The plaintiff brought an action for damages against a contractual carrier under six bills of lading. These bills of lading were issued by the defendant, Cargo Container Line Ltd (CCL BVI), which is a company incorporated in the British Virgin Islands. However, the writ was issued against a company bearing the identical name incorporated in Malta (CCL Malta). The endorsement on the writ nonetheless clearly stated that the plaintiff’s causes of action were against the contractual carrier of the bills of lading.

After the expiry of the one-year limitation period under art 3.6 of the Hague-Visby Rules, the plaintiff corrected the defendant’s address and obtained leave to serve the amended writ out of the jurisdiction on the defendant, CCL BVI. The defendant applied to set aside the writ and discharge the order granting leave to serve the writ out of the jurisdiction. The Judge dismissed the application: see Benchmark Electronics (Thailand) PCL v Cargo Container Line Ltd [2018] HKCFI 699 (CMI307). The defendant appealed.

Held: The defendant’s appeal is dismissed. The writ is valid for service out of the jurisdiction.

First, art 3.6 of the Hague-Visby Rules provides that the contractual carrier shall be discharged from liability 'unless suit is brought within one year'. The minimum requirement for bringing a suit under art 3.6 is that the correct plaintiff must commence proceedings before a competent court against the correct defendant. In this case, the endorsement on the writ made it clear that the plaintiff intended to bring an action against the contractual carrier who issued the bills of lading. Since the entity that issued the bills of lading was the defendant, CCL BVI, there could be no doubt that CCL BVI, and not CCL Malta, was intended to be sued.

Second, an amendment of a writ may be used to either correct a misnomer or to substitute the identity of a party. Based on the plaintiff’s intentions as set out in the writ’s endorsement, it was clear in this case that the plaintiff’s amendment to the writ was more to correct a misnomer than to substitute a new party. It was not possible for the defendant to allege, after having sight of the writ, that the defendant was not the correct recipient and that a reasonable reaction from the defendant is that the writ must have been intended for service against the defendant, save that the defendant’s address was wrong.

Third, the suit was brought within the time permitted by the Hague-Visby Rules as extended by the parties' agreement and the incorrect address in the writ was an irregularity which did not nullify the proceedings and was therefore insufficient to warrant the setting aside of the writ.

[Leave to appeal to the Court of Final Appeal refused by the Court of Appeal: see Benchmark Electronics (Thailand) PCL v Cargo Container Ltd [2020] HKCA 168; but granted by the Court of Final Appeal: see Cargo Container Line Ltd v Benchmark Electronics (Thailand) PCL [2020] HKCFA 26.]