Federal Court, Malaysia

Wee Chong Jin CJ, Tan Ah Tah JF, Winslow J

30 Septermber 1966

KEYWORDS

Bill of Lading – Cargo Claim – Amendment to name of parties after time limitation has set in

FACTS AND DECISION

The bill of lading prominently displayed a call name of Malaya Indonesia Line. However, the bill was actually issued Swedish East Asia Co Ltd, which a careful scrutiny of the bill would have revealed. [In fact, the agent of the Malaya Indonesia Line and Swedish East Asia Co Ltd alerted the claimant of the fact that the shipowner concerned was the latter, even prior to issue of the writ, but which the claimant disregarded]. The claimant issued the writ against “Malaya Indonesia Line”. In fact there was no legal entity by this name, however, this was a call name used by three shipowners including Swedish East Asia Co Ltd. After time limit had set in, the claimant substituted the defendant with the name of Swedish East Asia Co Ltd by leave of the court. The amended writ was served on an agent, who was the agent both for the Malaya Indonesia Line and Swedish East Asia Co Ltd. The defendant did not apply to set aside the leave to substitute, instead pleaded the time limitation in the defence based on the date of amendment to the writ.

The High Court accepted the relevant date for purposes of time limitation, insofar as Swedish East Asia Co Ltd was concerned, was the date of amendment and not the date of writ. Accordingly, the High Court allowed the defence and dismissed the action. The claimant appealed against the decision to the Federal Court (apex court), which upheld the decision of the High Court. The Federal Court held that, after the time limitation, correction of a mere misnomer would be allowed, but not a substitution. The court relied on Davies v Elsby Brothers Ltd [1960] 3 All ER 627 (CA) (not a ‘shipping’ related case), that set out the general principle and test in relation to amendments to parties after time limit has set in.

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