The Gazette 1987

GAZETTE

JULY/AUGUST 1987

vessels but applies equally to colli-

sions involving fishing vessels,

barges, cruisers and yachts all of

which will fall within the definition

of a "vessel". Section 46(2) spec-

ifically refers to the Merchant Ship-

ping Act 1894 in which "vessel",

is defined in Section 742 as

follows: —

"vessel includes any ship or

boat or any other description of

vessel used in navigation", (see

also

Barber -v- Burke & Others

[1980] ILRM Page 186).

Two other points should be

noted. It is arguable, although not

entirely clear that the 2 year limita-

tion period applies only to

in rem

proceedings against a vessel as op-

posed to proceedings brought

personam

against the owner of the

vessel. Secondly, it is unlikely that

this section would apply to a colli-

sion on an island waterway (see

The Goring [1987] 2 All ER page

246).

(Readers with a copy of " A

Casebook on the Irish Law of

Torts" by McMahon & Binchy

should note, at page 646, the ex-

istence of the above little known

section. That publication refers to

Section 8 of the Maritime Con-

ventions Act 1911 which has been

repealed by S.46(2).

Salvage Claims (2 years) Civil

Liability Act 1961 S.46(4)

For those scanning this practice

note the relevant limitation period

is t wo years as provided for by

Section 46(4) of the Civil Liability

Act 1961.

For those prepared to read a lit-

tle further, the position is interest-

ing and indeed curious. The

limitation period for salvage claims

was originally governed by the pro-

visions of the Maritime Con-

ventions Act 1911 which provided,

under Section 8 that the appropriate

limitation period was two years " in

respect of

any

salvage service",

such period to be calculated from

the date when the damage or loss

or injury was caused or the salvage

services were rendered. Section 8

was repealed by the Civil Liability

Act 1961 and replaced by Section

46 of that Act. Subsection 2, as

mentioned above provides that the

limitation period for collisions is

t wo years and Subsection 4 pur-

ports to impose a similar limitation

period in respect of "salvage or

other expenses consequent upon

that fault". In amending the 1911

Act the scope of the salvage ser-

vices contemplated has been nar-

rowed from "any salvage service"

to salvage linked with " f au l t ".

The effect of these Subsections

when read together is that the two

year limit applies only to such

salvage claims which arise as

damages because of the sole or

concurrent fault of a vessel. In all

other cases where salvage services

are rendered (in the absence of

" f au l t " ), e.g. to a vessel in distress

or where an abandoned yacht has

been rescued, there is no time limit

applicable under Irish Law for

salvage actions

in rem.

This "curiosity" was drawn to

the attention of the Minister for

Transport and Power in 1970 by

the Irish Maritime Law Association.

It was indicated that amending

legislation would be "considered"

and there the matter rests.

International Carriage of Goods

by Sea (Hague Rules — 1 year)

This is an area which should be

equated with a legal minefield and

one must tread warily. Within the

scope of this practice note, the net

point to be borne in mind is that if

the relevant documentation refers

to the application of the Hague

Rules (or the amended version

thereof known as the Hague Visby

Rules) the appropriate limitation

period is

one year.

Article III Rule

6 of the Hague Rules provides that

" t he carrier and the ship shall be

discharged from all liability in

respect of loss or damage unless a

suit is brought within one year after

delivery of the goods or the date

when the goods should have been

delivered". (Nothing could be

clearer

you have managed to

spot the reference to the Hague

Rules in the microscopically small

print of the con t r act docu-

mentation and

you are familiar

with the provisions of the Hague

Rules.)

Where are these Rules to be

found?

Mirabile dictu

Ireland has

actually ratified the 1 924 Brussels

Convention which gave rise to the

Hague Rules and you will find them

in the Second Schedule attached to

the 1947 Merchant Shipping Act.

When do they apply?

Under Section 13 of that Act, the

Rules "shall have e f f ec t" where

goods are carried on foot of a bill

of lading

from

any port in the State.

While the Section goes on to pro-

vide that the Rules apply where

goods are being shipped " t o any

other port whether in or outside the

State" in practice they rarely app-

ly to the shipment of goods to

other Irish ports or to Britain for

t wo reasons. Firstly,

such

shipments are rarely covered by a

negotiable bill of lading and

secondly, Section 13(4) allows a

carrier to contract out of the rules

and impose different conditions

where goods are being shipped to

another Irish port or to Great Britain

or Northern Ireland, provided a non-

negotiable bill of lading is issued.

While the Act refers to

outward

traffic in cases where a bill of

lading is used, the scope of their

application does not end there. Fre-

quently goods are carried on foot

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