CAN A CONTRACTUALLY-AGREED CLAUSE OVERRIDE THE HAGUE / HAGUE-VISBY RULES ONE YEAR TIME BAR?

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Published: 10 July 2025

The dispute arose from the shipment of 548 containers aboard the MV Alion. During the voyage, the ship experienced a main engine failure, necessitating the provision of salvage services. Following the salvage operation, general average was declared, and cargo interests subsequently sought an indemnity from the carrier for their general average contributions.

The bill of lading issued for the cargo contained a Clause Paramount which stated that, unless the Carriage of Goods by Sea Act 1971 applied the Hague-Visby Rules compulsorily, the Hague Rules would govern the contract, and that the carriers were entitled to rely on Articles I to VIII of the Hague Rules but not Article IX.

Clause 18 of the bill of lading provided that claims for charges, expenses, or any matters other than loss or damage to goods had to be submitted in writing within 20 days of delivery. The clause also stated that all claims, including those for loss or damage to goods, would be time-barred unless suit was brought within one year of delivery, with “brought” defined as requiring actual service and/or obtaining jurisdiction over the carriers or vessel within that period.

The carriers contended that Clause 18’s provisions overrode the Hague Rules time-bar. Specifically, they argued that the requirement for claims to be served within one year (the “Service Provision”) and the necessity for claims to be notified within 20 days (the “20-day Provision”) were enforceable and that the cargo interests’ failure to comply meant their claims were time-barred. The carriers argued that, as the Hague Rules were incorporated contractually rather than compulsorily, the parties had the freedom to modify or exclude certain provisions, including the time-bar.

The Court rejected the carriers’ arguments. It highlighted that the Clause Paramount’s incorporation of the Hague Rules indicated an intention for those rules to prevail over other contractual provisions. The deliberate inclusion of Article III Rule 6 (applying a one year time bar for claims) and Article III Rule 8 (under which any clause relieving or lessening the carriers’ liability under the Hague Rules is null and void), coupled with the omission of Article IX, suggested that the parties did not intend Clause 18 to override the Hague Rules time-bar provisions.

The judge noted that Clause 18 did not explicitly state that it was intended to prevail over the Clause Paramount. Furthermore, a specific carve-out in the Clause Paramount regarding Article IV Rule 5 of the Hague Rules indicated that any intended deviations from those Rules were expressly set out, implying that other provisions of the Hague Rules were unaffected.

The Court emphasised that Article III Rule 8 of the Hague Rules renders null and void any contractual provision that relieves or lessens the carriers’ liability otherwise than as provided in the Rules. Therefore, any attempt to impose a shorter time-bar than the one-year period stipulated in Article III Rule 6 would be incompatible with Article III Rule 8.

The Court found the carriers’ argument that the Service Provision defined when a suit is considered “brought” unconvincing. It reasoned that allowing such provisions could lead to arbitrary conditions for bringing suit which would undermine the protective purpose of the Hague Rules time-bar.

The decision reinforces the authoritative status of the Hague Rules when incorporated into contracts of carriage through a Clause Paramount. It clarifies that:

• Contractual Modifications Are Limited: even when the Hague Rules are incorporated contractually, parties cannot introduce provisions that effectively diminish the protections afforded by the Rules, such as imposing shorter time-bars for claims.
• Clarity in Drafting Is Essential: for any contractual provisions to override or modify the Hague Rules, explicit and unambiguous language is required. The absence of clear wording indicating an intention to deviate from the Hague Rules will result in the Rules prevailing.
• Protection of Cargo Interests: the judgment underscores the protective intent of the Hague Rules, ensuring that carriers cannot circumvent their obligations through the inclusion of more restrictive provisions in their standard terms.

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