The “Maria” … Late (for a very important date)

The observance of time bars is a crucial component of competent claims handling and the claimant owners in Euronav NV v Repsol Trading SA learnt a painful lesson in this respect in the recent case of The Maria[2021] EWHC 2565 (Comm.)

 

Where a contract requires something to be done within a particular time of event “x” it is of course fundamental to know at what time and date event “x” had occurred. This was what was in dispute in the case, which involved a claim for demurrage of nearly half a million dollars.

The parties had contracted on a “Shellvoy 6” form voyage charter. The standard wording of that charter form requires notification and then vouching of demurrage claims within a certain number of days of “completion of discharge”. That sounds simple enough but of course shipping is an international business and may involve parties located in different time zones. This may create confusion. It did so in this case.

 

CET vs GMT

The “completion of discharge” that set the time-bar clock ticking occurred on 24th December. Well, it did if you were counting the time at the place of discharge, which was California. Meanwhile, in European time (CET) the equivalent time was in fact 25th December.  The clause provided for 30 days to notify a demurrage claim. So when the notification was finally given on 24th January, it was very important which of 24th or 25th December was the date of “completion of discharge”  since the former would mean the notification was late and the claim time barred.  If the Court applied either the notifier’s time zone (CET) or the receiver’s time zone (GMT) the notification would have been in time, and the choice of English governing law in the Charter could be said to have pointed to such choice.

 

The Judge

These may seem questions of academic nature but when they reached the Commercial Court the Owners found they had a very real practical effect: the Judge declared their demurrage claim time-barred.

The way Mr Justice Henshaw saw it was that “completion of discharge” was a historical event, occurring at a particular place, at a particular time, which in this case were, respectively, the state of California and 24th December. As he put it:

The discharge of cargo from a vessel is a tangible physical event, which occurs at a specific location and in a particular time zone.  It will in the ordinary course be recorded in documents, such as the Statement of Facts and any laytime statement, as having occurred at the time and date current applying local time. A contracting party would naturally expect the date stated in such documents to be the date of completion of discharge for contractual purposes.”

The reasoning in his judgment is also useful guidance on other contractual issues where a period of time from a certain event needs to be ascertained, where it may well be appropriate to apply a similar approach to the one above.

 

General Guidance

As a matter of general guidance, when seeking to interpret and deal with time bars, we would say that it is normally better to err on the side of caution, assume the earlier of alternate dates is the time bar where there is a choice, and not leave performance of the act which is required to beat the time-bar (whether that be, for example, commencement of proceedings or notification of a claim or event or filing of a vouched demurrage claim) to the “last minute” if this can be avoided. As part of this, the “Maria” is useful clarification that when you calculate a period of days allowed from a trigger event you look at both start and end of that period in the same time zone – the one where the trigger event took place – and do not apply the equivalent dates in another time zone. As always, this depends on specific contract wording in each case.