On 2 February 2018 the Commercial Court allowed an appeal from a decision of the Arbitration Tribunal in Lukoil Asia Pacific Pte Ltd v Ocean Tankers Pte Ltd.
The Judgment serves as a reminder to Owners to ensure that, if they have a claim for demurrage (no matter how it arises under the charter), as opposed to a claim for which any delay is compensated at the demurrage rate, they comply with any time bars in relation to demurrage claims.
The question before the Court was whether a claim categorised as one for delay waiting for orders, was in fact a demurrage claim.
The clause under which the claim was brought provided:
Litasco Clause 4 – Waiting for Orders Clause
If Charterers require vessel to interrupt her voyage awaiting at anchorage further orders, such delay to be for Charterers’ account and shall count as laytime or demurrage, if vessel on demurrage. Drifting clause shall apply if the ship drifts.
Under Litasco Clause 2, claims for demurrage had to be presented to Charterers in writing within 90 days of completion of discharge. The clause included a list of supporting documents which were to be provided whenever possible.
The Tribunal had already decided that the majority of the Owners’ claims for demurrage were time barred, but they treated the claim arising under Litasco Clause 4 as falling outside the scope of the time bar defence.
The Judgment includes a discussion of the principles that Courts must adopt in relation to the construction of commercial documents. It distinguishes between clauses referring to time counting “… as laytime or demurrage, if vessel on demurrage”, and those, such as the BIMCO ISPS Clause and the Interim Port Clause in the Fixture Recap in this case, which referred to “any delay caused by such failure shall be compensated at the demurrage rate” and “…Charterers to pay for additional interim port at cost with additional steaming time, at demurrage rate”.
A distinction was therefore made between claims which are, in fact, demurrage claims, and those where the quantification of loss is at the demurrage rate. The decision emphasises that where different wording is used, it is to be “inferred that the parties have taken care with the language used”, and “the presumption [is] that where parties have used different language in different parts of their contract they intend to achieve a different effect”.