This appeal relates to claims made by the Claimant ("FIMBank"), which is a trade finance bank headquartered in Malta regulated by the Maltese Financial Services Authority, against the Defendant ("KCH"), which is a Korean-incorporated company. The appeal is brought by permission of Butcher J given on 22 December 2021 pursuant to s.69(2)(b) of the Arbitration Act 1996 against the Partial Final Award (the "Award") of an Arbitral Tribunal dated 1 September 2021. FIMBank brings claims as holder of various bills of lading for misdelivery of cargo against KCH as carrier. The charterparty chain is described by Cockerill J in The Giant Ace  2 Lloyd's Rep 511 and need not be explained further for the purpose of the matters to be decided in this judgment. In short, the question of law that arises in this case is whether the limitation of liability in Article III, r.6 of the Hague Visby Rules applies to claims for misdelivery of cargo after discharge from the vessel. This question has not been decided previously by the courts in this jurisdiction, having been left open in The Alhani  2 Lloyd's Rep 563 at , and raises as Butcher J pointed out a matter of general public importance.
The Award decided certain preliminary issues, so that the background facts have yet to be ruled upon. In brief, 13 sets of bills of lading dated 4 and 14 March 2018 on the Congenbill form were issued 'to order' for and on behalf of the Master of the M/V GIANT ACE for about 85,510MT in aggregate of coal in bulk. KCH had bareboat chartered in the vessel from Mirae Wise SA (a Panama company and the registered owner of the vessel) and the claim is brought against KCH as carrier. By way of incorporation from the charterparty, the bills of lading (as the Arbitral Tribunal held) were subject to the Hague-Visby Rules (the "Rules" which term also includes the Hague Rules depending on context), including the time-bar in Article III rule 6 of one year after delivery which applies to claims against the carrier. The coal was loaded in Indonesia and arrived at the Indian ports of Jaigarh and Dighi around two weeks later. It was discharged between 1 and 18 April 2018 against letters of indemnity which ran up the charterparty chain. It was then placed in discharge port stockpiles. What actually happened to it has not been explored in the facts before the court, and is in dispute.
FIMBank is involved in the transaction as financer of one of the purchasers, pursuant to which in the usual way it is said to have taken a pledge over the bills of lading and the cargo - essentially it stands in the same position as the cargo owners. It claims misdelivery of the cargo after discharge from the stockpiles pursuant to delivery orders. In circumstances which it says led it to misunderstand the identity of the carrier, FIMBank served its Notice of Arbitration on KCH on 24 April 2020, which was more than one year after delivery of the goods or the date when they should have been delivered - that being the time bar period. If the time bar does not apply to misdelivery after discharge, then the arbitration revives to determine, amongst others, the question whether delivery did indeed take place after the end of the discharge operation which is in dispute. If it did, the claim is barred, and the bank must bear the loss.