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G A Z E T T E
SEPTEMBER 1985
assessed by either the Master of the High Court or by a
Judge sitting without a Jury. A claimant may then be
faced with the prospect of bringing a witness from abroad
to prove the claim on oral evidence when he has little or
no prospect of recouping the expense of bringing the
witness, let alone recovering the amount of the decree.
Order 13, Rule 6 of the Rules of the Superior Courts
entitles a party to apply for Judgment in Default of
Appearance to ask the Court to fix the amount of
damages on evidence given by Affidavit and order 27,
Rule 8 entitles a Judge or the Master of the High Court to
assess damages on evidence given by Affidavit where
Judgment is sought in default of Defence. Where a
Judgment is obtained in default of appearance or Defence
it is preferable, where at all possible, to prove the case on
Affidavit because CMR claims are generally for sums
which, if not liquidated damages, are at least
ascertainable by the time the claim is initiated and are
capable of being proved on Affidavit.
Interest
The question of what rate of interest to claim is a matter
which has become relevant since the passing of the Courts
Act, 1981. Prior to the passing of that Act it was
customary to claim interest under Article 27 of the CMR
Rules which allowed interest at 5% per annum on the
compensation payable and the interest accrued from the
date on which the claim was sent in writing to the carrier
or, if no such claim had been made, from the date on
which legal proceedings were instituted. Section 22 of the
Courts Act gives to Judges a discretion to award interest
at the rate of 11% per annum on an award of damages.
The interest allowable under Article 27 of the Convention
is mandatory if the Convention is deemed to apply. While
many Judges may take the view that they should only
exercise their discretion to award interest under the
Courts Act where no other interest is provided for it seems
prudent to include a claim for interest under Article 27 of
the Convention and alternatively for interest under the
Courts Act.
Limitation Periods
The period of limitation for commencing an action
arising out of carriage under the Convention is one year
except where wilful misconduct is proved or default
which, in the law of the Court or Tribunal having seisin of
the case, is considered equivalent to wilful misconduct. In
that event the period of limitation is three years. Article 32
sets out the way in which the period of limitation begins to
run and this is something which should be noted by
parties who are bringing a claim. Under the terms of the
Convention a written claim suspends the period of
limitation until such date as the carrier rejects the claim by
notification in writing and returns the documents which
were attached to the notification of claim. It has been held
in a number of European cases that the carrier need only
return those documents of which the claimant has need
and if the claimant produces documentary evidence by
way of photocopies the carrier is not obliged to return
these with his rejection and he may assume that the
claimant still has the originals. In most cases a claimant
would submit copies of documents and not the originals
on which he hoped to rely at a later stage so one can
assume that if the Irish Courts follow the European trend
that once the carrier rejects the claim in writing that the
time limit will begin to run again regardless of whether he
returns the copy document submitted with the claim.
There are often quite lengthy delays between the notifica-
tion of a claim and its rejection leading one to fear that the
one year time limit for bringing a claim may have expired
when this is not so. For example, a claim could be made in
writing within three days of the loss occurring and it
might not be rejected by the carrier until fifteen months
later. In such event the time limit would only begin to run
again after the fifteen month period and the claimant
could bring his action within the next year less the period
of three days which had already run. It is, therefore, most
important that parties who are engaged, either as owners
of goods or carriers, in CMR transit keep a written record
of all the exchanges which pass between the parties as they
could be of crucial importance in determing whether or
not a claim has been brought within time.
Many CMR claims involve the carriage of goods by
successive carriers during different parts of the same
transit. There is an interesting decision of the Commercial
Court, Queen's Bench Division, dealing with the question
of the notice required where a claimant wishes to sue two
or more carriers who have been involved in the one
transit. The case is
World Wide Carriers Limited & A nor.
-v-
Ardtran International Limited & Ors.
[1983] 1 All E.R.
692. In that case it was held that where there was carriage
by successive carriers and damage occurred to the goods
being carried a written claim submitted by the owners of
the goods to the first or to just one carrier did not have the
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