Demurrage as an exclusive remedy
Whether an owner can recover more than demurrage for delay, and the settled appellate position after The Eternal Bliss.
Under English law demurrage liquidates the whole of the damages flowing from a charterer’s failure to complete cargo operations within laytime, not merely some of them. An owner seeking to recover beyond the demurrage rate must identify and prove breach of a separate obligation.
That is the holding of the Court of Appeal in The Eternal Bliss [2021] EWCA Civ 1712, decided 18 November 2021, which reversed the first-instance decision at [2020] EWHC 2373 (Comm). Permission to appeal to the Supreme Court was granted in September 2022 and a hearing was fixed for June 2023, but the case settled and the appeal was withdrawn, so the Court of Appeal decision stands and the Supreme Court has not ruled on the point.
The full article will cover the first-instance reasoning, the Court of Appeal analysis, the settled appeal and what it means for precedent, the drafting that creates a recoverable separate obligation, and the position in other jurisdictions.