The Gazette 1987

GAZETTE

JULY/AUGUST 1987

Some Unusual Periods of

Limitation

I gno r an t ia Legis Haud Excusat

There is a depressing finality in the

realisation that your client's claim

is statute barred. It is proposed in

this brief practice note to draw

a t t en t i on to the appropriate

limitation periods in specific types

of action where any practitioner

might well be "caught short" to

the detriment of their client (and

their professional

i ndemn i ty

premium).

International Air Transport

(Warsaw Convention 1921 —

2 years )

The 1929 Warsaw Convention

(as amended by the 1955 Protocol)

governs

international

carriage of

persons, luggage and goods. Ireland

has ratified the Warsaw Conven-

tion by virtue of the Air Navigation

and Transport Act 1936. Ireland

has also ratified the 1 955 Protocol

by virtue of the Air Navigation

Transport Act 1959 and has

ratified the Guadalajara Convention

by virtue of the Air Navigation and

Transport Act 1965.

Anyone dealing with a claim on

behalf of a deceased dependent,

injured air crash victim or owner or

consignee of luggage or goods

should carefully consider the

provisions of the Convention and

Protocol wh i ch, it should be

stressed, relates to the inter-

national carriage. Most airline

tickets refer in practice to the

Warsaw Convention and to the

limitation of damages allowed

under its terms. It should be noted

that the provisions of the Con-

vention may apply even in the

absence of a ticket and in the case

of " g r a t u i t ous carriage" by an air

transport undertaking.

For the purposes of this practice

noté which deals with limitation

periods (as opposed to the limit of

damages provided for under the

Convention) the relevant part of

the Convention is Article 29 which

reads as follows: —

(i)

"The right to damages shall

be barred if an action is not

Pet r ia McDonne l l, So l i c i t or

brought within

two years,

reckoned from the date of

arrival at the destination, or

from the date on which the

aircraft should have arrived,

or from the date on which the

carriage stopped,

(ii) The method of calculating the

aforesaid period shall be

determined by the Law of the

Court seized of the case."

(For the avoidance of confusion,

readers might amend the current

edition of the Law Directory at

page 27 dealing with airline claims

and should obliterate the reference

to three years.)

International Carriage of Goods

by Road (CMR Rules 1 year)

The carriage of goods both to

and from Ireland is frequently

governed by the provisions of an

international Convention commonly

known as the CMR Convention (or

the CMR Rules). While the Con-

vention has been incorporated into

English legislation by the Carriage

of Goods by Road Act 1965, it has

not been ratified by Ireland. Despite

this, many contracts for carriage to

and from Ireland incorporate, by

agreement, the CMR Rules. In all

such cases the carrier will issue a

CMR Consignment Note. While the

note will refer to the rules them-

selves it will probably not refer to

the appropriate limitation periods

— so it is incumbent on you, me

and us to know what they are.

Article 32 of the Convention pro-

vides that the period of limitation

for commencing an action arising

out of con t r act of carriage

governed by the provisions of the

CMR Rules, shall be

one year.

| wilful misconduct can be proved,

the limitation period is extended to

three years. As wilful misconduct

may be very difficult to establish,

it is advisable to commence pro-

ceedings within the one year

I limitation period irrespective of the

conduct of the carrier.

The period of limitation runs from

different dates depending on the

nature of the claim e.g. partial loss,

damage or delay in delivery, or total

loss. For example, where a claim is

in respect of partial damage to

goods, the limitation period begins

to run from the date of delivery.

The Rules provide that where a

written claim has been submitted,

the period of limitation will be

suspended until such time as the

carrier rejects the claim by notifi-

cation in writing and returns the

documents which were attached

to the Notification of Claim. (See

I.C.I, pic. and I.C.I. France S. A.

-v-

Mat Transport Ltd.

[1987] 1 (Loyds

Re. 354).

It is essential that Solicitors

acting for carriers and indeed

impor t ers of goods

should

familiarise themselves with the

conditions of the Convention as

they are frequently incorporated

into international carriage con-

tracts. A most useful guideline to

the CMR Rules by Brian J.

McGovern, B.L. is to be found in

the November 1985 issue of the

Gazette.

Maritime Collisions (2 years —

Civil Liability Act 1 9 61 s.46).

Section 46(2) of the Civil Liability

Act 1961 imposes a t wo year

limitation period in respect of

claims for damage, loss of life or

injury arising out of a collision

between t wo vessels. Sub-section

3 allows the Court to extend the

t wo year limitation period

it is

satisfied that the Plaintiff during

the t wo year period has had no

reasonable opportunity of arresting

the Defendant vessel within the

Irish jurisdiction

(assuming the

vessel belongs to a foreign owner)

within the territorial waters of the

country to which the Plaintiff's

vessel belongs or in which the

Plaintiff resides or has a principal

place of business.

Section 46(2) of the above Act

is not confined to large sailing

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