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InJurService LLP Calculating the Limitation Period

InJurService LLP Calculating the Limitation Period. of Insurance Claims in the Russian Maritime Law. When the Limitation Period Commences. ( Salvador Dal i . The Persistence of Memory . 1931). Abridged Limitation Period.

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InJurService LLP Calculating the Limitation Period

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  1. InJurService LLPCalculating the Limitation Period of Insurance Claims in the Russian Maritime Law

  2. When the Limitation Period Commences (Salvador Dali. The Persistence of Memory. 1931) Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  3. Abridged Limitation Period • Art. 409.1 of the Merchant Shipping Code of the Russian Federation: ‘The obligations arising from […] the marine insurance contract […] are limited to a two-year period.’ Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  4. The consequences of the application of the limitation period – nudumius • ‘The expiration of a period of limitation of actions, that a party has requested be applied, is a basis for the rendering of a decision by the court to dismiss an action’ (Art.199.2 par. 2 of the Civil Code of Russia). Pablo Veronese. Saturn (Time) and History. 1560-61. Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  5. Commencement of the Limitation Period • Art. 409 of the Merchant Shipping Code of Russia: ‘The said [limitation] period is calculated […]: 2) under the claims arising from marine insurance contract – from the date when the right of action accrues.’ Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  6. The Grounds for Doubt • When does the limitation period commence: • 1. From the date of the loss? • 2. From the date when the assured learns of the insurer’s refusal to settle the claim? Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  7. Key Issue • I. Is the right mature for enforcement following the occurrence of the conditions stipulated by the law? • II. Or does this right reach maturity following the claim of the assured, whereas the loss is but a necessary condition for the claim? Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  8. The Accrual of the Right of Action • The time of accrual of the right of action is, in substantive meaning, the time when the limitation period commences (the right that has matured to a mandatory stage). Leonardo da Vinci. Wise Man Studying Time. 1510 Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  9. Reason for Doubt • Art. 200.1 «Start of the Running of the Period of Limitation of Actions» of the Civil Code of Russia: • ‘The running of the period of limitation of actions starts from the day when a person knew or should have known of the violation of his right. Exceptions from this rule are established by the present Code and other statutes’. Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  10. Commencement of the Limitation Period • The obligation to pay the assured’s loss is an obligation which the period of performance is defined as the time of demand. Pietro Liberi. Time Being Overcome by Truth. c. 1665. Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  11. Commencement of the Limitation Period • Art. 200.2 par. 2 of the Civil Code of Russia: • ‘For obligations for which the period of performance is not defined or is defined as the time of demand, the running of the limitation of actions starts from the time when the right arises for the creditor to make a demand for performance of the obligation [...]’. Titian. The Allegory of Age.c. 1565–1570. Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  12. Limitation Period and Obligations with Forewarning • Art. 314.2 par. 2 of the Civil Code of Russia applies for establishing of the commencement of the limitation period for the obligations with ‘forewarning’. (Novitskiy, I. B. uses this term in: Limitation Period, M., 1954). I. B. Novitskiy Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  13. Limitation Period and Obligations With Forewarning • ‘In regard to the claims involving ‘forewarning’, the limitation period commences following the forewarning and the expiry of the ensuing grace period provided for the other party.’ (P. 173) Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  14. Limitation Period and Obligations with Forewarning • It is the ‘forewarning’ that allows the obligation to mature for enforcement – in M. A. Gourvich’s terms. M. A. Gourvich Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  15. Limitation Period and Obligations with Forewarning • A loan obligation with an unspecified repayment period is an obligation with forewarning. • Otherwise the limitation period of such an obligation could expire before the commencement of the period of performance. • Delict and insurance obligations do not belong to this category. Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  16. Art. 246 of the Merchant Shipping Code of Russia • ‘Under a contract of marine insurance the insurer for a specified payment (insurance premium) assumes the obligation to compensate the assured or a third person named in the contract (beneficiary) for the incurred loss when the risk specified in the contract of marine insurance (insured event) occurs’. Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  17. Art. 929.1 of the Civil Code of Russia • ‘Under a contract of property insurance one party (insurer) shall be obliged […] when the event ensues provided for in the contract (insured event) to compensate the other party (assured) or other person to whose benefit the contract was concluded (beneficiary) for losses caused as a consequence of this event […]’. Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  18. The Moment of Origin of the Insurer’s Obligation • The law specifies the moment when the insurer’s obligation accrues. • Under the Art. 246 of the Merchant Shipping Code of Russia the assured can bring a lawful action against the insurer following the moment of occurrence of insured event. • That is, the rule stipulated in the Art. 200.2. par. 2 of the Civil Code of Russia applies: the limitation period starts to run following the insured event. Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  19. ‘Everlasting Action’ • If the commencement of the limitation period were not linked to the insured event but, for example, to the demand, it could result in the possibility of a “everlasting action.” I. A. Akimov. Saturn Cutting Off the Cupid’s Wings. Allegory of Time Annihilating Love. 1802. Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  20. I. The Position of the Authoritative Doctrine • Commentary on the Civil Code of the Russian Federation, Part One (in 3 vols., vol. 1), 3rd ed. By Abova, T. E., Kabalkin, A. J., Uright; 2006 • Commentary on Art. 200 Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  21. II. The Position of the Authoritative Doctrine • Commentary on the Civil Code of the Russian Federation, Part Two, 4th ed./ Ed. O. N. Sadikov, M., Contract, Infra-M, 2003 • Commentary on Art. 966 by Sobakinskikh, A. V. Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  22. The Award of the Maritime Arbitration Commission re. Case No. 14/2006 • ‘Art. 200.2 par. 2 [of the Civil Code] provides that when the time of obligations is unspecified, the limitation period begins to run from the moment when the right arises with the creditor to present a demand concerning the performance of the obligation’. • ‘The Art. 929 of the Civil Code of Russia provides that a contract of property insurance binds the insurer to compensate the insured’s loss following the occurrence of the event stipulated by the contract (the insured event)’. Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  23. The Awards of the Maritime Arbitration Commission re. Cases No. 12/2007 and No. 13/2007 • ‘A direct corollary of the Art. 246 of Merchant Shipping Code of Russia and Art. 929 and 200.2 par. 2 of the Civil Code of Russia is that the material and legal essence of the right of action is the right to claim the insurance compensation from the insurer following the occurrence of the insured event. Thus the link between the start of the running of the limitation period and the occurrence of the insured event is due to the specific nature of the insurance commitment, its aleatory character’. • The Federal Arbitrazh Court of the Moscow District (FAC MD) upheld these awards. Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  24. Grace Period • Such understanding of the issue of commencement of the limitation period resolves the issue of the existence of the grace period, which starts to run following the demand (Art. 314.2 par. 2 of the Civil Code of Russia). Gerrit Dou.Still Life with Hourglass, Pencase, and Print. 1647. Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  25. Exception from Generalisation • Exemptions from the said generalisation may apply in cases where the insurer could not immediately learn of the occurrence of the insured event (Art. 200.1 of the Civil Code of Russia). François Lemoine. Saturn (Time) Saving Truth from Falsehood and Envy. 1737. Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  26. The Position of the State Courts • The practice of the Russian state courts also tends to this position. • The cassation courts relate the running of the limitation period to the occurrence of the insured event or to the time when the assured discovers it. Agostino di Duccio. Saturn (Time). c. 1456. Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  27. Selected Decisions of Cassation Courts • FAC MD 13.11.07 # KG-A40/10622-07 • FAC MD 31.07.07 # KG-A40/7266-07 • FAC MD 25.06.07 # KG-A40/5845-07 • FAC MD 07.02.07 # KG-A40/13594-07 • FACWSD 15.05.07 # F04-2742/2007 (33954-A45-8) • FACUD 20.09.07 # F09-7250/07-S5 • FACWSD 09.11.07 # A56-42308/2006 Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

  28. Similar Decision of the English Law • An indemnitor is held to promise to keep the indemnitee free from the specified loss or expense. On the occurrence of such loss or expense, therefore, the indemnitor is in breach of it primary obligation. • Court of Appeal. Firma C – Trade SA v Newcastle Protection & Indemnity Association (The Fanti) (1991). Hill Dickinson. Moscow Seminar, 2010 - InJurService LLP

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