Pera Shipping Corp v Petroship SA;[1985]
- Reported: [1985] 2 LLOYDS REP. 103, CA
- Year: 1985
- Court: Court of Appeal
FACTS:-
On 11th November 1980, by a charter-party, the owners let their vessel ‘Pera’ to the charterers for the carriage of a cargo of crude oil from one safe port in Libya to one safe port in Syria.
The charter provided that the Petroship time bar and notice clauses were incorporated in the charter and those clauses provided inter alia that:—
“Demurrage, if any, shall be payable by Charterers against owners invoice supported by notices and statements of fact(s) from loading and discharging port(s) duly signed by shippers. Any claim for demurrage to be accordingly presented within 12 months from completion of final discharge.”
On 22nd November 1980, discharge was completed at Banias in Syria. The owners contended that demurrage was incurred and on 7th July 1981 they presented their claim for demurrage. Unfortunately, a copy of the notice of readiness at the loading port was not included and the statement of facts at the loading port was illegible.
On 10th November 1981, the owners sent more documents in support of their claim including those that were previously illegible or missing. That letter did not reach the charterers until 22nd November 1981 when the 12 month period had expired.
The dispute was referred to arbitration and the arbitrators held that the claim was time barred on the ground that it had not been accompanied by the requisite documents.
The owners appealed against the award. It was held by, Staughton, J in the Queen’s Bench Division that:
(1) the principle that a party relying on an exemption clause must show that the case came within it and that there was no ambiguity or equivocation, and the principle that a party relying on a clause which he himself had put forward as part of the contract must bring himself within it clearly and without ambiguity or equivocation, applied in this case;
(2) a time bar clause must be clear and unambiguous if effect was to be given to it and since the clause was prepared and put forward by the charterers for inclusion in the charter-party any ambiguity must be construed against them;
(3) here the clause was ambiguous and although it was wrong to apply too strict a grammatical analysis to documents prepared by commercial men, particularly if the draftsman’s native language might not have been English, nevertheless the word “accordingly” in the clause meant “therefore” or “it followed from what has been said before” and the charterers were not protected by the time bar therefore the owners’ claim was not time barred and the appeal would be allowed;
The Charterers appealed to the Court of Appeal, the question being whether the time bar clause on its true construction operated to bar a demurrage claim merely because there was some shortcoming in the supporting documentation:
HELD:-
It was held by Griffiths, Slade and Lloyd, L.JJ. in the Court of Appeal that:
(1) it was impossible to say that the word “accordingly” in the context of the clause clearly bore the meaning “in accordance with the premises” rather than “therefore”; the use of the word was ambiguous and ought to be construed contra proferentum. The second sentence of the demurrage clause was not sufficiently clear in its terms to require the documents to be presented within 12 months in order to prevent the claim becoming time barred, if the claim was otherwise presented in time.
(2) in the circumstances the learned Judge reached the right conclusion and the appeal would be dismissed.
The appeal was dismissed with costs. Leave to appeal to the House of Lords was refused.
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