588. Boskalis Offshore Marine Contracting BV v Atlantic Marine and Aviation LLP (the “Atlantic Tonjer”)[2019] EWHC 1213 (Comm)

BIMCO SupplyTime 2017 Charterparty for Offshore Support Vessels – clause 12 (e) -failure to dispute invoices precludes later recovery for off-hire events

The facts

Clause 12(e) required charterers to notify owners of disputed amounts in invoices presented and to pay undisputed amounts .

Clause 12(g) provided for an audit of the owners’ books of account and for rectification of overpayments of hire and related expenses.

Charterers failed to pay 2 invoices without raising any dispute.

Owners sought to recover the amounts in arbitration proceedings. Charterers claimed that they were excused from payment by reason of the vessel being off-hire.

Findings

The tribunal found in favour of the owners.

Bryan J granted leave to appeal on two questions of law: did clause 12(e) debar the charterers from raising defences to claims on invoices which were not challenged? and were charterers entitled to recover unchallenged amounts paid where there was no independent counterclaim or accounting error envisaged by clause 12(g).

Sir Ross Cranston answered the first question in the affirmative and the second question in the negative.

His reasoning was that this was the plain meaning of the clause. The parties were of equal bargaining strength and it was not permissible  to restrict the meaning on the basis that the clause limited common law rights.

Discussion

While the first answer seems correct, the second is less certain.

The rationale for clause 12(e) is to buttress owners’ cash flow but to leave it open to charterers obtain redress at a later stage.

The contract is bilateral – hire is paid for the use of the vessel. Charterers should be allowed to recover any amounts paid which were not properly due. Why should they lose that right if challenges were not made by force of circumstance or even inadvertence.

 

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