The plaintiff sold a cargo of garments to the first defendant and shipped the cargo from Hong Kong to Barcelona. The second defendant was a freight forwarder and the third defendant was the contractual carrier of the cargo under three bills of lading. The first defendant neither paid for, nor took delivery of, the cargo. The suit against the first defendant was discontinued. As the cargo was not delivered, the plaintiff requested the second and third defendants to return the cargo. However, when the cargo arrived back in Hong Kong, it turned out to be wholly different goods from those initially shipped to Barcelona by the plaintiff.

The plaintiff sued the second and third defendants for the landed value of the cargo at the time the cargo ought to have arrived back in Hong Kong. The second and third defendants raised a number of defences under the Hague-Visby Rules, in particular, arts 4.2.i and 4.2.q. However, these defences were subsequently withdrawn. The second and third defendants relied primarily on the time-bar defence under art 3.6 of the Hague-Visby Rules as well as cl 18 of the bills of lading, which provided that the contracting carrier shall be discharged from all liability unless suit is brought within 9 months after delivery of the cargo or the date upon which the cargo should have been delivered. In this regard, the second and third defendants alleged that the date of delivery was 30 May 2003 and since the writ was issued on 20 June 2005, the plaintiff's claim was time-barred.

Held: The plaintiff's claim was not time-barred. The second and third defendants were liable to the plaintiff.

The Court held that the burden was on the second and third defendants to identify and prove the events which were said to constitute a delivery of the cargo as well as the basis underlying the alleged date upon which the cargo should have been delivered. The second and third defendants failed to plead any facts or provide any evidence at trial in relation to the above issues. Hence, the time-bar defence was not made out. In any event, the Court also found that as at 30 May 2003, the cargo was clearly still in Barcelona and thus the second and third defendants had no right to cause or permit delivery to be made to anyone without the production of the original bills of lading. Hence, the cargo was not 'delivered' within the meaning of cl 18 or art 3.6 of the Hague-Visby Rules.

Without the time-bar defence, the Court found that the second and third defendants were bailees of the plaintiff's cargo which was lost and not returned to the plaintiff. The second and third defendants were therefore liable to the plaintiff.