The storage facility was unavailable: can I claim delay costs in DIFC?

If your storage facility was unavailable when promised, a DIFC claim for the delay costs needs evidence of both the breach and the loss it caused. The operator is not automatically responsible for every day that a vessel, vehicle or cargo waited elsewhere.

Begin with parallel timelines. One records when the facility should have been ready and when it actually became available. The other records when the cargo could have reached, entered and used it. If the port, transport or documentation would independently have prevented access, that issue must be confronted before presenting the entire waiting bill as damages.

Claimed item	First evidence question	Separate issue
Prepaid storage charge	Which period was unavailable?	Was a refund or credit already given?
Demurrage	What created the liability and amount?	Did this provider's breach cause the waiting?
Lost trading profit	Which supported transaction was prevented?	Could transport and sales actually have occurred?
Replacement facility	Was an available alternative obtained?	What additional expense followed?
Unpaid later invoices	What remains due under the agreement?	Is the asserted set-off legally and factually supported?

Can the provider breach the contract while my damages claim fails?

Yes. The existence of a breach and proof of the loss attributed to it are separate questions. A contract can require availability from a stated date, while the evidence shows that another obstacle would have delayed the operation anyway.

In Rada Trading v Arya Petroleum [2020] DIFC CFI 112, paragraphs 20-25, a storage tank was not ready when promised. The advance-rent issue had been addressed by a credit. The additional demurrage and trading-loss claims failed because port congestion would have delayed the vessel independently. The operator recovered an unpaid later rental period. The judgment does not say storage operators can disregard agreed start dates.

The useful question is what timely performance would have changed. If you say the vessel would have discharged earlier, identify the berth, clearance and operational evidence supporting that date. If you say a truck would have delivered elsewhere, show that the route and replacement capacity were available then.

Do not treat this as a general port-congestion defence. The court examined the actual queue and vessel movements. Another case could have different evidence. Equally, a storage contract heard in the DIFC Courts is not automatically governed by every rule applicable to a residential tenancy in the DIFC.

How do I establish the promised availability date?

Use the executed agreement, schedules and any effective amendments. Identify what the provider promised to make available: empty capacity, a particular tank, handling services, a berth connection or another defined facility. A label such as lease may not describe the whole service.

Keep pre-contract warnings and negotiations, but distinguish them from the signed obligation. If the operator says you accepted uncertainty, ask which communication records that acceptance and how it relates to the contractual date. If you agreed to a revised start, preserve that agreement rather than presenting the original date as unqualified.

Document readiness at each stage. Capacity can be physically empty but unavailable because cleaning, compatibility checks or access remain incomplete. Conversely, a delay elsewhere may prevent the customer from using an otherwise ready facility. Record what each inspection or message actually establishes.

Give each event a source and a confidence level. A contemporaneous terminal log differs from an employee's estimate made months later. If records disagree, retain both versions and explain the discrepancy. Do not resolve it simply by choosing the version that produces the largest period of delay.

What records show whether the breach caused the waiting?

Seek independent operational records early. Relevant material may include arrival notices, berth allocations, port schedules, customs events, transport logs and loading records. The point is to test the timeline, not merely accumulate documents confirming that delay occurred.

Divide the claimed period into intervals. For each interval, ask what prevented progress, who controlled that obstacle and whether the same obstacle would have existed with a ready facility. This may reveal periods with different causes rather than one continuous delay attributable to one party.

A simple hypothetical shows the distinction. Suppose the facility was unavailable for ten days, but the cargo could not have obtained access for the first seven days even with timely performance. The full ten-day delay cannot be attributed merely by pointing to the unavailable facility. Nor does subtraction alone prove a recoverable three-day claim. The causal and contractual position still needs evidence.

Keep communications about alternatives. If another berth or facility was suggested, establish its actual availability and suitability, not just that someone mentioned it. Where a proposed solution depended on a third party's permission, retain the request and response. An option that existed only on paper may not establish what could reasonably have happened.

Common mistake. Using the supplier's admitted breach as the only explanation for every later cost. Prove the route from the missed obligation to each claimed period and amount.

How should I prove demurrage and lost trading profit?

For demurrage, provide the underlying contractual liability and calculation, not only the invoice. Identify the relevant dates, time allowed, rate, deductions and any agreement settling the amount. Show whether it was paid, remains payable or is contested.

Then connect that liability to the defendant's breach. The fact that your seller or shipowner can charge you does not by itself establish that the storage provider must reimburse you. Keep these as separate sections of the loss schedule so that one is not used as a substitute for the other.

For lost profit, identify the transaction or trading cycle said to have been prevented. Include procurement, transport, storage, sale and payment assumptions. A forecast that a tank could turn over stock every few days needs to account for the real port and handling conditions during the claimed period.

Use net figures with a transparent explanation of costs saved or still incurred. A hypothetical sale price of AED 100,000 less purchase and attributable costs of AED 85,000 gives an arithmetic margin of AED 15,000. It does not establish that the sale was available, that it would have completed or that the full margin is legally recoverable.

If the proposed buyer withdrew, keep its actual explanation and the terms under discussion. A lost enquiry, a conditional order and a cancelled binding sale are different starting points. Do not describe all three as a completed sale that was certain to generate profit.

The March 2024 Law of Damages and Remedies consolidation, Articles 9-12, distinguishes resulting loss, avoided costs, certainty and foreseeability. It is a dated statutory source, not confirmation here of every subsequent amendment. Its current operative status remains a publication check because the official database's status label is inconsistent with its linked consolidation.

Will an expert's spreadsheet establish the claim?

A calculation can quantify assumptions without proving that those assumptions are true. Give an expert the operational evidence as well as the sales forecast. Ask the report to separate established facts, instructed assumptions and conclusions within the expert's own field.

In the Rada judgment, paragraph 24 explains the difficulty with the proposed cargo rotation and its relationship to the actual port delay. The lesson is not that lost-profit experts are unnecessary. It is that a persuasive financial calculation cannot bypass an unresolved operational premise.

Under RDC Part 31, Rules 31.3-31.9 and 31.13, court expert evidence carries duties of independence and assistance to the Court, with requirements concerning its scope and permission. Plan the question before commissioning a litigation report. An accountant may address margins while a different discipline is needed to assess achievable cargo movements.

Request sensitivity calculations where an assumption is genuinely disputed. Show the result using alternative supported turnaround periods, not arbitrary extremes. Identify which document would resolve the difference. This makes the report useful for settlement and legal review without pretending that numerical precision removes factual uncertainty.

Can I withhold later storage charges or extend the term myself?

Do not assume an early failure cancels all later invoices. Reconcile each billing period, payment and credit against the agreement. An existing credit may have paid a later month rather than refunded cash, so account for its actual allocation.

The Rada decision awarded the operator a later unpaid period after the customer's loss claim failed. It also rejected the idea that the lost first month automatically extended the contract into another chargeable month. Those were conclusions on the particular agreement and evidence, not a universal rule allowing either party to rewrite the duration.

If asserting set-off, identify the specific claim and amount and obtain advice on its availability. If disputing only part of an invoice, state the distinction. Avoid combining an admitted storage charge with an estimated damages demand in a single unexplained net figure.

For a negotiated solution, specify whether the remedy is a cash refund, an account credit, substitute capacity or extra time. State the amount, period, expiry and effect on other claims. A vague promise to make up the inconvenience can leave both parties with different understandings when the next invoice arrives.

Key takeaway. Keep the service credit, additional loss claim and continuing account separate. A valid complaint about the first does not necessarily establish the second or extinguish the third.

What should I prepare before a demand or settlement meeting?

Provide a file that tests your claim as well as supporting it. The central question is whether the commercial loss would have occurred with timely performance, and the other side will look for records answering that question differently.

1. Identify the promised service, start date and relevant qualifications.
2. Build the facility and cargo timelines from original records.
3. Allocate each delay interval to the obstacle actually preventing progress.
4. Reconcile prepaid charges, credits and later invoices.
5. Prepare separate demurrage and profit schedules with their assumptions.
6. Review replacement options and the decisions made at the time.
7. Check forum, applicable law, deadlines and any proposed set-off.

Keep limitation review separate from negotiations. This guide does not prescribe a universal deadline for every storage arrangement. Sources were checked on 29 September 2026. The later-history search was bounded, not an appeal-status certificate. Confirm the applicable statutory version and any later orders before relying on the judgment in a live dispute. This article addresses unavailable storage and the resulting loss, not a supplier's failure to deliver goods.

Frequently Asked Questions

Does an admitted breach prove all my losses? No. The loss attributed to that breach needs its own evidence.

Does port congestion always excuse the storage provider? No. Examine the agreed obligation and the actual effect of congestion on the claimed loss.

Is a demurrage invoice enough? Not alone. Establish the underlying liability, calculation and causal link to the defendant.

Can I claim gross sales as lost profit? Do not assume so. Provide a supported calculation accounting for relevant costs and whether the sales could occur.

Will a financial expert prove the cargo could move? Not necessarily. Operational assumptions need their own evidence and appropriate expertise.

Can I ignore later invoices? No. Review them separately and assess any proposed withholding or set-off.

Does the unavailable month automatically extend the agreement? Not automatically. Check the contract and any actual extension agreement.

Must I deduct an existing credit? Account for it accurately. Do not seek the same economic payment twice through inconsistent calculations.

This article is for general informational purposes only and does not constitute legal advice. Consult a qualified advocate for advice on your specific situation.

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