be useful to approach the matter in this way: where a bill of lading states that cargo is carried on deck, the focus is then on what cargo was carried on deck, and then back to the bill of lading to see whether the statement was sufficient in the circumstances.[41]Best practice, to promote greater certainty, may call for a bill of lading to contain a statement that improves on that seen in this case, even in a case like this. The requirement for a statement may have been undertaken imperfectly here, but the Arbitrator concluded that it was undertaken sufficiently and, the parties having chosen the Arbitrator to resolve their dispute, his factual conclusion on that is to be respected. The Cargo was, as to 22,994 and 11,092 pieces, stated as being carried on deck.[42]For the reasons given, in relation to the second question I do not propose to do more than say that on the facts of the case the Arbitrator was not wrong in law to conclude that the words “… which by the contract of carriage is stated as being carried on deck …” in the (exception in) the definition of “Goods” in Article I(c) of the Hague-Visby Rules were satisfied.

Conclusion

[43]In my judgment the Owners succeed on the first question but the Holders succeed on the second question.