For Defendant: Mr G. Ithier SC and Mrs Josephine Rivalland-Robert, Attorney-at-Law
In this matter, the Plaintiff, owner of the vessel called Kervor, claimed from the Defendant, as insurer thereof, the sum of Rs.4 million. For sake of clarity, the Plaintiff was insured by the Defendant against loss, damages, liabilities or expenses as set out in its policy.
The Defendant raised a plea in limine litis to the effect that the present action was time barred by a period of five years, pursuant to Article 1983-37 of the Civil Code Civil, which applied specifically to insurance contracts.
The Plaintiff argued that the action was an “action personnelle” and therefore, was subject to a ten-year limitation rather than five years as contended by the Defendant, pursuant to articles 2270 and 2271 of the Code. The crux of this point was grounded on the submission that the present action was based on a promise of payment.
The Plaintiff sought guidance from the decision of the Cour de Cassation, Chambre civile 1, du 3 octobre 1995, wherein the Cour de Cassation explained that despite the fact that the amount of the indemnity had been fixed by common agreement between the insured and the insurance company, that it was founded on an insurance contract and was therefore subject to the prescription period which in that case was one of two years.
Similarly, in Cour de Cassation, Chambre civile 1, du 16 Janvier 1996, it was held that a prior agreement as to the amount of “indemnité d’assurance” could not escape the “droit spécifique des assurances quant à la prescription”.
Applying the principles enunciated in the aforesaid judgments of la Cour de Cassation, the Court upheld the plea in limine and dismissed the claim against the Defendant with costs.