The Gazette 1987

GAZETTE

JULY/AUGUST 1987

Some Unusual Periods of Limitation I gno r an t ia Legis Haud Excusat

by 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. If | wilful misconduct can be proved, the limitation period is extended to three years. As wilful misconduct may be very difficult to establish, 1 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 if 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 or (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

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

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