Lloyd's Maritime and Commercial Law Quarterly
THE TIME BAR REGULATIONS IN THE CMR CONVENTION
Johan Wetter
Advocate, Vinge och Ramberg, Gothenburg.
It is my intention in this article to deal with some of the various problems connected with the time bar regulations to take proceedings for a claim under the CMR Convention, i.e. the Convention on the Contract for the International Carriage of Goods by Road. Article 32 of this Convention states as follows:—
“1. The period of limitation for an action arising out of carriage under this Convention shall be one year. Nevertheless, in the case of wilful misconduct or such default as in accordance with the law of the court or tribunal seised of the case, is considered as equivalent to wilful misconduct, the period of limitation shall be three years. The period of limitation shall begin to run:
(a) in the case of partial loss, damage or delay in delivery, from the date of delivery;
(b) in the case of total loss, from the thirtieth day after the expiry of the agreed timelimit or where there is no agreed time-limit from the sixtieth day from the date on which the goods were taken over by the carrier;
(c) in all other cases, on the expiry of a period of three months, after the making of the contract of carriage.
The day on which the period of limitation begins to run shall not be included in the period.
“2. A written claim shall suspend the period of limitation until such date as the carrier rejects the claim by notification in writing and returns the documents attached thereto. If a part of the claim is admitted the period of limitation shall start to run again only in respect of that part of the claim still in dispute. The burden of proof of the receipt of the claim, or of the reply and of the return of the documents, shall rest with the party relying upon these facts. The running of the period of limitation shall not be suspended by further claims having the same object.
“3. Subject to the provisions of paragraph 2 above, the extension of the period of limitation shall be governed by the law of the court or tribunal seised of the case. That law shall also govern the fresh accrual of rights of action.
“4. A right of action which has become barred by lapse of time may not be exercised by way of counter-claim or set-off”.
This particular method of regulating the period of limitation for claims follows the provisions of art. 46 of the CIM Convention. The method is somewhat complicated and the application of the stipulations causes a lot of different problems.
It is important to note the wide scope of art. 32. It covers not only claims specifically arising out of the different articles of the CMR Convention but all claims in connection with a transportation governed by the CMR Convention. In this respect art. 32 is similar to art. 31 of the CMR Convention which concerns competent courts. Both Articles have the same wide scope. However, an agreement concerning freight forwarding in connection with an international road transport is not subject to these Articles as the CMR Convention is only applicable to agreements concerning carriage of goods (Cour de Cassation de France, Feb. 16, 1970 (1970) 5 E.T.L. 435). A trailer is considered as a means of transport and therefore the CMR Convention is not applicable to damages to a trailer. Accordingly, art. 32 cannot be applied to claims by the
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