Voyage Charterparty
Notice Of Readiness
IV. Accepted Invalid NOR
In response to a premature NOR, the charterers may:
(a) reject it,
A notice of readiness which is rightly rejected is a nullity, save to the extent that, with the express or implied agreement of the charterers, it may be left with them instead of being re-served and will then take effect when it truly represents the facts.(b) ignore it and do nothing,
Per Donaldson J in Sofial v Ove Skou Rederi(The Helle Skou), [1976] 2 Lloyd’s Rep 205 at p.214.
(c) accept it expressly
If the notice of readiness was accepted with ignorance of what the effect would be under the charter-party I do not consider the charterers can take advantage of that ignorance.(d) commence cargo operations loading or discharge as the case may be.
Per Sir David Cairns, in Surrey Shipping Co Ltd v Compagnie Continentale (France) SA, (The Shackleford), [1978] 2 Lloyd’s s Rep 154, CA at p.160
Sofial v Ove Skou Rederi (The Helle Skou), [1976] 2 Lloyd’s Rep 205 was the case in which charterers have accepted premature or invalid notice and later claimed to reject it.
The Helle Skou was chartered on the GENCON form, cl 22 of which required the vessel "to be presented with holds clean and dry and free from smell". Vessel arrived at berth #225 in Antwerp and served notice as her berth charter required. Immediately upon berthing the charterers began loading, but made no attempt to inspect the vessel and verify whether she was in fact clean, dry, free from smell and ready to load cargo in all her holds. The court held that charterers accepted this notice and were precluded from rejecting it afterwards, because, as Donaldson J said at p.214:
… this notice was far from being a nullity. It was the key which unlocked the holds of the vessel and allowed loading to begin.
When it was apparent that vessel’s holds were not free from smell it was decided that the cargo which had been loaded must be discharged and the vessel cleaned. The judge held that the charterers lost their right to reject originally invalid NOR:
Whether it is labelled as waiver or estoppel or something else, I do not consider that the charterers can resile from this position, save upon grounds of fraud.
Nevertheless the owners remained to be liable in damages for breach of cl.22 and for abortive loading and discharging.
In Surrey Shipping Co Ltd v Compagnie Continentale (France) SA (The Shackleford), [1978] 2 Lloyd’s Rep 154, cl.13 provided that for NOR to be effective "vessel also having been entered at the Custom House." Custom formalities could only be completed after berthing. In fact, due to congestion vessel was not able to proceed to discharging berth at arrival, therefore she anchored at roads and tendered notice of readiness immediately upon anchoring. This premature notice was expressly accepted by the receivers at the same time (time of anchoring).
Donaldson J at the first instance, with whom the Court of Appeal agreed, held that NOR served from the roads was a good notice in that the vessel was arrived and was ready to discharge but it was premature in that no customs entry had been obtained. The receivers could have rejected or ignored such notice in which case it would remain invalid. However, the charterers preferred to accept it and this created an estoppel by conduct so that the charterers could not allege anymore that the notice was premature.
In Emeraldian Ltd Partnership v Wellmix Shipping Ltd & Anor (The Vine)[2010] EWHC 1411 charterparty allowed tender of NOR at loadport
…at any time, … provided that the vessel is … cleared by the Port Authorities …
NOR was tendered at 00.38 on 8 January 2008 and the port authorities granted clearance at 10.20 on 12 January 2008. The charterers therefore submitted that laytime only commenced at 10.20 on 12 January 2008. Teare J footing on decision of Siberry J in Ocean Pride Maritime Ltd v Qingdao Ocean Shipping Company (The Northgate) [2007] EWHC 2796 held that statement of facts signed by two representatives of the receivers which recorded that port clearance was given at 10.20 on 12 January but that the notice of readiness was accepted at 00.38 on 8 January was clear evidence that the requirement for port clearance to be given before notice of readiness was accepted was waived by the receivers.
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