Tricon Energy Ltd v MTM Trading LLC
| Jurisdiction | England & Wales |
| Judge | Robin Knowles J,Mr Justice Robin Knowles CBE |
| Judgment Date | 23 March 2020 |
| Neutral Citation | [2020] EWHC 700 (Comm) |
| Date | 23 March 2020 |
| Docket Number | Claim no: CL-2019-000165 |
| Court | Queen's Bench Division (Commercial Court) |
[2020] EWHC 700 (Comm)
IN THE HIGH COURT OF JUSTICE
THE BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Robin Knowles CBE
Claim no: CL-2019-000165
In the Matter of the Arbitration Act 1996
And in the matter of an Arbitration
Thomas Steward (instructed by HFW LLP) for the Claimant (Respondent in the Arbitration)
Karen Maxwell (instructed by Lax & Co LLP) for the Defendant (Claimant in the Arbitration)
Hearing date: 19 September 2019
Approved Judgment
I direct that pursuant to CPR PD39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic
Introduction
The claimants, Tricon Energy Ltd (“the Charterers”) appeal pursuant to section 69 of the Arbitration Act 1996 (“the 1996 Act”) in respect of a question of law arising out of the award of an experienced arbitral tribunal, dated 13 February 2019 (“the Award”). Permission to appeal was given by Popplewell J on 21 June 2019.
The defendants, MTM Trading LLC (“the Owners”) were the owners of the vessel ‘MTM HONG KONG’ (“the vessel”) which was chartered to the Charterers under a charterparty dated 13 February 2017 (“the Charterparty”).
The Owners brought a claim for demurrage in the amount of US$56,049.36 as a result of delays at both the load port, Antwerp, and the discharge port, Houston. A formal demurrage claim was submitted by email on 9 June 2017, which attached a number of documents. The demurrage due was calculated in the net sum of US$55,841.16. The claim was subsequently revised to US$56,049.36, the figure maintained in the arbitration proceedings.
The Charterers disputed that the demurrage claimed was due to the Owners. The principal grounds were that the demurrage claim had not attached all of the necessary documents and that, because the 90-day period to submit those documents had elapsed, the demurrage claim had become time-barred.
At the invitation of the parties, the tribunal made the Award on the basis of written submissions alone. By the Award, the tribunal held that the Owners' demurrage claim succeeded in full. It awarded the Owners US$56,049.36.
The Charterparty terms
The Charterparty was on an amended Asbatankvoy form.
The most relevant provisions of the Charterparty were as follows:
By clause 10:
“ Laytime/Demurrage
… …
(e) If load or discharge is done simultaneously with other parcels then laytime to be applied prorate between the parcels.
…
(g) In the event of Vessel being delayed in berthing and the Vessel has to load and / or discharge at the port(s) for the account of others, then such delay and/or waiting time and /or demurrage, if incurred, to be prorated according to the Bill of Lading quantities”.
By clause 12:
“ Statement of Facts
Statement of facts must be signed by supplier or receiver, respectively. If they refuse to sign, the Master must issue a contemporaneous protest to them. Owner shall instruct each port agent to release port information to Charterer on request and to forward to Charterer the statement of facts and N.O.R. as soon as possible after Vessel has completed loading or discharge there”.
By clause 38:
“ Time Bar Clause
Charterer shall be discharged and released from all liability in respect of any claim/invoice the Owner may have/send to Charterer under this Charter Party unless a claim/invoice in writing and all supporting documents have been received by Charterer within [90] days after completion of discharge of the cargo covered by this Charter Party or after other termination of the voyage, whichever occurs first. Any claim/invoice which Owner may have under this Charter Party shall be waived and absolutely barred, if claim/invoice and all supporting documents are not received by Charterer before the time bar”.
Both parties accepted that a manuscript amendment to clause 38 meant that the time bar period was one of 90 days.
Common ground
The following was common ground:
(a) the Vessel tendered Notice of Readiness (“NOR”) at the loadport, Antwerp, on 21 February 2017 at 11.12;
(b) hoses disconnected on 25 February 2017 at 20.20;
(c) NOR was tendered at the discharge port, Houston, on 20 March 2017 at 01.12;
(d) the Vessel was shifting to her berth between 14.48 and 20.40 on 21 March 2017;
(e) discharge commenced on 22 March 2017 at 03.20;
(f) discharge was completed, with hoses disconnected, at 04.30 on 23 March 2017.
A second parcel of cargo was discharged at the same berth in Houston. This engaged the provisions of clause 10 of the Charterparty, which governs simultaneous cargo operations.
The Owners' claim for demurrage of US$55,841.16 was submitted within the 90-day period (on 9 June 2017). The claim was supported by the demurrage invoice, laytime/demurrage calculations, NOR, vessel timesheet/statement of facts, hourly rate/pressure logs and various letters of protest.
The Owners did not provide copies of the two bills of lading for the two parcels of cargo (the Charterers' parcel and the second parcel).
The statement of facts provided did not accurately record the bill of lading quantities, at least insofar as the bill of lading for the Charterers' parcel was concerned. The Owners stated that the error arose from the wrong figure having been recorded by the Master in the NOR for discharge at Houston which was then inserted into the statement of facts and not picked up by the port agent.
The statement of facts for the third party's parcel of cargo was redacted and covered the discharge port only. It suggested that the bill of lading quantity for that parcel was 6,014.906 MT.
The dispute
The Charterers' case was that the Owners had failed to provide “all supporting documents” in accordance with clause 38 because copies of the bills of lading were not provided.
The Owners' case was that their claim was sufficiently documented for the purpose of clause 38 by the statements of facts and, in any event, the bill of lading for the second parcel was not an available document for the purposes of clause 38.
The question on the appeal
The question of law on which the Charterers have been granted permission to appeal by Popplewell J is framed as follows:
“Where a charterparty requires demurrage to be calculated by reference to bill of lading quantities, and contains a demurrage time bar which requires provision of all supporting documents, will a claim for demurrage be time-barred if the vessel owner fails to provide copies of the bills of lading?”
The Award
The tribunal answered the question in the negative, on the basis that the provision of the statement of facts was sufficient.
The tribunal reasoned:
“The statement of facts which records the bill of lading figure is in reality all that Charterers need to check that the apportionment of waiting and discharging time has been correctly calculated.”
The tribunal added:
“We were not persuaded by the Charterers' argument that they needed to see the bill of lading to satisfy themselves that the cargo quantity figures recorded in the statements of facts had been calculated on the same basis, namely measured in air or in a vacuum; since the statements of facts were prepared by ship's officers in the knowledge that they would be required to pro-rate discharging time, they would have used the cargo quantity figure recorded...
To continue reading
Request your trial
-
Demurrage Claims: Withholding Supporting Documents Results In Time Bar Of Claim
...Ltd v MTM Trading LLC [2020] EWHC 700 (Comm) underlines the importance of a thorough consideration of all available documentary evidence when presenting a claim which is subject to a time bar clause requiring the presentation of "all supporting documents". Failure to provide an available do......
-
Demurrage Time-bar Clauses Under The Spotlight Again
...supporting documents under Clause 5 that were already in their possession. The second case is Tricon Energy Ltd v MTM Trading LLC [2020] EWHC 700 (Comm) (Robin Knowles, J.), where the relevant clause also required "all supporting documents" to be provided. Charterers' cargo was one of sever......