Carleton v. O'Regan [1996] IEHC 54; [1997] 1 ILRM 370 (14th October, 1996)

JUDGMENT delivered by Mr. Justice Barr on the 14th day of October, 1996 1. This matter comes before the court on Notice of Motion for trial of a preliminary issue pursuant to the order of the Master made on the 29th day of April, 1994. It raises a net question for determination i.e. whether, in the light of the circumstances of the case, the court should exercise its discretion to extend time for commencement of the action beyond the period specified in Section (2) of the Civil Liability Act, 1961 pursuant to the power granted to it in that regard in Section 46 (3) of that Act. THE FACTS 2. The facts are not in dispute and are as follows:- 3. The Plaintiff was at all material times the owner and skipper of the trawler MFV "Una Alan" and his home port was Castletownbere, Co. Cork. The defendant at all material times was the owner and skipper of the trawler MFV "Janora" which also fished out of Castletownbere. On 24th August, 1991 the "Una Alan" while tied up to a quay at Castletownbere was struck by the "Janora" as the latter was approaching the quay. On the following day on being approached by the plaintiff, the defendant admitted colliding with the "Una Alan". He did not deny responsibility for the occurrence but stated that he did not think that he had done any damage at the time. 4. Both parties informed their respective insurers about the accident. It appears that the alleged damage to the plaintiff's vessel did not affect her seaworthiness and for that reason it was decided to defer repairs until the next annual overhaul of the trawler. In fact repairs commenced on 27th October, 1992 in conjunction with annual maintenance. The defendant's P&I Club, the Shipowners Mutual Protection and Indemnity Association (SOP) were informed accordingly and responded by letter to the plaintiff's P&I Club, British Marine Mutual Insurance Association (BMMI) by letter dated 5th November, 1992 as follows:- “ Janora - C/W Una Alan 24/8/91 Thank you for your fax of 28th October advising us that repairs were currently being undertaken on the Una Alan. We, accordingly, instructed a surveyor to attend the repairs and report on the work being undertaken. We have now had the chance to review our surveyor's initial report and it is clear that the repairs that are being carried out are totally unreasonable in relation to the damage involved and the age of the vessel. In the circumstances we will have no alternative but to dispute the quantum if your Member attempts to recover the full cost of the repairs currently being carried out.” 5. I am satisfied that this letter creates a clear impression that the defendant's insurers were not disputing liability for the collision but that there was a real dispute as to the amount of the claim which SOP regarded as totally unreasonable having regard to the actual damage done and the age of the vessel. 6. On 20th August, 1993, i.e. three days before the expiration of the statutory time limit for commencing proceedings, BMMI sent a fax to SOP in the following terms:- “ We refer to previous correspondence in connection with the above terminating with your letter of 5th November, 1992. We would advise that permanent repairs to the "Una Alan" have been completed and payment was made to our Member in March 1993. However, we are still awaiting full details of his Loss of Fishing Claim. In view of the above and the approach of the time limit in this case we should be grateful to know by return Fax that you are agreeable to extend the time limit by a further twelve months to, say, 24th August, 1994. As you are aware we have not requested Security in respect of our Member's claim and hope that this will not be necessary at this stage.” 7. On the same date SOP responded to BMMI by fax as follows:- “ Thank you for your fax of 20th August. We are relieved to note that you can confirm permanent repairs to the UNA ALAN have been completed. As these repairs were carried out towards the end of last year, we presume by now all the repair bills have been settled and that your member has submitted a claim against his Hull insurance against your goodselves. If this is the case we would be grateful if you would provide us with a copy of the relevant subrogation receipt. As repairs were deferred for over a year, until a time convenient to the Member, we do not see that there can be any valid claim for loss of fishing. We have passed your request for a time extension to our Member and we will revert with their response in due course." 8. By fax dated 26th August, 1993 BMMI responded to SOP and furnished the details which they had requested. They also commented on the claim for loss of fishing and concluded with the following paragraph:- “ In the meantime we await your confirmation on the time extension as requested on the 20th August.” 9. It will be noted that the time limit had then already expired. 10. SOP replied by fax dated 29th September, 1993 as follows:- “We refer to your fax of 26th August and our telcon yesterday. We have no instructions to grant a time extension and it therefore appears that the claim is timed-barred. We are closing our file.” 11. BMMI replied to SOP by fax and letter dated 1st October, 1993 as follows:- “We refer to your fax letter of the 29th September from which it is noted that you are now endeavouring to hide behind a statutory time bar. As our initial faxed letter was dated prior to the time bar date with a request for your return agreement on the time extension it goes without saying that your response is both disappointing and totally unacceptable. We are, therefore, left with no alternative but to commence proceedings which will now require the additional cost of obtaining leave of the court. On this point we have no doubt that given the previous open correspondence exchanged we would have no difficulty in obtaining such leave. Similarly as we are now obliged to commence an action, appropriate measures for obtaining security by way of arrest will also have to be taken.” 12. Proceedings commenced in this court by plenary summons dated 5th November, 1993. THE LAW 13. The limitation period for the commencement of maritime actions as between vessels founded on negligence is, per Section 46 (2) of the Civil Liability Act, 1961 , a period of two years from the date of such damage or loss. However, the court is granted a discretion to extend time by sub-section (3) of Section 46 which is in the following terms:- "(3) Any court having jurisdiction to deal with an action to which subsection (2) of this section relates may, subject to any rules of court, extend the period referred to in that subsection to such extent and subject to such conditions as it thinks fit ..." 14. The foregoing provision carries over into the Act of 1961 a similar discretion granted to the court by Section 8 of the Maritime Conventions Act, 1911 which remains in force in English law. The latter section also provides for a similar limitation period of two years from the happening of the event which gives rise to the claim. I have been referred, inter alia, to three judgments of Sheen J., the Admiralty judge of the Queen's Bench Division, regarding applications under Section 8 of the 1911 Act for extensions of time for commencement of proceedings in which the learned judge laid down principles to be applied in the exercise of judicial discretion in that regard. It is not without interest that in all three cases he refused to extend time. The first judgment is THE "GAZ FOUNTAIN" [1987] 2 Lloyds Report 151. The facts were broadly similar to the matter under review. The plaintiffs' vessel while at anchor was damaged by the defendants' vessel while manoeuvring to go alongside the former. Protracted settlement negotiations took place between the respective P&I clubs. A series of extensions were agreed between the clubs for a total period of five years from the date of the casualty. Two weeks after the expiry of the last extension, the plaintiffs issued a writ against the defendants claiming damages for loss and expenses sustained by them as a result of the collision. The defendants contended that the writ should be struck out as it was out of time. The plaintiffs applied for an extension of time under Section 8 of the 1911 Act. Sheen J. held that the delay in issuing the writ was devoid of excuse; where the court had a discretion as it had under Section 8 of the 1911 Act, time ought not to be extended unless the plaintiffs could show special circumstances; there were no special circumstances and there were no grounds which justified extending the period of limitation. No explanation was given in the plaintiffs' grounding affidavit for the failure to issue the writ. The learned judge added: "I do not understand the reluctance of those who appear to have a very strong case to issue a writ. The cost is minimal, and that cost will be recovered from the defendants if the claim is successful, as may be anticipated. By issuing a writ the plaintiffs do not preclude the possibility of further negotiations ..." 15. The second judgment was in THE "ALBANY" and THE "MARIE JOSAINE" [1983] 2 Lloyds Reports 185. The parties were negotiating and did not expect to have to resort to litigation to resolve their differences. The solicitors on both sides anticipated that they would reach agreement as to the proper division of blame but unfortunately they did not do so. There was a dispute as to the facts leading up to the collision and the plaintiffs applied for an extension of time for the issue of a writ. It was held by Sheen J. that: (1) the factors to be taken into account were the degree of blameworthiness, the length of delay, whether the circumstances which caused the delay were beyond the control of the party who had been dilatory, and whether if the application were granted justice would be done between the parties: (2) there was nothing in the case which justified the Court in exercising its discretion to extend the time and in the circumstances the application would be dismissed. 16. The third judgment is in THE "AL TABITH" and "ALAN FUSHI" [1993] 2 Lloyds Reports 214. The facts were substantially the same as in The "Gaz Fountain" supra. As in the latter there was no admission of liability and to that extent both differ from the facts under review. It was held by Sheen J. that: (1) those who act for plaintiffs must either issue a writ or get a clear and firm undertaking from opponents that the time limit was extended indefinitely; (2) it was apparent from the exchange of messages that there was no conduct on the part of the defendants which either caused Mr. Dawson to refrain from instructing solicitors to issue the writ or caused Mr. Dawson to make an error or even contributed in any way to that error; (3) there was no admission of liability because there was no pressure on the defendants to make that admission; and although the circumstances of the casualty probably did speak for themselves, they did not make a reluctant payer pay up; the fact that parties were negotiating in order to achieve a settlement was not by itself a good reason for extending the normal period of limitation; (4) plaintiffs who sought to establish that there was good reason to extend the normal period of limitation had to show that their failure was not merely due to their own mistake; it could not be a good reason for extending the time limit that defendants are unable to show that there would be any specific prejudice to them in conducting their defence; (5) a person who decides not to issue a writ until shortly before a period of limitation was due to expire took the risk that for some unexpected reason he would fail to issue the writ in time; Mr. Dawson took a deliberate decision not to instruct solicitors to issue the writ until nearly at the end of two years; when that period was extended by six months he took the deliberate decision not to instruct solicitors to issue a writ until shortly before those six months expired; by reason of his own mistake he failed to give instructions in time and there was no good reason to extend the time limit. The motion was dismissed. 17. I have also considered the judgment of Sheen J. in THE "MYRTO" [1987] 2 Lloyds Reports 1 which ultimately was appealed to the House of Lords. In that case Sheen J. granted an extension of time for issuing the writ but he regarded the facts as exceptional and they differ greatly from those under review by me. The case turned upon the interpretation of a rule of court as to the basis for granting an extension of time and it was held that it could be granted for any "good reason". 18. There is another judgment of Sheen J. on this topic which at first sight would appear to be out of step with the group of three judgments to which I have referred. It is THE "SEASPEED AMERICA" [1991] 1 Lloyds Reports 150. The facts of that case were that on July 13th, 1987 the vessel "Valor" owned by the first plaintiff was lying at her berth in Lagos, Nigeria when she was struck by the defendants' ship "Seaspeed America" which at the time was under the care of a local pilot for whose negligence her owners were responsible. At the material time "Seaspeed America" was entered for certain insurance risks with a P&I Club (the club). Holmans were instructed to act on behalf of the plaintiffs. 19. On 10th August, 1987 the club wrote to Holmans agreeing that the claim should be determined by the High Court in England. On the same day the club sent Holmans an undertaking to pay such sums as may be due to the owners of "Valor" by the owners of "Seaspeed America" in respect of their claim. There was an exchange of telex messages on 12th and 13th August in which the insurers of "Seaspeed America" admitted liability for the incident. Thus the only question to be decided was the size of the claim of the owners of "Valor". The amount could not be determined until the repairs were carried out. 20. There were negotiations between the parties throughout 1988 as to the amount due to the plaintiffs. The final repair account was not approved until March 8th, 1989. On June 26th Holmans sent the claim to the club together with supporting vouchers. No reply was received. On July 19th Holmans reminded the club that they were awaiting their response to the claim. At that time neither side appreciated that the time limit had expired on July 12th, 1989. 21. On July 21st Holmans were reviewing the file and appreciated that the time - limit had expired nine days earlier. The writ was issued and on July 28th the club were advised of the expiry of the time limit. The plaintiffs applied for an extension of time. 22. It was held by Sheen J. that: (1) the course of the negotiations lulled the plaintiffs into failing to watch the passage of time. The defendants (i.e. the club) were unaware of the passage of time and it would be a grave injustice if this action were not to be allowed to proceed; (2) Parliament had given the Court a discretion to extend the time limit of two years "to such extent and on such conditions as it thinks fit"; the period of two years was agreed internationally and the Court would only extend that period if in all the circumstances of the case there was good reason for doing so; (3) whether there was or was not good reason in any particular case depended on all the circumstances of the case; there was good reason for extending the time limit by thirteen days in that liability was admitted, the parties were negotiating about the cost of repairs and the club's representative was not concerned with the time limit. The time limit for commencing the action was extended for such time as was necessary for the action to be maintainable. 23. An important distinction between the facts in "SEASPEED AMERICA" and the matter under review is that not only was there an admission of liability on the part of the defendants but there was also a formal undertaking on their behalf to pay such sums as may be due to the owners of "Valor" in respect of their claim. All the plaintiffs required to establish was the reasonableness of the cost of repairing their vessel. There were no issues on quantum like those in the instant case that the repairs carried out extended substantially beyond the actual damage done and comprised "improvements in the context of the age of the vessel" or the validity of the claim for loss of fishing time. In short, when the limitation period expired in "SEASPEED AMERICA", the defendants' P&I club had received the final repair account only a few days earlier and there was no indication that it might give rise to controversy. Both parties failed to observe that the limitation period had expired until the plaintiffs' agent did so thirteen days later when the writ was issued. The short delay did not cause any harm to the defendants. The opinion of Sheen J. that injustice would be done to the plaintiffs if time was not extended is obviously well founded. When the details are examined, it seems to me that there is no incompatibility between the judgment of Sheen J. in the latter case and his judgments in the group of three to which I have referred. 24. I am satisfied that the principles laid down by Sheen J. in THE "GAZ FOUNTAIN" ; "ALBANY" and "AL TABITH" as to the basis on which the Court should exercise its discretion to extend time for initiating a maritime action in negligence are well-founded and I respectfully adopt them. 25. SOP's letter to BMMI of 5th November, 1992 was of crucial importance as it demonstrates that, although liability was not in issue, there was a serious dispute between the insurers on quantum which later correspondence indicated was not limited to the cost of repairing collision damage to the plaintiff's vessel but also included his claim for net loss of fishing profits which would have been earned during extra time taken for repairs over and above the period of maintenance work only. The fact that one aspect of the case, liability, was not in issue should not be regarded as a special circumstance or good reason justifying the plaintiffs' failure to issue a summons within the specified period. It was at all times made clear on the defendant's behalf that there was a real issue as to damages, including lost fishing time, which might well not be amenable to successful negotiation. The correspondence also establishes that in the days leading up to expiration of the limitation period the parties were a long way from agreement on quantum and no basis for negotiating a settlement on that issue had been established. In these circumstances the plaintiffs' P&I club knew or ought to have been aware that in the interest of the insurers it was imperative either that an appropriate extension of time should be agreed before expiration of the limitation period or that a summons should be issued within time. There is nothing in the grounding affidavits to explain why the plaintiffs' P&I club failed to arrange for the issue of the plenary summons within time; nor is there evidence to suggest that the defendants' P&I club caused or contributed in any way to the delay in issuing proceedings. 26. Applying the principles laid down by Sheen J. to which I have referred, it is clear that the plaintiff has not shown special circumstances or "good reason" for not issuing the summons within time and, as already stated, he has not given any explanation for failure to do so within the limitation period. Finally, the delay was not beyond the control of the party who had been dilatory. 27. The defendants have sought to rely upon the judgments of the Supreme Court in Doran -v- Thomas Thompson & Sons Limited [1978] I. R. 223 and Boyce -v- McBride [1987] ILRM 95 and also the judgment of the High Court (Barrington J.) in Traynor -v- Fegan [1985] I. R. 586. These cases concern the issue of estoppel arising out of the respective defendants' words or conduct. There is no such issue in the instant case. © 1996 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII