Bran pellets shipped from Owendo (Gabon), Lomé (Togo), and Takoradi (Ghana) to Casablanca (Morocco) on the claimant’s vessel were found damaged on arrival by insects and black mould. About a third of the cargo was discharged in Casablanca. The receiver’s subrogated insurers arrested the vessel seeking security in respect of the cargo damage. The shipowner provided the security through bank guarantee. Subsequently, the vessel sailed to Cadiz (Spain) where the rest of the cargo was discharged and sold.

Three proceedings arose. The insurers of the receiver brought a cargo claim in the Commercial Court of Casablanca against the master of the vessel and the bank providing the guarantee. The claimant commenced proceedings against the insurers and the receiver in London ([2014] EWHC 3917 (Comm)) seeking a declaration of non-liability, damages, and an anti-suit injunction against the Moroccan proceedings. The claimant also commenced an arbitration in London against the insurers and the receiver in relation to the cargo covered by the Lomé bill of lading. The court in the London proceedings granted the anti-suit injunction only in respect of the cargo covered by the Lomé bill of lading in favour of the arbitration. The Moroccan proceedings awarded the insurers damages.

Two questions arose in the present case. First, whether the Moroccan judgment should be recognised. This was answered in the negative because the claimant was not considered to have submitted to the jurisdiction of the Moroccan courts. Second, whether the Moroccan proceedings or the claimant’s proceedings in London constituted a valid suit for the purposes of the one-year time bar in art 3.6 of the Hague Rules. Counsel for the claimant contended that art 3.6 of the Hague Rules also protects the compromise of interests agreed to by the parties under the Hague Rules; therefore, proceedings started in a jurisdiction which applies the Hamburg Rules should not be regarded as having been brought in a competent court. Accordingly, the term ‘suit’ must be read to mean ‘suit to establish liability under the Hague Rules'. Counsel for the defendant argued that the claimant’s proceedings constituted a valid suit because the wording of art 3.6 does not require that the suit must be one brought against the carrier and the purpose of the provision is also fulfilled by a suit started by the carrier seeking to establish non-liability.

Held: A suit brought against the carrier or the ship in a State in which the Hamburg Rules apply when the parties agreed to apply the Hague Rules is still a valid suit for the purposes of art 3.6 of the Hague Rules. On the other hand, the judge opined obiter that a suit by the carrier for a declaration of non-liability would not constitute a valid suit under art 3.6.