Содержание
When a vessel is delayed through the charterer’s fault, but the charter contains no demurrage provision or the demurrage period has already expired, the owner can claim damages for detention. The two concepts are often confused, yet they have a fundamentally different legal nature, are calculated differently, and carry different consequences for both sides.
What detention is
Detention is the owner’s claim for unliquidated damages caused by the charterer’s breach of contract. Unlike demurrage, whose rate is fixed in the charter as liquidated damages, detention compensates the owner’s actual loss, which must be proved.
In Harris & Dixon v. Marcus Jacobs & Co (1885) 15 QBD 247 the court described detention as compensation “in the nature of demurrage” — that is, similar to demurrage in substance, since both mechanisms compensate the owner for the vessel’s idle time. The difference lies in the legal basis and the method of calculation.
Detention vs. demurrage: key differences
Confusion between detention and demurrage is common even among experienced market participants. The main distinctions are:
| Demurrage | Detention | |
|---|---|---|
| Legal nature | Liquidated damages — pre-agreed rate | Unliquidated damages — actual loss |
| Rate | Fixed in the charter ($/day) | Not fixed — established on the facts |
| Burden of proof | No need to prove loss — it is enough to show that laytime has been exceeded | The owner must prove (1) the charterer’s breach, (2) the delay, and (3) the amount of loss |
| Relationship with laytime | Arises only after laytime has been exceeded at the loading or discharging port | May arise at any stage of the voyage — including before laytime starts to run or after it has ended |
What both mechanisms have in common is that they run on a basis of running days: holidays, weekends and weather exceptions do not interrupt the accrual of either demurrage or detention.
When a claim for detention arises
A claim for detention may arise at various stages of the voyage. Let us look at the main situations.
Before the vessel arrives at the loading or discharge port
Delays may occur on the approach voyage or during the carrying voyage itself. Where the delay is caused by the charterer’s breach, this is grounds for a detention claim.
A typical example is The Timna [1971] 2 Lloyd’s Rep. 91. The charterers were required to nominate the discharging port but failed to do so in time. The court held that to make a valid nomination the charterer had to give a firm order, not merely “direct” the vessel towards the river. Until a firm order was given, the vessel waited for 16 days. The demurrage claim failed (the vessel had not become an arrived ship at the discharge port), but the detention claim succeeded.
The case nicely illustrates the underlying distinction: demurrage is tied to a particular place (the port), whereas detention can arise at any point in the voyage if the delay is caused by the charterer’s breach.
While laytime is running
If the charterer breaches its obligations after the vessel has arrived and laytime has begun to run, the position on detention becomes less clear-cut. The general rule is that the charterer has “bought” the laytime by paying the freight and is entitled to use it as it sees fit — including using it to absorb delays caused by its own breach.
As Lord Denning put it in The Delian Spirit [1971] 1 Lloyd’s Rep. 506 (CA), a charterer whose breach has caused the delay is entitled to use the remaining laytime to absorb that delay. If laytime is ultimately exceeded, the owner recovers demurrage at the agreed rate but cannot also claim detention for the same delay.
This rule applies, however, only to delays connected with cargo operations. The Court of Appeal in K Line Pte v Priminds Shipping (The Eternal Bliss) [2021] EWCA Civ 1712 confirmed that demurrage is the exclusive remedy for breach of the obligation to complete loading or discharging within the laytime. But where the charterer breaches another obligation under the charter — for example, by ordering a change of loading port — the owner may claim detention as separate damages even before laytime has expired. The key question is whether the charterer’s breach is independent (separate from the cargo-handling obligation) or merely the same delay in cargo operations that demurrage already covers.
After cargo operations are completed
Laytime covers the time for loading and discharging — that is, the cargo operations themselves. Once those operations are finished, however, delays may arise that no longer fall within the laytime mechanism. This is precisely the moment when detention “kicks in”.
A classic example is delay in issuing bills of lading. In Owners of the Steamship Nolisement v. Bunge and Born (1916) 22 CC 135 loading was completed in only 8 of the 27 laydays available. The master called for bills of lading and orders as to the port of destination, but the charterers failed to provide them for three days. The court held that the charterer is not entitled to detain the vessel after loading is finished by drawing on the unused balance of laytime. Laytime is intended for cargo operations — once they are complete, the “bank” of unused laydays does not give the charterer the right to keep the vessel for other purposes. Delay in issuing documents is a separate breach for which detention runs.
There is an important nuance here: whether a delay is classified as demurrage or detention depends on what counts as completion of cargo operations. The point at which cargo operations are deemed complete is contested and depends heavily on the cargo type. For dry cargo, laytime usually continues until loading or discharge is complete and the vessel is ready to sail — including closing the hatches and removing dunnage (e.g. Gencon 1994, Clause 5: “time counts until the completion of discharging and the removal of dunnage”). For tankers, laytime usually ends with disconnection of the cargo hoses or, on loading, after all cargo documents have been placed on board. Courts and arbitrators usually allow 2–3 hours after the actual completion of operations for paperwork — this is a settled trade custom, although it may also be expressly written into the form. If the documents are not provided within a reasonable time, the further delay is treated as detention. Such situations are often disputed, and the outcome depends on the wording of the particular charter.
A similar position arises where the charterer delays orders as to the port of destination after loading. The vessel is loaded and ready to sail but cannot leave port until the charterer says where to go. Cargo operations are complete and the laytime mechanism no longer applies.
By agreement of the parties
The parties sometimes provide expressly in the charter for payment in respect of vessel delay in defined circumstances. This is particularly common in the tanker trade, where the charter may include a clause permitting the cargo to be kept on board (floating storage) for up to 30 days at a rate calculated as the daily rate of hire plus bunkers consumed.
In substance, such a clause turns a voyage charter into a time charter for the period of the delay. The compensation for that delay is calculated by reference to pre-agreed parameters — much like demurrage.
How detention is calculated
Unlike demurrage, where the rate is fixed, in a detention claim the owner must prove the actual loss. In practice, however, the demurrage rate often serves as a starting point for the calculation.
In The Boral Gas [1988] 1 Lloyd’s Rep. 342 Evans J observed that even where unliquidated damages are claimed, they are normally assessed at the demurrage rate, plus any additional bunkers consumed if the delay occurred during the voyage.
That makes sense: the demurrage rate has already been agreed by the parties as a fair valuation of the loss caused by idle time. Courts and arbitrators therefore take it as the baseline, even though, formally, the owner is not capped at that rate in a detention claim. If the actual loss is higher — for example, the owner has lost a profitable next fixture — he is entitled to recover the difference, but he must prove it.
Conclusion
Detention is the mechanism for compensating the owner’s loss caused by delay to the vessel — it “kicks in” where demurrage ends or is not provided for at all. The key difference is the burden of proof: for demurrage it is enough to show that laytime has been exceeded, whereas for detention the owner must prove both the charterer’s breach and the actual amount of the loss. In practice, courts often use the demurrage rate as a yardstick for assessing detention, but they are not bound by it — if the actual loss is higher, the owner is entitled to recover the difference.
If you have questions about demurrage, detention or other aspects of charterparty disputes, or you need help preparing or defending a claim in arbitration, get in touch:
