Maritime Law and Practice in China

Liang Zhao and Lianjun Li

Document

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CHAPTER 17 Applicable law and time limits

17.1 The issues of applicable law and time limits are commonly raised in Chinese judicial practice. Besides the principle of party autonomy, which is recognised by Chinese law, the CMC 1992 and the Law on Application of Laws to Foreign-Related Civil Relations 2010 (Law on Application of Laws 2010) apply to the issue of applicable law if there is no agreement on the applicable law. Time limits for maritime claims are mainly governed by the CMC 1992 and the General Principles of Civil Law 1986, as amended in 2009.

Applicable law

Party autonomy and closest connection

17.2 The principles of party autonomy and closest connection in Chinese law are embodied by the CMC 1992, the Contract Law 1999 and the Law on Application of Laws 2010. The CMC 1992 provides that the parties to a contract may choose the law applicable to such contract, unless the law provides otherwise. Where the parties to a contract have not made a choice, the law of the country having the closest connection with the contract apply.1 17.3 Similarly, Contract Law 1999 provides that the parties to a foreign-related contract may choose those laws applicable to the resolution of contract disputes, unless this is otherwise stipulated by law. Where the parties to a foreign-related contract fail to make such a choice, the laws of the country having the closest connection with the contract apply.2 Of course, Contract Law 1999 does not prohibit party autonomy for contracts without foreign-related issues. Although Contract Law 1999 allows for the parties to a contract to choose laws for dispute resolution, such laws chosen by the parties must be consistent with and the same as the applicable law of the contract. 17.4 The Law on Application of Laws 2010 reaffirms the principle of party autonomy for foreign-related contracts. It also provides that where the parties have made no choice of applicable law, the laws of the habitual residence of the party whose performance of obligations best reflects the characteristics of the contract or the laws of the country having the closest connection with the contract shall apply.3 It provides one more choice of applicable

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law found by court besides the laws of the country having the closest connection with the contract. 17.5 In Chinese judicial practice, the principle of party autonomy in the CMC 1992 applies to maritime contracts governed by the CMC 1992, e.g. charterparties, salvage contracts, towage contracts and marine insurance contracts. For contracts not governed by the CMC 1992 but still considered as maritime contracts with foreign elements, e.g. shipbuilding contracts, ship agency contracts, ship management contracts, the principles of party autonomy and closest connection under the Contract Law 1999 and the Law on Application of Laws 2010 shall apply.

Intention of the parties

17.6 The choice of applicable law must be within the intention of the parties to a contract. In American President Liners Co Ltd v Feida Electric Appliance Factory, Feili Company and Great Wall Company,4 the shipper claimed against the carrier for delivery of goods without the presentation of a bill of lading. The Guangzhou Maritime Court denied the applicable law clause and held that Chinese law applied to the dispute according to the principle of closest connection.5 It was upheld in the court of appeal.6 However, in the retrial of the case, the SPC pointed out that such a dispute was a contractual dispute and the applicable law in the clause paramount on the reverse side of the bills of lading in dispute should be recognised as the governing law of the bills of lading. 17.7 The relevant intention of the parties must be the intention of the contractual parties to a contract, and not a third party to the contract. In Baoding Condiment Co Ltd and Baoding Tianpeng Import & Export Group Co Ltd v Merzario (Hong Kong) Ltd and Mediterranean Shipping Company SA,7 the bills of lading holders claimed against the carrier for delivery of goods without the bill of lading. It was found that the Hong Kong law was the applicable law on the bill of lading. However, the Tianjin Maritime Court denied the application of Hong Kong law as the applicable law in this dispute. It was pointed out that the bills of lading holders were not the original parties to the contract, as evidenced by the bills of lading, and thus the agreement of the applicable law was not the intention of the bills of lading holders. Thus the applicable law on the bills of lading should not bind the bills of lading holders. Consequently, Chinese law applied to the dispute according to the principle of closest connection. This judicial practice seems inconsistent with shipping practice, in which the bills of lading holders shall have accepted all terms and conditions on the bills of lading when the holders accepted the bills. 17.8 In a dispute over the delivery of goods without the presentation of a bill of lading, Chinese maritime courts may also deny the applicable law on the bill of lading because the bill of lading is a standard form of contract. In Baron Motorcycles Inc v Awell Logistics Group Inc,8 the consignee of the bill of lading, who was holding the bill of lading, claimed against the carrier for the delivery of goods without the bill of lading. It was found that

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US law applied to the bill of lading. However, the Shanghai Maritime Court denied the application of US law. It was held that the bill of lading in dispute was a standard form with standard clauses (including the US law clause), and the standard clauses were not the intention or agreement of the parties. Therefore, Chinese law applied according to the principle of closest connection.9 However, the decision was reversed in the court of appeal. 17.9 In Baron Motorcycles Inc v Awell Logistics Group Inc, the court of appeal found that the carrier named the claimant as the consignee on the bill of lading upon the request of the consignee. The Shanghai High People’s Court held that the bill of lading in dispute should bind the consignee and the carrier and, therefore, the US law should apply. It is, however, unclear whether the applicable law on the bill of lading should apply if the consignee is not named on the bill of lading as the consignee at his request. In other words, the applicable law on the bill of lading may not apply where the intention of the parties is not found. The Shanghai Maritime Court continued the judicial practice of denying the applicable law clause on the standard bill of lading.10 This judicial practice may cause practical problems because all bills of lading in shipping practice are standard forms with printed terms and conditions on the reverse side of the bills or short form bills of lading without details of the terms and conditions. In such circumstances, no applicable law clause will be considered as valid unless it is proved that the terms and conditions of the bill of lading were made within the intention of the parties.11

International law and public policy

17.10 According to the CMC 1992, if any international treaty concluded or acceded to by China contains provisions differing from those contained in the CMC, the provisions of the relevant international treaty apply, unless the provisions are those on which China has announced reservations. Furthermore, international practice may be applied to matters for which neither the relevant Chinese laws nor any international treaty concluded or acceded to by China contain any relevant provisions.12 However, the application of foreign laws or international practices pursuant to the provisions of the CMC shall not prejudice the public interests of China.13 There is no concept of public policy in the CMC or other Chinese statutory laws, although Chinese maritime courts may examine whether an agreement of applicable law on the bill of lading prejudices the public interests of China.14 In Chinese judicial practice, a liberty clause entitling the carrier to deliver goods without the original straight bill of lading may be considered as prejudicial to China’s interests because it infringes the relevant provisions of the CMC.15

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Statutory applicable law

17.11 Under the CMC 1992, the law of the flag State of the ship shall apply to the acquisition, transfer and extinction of the ownership of the ship.16 The law of the flag State of the ship shall apply to the mortgage of the ship. The law of the original country of registry of a ship shall apply to the mortgage of the ship if its mortgage is established before or during its bareboat charter period.17 The law of the place where the court hearing the case is located shall apply to disputes over maritime liens.18 This means that when Chinese maritime courts hear the case of maritime liens, Chinese law will apply. 17.12 The law of the place where the infringing act is committed shall apply to claims for damages arising from the collision of ships. If the collision of ships occurs on the high seas, the law of the place where the court hearing the case is located applies. In other words, Chinese law shall apply to claims for damages arising from the collision of ships on the high seas in Chinese maritime courts. However, if the colliding ships have the same nationality, no matter where the collision occurs, the law of the flag State shall apply to claims against one another for damages arising from such collision.19 17.13 The law where the adjustment of general average is made shall apply to the adjustment of general average.20 However, the parties in dispute of general average may agree to apply foreign laws to the adjustment in China. The law of the place where the court hearing the case is located shall apply to the limitation of liability for maritime claims.21 This means that Chinese law shall apply if Chinese maritime courts have the jurisdiction of the dispute over the limitation of liability for maritime claims.

Time limits for maritime claims

Time limits for carriage of goods claims

17.14 Under the CMC 1992, the limitation period for claims against the carrier with regard to the carriage of goods by sea (excluding charterparties) is one year, commencing from the date on which the goods were delivered or should have been delivered by the carrier.22 According to the judicial interpretation of the SPC, the limitation period for the carrier’s claims against the shipper, consignee or bill of lading holder is also one year, commencing from the date on which the carrier knew or should have known that his right had been infringed.23 In Guanfeng Shipping Co Ltd v Liang Zhaoxiong,24 the time limit for the carrier’s claim for the non-payment of freight was one year, commencing from the date when the last payment became due.

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17.15 If the goods at the port of discharge were not taken by cargo interests, the carrier may claim against the shipper for damages thus caused. However, the one-year time limit does not commence from the date on which the carrier knew that no one would take the delivery of the goods. In COSCO Container Lines Co Ltd v Hunan Jiali International Trade Co Ltd,25 the carrier claimed against the shipper for the costs and damages in the port of discharge because the consignee did not take delivery of the goods. The goods arrived at the port of discharge on 25 August 2007. According to the CMC 1992, the carrier may exercise a lien on the goods if any due payment is not paid to the carrier. If the goods under lien have not been taken delivery of within 60 days from the next day of the ship’s arrival at the port of discharge, the carrier may apply to the court for an order on selling the goods by auction.26 Therefore, the one-year time limit commenced from the date 25 October 2007. 17.16 Furthermore, the SPC interpreted that the limitation period for shipper and consignee’s claims against the carrier with regard to the coastal and inland water carriage of goods and for carrier’s claims against shipper and consignee was one year, commencing from the date on which the goods were delivered or should have been delivered by the carrier.27 Although these judicial interpretations of the SPC are not real interpretations of law because there is no relevant law providing for the basis of interpretation, Chinese maritime courts apply these judicial interpretations in judicial practice. 17.17 The limitation period for claims with regard to charterparties including voyage charters, time charters and bareboat charters is two years, commencing from the date on which the claimant knew or should have known that his right had been infringed.28 If the claim concerns damage to goods, the limitation period shall commence from the date of the incident causing damage to the goods.29 If the claim concerns the payment of hire, the limitation period shall commence from the date of the last payment of hire.30

“Should have been delivered”

17.18 In judicial practice, if the delivery date has been agreed in a contract for carriage of goods by sea, but the goods are not actually delivered, the agreed date is the date that the goods should have been delivered as agreed.31 If the goods were not actually delivered, it is necessary to determine when the goods should have been delivered for the commencement of the time limit in claims for carriage of goods. In Shanxi Xinghuacun International Trade Co Ltd v Airsea Worldwide Logistics Ltd (Xinghuacun v Airsea),32 the SPC interpreted that the date that the goods should have been delivered meant a reasonable date on which the goods carried by the carrier to the port of destination in a normal voyage were ready for delivery and the bill of lading holder could take delivery of the goods. The SPC clarified

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two conditions that would commence the time limit: when the delivery is ready, and when taking delivery is also ready. Therefore, where the bill of lading holder was able to take delivery of goods that were ready for delivery but did not take such a delivery, the commencement of the one-year time limit should not be affected by the bill of lading holder’s refusal to take the goods. In shipping practice, a free storage period is always agreed and the commencement of the one-year time limit may start from the date of expiry of the free storage period if the two conditions in Xinghuacun v Airsea are satisfied.33 17.19 In judicial practice, if the goods are claimed by the shipper to whom the bill of lading is returned, the time limit for the shipper’s claim against the carrier shall commence from the date when the goods are ready for delivery to the bill of lading holder. In China National Packaging Import & Exports Company Shandong Branch v Hecny Transportation Ltd,34 the shipper claimed against the carrier for delivery of goods without presentation of the bill of lading when he received the returned bill of lading from banks. The Qingdao Maritime Court held that the time limit should commence from the date when the goods were ready for delivery and when the shipper claimed delivery of the goods from the carrier.35 However, the Shandong High People’s Court reversed the decision and held that the time limit should commence from the date when the goods were ready for delivery in the port of discharge. Obviously the decision of the court of appeal was inconsistent with the decision of the SPC in Xinghuacun v Airsea. One of the conditions to commence the time limit in Xinghuacun v Airsea is that the bill of lading holder is ready to take the delivery of the goods. If the claim is from the shipper rather than the bill of lading holder as a third party to the bill of lading, the time limit shall commence from the date when the goods are ready for delivery and the shipper is ready to take the delivery of the goods. The decision of the Qingdao Maritime Court should be upheld.

Time limits for action for indemnity in carriage claims

17.20 Within the one-year limitation period or after the expiration thereof for claims of carriage of goods by sea excluding charterparties, if the person allegedly liable has brought a claim of recourse against a third person, the limitation period of the recourse action is 90 days, commencing from the date on which the person claiming for the recourse settled the claim, or was served with a copy of the process by the court handling the claim against him.36 In judicial practice, if the time limit for recourse action commences from the date on which the person claiming for the recourse was served with a copy of the process by the court handling the claim against him, the recourse action may have to stay to wait for the result of the original claim. It is also possible that the person claiming for the recourse may not be held liable in the original claim. Due to this, the SPC has interpreted that the time limit for recourse action commences from the date on which the person claiming for the recourse received the decision from the court handling the claim against him holding that he was liable in the claim.37

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17.21 The time limit for recourse action may be contrasted with the relevant rule in the Hague Visby Rules. Article III, rule 6bis of the Hague Visby Rules provides that “[A]n action for indemnity against a third person may be brought even after the expiration of the year provided for in the preceding paragraph38 if brought within the time allowed by the law of the Court seized of the case. However, the time allowed shall be not less than three months, commencing from the day when the person bringing such action for indemnity has settled the claim or has been served with process in the action against himself.”39 17.22 It can be seen from the relevant provisions that the time limit for recourse action in the CMC 1992 is 90 days maximum, but is three months minimum in the Hague Visby Rules. It is unclear why the CMC 1992 provides such a short time limit for recourse action, but the consequence is that the claimant in recourse action has a very short time to raise the recourse action in comparison with the time limit for recourse action under the Hague Visby Rules. For example, if a charterer who was held liable for the damage to the goods wants to bring up a claim of recourse against the shipowner, the time limit for his claim is 90 days, commencing from the date on which he settled the claim, or was served with a copy of the process by the court handling the claim against him under the CMC 1992, but the time limit is six years under the English Law, in which the Hague Visby Rules are adopted. 17.23 The 90-day time limit for recourse action under the CMC 1992 is a special time limit for claims in carriage of goods by sea. It does not therefore apply to the time limit for the insurer’s right to subrogation of litigation.40 In PICC P&C Co Ltd Beijing Branch v Dalian Glorious Ocean International Logistics Co Ltd and New Orient Shipping Ltd,41 it was interpreted by the Liaoning High People’s Court that the one-year time limit and the 90-day time limit are for the same dispute in the carriage of goods by sea. The insurer’s position is the same as the assured after compensation. Therefore, only the one-year time limit applies to the insurer’s claim against the third liable party although his claim may in practice be called a recourse action. 17.24 The 90-day time limit for recourse action also does not apply to the recourse action in tort. In Nippon Yusen Kabushiki Kaisha v Quanzhou Port Group Co Ltd,42 the carrier, after compensating the cargo interests for the damage to the goods, claimed against the stevedore company who damaged the goods during operation. Because there was no contract for the loading and/or discharge operation between the carrier and the stevedore company, the Xiamen Maritime Court held that it was a tort claim and the time limit should be two years. However, if there was a contractual relationship between the carrier and the stevedore company, the carriage may bring the recourse action against the stevedore company and the 90-day time limit may apply. 17.25 The typical recourse action is the NVOCC’s claim against the ocean carrier for his liability to the shipper on the NVOCC’s bill of lading.43 In Beijing Profit Sail International

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Express Co Ltd Shanghai Branch v Shanghai AMASS International Freight Co Ltd,44 the NVOCC was held liable for damages to the goods to the shipper on the NVOCC’s bill of lading. The NVOCC, after receiving the judgment against him, brought a recourse action for the same damages to the goods against the ocean carrier who had issued the ocean bill of lading on which the NVOCC was the shipper. The 90-day time limit for recourse action applied to the NVOCC’s claim against the ocean carrier. This time limit also applies to the recourse action relating to the original claims in multimodal carriage.45 17.26 In judicial practice, even where a recourse action is not time barred, a recourse action may still not be supported by Chinese courts if the time limit for the original claim has been time barred. In Marittima SPA v Ningbo Ocean Shipping Co Ltd and Ningbo Shun-zhou Shipping Co Ltd,46 the claimant in the recourse action settled the dispute with cargo interests in Italy and brought a recourse action against the sub-carrier as the liable party in the Ningbo Maritime Court. It was found that the recourse action was brought within the 90-day time limit, commencing from the date on which the claimant settled the claim in Italy. However, it was also found that the claim against the claimant in Italy had been time barred although the dispute was eventually settled. The Ningbo Maritime Court pointed out that the settlement of dispute by the claimant after the time limit in the original claim had actually infringed the interests of the sub-carrier in the recourse action. Therefore, the claimant’s recourse action could not be supported despite it being not time barred. 17.27 Although both the CMC 1992 and the SPC’s judicial interpretation have clarified on the issue of the time limit for recourse action in carriage of goods by sea, some Chinese maritime courts did not comply with the law and judicial interpretations. In China Container Line (Shanghai) Ltd v Shanghai Guanyun Freight Forwarding Co Ltd,47 the freight forwarder was held liable to the ocean carrier for the detention charge for the extended use of the containers in another action. The freight forwarder brought the recourse action against the shipper who was liable for the detention of containers. The Shanghai Maritime Court held that the one-year time limit should apply to the freight forwarder’s recourse action against the shipper.

Time limit for container detention claim

17.28 When the container goods arrive at the port of discharge, the containers may be detained if no one takes delivery of the goods from the containers. In this circumstance, the carrier may claim against the shipper or other merchants for the damage from the detention of the containers. The difficulty in practice is the determination of the commencement of the time limit. The key point of this difficulty is the understanding of the carrier’s right in his claim, namely the entitlement of the damage for detention of containers. In A.P. Moller-Maersk A/S v Shanghai XEN Freight Agency Ltd and Shanghai XEN Freight Agency Ltd Shenzhen Branch (Maersk v XEN),48 the containers with the goods were detained at the

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port of discharge because nobody took delivery of the goods. The detention charge for the extended use of containers was calculated from 1 March 2010. On 30 March, the shippers agreed to pay the detention charge but did not actually pay for it. On 28 February 2011, the local customs informed the carrier that the goods had been auctioned. The carrier claimed against the shippers for the detention charge for the extended use of containers on 27 February 2012 at the Guangzhou Maritime Court. It was held that the carrier’s claim was within the one-year time limit.49 The Guangzhou Maritime Court pointed out that the shipper’s infringement had ceased when the goods were sold by the local customs and the time limit should commence when the infringement had ceased, namely on 28 February 2011. Therefore, the carrier’s claim on 27 February 2012 was not time barred. The shippers appealed but the appeal was dismissed.50 17.29 The understanding of the Guangzhou Maritime Court in Maersk v XEN is obviously inconsistent with the SPC’s judicial interpretation, which provides that the time limit for such claims is one year, commencing from the date on which the carrier knew or should have known that his right had been infringed.51 So, the time limit in Maersk v XEN should commence from the date when the carrier knew or should have known that his right had been infringed by the shippers, not the date when the infringement had ceased. This inconsistent understanding seems common in judicial practice. In Wanhai Lines Pte Ltd v Global Express Logistics (Xiamen) Co Ltd Shanghai Branch,52 the containers were detained until container devanning. The Shanghai Maritime Court held that the one-year time limit for the carrier’s claim for the detention charge commenced from the date when the empty containers were returned to the container yard and the detention charge was consequently confirmed. However, this judicial practice was changed by the SPC. 17.30 The shippers in Maersk v XEN applied to the SPC for a retrial of the case. The SPC pointed out that the carrier knew or should have known that his right had been infringed when the detention charge started on 1 March 2010. Therefore, the carrier’s right of claim for the detention charged commenced from that day, and not the date when the infringement had ceased. Whether the detention charge could be finalised would not affect the carrier’s title to sue. In this case, the time limit was discontinued when the shippers agreed to pay the detention charge on 30 March 2010. Therefore, the SPC held that the one-year time limit of the carrier’s claim for the detention charge for the extended use of containers should commence from 30 March 2010 and thus the carrier’s claim on 27 February 2012 was time barred. 17.31 The SPC’s decision in Maersk v XEN seems consistent with the SPC’s judicial interpretation for the commencement of the one-year time limit for the carrier’s claim in relation to the carriage of goods by sea. However, there is a serious misunderstanding of the time limit for container detention claims in the SPC’s decision in Maersk v XEN. It relates to the nature of the claim for the detention charge for the extended use of the container. According to the SPC’s decision in Maersk v XEN, the nature of the detention charge is an infringement of the carrier’s right. On this basis, the time limit shall commence when the

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detention charge starts, namely when the carrier’s right is infringed. However, it must be pointed out that the nature of the detention charge is the agreed charge between the carrier and the cargo interests. Like the demurrage in the voyage charter, the carrier agrees to the extended use of his containers, but charges for such detention. The carrier’s entitlement of the detention charge is infringed only when the cargo interests fail or refuse to pay the detention charge as agreed. Therefore, the one-year time limit of the carrier’s claim for the detention charge should commence when the carrier knows or should have known that payment of detention charge is due. Applied to the facts, the earliest date of the commencement of the time limit in Maersk v XEN was 28 February 2011 if the payment of detention charge was due immediately after the container devanning, and the commencement date of the time limit may be later than that date if there should be a reasonable period for the payment of the detention charge in shipping practice. Furthermore, the SPC in Maersk v XEN held that even if the detention charge could be finalised, the carrier’s title to sue would not be affected. However, if the containers are still detained when the carrier raises his claim, how much should the carrier claim? In judicial practice, a claim may be rejected by Chinese maritime courts if the amount of claim is not confirmed.53 So, the carrier’s claim for the detention charge will be affected if the detention charge is not finalised.

Time limit for claims of delivery of goods without the presentation of a bill of lading

17.32 In Chinese judicial practice, a claim for damage caused by delivery of goods without the bill of lading may be raised on a contractual basis or tortious basis. The time limits for those two types of claim are the same, which is a one-year time limit according to the SPC’s judicial interpretation, although the general time limit for claims in tort is two years.54 Where the bill of lading holder files an action on the ground that the carrier delivers goods without the original bill of lading, the one-year time limit shall apply commencing from the date of delivery of goods by the carrier. If the bill of lading holder files an action involving the claim in tort on the ground that the carrier and a person taking delivery of the goods without the original bill of lading jointly commit the act of delivery of goods without the bill of lading, the same one-year time limit shall apply.55 Of course, the bill of lading holder may claim against only the carrier in tort although he must prove the joint liability of the carrier and the person taking the goods without the bill of lading.56 17.33 If the claim for damages due to the delivery of goods without the bill of lading is not against the carrier, but other parties who are responsible for such a delivery, the one-year time limit does not apply. In Hyosung (HK) Ltd v China Marine Shipping Agency Co Ltd Fangchenggang Branch and Others,57 the bill of lading holder claimed against the agent of the carrier, customs agent and the guarantor of delivery for the damages due to the delivery of goods without the bill of lading. The SPC held that the one-year time limit

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should apply to the carrier’s agent only when the agent proved that his activity was within the authority of the carrier, namely the carrier’s agent was authorised to deliver the goods without a bill of lading. Otherwise, the two-year time limit under the General Principles of Civil Law 1986, as amended in 2009, applies.58 The SPC also held that the same two-year time limit should apply to the claim against the customs agent and the guarantor of delivery.

Time limit for multimodal carriage and freight forwarding claim

17.34 It was previously understood in Chinese judicial practice that the one-year time limit applied to the claims on multimodal carriage because the provisions regarding multi-modal carriage in the CMC 1992 are within the chapter of carriage of goods by sea.59 This understanding has been changed. In China Pacific Property Insurance Co Ltd Zhejiang Branch v COSCO Container Lines Co Ltd,60 the Shanghai Maritime Court clarified that the CMC 1992 contains the provisions of liability and limitation of liability regarding the multimodal carriage but does not provide a time limit for multimodal carriage claims. Therefore, the two-year time limit in the General Principles of Civil Law 1986, as amended in 2009 applies to the multimodal carriage claims. It was also clarified by Zhejiang High People’s Court in Wenzhou Dongfeng Transport Co Ltd v Shanghai Asian Development International Trans Pudong Co Ltd and Others that a two-year time limit should apply because the multimodal carriage includes but is not limited to ocean carriage.61 The two-year time limit from the General Principles of Civil Law 1986, as amended in 2009, also applies to freight forwarding claims.62

Time limits for carriage of passengers’ claims

17.35 The limitation period for claims against the carrier with regard to the carriage of passengers by sea is two years, calculated respectively as follows:63

(1) Claims for personal injury: commencing from the date on which the passenger disembarked or should have disembarked;
(2) Claims for death of passengers that occurred during the period of carriage: commencing from the date on which the passenger should have disembarked; whereas those for the death of passengers that occurred after the disembarkation but resulted from an injury during the period of carriage by sea, commencing from the date of the death of the passenger concerned, provided that this period does not exceed three years from the time of disembarkation.
(3) Claims for loss of or damage to the luggage: commencing from the date of disembarkation or the date on which the passenger should have disembarked.

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Notwithstanding the above time limits in the CMC 1992, the Athens Convention provides that the period of limitation may be extended by a declaration of the carrier or by agreement of the parties after the cause of action has arisen. The declaration or agreement shall be in writing.64

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