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On the following day, 12 August, MUR made the request to cut the new holes in the hatch covers. The vessel was delivered into MUR’s service on 14 August 2016, at which time advance hire and delivery bunkers were paid, and was dispatched to Carbenaros. However, on 13 August, LDC (in adopting Head Owners’ position) refused to approve the required work and later maintained that refusal when the vessel arrived at Carbenaros on 15 August.
A surveyor for MUR attended on board the vessel on 18 August and prepared a report to MUR on 19 August on the need to cut new cement holes in the hatch covers. On the same day, after LDC (adopting Head owners’ Owners’ position) had stated that their refusal was “final and non-negotiable”, MUR terminated the charter on the basis that the cutting of additional feeder holes fell within the ambit of clause 46 and refusal for permission to cut them had been unreasonably withheld, so that LDC were in repudiatory breach and MUR were entitled to terminate. On 22 August, LDC themselves purported to accept MUR’s termination itself as repudiatory.
Thereafter, a claim letter was sent by MUR to LDC, claiming the return of hire paid in advance. Later, on 8 August 2017, MUR appointed their arbitrator and gave notice to LDC accordingly. The appointment was made in respect of all disputes under the charter, including (a) return of advance hire and the cost of delivery bunkers, (b) costs incurred on LDC’s behalf, (c) damages for sub-charterers’ claim for termination of the charter, and (d) LDC’s failure to obey instructions/breach of clause 46 of the charter. MUR also attached their final hire statement. LDC appointed their arbitrator in turn.
Accordingly, the judge dismissed MUR’s appeal, such that, as the majority of the Tribunal had held, their claim was time barred and totally extinguished.
The judgment highlights the potential risks faced with wide “all claims” presentation time bars, if such clauses require presentation of “all available supporting documents (whether relating to liability or quantum or both)”.
The difficulty, in part, arises because such expansive clauses are not confined to any particular sort of claim, so can stretch far beyond the familiar accounting type documents commonly required to support typical demurrage claims.
The judgement judgment identified the further difficulty that each clause turns on its own particular wording. This means that existing authorities on the topic may be of limited assistance due to differences in the wordings used.
Additionally, what is “supporting” is dictated by the nature of the claim being advanced. As such, what is required to support the claim is identified by the process of setting out the limbs of the claim, on both liability and quantum, and evaluating all the documents available to the party when presenting its claim.