Time bar clauses in underperformance claims

Summary prepared by Prokopios Krikris FCIArb, Arbitrator

Recent developments indicate a growing tendency to include time-bar clauses for speed and consumption claims in charterparties for bulkers.

Whether the Charterers' claim was time barred was considered in The Divinegate. Clause 102 stated:"Any claims by Charterers relating to the performance of the Vessel and/or the Vessel’s equipment including speed claims are to be submitted to Owners in the form of a statement of claim with supporting documents within 90 days of the completion of each voyage concerned or otherwise be waived ‘nullified’, except cargo claims which are to be dealt with as per Charter Party.”"

On the facts and terms agreed in that case, it was not.

In London Arbitration 18/23, paragraph 75 (g) stated:

“Any speed & consumption claim shall be submitted in writing with the support of a performance evaluation report taking into account the terms of the charterparty by latest 15 days after completion of sea passage in question failing which it shall be considered as waived”.

The Owners said that the claim was brought too late. The tribunal held that the voyage ended on 12 July, so under Clause 75(g), the claim should have been submitted to the Owners by 27 July, whereas it was provided during arbitration, in Charterers’ Defence Submissions. That was far too late and any claim ( even if it could be justified) had been waived.

In another unreported arbitration the tribunal had to decide what means “each” sea passage as there was  a ballast and a laden leg.

In another arbitration, the clause required the Charterers to submit their claim within a specified period but did not expressly provide that failure to comply would result in the claim being time-barred. The dispute therefore centered on the consequences of non-compliance ( if any).

In another arbitration, it was found that the Charterers intended to submit the claim timely but the Owners’ failure to disclose requested ship’s data caused the delay so the claim was not time- barred.

Note: this is for information purposes only.