"Amalie Essberger" Tankreederei GmbH & Co KG v Marubeni Corporation

A demurrage time-bar clause must be construed to achieve commercial certainty, rather than by imposing automatic strict compliance. Where a clause requires a claim to be supported by specified categories of documents, those documents must be provided within the contractual period even if they are not otherwise relevant to the claim. The clause does not necessarily require the claim and documents to be submitted simultaneously. Documents supplied earlier may suffice where it would have been obvious that they were the specified supporting documents. A clause requiring a single claim and specified supporting documents may, if not complied with, bar the entire claim.

The claimant, owner of the vessel Amalie Essberger, claimed demurrage under a voyage charterparty. The defendant applied for summary judgment, contending that the claim was time-barred under Rider Clause 5 because two specified documents had not accompanied the claim submitted on 22 December 2017.

The documents had previously been supplied to the defendant on 1 December 2017. The court considered whether the clause required only relevant supporting documents, whether documents already in the defendant’s possession had to be resubmitted, whether simultaneous submission was required, and whether any non-compliance would bar the whole claim or only part of it.

1. Construction of the time-bar clause. The commercial purpose of a demurrage time bar is to enable charterers promptly to investigate and verify a claim. The clause should be construed with clarity and certainty. Automatic strict compliance is not required, and any genuine residual ambiguity is resolved restrictively against the charterers.
2. The expression “supporting documents” in the first sentence ordinarily refers to documents relied on by the owners or documents which objectively establish the prima facie validity of the claim. It does not extend merely to every document relevant to a possible defence, since that would introduce an uncertain and burdensome disclosure exercise.
3. The second sentence of Rider Clause 5 was decisive. Its mandatory wording required the four listed categories—time logs, notices of readiness, pumping logs and letters of protest—to be provided, even if a particular document was strictly irrelevant. The listed documents were deemed to be supporting documents. A de minimis exception did not apply to that expressly specified requirement.
4. The clause did not require all supporting documents to be submitted simultaneously with the demurrage claim. “With” required both the claim and documents to be received within the 90-day period. “A single claim at that time” required one claim, rather than separate claims, and did not impose a simultaneous-submission requirement. Documents supplied before completion of discharge were not thereby automatically ineffective.
5. The disputed pumping log and letter of protest had been supplied by the owners before the demurrage claim and were expressly identified documents under Rider Clause 5. In the circumstances, the charterers would have understood that they were supporting documents. The owners were not required to resubmit them or draw attention to them in the later email.
6. Although the court preferred the submission that failure to provide the specified documents would have barred the entire single claim, that issue did not determine the application. The charterers’ summary judgment application was dismissed because the demurrage claim was not time-barred.