We heard this week that the Home Office got it wrong about the deadline to lodge an appeal in the case under the European Convention on Human Rights ECHR. Any good demurrage analyst could have told them that. The Government said the deadline for the appeal was midnight 16th April, whereas the other side said it was midnight 17th and their appeal was lodged sometime during that day.
This deadline is no different to the demurrage time bars we all have to contend with and this case is an illustration of how to calculate a time bar and is simply a question of whether the Judgement Day is counted as day one or day zero.
According to ukhumanrightsblog.com the ECHR says “
Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.”
Judgment Day was 17th January 2012 so does the three month period run:
a) From 17th January 2012 to 16th April 2012, or
b) From 18th January 2012 to 17th April 2012
Ukhumarightsblog.com infers that the English text is ambiguous but I am not so sure when you look at typical demurrage time bar clauses. BPVOY4 for example states:
“Charterers shall be discharged and released from all liability…. unless a claim in writing has been presented … within ninety (90) days of the completion of discharge…”
I don’t see this wording to be fundamentally different to that of the ECHR and it is established that a clause like BPVOY4’s is interpreted to mean that completion of discharge is day zero in the count to 90 days. If you want to count the trigger date as day one you have to write the time bar very specifically to count this way.
In the ARA barge world where time bars are usually just 30 days it is often argued that the trigger date is day one. In my opinion this is not the case as a general rule, or industry practice as it is often argued. Here is an extract of a clause where it is specifically stipulated that the trigger date is day one:
“Any claim for demurrage must be received by seller in writing with full supporting documents within thirty days of completion of loading (Completion of Loading = Day 1) failing which the claim shall be deemed waived by buyer and time-barred.”
A clause like this is the only way to be sure you get the time bar you want.
Last week I was at the European Oil Barge Conference (see my other blog this week for a review) and David Atkins presented a case study where he looked nomination clauses and specifically the meaning of giving two days notice. He cited a 1971 case* where Lord Justice Denning ruled that where we need to give a number of days notice we have to ensure that the number of days quoted are clear full days. What this means when giving two days notice is that a notice given on a Monday is not effective until Thursday i.e. Tuesday and Wednesday being the full clear days that need to elapse first.
I’m not sure I agree with this interpretation and we didn’t come to a conclusion at the conference. I can’t find any other cases to support my case. What do you think?
Please share your thoughts on this but remember this is a discussion about time bars and notice periods – NO POLITICS PLEASE!
* Carapanayoti & Co Ltd v Comptoir Commercial Andre & Cie SA (Court of Appeal 1971)
10 thoughts on “What a difference a Day Makes”
Phil, there may be some legal precedents going back to the old products chain contracts like Russian Gas Oil and Open Spec Naphtha where the time of nomination was critical, and oft disputed, as laytime often commenced from expiry thereof. I’m a bit out of touch now but Roger Sepkes used to deal with it a lot and may have some papers. Best of luck. Ray Dunkley
hi Ray, thanks for your comments, I'll check it out
best regards
Phil
Hi Phil & Ray, this is a most interesting concept and worth pursuing ~ have you yet managed to extract any help from our friend Roger Sepkes ?
Thanks for your interest Jeffrey. I have been talking to an experienced industry lawyer about this – I hope to post an update soon, in the meantime if anyone has a view on this please post here
Best regards
Phil
Phil,
Regarding nomination requirements, the distinction is one between, say a ‘working’ & a ‘clear’ working day. In the case of the latter, the issue raises ithe point that a ‘clear’ day is one of 24 hours, whilst a ‘working day’ may run from the time the nomination is received.
Contracts done,say within ‘ARGUS’ may be subject to their methodology, but that is another matter.
David
Hi David, thanks for your comment. I believe the practice in the business may be different to the 1971 case quoted above. I have yet to meet up with the lawyer I mentioned in my comment earlier. If he has anything to add to the debate I will post it here.
best regards
Phil
Phil,
Thanks.
We tend to opt for a ‘Clear’ working day, as do a number of business counterparts.
BP, If my memory serves me right,, apply ‘ working’ days. From a commercial viewpoint, it is often a matter of back to back, but short of the market proving willing to agree a strict standard, the practice will go on.
As advised previously, trades done in ‘Argus’ or ‘Platts’ may apply their own specific methodology to the point.
David
Good day to all
I have a very interesting case regarding a time bar clause, on which we have already taken legal advice (not looking for free advice here ;), just for your opinion as experts).
However, this advice was found discouraging and not in agreement with my perception (demurrage / claims department)…
A lot of exchanges followed with our lawyers who insisted on their view.
The essence of the dispute:
We have a time bar clause (charterers' additional clause of course) in the c/p as follows:
'Charterer shall be discharged and released from all liability with respect to any claim Owner may have under this Charter (including, but not limited to, claims for demurrage and dead freight), and all such claims shall be waived and absolutely barred, unless Charterer receives Owner’s claim or invoice in writing, together with all supporting documents, duly signed by shipper(s) and receiver(s) within 30 days after bill of lading date at last load port.'
1) The claim had been sent and received by the charterers before the 30 days (too narrow time bar!!!) of the B/L date.
2) The supporting documents had all the signatures by the loading and the discharging terminals accordingly.
3) The charterers never paid or even replied to our claim.
In our effort to proceed with arbitration on this one, we received the following comment by one of our lawyers:
'The signatures on the documents are by the terminals and not by the shippers and receivers as stated in the Bill of Lading (different company names), therefore as per above clause the claim does not have many chances of success'
Our response was that we had presented all the supporting documents, signed by the terminals who always sign the documents and that this was no reason enough for the claim to be time barred (in very short, as a lot of messages were exchanged).
Your view on the above please, since it appears that if the above suggestion is true the system does not work, which is quite discouraging for our efforts in this department.
Thank you in advance
Petros Alexopoulos
Hi Petros
Thanks for your post
You raise an interesting point where the shipper and receivers must sign the documents. I think you could have three possible arguments to support your case.
1. I assume the shippers and the receivers are based in the respective ports and could have signed the documents if requested? If they are not physically based in the port then I would argue that to have these signatures on the documents is impossible and charterers cannot ask you to comply with something that is impossible.
2. If the suppliers and receivers are based in the respective ports you may want to check with the agents to find out if these parties ever sign the documents for any other shipments, or indeed are they ever asked to sign such documents. If they don’t normally sign or refuse to sign this may give your argument some weight.
3. I think your strongest argument in this case is to say that the terminals in each case are acting as agents for the suppliers/receivers and as such a signature from the terminal representative is as good as those from suppliers/receivers. I think it would be easy to prove that the terminals are acting as agents for them as the terminals provide an vital service on their behalf and will be responsible for the berthing and loading/unloading of the vessel.
Good luck with this case and please come back and let us know how it turns out. In the meantime if others reading this post have any thoughts on this point please add your comments here.
Best regards
Phil
Dear Phil
Thank you very much for your kind response.
It appears that we are on the same page, especially regarding items 2 & 3, which is encouraging.
Item 1 gives us an extra advantage, since the consignee and the discharging port are in different locations.
I believe the charterers will not even raise the matter of 'different names in the B/L and the cargo documents', however it is always nicer to be on the safer side in case something weird arises.
Best regards
Petros Alexopoulos