Voyage Charters

Timothy Young KC; Michael Ashcroft; Julian Cooke; Andrew Taylor; John Kimball; LeRoy Lambert; David Martowski; Michael Sturley

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Chapter 38 Commencement and Calculation of Laytime

6. NOTICE OF READINESS. Upon arrival at customary anchorage at each port of loading or discharge, the Master or his agent shall give the Charterer or his agent notice by letter, telegraph, wireless or telephone that the Vessel is ready to load or discharge cargo, berth or no berth, and laytime, as hereinafter provided, shall commence upon the expiration of six (6) hours after receipt of such notice, or upon the Vessel’s arrival in berth (i.e., finished mooring when at a sealoading or discharging terminal and all fast when loading or discharging alongside a wharf), whichever first occurs. However, where delay is caused to Vessel getting into berth after giving notice of readiness for any reason over which Charterer has no control, such delay shall not count as used laytime.

7. HOURS FOR LOADING AND DISCHARGING. The number of running hours specified as laytime in Part I shall be permitted the Charterer as laytime for loading and discharging cargo; but any delay due to the Vessel’s condition or breakdown or inability of the Vessel’s facilities to load or discharge cargo within the time allowed shall not count as used laytime. If regulations of the Owner or port authorities prohibit loading or discharging of the cargo at night, time so lost shall not count as used laytime; if the Charterer, shipper or consignee prohibits loading or discharging at night, time so lost shall count as used laytime. Time consumed by the vessel in moving from loading or discharge port anchorage to her loading or discharge berth, discharging ballast water or slops, will not count as used laytime.

Time counting before laytime

38.1 As indicated above, the first sentence of clause 5 must be read in conjunction with clause 6. Under clause 5, laytime shall not commence before the date stipulated in Part I, except with the charterer’s sanction. What amounts to the relevant “sanction”? In Pteroti v. National Coal Board,1 the charter provided that laytime at the discharge port should count 24 hours after tender of notice of readiness, and Diplock J. held that the mere fact that the vessel began to discharge did not alter the effect of that term and he held that the charterer’s acceptance of discharge did not amount to an agreement to start laytime early. In The Front Commander,2 in which there was a specific additional clause that provided that laytime could start early if the charterer agreed, the request by the charterer that the vessel should tender notice of readiness and berth was held to be such a sanction, and advanced the start of laytime. No further specific agreement that laytime should start early was necessary. It would seem, therefore, that if a charterer merely performs his part of the loading or discharging operations, but no more, then

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he does not give the relevant “sanction”, but a request to serve an early notice of readiness or to berth or to commence cargo operations would usually amount to the relevant “sanction”. 38.2 Laytime cannot start running earlier than the time “stipulated in Part I”. However, the owner is obliged under clause 6 to give notice of readiness on arrival if the vessel is ready3 unless the charter specifically precludes the early tender of notice of readiness. The six-hour franchise in clause 6 can count before the stipulated time. The six-hour period is not laytime as such, but rather time before laytime can start. That period can, therefore, run before the time stipulated in Part I.4 Further, after the tender by the owner of notice of readiness before the commencement of the laydays, the charterer may order the vessel to load. The charterer is not obliged to do so but if he does the owner must comply.5 38.3 In any event, as soon as the vessel is moored at the loading terminal or all fast at the loading or discharging berth, the six-hour free period comes to an end and, subject to the overriding requirement of clause 5, laytime commences. It makes no difference that no loading or discharging actually takes place at the time. When the vessel proceeds directly into berth without arriving at the customary anchorage the charter appears to impose no requirement that any notice of readiness be tendered, although it would be prudent to tender notice (by one of the prescribed methods) in any event.

Notice of readiness

38.4 There is no requirement that the “customary anchorage” should be within the boundaries of the port and, therefore, in contrast to the normal position under a port charter, there is no requirement that the ship should be within the legal, fiscal or administrative limits of the port in question when she gives notice.6 The provision that the notice of readiness can be given “berth or no berth” merely re-emphasises this point.7 The phrase must be given a flexible meaning, taking account of the characteristics of the port, and an overflow anchorage, used when the main anchorage is fully occupied, is no doubt within the definition. Where it is customary for vessels awaiting a berth at the port to drift rather than to anchor, it has been held that arrival at the usual area for drifting is sufficient.8 However, the clause provides no justification for giving notice while the vessel is passing the entry buoy or for otherwise dispensing with the normal requirement that the vessel must have come to rest before giving notice.9 38.5 Whilst the vessel must be ready to load or discharge,10 as appropriate, the fact that she has ballast on board which requires discharging before loading can take place would seem not to prevent her from being ready. This seems the inevitable consequence of the laytime exception in clause 7 relating to time spent deballasting. 38.6 The notice of readiness should be given by any of the stipulated methods (although emails are not included in the list and so notice merely by email may not be validly given), but the six-hour franchise period which precedes laytime starts to count only from the time of receipt of the notice by the charterer or his agent.11 In view of the use of the word “must” in

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clause 6, the enumerated methods are probably to be regarded as exhaustive of the means by which a valid notice may be given.12 It appears from the reference to “each” port of loading or discharge that a notice of readiness must be given at each such port, in distinction from the common law rule that notice need only be given at the first port.13 It would also appear that, at a second or subsequent port, there is a further six-hour franchise period before the recommencement of laytime. It was held in The Tsukuba Maru 14 that the franchise period is not available, and moreover that no notice of readiness need be given, when the vessel is already on demurrage. The vessel is permitted to give notice of readiness upon arrival at the customary anchorage at each port of loading or discharge.

Delay in getting into berth

38.7 Perhaps the most difficult aspect of this clause is the final sentence, that “where delay is caused to Vessel getting into berth after giving notice of readiness for any reason over which Charterer has no control, such delay shall not count as used laytime”. The House of Lords held in The Notos 15 that these words, as they appear in the Asba II form, are not limited to delay during the period of time when the vessel is actually proceeding from her anchorage to berth, and the delay to which they refer is simply “postponement of the time (for any reason whatsoever over which the charterers have no control) when the vessel, having arrived at the port and given notice of readiness, can get into berth”. In The Notos, the berth was unusable because of swell and it was held that the consequent delay in the vessel leaving the anchorage and proceeding to berth was excluded from laytime. Although, as was pointed out in that case, there are important differences between the Asba II and the Asbatankvoy form as far as laytime is concerned, it is submitted that the view there expressed as to the ambit of the quoted words must apply to both forms. 38.8 The most significant difference between the two forms is that the Asbatankvoy form includes a provision in clause 9 by which the charterer warrants that the loading and discharging places which he must designate and procure for the vessel shall be “reachable on her arrival”. The effect of this warranty is that the charterer is unable to rely on the last sentence of clause 6, even where delay caused to the vessel in getting into berth is beyond his control, if that cause of delay amounted to a breach of the warranty that the berth should be “reachable on her arrival”.16

The Laura Prima was chartered on the Exxonvoy form, which had materially identical provisions to those of the Asbatankvoy form, including clauses 6 and 9. She was to load at Libya where she arrived and tendered notice of readiness. She could not berth because no berth was available due to congestion, which was found to be something over which the charterer had no control.

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