Tricon Energy Ltd v MTM Trading LLC

A demurrage time-bar clause requiring a claim and all supporting documents requires production of documents objectively needed to substantiate each material part of the claim. Where the charterparty requires demurrage to be apportioned by bill of lading quantities, the bills of lading fall within that requirement, subject to the qualification that an unavailable document may be addressed by a proper explanation. A statement of facts does not automatically replace a primary document merely because it records the same information. Where the clause treats the claim as a single claim and contains no reference to constituent parts, failure to provide a required bill of lading bars the entire claim.

The Owners claimed demurrage arising from delays to the vessel MTM HONG KONG at Antwerp and Houston. The Charterparty required demurrage during simultaneous cargo operations to be apportioned by bill of lading quantities and contained a 90-day time-bar clause requiring the claim and all supporting documents to be received within the prescribed period.

The Owners submitted the claim within time, with statements of facts and other documents, but did not provide the bills of lading for either parcel. The arbitral tribunal held that the statements of facts were sufficient and awarded the Owners US$56,049.36. The Charterers appealed under section 69 of the Arbitration Act 1996. The central question was whether the claim was time-barred by the omission of the bills of lading.

1. Appeal allowed in substance. The court answered the question stated at [17] in the affirmative, subject to the qualification that the decision depended on the particular charterparty wording and did not impose a requirement to provide unavailable bills of lading.
2. The purpose of demurrage time-bar clauses is to ensure that claims are made promptly so that they can be investigated and, if possible, resolved while the facts remain fresh. That purpose does not define the documents required by the clause. References to essential documents or sufficient information cannot displace the natural meaning of an express requirement for all supporting documents.
3. The Charterparty expressly required pro-rating by reference to bill of lading quantities. In that context, and because clause 38 required all supporting documents, the bills of lading were documents required by the time-bar clause. A statement of facts recording the quantities was not sufficient in itself.
4. Confidentiality did not justify non-production. Sensitive material could be redacted, and the relevant quantities could remain visible. If a bill of lading was unavailable, the Owner would need to provide a proper explanation of that fact alongside the available material.
5. The omission barred the entire claim. Clause 38 referred to a claim or invoice as a single item and did not, unlike the clause considered in The Adventure [2015] 1 Lloyd’s Rep 473, refer to constituent parts of a demurrage claim. The tribunal’s contrary conclusion was therefore rejected.

• Arbitral tribunal: By an award dated 13 February 2019, the tribunal held that the Owners’ demurrage claim was sufficiently documented and awarded US$56,049.36.
• High Court (Commercial Court): Permission to appeal under section 69 of the Arbitration Act 1996 was granted by Popplewell J on 21 June 2019. The court answered the question of law in favour of the Charterers and held that the failure to provide the bills of lading barred the claim.