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Title : The temporal scope of the Hague-Visby
Rules: conventional position reinstated
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Journal of Business Law

2023

The temporal scope of the Hague-Visby Rules: conventional position

reinstated
Ahmet Gelgeç*
Subject: Shipping . Other related subjects: Contracts.
Keywords: Bills of lading; Cargo; Charterparties; Hague-Visby Rules; Implied terms; Misdelivery;
Time limits;
Legislation:
Hague Visby Rules 1968 art.3 r.6
Case:
Fimbank Plc v KCH Shipping Co Ltd [2023] EWCA Civ 569; [2023] 5 WLUK 311 (CA (Civ Div))

*J.B.L. 503 Abstract

At first instance in FIMbank Plc v KCH Shipping Co Ltd (FIMBank (HC)) 1 was a long-standing
question, which was whether the time limit of the Hague-Visby Rules would apply to misdelivery
events occurring after discharge was addressed. This clearly provides certainty, as all the previous
authorities arose on the application of the time limit in the Rules to misdelivery events occurring on or
before discharge. However, there was also an alternative ruling for the same conclusion at first
instance. Unlike the main ruling, it seemed to muddy the waters in terms of being capable of
potentially extending the regime of the Rules beyond discharge. The Court of Appeal, 2 upholding the
trial judge’s decision, seriously doubted the alternative ruling, which had involved a shift in the
balance provided in the Hague-Visby Rules against cargo interests. The decision in the Court of
Appeal may have the effect of restoring this imbalance created by the decision at first instance, which
will be discussed in this article.

I. Introduction
The temporal scope of the Hague or the Hague-Visby Rules is conventionally confined between the
loading and discharge operations; at least this has been the position until the first instance decision in
FIMBank (HC).3 Although at first instance, Sir William Blair in FIMBank (HC) addressed a
long-standing question, which was whether the time limit of the Hague-Visby Rules would apply to
misdelivery events occurring after discharge, the trial judge, with his alternative ruling, can be said to
have tested the waters with potentially extending the regime of the Rules beyond discharge. The
Court of Appeal,4 upholding the trial judge’s decision, cast considerable doubt on the alternative
ruling. While, the judgment in the Court of Appeal cements that the time limit in art.3 r.6 of the Visby
Rules should be treated as a free-standing provision applicable outside the regime, more significantly
it seems to have brushed aside the unconventional extension of the *J.B.L. 504 temporal scope of
the Rules by the trial judge’s alternative ruling as well as its stillborn impact. For these reasons, the
decision calls for comment, and the article will, therefore, dissect the judgment in the Court of Appeal
with its potential impact.5

II. Background
Giant Ace was bareboat chartered by KCH Shipping Co Ltd (KCH) from its owners for the carriage of
coal from Indonesia to India. The coal was covered by 13 sets of bills of lading into which the
Hague-Visby Rules were incorporated. The bills were on the Congenbill form, cl.2(c) of which stated:
"The Carrier shall in no case be responsible for loss and damage to the cargo, howsoever arising
prior to loading into and after discharge from the Vessel or while the cargo is the charge of another
Carrier, nor in respect of deck cargo or live animals." 6
The cargo was discharged at the designated ports against letters of indemnity to stockpiles where it
was supposedly misdelivered against the delivery orders. The claimant, FIMBank, taking security by
holding the bills was the financer of one of the buyers. As FIMBank was left unpaid, they referred to
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arbitration two years after delivery of the cargo for the misdelivery of the cargo. The Arbitral Tribunal
had found that FIMBank’s claim was time-barred. Appealing against the award before the High Court,
FIMBank argued that first, the time limit in art.3 r.6 of the Hague-Visby Rules did not apply to events
occurring post-discharge; and second, cl.2(c) of the Congenbill form had the effect of disapplying the
time limit in art.3 r.6.
At first instance, Sir William Blair, dismissing FIMBank’s appeal, held that the time bar in art.3 r.6
applies to post-discharge misdelivery claims. The trial judge also alternatively ruled that there was an
implied term in the bills of lading incorporating the Hague-Visby Rules rendering them applicable after
discharge. As to cl.2(c), he went on to hold that it did not prevent the Rules from being applied after
discharge.7 Following the appeal by FIMBank, the Court of Appeal upheld the first instance decision.
Lord Males, delivering the substantive judgment, gathered the issues under three questions: first,
whether art.3 r.6 of the Hague-Visby Rules would apply to misdelivery claims occurring beyond
discharge; secondly, whether there was an implied term in the bills of lading rendering the Rules
applicable after discharge; and thirdly, whether cl.2(c) of the Congenbill would preclude the time bar
in art.3 r.6 from being applied beyond discharge.8 While Lord Males agreed with the trial judge’s
findings on the first and the third issues, his Lordship did not appear to be convinced by the trial
judge’s ruling on the second. *J.B.L. 505

III. Whether art.3 r.6 of the Hague-Visby Rules would apply to misdelivery claims
occurring beyond discharge
The Court of Appeal agreed with the trial judge’s finding that art.3 r.6 of the Hague-Visby Rules
applied to post-discharge misdelivery events. Lord Males, when addressing the first question, can be
said to have heavily relied on the language of the Rules in its entirety as well as the travaux
preparatoires on their interpretation9 There were, however, some additional points considered as well.
His Lordship scrutinised the language of the original Hague Rules—comparatively with the Visby
amendments to a degree, despite the fact that the issue before him was concerned with the Visby
amendments. Consistent with the conventional approach adopted in the relevant authorities, relying
on the language in arts 1 and 2, Lord Males, in defining the scope of the Rules, noted that the
temporal scope of the Rules is confined to events between the loading and discharge operations.10
Indeed, there may be some arguments for the purpose of the Rules extending before loading and
beyond discharge.11 For instance, the Court of Appeal in Volcafe Ltd v Compania Sud Americana de
Vapores SA (t/a CSAV) ,12 considered that stuffing containers somewhere in the port prior to loading
was part of the loading process for the purposes of the Rules. Devlin J in Pyrene v Scindia construed
that art.3 r.1 is "independent of time".13 Also, in an Australian case, the New South Wales Court of
Appeal held that the obligations, "custody" and "care" in art.2 were capable of extending beyond
discharge and covering events occurring until delivery.14 However, the English courts seem to have
adopted a conventional approach that the Rules are not applicable prior to loading and after
discharge.15 On the argument that the obligations "custody" and "care" in art.2 could be capable of
persisting beyond discharge, unlike the trial judge who refused to comment on this, Lord Males,
expressly ruled that these obligations do not extend before loading and after discharge.16 It is
submitted that Lord Males’ view is correct.17 The deliberate choice of the word "discharge" instead of
"delivery" in art.1, art.2 and art.3 r.2 undoubtedly defines the end-point of the period of responsibility
under the Rules. It is also probable that the responsibilities set out in art.2 and art.3 r.2 were not
inserted randomly, but rather in a chronological fashion, as they begin with "loading" and end with
"discharge"; "[t]he loading, handling, stowage, carriage, custody, care and discharge of such goods"
and "[l]oad, handle, stow, *J.B.L. 506 carry, keep, care for and discharge the goods carried". Indeed,
the parties, by all means, are entitled to extend the period of responsibility, but as is, in the absence
of an express clause, the regime should be deemed as confined with rigid limits between the loading
and discharge operations after this ruling. Following that, as a logical consequence, Lord Males went
on to hold that the Rules only apply to misdelivery claims occurring during or before discharge, and
do not apply to post-discharge misdelivery claims, regardless of whether it is a breach of the contract
evidenced in the bill of lading.18
Although the issue before the Court of Appeal arose on the Visby amendments, Lord Males, on the
proper construction of art.3 r.6 of the Hague Rules, which is no doubt narrower in its scope than its
corresponding version in the Visby amendments, went on to decide that the provision is "not a cuckoo
in the Hague Rules nest" and cannot extend beyond the temporal scope of the Rules defined in arts 1
and 2.19 His Lordship, reciting the famous quote of Lord Wilberforce "general and all embracing" in
The New York Star ,20 construed that the words "in any event" and "all liability" are very wide in their
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scope. In fact, Lord Males noted that the words "in any event" in art.3 r.6 have substantially the same
meaning which is "in every case" as the identical words in art.4 r.5.21 Even so, relying on the orthodox
lines of the temporal scope of the Rules drawn by the previous authorities, such as The Captain
Gregos ,22 The Arawa 23 and Pyrene v Scindia ,24 his Lordship held that effect given to these words in
the provision must be confined within the limits of the period of responsibility to which the Hague
Rules apply. In deciding so, he particularly relied on Lord Justice Longmore’s ruling in The MSC
Amsterdam 25 that the words "in any event" in art.4 r.5 concerning package limitation failed to apply to
a misdelivery event occurring after discharge.26 Applying the same logic, Lord Males in the present
case, found that art.3 r.6 of the Hague Rules is not applicable where the Rules cease to apply.27 Put
simply, the inference, therefore, is that when the period of responsibility stops applying, the time bar
provision stops as well.
This seems plausible, particularly when considering that there is no previous authority ruling that the
time bar provision would be applicable post-discharge period, as the available authorities were only
concerned with pre-discharge misdelivery events or events occurring simultaneously with discharge.28
However, it is worth noting that in The MSC Amsterdam , there was a clause expressly purporting that
the period of responsibility of the Hague Rules was confined between the loading and discharge
operations. With such a hoist, it is indeed arguable that the words "in any event" seem to be
inapplicable post-discharge *J.B.L. 507 period, regardless of however wide they are in their scope.
Perhaps in that respect, The MSC Amsterdam could be distinguished from the present case. Also,
some support for the time limit of the Hague Rules applying to post-discharge misdelivery claims
could be derived from the Privy Council Decision, The New York Star ,29 where the bills of lading had
a clause worded substantially the same as the time limit of the Hague Rules, it was held that the
clause applied to misdelivery taken place after discharge.30 Nevertheless, if this ruling in FIMBank
(CA) is correct, it seems that the scope of the time limit of the Hague Rules is synchronised with the
period of responsibility of the Rules. Having said that, this part of the Court of Appeal decision is only
obiter dicta, as the case was not concerned with art.3 r.6 of the Hague Rules, but the Visby
amendments. Therefore, perhaps with the lack of a clause in the present case purporting something
similar to the one in The MSC Amsterdam , it might still be argued—not without some hesitation—that
effect could still be given to these words to apply art.3 r.6 of the Hague Rules post-discharge, as the
words "in any event" are equivalent to "in every case".
So far as art.3 r.6 of the Hague-Visby Rules is concerned, the Court of Appeal held that the provision
was intended to apply claims for misdelivery occurring post-discharge.31 In holding that, since there
was no previously reported case on the Hague-Visby Rules in the present context, Lord Males was
arguably correct to rely on the language of the provision primarily. He construed that the change in
the wording with the Visby amendments, from "all liability in respect of loss or damage" to "all liability
whatsoever in respect of the goods" was made to render the scope of the new provision wider than
the original one.32 He went on to say that the insertion of "whatsoever" was aimed at expanding the
scope of the new provision to a level that it applies to cases that the original provision did not.33
It is true that the word "whatsoever" linguistically appears to remove any limits, or perhaps rather
widen the already wide meaning of "all liability … in respect of the goods" to another level. The
question immediately arises at this stage is whether such a change in language in the provision would
suffice to render it applicable outside the temporal application of the Rules. To answer this question,
Lord Males was arguably correct to refer to the travaux preparatoires to ascertain the real intention of
the drafters with the amendment. Citing the quotes of Anthony Diamond QC from his paper on the
Visby amendments,34 Lord Males, relying on art.32 of the Vienna Convention on the Law of Treaties,
noted that the bull’s-eye with the amendment was
"to give the text a bearing as wide as possible, so as to embody within the scope of application of the
one year period, even the claims grounded on the *J.B.L. 508 delivery of the goods to a person not
entitled to them, i.e. even in the case of what we call a wrong delivery." 35
Clearly, the intention of the drafters was not to limit the scope of the provision. Otherwise, it would not
have been drafted "in the broadest possible terms".36 Therefore, the inference is that the real intention
was to render art.3 r.6 applicable to post-discharge misdelivery claims. On the words "all liability
whatsoever in respect of the goods", Bingham LJ in The Captain Gregos , noting "I do not see how
any draftsman could use more emphatic language",37 held that the time bar of the Hague-Visby Rules
applied to theft by the carrier which was regarded "the most obvious imaginable breaches".38
If the inference is wrong, this would entirely emasculate art.3 r.6, and render the change in the
wording redundant. Accordingly, the drafters would have failed in their object, which was to eliminate
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the narrow construction of the provision. It must also be remembered that the purpose of art.3 r.6 is
"to achieve finality and … enable the ship owner to clear his books".39 On balance, the Court of
Appeal was correct to conclude that the plain purpose of the change in the wording of art.3 r.6 was to
render it applicable to post-discharge misdelivery claims.
The Court of Appeal was also arguably correct in rejecting FIMBank’s submission that there was an
international consensus that the time bar provision of the Visby amendments would not apply to
misdelivery events occurring after discharge, on the grounds that first, the international cases were
concerned with the Hague Rules time limit which seems to be narrower scope-wise; and secondly,
there appears to be no international consensus on the matter, as the only cases ruling that the Visby
time limit does not apply post-discharge misdelivery claims are from a single jurisdiction (Hong Kong).
40
The decision, therefore, leaves no room for doubt that the Visby time limit, when compared to the
Hague Rules version, seems to have the effect of a free-standing provision not confined to the
temporal scope of the Rules, which arguably satisfies the desire that the amendment was intended to
achieve.

IV. Whether there was an implied term in the bills of lading rendering the Rules
applicable after discharge
The trial judge, alternative to the first reasoning, relied on the proposition that there is an implied term
incorporating the Rules into the contract.41 Lord Males was not swayed by this argument, and
seriously doubted the trial judge’s decision noting that there were no factual findings that such an
implication could be founded on. From the outset, it is safe to say at the very least that it is not
immediately apparent how the implication mechanism could be put to use on the facts.42 The *J.B.L.
509 trial judge did not explain how such an implied term would spring up in the contract either.43
As Lord Males noted, this proposition was first recognised by Lord Justice Longmore in The MSC
Amsterdam . Though, it must be noted, in The MSC Amsterdam the proposition was not put to use,
as there was an express term purporting that the regime of the Rules was confined between the
loading and discharge operations. In the present case, the Court of Appeal showed some reluctance
to reach a conclusive outcome on the matter, as it was already held that the Visby time limit was
applicable on its own terms in the case before them. Indeed, in FIMBank (CA) , there was not an
express clause limiting the extension of the regime of the Rules in the bills of lading. Accordingly, The
MSC Amsterdam could be distinguished from the present case in that respect. Despite that, it still
seems that such a proposition is not readily explicable as it stands.44 If the decision in the Court of
Appeal is correct, it is surely to be welcomed by cargo owners, as potential complications that might
be developed against them by the first instance decision appear to be fended off.
The limits of the implied term are not fully clear, since the trial judge did not explain how the
implication mechanism arose in the present case. Indeed, the presence of an express term purporting
the exclusion of the regime of the Rules beyond discharge would have a rebuttal impact against such
an implication. In the absence of such a clause or evidence indicating otherwise, based on the trial
judge’s ruling, such a term would readily be implied into the bill of lading, as it stands.45 The practical
consequence of such a proposition would not have been limited to the mere application of art.3 r.6,
since the implied term would have incorporated the Rules altogether which would practically have the
effect of extending the regime of the Rules beyond discharge. Where this is the case, immunities or
limitations, like the package limitation provision (art.4 r.5), would have been put to use by carriers for
claims occurring post-discharge period. It is trite that art.4 r.5 is considered so wide in its scope that it
is capable of covering very serious breaches of the carrier, and perhaps even the ones occurring after
discharge.46 Aikens J at first instance in The MSC Amsterdam found that misdelivery could be
deemed a breach of the obligations "keep and care for" in art.3 r.2, if the Rules persisted after
discharge.47 In support of this, as noted by Lord Males, the words "in any event" in art.4 r.5 are also
deemed equivalent to "in every case".48 Where that is the case, based on the alternative reasoning of
the trial judge, carriers would have well been able to trigger the package limitation provision to limit
their liability financially for post-discharge breaches, including claims for misdelivery. However,
following the strong doubts of Lord Males on the alternative reasoning, on balance, *J.B.L. 510 the
door left ajar for carriers’ favour by the first instance decision seems to have been shut for cargo
owners’ favour by the Court of Appeal.49

V. Whether cl.2(c) of the Congenbill would preclude the time bar in art.3 r.6 from being
applied beyond discharge
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Clause 2(c) of the Congenbill form reads:

"The Carrier shall in no case be responsible for loss and damage to the cargo, howsoever arising
prior to loading into and after discharge from the Vessel of [which must mean "or"] while the cargo is
the charge of another Carrier, nor in respect of deck cargo or live animals."
This is a clause drafted with the intention to exempt the carrier from liability for misdelivery. However,
in unqualified form, it can only be said to materially restate the period of responsibility of the Rules,
and not have the effect of disapplying the Rules beyond discharge. Unless expressly worded, such
clauses are deemed by the English courts as insufficient to relieve the carrier of liability for
misdelivery, and there are numerous examples of similar clauses in the case law that failed to
achieve the intended result.50 The trial judge, following the orthodox approach adopted by the English
courts, held that cl.2(c) was not capable of excluding liability for misdelivery after discharge, and
accordingly not concerned with the time bar. Therefore it did not disapply art.3 r.6.
Similarly, but somewhat with a slightly different approach, Lord Males upheld the trial judge’s ruling.
As the wording suggests, cl.2(c) is said to be concerned with the carrier’s exemption from
post-discharge liabilities—regardless of whether it has such an effect or not—meaning that it is not
directly related to the time bar. And, in the present case, the Court of Appeal was not asked to rule on
whether it would relieve the carrier of liability for misdelivery. Accordingly, Lord Males noted that he
must "assume"51 that the carrier remains liable for misdelivery post-discharge, otherwise, the issue
would be irrelevant.52 Where this is the case, it is not immediately apparent why such a clause should
have the effect of excluding the time bar concerning a liability that it intended to exclude in the first
place. Put simply, as the clause was just another failed attempt to exclude liability for post-discharge
misdelivery claims, it seems only plausible to suggest that it also fails to have a say on a matter
outside its scope, which is the application of the time bar for such a claim.

VI. Conclusion
The ruling of the Court of Appeal in FIMBank (CA) has a number of conclusions to draw. First and
foremost, it recapitulates the orthodox position of the temporal *J.B.L. 511 scope of the Rules
adopted by the English courts bracketed between loading and discharge. Secondly, the time limit in
art.3 r.6 of the Hague-Visby Rules has the effect of a free-standing provision not confined to the
regime defined between loading and discharge, as it was found applicable to misdelivery events
occurring after discharge. Clearly, the decision provides certainty by ensuring that effect has been
given to the amended version, as it was intended to achieve by the drafters. This certainty seems to
favour carriers, as the provision provides finality and enables them to clear their books. Thirdly, unlike
the trial judge who refused to comment on the point, the scope of the time limit of the original Hague
Rules also seems to have been defined by the Court of Appeal. Unlike its newer version, the scope of
the original rule seems to have been synchronised with the fine lines of the regime, meaning that it
does not apply to any misdelivery claim beyond discharge. This might have an impact on negotiations
between carriers and cargo interests concerning which of these Rules (the Hague or the
Hague-Visby) are to be incorporated into their contract. Though, it must be highlighted that Lord
Males’ remarks on the point are technically obiter dicta, as the case revolved around the Visby
amendments. Fourthly, Lord Males expressed serious doubts about the trial judge’s alternative ruling
as to the implied term. This, it is suggested, is very much to be welcomed by cargo owners. The trial
judge did not explain how such a term would be implied. Accordingly, the limits of it were not entirely
clear either. With this in mind, perhaps carriers could have readily argued its existence into the bill of
lading which would practically have had the effect of unconventionally extending the regime of the
Rules altogether beyond discharge. This would have proved difficult for cargo owners, as defences in
the Rules would have been available to carriers for post-discharge misdelivery claims. For these
reasons, the balance provided by the Rules between carriers and cargo owners had involved a shift in
favour of carriers by the first instance decision. However, it appears to have been restored, since the
decision in the Court of Appeal can be said to have the practical effect of leaving the conventional
regime of the Rules intact. Nevertheless, it must be noted that the point was technically left open, as
Lord Males did not rule on the matter conclusively.
On balance, following this decision, it remains to be seen, if the implied term argument is to be
ventured by carriers before the courts in future. However, in the absence of a clause expressly
purporting the extension of the temporal scope of the Rules beyond discharge, it seems unlikely that it
would extend beyond discharge by the implication mechanism. Finally, the ruling concerning cl.2(c)
can be deemed as a reaffirmation of the proposition that an expressly drafted clause is required to
 Page6

exclude liability for misdelivery or disapply the Rules beyond discharge.

Ahmet Gelgeç
J.B.L. 2023, 6, 503-511

*. Assistant Professor in Maritime and Commercial law at Istanbul Medeniyet University.

1. FIMbank Plc v KCH Shipping Co Ltd (FIMBank (HC)) [2022] EWHC 2400 (Comm).
2. FIMbank Plc v KCH Shipping Co Ltd (The Giant Ace) (FIMBank (CA)) [2023] EWCA Civ 569.
3. FIMBank (HC) [2022] EWHC 2400 (Comm).
4. FIMBank (CA) [2023] EWCA Civ 569.
5. For detailed analysis and discussion on the first instance decision see generally, Ahmet Gelgeç, "The Temporal Scope
of the Hague-Visby Rules: Not Anymore?" (2022) 28(4) J.I.M.L. 214 and F.M.B. Reynolds, "The Hague and The
Hague-Visby Rules and Wrong Delivery" (2023) L.M.C.L.Q. 1, 2.
6. FIMBank (CA) [2023] EWCA Civ 569 at [14].
7. FIMBank (HC) [2022] EWHC 2400 (Comm) at [93]–[95].
8. FIMBank (CA) [2023] EWCA Civ 569 at [15].
9. FIMBank (CA) [2023] EWCA Civ 569 at [20]–[51].
10. FIMBank (CA) [2023] EWCA Civ 569 at [43]–[44].
11. For detailed discussion on these see generally, Gelgeç, "The temporal scope of the Hague-Visby Rules: Not anymore?"
(2022) 28(4) J.I.M.L. 214, 216–217.
12. Volcafe Ltd v Compania Sud Americana de Vapores SA (t/a CSAV) [2016] EWCA Civ 1103; [2017] Q.B. 915 at
[108]–[110], reversed on other grounds in [2018] UKSC 61; [2019] A.C. 358.
13. Pyrene Co Ltd v Scindia Steam Navigation Co Ltd (Pyrene v Scindia) [1954] 2 Q.B. 402; [1954] 2 W.L.R. 1005 QBD.
14. China Ocean Shipping Co Ltd v PS Chellaram and Co Ltd (The Zhi Jiang Kou) [1990] 28 NSWLR 354; [1991] 1 Lloyd’s
Rep. 493 at 516.
15. Cia Portorafti Commerciale SA v Ultramar Panama Inc (The Captain Gregos) (No.1) (The Captain Gregos) [1990] 1
Lloyd’s Rep. 310 CA (Civ Div); Trafigura Beheer BV v Mediterranean Shipping Co SA (The MSC Amsterdam) [2007]
EWCA Civ 794; [2007] 2 Lloyd’s Rep. 622.
16. FIMBank (CA) [2023] EWCA Civ 569 at [45]. For similar views, see R. Aikens, R. Lord and M.D. Bools, Bills of lading,
3rd edn (London: Informa, 2020), para.11-98; F. Rose and F.M.B. Reynolds, Carver on Bills of Lading, 5th edn (Sweet
& Maxwell, 2022), para.9-134. See also Paul Todd, "Liability for misdelivery: Trafigura v MSC" (2007) 13(5) J.I.M.L.
356, 362.
17. This was also the view advocated in the article on the trial judge’s decision. See Gelgeç, "The Temporal scope of the
Hague-Visby Rules: Not anymore?" (2022) 28(4) J.I.M.L. 214, 217–218.
18. FIMBank (CA) [2023] EWCA Civ 569 at [48].
19. FIMBank (CA) [2023] EWCA Civ 569 at [49].
20. Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty (The New York Star) [1981] 1 W.L.R. 138;
[1980] 2 Lloyd’s Rep. 317 PC (Aus).
21. FIMBank (CA) [2023] EWCA Civ 569 at [50].
22. The Captain Gregos [1990] 1 Lloyd’s Rep. 310; [1978] C.L.Y. 2696 QBD.
23. Producers Meats Ltd v Shaw Savill & Albion Co Ltd (The Arawa) [1977] 2 Lloyd’s Rep. 416.
24. Pyrene v Scindia [1954] 2 Q.B. 402.
25. The MSC Amsterdam [2007] 2 Lloyd’s Rep. 622 at [25].
26. FIMBank (CA) [2023] EWCA Civ 569 at [63].
27. See also, Rose and Reynolds, Carver on Bills of Lading, 5th edn (2022), paras 9-188, 9-191 and 9-192. For contrary
see also, Aikens, Lord and Bools, Bills of Lading, 3rd edn (2020), para.11-199.
28. See, The Captain Gregos [1990] 1 Lloyd’s Rep. 310 and Deep Sea Maritime Ltd v Monjasa A/S (The Alhani) [2018]
EWHC 1495 (Comm); [2018] 2 Lloyd’s Rep. 563.
29. The New York Star [1980] 2 Lloyd’s Rep. 317.
30. The New York Star [1980] 2 Lloyd’s Rep. 317 at 322.
31. For a similar view, Aikens, Lord and Bools, Bills of Lading, 3rd edn (2020), paras 11-98 and 11-200. For a somewhat
similar but hesitant view see also, Rose and Reynolds, Carver on Bills of Lading, 5th edn (2022), paras 9-191–9-192
 Page7

and Paul Todd, Principles of the Carriage of Goods by Sea (Routledge, 2016), p.357. For another tentative remark see,
Sir Bernard Eder et al, Scrutton on Charterparties and Bills of Lading, 24th edn (London: Sweet & Maxwell, 2019),
para.14-060, fn.152. But see, Malcolm Clarke, "Misdelivery and time bars" [1990] L.M.C.L.Q. 314.
32. Old and new versions of art.3 r.6.
33. FIMBank (CA) [2023] EWCA Civ 569 at [70].
34. Anthony Diamond QC, "The Haguve-Visby Rules" [1978] L.M.C.L.Q. 225.
35. FIMBank (CA) [2023] EWCA Civ 569 at [74]–[75].
36. FIMBank (CA) [2023] EWCA Civ 569 at [75].
37. The Captain Gregos [1990] 1 Lloyd’s Rep. 310 at 315.
38. The Captain Gregos [1990] 1 Lloyd’s Rep. 310 at 315.
39. The Captain Gregos [1990] 1 Lloyd’s Rep. 310 at 315.
40. FIMBank (CA) [2023] EWCA Civ 569 at [78]–[79].
41. It was named "the Carver implied term" both at first instance and Court of Appeal, as it was coined by the editors of
Carver on Bills of Lading. See respectively, FIMBank (HC) [2022] EWHC 2400 (Comm) at [14] and FIMBank (CA)
[2023] EWCA Civ 569 at [15].
42. Neither the editors of Carver on Bills of Lading express how the implication mechanism would arise in the present
context. See Rose and Reynolds, Carver on Bills of Lading, 5th edn (2022), para.9-135.
43. For criticism on this part of the judgment, see Gelgeç, "The temporal scope of the Hague-Visby Rules: Not anymore?"
(2022) 28(4) J.I.M.L. 214, 220–221.
44. Such an implication may be explained on alternative grounds. See Gelgeç, "The temporal scope of the Hague-Visby
Rules: Not anymore?" (2022) 28(4) J.I.M.L. 214, 220–221.
45. See generally, Gelgeç, "The temporal scope of the Hague-Visby Rules: Not anymore?" (2022) 28(4) J.I.M.L. 214,
221–222.
46. See, Aikens J at first instance in The MSC Amsterdam [2007] 2 Lloyd’s Rep. 622 at [101]–[108]. See also, Todd,
"Liability for misdelivery: Trafigura v MSC" (2007) 13(5) J.I.M.L. 356, 362 and Paul Todd, "Limiting liability for
misdelivery" [2008] L.M.C.L.Q. 214, 224–225.
47. The MSC Amsterdam [2007] 2 Lloyd’s Rep. 622 at [106].
48. FIMBank (CA) [2023] EWCA Civ 569 at [50].
49. Though not entirely, as the Court of Appeal did not reach a final decision on the matter, as the issue was left
unanswered conclusively. For discussion on the Rules being extended on the attornment grounds see generally,
Gelgeç, "The temporal scope of the Hague-Visby Rules: Not anymore?" (2022) 28(4) J.I.M.L. 214, 223–226.
50. See Sze Hai Tong Bank v Rambler Cycle Co [1959] A.C. 576; [1959] 3 W.L.R. 214 PC (Singapore); Motis Exports Ltd v
Dampskibsselskabet AF 1912, A/S (No.1) [2000] 1 Lloyd’s Rep. 211; [2000] C.L.C. 515 CA (Civ Div); Kuwait Petroleum
Corp v I&D Oil Carriers Ltd (The Houda) [1994] 2 Lloyd’s Rep. 541; [1994] C.L.C. 1037 CA (Civ Div).
51. In his own words. See FIMBank (CA) [2023] EWCA Civ 569 at [90].
52. FIMBank (CA) [2023] EWCA Civ 569.

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