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Is the Claimant’s Claim time barred?
Is the Claimant’s Claim time barred?
It is the Defendant’s case that the Claimant’s claim, being a non-demurrage claim, was time-barred because no claim in writing, with supporting documentation, was presented to the Defendant within 90 days of the alleged claims.
Clause 2A of the Defendant's standard clauses, which formed part of the Charterparty, provided that:
“CHARTERERS SHALL BE DISCHARGED AND RELEASED FROM LIABILITY IN RESPECT OF ANY DEMURRAGE CLAIMS OWNERS MAY HAVE UNDER THIS CHARTERPARTY (SUCH AS; BUT NOT LIMITED TO, CLAIMS FOR DEADFREIGHT, DEMURRAGE, SHIFTING OR PORT EXPENSES) UNLESS A CLAIM HAS BEEN PRESENTED IN WRITING TO CHARTERERS WITH SUPPORTING DOCUMENTATION WITHIN SIXTY (60) DAYS FROM COMPLETION OF DISCHARGE OF THE CARGO UNDER THIS CHARTERPARTY AND 90 DAYS FOR OTHER CLAIMS PROVIDEDSUPPORTING DOCUMENTS ARE AVAILABLE (EXCLUDING B/L CLAIMS). (the “Time Bar Clause”)
The underlined words were specifically added to the Charterparty. Those struck through were specifically deleted.
It was common ground that time bar clauses are treated as limitation clauses and are interpreted strictly and in cases of real doubt, contra preferentem: see Lewison, The Interpretation of Contracts, 8th Edn, 12.150-12.155, Arab Lawyers Network Co Ltd v. Thomson Reuters (Professional) UK Ltd [2021] EWHC 1728 (Comm) at [44] per Mr Peter MacDonald Eggars KC, sitting as a Deputy Judge of the High Court at and BP Oil International Ltd v. Vega Petroleum Ltd [2021] EWHC 1364 (Comm) at [254], where Cockerill J stated:
“… if there is any doubt about what the time-bar clause means (i.e. whether it applies to any given set of facts is ambiguous) then that ambiguity in meaning should be resolved in such a way as not to prevent an otherwise legitimate claim from being pursued.”
- Heading
- Mr ANDREW HOCHHAUSER KC
- The Hearing, representation and the evidence
- The Expert Evidence
- The Relevant Factual Background
- The Issues
- The EPS Sanctions Clause
- The Claimant’s submissions on the proper construction of the EPS Sanctions Clause
- The Claimant’s submissions on “reasonable judgment” and the burden of proof
- The Claimant’s submissions on the evidence that can be considered when determining reasonableness of the Claimant’s decision
- The Defendant’s submissions on the proper construction of the EPS Sanctions Clause
- The Defendant’s submissions on sub-clause (C) of the EPS Sanctions Clause
- The Defendant’s submissions on “reasonable judgment” and the burden of proof
- The Defendant’s submissions on the evidence that can be considered when determining reasonableness of the Claimant’s decision
- Discussion and conclusion in relation to the proper construction of the EPS Sanctions Clause and burden of proof
- Discussion and conclusion on the evidence that can be considered when determining reasonableness of the Claimant’s decision
- On the facts did the Claimant satisfy the provisions of sub-clause (C) of the EPS Sanctions Clause i.e. did the Claimant make an objectively reasonable judgment that there was an exposure to sanctions
- EU Sanctions Laws
- The EU Regulations
- The EU Best Practices Guidance
- The UK Sanctions Laws
- The UK provisions in relation to control
- The case law on control
- The Evidence
- The letter on Neftisa headed paper dated 16 November 2021
- The Kommersant Newspaper article dated 22 July 2021
- The Three Legal Opinions drafted by Herbert Smith and Baker and McKenzie which the Defendant provided to the Claimant in November 2021 (the “Legal Opinions”)
- Discussion and conclusion in relation to whether the Claimant made an objectively reasonable judgment that there was an exposure to sanctions, in that the listed persons were subject to the risk of sa
- The ECJ Decision
- Conclusion on the Claimant’s Claim
- Is the Claimant’s Claim time barred?
- The Claimants’ submissions on the Time Bar Clause
- The Defendant’s submissions on the Time Bar Clause
- Conclusions