When Invalidity of NOR Was Contracted Out
Scenario 3, a berth charter with special provisions
Common law requires absolute readiness of the ship to receive cargo as soon as the charterers or consignees ready to load cargo. This rule can be modified by the parties to the extent that the basic principle must still be able to be simply applied to the given facts of a particular case. Most usually, by way of such modification, the owner may be allowed to tender NOR "whether vessel be in berth or not, whether in free pratique or not, whether in port or not" and (subject to other provisions) shift liability for further delays getting into the berth to the Charterers’ side. See also WIBON/WIPON.
In some instances charterparty construction may be found to demonstrate parties’ intention to contract out of the normal rule requiring that the vessel must be cargoready at the time of the giving of notice, as it was in Cobelfret NV v Cyclades Shipping Co Ltd (The Linardos)  1 Lloyd’s Rep. 28. In that case Clause 4 of the standard form of Richards Bay coal charter provided:
Time commencing, subject always to the undermentioned provisos, 18 hours after Notice of Readiness has been given by the Master certifying that the vessel has arrived and is in all respects ready to load, whether in berth or not … Any time lost subsequently by vessels not fulfilling requirements for Free Pratique or readiness to load in all respects, including Marine Surveyor’s Certificate … or for any other reason for which the vessel is responsible, shall NOT count as notice time, or as time allowed for loading.
At the time when the vessel gave notice of readiness loading berth was not available and the vessel itself was not yet ready to load because her holds were insufficiently clean. In two days vessel berthed but failed the marine surveyor inspection because of water and rust which he found in her hatches. She was eventually accepted as ready for loading on the following morning. The owners claimed demurrage and the charterers counterclaimed despatch, both of these claims depended on whether laytime accrued for those two days between tender of NOR and berthing.
Colman J. held that wording of cl.4 modified standard requirements that a valid notice of readiness could not be given unless and until the vessel was in truth ready to load to the effect that:
Consequently, if a vessel was obliged to wait for an available berth and gave notice of readiness to load in accordance with cl. 25 [whether in berth or not, whether in port or not, whether in free pratique or not, whether customs cleared or not] when in fact its holds were unclean and therefore unready, notice time would begin to run at the outset; but if and to the extent that the vessel’s unreadiness delayed cargo operations when a berth became available, the running of time would be interrupted until the vessel was accepted as ready. The rejection of the holds after the vessel got into berth would not in such a case deprive owners of the benefit of time lost at the anchorage, but merely of subsequent loss of time at the berth.
Cobelfret NV v Cyclades Shipping Co Ltd (The Linardos)  1 Lloyd’s Rep. 28, per Colman J. at p. 32
In another case The Jay Ganesh,  2 Lloyd’s Rep 358 Clauses 8 and 9, Laytime Counting (Loading and Discharging) of the World Food Programme voyage charter provided:
8. Notice of Readiness (Loading and Discharging)(a) At each port of loading and discharging notice of readiness shall be given by the Master to the Charterers or their agents when the Vessel is in the loading or discharging berth and has obtained customs clearance and free pratique and is in all respects ready to load and discharge.
(b) At loading port before tendering notice of readiness, the Owners and the Master shall ensure that all holds of the Vessel are clean, dry and free from smell and in all respects suitable to receive the cargo to the Shippers’/Charterers’ satisfaction.
(c) If a loading/discharging berth is not designated or if such designated berth is not available upon the Vessel’s arrival at or off the port, notice of readiness may be given upon arrival at the customary waiting place at or off the port, whether cleared at Customs or not and whether in free pratique or not.
9. Laytime Counting (Loading and Discharging)(e) If after berthing the Vessel is found not to be ready in all respects to load/discharge, the actual time lost until the Vessel is in fact ready to load/discharge (including customs clearance and free pratique if applicable) shall not count as laytime or as time on demurrage.
The vessel dropped anchor on arrival at the loading port and gave notice of readiness because there was no berth available. In two and a half weeks the vessel was inspected by the Charterers’ representative and the master was instructed to clean the holds and remove the infestation of insects. After waiting of ten days more at roads the vessel shifted from the anchorage into berth. Being inspected next day by surveyor the vessel was found with infestation still present. She was declared unfit to load the rice cargo and her holds needed fumigation. Next day after fumigation the vessel passed inspection and in one day the loading began. Owners claimed demurrage.
Giving his judgement a year after The Linardos case, Colman J., unsurprisingly, found that although wording of cl.8(b) imposes on the owner exactly the same duty as to physical readiness of the cargo spaces which he would have at common law, but reading together with cl.9(e), their combined effect in events of uncargoworthiness (same as in relation to free pratique) caused by the master’s NOR tendered under a misapprehension as to the physical condition of the cargo holds is that:
…the charterers must pay for waiting time at the anchorage when they have not provided a berth, but that if the vessel then causes delay after arrival in berth because she was not in truth then ready to load or discharge, that loss of time is to be borne by the owners.
Crucial factor in both The Linardos and The Jay Ganesh cases was that provisions dealing with laytime assumed the situation that the vessel was not cargo ready when a valid notice has already been given. This situation may only exist when common law rule has been modified by contract. If contract treated such notice as invalid, time would never have started and no time whatever would be capable of counting as laytime or demurrage time.
Clause 13 of Shellvoy5 together with cl.22 (SAC) and cl.13 of new Shellvoy6 form can also be said to contract out of requirement to tender valid notice of readiness when alongside the berth under a berth charter.
Shellvoy613.Notice of readiness/ Running time
(1) Subject to the provisions of Part II clauses 13(3) and 14,
(a)Time at each loading or discharging port shall commence to run 6 hours after the vessel is in all respects ready to load or discharge and written notice thereof has been tendered by the master or Owners’ agents to Charterers or their agents and the vessel is securely moored at the specified loading or discharging berth. However, if the vessel does not proceed immediately to such berth time shall commence to run 6 hours after
(i) the vessel is lying in the area where she was ordered to wait or, in the absence of any such specific order, in a usual waiting area and
(ii) written notice of readiness has been tendered and
(iii) the specified berth is accessible. A loading or discharging berth shall be deemed inaccessible only for so long as the vessel is or would be prevented from proceeding to it by bad weather, tidal conditions, ice, awaiting daylight, pilot or tugs, or port traffic control requirements (except those requirements resulting from the unavailability of such berth or of the cargo).
If Charterers fail to specify a berth at any port, the first berth at which the vessel loads or discharges the cargo or any part thereof shall be deemed to be the specified berth at such port for the purposes of this clause. Notice shall not be tendered before commencement of laydays and notice tendered by radio shall qualify as written notice provided it is confirmed in writing as soon as reasonably possible.
Time shall never commence before six hours after commencement of laydays unless loading commences prior to this time as provided in clause 13 (3).
If Owners fail;
(i) to obtain Customs clearance; and/or
(ii) to obtain free pratique unless this is not customary prior to berthing; and/or
(iii) to have on board all papers/certificates required to perform this Charter, either within the 6 hours after notice of readiness originally tendered or when time would otherwise normally commence under this Charter, then the original notice of readiness shall not be valid. A new notice of readiness may only be tendered when Customs clearance and/or free pratique has been granted and/or all papers/certificates required are in order in accordance with relevant authorities’ requirements. Laytime or demurrage, if on demurrage, would then commence in accordance with the terms of this Charter. All time, costs and expenses as a result of delays due to any of the foregoing shall be for Owners’ account.
(i) continue to run until the cargo hoses have been disconnected.
(ii) recommence two hours after disconnection of hoses if the vessel is delayed for Charterers’ purposes and shall continue until the termination of such delay provided that if the vessel waits at any place other than the berth, any time or part of the time on passage to such other place that occurs after two hours from disconnection of hoses shall not count.
(2) If the vessel loads or discharges cargo by transhipment at sea time shall commence in accordance with Part II clause 13 (I) (a), and run until transhipment has been completed and the vessels have separated, always subject to Part II clause 14.
(3) Notwithstanding anything else in this clause 13, if Charterers start loading or discharging the vessel before time would otherwise start to run under this Charter, time shall run from commencement of such loading or discharging.
(4) For the purposes of this clause 13 and of Part II clause 14 and Part II clause 15 "time" shall mean laytime.
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