Lloyd's Maritime and Commercial Law Quarterly
English Shipping Law
Stephen Girvin *
CASES
116. AET Inc Ltd v. Arcadia Petroleum Ltd (The Eagle Valencia)1
Voyage charterparties—demurrage—free pratique—Shellvoy 5—Shell Additional Clauses
T chartered the Eagle Valencia, an oil tanker, to P. The charterparty was based on the Shellvoy 5 form together with the Shell Additional Clauses (SAC), February 1999. The agreed laytime was 96 running hours with laytime to commence “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 the vessel is securely moored at the specified loading or discharging berth whichever first occurs” (Part II, cl 13.1). Part II, cl 13.1.a2 was to the effect that, if the vessel did not proceed immediately to such berth, time would commence six 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”. The demurrage payable was “60,000 USD PDPR”.2
Notice of readiness was tendered at Escravos (Nigeria) at 1148 on 15 January 2007; but the Eagle Valencia was required to wait at anchorage, since the berth was occupied. The port health authority representatives boarded the vessel at the anchorage at 0730 on 16 January and free pratique3 was granted at 0830 that day. The relevant charterparty clause, cl 22.1 (SAC), provided that, if owners failed to obtain free pratique within six hours after notice of readiness was tendered, then the notice would not be valid. However, cl 22.5 (SAC) and cl 22.6 (SAC) provided that the presentation of the notice of readiness and the commencement of laytime would not be invalid where the authorities did not grant free pratique at the anchorage or other place but cleared the vessel when she berthed, and that under those conditions the notice of readiness would be valid unless the timely clearance of the vessel was caused by the fault of the vessel.
T argued that laytime commenced at 1748 on 15 January, six hours after the notice of readiness. The obvious commercial purpose of cl 22.5 and cl 22.6 was to provide that the original notice of readiness was not invalidated where timely clearance within six hours of tender was unobtainable through no fault of the vessel, where timely clearance was not
* Faculty of Law, National University of Singapore.
1. [2009] EWHC 2337 (Comm); [2010] 1 Lloyd’s Rep 593; [2010] 1 All ER (Comm) 23; [2009] 2 CLC 567 (QBD: Walker J).
2. ie, US$60,000 “per day per hour”.
3. ie, “an official determination by port health authorities that a ship is without infectious disease or plague and that the crew is allowed to make physical contact with shore”: at [2].
ENGLISH SHIPPING LAW
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