Demurrage Time-bar Clauses Under The Spotlight Again

• Published date: 06 August 2020
• Subject Matter: Transport, Marine/ Shipping
• Law Firm: Quadrant Chambers
• Author: Ms Stephanie Barrett

Demurrage time-bar clauses often cause problems for unsuspecting shipowners who have otherwise valid demurrage claims. Two recent judgments add to the long line of decisions in this area.

The first decision is The Amalie Essberger [2019] EWHC 3402 (Comm). In that case owners failed to attach to their demurrage claim the vessel's loadport pumping log and a letter of protest issued by the Master, but these documents had been sent to charterers earlier and were assumed at the hearing to be irrelevant to the demurrage claim made. The relevant clause (Clause 5) required the claim "with all supporting...documents" to be provided within 90 days of completion of discharge, and also stated that the claim "must be supported by" specific documents including pumping logs and letters of protest. Peter McDonald Eggers QC held that the claim was not time-barred. Regardless of their relevance to the demurrage claim, because specifically mentioned in Clause 5 the documents had to be provided before the expiry of the time-bar period. However, they did not need to be provided at the same time as the demurrage claim. Because expressly identified as documents which the claim "must be supported by", it should have been apparent to charterers that these documents constituted supporting documents under Clause 5 that were already in their possession.

The second case is Tricon Energy Ltd v MTM Trading LLC [2020] EWHC 700 (Comm) (Robin Knowles, J.), where the relevant clause also required "all supporting documents" to be provided. Charterers' cargo was one of several parcels onboard and under the charterparty laytime and time on demurrage were to be pro-rated between parcels according to the bill of lading quantities. Owners submitted a demurrage claim and...