Содержание
What is a demurrage time bar
Charterparties almost invariably contain a time bar clause — a strict deadline within which the shipowner must present its demurrage claim. Missing this deadline results in the total loss of the right to recover, even if the claim is well-founded and fully documented. Courts and arbitrators apply these clauses strictly, without exception.
A typical clause reads:
Demurrage, if any, shall be paid by Charterers upon receipt of Owner’s invoice, supported by all relevant documentation. Any claim for demurrage shall be deemed waived and absolutely time barred unless received by Charterers in writing, together with all supporting documents, within 90 days after completion of discharge.
The 90-day period is one of the most common in tanker charterparties. In the dry bulk trade, time bars range from 60 to 180 days, and some charters tie the time bar not to the presentation of a claim but to the commencement of arbitration.
The commercial rationale
Both parties benefit from prompt settlement of accounts after completion of the voyage. The purpose of time bar clauses is to ensure finality while the facts remain fresh and evidence is readily available. The Court of Appeal confirmed this rationale in The Eagle Valencia [2010] EWCA Civ 713.
For charterers, the time bar provides protection against stale claims surfacing months after the voyage, when verifying the calculation has become impractical. For owners, it is an incentive to compile and organise documentation promptly while agents and masters still recall the details.
Two types of time bar: claim presentation vs. arbitration
This distinction is critical — it determines the consequences of missing the deadline.
Claim presentation time bar
Most time bar clauses require the owner to submit a written claim with supporting documents within the stipulated period. This is a purely contractual condition precedent: if the owner fails to comply, the claim is deemed waived. Section 12 of the Arbitration Act 1996, which gives the court power to extend time limits, applies only to time limits for commencing arbitral proceedings, not to contractual conditions precedent regarding claim presentation. Accordingly, where a claim presentation time bar is missed, the court has no power to extend it — the clause operates automatically.
Arbitration commencement time bar
Some charters frame the time bar as a deadline for appointing an arbitrator or commencing arbitration. In that case, section 12 applies and the court may extend time if either of two conditions is satisfied:
- the circumstances preventing timely commencement were outside the reasonable contemplation of the parties when they entered into the agreement, and it would be just to extend time; or
- the conduct of one party makes it unjust to hold the other to the strict terms of the provision.
When negotiating a charter, the wording of the time bar deserves careful attention: it determines whether any possibility of restoring a missed deadline remains.
What documents must be provided
Time bar clauses typically require the claim to be accompanied by supporting documents. A standard package includes:
- Notice of Readiness (NOR) — the notice tendered when the vessel arrives and is ready to load or discharge. This is the cornerstone document: an invalid NOR can defeat the entire claim (see The Eagle Valencia below)
- Statement of Facts (SOF) — a chronological record of events at the port: arrival, berthing, commencement and completion of cargo operations, stoppages
- Laytime calculation — showing the permitted time and the time actually used
- Demurrage invoice — the amount claimed, broken down by rate and time on demurrage
- Pumping logs (tankers) — records of pumping rates and interruptions
- Master’s letters of protest — where delays were caused by the terminal or receivers
The precise requirements depend on the clause wording. Where the charter requires “all supporting documents,” this means every document substantiating both liability and quantum. Where the clause refers to documents “insofar as such documentation exists,” the owner need only provide those that actually exist and are obtainable with reasonable effort.
How the courts interpret time bar clauses
English courts apply several established principles:
Strict enforcement, but ambiguity resolved in favour of the owner
Time bar clauses are enforced strictly: where the wording is clear, the court will not soften the consequences, however draconian the result may appear. But where the wording admits of two constructions, doubts are resolved in favour of the owner — since the clause by its nature restricts the owner’s rights.
Substance over form
Courts assess whether the claim was presented in substance within the deadline, rather than demanding formal compliance with every word of the clause. If the documents make clear that the owner is claiming demurrage for a particular period in a particular amount, minor defects of form will not necessarily result in a time bar.
Documents need not be submitted simultaneously
In The Amalie Essberger [2019] EWHC 3402 (Comm), the court held that supporting documents need not be submitted at the same time as the claim. It is sufficient that all necessary documents are received by the charterer before the deadline expires. A contrary conclusion would require clear and unambiguous language in the charter.
Documents already in the charterer’s possession
Where the charterer already holds certain documents (for example, a SOF signed by its agent), the owner may rely on them without re-submitting. However, this works only where the specific document is expressly named in the clause and the charterer demonstrably holds it.
Key cases
The case law on demurrage time bars is, at its core, the history of one unresolved question: if the owner fails to provide all documents for one part of the claim, does it lose only that part or the entire claim? Over the past 15 years, courts have given directly contradictory answers.
The Eagle Valencia (2010): invalid NOR
In AET Inc. v Arcadia Petroleum Ltd (The Eagle Valencia) [2010] EWCA Civ 713, the vessel was chartered on Shellvoy 5 terms for loading at Escravos, Nigeria. The vessel arrived on 15 January and tendered NOR, but the NOR was held invalid because the vessel had not obtained free pratique. A second NOR — tendered “without prejudice” — was given on 16 January after free pratique was obtained and was held valid.
The charter required the demurrage claim to be “fully and correctly documented” and received within 90 days after completion of discharge. The owner’s claim package included only the NOR of 15 January. The valid NOR of 16 January was referenced only after the 90-day period had expired.
The Court of Appeal held the claim time-barred. NOR is the foundation of any demurrage claim. Where the only NOR submitted within the time bar is contractually invalid, the claim cannot be treated as “fully and correctly documented.” Where there is any doubt about the validity of the first NOR, a second one should be tendered “without prejudice” and both included in the claim package.
The Sabrewing (2007): the strict approach — all or nothing
In Waterfront Shipping Co v Trafigura (The Sabrewing) [2007] EWHC 2482 (Comm), Gloster J formulated what became known as the strict approach: where the owner submits a single composite demurrage claim and fails to provide all required documents for even one constituent part, the time bar applies to the entire claim, not merely to the undocumented portion.
The reasoning: the clause refers to “the claim” in the singular. If the clause requires the claim to be supported by “all supporting documents substantiating each and every constituent part of the claim,” an incomplete package means non-compliance with the condition as a whole.
The Eternity (2008): the flexible approach — the claim can be divided
In Losinjska Plovidba Brodarstovo dd v Valfracht Maritime Co Ltd (The Eternity) [[2008] EWHC 2653 (Comm)], David Steel J took the opposite view. The owner had failed to include pumping logs for the discharge period, but the remaining elements of the claim (relating to a separate period of delay during ship-to-ship transfer) were fully documented.
Steel J declined to strike out the entire claim. He described the strict approach in The Sabrewing as “commercially surprising” and held that the owner was entitled to present claims for separate periods separately. The absence of documents for one period should not destroy the documented portion.
The Abqaiq (2012): substance over characterisation
In National Shipping Co of Saudi Arabia v BP Oil Supply Co (The Abqaiq) [2011] EWCA Civ 1127, the Court of Appeal called for a “commonsense approach.” The owner had initially characterised its claim as extra freight but later re-characterised it as demurrage. The Court permitted the change: all supporting documents had been submitted within the 90-day period, and the documents made clear what the claim was for. A change of legal characterisation is not a “new claim.”
The Court also noted that the time bar may be satisfied where the necessary documents were provided to the charterer by a third party (for example, an agent), or where the owner asked the charterer to refer to documents already in its possession. This is the only case in this line of authority to have reached the Court of Appeal; the strict vs flexible question was not directly addressed on appeal.
The Adventure (2015): port logs are mandatory
In Kassiopi Maritime Co Ltd v Fal Shipping Co Ltd (The Adventure) [2015] EWHC 318 (Comm), the charter required “all supporting documentation substantiating each and every constituent part of the claim.” The owner failed to include port logs and time sheets. The court rejected the claim: port logs are “primary documents containing factual material” necessary for the charterer to verify the calculation. The owner’s argument that the charterer could have obtained these documents from the terminal was dismissed — the obligation to provide lies with the claimant.
The Tiger Shanghai (2019): privileged documents
In MUR Shipping BV v Louis Dreyfus Company Suisse SA (The Tiger Shanghai) [2019] EWHC 3240 (Comm), Cockerill J considered whether the obligation to provide “all available supporting documents” extends to documents covered by legal professional privilege.
The charterer MUR had commissioned a technical report from CSS Control Systems in connection with its dispute with the owner. The report was not included in the claim package within the 12-month time bar. MUR argued it was protected by litigation privilege, having been prepared in contemplation of proceedings.
The court rejected this argument. Cockerill J held that exempting privileged documents from the required package would be “profoundly uncommercial” and would create unacceptable uncertainty. The purpose of the clause is full disclosure of documents supporting the claim. If a document falls within the definition of “supporting document,” it must be provided regardless of privilege, or the claim will be time-barred.
The Amalie Essberger (2019): systematisation
In Tankreederei GmbH & Co KG v Marubeni Corporation (The Amalie Essberger) [2019] EWHC 3402 (Comm), the court systematised the approach to time bar clauses and answered five practical questions:
What counts as a “supporting” document? — Documents on which the owner relies to substantiate each element of its claim. This is not a disclosure exercise — there is no obligation to produce adverse documents.
What if specifically named documents are missing? — If the clause lists specific documents (e.g. “pumping logs”) and the owner has not provided them, nor shown that they do not exist, the time bar applies to the entire claim.
Must documents be submitted simultaneously with the claim? — No. It is sufficient that all documents are received by the charterer before the deadline.
May the owner rely on documents already in the charterer’s possession? — Yes, provided the document is expressly named in the clause and the charterer demonstrably holds it.
Strict or flexible approach? — The court expressed the view (obiter) that inadequate documentation for one part results in the loss of the entire claim. This supports The Sabrewing and casts doubt on The Eternity.
Tricon Energy v MTM Trading (2020): specifically referenced documents
In Tricon Energy Ltd v MTM Trading LLC (MTM Hong Kong) [2020] EWHC 700 (Comm), the charter calculated demurrage by reference to “bill of lading quantities” and required “all supporting documents.” The owner did not include the bills of lading. The court held the claim time-barred: where the charter expressly references a specific document as the basis for calculation, that document is mandatory in the package.
The Maria (2021): the applicable time zone
In Euronav NV v Repsol Trading SA (The Maria) [2021] EWHC 2565 (Comm), the tanker Maria carried a cargo from Brazil to Long Beach, California. Discharge was completed on 24 December 2019 in Long Beach local time, but on 25 December in European time. The charter, on Shellvoy 6 terms, imposed a 60-day time bar. The owner calculated the deadline from 25 December (European time) and missed the bar by one day.
The court held that the date of completion of discharge is determined by local time at the port of discharge. This is logical, since the date of discharge feeds into numerous contractual calculations beyond demurrage, and tying it to the location of the physical event provides the greatest certainty. A claim of approximately $487,000 was held time-barred because of a one-day difference.
The unresolved question: strict vs flexible
The debate between the strict approach (The Sabrewing, supported obiter in The Amalie Essberger) and the flexible approach (The Eternity) remains formally unresolved. The Abqaiq — the only case in this line to have reached the Court of Appeal — did not address this question directly. None of these cases has reached the Supreme Court. In practice, it is safer to proceed on the strict approach: if any required document is missing for any part of the claim, there is a risk of losing the claim in its entirety.
Can errors be corrected after the time bar has expired
The case law suggests a limited but real possibility:
- Correcting calculations — permissible where all required documents were submitted in time. A recalculation of the demurrage amount based on the same documents is not a “new claim.”
- Changing the legal basis — possible (as in The Abqaiq) where the documentation supports the claim regardless of its legal characterisation.
- Adding new documents — not permissible after expiry of the time bar, where the clause requires documents to be submitted “within” the stipulated period.
- A new basis requiring new factual findings — likely to be rejected as time-barred, even if the original claim was submitted in time.
Conclusion
The demurrage time bar is a harsh but predictable mechanism. Courts apply it literally, without exception on grounds of “fairness” or “reasonableness,” where the wording of the clause is clear. The only real protection against losing a claim is disciplined document collection and timely submission. Where a claim presentation time bar is missed, the deadline cannot be restored; where an arbitration time bar is missed, an application under section 12 of the Arbitration Act 1996 is possible but the chances of success are limited.
If you have questions about demurrage and time bar clauses or need assistance preparing and presenting a claim, get in touch:
