The plaintiff was the owner of the Dutch trawler Neeltje Catharina. The defendant was the officer commanding His Majesty's ship Archer (HMS Archer). On 18 January 1915, the vessels collided in the North Sea. On 24 September 1915, the plaintiff wrote to the British Consul-General in the Netherlands to know whether the Admiralty would admit liability. Some correspondence ensued. On 14 July 1916, the Consul-General informed the plaintiff that the Admiralty declined to admit liability. Further letters were exchanged. On 21 February 1918, the Dutch Minister wrote to the plaintiff informing him that the British Foreign Office had stated that they declined to reopen the question, and that the plaintiff always had his legal remedy. On 18 June 1918, the plaintiff's solicitors wrote to the Treasury Solicitor stating that they had been instructed to issue a writ against the officer in charge of HMS Archer. As the Treasury Solicitor did not consent to waive the question of the delay in commencing proceedings, the plaintiff's solicitors obtained an affidavit from the plaintiff, setting out the reason for the delay: the desire to avoid a lawsuit and the diplomatic negotiations which had taken place. On 21 October 1918, the plaintiff applied ex parte to Hill J for an extension of time under s 8 of the Maritime Conventions Act 1911 (UK) (the MCA). By an ex parte order, Hill J granted leave to commence proceedings. A writ was then issued. The Treasury Solicitor entered appearance under protest and applied for the order to be rescinded and the writ to be set aside.

The defendant argued that the plaintiff had failed to show any circumstances entitling him to ask for the indulgence of the Court. He preferred diplomatic to legal action, and having chosen his forum, must be bound by the terms of the Act, which was passed in order to apply the procedure of continental countries, including the Netherlands, to actions in Great Britain. The impossibility of tracing the various witnesses of a collision which occurred nearly four years ago must also be borne in mind in considering the question of the exercise of discretion.

The plaintiff argued that it was not contemplated that MCA s 8 would apply to King's ships, as to which there never could be any opportunity for arrest. The Court, therefore, on general principles, should give the plaintiff every opportunity of maintaining his action. He was quite entitled to get the matter settled by diplomatic action if he could, and after that failed, there had been no such delay as to disentitle him to maintain an action at law. Having regard to the war and the difficulties of communication, the application for leave to proceed was made within a reasonable time.

Held: Ex parte order set aside.

Section 8 of the MCA extends to any action brought against a commanding officer of a King's ship: MCA s 9(4). The proviso to s 8 deals with this particular matter. It gives the Court a discretion in all cases, except that in the second part it provides that time shall be given with certain limitations. That second part, the compulsory part, of the proviso has no application to the present case, because a King's ship cannot be arrested. There is no maritime law under which its owner is liable.

The discretion to be exercised must be exercised if the Court is satisfied that there has not - during the two years - been a reasonable opportunity of arresting the vessel. But there never was any power of arresting the vessel. Therefore in the present case the question whether the limitation of two years is to be extended depends on the discretion of the Judge on such conditions as the Court may think fit, and the words are 'in accordance with the rules of court'. No rules of court have been made, and counsel for the defendant argued that it followed that that part of the proviso is inoperative. The Court disagreed: The James Westoll (1913) Shipping Gazette, Nov 6. In that case, an application for an extension of time under this proviso was discussed in the Court of Appeal, and it is clear that nobody ever suggested that the Court could not exercise its discretion under the first part of the proviso. There is power to exercise a discretion, subject to the consideration that the MCA confers the right of which the defendant cannot be deprived, that, unless sufficient reason is shown, the plaintiff should not be entitled to bring his action after the period of two years.

The highest the plaintiff can put it is that he was lulled into not bringing his action because of the negotiations between his Government and the British Government. These negotiations were going on beyond 1915. But assuming in the plaintiff's favour that the British Government was considering the matter, it cannot be put more favourably than that this continued up to 21 February 1918, when it was clearly brought to the plaintiff's notice that the British Government would not admit any claim, and the statement was repeated that it was always open to the plaintiff to bring his action. The application to extend time was not made until 21 October 1918 and that delay is inexcusable.  The Court's discretion to extend time ought not to have been exercised.

Separately, the Court found it unnecessary to deal with the defendant's argument that it had no power to deal with the matter ex parte.