Demurrage time bar. Do documents and claim have to come together?

 

Following a recent decision on a time charter time bar clause, we now have another time bar decision, this time by Peter MacDonald Eggers QC, in The Amelie Essberger [2019] EWHC 3402 (Comm). The vessel was chartered on amended Asbatankvoy form for a voyage from Rotterdam to Castellon in Spain. At Castellon the receiver refused to accept delivery of part of the cargo carried in one of the vessel’s tanks (tank 5S), because that cargo was contaminated with mono ethylene glycol. After discharge of the remainder of the cargo at Castellon the vessel then shifted to an anchorage off Castellon, remaining there for nine days before sailing to Valencia for discharge of the cargo in tank 5S.

The charter contained a demurrage time bar clause in the rider.

5) TIME BAR

Any claim for demurrage, deadfreight, shifting expenses or other charges or invoices shall be considered waived unless received by the Charterer or Charterer’s broker in writing with all supporting calculations and documents, within sixty (60) 90 days after completion of discharge of the last parcel of Charterer’s cargo (es). Demurrage, if any, must be submitted in a single claim at that time, and the claim must be supported by the following documents:

  1. Vessel and/or terminal time logs; B. Notices of Readiness; C. Pumping Logs; and D. Letters of Protest …

The Charterers applied for summary judgment pursuant to CPR rule 24.2 on the ground that the Owners had no real prospect of succeeding in their claim for demurrage because of the time bar defence. The demurrage claim was submitted in time but did not include two of the specified documents – (a) the Vessel’s pumping log at Rotterdam and (b) a letter of protest issued by the Master of the Vessel dated 30th November 2017, noting that the Charterers’ and the shippers’ surveyor had not supplied the Vessel with sealed samples of the cargo upon completion of loading. Owners had already provided the charterers with these documents before submitting their demurrage claim.

The Judge was inclined to adopt either a construction of the time-bar clause that requires the Owners to submit documents on which they relied in support of their demurrage claim or one that required the submission of documents which taken at face value established the validity of the demurrage claim. The clause required the submission of “all” such supporting documents. Furthermore, the four listed documents had to be supplied whether or not the listed documents might be said to be “supporting documents”  as this was clear from the mandatory language of the second sentence (“must be supported”).

However, there was no express requirement that the supporting documents must be provided at one time and at the same time as the demurrage claim. The word “Demurrage” at the beginning of the second sentence was to be construed as a reference to the demurrage claimed and not as a reference to the demurrage claim and supporting documents The requirement that the demurrage claim “with” all supporting documentation must be received by the Charterers within 90 days after the completion of discharge meant no more than that the claim and supporting documents must be received before the expiry of the 90 day period. The reference to a “single claim” means that only one claim may be submitted. In other words, separate demurrage claims, for example at loadport or at each discharge port, were not permitted.  The commercial purpose of Clause 5 did not require the simultaneous submission of the demurrage claim and the supporting documents, but merely the submission of the claim and the supporting documents before the end of the 90 day period.

Accordingly, the claim was not time barred. Had supporting documents not been supplied to charterers within 90 days, the entire demurrage claim would have been barred and not just that part to which those documents related. The clause did not provide that only a part of the demurrage claim will be waived if anything less than “all supporting … documents” are provided and contemplated only a “single claim”. However, the Judge could see the sense of “an approach that if there are two parts of the demurrage claim which are unrelated and if a supporting document is relevant for one part of the demurrage claim, but not the other, there is no pressing reason why the unaffected part of the claim should be time-barred [62].”

 

 

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