RM Supplies (the plaintiff) agreed to sell a quantity of scrap metal to Ferro Commodities (Espana) SA. That metal was to be transhipped from Inverkeithing in Scotland to Santander in Spain. Ems-Trans Schiffahrisges Mbh (the defendant) was the owner of the Isartal upon which the metal was to be transhipped. The carriage contract was evidenced by a bill of lading dated 15 January 1999. The bill was signed by the master of the Isartal, allegedly on behalf of the defendant, acknowledging the shipment on board the vessel. The plaintiff sought payment from the defendant of the sum of GBP 162,779.43 with interest from 22 January 1999 in respect of breach of contract.

On 10 January 2000 the Isartal was arrested ad fundandam jurisdictionem and on the dependence of the action. The master found the copy summons and transmitted it to the defendant. The summons was accepted by the defendant on 13 March 2000.

The defendant submitted the following arguments. First, the Hague-Visby Rules were applicable. Second, the date from which any prescriptive period was to run was 22 January 1999. Third, but for the contention regarding the one year period specified in art 3.6 of the Hague-Visby Rules constituting a time bar, the rights available to the plaintiff in this action had in fact prescribed. Fourth, neither diligence ad fundandam jurisdictionem nor on the dependence of the action, constituted 'bringing of suit' for the purpose of art 3.6 of the Rules. The defendant suggested that the proper interpretation of art 3 of the Hague-Visby Rules was an interest in knowing how the suit was brought for the purposes of the court in which it was brought. Further, the defendant suggested that the Hague-Visby Rules contained no independent concept of 'suit brought'. The defendant claimed that the word 'brought' meant the same as 'commenced'.

The plaintiff accepted that the Hague-Visby Rules applied to this contract. The plaintiff further accepted that service of the summons had been made outside the one-year period. However, the plaintiff claimed that it could rely on the arrestment ad fundandam jurisdictionem and on the dependence which was effected on 10 January 2000 as having commenced the action in terms of 'bringing the suit', the phrase used in the Rules.

Held: The plaintiff's action is dismissed.

Scottish law provides that an action is commenced, that is to say, 'started' or even 'brought', when a summons is served on a defendant. 'Suit', the word used in the Hague-Visby Rules, is synonymous with 'action'. The process of arrestment serves quite a different purpose and has different legal consequences. Arrestment ad fundandam jurisdictionem is a preliminary process which, when properly effected, can allow a plaintiff to serve a summons and make any service of summons effective to force a defendant to answer its claims in the Scottish courts. Arrestment on the dependence, while it may be effected at the same time, merely permits a plaintiff to create a nexus over certain funds belonging to a defendant in the event that an action is commenced, succeeds and a decree is eventually pronounced in the plaintiff's favour. Neither of these processes has any effect in getting legal proceedings by way of civil suit underway.

Therefore, in Scotland, the clear and proper interpretation of the Hague-Visby Rules is that an action must be commenced within one year of the relevant date. That is to say, to comply with the Rules a summons must be served within that period. That being the test, it is not disputed that the plaintiff has failed it.