The claim in this application was brought by the plaintiff cargo owners against the defendants' vessel, the Almerinda. Upon discharge in Hong Kong in July 1993, the cargo was found to have suffered rust damage which, according to the plaintiffs, was caused by the ingress of seawater into the vessel's cargo holds. The plaintiffs sought damages of USD 1.2 million in total, representing the alleged difference in value between sound and damaged cargo.

Three different bills of lading had been issued in relation to the carriage, causing confusion in relation to the delivery and reception of the cargo in Hong Kong, as well as to the plaintiffs' perception of the nature of their claims. However, it was not in dispute that the bill of lading referred to in the endorsement on the writ was the bill referred to as 'the Jardine bill'.

In the unamended statement of claim, the plaintiffs pleaded the Jardine bill, alleging that it had been signed for and on behalf of the defendant shipowners who thereby acknowledged shipment of the cargo on board their vessel. On this basis, the plaintiffs claimed that they were parties to a contract of carriage with the defendants, evidenced by the Jardine bill, and that they were owed duties by the defendants as bailees or carriers for reward. The defendants denied that the Jardine bill had been issued by them or on their behalf. To meet this defence, the plaintiffs sought to amend their pleadings and, in an intermediate draft of the amendment, sought to rely instead on one of the other bills of lading which was not mentioned in the writ. However, finally, the plaintiffs sought once more to bring their claim on the Jardine bill. The amendment also sought to put the plaintiffs' reliance on that bill on the basis of an implied contract upon its terms, being a contract of a nature similar to that recognised in Brandt v Liverpool Steam Navigation Co Ltd [1924] 1 KB 575.

The vessel's P&I Club (the intervener) sought leave to appeal to the Court of Final Appeal against Stone J's interlocutory ruling, upheld by the Court of Appeal, granting the plaintiffs leave to amend their statement of claim.

The defendants sought leave to appeal on the ground that the Court of Appeal's decision (The Almerinda [2001] HKCA 428 (CMI1304)) raised the following question: 'whether the effect of art 3.6 of the Hague-Visby Rules is to discharge the carrier from all liability in respect of a cause of action not previously pleaded when the application to amend so as to plead the new cause of action is made after the expiry of the one year referred to in the said rule'.

Held: Appeal dismissed.

The defendants' argument involved two propositions:

1. The claim based on a Brandt v Liverpool contract sought to be added by amendment after expiry of the art 3.6 twelve-month period is a claim based on a new and different cause of action from the causes of action relied on in the endorsement on the writ; and
2. Amending the statement of claim to add such a new cause of action is impermissible since art 3.6 has discharged the shipowner from liability in respect of all causes of action not comprehended within the suit which was brought in time.

In the Court's view, Stone J was right in holding that, fairly read, the endorsement on the writ in the present case was of sufficient width to encompass a claim for breach a contract constituted along Brandt v Liverpool lines as well as a claim based on contractual rights acquired by operation of the Bills of Lading Ordinance (Cap 440). The suit brought by the issue of the writ, in so far as it was based on contract, was for a contract on the terms of the Jardine bill. This remained true under the amendment. While the statement of claim originally alleged a misconceived mechanism for the formation of this contract, the amendment sought to put this right. However, the Court did not consider that the word 'written' in the description of the contract in question excluded the possibility of a contract on the terms of the Jardine bill of lading constituted on a Brandt v Liverpool basis. It was perfectly capable of being understood as a somewhat clumsy reference to the written terms of the contract found in the bill of lading, rather than to any particular mode by which the contract on such written terms was formed. The Court of Appeal was also right to hold that for art 3.6 purposes, the suit was brought in relation to the relevant contractual cause of action in time, eliminating further consideration of the time bar.