Portugal - Time Bars

Date: 31/01/2017
Author: Mateus Andrade Dias
Source: Andrade Dias & Associados

Last updated November 2018

Types of time bars: prescription / caducity

Types of time
bars (Civil and
Commercial law
claims)
  1. Prescription: this type of time bar cannot be extended by agreement between the claimant and the respondent and neither can it be extended by way of a unilateral statement of the respondent purporting to extend time.
    This type of time bar can only be interrupted by: (i) express, or tacit, admission of the claim; or (ii) commencement of proceedings in court with actual service of court papers in the respondent. The court proceedings can be either: (i) proceedings to obtain a judgment via presentation of detailed points of claim or; (ii) proceedings started merely to interrupt time bar via a short court application that needs to be served on the respondent.
     
  2. Caducity: this type of time bar can be extended by agreement between the claimant and the respondent. It can also be extended by means of a unilateral statement of the respondent.
    It can be interrupted by: (i) an express, or tacit, admission of the claim; or (ii) commencement of proceedings in court. The service of court papers on the respondent is not required to interrupt a caducity time bar being sufficient to interrupt time to file proceedings in court. 
Consequences The Prescription and Caducity time bars have the same consequences: the respondent or debtor or defendant will be released from liability vis-à-vis the claimant if the limitation period elapses without interruption of time.
Extensions Solely the caducity time bar can be lawfully and validly extended, either by agreement between claimant and respondent, or by unilateral statement of the respondent. Prescription time bars cannot be extended. 
Any extension, when admissible, i.e., caducity, needs to be carefully drafted and agreed between the parties, failing which it may be refuted by the grantor of the extension and be considered null and of no effect. To be properly granted and enforceable, the extension may need to involve a written agreement, a clear identification of the claim and a clear identification of the parties in respect of which an extension is being granted.
Criminal and
other
contravention
offences time
bars
Criminal or contravention limitation periods to start criminal or contravention offences proceedings shall be interrupted differently than the civil law limitation periods.
The interruption of the time bar in criminal and contravention time bars will involve normally the formal service of papers on the criminal (or on the contravention) defendant informing him that a criminal or a contravention proceeding has been started or, instead, will involve the filling of formal written charges against the criminal or contravention respondent. There are numerous different time bars for the various criminal and contravention offences. 

Most relevant time bars:

Contract claims

General rule for contractual claims: the default time bar is of 20 years that need to be counted as from the date of the breach of contract. This default time bar duration shall not apply when a lower time bar is expressly stated for a particular special contract that may be at stake in the factual situation. The general default time bar of 20 years is a prescription time bar.

Claims for physical loss or damage to cargo arising out of contracts for the carriage of goods by sea ruled under the Hague Rules: 1 year counted as from the discharge of the cargo or from the date said discharge should have happened. This particular time bar is a caducity time bar. In case the carriage is a door-to-door carriage (and not a port-to-port carriage), time needs to be counted from the date of delivery of the cargo or from the date delivery should have happened.

A shipper´s or consignee´s delay claim against the carrier or the carrier´s claims pertaining to freight, demurrages and other carriage costs will be subject to a 20 years general prescription time bar.

Claims arising out of the carriage of goods by sea not ruled under the Hague Rules: 2 years counted as from the moment the claimant became aware of the existence of his claim. It is not entirely certain if this time bar is a prescription or a caducity time bar and thus it should be treated as a prescription time bar demanding commencement of proceedings to obtain a judgment and service of papers. 

Bailment contract claims: 20 years counted as from the date of the breach of the contract. It is a prescription time bar.

Freight forwarders liability claims: 10 months counted as from the date of conclusion of the service. It is a prescription time bar.

Carriage of goods by road: 1 year counted as from the date of delivery of the cargo to the consignee or, instead, counted from the date of delivery of the cargo to the carrier, in case the cargo is not delivered to the consignee. It is a prescription time bar.

Collision liabilities ruled under the 1910 Collision Convention: 2 years counted as from the collision event; It is caducity time bar.

Collision liabilities ruled under the Commercial Code (Portuguese internal law) and not by the 1910 Collision Convention: 3 years counted as from the date of the event; It is a prescription time bar.

Ship building or ship repair contracts: known damages/defects (two years from delivery of the vessel).

Tortious/Liability in tort claims

The time bar for claims arising out of liability in tort is of 3 years counted from the date of the negligent or intentional act or omission causing the harmful event. This time limit can be extended in case the harmful event constitutes also a criminal offence and when the prescription time bar for the criminal proceeding is longer in duration.

Latent damage
claims for ship
building or ship
repair contracts

If the damage/defect is only discovered after delivery of the vessel, the claim may be brought within 2 years as from the moment the claimant’s obtained knowledge of the existence of the damage / defect.

Criminal and
other
contravention
offences
  1. (i) the particular criminal offences of: contraband; contraband of circulation; contraband of goods under a conditioned circulation regime onboard ships; fraud in the transport of goods under a suspension regime; fraudulent introduction of goods into consumer markets: are all subject to a 5 year time bar to proceed with criminal proceedings.

    (ii) If the offence is a contravention one, the limitation period to bring contravention proceedings is of 5 years in case of contraband, contraband of circulation, fraud in the transport of goods and fraudulent introduction of goods into consumer markets.

  2. Other criminal customs offences such as: (i) breach of customs warranties (ii) breaking of customs seals or marks: are subject to a 5 year time bar to commence criminal proceedings.

  3. Other customs contravention offences: (i) refuse to deliver, exhibit or present statements or other documents or refuse to show goods to the authorities investigating criminal or contravention offences (ii) lack or delay in the presentation of statements or documents evidencing values or quantities contained in documents of transport within the imperative time limit (iii) intentional breach of the cooperation duty with the authorities by intentional inaccuracy, errors or omissions on the documents of transport: are subject to a 3 year time bar to commence contravention proceedings.

  4. Pollution offences: intentional or negligent release of oil or of other harmful substances to the environment. If it constitutes a criminal offence: time bar of up to 10 years to institute criminal proceedings. If it constitutes a mere contravention offence: time bar of 5 years to institute contravention proceedings.

Mateus Andrade Dias
Email: mateus@diaslawyers.com
00351 91 613 49 79

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About the Authors

Mr. Mateus Andrade Dias – Partner

Graduate of the Lisbon Catholic University Law School. Maritime Law Short Course by the University of Southampton. Practice as lawyer at Abreu & Marques Vinhas & Associados. Practising as a lawyer in shipping and maritime law matters since 2004. Member of the Portuguese Bar Association. Mateus is fluent in English and Spanish.

Email: mateus@diaslawyers.com
00351213468134

Maria Helena Ribeiro

P&I Correspondent with Pinto Basto since 1980, and head of the P&I department in Pinto Basto. Vast experience as a P&I Correspondent having coordinated over the years four high profile groundings in Portugal. Also Branch Manager of Agency Department of Pinto Basto Group since 2000. Maria is fluent in Spanish and English.

Email: maria.helena@pintobasto.com
 

Vera Mexia

P&I Correspondent with Pinto Basto since 2005, in the Lisbon Office Graduate of the Lisbon Catholic University Law School. Maritime Post Graduation 2007 with Lusófona University in Portugal Vera is fluent in English and Spanish.

Email: vera.mexia@pintobasto.com


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