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Time-Barred Actions Second Edition

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Time-Barred Actions Second Edition TIME-BARRED ACTIONS SECOND EDITION Edited by FRANCESCO BERLINGIERI 0.B.E Former Professor of Maritime Law at the Univers4 of Genoa Honorary President, Comité Maritime International Advocate, Senior Partner, Studio Legale Berlingieri FOREWORD BY ALLAN PHILIP, PRESIDENT OF THE COMITÉ MARITIME INTERNATIONAL PUBLISHED UNDER THE AUSPICES OF THE COMITÉ MARITIME INTERNATIONAL L LIPI LONDON NEW YORK HAMBURG HONG KONG LLOYD'S OF LONDON PRESS LTD. 1993 Lloyd's of London Press Ltd. Legal Publishing Division 27 Swinton Street, London WC1X 9NW USA AND CANADA Lloyd's of London Press Inc. Suite 308, 611 Broadway New York, NY 10012 USA GERMANY Lloyd's of London Press GmbH 59 Ehrenbergstrasse 2000 Hamburg 50, Germany SOUTH EAST ASIA Lloyd's of London Press (Far East) Ltd. Room 1101, Hollywood Centre 233 Hollywood Road Hong Kong 0 Francesco Berlingieri, 1993 First published in Great Britain in 1984 Second edition 1993 British Libraty Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN 1-85044-525-7 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of Lloyd's of London Press Ltd. Promenade Graphics, Gloucester Printed in Great Britain by WBC Ltd., Bridgend, Mid Glamorgan FOREWORD In 1984 the late Kaj Pineus compiled the first edition of this book for the Comité Maritime International. The book is a very useful tool for mari- time lawyers and it was, therefore, the wish of the Comité Maritime Inter- national that a revised edition should be put at the disposal of the legal maritime community. I was, therefore, very pleased when Professor Fran- cesco Berlingieri accepted to undertake the revision. The result is a very extensive treatment of the subject on a comparative basis. It is based upon co-operation between Francesco Berlingieri and representatives of the National Associations of the Comité Maritime International. Without Francesco Berlingieri's energy in holding his collaborators to their task and his ability to get things done this new edition would never have come about. July 1993 ALLAN PHILIP V QUESTIONNAIRE FOR THE SECOND EDITION OF THE BOOK "TIME-BARRED ACTIONS" I. LEGAL NATURE OF THE TIME BAR PERIOD State whether the lapse of the period affects the substantive right or the action. In the latter case, state whether or not the right can be enforced thereafter and how. In view of the fact that time-bar is an expression which seems to refer to the barring of the right of action, I have deemed it convenient to refer throughout the questionnaire to "time-bar/extinc- tion", where by "extinction" I intend to refer to the extinction of the right. II. TIME-BAR/EXTINCTION PERIODS IN RESPECT OF VARIOUS TYPES OF MARITIME CLAIMS Please indicate the length of the period and also indicate when the period commences to run. A. Tort Claims Collision. Pollution. Other damage to the environment. Damage to third parties at sea (e.g. to a swimmer) or ashore (e.g. damage to a port installation, or to persons). Damage to the salved ship during salvage operations (this may also give rise to a contract claim). B. Contract Claims Shipbuilding and ship repairs. Supplies to ship. Agency agreements. Terminal operations (loading, stowage, unstowage, unloading, stor- age, etc). vii viii QUESTIONNAIRE FOR THE SECOND EDITION Contract of affreightment except loss of or damage to cargo (Note: all types of breach of contract of affreightment (demise charters, time charters, voyage charters, tonnage agreements, carriage of cargo in a general ship must be considered, such as: failure to make the ship available, delays in the time of delivery, unjustified withdrawal, unseaworthiness, payment of freight, damage to the ship, demurrage and dispatch, etc). Loss of or damage to cargo under charterparties and bills of lading. Contracts of carriage of passengers (except death or personal injury and loss of or damage to baggage): e.g. payment of fare, non-performance of the voyage, delays, etc. Death of or personal injury to passengers and loss of or damage to baggage under a contract of carriage of passengers by sea. Insurance: all claims under a contract of insurance including claims for payment of premiums and insurance indemnities, abandonment (if a special time limit is prescribed). Reinsurance. General average. Salvage. III. TIME-BAR/EXTINCTION PERIODS FOR SECURITIES Note: The time-barl extinction period that must be considered is that relating to the security itself, and not to the credit or claim secured thereby. Mortgages and hypothèques. Maritime liens. Possessory and other liens. Other charges. IV. SUSPENSION OR INTERRUPTION OF THE TIME-BAR AND EXTINCTION PERIODS The period of time after the lapse of which the action is barred or the right is extinguished may be suspended or interrupted. The difference between suspension or interruption consists of that in case of suspension the orig- inal time limit continues to run after the period of suspension, whilst in case of interruption a new period commences to run anew from the date of the interruption. It is requested that you state what your national law is on the following matters. Whether there are any statutory provisions in respect of the suspen- sion of time-bar or extinction periods. Whether the parties may agree on the suspension of the time-bar period and, if so, how. QUESTIONNAIRE FOR THE SECOND ED/TION ix 3. Whether the time bar may be extended by court. 4. What are the statutory rules on the interruption of the time-bar or extinction periods. State how the running of the time may be interrupted, viz: by commencement of a judicial proceeding and when the proceed- ing is deemed to be commenced; by other types of action, such as application for a summary judg- ment or of an injunction, by the arrest or attachment of a property of the debtor, etc; by a notice of default or formal request of payment; in any other manner. 5. If the dispute must be submitted to arbitration, when the running of the time is interrupted, viz: at the time of notice of appointment of the first arbitrator, at the time the arbitral tribunal accepts the appointment, etc. 6. Whether the commencement of an action before a court that does not have jurisdiction to decide the dispute has the effect of interrupting the running of the time or not. 7. Whether in case a proceeding is abandoned or discontinued, the time commences to run again and, if so, from when. CONTENTS Foreword y Questionnaire vii Introduction Editor's Note xvii Table of Cases xix Table of International Conventions xxi Table of Legislation xxiii LEGAL NATURE OF THE TIME-BAR PERIOD 1 TIME-BAR PERIODS IN RESPECT OF VARIOUS TYPES OF MARITIME CLAIMS 11 A. IntroductionWhen the time-bar period commences to run 11 B. Tort claims 12 Collision 14 Pollution 21 Other damage to the environment 29 Damage to third parties at sea or ashore 35 Damage to the salved ship during salvage operations 43 C. Contract claims 48 Shipbuilding and ship repairs 50 Supplies to ship 56 Agency agreements 59 Terminal operations (loading, stowage, unloading, storage, etc.) 63 Contracts of affreightrnent (demise charters, time charters, voyage charters, tonnage agreements, carriage of cargo in a general ship) except loss of or damage to cargo 71 Loss of or damage to cargo under charterparties and bills of lading 78 xi xii CONTENTS Contracts of carriage of passengers (except death or personal injury and loss of or damage to baggage) 92 Death of or personal injury to passengers and loss of or damage to baggage under a contract of carriage of passengers by sea 97 Insurance: all claims under a contract of insurance including claims for payment of premiums and insurance indemnities, abandonment (if a special time limit is prescribed) 109 Reinsurance 117 General average 121 Salvage 126 III. TIME-BAR PERIODS FOR SECURITIES 133 Mortgages and hypothèques 133 Maritime liens 139 Possessory and other liens 150 Other charges 154 IV. SUSPENSION OR INTERRUPTION OF THE TIME-BAR PERIODS 157 1. Statutory provisions in respect of the suspension of time-bar periods 157 2. Whether the parties may agree on the suspension of the time bar and, if so, how 167 3. Whether the time bar may be extended by the court 172 4. Statutory rules on the interruption of the time-bar periods 175 Interruption by commencement of a judicial proceeding. When the proceeding is deemed to be commenced 175 Interruption by other types of action 182 Interruption by a notice of default or formal request of payment 186 Other manners of interruption 190 5. Interruption of the time-bar when the dispute must be submitted to arbitration 194 6. Whether the commencement of an action before a court that does not have jurisdiction to decide the dispute has the effect of interrupting the running of the time or not 199 7. 'Whether in a case of a proceeding being as abandoned or discontinued, the time commences to run again, and, if so, when 204 Index 211 INTRODUCTION* An attorney will not always win his case. How could he? He is not expected to. It will not be held against him unless it happens because he had missed a time bar. To avoid that calamity in international maritime affairs, the Comité Maritime International (CMI) thought it wise to endeavour to show what the respective time-bar rules are in various coun- tries and how they work. Following a request by Lloyd's of London Press, the CMI agreed to assist in the preparation of a second edition of Time-Barred Actions by the late Kaj Pineus.
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