On 6 October 1918, the Otranto, then under requisition to the Admiralty, and the Peninsular & Oriental Steam Navigation Co (P&O) liner Kashmir collided. Both vessels were transporting US troops to Europe. The Otranto sank with a loss of over 400 lives. Prior to the collision with the Kashmir, the Otranto had collided with the French sailing vessel Croisine. The Croisine sank and its crew were taken on board the Otranto. Some of the crew of the Croisine lost their lives in the collision between the Otranto and the Kashmir. An agreement had been reached within the prescribed time whereby the rights of the relatives of the deceased French sailors were preserved without going through the formality of issuing writs, but no sums had in fact been paid in respect of the loss of life claims.

The Admiralty sued the owners of the Kashmir. On 21 May 1920, it was held that both vessels were equally to blame for the collision: Lords Commissioners of the Admiralty (HMS Otranto) v Owners of the Steamship Kashmir (1920) 3 Ll L Rep 240. This was upheld on appeal on 7 December 1920: Admiralty (HMS Otranto) v Kashmir (1920) 5 Ll L Rep 307 (CA).

In January 1921, limitation proceedings were instituted on behalf of the Kashmir. A limitation decree was made on 11 April 1921, giving leave to P&O to give bail for claims for loss of life or personal injuries. The decree limited the time for bringing in claims to three months from the date thereof, but the Court gave liberty to apply within the three months to extend the time for bringing in claims. The decree also directed advertisements in three newspapers including the New York Times: see Kashmir v Otranto (1921) 7 Ll L Rep 19.

In May 1922, the US Government instructed their London agents to institute proceedings on behalf of the representatives of the deceased soldiers. There was more delay in obtaining the particulars as to the various claimants.

On 5 December 1922, Mary Trimpe, the mother of one of the deceased, issued a writ in personam against P&O. She claimed that the defendants' negligence in and about the navigation of the Kashmir caused her son's death and claimed damages. The defendants appeared under protest. She applied under s 8 of the Maritime Conventions Act 1911 (UK) (the MCA) for leave to maintain an action, notwithstanding the time bar, on the ground that until informed of the fact by the US Government, she was unaware that she had any right of action until the summer of 1922. She argued that no injury would be done to anybody - other than the defendants; that no competitors to the fund will be prejudiced; and that there had been no laches on the part of the plaintiff or of the tentative plaintiffs.

The defendants argued that the plaintiff's ignorance of her right of suit was an insufficient reason for extending time. Besides, if the time-bar action could proceed, the defendants and the relatives of the deceased French sailors would be prejudiced because some 400 representatives of US soldiers would be competing against the limited fund. The plaintiff argued the Court could exercise its discretion in such a way to let the French have a first claim upon the fund, and that the US should only rank as claimants to the balance.

Held: Application dismissed.

If time was to be extended, it should be extended such that the French have the first claim. But the question is whether time ought to be extended. It should not.

The plaintiff's application can only be based upon the discretionary power of the proviso to MCA s 8. The obligatory part has no application, because there always was - apart from the Kashmir being within the jurisdiction and capable of being arrested - from 11 April 1921, a fund in Court.

Without the extension of time to two years by s 8 of the MCA, the plaintiff's claim would be absolutely barred at the end of twelve months, as a claim could only be brought under Lord Campbell's Act. But that extended time is not rigidly fixed, as it is qualified by the proviso under MCA s 8 in relation to the discretion which is given to the Court. Prima facie, however, it is a limit of which the defendants are entitled to have the benefit. It is a statutory limitation which is given to them that they are not to be sued in respect of these loss of life claims after a period of two years. That being the starting point, the burden is upon the plaintiff to show that there are substantial reasons why the defendants should be deprived of the right to limitation which the law gives to them: The James Westoll [1923] P 94 (CA) (The James Westoll). Although the facts of The James Westoll are different, the starting point is that the defendant has obtained the benefit of the time limitation, and it must not be interfered with unless there is good reason.

On the evidence, the plaintiff has shown no ground why the Court should allow her to maintain her action or to claim against the fund in Court. While the plaintiff did not know that the loss gave her any cause of action, she must have been aware of the loss of her son at a much earlier time. This is insufficient to deprive the defendants of a right which they had otherwise acquired, especially after so long an interval. The fact of the limitation decree does not make it any better for the plaintiff - it makes it worse - because the limitation decree, by fixing a period and giving liberty to apply for an extension, increased the plaintiff's opportunity to bring in a claim and apply for an extension of time for so doing.

Subsequently, the plaintiff's appeal was dismissed: The Kashmir [1923] P 85 (CA) (CMI2690).