The Gazette 1985

SEPTEMBER 1985

G A Z E T T E

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 Walter Conan Ltd., Academic-Legal-Civil-Clerical Robemake r s. Telephone - 971730 - 971887

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

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