England and Wales High Court (Commercial Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/11/2010

Mr Justice Field:

1. In these proceedings the Claimant claims demurrage under a charterparty dated 29 January 2008 pursuant to which it chartered its VLCC "ABQAIQ" to the Defendant for a voyage from Freeport, Bahamas, to Singapore. The charterparty is contained in and/or evidenced by a fixture recap from the brokers, Poten & Partners. The fixture was based on, and incorporated, the terms of the BPVOY 4 Voyage Charterparty 1^st Edition – June 1998, with amendments and addenda.
2. The Claimant also seeks summary judgement on a claim for a declaration that the Defendant is liable for the cost of bunkers consumed by the vessel between 0330 on 11 February 2008 and 0300 on 17 February 2008 under Clause 5.2 of the charterparty, alternatively under Clause 5.3.
3. In the alternative, the Claimant seeks summary judgement on a claim for a declaration that the Defendant is liable in damages for breach of an implied term that the Defendant would provide a cargo in sufficient time for it to be loaded within the laydays.
4. Originally, as we shall see, the Claimant claimed for demurrage only in respect of the period when the vessel was at the discharge port, and this claim was paid on 9 June 2008. At the same time, the Claimant claimed additional freight in respect of the period when the vessel was at the loadport. That claim was abandoned and replaced by the present claim for demurrage in respect of 4.3 days spent at the loadport and 3.2459 days spent at the discharge port, but after the expiration of the 90 day time-bar provided for in Clause 20.1 of the charterparty. The Claimant contends that it is entitled to summary judgement on the claim now advanced. The Defendant meets this contention with its own application for summary judgement on demurrage claim on the basis that the claim is barred by a settlement of any and all demurrage claims that led to the payment on 9 June 2008 and/or the claim is time-barred under Clause 20.1. In the alternative, the Defendant submits that it should have leave to defend in respect of the quantum of the claim on the ground that for part of the relevant time there was adverse weather within the meaning and effect of Clause 17 of the charterparty.
5. I turn to the factual background. The vessel arrived at Freeport, the nominated loadport, and tendered notice of readiness at 0930^[1] on 6 February 2008. She berthed at berth 10 at the BORCO terminal at 1712 on 7 February and started loading operations at 2236 the same day, loading cargo by ship-to-ship transfer, from the BRITISH WILLOW and the BARING SEA, and from shore tanks. At 0136 on 11 February 2008 the hoses were disconnected and at 0330 that morning the vessel left berth 10 to drift off Freeport awaiting the arrival of the GANGES SPIRIT, from which she was due to load a further parcel of cargo. Her place at berth 10 was taken by another vessel, the CAP GEORGE.
6. The GANGES SPIRIT arrived off Freeport the following day (12 February 2008) and gave notice of readiness to discharge her cargo at 0735. At 1025 that day, the BORCO terminal suspended operations at the jetties and at 1354 the same day closed operations at the jetties, due to deteriorating weather conditions.
7. The intention had been for the GANGES SPIRIT to berth at berth 9 and to discharge a parcel of cargo into the ABQAIQ at berth 10. However, the arrival draft of The GANGES SPIRIT was too great for berth 9, requiring her to berth at berth 10 to discharge part of her cargo into a shore tank, before shifting to berth 9. As it happened, however, when the GANGES SPIRIT arrived, the ABQAIQ and the GANGES SPIRIT had lost their turn for berths 9 and 10, which were now occupied by the CAP GEORGE and the SANKO BRIGHT. The ABQAIQ eventually re-berthed at berth 10 at 0300 on 17 February and between 0654 on 17 February and 0954 on 18 February she loaded cargo from the GANGES SPIRIT and a shore tank. At 1312 that day hoses were disconnected and an hour later she unmoored and headed for Singapore.
8. The ABQAIQ arrived at Singapore and tendered notice of readiness at 1200 local time on 22 March. At 1306 she anchored awaiting a berth and shifted to her discharging berth between 1324 and 1600 on 28 March. She completed discharge and hoses were disconnected at 1500 on 30 March.
9. The recap reads as follows under the heading FINANCIAL:

FREIGHT RATE: FOLL BASIS 1/1

LUMPSUM USD 3.5 MILLION

IF ADDITIONAL LOAD/DISPORT, VITOL

INTERIM PORT CLAUSE TO APPLY

DEMURRAGE RATE: USD 70,000 PDPR

OVERAGE: N/A

LAYTIME: 96 HOURS

PORT CHARGES: ALL PORT CHARGES TO BE FOR

CHART'S ACCOUNT

10. The Vitol Interim Port Clause provides:

Charterer shall pay for any interim load/discharge port(s) at cost. Time for additional steaming, which exceeds direct route from first loadport to furthest discharge port, shall be paid at the demurrage rate plus bunkers consumed, plus actual port costs, if any. The reasonable, estimated costs will be payable as an on account payment together with freight, followed by final invoice plus all supporting documents as soon as possible but not later than ninety (90) days after completion of this voyage.

11. Clauses 5.2 and 5.3 of the charterparty provide:

5.2 Charterers shall have the option of instructing Owners to load the Vessel at more than one berth at each loading port and to discharge at more than one berth at each discharge port in which event Owners shall, in the first instance, pay expenses arising from any of the following movements of the Vessel:-

5.2.1 unmooring at, and pilotage and towage off, the first loading or discharge berth;

5.2.2 mooring and unmooring at, and pilotage and towage onto and off, any intermediate or discharge berth; and

5.2.3. mooring at, and pilotage and towage onto, the last loading or discharge berth.

Charterers shall reimburse Owners in respect of expenses properly incurred, arising from any of the aforementioned movements, upon presentation by Owners of all supporting invoices evidencing prior payment by Owners.

5.3 Charterers shall reimburse Owners in respect of any dues and/or other charges incurred in excess of those which would have been incurred if all the cargo required to be loaded or discharged at the particular port had been loaded or discharged at the first berth only. Time used on account of shifting shall count as lay time or, if the Vessel is on demurrage, as demurrage, accept as otherwise provided in clauses 17 and 18.2.

12. Clauses 7.3.2, 7.3.3 and 7.4 of the charterparty provide in relevant part:

7.3.2 Laytime or, if the Vessel is on demurrage, demurrage, shall commence, at each loading and each discharge port, upon the expiry of six (6) hours after a valid NOR has become effective as determined under Clause 6.3, berth or no berth, or when the Vessel commences loading, or discharging, whichever first occurs.

7.3.3 Laytime or, if the Vessel is on demurrage, demurrage shall run until the cargo hoses have been finally disconnected upon completion or loading or discharging, and the Master shall procure that hose disconnection is effected promptly…

7.4 Charterers shall pay demurrage at the rate stated in Section J of PART 1 per running day, and pro rata for part of a running day, for all time that loading and discharging and any other time counting as laytime exceeds laytime under this Clause 7. If, however, demurrage is incurred by reason of the causes specified in Clause 17, the rate of demurrage shall be reduced to one-half of the rate stated in Section J of PART 1 per running day, or pro rata for part of a running day, for demurrage so incurred.

13. Clauses 20.1 and 20.2 of the charterparty provide:

20.1 Charterers shall be discharged and released from all liability in respect of any claim for demurrage, deviation or detention which Owners may have under this Charter unless a claim in writing has been presented to Charterers, together with all supporting documentation substantiating each and every constituent part of the claim, with ninety (90) days of the completion of discharge of the cargo carried hereunder.

20.2 Any other claim against Charterers for any and all other amounts which are alleged to be for Charterers' account under this Charter shall be extinguished, and Charterers shall be discharged from all liability whatsoever in respect thereof, unless such claim is presented to Charterers, together with full supporting documentation substantiating each and every constituent part of the claim, within one hundred and eighty (180) days of the completion of discharge of the cargo carried hereunder.

14. Clause 32 of the charterparty confers on the Charterers the right to deduct 1.25% address commission from freight, any deadfreight and demurrage payable under the charterparty.
15. On 31 March 2008, the day after completion of discharge, the Claimant issued an invoice entitled "Supplementary Invoice" (referred to hereinafter as "the Time & Bunkers Invoice") claiming: (1) "Time consumed for 2^nd berthing at Freeport (7.445 x $70,000/day)": US$521,150; and (2) "Bunkers consumed for 2^nd berthing at Freeport (140.2 mts x $490.50)": US$68,768.10.
16. This invoice was sent by email to Captain Mike Honcharik of Poten & Partners (the brokers) on the day it was issued. (The email referred to the Time & Bunkers Invoice as the "2^nd Supplementary Invoice"). Also attached to the email were: (I) A Statement of Fact signed by the Master of the ABQAIQ, certifying that: (i) the "time consumed for the second berthing" at Freeport was the period from 0330 on 11 February, when the vessel left her berth for the first time, due to the unavailability of cargo, and 1412 on 18 February when she left the berth for the second time following completion of loading; and (ii) the "bunkers consumed for the second berthing" were the bunkers consumed in that period, based on the vessel's ROB figures, namely 140.2 mt. (II) A bunker invoice dated 3 March 2008 addressed to the Claimant, evidencing the price of the bunkers (HFO) supplied to the vessel on 8 February 2008.
17. Captain Honcharik duly forwarded the Time & Bunkers Invoice and accompanying documents to Ms Joanne Radke, an employee of the Defendant working the Fuel Oil / VGO Trading Operations department. Neither the invoice, nor the supporting documentation, nor the covering email made any reference to the Vitol Interim Ports Clause. Ms Radke took the view that the claim was a demurrage claim and sent the documentation on to the Defendant's demurrage group.
18. On 2 April 2008, the Claimant issued an invoice entitled "Demurrage Invoice" (referred to hereinafter as the "Demurrage Invoice") by email to Captain Honcharik claiming demurrage for 4.5833 days in the total sum (net of address commission) of US$316,822.92. The email was headed "Demurrage Claim-Inv/Calc/Docs" and had attached to it the following documents: (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.
19. The detailed demurrage reports provided with the Demurrage Invoice showed laytime being suspended on 11 February 2008, resuming at Singapore on the evening of 22 March, and expiring on the evening of 25 March. These reports also made it clear that the claim was for demurrage earned between 2224 on 25 March and 1324 on 28 March, and between 1600 on 28 March and 1500 on 30 March 2008.
20. On 10 April 2008, Captain Honcharik's colleague, Athena Sarris, forwarded the Demurrage Invoice and attachments to Mr Lowell Rupp, a specialist in the Defendant's demurrage group.
21. On 4 May 2008, the Claimant sent another invoice, also entitled "Supplementary Invoice" (referred to hereinafter as "the Port Costs Invoice") to Captain Honcharik claiming the port costs for Freeport and Singapore. Attached to this invoice were invoices from the Claimant's agents at Freeport and Singapore and a number of supporting vouchers. Two days later (6 May 2008), Captain Honcharik's colleague, Athena Sarris, emailed the Port Costs Invoice and attachments to Ms Radke.
22. On 6 May 2008, Ms Sarris sent Mr Rupp an email entitled "Supplementary Invoice Due" asking him who in his group was handling the Time & Bunkers Invoice. On the following day she sent Mr Rupp another email attaching the Time & Bunkers Invoice and saying:

I received your confirmation of receipt for demurrage claim.

I need confirmation of receipt of attached.

23. On 7 May, Mr Rupp forwarded this message to his colleague, Mr Orona, another specialist in the Defendant's demurrage group. On 3 June, Mr Orona emailed Ms Sarris as follows:

Subject: RE: Abqaiq/BP 29/01/08: Supplementary Invoice For Port Charges + Demurrage

Athena,

I have gone over the claim for the Abqaiq and see that time at Singapore should have started at 13:06 at anchorage as per BP Voy4 6.3.2.

I have a counter offer of gross demurrage of $317,625.00 with a 1.25% commission for a net of $313,654.69

Await comments/agreement.

Also, I have forwarded the other charges for this vessel to my operator Joanne. For settlement of those invoices. Please contact Joanne.

24. On 4 June 2008, Mr Ranjeet Sunder of the Claimant sent an email to Ms Sarris in these terms.

Subject: RE: Abqaiq/BP 29/01/08: Supplementary Invoice For Port Charges + Demurrage

Good Day Athena,

Without Prejudice

Owners hereby in agreement with charterer's comment.

For sake of good order, please find enclosed revised final agreed demurrage invoice.

Kindly advise us the remittance details/value date to track funds from our end.

25. The enclosed invoice is headed "Demurrage Invoice" and includes the following details:

Description Currency Amount

FREEPORT (BAHAMAS)

SINGAPORE

Combine All ports: 4.5375@70,000 (Demurrage) USD 317,625.00

Addr Comm 317625.00 x 1.25% USD -3,970.31

TOTAL USD 313,654.69

26. This invoice ("the Amended Demurrage Invoice") was settled on 9 June 2008.
27. On 19 June 2008, Ms Sarris of Poten & Partners sent Ms Radke another copy of the Time & Bunkers Invoice and accompanying documents under cover of an email entitled "Supplementary Invoice Due". Ms Radke replied on 19 August 2008:

Attached invoice does not have full supporting documentation attached for the waiting time declared. Based on what little documentation was submitted for the claim, this time should be demurrage not waiting time and should be declared as such. Further bunkers for a vessel waiting on demurrage are not charterers responsibility. Pls send proper supporting documentation and revise invoice to show demurrage and delete the bunker costs.

(This email was cc:d to Mr Orona.)

28. By email dated 21 August addressed to Ms Sarris, Mr Sunder of the Claimant stated:

Without Prejudice.

Owners would like to advise charterer's (sic) that the freight for the subject voyage was paid basis 1:1. Additional ports for loading/discharging will be charged basis Vitol Interim port clause & CP clause 5.3

Owners would like to thank charterer's for settling the demurrage claim earlier, the additional time calculated is based on demurrage rate and the last bunker purchased invoice which has been passed to charterer's earlier. For charterer's guidance have attached cargo documents for kind perusal.

Hence owners stand by their claim and request charterer's to review claim positively.

29. On 9 September, the Claimant approached Mr Guzik, the Defendant's crude / fuel oil scheduling team leader. Mr Guzik replied on 11 September repeating the substance of Ms Radke's email of 19 August 2008. (Mr Orona was again cc:d on this email).
30. After a further chasing email on 14 September from the Claimant to Mr Guzik (cc:d Mr Orona), Mr Orona replied:

In regards to your supplementary invoice about the Abqaiq. I have spoken to Joanne Radke about this and she finds that this invoice should have been part of the demurrage claim since it is in fact time the vessel waited for the product.

However a claim for the Abqaiq has already been settled in regards to this vessel back on June 9^th in the amount of $313,654.69.

If you have any further questions, Please feel free to contact me at your earliest convenience.

31. In the meantime, the 90 day time-bar period in respect of claims for demurrage had expired on 28 June 2008.

Was the agreement reached by the exchange of emails from Mr Orona and Mr Sunder on 3 and 4 June a settlement of any and all claims for demurrage or just a settlement of the demurrage claim in respect of the periods 2224 on 25 March 2008 to 1324 on 28 March 2008 and 1500 on 30 March 2008?

32. Mr Macey-Dare for the Claimant contended that the settlement did not bar the demurrage claim now brought but related only to demurrage in respect of the periods 2224 on 25 March 2008 to 1324 on 28 March 2008 and 1600 on 28 March to 1500 on 30 March 2008, when the vessel was at Singapore. In his submission, much clearer words than those used in the two emails would be needed for there to have been a settlement of all demurrage claims in respect of any period between notice of readiness at Freeport on 6 February 2008 and disconnection of the hoses on 30 March 2008 at Singapore. He argued that if the intention had been to settle all claims for demurrage whensoever earned, Mr Orona would have rejected the claim made in the Time and Bunker Invoice rather than say:

Also, I have forwarded the other charges for this vessel to my operator Joanne. For settlement of those invoices. Please contact Joanne.

33. The reference to "invoices" in the plural must be a reference, contended Mr Macey-Dare, to the Time and Bunkers Invoice which Mr Orona received on 7 May, and to the Ports Costs Invoice. Moreover, the words "Without Prejudice" in Mr Sunder's email indicated that his acceptance of Mr Orona's proposal related only to the claim made in the Demurrage Invoice and not to the claims made in the Time and Bunkers Invoice and the Ports and Costs Invoice.
34. Mr Macey-Dare also argued that the relevant factual context for construction purposes included the parties' knowledge that: (i) two claims had been presented for delay at the demurrage rate; (ii) the Defendant regarded the Time and Bunkers claim as a claim that ought to be a demurrage claim, a view that was not shared by the Claimant; and (iii) the Time and Bunkers Invoice had been sent for consideration by a demurrage specialist (Mr Orona). Construed against this background, the emails constituted a settlement only of the demurrage claim for the period 25 to 30 March 2008, leaving it open to the Claimant to make another claim for an earlier period under the charter.
35. I decline to accept Mr Macey-Dare's submissions. In my view, the relevant background for interpretative purposes includes: (i) the presentation by the Claimant of two quite different claims, one for demurrage and one for additional freight, which were deliberately being advanced separately and in respect of different periods of time under the charter; (ii) the fact that demurrage is a well known entitlement under voyage charters which arises once the stipulated laytime has been exceeded; and (iii) the Amended Demurrage Invoice contained the details set out in paragraph 22 above, including, in particular: "Combine All ports: 4.5375@70,000 (Demurrage) USD 317,625.00".
36. Construed against this background, what was being settled was all and any claims for demurrage under the charter. The only other period in which demurrage was potentially claimable was the period prior to 25 March 2008 and a different claim for additional freight was being deliberately made in respect of this period. Accordingly, in my judgement, the parties were proceeding on the basis that the only claim for demurrage that was going to be made under the charter was the claim made in the Amended Demurrage Invoice and by settling that claim, they were settling all and any claims for demurrage under the charter. There is no question here of the Defendant unfairly taking advantage of a mistake it knew the Claimant had made. On the contrary, the Claimant was well aware of Ms Radke's suggestion that the additional freight claim be re-submitted as a demurrage claim but it persisted in maintaining two separate claims, one for demurrage and one for additional freight. In these circumstances, the Defendant was entitled to proceed on the basis that no demurrage claim was being made or was going to be made in respect of the period before 25 March 2008, and it was on that basis that the parties entered into the settlement that resulted from Mr Sunder's acceptance of Mr Orona's counter offer.
37. I would add for completeness that the words "Without Prejudice" in Mr Sunder's email are not to be construed as a reservation of a right to claim demurrage in respect of the period prior to 25 March 2008. Instead, those words are either to be ignored as mere surplusage, or, if they are to be given any meaning, they mean that the acceptance of Mr Orona's offer is without prejudice to the claim for Port Costs and the claim made in the Time and Bunkers Invoice, the latter claim being a claim for additional freight, not a claim for demurrage. I am also of the view that the reference to "other charges" in Mr Orona's email of 3 June 2008 is a reference to the port charges covered by the Port Costs Invoice and the words "those invoices" refer back to those charges and to the vouching invoices itemising the port costs claim.

Is the claim now made for demurrage time-barred?

38. My conclusion that the demurrage claim is barred by the settlement reached on 4 June 2008 is determinative. The Defendant is entitled to summary judgement dismissing the claim. Since, however, the time bar issue was fully argued, I think it appropriate that I deal with this issue, even though it is not strictly necessary to do so.
39. Mr Macey-Dare submitted that Clause 20.1 was ambiguous by reason of a lack of correspondence between the phrases "any claim for demurrage" and "a claim in writing". In his submission, this ambiguity should be resolved by interpreting the words "a claim" as including a claim which is substantially the same as the claim eventually pursued, notwithstanding that it was given a different label than that given to the later claim. In support of this submission he cited The Pera [1985] 2 Lloyd's Rep 103 and the well-known passage in the judgement of Bingham J in The Oltenia [1982] 1 Lloyd's Rep 448 at 453:

The commercial intention underlying this clause^[2] 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 … 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 personal injury. The owners would not, as a matter of common sense, be debarred from making factual corrections to claims presented in time … 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.

40. Whilst I do not agree that Clause 20.1 is ambiguous, I accept Mr Macey-Dare's construction. In my judgement, construed in the context of the clause as a whole and in light of its commercial purpose –--- "a claim in writing" means the substance of the claim for demurrage, deviation or detention, as the case may be, for which Owners seek to hold Charterers liable.
41. Whether a claim made before the 90 day time bar is substantially the same claim as the claim ultimately advanced will be a matter of common sense having regard to the purpose of Clause 20.1 --- to ensure that claims advanced by owners can be investigated while the facts are still fresh, and to achieve finality --- and will be a matter of fact and degree to be determined in light of the particular circumstances of the case. There will accordingly be cases where it will not matter that Owners have attached the wrong label to the claim made within the 90 day limit, and other cases where a claim that is not brought as a claim for demurrage, deviation or detention cannot properly be regarded as substantially the same as the demurrage, deviation or detention claim ultimately advanced.
42. In my judgement, in the circumstances of the instant case, the claim made in the Time and Bunkers Invoice is not to be regarded as substantially the same claim as the demurrage claim now advanced. On the contrary, the Time and Bunkers Invoice deliberately advanced a claim not for demurrage, but for additional freight under the Vitol Interim Ports Clause. Thus: (i) the claim was in respect of the period of 7.445 days between 0330 on 11 February 2008 and 18 February 2008 at the loadport, with no reference being made to the running of laytime or to when laytime was alleged to have expired; (ii) the documents sent with the claim were not demurrage-type documents; (iii) the invoiced sum includes an element for bunkers, whereas there is no liability for bunkers under a demurrage claim; (iv) the trigger points for the start and the end of the claimed period (i.e.vessel line away) are the trigger points under the Interim Port Clause and not the trigger points for a demurrage claim (under clause 7.3.3 laytime and demurrage run until the disconnection of hoses).
43. I also accept Mr Byam-Cook's submission that, even if the claim made in the Time and Bunkers Invoice can be regarded as demurrage claim, that invoice was not accompanied by "all supporting documentation substantiating each and every constituent part of the claim" as required by Clause 20.1. As Mr Byam-Cook contended, a demurrage claim should have been presented together with at least notices of readiness, a statement of facts, letters of protest and pumping logs, yet the Claimant presented none of these in support of the claim in the Time and Bunkers invoice. Mr Macey-Dare argued that the Claimant presented the necessary documents by presenting them with the Demurrage Invoice but I reject this submission. The Claimant was obliged to comply carefully and strictly with the requirement to present all supporting documentation substantiating each and every constituent part of the claim and it is not enough for the Claimant now to seek to rely on documents presented with an entirely separate claim from the claim for additional freight which was made through the Time and Bunkers Invoice.
44. For these reasons I find that the demurrage claim now advanced is time-barred under Clause 20.1, and it follows that, quite apart from my conclusion on the settlement issue, the Defendant is entitled to summary judgement under CPR Part 24 dismissing the demurrage claim.
45. Mr Byam-Cook further submitted that if I were against him on the settlement and time-bar issues, the Claimant should still not have summary judgement because the Defendant had a number of arguable defences as to quantum. Given my conclusions on the settlement and time-bar questions it is unnecessary to deal with these further submissions and I do not propose to lengthen this judgement by doing so.

Is the Defendant liable under Clause 5.2 or 5.3 for the cost of bunkers consumed by the vessel between 0330 on 11 February 2008 and 0300 on 17 February 2008 under Clause 5.2 or Clause 5.3?

46. The Claimant claims in its Particulars of Claim the cost of bunkers consumed by the vessel between when she berthed at berth 10 for the first time at 0330 on 11 February 2008, and when she left that berth again the second time at 1412 on 18 February 2008. The Claimant claimed for these bunkers in the Time and Bunkers Invoice. However, as the Defendant pointed out in its response to the Claimant's application for summary judgement on this claim, Clauses 5.2 and 5.3 only apply to sums incurred in performing the movements identified in sub-clauses 5.2.1, 5.2.1 and 5.2.3 and, at the very least, only apply to sums incurred up to the moment of re-berthing, which was at 0300 on 17 February 2008. The Claimant accepted this point but was not in a position at the hearing to quantify its claim for this period. Accordingly, instead of asking for summary judgement for a sum of money, the Claimant seeks a declaration that it is entitled to the cost of bunkers consumed between 0330 on 11 February 2008 and 0300 on 17 February 2008.
47. Mr Byam-Cook contended that the claim for these bunkers is not recoverable under Clause 5.2 or Clause 5.3. In his submission, those clauses are only triggered where the charterer chooses to instruct the owner to load the vessel "at more than one berth at each loading port", whereas the ABQAIQ loaded only at one berth, albeit she shifted off that berth for a period of time. Mr Byam-Cook relied on the decision of the Court of Appeal in The Afrapearl [2004] 2Lloyd's Rep 305. There, the vessel arrived at the M'bao sea berth in Dakar to discharge a parcel of fuel oil. However, discharge had to be stopped after a short time because of a leak in the sea line and when an attempted repair failed she was ordered off the sea berth and shifted to anchorage. She then re-berthed at the sea berth but again discharge had to cease because of another leak so that she had to shift back to the anchorage until the leak was repaired, this time successfully. Thereafter, she berthed for a third time at the sea berth and on this occasion discharged the parcel of fuel oil albeit at a reduced rate. The charterparty was on the Asbatankvoy form, clause 9 of which provided in relevant part:

SAFE BERTHING --- SHIFTING. The vessel shall load and discharge at any safe place or wharf, or alongside vessels or lighters reachable on her arrival …. The charterer shall have the right of shifting the vessel at ports of loading and/or discharge from one safe berth to another on payment of all expenses … any other extra port charges or port expenses … incurred by reason of using more than one berth …

48. The trial judge held that the owners were entitled to additional agency fees and expenses incurred as a result of the shifting operations described above. The Court of Appeal overturned this determination. The lead judgement was given by Clarke LJ who held that the charterers were not exercising their rights under Clause 9: the order to move the vessel from the sea berth was not an exercise of such a right but a reaction to a breakdown of equipment in or about the plant of the consignee. Clause 9 was concerned only with a shift from one discharge berth to another discharge berth, which had not happened here.
49. Mr Macey-Dare submitted that Clauses 5.2 and 5.3 should be construed commercially so as to cover the situation where the vessel was being required to use more than one berth, albeit the second berth was the same as the first berth. The ABQAIQ had had to leave her berth because the Defendant had failed to bring the balance of her cargo to the place of loading in time and in these circumstances the Defendant should be regarded as having exercised its option under Clause 5.2 to direct the ABQAIQ to load at more than one berth on two occasions.
50. I prefer Mr Byam-Cook's submissions. Although the decision to shift from berth 10 was not forced on the Defendant by events beyond its control, what happened was not a shift from one berth to another but a departure from berth 10 to drift off Freeport until she could return to that berth to load from the GANGES SPIRIT in berth 9.
51. I also accept Mr Byam-Cook's submission that Clause 5.2 is aimed at expenses incurred to third parties in performing the movements identified --- mooring, unmooring, pilotage and towage at, to and off a berth --- and that bunkers do not come within this category of expenses. I am further of the view that the words "any dues and/or other charges" are not apt to describe bunkers.
52. Finally, I accept Mr Byam-Cook's submission that the bunkers claim is any event time-barred under Clause 20.2 on the ground that even if the claim made in the Time and Bunkers invoice was a sufficient claim for the purpose of Clause 20.2, "full supporting documentation substantiating each and every constituent part of the claim" was not provided within the stipulated period. In my judgement, the Claimant should have provided the Defendant with records of the vessel's daily bunker consumption or her bunker consumption whilst performing the movements identified in sub-clauses 5.2.1, 5.2.2 and 5.2.3. As it is, it is impossible to calculate what sum (if any) is due to the Claimant for the period of time in question from documents that accompanied the Time and Bunkers Invoice.

Is the Defendant liable in damages for breach of an implied term that the Defendant would provide a cargo in sufficient time for it to be loaded within the laydays?

53. In paragraphs 3 and 20 of its Particulars of Claim, the Claimant pleads:

3. Further there was an implied term of the Charterparty, such implication arising by law and/or as an obvious inference from the express terms thereof and/or so as to give business efficacy thereto, that the Defendant would provide the cargo and bring it to the place of loading in sufficient time to enable the Vessel to be completely loaded within the lay days.

20. Further or alternatively, in breach of the aforementioned implied term, the Defendant failed to provide the cargo and bring it to the place of loading in sufficient time to enable the Vessel to be completely loaded within the laydays. For the avoidance of doubt, the Claimant will contend that the latest time for doing so would have been 0725 on 11 February 2008. It relies on the following facts and matters:

a. It took 27 hours to load the "GANGES SPIRIT" after the Vessel re-berthed.

b. Due to adverse weather conditions, operations were suspended at the BORCO terminal at 1026 on 12 February, the terminal was closed later that day and it did not re-open until 14 February.

54. The pleaded damages claimed for breach of this implied term are: (i) US$ 413,215.43 for loss of the use of the vessel from 1026 on 12 February 2008 to 0954 on 18 February to the extent that the Claimant's primary for demurrage fails; and |(ii) the cost of bunkers consumed between 1026 on 12 February 2008 and 0954 on 18 February 2008, to the extent that the claim for bunkers under Clauses 5.2 and/or 5.3 fails.
55. At the hearing, Mr Macey-Dare accepted that the Claimant cannot recover the damages comprehended in (i), as the sole remedy for loss suffered through detention of the vessel by reason of failing to load within the laydays is demurrage. He proceeded to limit the Claimant's summary judgement application to a declaration that the Defendant was liable for the cost of additional bunkers consumed as a result of being ordered off her berth on 11 February 2008, shifting to the roads and then reberthing on 17 February 2008, to the extent that these exceeded what she would have consumed in the period by simply remaining on the berth.
56. Mr Byam-Cook submitted that the Claimant's claim remains one for loss suffered through the detention of the vessel by reason of the Defendant failing to load within the laydays and the sole remedy in these circumstances is demurrage (which includes the cost of bunkers consumed during the relevant period of detention), even if the charterer is in breach of some other obligation, so long as that breach resulted in no other kind of loss; see Voyage Charters (2007) 3^rd Ed para 16.13; and Inverkip Steamship Co Ltd v Bunge & Co [1917] 2 KB 198. It follows, argued Mr Byam-Cook that if the demurrage claim fails, the implied term route does not provide a fallback for the Claimant. I agree with this submission. The demurrage claim has failed for the reasons given above. It follows that the Defendant is entitled to summary judgement on this claim under the pleaded implied term.
57. I am also of the view that this claim is time-barred under Clause 20.1 because it is a claim for detention or deviation of the vessel and was made for the first time in the Particulars of Claim which were served in March 2010. In my judgement, this is not a case of a mislabelled claim being made within the 90 day period. It is a claim for unliquidated damages whereas the claim made in the Time and Bunkers Invoice was a claim for additional freight under the Vitol Interim Ports Clause and that invoice referred to a different period of time from that now claimed. The claim now asserted is therefore of such a different nature from the one made on 31 March 2008 that it is time-barred.
58. Moreover, the Claimant did not present "full supporting documentation substantiating each and every constituent part of the claim" within the 90 day period. This is so because the Claimant did not present a document which explains the Claimant's calculations and did not provide, as it should have done, records of the vessel's daily bunker consumption or records of her bunker consumption between 1026 on 12 February 2008 to 0954 on 18 February 2008. What the Claimant has done is to rely on a prorating of quantity of bunkers set out in the Master's Statement of Fact, but this is not an acceptable approach because during the period in question the vessel spent some time shifting, some time idling and some time discharging, and during these different operations she would have consumed bunkers at different rates.
59. Finally, if I am wrong in my view that the Defendant should have summary judgement for the reasons given in paragraphs 56-58, I nonetheless think that the Claimant's claim for damages should be tried out allowing the Defendant to explore: (i) the events at the loadport which bear on the question whether the latest time by which the Defendant was to bring the cargo to the place of loading was 0725 on 11 February 2008 and (ii) the extent, if any, by which the Defendant exceeded the time allowed under the implied term, bearing in mind that The GANGES SPIRIT tendered her notice of readiness early on 12 February 2008.

Conclusion

60. The Claimant's application for summary judgement on the various claims advanced in the hearing is dismissed, whilst the Defendant's application for summary judgement on those claims succeeds.

Note 1   All times stated in this judgement are local times.    [Back]

Note 2   This provided: “Charterers shall be discharged and released from all liability in respect of any claims Owners may have under this Charter Party (such as, but not limited to, claims for deadfreight, demurrage, shifting expenses or port expenses) unless a claim has been presented to Charterers in writing with all available supporting documents within 90 . . . days from completion of discharge of the cargo concerned under this Charter Party.”    [Back]