No Notice of claim
A demurrage claim for US$ 352,122 was passed onto the charterer by the broker within the 90 day charterparty time limit period. However, the charterer declined to pay the claim as they had not been given notice that a demurrage claim would be made within the 60 day period provided for in the charterparty. The owner had advised the broker within the 60 day period that a demurrage claim would be made but this had not been passed on by the broker.
Clause 15(3) of Shellvoy provides - (3) Owners shall notify Charterers within 60 days after completion of discharge if demurrage has been incurred and any demurrage claim shall be fully and correctly documented, and received by Charterers, within 90 days after completion of discharge. If Owners fail to give notice of or to submit any such claim with documentation, as required herein, within the limits aforesaid, Charterers’ liability for such demurrage shall be extinguished.
In the past, this 60 day notification deadline that a demurrage claim was “coming” had not been
strictly adhered to as the owner and charterer tended to concentrate on the 90 day demurrage time limit for the demurrage documents to be sent to the charterer. However, a tightening of procedures by the charterer meant that this claim was rejected. The owner then sought recovery from the ship broker.
The clause does provide that a failure to give notice extinguishes the claim and subsequent presentation of the claim within 90 days does not “remedy” the situation. In this case there were issues as to whether the previous conduct had amounted to a waiver of the right to rely on the 60 day notice period but ultimately the broker had failed to pass on the message and had to substantially contribute to the claim.
The failure to pass on claims documentation within the relevant time limit is the most common cause of claims against tanker brokers. Often wider claims clauses apply to insurance premiums, deviation, port costs and expenses and ITIC has settled liabilities arising from a failure to pass on these documents.
It is common for brokers to specify an e-mail address to which post fixture messages have to be sent. This should lessen the chance of an important message being buried among the large number of market circulars and negotiation messages received during the average day. In October 2014 ITIC published a recommended clause to be used at the bottom of recap messages setting out the post fixture communication details and the consequences of not using them. This is available on ITIC’s website http://www.itic-insure.com/support/publications/claims-review/article/itic-post-fixture-clause-132138/ Some brokers have specific e-mail addresses for demurrage and other claims. ITIC is happy to advise on specific wordings for its members.