CHAPTER 3 Chapter 3 Commencement of laytime CHAPTER 3 Chapter 3 Commencement of laytime CHAPTER 3 Chapter 3 Commencement of laytime CHAPTER 3.243 In the ﬁrst case, the owners tende

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2025-06-15

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"Loading and unloading time and demurrage fee" 6th edition

CHAPTER 3 Chapter 3

Commencement of laytime

CHAPTER 3 Chapter 3

Commencement of laytime

.243 In the ﬁrst case, the owners tendered notice of reading at 08 50 hours one Saturday morning in Lisbon. The arbitrator said it was necessary to consider local circumstances and other provisions in the charter relating to layout. The evidence on the former showed that the port was open on Saturday mornings and all port authorities available, stevedoring was charged at premium rates, all shipping agents were closed, except for those attending vessels, and the majority of, if not all, importers/exporters were closed. Other provisions in the charter included the exclusion of Saturday afternoon and Sunday from layout. More weight, said the arbitrator, had to be given to the evidence relating to business ofﬁces, rather than to the hours which the port authorities and stevedores had to work. Therefore, written notice of reading could not be received until Monday morning as the receivers’ ofﬁce was closed on Saturday.

.243 The first case, in Port Lisbon, Portugal, the owner was submitted on Saturday morning at 0850. The arbitrator believes that it is necessary to refer to the local situation and other provisions on loading and unloading time in the charter contract. The first case has evidence that the port operates as usual on Saturday morning, with all port authorities working and additional charges for loading and unloading operations. However, except for those agents who have been on board, all shipping agents do not work, and, if not all, most importers/exporters are closed for rest. Other terms and conditions of the charter contract include deductions on Saturday afternoon and Sunday in loading and unloading time. The arbitrator believes that the working hours of the relevant commercial sector should be given greater weight, rather than the working hours of the port authorities and loaders. Therefore, a written ready notice cannot be received until Monday morning, as the consignee's office closes on Saturday.

.244 The second case concerns a vessel which arrived at the Mersey Bar at 03 09 one Saturday. Notice of reading was given by telex to the charters’ agents at 09 55 and to the charters themselves at 10 00. However, neither the charters’ nor their agents’ ofﬁces were open. The charter contained two provisions relating to giving notice. The ﬁrst allowed for notice to be given on Saturday mornings before 12 00 if the vessel had been entered at the Custom House. The second said simply that notice was to be given during ordinary ofﬁce hours, whether the vessel had been entered at the Custom House or not. The issue between the parties was whether the two certificates were linked, so that the times specified in the ﬁrst indicated what was meant by ordinary ofﬁce hours, or whether they were completely separate, providing different criteria depending on whether the vessel had been entered at the Custom House or not. There was also a clause in the charter relating to the vessel giving notice when approaching Land’s End and the charterers thereupon giving orders for discharge.

.244The ship in the second case was arriving at the Mersey/Mesey Estuary Sands for Discharge. The notice of preparation was submitted to the lessee's agent by telex at 0955 and to the lessee himself at 1000. However, at this time, neither the lessee nor the office of his agent was in office. There are two provisions on delivery of traffic notices in the charter contract. The first provision is that the delivery of traffic notices is allowed before 1200 am on Saturday, if the ship has been registered at the customs declaration. Article 2 Simply put, regardless of whether the ship has registered and declared at the customs office, the notice is submitted during normal office hours.The dispute between the parties is: whether there is a connection between these two clauses, that is, the time display specified in Article 1 refers to normal office hours; or, these two clauses are completely independent, and different standards are proposed based on whether the ship has been declared. There is another relevant clause in the charter contract: when the ship approaches the Lands Corner in Southwest England, the lessee shall issue an unloading instruction after that.

.245 On these facts, the arbitrators held that the notice given on Saturday morning was a good notice. It was clear from the clause relating to giving notice when the vessel had been entered at the Custom House and the clause dealing with giving notice off Land’s End that the charters looked upon Saturday morning as being good for the tendering of notices.

.245 Based on these facts, the arbitrator ruled that the notice submitted on Saturday morning is valid. This obviously comes from the terms of the ship having registered customs declaration at the customs when the ship was delivered and the terms of the ship having delivered the traffic notice at the corner of Land, which can be concluded that the lessee regards the delivery of the traffic notice on Saturday morning as the appropriate time.

.246 In a slightly different set of circumstances, the tribunal held in London Arbitration 8/95 that a provision that referred to notice of reading being given between business hours of 00 01 and 24 00, meant literally that and notice could validly be given at any time even on Saturday 26 December which was not an ofﬁcial holiday at the port in question.

.246 In the reported case No. 8 of London Arbitration, the case background was slightly different. The Arbitral Tribunal ruled that the provision of the notice of readiness should be submitted within the business hours of 0001 to 2400, and should be explained literally, that is, the notice can be submitted at any time, and it is valid even on Saturday, December 26, because this day in the port is not an official holiday.

.247 Another example of what constitutes ‘‘ordinary ofﬁce hours’’ is provided by London Arbitration 13/02, where the tribunal held that it was the ofﬁce hours of port agents generally at the port of Lagos (the port in question) that were applicable, rather than the ofﬁce hours of the agents for the ship in question, who opened half an hour earlier than most of the other agents.

.247 Another example is provided by the reported London Arbitration Case No. 13 of 2002, which time is the time of the ‘ordinary office hours’. In that case, the tribunal ruled that this is generally applicable to the office hours of the port agent at the Port of Lagos (the disputed port of Nigeria), rather than the working hours of the agent who serves the ships in question, as he opens the door half an hour earlier than most other agents.

.248 In Paciﬁc Carriers Corporation v. Tradax Export SA (The North King), the North King was chartered for a voyage from one safe US port, for which the charters subsequently nominated Baton Rouge, Louisiana, as the load port. The notice clause of the charter required notiﬁcation of the vessel’s reading to be delivered at the ofﬁce of the charters or their agents ‘‘at or before 4 p.m. (or at or before 12 noon if on Saturday)’’. The owners’ agents therefore tendered notice of reading at 09 00 on Saturday 1 November. However, that Saturday was All Saints’ Day and a public holiday and the charters contended that the notice was only deemed to be effectively tendered on the following Monday.

.248 in Pacific Carriers Corporation v. Tradax Export SA (The In the North King case, the North King ship rented a voyage to a safe port in the United States, and the lessee then designated the Baton Rouge (upstream of the Mississippi River) in , Louisiana, as the loading port. The notice clause in the charter contract requires the ship to submit the ready notice to the lessee or his agent's office 'before 4 pm or 4 pm (or 12 pm or 12 pm on Saturday). Therefore, the owner's agent submitted a ready notice at 9 a.m. on Saturday, November 1.However, that Saturday happened to be Halloween and public holidays, and the lessee argued that the notice could only be considered validly submitted on the following Monday.

.249 The umpire in the arbitration proceedings and Mocatta J in the High Court both side-stepped the issue as to whether the notice provision allowed notiﬁcation to be given on a public holiday, an excepted period, by ﬁnding that the parties had separately agreed that notice on behalf of the vessel should be accepted on the Saturday morning. However, the umpire also pointed out that no evidence had been added to the effect that it was unlawful by the laws of the State of Louisiana to carry on business on All Saints’ Day or any other public holiday and he found that it was not unlawful for the notice of reading to be tendered or accepted on that day. It presumably follows from this that, apart from the notice clause in the charter, it would have been perfectly valid for notice to be given on a holiday or other excepted period.

.249 The public judge in the arbitration lawsuit and the High Court judge Mocatta both evaded the dispute over whether the notice clause allows the delivery of the notice during public holidays, and determined that the parties had agreed separately that the notice submitted on behalf of the ship on Saturday morning. However, the public also pointed out that under Louisiana law, there is no evidence to cite the illegality of opening business on Halloween or any other public holiday, and he then found that it is not illegal to submit and accept a ready notice that day. Based on this, putting aside the notice clause in the charter contract, it can be roughly concluded that the notice submitted during holidays or other exclusion periods is completely valid.

.250 On the meaning of the speciﬁc provision relating to notice in the charter, the umpire said he was inclined to think that by necessary implication from the express words of the clause, a valid notice of reading could not ordinarily be given on a Sunday or a holiday or any other day which is not a business day. The judge contented himself with saying that if it was not for the question of the agreement between the parties, the Decision would have turned upon interesting points in relation to the construction of the clauses of the charterparty.

.250 According to the meaning of the special provisions of the notice in the charter contract, the public opinion said that he tended to believe that it is necessary to imply from the express text of the clause that a valid loading and unloading preparation notice cannot usually be submitted on Sundays or holidays or other non-working days. The judge himself argued that if it were not for the agreement between the parties, the judgment should have been transferred to the interesting question of the interpretation of the terms of the charter contract.

.251 Perhaps the leading case where the question of notices being tendered outside the hours stipulated in the charterparty was considered was The Petr Schmidt. The clause in question required notices to be tendered ‘‘within 06 00 and 17 00 local time’’.

.251 Perhaps the leading case where the question of notices being tendered outside the hours stipulated in the charterparty was considered was The Petr Schmidt. The disputed clause stipulates that the notice requires that it be submitted at 'local time 0600-1700'.

.252 After referring to The Mexico I, Longmore J continued:

Mr Hamblen’s submission requires as its foundation that the notices of reading in the present case were invalid and a nature in the sense used in the decided cases. I do not think that they were. In the present case the ship was ready when the notices of reading were given. They were notices which stated the truth viz. that the vessel was ready to load or discharge as the case might be. The only thing wrong about the notices was the time that they were tendered, which was outside the contractual hours as speciﬁed in the contract. To say that such notices were invalid and must therefore be ties begs the question. They were accurate but non-contractual in the sense that they were tendered outside the contractual hours. To my mind that does not make them invalid notices in the sense of being abilities; timing provisions have nothing to do with whether notices are ties. It is only if a notice is untrue that it makes sense to say that it is invalid in the sense of being a nature.

An ‘‘invalid’’ notice of reading is a phrase of ambiguous meaning. It makes sense to say that an untruthful or inaccurate notice is invalid. It is not surprising that the courts have held that such a notice has no legal effect and is to be treated as a nature. It may in a sense be correct to say that a notice given outside the contractual hours is invalid but only in the sense that it does not comply with the contract. It does not follow that the courts should hold that a premature notice of reading is a nature and of no effect. The fact that there are good reasons for holding an inaccurate notice to be of no effect (viz. the charterer cannot know When it will become accurate) does not of itself means that there are similarly good reasons for holding an unless notice to be of no effect. There is in my view no good reason why the notice should not be effective as at the time which the contract ﬁxes for it to be tendered.

.252 in reference to The MexicoI After the case, Judge Longmore continued: Mr.

Hamblen (the lessee's lawyer)'s defense opinion demanded that the meaning in the precedent of the judgment be based on, and the notice in the case was invalid and empty. I don't think so. In this case, she was ready when the ship submitted a notice of ready. The notice explains the truth, that is, the ship is ready for loading and unloading. The only inappropriate thing is that it has not been submitted within the contract time specified in the charter contract. It is said that the notice is invalid, so it must be empty. This is to avoid the essence of the problem and draw conclusions randomly. These notices are accurate (reflected by facts), but non-contractual, meaning that they are submitted outside the time specified in the contract. For me, this does not make it invalid and becomes a busy life; there is no relationship between the time provision and whether the notice is invalid. Only when the notice is untrue can it be said to be invalid, and in a sense it will become a waste.

‘Invalid’ notice is a phrase with ambiguous meaning. It makes total sense if an untrue or inaccurate notice is invalid. It is no wonder that the court will determine that such notices have no legal effect and are regarded as empty. It is also invalid to say that a notice is outside the time specified in the contract, which is also correct in a sense, but this is limited to not fully complying with the contract provisions. But this invalidity cannot be concluded that the court must also determine that this premature notice is also empty and has no legal effect. In fact, there are good reasons to determine that an inaccurate notice has no legal effect (that is, the lessee cannot know when the notice will become correct and valid, which is why the owner needs to give another valid notice), but this fact itself does not mean that there is a sufficient reason for this to be the same as it should be determined that a premature notice should also have no legal effect.I think that when the contract stipulates the time for submission of the notice, there is no appropriate reason why such notice should be invalid.

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"Loading and unloading time and demurrage fee" 6th edition

CHAPTER 3 Chapter 3

Commencement of laytime

CHAPTER 3 Chapter 3

Commencement of laytime

.252 After referring to The Mexico I, Longmore J continued:

.252 in reference to The MexicoI After the case, Judge Longmore continued: Mr.

.253 The charters subsequently unsuccessfully appealed to the Court of Appeal, where the principal judgment was given Lord Justice Evans, who held as his primary reason for dismissing the appeal that the notice was tendered at 06 00 when the ofﬁce opened. Having quoted the passage cited above, Evans LJ then went on to say:

Mr Hamblen (for the Charterers) submitted to us that the Judge was wrong to introduce the distinction between invalidity for what may be called a substantial reason i.e. because the notice is incorrect in a material respect and a notice which although valid in itself is tendered in breach of some ‘‘time provision’’ as to when a valid notice may be tendered.

He later said:

I am inclined to agree with Mr Hamblen that a notice which is tendered outside the hours permitted by cl. 30 is non-contractual and cannot be relied upon as a ‘‘valid’’ notice, meaning effective to start the time clock running for loading or discharge as the case may be. If a notice was taken to the charterers’ ofﬁces at (say) 18 00 and then taken away, then I would not regard that as a tender which became effective on the following day. If Mr Justice Longmore intended to cover such a case when he said that ‘‘the Only thing wrong about the notices was the time that they were tendered’’, yet such notices were valid at that time, then I would disagree with him, but I do not think that he did. Notices outside the permitted hours were non-contractual and therefore ‘‘wrong’’. I do not see how they can be relied upon as having contractual effect at the time of tender. Whether the defect is ‘‘cured’’ by the passage of time is a question of fact rather than law.

The answer to the submission in the present case therefore, depends on the facts that the notice was given in writing and by means which were equivalent to leaving it in the ofﬁces to be attended to at 06 00 on the following day. This is essentially the same reason as I have given for rejecting the ﬁrst submission. Here, there was a tender at 06 00 whether or not there was previously a tender at the time when the telex or fax message was sent.

Peter Gibson LJ, having said that he entirely agreed with the reasons given by Evans LJ for dismissing the appeal, in answer to an argument from Mr Hamblen that because a breach of the time limits relating to presentation of notice of reading could not give rise to a claim in damages, therefore the time limits must be compiled with strictly, said:

That A notice given outside the period provided for contractually may be ‘‘uncontractual’’, but it does not follow that it is a nature, unless the circumstances of the contract or the subject-matter make it essential that the notice should be given within that period.’’

Sir Christopher Slade, the third member of the court agreed with the previous two judgments and added:

Laytime under this charterparty was pressed to begin on the expiration of six hours after receipt of the notice of reading. The commercial purpose of the second sentence of cl. 30, as I would infer, must have been to ensure that the charters or their agents should not be saddled with the receipt of a notice of reading, and the consequent commencement of layout, between 17 00 hours and 06 00 hours, that is to say outside what might be considered as ofﬁce hours.

The primary conclusion reached by Lord Justice Evans namely that on the facts of the present case there was a ‘‘tender’’ at 06 00, is in my judgment entirely consistent not only with this commercial purpose but also with the wording of cl. 6 and 30, which I think should be read together. The wording of cl. 6 makes it clear that the time of the giving of the notice plus the receipt thereof are the relevant factors for the purpose of the clause.

On this basis, I do not regard the notices of reading in the present case as ‘‘non-contractual’’ (i.e. as having been originally ‘‘tendered’’ outside the permitted hours). But even if they did not comply with the strict wording of cl. 30, I think that they still fall to be treated as valid notices for the reasons given by Lord Justice Evans and Lord Justice Peter Gibson.

I would therefore concur in dismissing this appeal and upholding the arbitrators’ award.

.253 The lessee then appealed to the Court of Appeal, but he did not win the case.The main verdict was given by Justice Evans, who ruled that the primary reason for dismissing the appeal was that the office had already started working when the notice was submitted at 0600. After citing the above cited clip, he continued:

Hamblen (the lessee's barrister) submitted to us said that the judge mistakenly accepted the difference between the invalid notice and the validity notice, that is, the invalidity is due to reasons that may be called substantial, such as in a significant way that the notice is incorrect, and the submitted notice itself is valid, although it is a violation of the 'time provision' of the valid notice.

He later went on to say:

I tend to agree with what Mr. Hamblen said that under Article 30, the notice submitted outside the permitted time is not stipulated in a contract and cannot be believed to be 'valid' notice, which means that the notice of validity is used to initiate the operation of the loading and unloading time clock, as the case may be. If the notice (said) was delivered to the lessee's office at 1800 and then taken away, then I don't think such a submission will become valid on day 2. If Judge Longmore intended to include the situation he said, that is, 'the only mistake was that the time of the notice was submitted was wrong', but at that time the notice was still valid, then I would not agree with him, but I do not think he would make a judgment like that. Notices submitted outside the time of permit are not in compliance with the contract and are therefore ‘errible’. I did not see that they would believe the notice was valid for the contract when submitting it. Whether this shortcoming is ‘eliminated’ over time is a matter of fact, not a matter of law.

Therefore, in this case, the answer to the point he made depends on the true situation of the notice submitted in writing, and in writing is equivalent to leaving the notice in the office until 0600 on the second day. Basically, I gave the same reason to reject the point he started arguing. Here, it became a question of whether the notification sent instantly by telex or fax was too early to submit at 0600 o'clock.

Peter Gibson also said that he fully agreed with the reasons given by Justice Evans when he rejected the appeal and answered the dispute raised by Mr. Hamblen - that is, the time limit cannot be made in violation of the time limit related to submitting the ready notice, so the time limit must be strictly observed, saying:

This simply cannot draw such a conclusion. For example, failure to comply with the rental payment schedule to pay rent on time may be a breach of contract, but it is not reimbursable in terms of losses because (breach) does not cause the timeline to become the fundamental basis of the contract (United Scientific Holdings Ltd v. Burnley Borough Council [1978] AC 904, in which case does not provide for the default on rent payment). Submission of a notice of transportation outside the time specified in the contract may be a ‘breach of contract’, but this does not conclude that it is a waste unless it is concluded based on the context of the contract or the subject matter of the contract that the submission of the notice within a given time is the fundamental basis of the contract.

Sir Christopher Slade, the third justice in the case also agreed to the verdict of the above two justices, adding that

, according to the charter contract, loading and unloading time is forced to be stipulated to start until 6 hours after receiving the ready notice. According to my inference, the commercial purpose of Article 30 and Sentence 2 should be to ensure that the lessee or his agent will not be overloaded after receiving the ready notice (with 6 hours of preparation time), and the next loading and unloading time is calculated from 1700 to 0600 on the next day, which means that this is outside the so-called working hours.

The basic conclusion drawn by Justice Evans means that according to the facts of the case, the delivery of the traffic notice at 0600 is in my opinion, not only in full compliance with the commercial purpose but also in full compliance with the wording of Articles 6 and Articles 30. At the same time, I also believe that they should be interpreted together. The wording of Article 6 clearly indicates the time of submission of the notice, and the acceptance of it is also a relevant factor considered in this clause.

On this basis, I do not think that the ready notice in this case is a ‘breach of contract’ (i.e., treat the initial submission of notice as ‘(invalid) submitted’ outside the permitted time). However, even if they did not strictly comply with the wording of Article 30, I think they are still deemed valid notices, which have been given by Justice Evans and Justice Peter Gibson.

Therefore, I also agree to dismiss this appeal and uphold the arbitrator's ruling.

.254 It would seem therefore that if a written notice of reading is given to the charters or their agents outside ofﬁce hours, where there is a provision requiring it to be given in ofﬁce hours, then such notice will be deemed to have been tendered at the commencement of ofﬁce hours on the next working day. The tribunal so found in London Arbitration 11/08.

.254 Therefore, it seems that if the ready notice is submitted to the lessee or his agent outside of work hours, despite provisions requiring the delivery of the traffic notice during office hours, the notice will often be considered as being submitted at the beginning of the next working day's office hours. The case No. 11 of London Arbitration reported in 2008 was also determined in this way.

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Author: Wei Changgeng, born on August 18, 1977, is from Sui County, Shangqiu District, Henan Province. He has studied at Dalian Maritime University from 1996 to 2000. During his time at school, I obtained a bachelor's degree in navigation technology and a CET-6 certificate in the National English Examination. 16 years of experience in navigating ocean-going ships, and the qualifications of ocean-going captain cape ships with 7 ships (including Cape size Cape type ships with a Cape size of more than 200,000 tons). I have always loved the study of maritime law (focus on British maritime law) and are committed to the translation of maritime law. The book "Ship Sales" has been published.

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The main verdict was given by Justice Evans, who ruled that the primary reason for dismissing the appeal was that the office had already started working when the notice was submitted at 0600. After citing the above cited clip, he continued: