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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> National Shipping Company of Saudi Arabia v BP Oil Supply Company [2010] EWHC 3043 (Comm) (22 November 2010) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2010/3043.html Cite as: [2010] EWHC 3043 (Comm) |
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QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
National Shipping Company of Saudi Arabia |
Claimant |
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- and - |
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BP Oil Supply Company |
Defendant |
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Henry Byam-Cook (instructed by Hill Dickinson LLP) for the Defendant
Hearing dates: 28th & 29th September 2010
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Crown Copyright ©
Mr Justice Field:
FREIGHT RATE: FOLL BASIS 1/1
LUMPSUM USD 3.5 MILLION
IF ADDITIONAL LOAD/DISPORT, VITOL
INTERIM PORT CLAUSE TO APPLY
DEMURRAGE RATE: USD 70,000 PDPR
OVERAGE: N/A
LAYTIME: 96 HOURS
PORT CHARGES: ALL PORT CHARGES TO BE FOR
CHART'S ACCOUNT
Charterer shall pay for any interim load/discharge port(s) at cost. Time for additional steaming, which exceeds direct route from first loadport to furthest discharge port, shall be paid at the demurrage rate plus bunkers consumed, plus actual port costs, if any. The reasonable, estimated costs will be payable as an on account payment together with freight, followed by final invoice plus all supporting documents as soon as possible but not later than ninety (90) days after completion of this voyage.
5.2 Charterers shall have the option of instructing Owners to load the Vessel at more than one berth at each loading port and to discharge at more than one berth at each discharge port in which event Owners shall, in the first instance, pay expenses arising from any of the following movements of the Vessel:-
5.2.1 unmooring at, and pilotage and towage off, the first loading or discharge berth;
5.2.2 mooring and unmooring at, and pilotage and towage onto and off, any intermediate or discharge berth; and
5.2.3. mooring at, and pilotage and towage onto, the last loading or discharge berth.
Charterers shall reimburse Owners in respect of expenses properly incurred, arising from any of the aforementioned movements, upon presentation by Owners of all supporting invoices evidencing prior payment by Owners.
5.3 Charterers shall reimburse Owners in respect of any dues and/or other charges incurred in excess of those which would have been incurred if all the cargo required to be loaded or discharged at the particular port had been loaded or discharged at the first berth only. Time used on account of shifting shall count as lay time or, if the Vessel is on demurrage, as demurrage, accept as otherwise provided in clauses 17 and 18.2.
7.3.2 Laytime or, if the Vessel is on demurrage, demurrage, shall commence, at each loading and each discharge port, upon the expiry of six (6) hours after a valid NOR has become effective as determined under Clause 6.3, berth or no berth, or when the Vessel commences loading, or discharging, whichever first occurs.
7.3.3 Laytime or, if the Vessel is on demurrage, demurrage shall run until the cargo hoses have been finally disconnected upon completion or loading or discharging, and the Master shall procure that hose disconnection is effected promptly…
7.4 Charterers shall pay demurrage at the rate stated in Section J of PART 1 per running day, and pro rata for part of a running day, for all time that loading and discharging and any other time counting as laytime exceeds laytime under this Clause 7. If, however, demurrage is incurred by reason of the causes specified in Clause 17, the rate of demurrage shall be reduced to one-half of the rate stated in Section J of PART 1 per running day, or pro rata for part of a running day, for demurrage so incurred.
20.1 Charterers shall be discharged and released from all liability in respect of any claim for demurrage, deviation or detention which Owners may have under this Charter unless a claim in writing has been presented to Charterers, together with all supporting documentation substantiating each and every constituent part of the claim, with ninety (90) days of the completion of discharge of the cargo carried hereunder.
20.2 Any other claim against Charterers for any and all other amounts which are alleged to be for Charterers' account under this Charter shall be extinguished, and Charterers shall be discharged from all liability whatsoever in respect thereof, unless such claim is presented to Charterers, together with full supporting documentation substantiating each and every constituent part of the claim, within one hundred and eighty (180) days of the completion of discharge of the cargo carried hereunder.
I received your confirmation of receipt for demurrage claim.
I need confirmation of receipt of attached.
Subject: RE:Abqaiq/BP
29/01/08: Supplementary Invoice For Port Charges + Demurrage
Athena,
I have gone over the claim for theAbqaiq
and see that time at Singapore should have started at 13:06 at anchorage as per BP Voy4 6.3.2.
I have a counter offer of gross demurrage of $317,625.00 with a 1.25% commission for a net of $313,654.69
Await comments/agreement.
Also, I have forwarded the other charges for this vessel to my operator Joanne. For settlement of those invoices. Please contact Joanne.
Subject: RE:Abqaiq/BP
29/01/08: Supplementary Invoice For Port Charges + Demurrage
Good Day Athena,
Without Prejudice
Owners hereby in agreement with charterer's comment.
For sake of good order, please find enclosed revised final agreed demurrage invoice.
Kindly advise us the remittance details/value date to track funds from our end.
Description Currency Amount
FREEPORT (BAHAMAS)
SINGAPORE
Combine All ports: 4.5375@70,000 (Demurrage) USD 317,625.00
Addr Comm 317625.00 x 1.25% USD -3,970.31
TOTAL USD 313,654.69
Attached invoice does not have full supporting documentation attached for the waiting time declared. Based on what little documentation was submitted for the claim, this time should be demurrage not waiting time and should be declared as such. Further bunkers for a vessel waiting on demurrage are not charterers responsibility. Pls send proper supporting documentation and revise invoice to show demurrage and delete the bunker costs.
(This email was cc:d to Mr Orona.)
Without Prejudice.
Owners would like to advise charterer's (sic) that the freight for the subject voyage was paid basis 1:1. Additional ports for loading/discharging will be charged basis Vitol Interim port clause & CP clause 5.3
Owners would like to thank charterer's for settling the demurrage claim earlier, the additional time calculated is based on demurrage rate and the last bunker purchased invoice which has been passed to charterer's earlier. For charterer's guidance have attached cargo documents for kind perusal.
Hence owners stand by their claim and request charterer's to review claim positively.
In regards to your supplementary invoice about theAbqaiq.
I have spoken to Joanne Radke about this and she finds that this invoice should have been part of the demurrage claim since it is in fact time the vessel waited for the product.
However a claim for theAbqaiq
has already been settled in regards to this vessel back on June 9th in the amount of $313,654.69.
If you have any further questions, Please feel free to contact me at your earliest convenience.
Was the agreement reached by the exchange of emails from Mr Orona and Mr Sunder on 3 and 4 June a settlement of any and all claims for demurrage or just a settlement of the demurrage claim in respect of the periods 2224 on 25 March 2008 to 1324 on 28 March 2008 and 1500 on 30 March 2008?
Also, I have forwarded the other charges for this vessel to my operator Joanne. For settlement of those invoices. Please contact Joanne.
Is the claim now made for demurrage time-barred?
The commercial intention underlying this clause[2] seems to me plainly to have been to ensure that claims were made by the owners within a short period of final discharge so that the claims could be investigated and if possible resolved while the facts were still fresh … This object could only be achieved if the charterers were put in possession of the factual material which they required in order to satisfy themselves whether the claims were well-founded or not. I cannot regard the expression "all available supporting documents" as in any way ambiguous: documents supporting the owners' claim on liability would of course be included, but so would a document relating to quantum only, just as a doctor's bill would be a document supporting a claim for personal injury. The owners would not, as a matter of common sense, be debarred from making factual corrections to claims presented in time … nor from putting a different legal label on a claim previously presented, but the owners are in my view shut out from enforcing a claim the substance of which and the supporting documents of which (subject always to de minimis exceptions) have not been presented in time.
Is the Defendant liable under Clause 5.2 or 5.3 for the cost of bunkers consumed by the vessel between 0330 on 11 February 2008 and 0300 on 17 February 2008 under Clause 5.2 or Clause 5.3?
SAFE BERTHING --- SHIFTING. The vessel shall load and discharge at any safe place or wharf, or alongside vessels or lighters reachable on her arrival …. The charterer shall have the right of shifting the vessel at ports of loading and/or discharge from one safe berth to another on payment of all expenses … any other extra port charges or port expenses … incurred by reason of using more than one berth …
Is the Defendant liable in damages for breach of an implied term that the Defendant would provide a cargo in sufficient time for it to be loaded within the laydays?
3. Further there was an implied term of the Charterparty, such implication arising by law and/or as an obvious inference from the express terms thereof and/or so as to give business efficacy thereto, that the Defendant would provide the cargo and bring it to the place of loading in sufficient time to enable the Vessel to be completely loaded within the lay days.
20. Further or alternatively, in breach of the aforementioned implied term, the Defendant failed to provide the cargo and bring it to the place of loading in sufficient time to enable the Vessel to be completely loaded within the laydays. For the avoidance of doubt, the Claimant will contend that the latest time for doing so would have been 0725 on 11 February 2008. It relies on the following facts and matters:
a. It took 27 hours to load the "GANGES SPIRIT" after the Vessel re-berthed.
b. Due to adverse weather conditions, operations were suspended at the BORCO terminal at 1026 on 12 February, the terminal was closed later that day and it did not re-open until 14 February.
Conclusion
Note 1 All times stated in this judgement are local times. [Back] Note 2 This provided: “Charterers shall be discharged and released from all liability in respect of any claims Owners may have under this Charter Party (such as, but not limited to, claims for deadfreight, demurrage, shifting expenses or port expenses) unless a claim has been presented to Charterers in writing with all available supporting documents within 90 . . . days from completion of discharge of the cargo concerned under this Charter Party.” [Back]