UK: Protecting Time In Claims Under The NYPE Inter-Club Agreement

Last Updated: 12 January 2012
Article by David McInnes and Alex Chisholm

M.H. Progress Lines SA v. Orient Shipping Rotterdam BV (Genius Star 1) [2011] EWHC 3083 (Comm)

The new Inter-Club Agreement ("ICA") 2011 came into effect on 1 September 2011. The dispute in this case required the court to consider the interplay between the previous version, ICA 1996, and an amended Centrocon arbitration clause, where both were incorporated into the time charterparty and where they potentially conflicted. Nonetheless, the decision of Mr Justice Teare remains relevant because the wording of the ICA 1996 provisions in question remains unaltered in ICA 2011.

ICA 1996

The ICA regime is a means of apportioning liability for cargo claims arising out of or under the NYPE or Asbatime standard form time charterparties, where the parties have expressly incorporated ICA into the terms of their charter. ICA 1996 amended and replaced ICA 1984. Arguably the most fundamental change was the addition of clause (2) ICA 1996, which provides that:

"The terms of this Agreement shall apply notwithstanding anything to the contrary in any other provision of the charterparty; in particular the provisions of clause (6) (time bar) shall apply notwithstanding any provision of the charterparty or rule of law to the contrary".

Clause (6) ICA provides that an owner or charterer shall be deemed to be waived and absolutely barred unless written notification of the cargo claim has been given to the other party to the charterparty within 24 months of the date of delivery...or the date the cargo should have been delivered, save that, where the Hamburg Rules...are compulsorily applicable...the period shall be 36 months

Both clauses (2) and (6) have been incorporated into the new ICA 2011.

The background facts

The Genius Star 1 charter was on an amended NYPE 1946 form and provided that ICA 1996 should apply to all cargo claims. Clause 39(2) of the charter (an amended Centrocon arbitration clause) provided that

"Any claim must be made in writing and the claimant's arbitrator appointed within 12 months of final discharge and where this provision is not complied with the claim shall be deemed to be waived and absolutely barred".

The sub-charterers settled a cargo claim advanced by cargo interests and sought to recover the settlement amount from the charterers who, in turn, sought to pass the claim up the chain to the owners. Both the sub-charterers and charterers notified their claim within 24 months of delivery in accordance with clause (6) ICA 1996, but failed to commence arbitration proceedings within 12 months in accordance with clause 39(2) of the charter. The owners argued that the claim was time-barred.

The arbitrators in the first instance and subsequently the Commercial Court on appeal had to decide whether or not the one year time limit in clause 39(2) applied to cargo claims which were to be settled and apportioned in accordance with ICA 1996. Both held that the one year time limit did not apply and that the charterers and sub-charterers had the benefit of the usual six year limitation period for bringing claims in contract.

The Commercial Court decision

In the absence of any previous decisions on the construction of ICA 1996, the judge made reference to an earlier, unreported decision in 1990, the Mary Elle. In that case, the charter contained an amended Centrocon arbitration clause requiring proceedings to be commenced within three months. The court held that this should prevail over the 24 month ICA 1984 time bar and that the claim was therefore time-barred. That decision was, however, distinguishable because ICA 1984 did not contain an equivalent of clause (2) ICA 1996.

The owners argued that clause (6) ICA is not a limitation period to which clause (2) ICA applies. Clause (6) requires written notification of the claim, not the commencement of legal proceedings and is therefore an additional requirement to any statutory or contractual time bar. By contrast, clause 39(2) of the charter was a contractual time bar with which sub-charterers were also obliged to comply. In other words, the owners contended that the two provisions were not "contrary" within the meaning of clause (2) ICA.

The sub-charterers argued that clause (2) ICA applies to any time bar in the charter that might appear to be in conflict with clause (6) ICA, including a Centrocon arbitration clause. The judge agreed and held that both clause (6) and clause 39 (2) provided for time bars, namely a requirement which, if not complied with, results in the claim being waived and absolutely barred. As the requirement in each case was different (one requirement being notification of the claim within 24 months and the other being the commencement of proceedings within 12 months), clause 39 was "contrary" to clause (6) within the meaning of clause (2) ICA.

In the judge's view, the reasonable man would read clause (2) ICA as meaning that the time bar at clause (6) ICA should apply notwithstanding clause 39(2). The judge referred to the Court of Appeal decision in the Strathnewton [1983] 1 Lloyd's Rep 219 and agreed with the decision in that case that the ICA terms "cut across the liabilities and defences set out in the other terms of the charterparty" including "the liabilities and defences of the Hague Rules when incorporated into the charterparty". The decision in the Strathnewton related to ICA 1984 but remained relevant to the interpretation of ICA 1996, particularly in view of the wording added at clause (2) ICA 1996.

The practical consequences of the judge's ruling were that the sub-charterers, having notified their claim within the 24 months allowed by clause (6) ICA, would then have a further four years to commence proceedings in accordance with the six year statutory limitation period. This was the same view the arbitrators had taken and neither they nor the judge considered that this would lead to an uncommercial result. Rather, the court's view was that apportionment under ICA 1996 is intended to be a mechanical exercise and once a claim had been notified, commencement of arbitration or court proceedings would usually be unnecessary. In particular, the judge stated that the purpose of the 24 month time bar (or 36 months where the Hamburg Rules apply) at clause (6) ICA is to give an owner or charterer a further year to notify its intention to seek apportionment after the one year Hague/Hague-Visby Rules limitation period (for third party bill of lading holders to bring their cargo claim under the bill) has expired.


This was a practical and commercial decision by the judge in circumstances where the owners were aware of the claim in question but sought to rely on technical time bar arguments to avoid liability. It also provides a welcome clarification of the applicable time limits in respect of claims brought under ICA 1996 which, it is submitted, will apply equally in respect of claims brought under ICA 2011.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.