There seem to be endless variations of the clauses in voyage charterparties requiring owners to provide copies of the relevant or supporting documentation with demurrage claims. We receive a surprising number of queries relating to what is required.
In Amalie Essberger, a Commercial Court decision of 11 December 2019, the charter was on an amended ASBATANKVOY form, and there were two rider clauses dealing with documentation.
The first, rider clause 5, was entitled “Time Bar” and provided that:
“Any claim for demurrage… shall be considered waived unless received by the Charterer or Charterer’s broker in writing with all supporting calculations and documents, within 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:
A. Vessel and/or Terminal Time Logs;
B. Notice of Readiness;
C. Pumping Logs; and
D. Letters of Protest …”
The second, rider clause 23, which was headed “Documentation Clause”, stated that:
“For any load/discharge operation Owner must provide Charterer with a complete set of cargo documents including:. …
These documents should be forwarded to Charterers within 7 banking days after completion of loading or discharge ….”
The vessel loaded in Rotterdam and proceeded to Castellon in Spain for discharge. The load port pumping log and a letter of protest (“LOP”) dated 30 November 2017 (the Disputed Documents) were provided on 1 December 2017 pursuant to clause 23; the cargo was discharged by 21 December 2017; and on 22 December 2017 the Owners submitted a demurrage claim by email.
The demurrage claim, as presented, did not include the load port pumping log or the LOP dated 30 November 2017, such documents having been provided on 1 December 2017, and the questions which arose therefore related to what documents Owners were obliged to provide, including (i) whether “supporting documents” only extended to documents which were relevant; (ii) whether the Owners’ obligation to provide supporting documents under rider clause 5 extended to documents that they had previously sent to Charterers, i.e., whether the supporting documents had to be provided at the same time as the demurrage claim, and (iii) whether, if the claim had not been properly made, this impacted the whole claim or only that part of the claim to which the particular documents related.
In a decision of Peter MacDonald Eggers QC, sitting as a Deputy Judge at the High Court, it was held that “all supporting documents” refers only to documents on which the owners rely in support of their demurrage claim, or documents which “taken at face value establish the validity of the demurrage claim”. This meant that the load port pumping log and the LOP were required to be submitted in support of the demurrage claim within the 90-day period referred to in rider clause 5.
However, and notwithstanding the fact that the clause required the demurrage claim to be submitted “in a single claim at that time”, and that the claim must be supported by certain documents, it was held that there was no express requirement in the language of rider clause 5 that the supporting documents had to be provided at one time, and at the same time as the demurrage claim. It was also not necessary to remind the Charterers that they had already received the other documentation relied upon.
This meant that the claim was not time-barred, although it was stated that if it had been time-barred, then the whole claim would have been time-barred, and not just that part of it to which the Disputed Documents related.
The Owners were perhaps lucky in this case. When presenting a demurrage claim, close attention needs to be paid to the wording of any time bar provision, and the best course must be to attach all documents required at that time, regardless of whether the charterers are already in possession of the same.