Demurrage Time-bars: another victory for common sense and the risks of leaving it too late

13 Дек

Апелляционный суд в деле National Shipping Company of Saudi Arabia v BP Oil Supply Company (“The Abqaiq”) [2011] EWCA Civ 1127 приблизился к пониманию спорных вопросов в отношении просрочки исковой давности при взыскании демереджа. В Суд поступило дело, в котором фрахтователь, не оспаривая сумму демереджа, утверждал:

— требование заявлено неправильно, что привело к просрочке исковой давности;

— взыскание было направлено только на часть демереджа, то есть денежную сумму которая уже была уплачена.

Апелляционный суд не нашел основания для препятствования в истребовании дополнительных сумм демереджа.

Несмотря на то, что требование было изначально заявлено неправильно, у судовладельца имеется право уточнить требование в пределах сроков исковой давности.

Поскольку право на заявление иска о взыскании демереджа возникает в момент истечения сталийного времени, то с этого же момента начинается также течение 6-ти летнего срока исковой давности, так что в данном деле требование было заявлено по истечении исковой давности.

National Shipping Company of Saudi Arabia v BP Oil Supply Company («The Abqaiq”)[2011] EWCA Civ 1127; and Glencore Energy (UK) Ltd v Sonol Israel Ltd [2011] EWHC2756 (Comm)

Once again the approach taken by the Court of Appeal in National Shipping Company of Saudi Arabia v BP Oil Supply Company (“The Abqaiq”) [2011] EWCA Civ 1127 in the contentious area of the demurrage time bar suggests a victory for common sense.

In January 2008 National Shipping chartered the 300,000mt dwt vessel to BP Oil for a single voyage from Freeport, Bahamas to Singapore. The cargo was heavy sulphur fuel oil. The charterparty was a BPVOY4 form. The amount for demurrage was not in dispute, but the charters’ defence was based upon two grounds. The first was that the owners had precluded themselves from claiming the demurrage because they had initially mischaracterised their claim for demurrage and claimed only a proportion of it (which had been paid). The alternative ground was that by having mischaracterised or mislabelled their claim the owners had failed to comply with the claims time bar. At first instance on a summary judgment hearing (which the parties had agreed would be determinative of the case) the Court found in favour of the charterers. The owners appealed.

The Court of Appeal held that there had been no agreement between the owners and the charterers which precluded the owners claiming the additional demurrage. More importantly, in relation to the time bar defence the Court held that the charterers had received (within the 90-day time limit) those documents which objectively the charterers would or could have appreciated substantiated each and every part of the claim. In essence the charterers were put in the position where they had all of the necessary material to ascertain whether or not the owners’ claim was properly founded. Although the demurrage claim was initially mistakenly drawn up by the owners, that did not debar the owners from putting “a different legal label on part of the claim, the substance of which was presented in time”.

As with the 2010 decision in The Eagle Valencia [2010] 2 Lloyd’s Rep. 257, the Court of Appeal has sought to balance the requirements of timely and accurate notification of claims for demurrage and detention with the need for fairness and good commercial sense. In particular there appears to have been recognition by the Court of Appeal that construing demurrage time bar clauses so that owners are precluded from recovering for sums otherwise undoubtedly due to them but for some technical non-compliance with the notification process ought to be avoided.

Such an overly technical approach is exemplified in The Sabrewing [2008] 1 Lloyd’s Rep. 286. In that case Gloster J held that the charterers were entitled to look only at those documents actually presented by the owners when considering the claim for demurrage: documents in the possession of the charterers which had been provided by third parties would be ignored for the purposes of any time limit. The case was ultimately decided on the grounds that the owners failed to provide signed pumping logs within the 90-day time limit. On that basis the Court held that one or more of the necessary contractual documents were missing. The failure to provide relevant documents within the time limit for one discrete aspect of the claim meant that on its proper construction the effect of the time bar clause was that the entire claim for demurrage (as opposed to that dependent upon the pumping logs) was time-barred.

Shortly afterwards in The Eternity [2009] 1 Lloyd’s Rep. 107, David Steel J sought to distinguish The Sabrewing on the question of whether failure to comply with the contractual notification requirements for one part of the demurrage claim had the effect of invalidating the remainder of the claim. He commented: «I confess that I find the proposition that a claim put in on time, but in respect of part of which the accompanying documents are non-contractual, gives rise to a bar to the entire claim is a commercially surprising construction«.

The Court of Appeal has added its own voice to the criticism to tribunals and courts taking “too mechanistic an approach” to the presentation of demurrage claims. The Abqaiq did not concern an allegation by the charterers that relevant documents had not been presented on time. Nonetheless, Tomlinson LJ appears to have thought it sufficiently important to comment on the situation in which the charterers receive relevant documents for the demurrage claim from third parties rather than from the owners themselves. He commented: “I cannot think that the mere fact that a necessary document has been supplied by a third party who is not for that purpose an agent of the Owners should of itself and automatically result in the conclusion that there has been on-compliance with the clause”.

These comments reflect the futility principle point taken by counsel for the owners in The Sabrewing which was rejected by Gloster J. In his submissions to the Court counsel for the owners had given the example of the absurdity of the situation where a claims manager of a charterer who had previously been provided with a missing pumping log by local agents being able to contend that the claim was time-barred because that very same document had not been provided to him by the owners themselves. The commercial purpose of demurrage time bar clauses as understood by the Court of Appeal was not to require a “package of documents” to be presented by owners.

In an earlier article titled “Courts take hard line over demurrage time bars” (Lloyd’s List, 12 January 2011) which was published following the decision of the Court of Appeal in The Eagle Valencia [2010] 2 Lloyd’s Rep. 257, the following advice was given: “Prudence would suggest that a separate calculation of the period of time claimed for under each claim (demurrage, deviation or detention) should be provided rather than a single one-size-fits-all calculation. The claims might be similar, but it is unlikely that they will exactly mirror each other.” In the light of the comments of Tomlinson LJ in The Abqaiq it would seem likely that in future Courts and tribunals will give any argument by owners based on the futility principle a more receptive consideration.

The very recent Commercial Court decision of Beatson J in Glencore Energy (UK) Ltd v Sonol Israel Ltd[2011] EWHC 2756 (Comm) considered the question of the date of accrual of the cause of action for a claim for demurrage for the purpose of the six-year contractual limitation period under Section 5 of the Limitation Act 1980. The Court was asked to determine whether the six-year time limit applied from when demurrage accrued on a day-by-day basis (in accordance with the President of India v LIPS Martime Corp [1998] 1 AC 395 per Lord Brandon at page 422), or from the date of the presentation of the demurrage claim.

The claimant entered into two contracts, dated 15 December 2004 and 10 January 2005, to sell transportation gasoil to the defendant. The two parcels of cargo were delivered by the vessel “Team Anmaj” which completed discharge at 00:25 on 11 January 2005. The claimant was neither the owner nor charterer of the vessel. Having received a demurrage invoice from the charterer of the vessel, the claimant issued its own demurrage invoice to the defendant on 28 April 2005. The demurrage was not paid by the defendant.

The claim for the unpaid demurrage was issued on 19 April 2011. On a summary judgment application by the defendant, Beatson J held that the date of accrual of the cause of action for the six-year limitation period was on a day-by-day basis from the moment when the laydays expired. The claim for demurrage was therefore time-barred.

The decision brings welcome clarity to the situation. Much has been written about demurrage claims time-bars but it is apparent that these are irrelevant to the question of limitation under the Limitation Act 1980. In the final analysis the decision is a gentle reminder of the risks that parties run by not commencing claims well within the six year time limit.

Автор: Neil Henderson