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TitleCommencement of Laytime - Davies
TagsArbitration Judgment (Law) Industries Logistics Water Transport
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Total Pages366
Table of Contents
                            Title
Copyright
Dedication
Preface
CONTENTS
Table of Cases
	Decisions in LMLN Reports
Bibliography
INTRODUCTION—GENERAL REQUIREMENTS OF ENGLISH LAW
CHAPTER 1—ARRIVING AT THE AGREED DESTINATION
	Port charterparty, geographical—the Oldendorff test
	Difficulties in the application of the ‘‘within the port’’ Oldendorff test
	At the immediate and effective disposition of the charterer
		Sale contract
	Berth charterparty
	Dock charterparty
	Tanker charterparties
CHAPTER 2—SPECIAL CLAUSES RELEVANT TO ARRIVING AT THE DESTINATION
	General
	Advancing laytime including ‘‘whether in berth or not’’ and ‘‘whether in port or not’’
	Specific sums for waiting time
	Time lost waiting for a berth including the Darrah decision
	Other special clauses
CHAPTER 3—BREACHES OF CONTRACT/DAMAGES RELEVANT TO ARRIVING AT THE DESTINATION: IMPLIED TERMS
	Reachable on arrival/always accessible including the Laura Prima decision
	Damages—implied terms
	Assessment of damages
CHAPTER 4—READINESS
	General
	Cargo spaces including the Tres Flores decision
	Equipment
	Documentation—legal readiness—including the Delian Spirit decision
	Draught (Draft)/Lightening
	Tankers—Ballasting/deballasting
CHAPTER 5—SPECIAL CLAUSES/BREACHES OF CONTRACT/DAMAGES RELEVANT TO READINESS (INCLUDING DRAUGHT AND BILLS OF LADING AND FAULT OF OWNERS)
	Special clauses
	Breach of contract/damages (including draught and bills of lading and fault of owners)
CHAPTER 6—NOTICE OF READINESS INCLUDING RELEVANT SPECIAL CLAUSES AND ACCEPTANCE OF NOTICE OF READINESS
	Notice of readiness—common law
	Notice of readiness—express clauses
	Correctness of notice
	Acceptance of notice of readiness including waiver/estoppel etc.
	Elapsed time
	Notice of readiness tendered prior to the laydays
CHAPTER 7—MISCELLANEOUS MATTERS
	General
	Readiness and cancellation
	Work before the commencement of laytime
	Overchartering and obstacles created by chartering
	Exceptions
	Estimated time of arrival
	Sale contracts
	Multiple charters
Index
                        
Document Text Contents
Page 2

COMMENCEMENT OF LAYTIME

FOURTH EDITION

Page 183

occasioned by the vessel’s holds being sprayed and re-passed. The statement of facts shows
that Nos. 2 and 5 holds were failed by 09.00 on December 1 and were not ready, to the
charterers, until 20.30 on that day. It does seem that this did not affect loading in other holds
and that, in any event, no more than one hold was being loaded, at any one time. However,
the position is not abundantly clear from the documentation and I have to remember the
words of Lord Denning from The ‘Tres Flores’9 that all cargo spaces should be accessible to the
charterers. Therefore as I see it the maximum loss to the charterers was the loss of time from
09.00 to 20.30 on December 1; therefore, in order to compensate the charterers in respect
of the owners’ breach of contract the time from 09.00 to 20.30 on December 1 cannot count
as time on demurrage.’’

The circumstances which arose in The ‘‘Dubhe’’12 arbitration are relatively common
particularly in grain loading ports. It is emphasised that other arbitrators might well
have taken a different approach to the Dubhe12 arbitrator on similar facts and
concluded that the Tres Flores11 principle was applicable so that the notice of
readiness could not be valid until after the work required, as a result of the further
inspection at the loading terminal, had been performed. The problem is sometimes
taken care of by way of the following added words to a Dubhe style notice of
readiness clause: ‘‘If after berthing the vessel is found not ready in all respects for
loading the actual time lost from the discovery thereof until she is in fact ready to
load will not count as laytime.’’ Those words have much to commend them in that
they are fair to both parties.

69. As mentioned in paragraph 64, above (Lord Justice Roskill and Lord Justice
Cairns), the de minimis principle may be of help to shipowners in some circum-
stances but such are likely to be limited in number. What degree of uncleanliness
falls under the de minimis rule is a matter of conjecture and it is thought that, in
practice, the uncleanliness would have to be very minor to be adjudged of no
account in order to invoke the de minimis principle. In The ‘‘Tres Flores’’11 the
arbitrators did not apply their minds to the de minimis principle but the High Court
judge was convinced that it could not avail the owners even though it only took four
and a half hours and $170.94 to clear up the infestation. Further, if an express
clause in the charterparty specifies that the vessel can only be ready after being
passed by a named authority then that appears to be the end of the matter since the
express requirement becomes a condition precedent to the tendering of notice of
readiness.

In The ‘‘Despina’’13 an arbitrator did apply the de minimis principle in circum-
stances where the vessel had been failed initially by inspectors but then passed after
the cargo spaces had been cleaned. The vessel had to wait for a berth (no ‘‘time lost
waiting for a berth’’ provision in the charterparty) and did not go alongside until
seven days later at which time loading of all holds commenced except for one hold
which was sprayed for one hour on account of larva. The arbitrator decided that the
small amount of infestation and spraying was of a trifling nature and could be
disregarded under the de minimis principle; he also found that the rejection of the

12. 1981.
13. 1980.

160

Para. 68 READINESS

Page 184

hold caused no delay to the completion of the loading since the hold in question was
one of the earlier holds to complete loading.

Again, in The ‘‘Irinikos’’14 arbitration an arbitrator applied the de minimis principle
in circumstances where there was a conflict of evidence concerning the dryness of
the vessel’s cargo spaces late one afternoon. The vessel moved into berth in the early
hours of the next morning and commenced loading at 06.00; he decided that the
vessel was ready at 16.00 but, if there was any further drying of cargo spaces to take
place, such was of a minor nature and could be disregarded under the de minimis
principle.

70. The previous paragraphs have referred mainly to grain or grain-type cargoes
not only because of their propensity to problems but also because of the large
number of arbitrations which have taken place over the years concerning uncleanli-
ness/infestation of hold and the commencement of laytime with such cargoes. The
subject is also of importance in the carriage of bulk liquid cargoes although it does
not appear to show in so many arbitrations, probably because the loading of crude
oil (which forms the major amount of bulk liquid carried) does not demand the
same standard of cargo space cleaning, also because of the particular cleaning
clauses in various tanker charterparties. In the carriage of clean bulk liquid cargoes,
the degree of cleanliness is very stringent but arbitrations appear to be few and far
between since a vessel usually has to satisfy the charterers or an independent
inspector at the loading port so that, in the event, the inspector becomes something
of a quasi-arbitrator.

A common type clause in a tanker voyage charterparty is: ‘‘Master to clean
vessel’s tanks, pipes and pumps, to Charterer’s satisfaction’’. A very simply worded
clause but sufficient to allow the charterer’s representatives to press for as much
cleaning as can reasonably be demanded. The owners do have a safeguard in that,
if the charterers or their representatives are unreasonable in their demands concern-
ing the amount of cleaning, they may be in breach of the implied term to exercise
reasonable dispatch (see above, paragraphs 56–57) so that the owners would be
entitled to damages for delay resulting from such a breach. In most cases the
damages would be based on allowing the laytime to commence in accordance with
the time when the vessel’s tanks had been sufficiently cleaned for the loading of the
cargo in question. In practice, it is difficult for owners to go behind the charterer’s
inspector, because of lack of proof. There may be no surveyors available to call in
quickly to provide an assessment of the state of the vessel’s tanks to convince the
charterers’ representatives that the tanks are sufficiently clean; further, even if a
surveyor can be found, the result can often be a conflict of evidence between two
surveyors so that an arbitration at a later date can be a game of chance.

Charterers do not appear to take advantage of the strict Tres Flores15 point as
frequently as they might do in the tanker trades. In many cases they apply a breach/
damages approach to the uncleanliness of cargo tanks and only deduct laytime for

14. 1977.
15. [1973] 2 Lloyd’s Rep. 247.

Para. 70CARGO SPACES

161

Page 365

Tender prior to laydays
notice of readiness, and, 121

‘‘Themistocles’’
in regular turn, and, 43

‘‘Tielrode’’
special readiness clauses, and, 83, 87

Time lost waiting for berth
‘‘Agios Stylianos’’, 40
anchorage, and

miscellaneous, 39
‘‘Radnor’’, 35

Baltic Code, and, 39
cargo spaces, and, 70
Charterparty Laytime Definitions, and, 39
‘‘Darrah’’, 38–41
Gencon, and, 35
generally, 35–41
‘‘Johanna Oldendorff’’, 37
‘‘Vastric’’, 36
‘‘Loucas N’’, 35
‘‘Vastric’’, 35
Voylayrules, and, 39

‘‘Timna’’
damages for breach of contract (arrival), and

assessment, 61
general, 60

notice of readiness, and
acceptance, 116
common law, 100

‘‘Torm Estrid’’
‘‘Oldendorff’’ test and, 14

Transhipment
advancing laytime, and, 25
‘‘Oldendorff’’ test and, 12
port charterparty, and, 12
tanker charterparty, and, 23

‘‘Tres Flores’’
ballasting/deballasting, and, 81
damages for breach of contract (arrival), and,

57
readiness, and

general, 64–71
notice of readiness, 107
special clauses, 82

time lost waiting for berth, and, 39
‘‘Turn time’’

arriving at agreed destination, and, 43

Unloading
see Loading

‘‘Vastric’’
time lost waiting for berth, and, 35

Vegoilvoy
ballasting/deballasting, and, 81

‘‘Virginia M’’
equipment, and, 75
notice of readiness, and, 107
reachable on arrival, and, 51

VITOL
ISPS clause, and, 79

Voyage charterparty
characteristics, 8

Voylayrules 1993
advancing laytime, and, 28
always accessible, and, 53
arriving at agreed destination, and

advancing laytime, 28
berth charterparty, 20
port charterparty, 17
time lost waiting for berth, 39

early loading clause, 124
notice of readiness, and

common law, 99
express clauses, 103

‘‘Oldendorff’’ test, and, 17
reachable on arrival, and, 53
time lost waiting for berth, and, 39
whether in berth/port or not, and, 27

‘‘Vyse v Wakefield’’
notice of readiness, and, 99

Waiting time
arriving at agreed destination, and, 34

Waiver of notice of readiness
acceptance of notice, 112–119
correctness of notice, 109

Weather
berth charterparty, and, 20
cargo spaces, and, 71
damages for breach of contract, and

arriving, 57
readiness, 94

estimated time of arrival, and, 132
generally, 129
immediate and effective disposition by

charterer, and, 18
notice of readiness, and, 112
reachable on arrival, and, 47–53
special arrival clauses, and, 26
tanker charterparty, and, 23

‘‘Werrastein’’
specific sums for waiting time, and, 34

Weser Lightship clause
arriving at agreed destination, and, 25
‘‘Oldendorff’’ test, and, 11

‘‘Whether in berth or not’’
Charterparty Laytime Definitions, and, 28
equipment, and, 75
generally, 26–28
‘‘Kyzikos’’, 26
‘‘Seafort’’, 27
Voyulayrules, and, 28

‘‘Whether in port or not’’
generally, 29

‘‘Wibon’’ clause
Charterparty Laytime Definitions, and, 28
equipment, and, 75
generally, 26–28
‘‘Kyzikos’’, 26
‘‘Seafort’’, 27
Voyulayrules, and, 28

342

INDEX

Page 366

‘‘Winston’’
damages for breach of contract (readiness),

and, 92
‘‘Wipon’’ clause

generally, 29
‘‘Within the port’’ test

background
‘‘Aello’’, 4
application, 5–6
‘‘Dalian Spirit’’, 7
generally, 3
‘‘Johanna Oldendorff ’’, 8

difficulties, 14–17

‘‘Within the port’’ test—cont.
generally, 8–10
immediate and effective disposition of

charterer, 18–19
introduction, 2
reachable on arrival, and, 50
subsequent case law, 11–13

Work before commencement of laytime
Shellvoy and ExxonMobilVoy 2000 forms, 124
‘‘Front Commander’’, 125

‘‘World Navigator’’
assessment of damages, and, 62
sale contracts, and, 134

INDEX

343

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