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The Defendant’s submissions on the Time Bar Clause
The Defendant’s submissions on the Time Bar Clause
Mr Shirley submitted that:
demurrage claims receive separate treatment from other claims, and in respect of the former a claim must be presented in writing with supporting documents within sixty days of completion of discharge;
bill of lading claims are outside the clause entirely;
other claims must be presented in writing with supporting documents (insofar as they are available) within ninety days.
The three reasons advanced by the Claimant did not stand scrutiny.
As to the first point that time never started to run, it is only the demurrage time bar that is said to run from the completion of discharge, so only such a claim falls within the scope of the decision of Nigel Teare QC, as he then was, in The Bow Cedar. In that case at p278 rhc, the judge recognised that the purpose of time bar clauses was to ensure that claims are brought in a timely fashion, so that they can be investigated and, if possible, resolved while the facts are still fresh. There is, therefore, every reason to construe the Time Bar Clause so that it applies (and is not rendered ineffective in any case in which cargo is not discharged).
The present case is to be distinguished from BP Oil v. Vega. There, the relevant clause of the Charterparty, clause 32.3, only applied from delivery, actual or intended, and did not apply to all types of claim: see [127] and [250] of that decision.
The Claimant’s second reason is obviously wrong. The Time Bar Clause cannot conceivably be construed so that only demurrage claims are within its scope. The words “AND 90 DAYS FOR OTHER CLAIMS” are not remotely difficult to understand.
The third reason advanced by the Claimant, namely the terms of its termination email dated 24 November 2021, being relied upon as its written claim is absurd, because of the words used in the email. The email stated:
“Owners hereby accept the Charterer’s repudiatory breach and shall present their claim for damages forthwith.”
After ninety days, they had not done so.
- 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