On 15 September 1916, the plaintiffs' steamship Port Hacking and the steamship Clermiston collided. On 19 September 1916, the plaintiffs sued the owners of the Clermiston, who denied liability and pleaded that the collision was caused solely by the negligent navigation of the Port Hacking or, alternatively, by the negligent navigation of the defendants' steamship Virginia (now known as PLM 8), or in the further alternative, by the negligent navigation of both these vessels.

On 30 January 1918, the owners of the Clermiston sued the owners of the Virginia. On 5 March 1920, the Virginia was held alone to blame for the collision between the Port Hacking and the Clermiston. Accordingly, in the plaintiffs' action against the Clermiston, the claim and counterclaim were dismissed, and in the action by the Clermiston against the Virginia, judgment was entered. On 9 March 1920, the plaintiffs issued the writ against the defendants. The defendants applied to set aside that writ because of the two-year limitation period under s 8 of the Maritime Conventions Act 1911 (UK) (the MCA). The plaintiffs asked the Court to extend time under the proviso to s 8.

The defendants alleged that the PLM 8, which at the time of the collision had been owned by the Gaston Williams & Wigmore Steamship Corp, had been sold in April 1917, to the Société Nationale d'Affrétements; that it had entered UK ports some 15 times before the period of two years elapsed; and that it would be doing an injustice to the persons really interested - namely, the underwriters - if the plaintiffs' claim were allowed to proceed. The defendants argued as follows: the defence and counterclaim of the owners of the Clermiston in the action at the instance of the Port Hacking was delivered in December 1916. As that defence raised contentions against the Virginia, the plaintiffs had nearly two years in which either to bring the owners of the Virginia into the action already commenced or to institute fresh proceedings. The defendants also argued that difficulties would arise because they were insured in a club and no provision has been made for this claim in the accounts of the club, and that it might be very difficult to get the club to pay at this late stage if the Port Hacking should obtain judgment.

The plaintiffs' case was that it was for the Clermiston, who blamed the Virginia, to get that vessel before the Court, and that the Court, having found the Virginia solely to blame, should exercise its discretion under MCA s 8 and allow the action to proceed. The plaintiffs' evidence referred to the following grounds:

By reason of the delay in getting the pleadings closed in the action by the owners of the Clermiston against the owners of the Virginia, to the delay in obtaining the evidence of witnesses who had been dispersed, and to the unusual length of time which elapsed (as in many other Admiralty actions arising out of collisions during the war) before the case could be conveniently fixed for trial, the plaintiffs in the present action were unable to institute proceedings against the defendants, the owners of the Virginia, within the two years of the date of the collision.

Held: Application allowed.

The second part of the proviso to MCA s 8, which is the obligatory part, is not applicable because on the evidence, the Virginia had entered the jurisdiction many times and could have been arrested if a writ in rem had been issued. The issue is whether the Court should exercise its discretion under the first part of the proviso to s 8. The MCA gives the defendants a right, and it is a right that can only be taken away on sufficient grounds.

There was no ground to deprive the defendants of their time bar. As to the pleadings, the important pleading was the defence of the Clermiston delivered on 8 December 1916, which alleged that the collision was caused by the fault of the Virginia. As for the witnesses, there is no reason why information could not have been obtained from the witnesses at a much earlier date. The delay in the trial was unfortunate for the present plaintiffs. The plaintiffs would have issued their writ against the Virginia within time had the dispute been tried within two years. But that was no ground to deprive the defendants of their time bar. Although it is unjust to let the Virginia off because it was blameworthy, it will be an equal injustice if the defendants are deprived of their time bar.

As to the defendants' argument concerning their club, this is a matter to be taken into consideration. Nevertheless, this is a doubtful and unimpressive argument.

The Act says that 'no action shall be maintainable'. This does not mean that no writ may be issued. Therefore the proper order is not that the writ should be set aside, but that the action is not maintainable, which has the same result as if the writ had been set aside.