艨艟剑客

Several ponits need to be clarified, I think:

1, You are a FOB (Classic) buyer, that means you arrange for the shipment.
2, The shipper mentioned above is the FOB seller. Right?
3, The demurrange clause appears only in the Voyage Charter between you and the carrier, and nothing about demurrage issue nor the indemnity thereof is mentioned in the sales contract between you and the seller. Right?
4, I don't understand the abbreviation of WWD and SOF, and the meaning of maxim mentioned above.
5, Under the Voyage Charter, you have to pay demurrage, without any disputes already, to the carrier. Right?
6, But under the sales contract, when you try to ask for seller's indemnity, the seller refused so on the ground that (1) the demurrage clause is not expressly agreed in the sales contract, and (2) it can neither be implied in the sales contract. Right?
7, You, as the FOB buyer, although agree that the buyer's case is to certain extent convincing, you feel hesitated to accept it because you think it is against the "commercial sense" which, in my guess, means that the FOB seller under this situation shall indemnify the buyer the amount which paid by the buyer to the carrier as demurrage. Right?

艨艟剑客

4# 李垒


Thanks!

According to your clarification, I am of the opinion that:
1, Demurrage is a special concept under the contract of carriage, i.e. voyage charter in this case, focusing on the indemnity from the charterer to the shipowner due to the overuse of the ship in the way of paying an agreed amount per day or per hour etc.. In this way, strictly speaking it makes no sense to have a "demurrage" clause in a sales contract. In nature, the seller and the buyer may agree about the secondary indemnity of the same amount of demurrage as either party, i.e. the buyer in this case, paid to the shipowner. In other words, the interpretation of the word "demurrage" must be based on the contract of carriage, rather than a sales contract.

2, Supposing that the above is wrong, and the court agrees to hold that the seller can pay "demurrage" to the buyer under the sales contract regardless whatever has been agreed in the carrigae contract, then the meaning of "demurrage" shall be interpreted in compliance with various maritime cases although in which the disputes are most likely under the voyage charter.

3, It must be clear that, although the maxim "once demurrage always demurrage" is so well known, it is incorrect. The clock of laytime and of demurrage is separate, and both can be suspended even after being started.

4, The real problem in this case is that,
(1) How wide is the "demurrage" clause specified in your sales contract?
(2) When has the demurrage clock under the sales contract, if any, started running?
(3) If the demurrage clock started running, whether it has been suspended or even stopped later?

Only for your reference.

艨艟剑客

9# 李垒


Some supplement:

As I mentioned, once on demurrage, it is not always on demurrage, because the demurrage clock can be suspended by certain reasons even after the commencement of demurrage. In detail, the situations are:

1, If there is a very clear worded exception clause regarding suspending the demurrage, then the demurrage can be stopped. But this is very difficult and usually court will be very cautious on this.

2, If the delay is caused by fault of shipowner, well, I discuss this issue still under voyage charter, the charterer can argue that the demurrage has been suspended and it is the charterer's onus of proof to show how much delay is caused by the shipowner. This, comparatively, is not that difficult so long as the charterer has fulfilled his proof.

According to the above, if the rules can be applied also in a sales contract, I think if the seller as in this case can prove that it is your fault that caused the detention, you will be in trouble in asking them for demurrage. Otherwise, you will have a strong position. Of course, all these analyze must be subject to the wording of your demurrage clause itself, because in my view the real problem is always the interpretation of contract.

Reference: Julian Cooke, Voyage Charters, 3rd Edition (2007), Chaptrer 16, Para 16.2 - 16.5