Premature and Invalid NOR
Scenario 1, a berth charter
In the first scenario a notice given when the vessel was not alongside the berth, i.e. was not an ‘arrived’ ship is an inchoate notice, which is an invalid one.
There is no breach of charter if the vessel gives notice of readiness prematurely, such notice is simply ineffective to start laytime running. If the owner further fails to tender another notice of readiness when the vessel eventually meets all necessary requirements and becomes in all respects ready for cargo operations, then such notice remains invalid and does not automatically takes effect.
Accordingly, unless something happened after inchoate notice has been sent to make the laytime start, it never starts at all. This ‘something’ is in practice the commencement of loading or discharging operation by the charterers or the receivers without rejection of or reservation regarding the NOR, happening of which events was held in Flacker Shipping Ltd v Glencore Grain Ltd (The Happy Day)  2 Lloyd’s Rep 487 to invoke the doctrine of waiver, per Potter LJ at p. 509:
Laytime can commence under a voyage charter-party requiring service of a notice of readiness when no valid notice of readiness has been served in circumstances where (a) a notice of readiness valid in form is served upon the charterers or receivers as required under the charter-party prior to the arrival of the vessel; (b) the vessel thereafter arrives and is, or is accepted to be, ready to discharge to the knowledge of the charterers; (c) discharge thereafter commences to the order of the charterers or receivers without either having given any intimation of rejection or reservation in respect of the notice of readiness previously served or any indication that further notice of readiness is required before laytime commences.
When invalid NOR accepted by the shippers/receivers and terminal, the charterers were held to impliedly authorise the shippers/receivers and terminal to waive any defect in the NOR, because as matter of commercial practicality, such an intended recipient of the NOR must have implied authority to waive a condition as to the commencement of laytime.
If the notice of readiness was accepted with ignorance of what the effect would be under the charter the charterers could not take advantage of that ignorance since it was for them to impart to the shippers or the receivers as much information as was necessary for them to have when a notice was tendered.
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