“CHARTER PARTY RIDER CLAUSES These terms shall be used together within Asbatankvoy Charterparty form, which is deemed incorporated herein. Should the terms as provided for hereunder be in conflict with the terms as printed in the Asbatankvoy Charterparty, the terms hereunder shall take precedence … 5) TIME BAR Any claim for demurrage, deadfreight, shifting expenses or other charges orinvoices shall be considered waived unless received by the Charterer or Charterer’s broker in writing with all supporting calculations and documents, within sixty (60)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. Notices of Readiness; C. Pumping Logs; and D. Letters of Protest … 23) DOCUMENTATION CLAUSE For any load/discharge operation owner must provide charterer with a complete sets of cargo documents including: • NOR • SOF • Dead freight claim (If issued) • Any letter of protest issued/received in connection with cargo operations • Vessels cargo calculations after loading/prior discharge • Empty tank certificate • Vessel pumping Logs … and Letter of Protest against high back pressure/any shore limitations which must be duly signed by Master and responsible shore personnel. • Nitrogen log, if any nitrogen purging being carried out on cargo. • Temperature log, if any cargo heating. These documents should be forwarded to charterers within 7 banking days after completion of loading or discharge. Faxed copies will be accepted provided readable … 32) DEMURRAGE Charterers shall pay Demurrage at the rate specified on this Charter Party hereof. Demurrage shall be paid per running day and pro rata for part of a running day for all time by which the allowed Laytime specified in this fixture hereof is exceeded and which under the provisions of this Charter party counts against or for Demurrage …”
“The commercial intention underlying this clause seems to me plainly to have been to ensure that claims were made by the owners within a short period of final discharge so that the claims could be investigated and if possible resolved while the facts were still fresh (cf. Metalimex Foreign Trade Corporation v. Eugenie Maritime Co. Ltd., [1962] 1 Lloyd's Rep. 378 at p. 386, per Mr. Justice McNair). This object could only be achieved if the charterers were put in possession of the factual material which they required in order to satisfy themselves whether the claims were well-founded or not.”
“60. … For my part I am not sure that it is helpful to introduce into the approach to these provisions a notion of strict compliance. Where in a commercial contract one finds a provision to the effect that one party is only to be liable to the other in respect of claims of which he has been given notice within a certain period, it is fair to assume that the parties wish their relationship to be informed rather by certainty than by strictness … 61. Thus the touchstone of the approach ought in my view to be a requirement of clarity sufficient to achieve certainty rather than a requirement of strict compliance which, if applied inflexibly, can lead to uncommercial results … 62. … I would further accept that, consistently with the need for certainty, it must objectively speaking be apparent that the documentation is that which supports the claim, but I do not consider that in approaching that issue one should adopt a pedantic or strict approach which focuses on the form of the presentation rather than the substance.”
“It was common ground between counsel that a demurrage time bar clause must be clear and unambiguous if effect is to be given to it. Thus, if there is any residual doubt about the matter, the ambiguity is to be resolved in such a way as not to prevent an otherwise legitimate claim from being pursued; see Pera Shipping Corporation v Petroship SA (The Pera) [1985] 2 Lloyd’s Rep. 103 at page 106 per Lloyd LJ, and at page 108 per Slade and Griffiths LJJ. However, the words in a time bar provision must be given their ordinary and natural meaning. A time bar provision is, or is closely analogous to, a limitation clause. Thus, the especially exacting principles of construction that apply to exemption clauses probably do not apply to time bar provisions; see Lewison, The Interpretation of Contracts, 2nd Edition, para 11.15. The contra proferentem rule is only invoked as a last resort if the meaning of the words is so finely balanced that the contra preferentem rule should be applied in favour of owners; see Mira Oil Resources of Tortola v Bocimar NV (The Obo Venture) [1999] 2 Lloyd’s Rep. 101 per Colman J at page 104.” [1999] 2 Lloyd’s Rep. 101 per Colman J at page 104.”
“This object could only be achieved if the charterers were put in possession of the factual material which they required in order to satisfy themselves whether the claims were well-founded or not. I cannot regard the expression “all available supporting documents” as in any way ambiguous: documents supporting the owners’ claim on liability would of course be included, but so would a document relating to quantum only, just as a doctor’s bill would be a document supporting a claim for damages for personal injury. The owners would not, as a matter of common sense, be debarred from making factual corrections to claims presented in time (as they have done to the claim in par. 12 (A)), nor from putting a different legal label on a claim previously presented, but the owners are in my view shut out from enforcing a claim the substance of which and the supporting documents of which (subject always to de minimis exceptions) have not been presented in time.”
“38. The most helpful general guidance as to how one determines what documents are required to be presented is to be found in Tomlinson LJ’s judgment at para 65 cited above, namely “documents which objectively [the charterers] would or could have appreciated substantiated each and every part of the claim”, and which meant that they “were thereby put in possession of the factual material which they required in order to satisfy themselves that the claim was well-founded”. 39. As to the type of documents which are generally likely to meet those requirements, guidance is to be found in the decision in that case (at para 5) that the following documents sufficed: “(1) a summary demurrage report, plus detailed demurrage reports for Freeport and Singapore; (2) notice of readiness, port log, statement of facts and master's letters of protest for Freeport; and (3) notice of readiness, statement of facts, discharging log, timesheet, master's letter of protest and pumping log for Singapore.” 40. It is to be noted these documents included a port log and a time sheet. The owners submitted, however, that such documents were not required in this case as all the information required for the purpose of the demurrage claim was set out in the signed statement of facts. They emphasised that the documents provided did substantiate “each and every constituent part of the claim” and that there was no need for them to provide additional documentation which would simply provide further substantiation. 41. Under clause 20.1 the owners are not merely to provide “supporting documentation” but “all” such documentation. Where the owners have available documentation from the load and discharge ports such as port logs and time sheets those are, as the tribunal found, “relevant” to the claim made. In the present case that is specifically borne out by the fact that the letters of protest relied upon refer to delays and stoppages recorded in the port log/time sheets. As such they are clearly supporting documentation for the claim made. In any event I consider they are primary documents containing factual material which should be made available to the charterers so that they may satisfy themselves that the claim is well founded, consistent with the purpose of the clause. 42. I accordingly agree with the tribunal's conclusion that the port logs and time sheets were required to be presented …” “(1) a summary demurrage report, plus detailed demurrage reports for Freeport and Singapore; (2) notice of readiness, port log, statement of facts and master's letters of protest for Freeport; and (3) notice of readiness, statement of facts, discharging log, timesheet, master's letter of protest and pumping log for Singapore.”
“The commercial purpose of a demurrage time-bar clause, requiring owners to submit all supporting documents within a short time period, is to ensure certainty, to ensure that it is clear to charterers at an early stage what the claim is and what documents are relied upon by owners in support of it, so that they may take such steps as are appropriate to respond to, or investigate, it. It is important for charterers to be told, in formal and certain terms, what owners’ claim is, and what documents owners are relying upon in order to support that claim”
“… even if there might be some circumstances in which the clause 2B documents were irrelevant, that is not a sufficient reason for failing to give effect to the clear wording of the contract. The requirement is not onerous: it applies to a very limited class of documents which, if they exist, ought to be readily to hand and capable of submission without undue difficulty or expense. If a provision which is designed to operate for good reason in most circumstances might occasionally require irrelevant documents, that is no reason to suppose that the parties did not intend it to have the effect for which it clearly provides.”
“36. … The commercial purpose of a demurrage time bar clause, requiring owners to submit all supporting documents within a short time period, is to ensure certainty, to ensure that it is clear to charterers at an early stage what the claim is and what documents are relied upon by owners in support of it, so that they may take such steps as are appropriate to respond to, or investigate, it. It is important for charterers to be told, in formal and certain terms, what owners’ claim is, and what documents owners are relying upon in order to support that claim … 37. An important commercial purpose of the demurrage time bar clauses in this case was to ensure that charterers were presented with a package of documents by owners that was sufficient in itself for them to consider (without the need for any collateral investigation and, therefore, without the need to make any check of other documents received from third parties) in order to evaluate each and every part of owners’ claim. In my judgment, that is similarly fatal to the application of the futility principle: charterers were entitled to look only at the documents supplied by owners and to determine promptly, by reference to those documents alone, whether or not the owners’ claim was fully supported or was time-barred.”
“Owners shall notify Charterers within 60 days after completion of discharge if demurrage has been incurred and any demurrage claim shall be fully and correctly documented, and received by Charterers, within 90 days after completion of discharge. If Owners fail to give notice of or to submit any such claim with documentation, as required herein, within the limits aforesaid, Charterers’ liability for such demurrage shall be extinguished”
“In the present case it might well be fair to say that the substance of the owners’ claim was presented in time inasmuch as it was always clear that they were claiming that a particular number of days and hours had been spent at Escravos when no berth had been accessible for the vessel. But an essential document in support of every demurrage claim is the notice of readiness and, if the only notice of readiness submitted is a contractually invalid notice, the claim cannot be said to be “fully and correctly documented” within the wording of clause 15(3). That is not necessarily to say that alternative laytime statements and invoices would always have to be submitted to avoid the extinction of an alternative claim but merely to say that the documents to be submitted pursuant to the clause must include a valid notice of readiness. It is not unreasonable for charterers to require such a notice nor is it unreasonable to expect owners to supply it.”
“62. The basic requirement of the clause is that the charterers shall have received both the claim and the supporting documentation within the 90-day period. I accept that the charterers must be in a position to know that the one relates to the other. However I do not think that Mr Byam-Cook went so far as to suggest that the supporting documents must necessarily be presented at the same time as the claim, and if he did I would reject that suggestion. Once that is accepted, the words “together with” import no requirement other than that both presentations, that of the claim and that of the supporting documentation, must have been achieved within the 90-day period. I would further accept that, consistently with the need for certainty, it must objectively speaking be apparent that the documentation is that which supports the claim, but I do not consider that in approaching that issue one should adopt a pedantic or strict approach which focuses on the form of the presentation rather than the substance … 64. In the present case no essential document was missing from those presented on2 April 2008 . Moreover, all of the documents had been presented by the owners in support of a claim under the charterparty; they were not documents which by happenstance came into the possession of the charterers before the expiry of the time bar. In these circumstances I need express no view on the view of Gloster J, expressed obiter in The Sabrewing, to the effect that documents must be presented by the owners themselves, and that the owners cannot rely upon the circumstance that the charterers may be in possession of documents from another source. I would however again caution against too mechanistic an approach. 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 non-compliance with the clause. What is important, as Bingham J observed, is that the charterers are put in possession of the factual material which they require in order to satisfy themselves whether a claim is well-founded or not. No doubt ordinarily the documents will be presented by the owners or by their agents, but I would not rule out the possibility that there could be circumstances in which compliance could be achieved in another manner, for example by asking charterers to refer to documents already in their possession or shortly to be received from third parties. 65. Drawing the threads together, in my judgment the charterers had received from the owners within the 90-day period, in the shape of the two invoices of 31 March and 2 April, a claim in writing for either damages for detention measured at the demurrage rate or straightforward demurrage in respect of the periods spent at Freeport and Singapore after 01.36 on11 February 2008 , subject only to the claim being properly drawn up in accordance with the charterparty provisions and by reference to the events recorded in the demurrage reports … The charterers received with the invoice of2 April 2008 documents which objectively they would or could have appreciated substantiated each and every part of the claim. They were thereby put in possession of the factual material which they required in order to satisfy themselves that the claim was well-founded. They were able to satisfy themselves as to the extent of their liability. In my judgment the owners are not precluded from pursuing a claim for demurrage as formulated in these proceedings.”
“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 …”
“In my judgment, however, the particular wording of clause 23 and the fact that, in the present case, only one composite claim for demurrage was made by owners, means that Mr Kimmins’ argument has to be rejected, despite its initial superficial attraction. Clause 23 required owners to present “a claim in writing” (my emphasis) within 90 days of discharge of cargo, “together with supporting documentation substantiating each and every constituent part of the claim” (my emphasis). Unless such a claim, with supporting documentation, is presented within the relevant time period, charterers are released “from all liability in respect of any claim for demurrage”, ie not merely that particular constituent part of the claim that is not supported by relevant documentation. Accordingly, if, as here, only one composite claim for demurrage was made, owners are time-barred in respect of the entirety of the claim, notwithstanding that the absence of documents only relates to one constituent part of the claim. It is clear from the particulars of claim, the invoice and the supporting documents, that only one single claim for demurrage was made in the present case.”
“37. 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. I am not persuaded that the clause requires the owners to submit only one composite claim (even though they would usually do so and in fact did so). In my judgment it was open to the owners to present a number of separate claims if so advised and in those circumstances the lack of documentation for one or more parts of the claim would not constitute a bar to the balance. 38. In my judgment it cannot have been the intention of the parties that the choice to present a composite claim would give rise to a different outcome. Even if a composite claim was required, I am not persuaded that on its proper construction the effect of clause 20 was such that the failure to provide all ‘supporting documentation’ (whether needed by reason of the requirements of clause 19 or otherwise) for one constituent part of the claim discharged liability for the entire demurrage claim.”
“44. In those circumstances, although it was referred to in argument, it is not necessary to choose between the differing views of Gloster J and David Steel J as to the effect of failing to provide supporting documentation in respect of a part of the claim. In Waterfront Shipping Co Ltd v Trafigura AG (The Sabrewing)[2008] 1 Lloyd's Rep 286 Gloster J held that where one composite claim for demurrage is made then the entirety of the claim is barred even if the missing documents only related to a constituent part of the claim. In The Petroleum Oil and Gas Corporation of South Africa (Pty) Ltd v FR8 Singapore Pte Ltd (The Eternity)[2009] 1 Lloyd's Rep 107 David Steel J took a broader view … 45. [David Steel, J’s observations] are powerful observations and some support for them is to be derived from Tomlinson LJ's caution in The Abqaiq against an approach of strict compliance. Although David Steel J did not explain precisely how he reached his conclusion as a matter of construction of the wording of clause 20.1, it was presumably on the basis that where the demurrage claim can be divided into “constituent” parts and it is only a part of such claim which is not substantiated by the requisite documentation, then it is “all liability” in respect of the “claim for demurrage” for that part rather than the claim as a whole which is discharged. If it had been necessary to determine this question I would have held that this is the preferable construction and that the general position is as stated in Cooke, Voyage Charters, at para 16.21(4): “If the required documentation relating to one part of the claim is incomplete the owner will . . . not be barred from recovery of another part of the claim, where the two parts are unrelated”.” “If the required documentation relating to one part of the claim is incomplete the owner will . . . not be barred from recovery of another part of the claim, where the two parts are unrelated”.”