В настоящей публикации рассматриваются вопросы, связанные со сроками исковой давности по английскому праву. Автор приводит общий срок исковой давности по требованиям в договорном праве, в Межклубном соглашении (ICA) Международной группы клубов P&I (IG), Правилах Гаага-Висби и Гамбургских правилах, в требованиях по демереджу, по общей аварии (Йорк-Антверпенские правила), а также по требованиям в связи с травмой или смертью пассажира. В заключение наиболее распространенные сроки исковой давности по морским требованиям сведены в удобную для восприятия таблицу.
Time bars can be found in charter parties and bills of lading, and they
provide parties with a specified timeframe during which they can bring
a claim. To be more precise, the definition of a time bar is “a specific
time period and deadline for the parties to bringing a legal action or filing
for arbitration as established by a clause in the contract, law or custom”.
In short, after the specified time period lapses, the parties are barred
from bringing suit in a court of law or filing for arbitration.
Time bars are a very controversial issue in shipping as a claim can arise years after an incident took
place, and this could be further complicated by the different time bars contained in each contract and
how they interact with the ones derived from various conventions. With this circular MS Amlin aims
to inform both owners and charterers of some of the most common time bars that are applicable to
maritime claims under English Law.
1 Section 5 of the Limitation Act 1980 2 London Arbitration 10/14
Time bar provisions
Starting from the default position, in the event that there is no express time bar clause in
the charter party, the time bar under English Law is six years from the date of the breach
of the contract.
1
This means that contractual claims such as off-hire disputes or unsafe port
claims can be lodged up to six years after the event. However, freedom of contract allows
parties to agree to deviate from the six-year rule.
In practice, charter parties contain express time bar clauses and sometimes more than
one, in order to address different practicalities under the contract. This means that different
claims have a different timeframe during which an action has to be brought. For example,
a charter party may have a general time bar set at five years,
but it could also have a three-month time bar for demurrage
claims and a twelve-month time bar for safe port claims.
Time bar clauses are to be interpreted strictly with their precise
wording. This means that any ambiguity will go against the
party trying to rely on the time bar. In one case,2 the time bar
clause provided that claims would be time barred three months
after “final discharge”. The charter party was terminated by the
charterers and the owners indicated the nature of their claim
more than three months after the termination by the charterers.
The tribunal held that the owners’ claim was not time barred
because discharge never took place as the charter party was
terminated by the charterers.
A key point to be considered is the action that is required in order to protect the time
bar. For example, under the Hague-Visby Rules, one has to commence a suit to protect
the time bar; while in a demurrage claim, the time bar is protected with the submission
of the required documents. Clients are therefore advised to be alert to the type of claim
they are dealing with and the respective required action that protects the time bar.
“The nature of the time
bar clauses is quite
draconian and clients,
owners and charterers
alike, are advised to pay
close attention to the
wording of the clause.”
Inter-Club Agreement
The Inter-Club Agreement (ICA) time bar has different stages. The ICA time bar is (usually) to the benefit of the charterer as
the ship owner must notify the charterer within two years, whereby the owners get an additional one year after proceedings
have been commenced against them by the cargo receiver.
The first stage relates to the notification of claim, which has to be in writing and presented within 24 months of the date
of delivery of the cargo or the date the cargo should have been delivered. In the event that the Hamburg Rules are
applicable this period is 36 months. In case of conflicting time bars, the ICA time bar prevails over any provisions in the
charter party.
The second stage is the normal six-year time bar which applies to all simple contracts under English Law as per the
Limitation Act 1980. This applies from the moment the claim has been properly settled and paid as this is when the cause
of action accrued.
ICA: practical example
• The cargo was delivered on 01/01/2010.
• The written notification is submitted on 31/12/2011.
• The claim was properly settled on 01/06/2012.
• Proceedings have to be brought before 01/06/2018,
– If the proceedings are brought in time, a potentially slow judicial system does not
affect the time bar as long as the above steps are followed.
– If the proceedings are not brought in time, then the claim is time barred.
Hague-Visby Rules
The time bar in the Hague-Visby Rules is relevant for claims under the bill of lading from
the cargo receivers or under charter parties that incorporate the Hague-Visby Rules.
In both cases, the time bar is one year from the date of delivery of the goods or of
the date when they should have been delivered. The latter is relevant where no cargo
has been delivered, either because there was a contractual reason (e.g. termination/
cancellation) or because there was a casualty. Parties can agree to extend the time bar,
but they cannot reduce it as it would be contrary to HVR Article III (8).
Charter Parties – the one-year time bar is relevant when the liability involved is related
to the loss or damage to the goods carried under the charter party. This would typically
arise in the event of breaches of the HVR obligations of seaworthiness which might
arise at each port, or duties of care in loading, carrying, caring for and discharging the
cargo.
Bills of Lading – the one-year time bar applies automatically to all bills of lading
to which the Hague-Visby Rules apply as per HVR Article X if:
a) the bill of lading is issued in a contracting state; or
b) the carriage is from a port in a contracting state; or
c) the contract contained in or evidenced by the bill of lading provides that these Rules,
or legislation of any State giving effect to them, are to govern the contract.
In both cases, the time bar also applies where there is an express incorporation with a
Clause Paramount.
Date cargo was/
should have been
delivered
Cargo Claim
properly settled
and paid
Written notification
within 2 years
Proceedings
within 6 years
Demurrage claims
The contractual time bar for demurrage claims (usually
90-days) is something that is more commonly seen in tanker
vessel charter parties. The most important aspect of these
clauses is the high volume of documentary requirements
found in demurrage time bar clauses.3
Such clauses normally
provide for a claim to be presented to charterers in writing
with all supporting documentation. If such documentation
is specified with a list and one document is not presented
within the time specified, the claim will be time barred. It is
therefore crucial for charterers to present all the documents
required by the clause within the time frame, and in the
event that there is any doubt clients are advised to contact
MS Amlin for assistance.
General Average
There is a general average act when, and only when, any
extraordinary sacrifice or expenditure is intentionally and
reasonably made or incurred for the common safety for the
purpose of preserving from peril the property involved in a
common maritime adventure.4
General average is regulated
by the York-Antwerp Rules, which stipulate that, subject to
any limitation contained in any applicable law, any rights
to general average contribution including any rights to
claim under general average bonds and guarantees
shall be extinguished unless an action is brought by the
party claiming such contribution within a period of one
year after the date upon which the general average
adjustment is issued.
5
However, in no case shall such
an action be brought after six years from the date of
termination of the common maritime adventure. The rules
further underline that these periods may be extended if
the parties so agree after the termination of the common
maritime adventure. It has to be noted that this rule shall
not apply as between the parties to the general average
and their respective insurers.
Personal injury or death of passengers
Under the Athens Convention on the Carriage of
Passengers and their Luggage by Sea6, the time
bar is two years from the date of disembarkation.
If the passenger died before disembarkation, the date
is calculated from the day that disembarkation would have
taken place. The period can be extended to three years
if there are grounds of suspension and interruption of
limitation periods in accordance with local law.7
3
The recent case of Tricon Energy Ltd -v- MTM Trading LLC [2020] EWHC 700 (Comm)
confirmed the earlier case of the M/T Adventure [2015] EWHC 318 (Comm) pointing out the
draconian character and the importance of documentary requirements. 4
Rule A.1 of the York-Antwerp Rules 5
Article XXIII of the York-Antwerp Rules 6
Having the force of law in the UK (Section 183 MSA 1995). In the EU, the Passenger
Liability Regulation (PLR) implements the Athens Convention and the 2002 Protocol in EU
and EEA member states, with the purpose of creating a single set of rules across the EU/
EEA member states governing the liability of carriers to passengers travelling by sea in the
event of an accident. 7
Warner v Scapa Flow Charters (Scotland) [2018] UKSC 52 examined a limited exception
under Article 16 paragraph 3 of the Convention, which (with its previous wording) mentioned
that the court seized of the case, if there are grounds of suspension and interruption
of limitation periods in accordance with its local law, to extend this period up to 3 years
from disembarkation. This article has been amended to extend to up to 5 years from
disembarkation and up to 3 years from knowledge if the 5-year period is earlier than that.
Conclusion
In this circular, we have provided a brief reference on some of the most common time bars applicable to maritime claims,
which we have summarised in the table below for easy reference.
Due to the strict nature of time bars, clients are advised to notify MS Amlin of any claim as soon as possible in order to ensure that
the proper action is taken. If a time bar expires, it cannot be reinstated and it is therefore crucial that claims are notified promptly.
A further important point to bear in mind is that clients are advised to grant time extensions whenever they are requested by
the other side. It promotes the spirit of co-operation between the parties, assists in avoiding unnecessary legal expenses and
affords more time to solve the disputes amicably. Such time extensions, however, should be provided with a careful wording in
order to be reciprocal and to be given conditionally to the right to sue and to the claim not having been already time barred.
Claim Basis Time bar
General charter
party claims
Statute (Section 5 of the
Limitation Act 1980.) 6 years from the date of the breach of the contract
Inter-Club Agreement Contractual Clause (cl.6 of
the ICA)
2 years from date of delivery of cargo or date cargo should
have been delivered to provide written notification of claim
when Hague/Hague-Visby Rules apply and 3 years when the
Hamburg Rules apply
Hague-Visby Rules Statute (Article III para.6
HVR)
1 year from the date of their delivery or of the date when they
should have been delivered (extendable by agreement).
Demurrage Contractual Clause Depends on the clause. The most common one is 3 months
from completion of discharge
Personal injury/death
Statute/Tort Section 11 of
the Limitation Act 1980 and
Section 12 for death
3 years from negligent act/omission or knowledge thereof if it
transpires later. If the injury is fatal, 3 years for the cause of
action surviving for the benefit of his estate, from the date of
death or the date of the personal representative’s knowledge,
whichever is the later.
Personal injury/death
of passengers
Article 16 of the Athens
Convention 1974
2 years from the date of disembarkation of the passenger.
In limited circumstances, it may be extended to 5 years from
the date of disembarkation and if it is earlier up to 3 years
beginning with the date when the claimant knew or ought
reasonably to have known of the incident.
General Average York Antwerp Rules XXIII
1 year after the general adjustment is issued (but within
6 years from the termination of the common maritime
adventure)
Collision damage
Statute/Tort
Section 190 MSA 1995, Art.
7 Collision Convention 1910
2 years from the date of the casualty
Автор: Spiros Papadas
Источник: https://www.msamlin.com/content/dam/ms-amlin/consumer/Marine-and-Aviation/p-and-i-circular/Time%20s%20up%20-%20a%20guidance%20on%20time%20bars%20-%20June%202020%20.pdf.downloadasset.pdf