Documentary time-bars are proving once again to be one of the most fertile sources of shipping litigation.
Such clauses typically provide for the absolute extinguishment of all claims, unless they are presented within a specified period of time (often short: 90 days and 12-months being particular favourites amongst drafters) and accompanied by "[all] [relevant / available] supporting documents".
The classic statement of principle comes from Bingham J in the Oltenia (1982): the commercial intention of such clauses is that claims should be presented within a short period so that they may be investigated and if possible resolved whilst the facts are still fresh.
But since then there has been a steady stream of reported decisions (see: the Sabrewing, the Bow Cedar, the Eternity, the Eagle Valencia, the Abqaiq, the Adventure, the Ocean Neptune, to name a few): the combination of bespoke drafting, short/ early deadlines for compliance (potentially before lawyers are involved), competing policy considerations (finality/ "closing the books" vs the need for clear words to deprive a party of legal remedies), and draconian consequences for those who fall foul, all conspiring to make this a rich source of litigation.
The last few months have brought (at least) three more: the Tiger Shanghai  EWHC 3240 (Comm), the Amalie Essberger  3402 (Comm), and the MTM Hong Kong  WHC 700 (Comm).
The Tiger Shanghai concerned a disputed termination by time charterers, after the Owners refused to permit them to cut new cement holes in the hatch-covers. Both sides accused the other of repudiatory breach. The Charterers presented their letter of claim in time but omitted to attach a survey report going to the reasonableness of the Owners' refusal.
The case raised issues as to the necessary threshold of relevance to the issues in dispute in order to fall within the meaning of "all supporting documents". This is a fact-specific exercise which depends on the nature of the claims being made and the disputed document. Thus, since the reasonableness of the Owners' refusal went to the validity of the Charterers' termination, which was one of the "building blocks of the case as to liability", a report going to that issue fell within the clause and needed to be provided.
The judgment of Cockerill J also supports the following further propositions: (i) the use of the additional word "all supporting documents..." tends to necessitate more "expansive" enquiry and a wider casting of the net; (ii) the word "supporting" is not to be watered down or re-cast as "explaining" or similar; (iii) therefore it is irrelevant that the Owners well knew the essence of the claims presented even without the report being attached at the initial claims presentation stage
The case is also a salutary reminder that the time-bar point may arise at any time during the litigation: for example, if relevant supporting documents come to light on disclosure or (as in this case) as attachments to submissions in the reference. It is never too late to analyse documents belatedly provided and consider whether they ought to have been attached to the initial claim presented for time-bar interruption purposes.
Two further issues arose but were not decided finally, and therefore can be expected to give rise to yet further disputes in the future:
- First, whether such clauses only cover primary documents (statements of facts, bills of ladings, notices of readiness, etc), rather than secondary documents created later and for the purpose of the dispute. The issue did not directly arise because the report contained at least some factual evidence as to the hatches and the current and proposed arrangements for cement loading (in addition to secondary opinion evidence). However, the Judge wished to "record [her] thinking on the point" and was "dubious" as to whether documentary time-bar clauses could extend to "truly secondary" documents such as experts' reports or similar. It is not difficult to envisage this obiter categorisation of documents into not just primary and secondary but also "extended primary documents" as a source for future dispute.
- Second, the issue of whether report was a "document" at all if it was arguably privileged. On this point, the Judgment raises more questions than answers: remarking "one can readily see that the distinction would provide highly fertile ground for protracted disputes, such as just how arguable a claim has to be in order to be arguable or reasonably arguable..." but that "the argument on "what is a document?" may well in many cases provide an answer here...".
Watch this space for further developments on these untested issues.
Meanwhile, the Amalie Essberger provides confirmation that documents falling within specifically listed categories will need to be provided to break the time bar even if strictly irrelevant to the claim presented.
Finally, the MTM Hong Kong decision provides a rare example of a s. 69 appeal being allowed: this time on the basis that bills of lading fell within "all supporting documents" where the Charterparty provided for delay/demurrage claims to be calculated based on "bill of lading quantities".
Stephanie Barrett covers these two cases in more detail in her article on page 17.
What remains certain is that these cases will not be the last word in this contentious area.
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