POHANG IRON and STEEL CO. LTD. v. NORBULK CARGO SERVICES LTD. and Another

POHANG IRON and STEEL CO. LTD. v. NORBULK CARGO SERVICES LTD. and Another

The court held that s.212(2) German Civil Code is a procedural provision which does not apply to preclusive limitation periods created by Article III rule 6 of the Hague Rules (and Art.612 GCoC); the Hamburg arbitration was incompetent and therefore did not constitute bringing suit within the one‑year Hague Rules period; accordingly the claim was time‑barred and the action against Norbulk was dismissed.

Citation
POHANG IRON and STEEL CO. LTD. v. NORBULK CARGO SERVICES LTD. and Another
Parties
Plaintiff (defendant in the Preliminary Issue): Pohang Iron & Steel Company Limited; 1st Defendant (plaintiff in the Preliminary Issue): Norbulk Cargo Services Limited; 2nd Defendant: Cho Yang Shipping Company Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
13 May 1996
Case Number
HCCL103/1990
Procedural Posture
Commercial List Maritime/cargo Damage Arising Under Bills of Lading and Charterparty / Trial of a Preliminary Issue (time‑bar/limitation)
Outcome
Decision for the Plaintiff in the issue (Norbulk Cargo Services Limited); the claim against Norbulk was dismissed as time‑barred under Article III rule 6 of the Hague Rules.
Legal Topics
Hague Rules Article III Rule 6, Limitation and Preclusion (verjã¤hrungsfrist Vs Ausschlussfrist), Validity and Jurisdiction of Arbitration Clause, Lex Fori (procedural Law), Effect of German Civil Code S.212(2)
Source Language
EN
Maritime Law Arbitration Conflict of Laws Contract Law Procedural Law International Conventions Hague Rules Article III Rule 6 Limitation and Preclusion (verjã¤hrungsfrist Vs Ausschlussfrist) +3 more

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Parties

Pohang Iron & Steel Company Limited

Plaintiff (defendant in the Preliminary Issue)

Norbulk Cargo Services Limited

1st Defendant (plaintiff in the Preliminary Issue)

Cho Yang Shipping Company Limited

2nd Defendant

Procedural Posture

Commercial List Maritime/cargo Damage Arising Under Bills of Lading and Charterparty / Trial of a Preliminary Issue (time‑bar/limitation)

Legal Issues

  1. 1 Whether the claim is time barred under Article III rule 6 of the Hague Rules
  2. 2 Whether s.212(2) German Civil Code interrupts or revives a preclusive period (Ausschlussfrist)
  3. 3 Whether commencement of arbitration in an incompetent tribunal constitutes bringing suit under the Hague Rules

Ratio Decidendi

The court held that s.212(2) German Civil Code is a procedural provision which does not apply to preclusive limitation periods created by Article III rule 6 of the Hague Rules (and Art.612 GCoC); the Hamburg arbitration was incompetent and therefore did not constitute bringing suit within the one‑year Hague Rules period; accordingly the claim was time‑barred and the action against Norbulk was dismissed.

Court Disposition

Decision for the Plaintiff in the issue (Norbulk Cargo Services Limited); the claim against Norbulk was dismissed as time‑barred under Article III rule 6 of the Hague Rules.

Orders

  • Action dismissed as against Norbulk Cargo Services Limited (1st Defendant in the action)