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QUEENS BENCH DIVISION
COMMERCIAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
SITTING AS A DEPUTY HIGH COURT JUDGE
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LIA OIL S.A. |
Claimant |
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- and - |
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ERG PETROLI S.P.A. |
Defendant |
____________________
Thomas Macey-Dare (instructed by MFB Solicitors) for the Defendant
Hearing date: 5 March 2007
____________________
Crown Copyright ©
Mr Julian Flaux QC:
Introduction
"12. Laytime
36 hours + 6 hours nor shinc to apply for each lot, provided vessel discharges the whole cargo in 24 hrs time. Any delay before berthing, during berthing, after berthing which are the result of bad weather and/or bad sea conditions and/or berth closure by port authority shall count as half the laytime, or if the vessel is on demurrage, as half time on demurrage.
…
14. Demurrage
Demurrages, if any, will be required by seller if owners actually claim it pro rata quantity loaded if part cargo, rata [i.e. rate] as per c/p… any claim barred if not notified duly supported by relevant documents (whereof copy of c/party and copy of owners' demurrage claim and invoice) within 100 days from b/l date."
(1) whether, as ERG contends, the remaining claim for US$9,505.21 is time-barred or whether, as Lia contends, the documentation produced by ERG on 30 May 2000 constituted an acknowledgment of that "liquidated pecuniary claim" for the purposes of section 29(5) of the Act;
(2) whether, as ERG contends, even if not time-barred, the claim is barred under clause 14 of the Frame Contract because Lia failed to produce the relevant supporting documents within 100 days of the bill of lading date or whether, as Lia contends, either the relevant documents were produced or ERG is estopped from alleging the contrary.
"Ref telcons about [this] cargo…, please note the following:
We understand from the inspector telex that the…cargo is out of specs (in particular of P Value). Therefore parties agree that the following specs will be re-tested at disport in our laboratory by the independent inspector (Saybolt):
…..
on an average sample representative of all cargo tanks taken on board the vessel when she arrives on roads at S. Panagia Bay.
It is understood that all time spent for the above will be for seller's account.
Should the cargo be found on specs laytime will run upon berthing."
"We understood from Inspector telex that P. value retested at disport is 1.7. Therefore in the light of the above parties agree that the cargo is exceptionally accepted by Buyer and a discount of USDLRS/TM 1.5 (one point five) to the contractual price is recognised to the buyer (see also our contractual telex no.1570/… dated 30th December 2000)
Other terms and conditions unchanged."
The Liano
"In addition to our claim of 09.08.99 please find enclosed copy of pumping log for discharge port. Please let us know if you still require additional documents or you still something missing so we will not be informed afterwards that we did not send you owners claim or their invoice. Your silence will be considered as confirmation that you have fully documented claim at your possession".
"With reference to your demurrage claim for $59,937.50 dated 10.8.99 please note that we have just realised that a wrong charterparty (Liano-c/p 28.6.99) was enclosed to your claim.
Please check into your file and let us have the correct supporting documents"
(1) The fax of 6 September 1999 from Mr Malyk with its curious reference to ERG not complaining afterwards that the owners' claim and invoice had not been sent. Mr Macey-Dare submits with considerable force that Mr Malyk would surely not have said this unless he knew that the supporting documents sent had not included the owners' demurrage claim or the owners' invoice. Furthermore, although Mr Malyk denied this in his evidence, his explanation was confused and unconvincing, not least I suspect because in reality he could not remember this long after the event what documents were sent.
(2) Ms De Marchi's evidence that at the meeting on 17 September 1999, she told Mr Malyk that ERG had not received the owners' claim or invoice. This was denied by Mr Malyk.
(3) The absence of any document in ERG's file corresponding to "owner's demurrage claim and invoice".
"referring to above mentioned claim we request you one more time to send us your calculation as it seems like you deleted this one from your files and memory. We understand your feeling but we do remember about it. Therefore please come back soon."
"Thanks for your e. mail of today…Sorry for the oversight but we thought our calculation were handed to you during the meeting we had on Sept. 1999.
Attached a copy of our Laytime and Demurrage worksheet for $9,505.21"
The Kogalym
Conclusion