Japan - Time Bars
We hereunder briefly explain the time bar system under Japanese law, the basic concepts and the specific time limits for the respective main or ordinary claims in practice and in the shipping field.
As you will note, since the time bar system is rather complicated under Japanese law, the readers are required to specifically consult with Japanese lawyers in each case for more precise advice.Basic Concepts
There are two main time prescriptions ( "Jikou") under Japanese law, namely 10 year time bar under the Civil Code of Japan, and 5 year time bar under the Commercial Code of Japan
As the matters be complicated, there are many other time bars stipulated in the Civil Code, the Commercial Code and other special laws.
The time prescriptions run to count from when the Claimant comes to be able to exercise the claim ( "when excisable" ) and the claim will be time barred with the lapse of the time limit unless there occurs no incident interrupting the completion of the time bar and if the claimer relies on the time bar right.
The typical incident which interrupts the running and completion of the time bar is commencement of suit, time extension agreement, partial payment , recognition of the claim, conducts deem to waive the time bar limit, and others.
Apart from such usual time prescriptions ("Jikou"), there is another category of the time limit (" Joseki-Kikan") like one year time bar under Japan COGSA which is based on the Hague-Visby Rules.
The "Jikou" type time limit can be extended for another 6 months from the receipt of the demand if the Claimant send to a demand to the claimer in proper manners within the time limit before completion of the time bar but no further and if the claim is not settled within such 6 months, the Claimant needs to commence a suit or obtain a time extension agreement and otherwise the claim will be time barred.
The "Joseki-Kikan" type time limit cannot be extended for any period by such a demand and unless the Claimant commences a suit or obtain a time extension agreement within the claim will be time barred.Specific Time Limits for Respective Claims
We hereunder address for the specific time limits for main or ordinary claims in practice and in the shipping field.
We have hereunder listed up many of the time limits under Japanese law for your references and please pick up such as the Club may think necessary for the Members' information.
Again we point out that since the time bar system is rather complicated under Japanese law, the readers are required to specifically consult with Japanese lawyers in each case for more precise advice.Notes
- “ when exercisable” in below means usually the due date or when the cause of actions or the non-performance has arisen.
- There are various shorter time limits other than those listed up in below.
- The law reforms of the Civil Code and the Commercial Code are now under the way and the revisions and unification of the various time limits, particularly those under the current Civil Code have been discussed and it seems likely that new time limits will be provided in the Civil Code and others in the near future.
|Ordinary Claims (in Principle) such as sales price, loan, damages in contract, and damages in cancellation of contract||10 years from when exercisable||Civil Code|
|Other Property Rights Other than Claims and Ownership (in Principal)||20 years from when exercisable||Civil Code|
|Claims in Tort||3 years from when the claimant has known of damages and the tortfeasor or 20 years from the time when the tortious act has been made.||Civil Code|
|Claim based on Management of Affairs (Business) Without Mandate||10 years from the date of expenditure date:||Civil Code|
|Claims based on Unjust Enrichment||10 years from the date of unjust enrichment||Civil Code|
|Claims based on Product Liability||3 years from the time when the claimant has known of damages and the offender or 10 years from when the manufacturer has delivered the product.||Product Liability Act|
|Claims concluded by judgments||10 years from when the judgment has become final and concluded||Civil Code|
|Nullification based on fraud, compulsive act and others||5 years from when ratification can be made or 20 years from the contract||Civil Code|
|Seller’s liability for defects||One year from when the buyer has known of the defect||Civil Code|
|Contractor’s /Constructors liability for defects||One year from when the delivery of the object has been made or when the work has completed||Civil Code|
|Claims of persons engaged on design, construction and supervision of works||3 years from when the work completed||Civil Code|
|Claims for prices of products and commodities sold by producers, and wholesale and retail seller||2 years from when exercisable||Civil Code|
|Claims for freight||1 years from when exercisable||Civil Code|
|Wages and worker’s compensation||2 years from the payment date||Labour Standard Act|
|Retirement Allowance||5 years from the payment date||Labour Standard Act|
|Claims arising from commercial transactions||5 years from when exercisable||Commercial Code|
|Claims for damages based on non- performance of commercial obligations||5 years from when exercisable (in principle from when the no-performance has been made)||Commercial Code|
|Cancellation of commercial transactions||5 years from when the non-performance has been mad||Commercial Code|
|Claims based on bill of exchanges in principle||3 years from the due date (Remark: several exceptions of short time limits)||Bill of Exchange Act|
|Claims based on cheques||6 months after the expiry of the payment period of the cheque||Cheque Act|
Claims of company for damages against directors and others
Claims of directors and others of company against third parties
|10 years from when the cause of the claim occurs||Civil Code|
|Claims for insurance proceeds||3 years from when exercisable||Insurance Act|
|Claims for insurance premium||1 year from when exercisable||Insurance Act|
Remark: Claims other than listed in below are in principle 10 years or 5 years for claims in contract and 3 years for claims in tort as per the Civil Code or the Commercial Code as mentioned in above.
|Carrier’s liability for goods (Both ocean going and cabotage)||One year from the date of delivery of goods ( in case of total loss, from the date when the delivery should have been made)||Japan COGSA (Ocean Going)|
Commercial Code (Cabotage)
|Claims of owners against charterers, shippers and consignees such as freight and demurrage|
One year from the time when excisable
As for claims of the owners for hire against the time charterers under TC, it seems 5 years from when excusable
|Claim based on general average||One year from the time of completion of G.A. adjustment||Commercial Code|
|Claims by collision|
Claims for physical damages: One year from the time of the collision in principal
When all of the flag countries of the collided vessels are signatory for the Collision Convention 1910 (Japan is signatory for it)
|Salvage||One year from the salvage has been conducted||Commercial Code|
|Maritime Lien over ships||One year from when the maritime lien has occurred||Commercial Code|
|Carrier’s liability for goods (Ocean going)||One year from the date of delivery of goods ( in case of total loss, from the date when the delivery should have been made)||Japan COGSA|
|Third party’s liability for goods if Carrier further consigns the carriage to third party||3 months from the date when the Carrier has compensated for damages or a legal suit has been brought to the Carrier within the said one year time limit.||Japan COGSA|
Tsurusaki & Kobayashi
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QCR Winter 2018: Death of passenger on chartered vessel - When will the time bar be extended to three years under Athens Convention?
Mr Warner chartered a vessel operated by the defendant for the week 11 to 18 August 2012 for the purpose of diving. He died in a diving accident on 14 August 2012. The claimants were his widow and their under aged son, born in November 2011. The claim was lodged on 14 May 2015, more than two years but less than three years after the intended disembarkation, which was agreed to be 18 August 2012. The defendant argued that the claim was time barred.
China - Time Bars
The General Principles of Civil Law of China provides that a general 2-year time bar is applicable for civil claims (Art. 135, The General Principles of Civil Law). The time bar starts counting from the day on which the claimant knows or ought to know that his right is infringed (Art. 137, The General Principles of Civil Law). Under no circumstance should a People's Court support a claim which has exceeded 20 years from the date when the right is infringed.
Belgium - Time Bars
The rules on the time bar of civil actions are laid down in Book III, Title XX of the Belgian Civil Code ("BCC"). Specific time limits applicable to maritime and inland navigation are defined in the Belgian Maritime Law ("BML") incorporated in Book II, Title IX of the Belgian Code of Commerce