Appeal Court Decision on the time bar regime applicable to direct action claims when the marine liability insurer has generally departed from the Insurance Contract Act (1989)

BAHR represented P&I insurer, Skuld in the Appeal Court in a dispute with Swissmarine SA and Gard regarding time bar. The Appeal Court concluded that Swissmarine's direct action claim against Skuld was time barred, thus overturning the decision from the District Court, but that Gard's recourse claim was not time barred.

The judgment is particularly interesting for discussing which time bar regime that applies to direct action claims when the liability insurer has generally departed from the Insurance Contract Act (1989) (ICA), which is allowed for marine insurers such as Skuld. The Appeal Court held that the ICA section 7-8 second paragraph exhaustively lists the mandatory provisions of the ICA when the assured is insolvent, and accordingly that section 8-6 second paragraph regarding time bar for claims under a liability insurance could be departed from in the insurance agreement,. The Appeal Court further held that Skuld had departed from the ICA, including section 8-6 second paragraph, in its Rules, that this had legal effect for the third party direct action claimant, Swissmarine and that the applicable time bar regime then was the general Limitation Act (1979). The Appeal Court did not however find it necessary to decide whether section 3 (contractual claims) or 9 (tort claims) applied to the direct action claim.

The judgment has been appealed by both Swissmarine and Skuld to the Supreme Court.