372. Greatship (India) Limited v Oceanografia SA de CV (the “Greatship Dhriti”) [2012] EWHC 3468 (Comm)

Interpretation of clause 10(e) of BIMCO Supplytime 1989 form

The facts

The clause read as follows:

“10(e) Payments – [1] Payments of Hire, bunker invoices and disbursements for Charterers’ account shall be received within the number of days stated in Box 23 from the date of receipt of the invoice.  Payment shall be made in the contract currency in full without discount to the account stated inBox 22.  However any advances for disbursements made on behalf of and approved by Owners may be deducted from Hire due.

[2] If payment is not received by Owners within 5 banking days following the due date Owners are entitled to charge interest at the rate stated in Box 24 on the amount outstanding from and including the due date until payment is received.  

Where an invoice is disputed, Charterers shall in any event pay the undisputed portion of the invoice but shall be entitled to withhold payment of the disputed portion provided that such portion is reasonably disputed and Charterers specify such reason.   Interest will be chargeable at the rate stated in Box 24 on such disputed amounts where resolved in favour of Owners.  Should Owners prove the validity of the disputed portion of the invoice, balance payment shall be received by Owners within 5 banking days after the dispute is resolved.  Should Charterers’ claim be valid, a corrected invoice shall be issued by Owners.

[3] In default of payment as herein specified, Owners may require Charterers to make payment of the amount due within 5 banking days of receipt of notification from Owners; failing which Owners shall have the right to withdraw the Vessel without prejudice to any claim Owners may have against Charterers under this Charter party.

[4] While payment remains due Owners shall be entitled to suspend the performance of any and all of their obligations hereunder and shall have no responsibility whatsoever for any consequences thereof, in respect of which Charterers hereby indemnify Owners, and Hire shall continue to accrue and any extra expenses resulting from such suspension shall be for Charterers’ account”

An experienced panel of arbitrators (Simon Rainey and Aleka Sheppard) found that sub-clause 4 required the owners to give notice of 5 banking days as in sub-clauses 2 and 3 despite clear wording to the contrary.

Findings

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