Most voyage charterparties make the
commencement of laytime conditional on the tender of a valid notice of
readiness. If the notice is invalid, then in the absence of a waiver by
charterers (on which see below) laytime will not commence at all, even if the
charterers knew or ought to have known that the vessel was in all respects
ready. The tender of a valid Notice of Readiness and the subsequent
commencement of laytime has been a fertile area of debate in the English
courts, this past year or so being no exception with the much-commented cases
of the "PETR SCHMIDT" [1998] and the "AGAMEMNON" [1998]
being heard. These have assisted in the development and clarification of this
area of the law.
OVERVIEW
General Observations
If a notice is required but none is given
then strictly, laytime will not start to run. Arbitrators may however, take a
more commercial view and decide on the facts that the charterers were aware or
ought to have been aware that the vessel was ready to load and knew that
loading was taking place, and that therefore laytime should commence on
loading. The burden of proof, however, is on the owners to show that laytime
should start to run even though a notice of readiness was not given. This is
not satisfactory from the owners’ point of view as there is no assurance
for them that laytime will commence at all.
Where a notice is required then in the
absence of an express provision to the contrary, this is required only at the
first load port and not at the subsequent load ports or at the discharge
port(s). At common law, the notice may be given orally or in writing.
THE CONTENTS OF THE NOTICE OF READINESS
The notice of readiness is the notice to
the charterer, shipper, receiver or other person as may be required under the
charterparty that:
(1) The vessel has arrived at the
specified destination where the notice of readiness can be given. The question
of whether the vessel is an "arrived" one for the purposes of
commencement of laytime has been the subject of much discussion and case law
which is outside the scope of this article. However, it can be said briefly
that the specified destination will depend on the terms of the contract; if the
charterparty is a berth charterparty then the specified destination is the
nominated berth or, if a berth has not been nominated, it will be the first
available berth to which the vessel is ordered and the notice of readiness may
be tendered at that place subject to the other conditions being satisfied. If,
however, the charterparty is a port charterparty then the notice of readiness
must be tendered when the vessel is in berth within the specified port or, if a
berth is not available, when the vessel is within the port limits and at the
waiting area where vessels usually wait for a berth.
Various clauses in the charterparty may advance the time that the vessel may
tender the notice even though she may not be at the specified destination. The
most familiar is the WIBON ("whether in berth or not") provision
which means that under a berth charterparty, if the berth is not immediately
accessible, the notice of readiness may be given when the vessel is in the port
in which the berth is situated.
Similarly a WIPON ("whether in port or not") provision will enable
the notice in certain circumstances to be tendered even if the vessel has not
yet entered the port area.
(2) The vessel is ready to load or
discharge the cargo as the case may be. This means that the vessel must be both
physically ready in that the holds are ready to receive the cargo and legally
ready in that all documentation necessary to enable her to commence loading is
in order. If, however, the vessel is ready subject only to a mere formality
then the notice may still be able to be tendered. For example, if customs
clearance is only obtainable on berthing but the notice can be tendered when
the vessel is off berth then this will not affect the vessel’s readiness.
(3) All other requirements under the
charterparty concerning the form, timing and the party to whom the notice is to
be tendered have been complied with.
Validity of the notice of readiness
A notice of readiness therefore contains
several statements of fact. In order to be a valid notice, those statements
must be true. If the statements are incorrect the notice is invalid and a
nullity so far as the contract is concerned and ineffective to start laytime.
Further, as was made clear in the leading authority of the "MEXICO
I" [1990] (described below), if the statements were untrue when
they were made, the notice does not subsequently become valid when the circumstances
change. If therefore, there is any doubt as to the validity of the notice, it
is always advisable for the master to tender a further notice.
The "MEXICO I" [1990] 1 Lloyd’s Rep 191
The owners let their vessel to the
charterers for the carriage of a part cargo of maize from Argentina to Angola.
Under the charterparty, the owners had a right to complete the vessel with
other cargo. On completion of loading, the vessel was also carrying a cargo of
beans for the same charterer under another agreement. Both the maize and the
beans were over stowed by parts of the completion cargo. On arrival at the
discharge port, the vessel tendered notice of readiness (on 25th January).
However, at the time of tender neither of the charterers’ cargo was accessible due to the over stow
of the completion cargo. The charterers’ maize cargo became accessible on 6th
February and the beans on 19th February which is when discharge of both cargoes
commenced. The owners claimed that laytime commenced when the cargo became fully
accessible on 6th February. Charterers on the other hand claimed that time
commenced only when discharge actually commenced on 19th February.
The Court of Appeal held that the notice
was invalid and a nullity when given and ineffective therefore to commence
laytime even if the charterers knew or ought to have known of the vessel’s subsequent readiness. Accordingly, the
charterers were entitled to insist on a further notice of readiness in order
for laytime to commence unless they had in the meantime waived their right to a
further notice or agreed that it would not be necessary. On the particular
facts in this case, the Judge found that although the notice was invalid, the
charterers had nevertheless accepted it via their agents on the commencement of
discharge. As a matter of principle, however, the judge confirmed that an
acceptance of an invalid notice in circumstances where the charterers were
unaware of the inaccuracy in the notice could not bind the charterers and they
were not prevented from subsequently disputing the effect of the notice. What
will constitute a waiver of the defect or acceptance of an invalid notice is
considered in more detail below.
Unless there is provision to the contrary
in the charterparty, the statements in the notice must relate to the time that
they are made and when the notice is given. There is a distinction however
between an invalid notice and one that is uncontractual in that it has been
tendered to the wrong party or at the wrong time of day. A notice that falls
within the second category may still be regarded as valid. The law in this area
has recently been clarified in the following recent cases.
The "AGAMEMNON" [1998] CLC Rep 106
The "AGAMEMNON" was chartered
to load a cargo of steel pipes from Baton Rouge to Brisbane. The charterparty
provided that the vessel was at the South West Pass and "ready to proceed
to loading port weather permitting". The South West Pass, however, was 170
miles from Baton Rouge and it did not form part of that port. A notice of
readiness was tendered at the South West Pass. It was not until two days later
however that the vessel arrived at Baton Rouge general anchorage but, due to
the designated berth being unavailable, loading did not commence until later
the following day.
The charterparty provided that if the berth was not available on the vessel’s arrival at the port or so near thereto
as she may be permitted to approach, the notice could be tendered on arrival
and laytime would then commence as if she were in berth and in all respects
ready.
The charterers considered that the notice
of readiness tendered at the South West Pass was premature, since it was given
prior to the vessel’s arrival at a point so near to Baton
Rouge as she could approach i.e. the Baton Rouge general anchorage, and as no
notice was given when the vessel reached that point later, laytime did not
commence until loading started.
The charterers failed to persuade the
arbitrators to agree with this view, but on appeal, the Judge found in their favor.
In accepting their arguments, the Judge relied on the Court of Appeal decision
in the "MEXICO I" [1990] which made clear that when
a notice is to be given in order to start laytime running, this must be a valid
notice and not an "inchoate" or "delayed action device"
seeking to commence laytime automatically on the happening of a certain event.
In such cases, a fresh notice must be given. Applying that case to the facts
before him, the Judge found that the notice of readiness in this case
represented that the vessel was at the place at which it was permissible for
the notice to be tendered (the Baton Rouge anchorage). This was clearly not the
case and the notice was therefore invalid and could not trigger the
commencement of laytime.
The "PETR SCHMIDT" [1998] C.A.
In
this case, the charterparty provided that the notice of readiness had to be
tendered to the charterer or his agent within 0600- and 1700-hours local time
and laytime was to commence six hours from the receipt of that notice or upon
the vessel’s arrival, whichever first occurred. Of
the various notices given at the load and discharge ports, one was given at
0100 hours and the other two at 1800 hours. The charterers argued that since
the notices were tendered outside the specified period, they were non-contractual
being in breach of the relevant clause and therefore invalid and of no effect
in accordance with the principles in the "MEXICO I".
It was common ground that (a) when the
notice of readiness was given the vessel had then arrived at the appropriate
place within the port in question (b) the vessel was in fact ready to load or
discharge as required by the charterparty and the statement of readiness was
therefore correct (c) the vessel continued to be ready and (d) no further
notices were given.
In their judgment, the Court of Appeal
confirmed the principle decided in the "MEXICO I" namely, that in
order to be a valid notice, it must contain accurate statements of existing
fact. In the "MEXICO I" the notice stated that the vessel was ready when
in fact she was not and the notice was therefore invalid. In the "PETR
SCHMIDT", however, the notice was correct in that the vessel was ready and
at the required place but was sent to the charterers outside office hours. The
Court drew a distinction between the requirement to "tender" a notice
of readiness and to "give" or to "receive" one. The Court
found in this case that the telex notice was sent out of office hours but was
"tendered" at the receivers’ office opening at 0600 hours the
following morning and that this therefore complied with the charterparty
requirement. However, the Court also considered what the position would be if
the charterparty required the notices of readiness to be "given" or
"received" by charterers within certain periods and they are in fact
given or received outside these periods. The Court held that in such cases
(provided the notice was otherwise correct) the notice would be non-contractual
and therefore wrong but not invalid at the time it was given. The practical
effect of a non-contractual notice which is tendered outside the required time
is, that while it may not be effective to start the laytime clock running, the
defect may be "cured" by, for example, the passage of time and
laytime will start at that point. As the Court pointed out, whether the defect
can be so "cured" is a question of fact rather than the law and will
vary from case to case.
The charterers may choose to accept an
otherwise invalid notice. However, this acceptance must be in clear terms and
in these circumstances, owners will leave themselves open to the argument that
this acceptance was induced by an incorrect representation in the notice as
happened in the "MEXICO I". In those cases, the charterers would not
be precluded from disputing the effect of the invalid notice.
Acceptance/Waiver by charterers.
In other cases, the charterers may be
regarded as having accepted the invalid notice with full knowledge of the
defect, or as having waived the defect such that they are subsequently estopped
from relying on it (such as in the "SHACKLEFORD" [1978] 2 Lloyd’s Rep. 154). Whether there has been such
an acceptance will depend on the facts of each case. However, as expressed in
the "MEXICO I", at the very least it must be shown that there was
some kind of bilateral representation and conduct by the parties to provide
evidence that the original contractual arrangement as to the commencement of
laytime had been replaced by something new.
CONCLUSION
It will be seen from the above that the
recent cases have clarified the law. However, there are still some grey areas.
In order therefore, to be absolutely certain that time will start to count at
the earliest opportunity, if there is any doubt as to the validity of the
original notice the master should issue a further notice of readiness.
