Boskalis Offshore Marine Contracting BV v Atlantic Marine and Aviation LLP (The "Atlantic Tonjer") [2019]

Boskalis Offshore Marine Contracting BV v Atlantic Marine and Aviation LLP (The "Atlantic Tonjer") [2019] EWHC 1213 (Comm) —14 May 2019 (Sir Ross Cranston)

“Clause 12(e) of a c/p on an amended Bimco SupplyTime 2017 form contained provided that payments of hire, fuel invoices and disbursements should be paid by Charterers within a certain number of days (21) from the date of receipt of the invoice without the possibility to discount or set-off. It also provided that if Charterer believed that the invoice was incorrect, they should still pay the undisputed portion of the invoice and withhold payment of the rest notifying the reason to the Owners by the due date. The Court dismissed Charterers' appeal based on the arguments that the clause was unclear or ambiguous as did not state that a failure to give notice would debar Charterers opportunity to raise any defence. The Court held that the clause was clear and is not analogous to a time bar clause or any other type of clause limiting liability and it was just the result of a commercial agreement between two equal bargaining powers that obliged charterers to raise bona fide disputes timeously as timeously payments are of essence in time charters. According to the Court a different interpretation would "make clause 12(e) a dead letter".”

Antonino Cordopatri
E. G. Arghyrakis & Co.
22nd May 2019