Documentary Time-Bar Clauses - Will We Ever Tire Of Debating The Meaning Of "[all]

• Published date: 05 August 2020
• Subject Matter: Litigation, Mediation & Arbitration, Transport, Marine/ Shipping, Trials & Appeals & Compensation
• Law Firm: Quadrant Chambers
• Author: Mr Paul Henton

Documentary time-bars are proving once again to be one of the most fertile sources of shipping litigation.

Such clauses typically provide for the absolute extinguishment of all claims, unless they are presented within a specified period of time (often short: 90 days and 12-months being particular favourites amongst drafters) and accompanied by "[all] [relevant / available] supporting documents".

The classic statement of principle comes from Bingham J in the Oltenia (1982): the commercial intention of such clauses is that claims should be presented within a short period so that they may be investigated and if possible resolved whilst the facts are still fresh.

But since then there has been a steady stream of reported decisions (see: the Sabrewing, the Bow Cedar, the Eternity, the Eagle Valencia, the Abqaiq, the Adventure, the Ocean Neptune, to name a few): the combination of bespoke drafting, short/ early deadlines for compliance (potentially before lawyers are involved), competing policy considerations (finality/ "closing the books" vs the need for clear words to deprive a party of legal remedies), and draconian consequences for those who fall foul, all conspiring to make this a rich source of litigation.

The last few months have brought (at least) three more: the Tiger Shanghai [2019] EWHC 3240 (Comm), the Amalie Essberger [2019] 3402 (Comm), and the MTM Hong Kong [2020] WHC 700 (Comm).

The Tiger Shanghai concerned a disputed termination by time charterers, after the Owners refused to permit them to cut new cement holes in the hatch-covers. Both sides accused the other of repudiatory breach. The Charterers presented their letter of claim in time but omitted to attach a survey report going to the reasonableness of the Owners' refusal.

The case raised issues as to the necessary threshold of relevance to the issues in dispute in order to fall within the meaning of "all supporting documents". This is a fact-specific exercise which depends on the nature of the claims being made and the disputed document. Thus, since the reasonableness of the Owners' refusal went to the validity of the Charterers' termination, which was one of the "building blocks of the case as to liability", a report going to that issue fell within the clause and needed to be provided.

The judgment of Cockerill J also supports the following further propositions: (i) the use of the additional word "all supporting documents..." tends to necessitate more "expansive" enquiry and a wider casting...