Lloyd's Maritime and Commercial Law Quarterly
ASPECTS OF THE LIMITATION OF ACTIONS UNDER CMR
A. C. Hardingham
B.A.(Oxon.), Solicitor.
Some of the provisions of art. 32 of CMR,1 relating to the limitation of actions, have been the subject of two recent English decisions at first instance. The facts giving rise to those decisions were by no means unique, and for that reason the decisions are worthy of commentary. The cases in question were Moto Vespa S.A. v. MAT (Britannia Express) Ltd. and Others,2 a decision of Mocatta, J., and Muller Batavier Limited v. Laurent Transport Co. Ltd.,3 decided by May, J.
The material provisions of art. 32 are 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”.
Non-delivery of damaged goods
In the Moto Vespa case, two large lathes were to be carried from Birmingham in England to Madrid in Spain. What the Judge described as a “disastrous accident” befell the trailer carrying the lathes as it neared Madrid, and the goods were thereupon transferred to another vehicle for on-carriage to the contractual destination. On arrival,
1 The Convention on the Contract for the International Carriage of Goods by Road, scheduled in its English text to the Carriage of Goods by Road Act 1965.
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