[2025] EWHC 2036 (Comm)

Mr Coldrick made three principal submissions as to why its claim was not time-barred. First, the 90 day period runs from the date of completion of the discharge, not the date of accrual of the cause of action. Here time never began to run under the Time Bar Clause, which required claims to be presented within the stipulated number of days after completion of discharge of the cargo under the Charterparty. No cargo was even loaded, let alone discharged, and so time never began to run under the clause: see [17]-[25] of Odfjfell Seachem A/S v. Continentale des Petroles et d'Investissements (The “BOW CEDAR”) [2004] EWHC 2929 (Comm); [2005] 1 Lloyd's Rep. 275 at 278-279 per Nigel Teare QC, then sitting as a Deputy Judge of the High Court and BP Oil International Ltd v Vega Petroleum Ltd at [247]-[250]per Cockerill J. The Defendant has given no example of a case where a time bar clause has been read as running from the date of accrual of the cause of action. To construe the clause this way would be to construe against the Claimant, precisely the opposite of the contra proferentem approach.

Secondly, the word “demurrage” was added before the word “claims” in the first part of the clause, such that, as amended, the clause only provides for the barring of demurrage claims. The words added at the end of the clause were poorly drafted and are difficult to understand. At best, they are ambiguous. They are not sufficiently clear to impose a general time bar. One would have to read in at the conclusion of the clause, words such as “failing which such other claims shall too be barred” in order to have an express term barring “other claims”. It is neither obvious nor necessary that that should be done. The clause does not refer to “any other claims howsoever arising” and it is far from clear that the parties had in mind barring all claims of whatsoever nature, including claims for renunciation of the Charterparty or claims arising in circumstances where nothing is carried under the Charterparty.

The purpose of such a clause is to ensure that ordinary, everyday shipping claims such as claims in respect of port dues or agents fees or vessel/cargo related disbursements, cargo shortfall (‘deadfreight’) claims are presented quickly for practical/operational reasons, so as to enable such matters to be taken up promptly with the persons concerned – e.g. port agents, stevedores, the master and offices of the vessel and so forth. A claim for repudiatory breach of the whole charterparty is of a different character and it is unlikely to have been intended to be within the “other claims” referred to. Applying the contra proferentem rule, it should not apply to the present circumstances.

Thirdly, even if the clause did impose the time bar asserted, the email dated 24 November 2021, by which the Claimant terminated the Charterparty on the grounds of the Defendant’s alleged repudiatory breach was sufficient to satisfy the requirements of the clause, at least insofar as the claim for damages for repudiatory breach is concerned.