“- laytime / demurrage exceptions: draft survey (initial, intermediate, final), opening / closing hatches, vessels’ customs clearance, shifting, mooring / unmooring, gangway lowering, pilotage / berthing, ballasting / deballasting … … - disch rate: 4000 sshex eiu pwwd (fri 17:00 hrs or 17:00 hrs on a day preceding an official holiday - monday 08:00 hrs or next working day following a holiday not to count even if used) - nor to be tendered within monday/friday 0800/1700 hrs load port and disch port - WWWW BE … - time counting at discharge ports: laytime shall commence at 0800 hours the next working day after presentation of valid n.o.r., if notice tendered during the office hours of the port … - demurrage usd 12500 pdpr / fd be - laytime non-reversible or reversible chopt … - otherwise as per clean synacomex 2000 logically amended as per agreed terms of clean fixture recap …”
“8. Laytime Vessel’s written notice of readiness to load and/or discharge shall be tendered by hand or by any means of telecommunication at the offices of Shippers / Charterers / Receivers or their Agents between 08.00 hours and 17.00 hours on all days except Saturdays, Sundays and Holidays and between 08:00 hours and 12:00 hours on Saturdays unless a Holiday. Such notice of readiness shall be delivered when Vessel is in the loading or discharging berth and in all respects ready to load/discharge … Only when the loading and/or discharging berth is unavailable, Master may warrant that the Vessel is in all respects ready and may tender notice of readiness to load and/or discharge from any usual waiting place, whether in port or not, whether in free pratique or not, whether customs cleared or not… 11. Fumigation Charters have the liberty to fumigate the cargo on board at loading and discharge port(s) or places en route at their risk and expense. Charterers are responsible for ensuring that Officers and Crew as well as all other persons on board the Vessel during and after the fumigation are not exposed to any health hazards whatsoever. Charterers undertake to pay Owners all necessary expenses incurred because of the fumigation and time lost thereby shall count as laytime or time on demurrage. When fumigation has been effective at loading port and has been certified by proper survey or by a competent authority, Bills of Lading shall not be claused by Master for reason of Insects having been detected in a cargo prior to such fumigation …”
“53. The differences between the Parties in relation to events at Brake largely focussed on which party was liable for the very substantial delay in discharging the Cargo, namely the Ventilation Issue (which we address separately below). The Parties were also in disagreement as to whether a valid NOR had ever been tendered, whether laytime ever commenced and, if yes, how it ran … 58. … in its Closing submissions, the Claimant maintained its position in relation to the Readiness Point, such that the NOR was valid when tendered. In its Closing submissions the Respondent expanded upon its submissions in relation to the validity of the NOR, again relying on the argument that the Claimant had not proved that the NOR had been given from a usual waiting place in addition to the Readiness Point. More particularly, the Respondent relied on the fact that the NOR was tendered at the same time as the end of sea passage and that the relevant log entry recorded the Vessel proceeding from the place at which NOR was given to anchorage at 1130 on 10 May, such that the Vessel had not arrived at the time and place where the NOR had been tendered. That, said the Respondent, was an end to the demurrage claim, albeit accepting the Claimant may have a claim for detention depending upon which Party is liable for the delay suffered … 60. The Claimant addressed the time and place where the NOR had been tendered in its Closing submissions in reply maintaining that that the NOR had been tendered on arrival at the pilot station, stating “that is where the Vessel then anchored” before proceeding to berth on 13 May and submitted that, in any event, time ran at the very latest from opening hatches for discharge on 14 May …”
“61. The Claimant’s submission as to where the Vessel anchored is partially supported by the evidence, but not as to the when. The evidence before us indicates that the Vessel tendered NOR at the pilot station at 1000 at the same time as ending her sea passage, before dropping anchor (at 1100 at Weserpilotstation according to the Brake SOF, alternatively at 1450 at anchorage according to the relevant log entry). Accordingly, as with the first NOR tendered at Constanta, we find that the Brake NOR was tendered before the Vessel became an arrived ship, from which it follows that that NOR tendered was invalid when served. 62. However, unlike the position at Constanta, where a second, valid, NOR was tendered, no further NOR was tendered at Brake. The next question for our determination is therefore whether laytime ever commenced at all. 63. It is trite law that, absent tender of a valid NOR, the trigger for laytime to commence is the commencement of cargo operations. We therefore accept the Claimant’s final submission that laytime commenced when hatches were opened at 0550 on 14 May.”
“175. On the basis of the above, following the authorities to which we have been referred, the question for us to determine is whether the Claimant’s further claim for an indemnity / damages is a claim loss arising out of the detention of the Vessel. We consider that it is. 176. In our view, a failure to fumigate properly, even if proven (which we do not find to have been the case for the reasons set out above - there is insufficient evidence before us to make any findings in relation to the fumigation undertaken at Constanta), could not itself cause the follow-on Charter to be lost. Rather, it would have caused the detention of the Vessel, for which the Claimant has contractually agreed to be compensated by contractual demurrage. 177. In accordance with the above, we find that the Claimant’s further claim is a claim for an indemnity or damages for detention to the Vessel, that such claim has been liquidated by the demurrage already awarded and that this further claim fails accordingly.”
“The Tribunal’s determination regarding commencement of laytime at Brake is set out at paras 61-67 of the Award. In particular, having held that the NOR tendered at Brake was invalid, the Tribunal held (para 63) that it was trite law that the trigger for laytime to commence was from commencement of cargo operations and the Tribunal therefore held that laytime commenced on opening of hatches at 0550 on 14 May. It appears to be this finding that Charterers wish to seek permission to appeal, stating that the Tribunal’s decision is “obviously wrong” or alternatively at least “open to serious doubt”
“… In response to those of Charterers’ points which it is appropriate we address, we determine (1) that we do have power under s.57(3)(a) to amend our Award in the manner requested by Owners, (2) that there is ambiguity on the face of the Award which it is appropriate we address and (3) that the amendment sought and made does not [sic] more than clarify our Award. In particular, it does not amount to a justification of our finding on a basis not argued nor does it prejudice Charterers, as submitted. For the avoidance of any doubt, our amended Award does not reflect any change of mind, reopen any issue or deal with an issue which has been overlooked. For the reasons set out above and below, we allow Owners’ application and amend paragraph 63 of our Award as follows: 1. To address any doubt as to the trite law we relied on, we have added a reference to the case law we had in mind at paragraph 63 of our Award. 2. To address the ambiguity between (i) the words which appear at paragraph 63 and (ii) the basis upon we calculated commencement of laytime in our calculation attached at Appendix II to the Award, we have expanded the text of paragraph 63 to explain the extent to which Owners’ submission was accepted and the basis upon which our finding as to the commencement of laytime was made. In accordance with the above, we attach our Amended Award.”
“1. In paragraph 63 of its corrected Award, the Tribunal clarified that its statement of principle was derived from The Happy Day. 2. The Happy Day is based on the doctrine of waiver/election which requires the allegedly waiving party to lead the other party to believe that he has made a choice between two inconsistent courses of action. As the Court of Appeal recognised, this requires an indication an awareness of the right being waived and the underlying facts relevant to the choice: see also Scrutton on Charterparties (25th ed.) para 9-081; Schofield on Laytime & Demurrage (8th ed.) para 3.382. The court did not say that commencement of cargo operations invariably triggers the commencement of laytime even where charterers are unaware of any invalidity of the NOR. The decision also has to be read in the light of express findings that the charterers in that case were aware that NOR was invalid. 3. By contrast, in this case there is no discussion by the Tribunal of The Happy Day or of the doctrine of waiver or its ingredients. There are no findings that charterers were aware that Notice of Readiness had been served prematurely or of any other circumstances that might have supported a finding of waiver. Indeed there is nothing in the Award to suggest that the point was raised at all. If it had been it is inconceivable that the Tribunal would not have addressed it. 4. Even on a fair reading, therefore, Owners’ suggestion that paragraph 63 can be read as an implied finding of deemed waiver cannot be accepted. Accordingly, Question 1 does not proceed on a flawed premise as suggested by Owners. 5. The question of when laytime starts to run in the absence of a valid Notice of Readiness is amply established by the decision of the Court of Appeal in The Happy Day. Resolution of Question 1 cannot therefore be said to be a point of general public importance. Nonetheless, I consider that the Tribunal’s decision as to the relevant principle to be applied was obviously wrong. 6. The Tribunal was clearly asked to determine the time at which laytime commenced at Brake but approached its decision on a flawed legal basis and without making any findings to support a waiver. If Charterers’ appeal on this question succeeds, the Tribunal’s award must prima facie be set aside. It follows that determination of the question will substantially affect the rights of the parties.”
“Can laytime commence under a voyage charterparty requiring service of a notice of readiness when no valid notice of readiness is ever served?”
“22. In applications made pursuant to section 69, the court needs to have firmly in mind the approach identified by Bingham J, as he then was, in Zermalt Holdings SA v Nu-Life Upholstery Repairs Ltd[1985] 2 EGLR 14 . He said: “It is perhaps right to [emphasise] two things. The first is that as a matter of general approach the courts strive to uphold arbitration awards. They do not approach them with a meticulous legal eye endeavouring to pick holes, inconsistencies and faults in awards and with the objective of upsetting or frustrating the process of arbitration. Far from it. The approach is to read an arbitration award in a reasonable and commercial way expecting, as is usually the case, that there will be no substantial fault that can be found with it.” 23. This is what has sometimes been described as a presumption in favour of the award. The court adopts a benevolent approach to the construction and interpretation of the language used in awards. Where the tribunal has correctly identified the issues which fall to be decided, the usual inference will be that those issues have been decided. Where the tribunal has correctly identified the principles of law to be applied, the usual inference will be that the tribunal has applied those principles of law.” “It is perhaps right to [emphasise] two things. The first is that as a matter of general approach the courts strive to uphold arbitration awards. They do not approach them with a meticulous legal eye endeavouring to pick holes, inconsistencies and faults in awards and with the objective of upsetting or frustrating the process of arbitration. Far from it. The approach is to read an arbitration award in a reasonable and commercial way expecting, as is usually the case, that there will be no substantial fault that can be found with it.”
“The restriction of appeals to errors of law must be rigorously applied in order to give effect to the principles of party autonomy and minimum court intervention enshrined in s. 1(b) and (c) of the 1996 Act: see Geogas SA v Trammo Gas Ltd (The Baleares) [1993] 1 Ll Rep 215 per Steyn LJ at page 228. The arbitrators’ findings of fact cannot be appealed, however wrong they may appear to the court to be … Moreover, where a tribunal has not expressly stated the legal principles in terms which are obviously erroneous, it will be difficult for a would-be appellant to identify an error of law. If the arbitrators have stated the correct legal principle, the court will start from the assumption that that is the principle which has been applied. If the law is not stated, or not fully stated, the court will nevertheless start from the assumption that the law has been correctly understood and applied; tribunals are not to be treated as in error if they do not spell out the law, and to require them to do so would be contrary to the desideratum of speedy finality which underpins the Act. It is occasionally possible to infer an error of law which is not explicit on the face of the award, but only where a correct application of the law to the facts found would inevitably lead to one answer, whereas the arbitrator has arrived at another …”
“Where the arbitral tribunal’s decision is one of mixed fact and law, the court cannot interfere unless it is shown that the arbitral tribunal either erred in law or reached a conclusion on the facts which no reasonable person, applying the relevant law, could have reached. It is not enough that the court would or might not itself have reached the same conclusion (Sylvia Shipping Co Ltd v Progress Bulk Carriers Ltd (The Sylvia)[2010] 2 Lloyd's Rep 81 , para 54). In short, it must be shown that the conclusion reached by the arbitral tribunal is “necessarily inconsistent” with the correct application of the relevant legal principle.”
“On these facts, the arbitrators held that the notice of readiness was invalid when given, and ineffective to commence laytime upon the expiry of the stipulated period of notice. This decision was not questioned in argument before us … It is also in accordance with the plain meaning of the charter-party, for the laytime clause cannot be understood as entitling the owners to advance the running of time by delivering a message unrelated to the true facts. Thus, unless something happened after the notice was sent to make the laytime start, it never started at all, with the consequence not only that the owners have earned no demurrage, but also that they are obliged to pay the charterers despatch money for the whole of the laytime. Given that the discharge of the maize cargo kept the ship at the port for more than two months this proposition was unlikely to be well received by the arbitrators, and Counsel for the charterers prudently did not advance it, conceding that laytime began to run when the discharge of the maize actually commenced. While this makes good sense, it is not easy to work out precisely how the conclusion should be reached. The arbitrators, who had many live issues to discuss, contented themselves with saying that by commencing discharge the charterers plainly waived any entitlement they may have had to a fresh notice of readiness. I confess to some difficulty in finding the necessary elements of a waiver in the bare fact that a discharge was carried out …”
“I would therefore agree with the learned Judge in his rejection of the argument that the notice was a delayed-action device, effective to start the laytime automatically when, at a later date, the ship became ready to discharge the contractual cargo: and also the linked argument that time began when the charterers knew or ought to have known of the readiness.”
“Thus, on the basis of the decision in The Mexico 1 as applied in The Agamemnon the law at the time of the decision of Mr. Justice Langley was to the following effect. In a case where NOR has been given which is invalid for prematurity, the doctrine of “inchoate” notice is not available to the owners to start laytime running as soon as the vessel becomes ready to unload (even though the charterers are aware that it is in fact ready). Time will not start to run until valid NOR is given, in the absence of an agreement to dispense with such notice, or unless there is a waiver or an estoppel binding upon the charterers in respect of the necessity for further (valid) notice …”
“66. Thus, it is clear that whether or not the party entitled to notice has waived a defect upon which he subsequently seeks to rely, will depend upon the effect of the communications or conduct of the parties, the intention of the party alleged to have waived his rights being judged by objective standards. This being so, it seems to me clear that, in an appropriate commercial context, silence in response to the receipt of an invalid notice in the sense of a failure to intimate rejection of it, may, at least in combination with some other step taken or assented to under the contract, amount to a waiver of the invalidity or, put another way, may amount to acceptance of the notice as complying with the contract pursuant to which it is given. 67. Waiver is closely associated with the law of estoppel in that, in the case of estoppel (and at this point I leave aside estoppel by convention), it is necessary for there to have been an unequivocal representation of fact by words or conduct and, in waiver, there must similarly have been an unequivocal communication of X’s intention, whether by words or conduct. As observed by Mr. Justice Phillips in Youell and Others v. Bland Welch & Co. Ltd., (The Superhulls Cover-Case) (No 2), [1990] 2 Lloyd’s Rep. 431 at p. 450: A party can represent that he will not enforce a specific legal right by words or conduct. He can say so expressly - this of course he can only do if he is aware of the right. Alternatively he can adopt a course of conduct which is inconsistent with the exercise of that right. Such a course of conduct will only constitute a representation that he will not exercise the right if the circumstances are such to suggest either that he was aware of the right when he embarked on the course of conduct inconsistent with it or that he was content to abandon any right he might enjoy which were inconsistent with that course of conduct. 68. In relation to waiver, it is important to note certain features of the doctrine around which the submissions of the parties have revolved: (1) In order to demonstrate awareness of the right waived, it must generally be shown that X had knowledge of the underlying facts relevant to his choice or indication of intention: see Matthews v. Smallwood,[1910] 1 Ch. 777 per Mr. Justice Parker approved in the House of Lords in Fuller’s Theatre and Vaudeville Co. v. Rofe, [1923] A.C. 435 at p. 443 (in the context of waiver of a right of re-entry). (2) The Court will examine any act or conduct alleged to be unequivocal in its context, in order to ascertain whether or not it is sufficiently clear and unequivocal to give rise to a waiver: see United States Shipping Board v. J.J. Masters and Co., (1922) 10 Ll. L. Rep. 573 per Lord Justice Atkin at p. 578, col. 2. (3) The Courts will also examine with care any agency relationship between X and any person alleged to have made the unequivocal communication on his behalf. If that person lacked the actual or ostensible authority to waive the right or rights concerned there will be no waiver: see Mardorf Peach & Co. v. Attica Corporation of Liberia (The Laconia), [1977] 1 Lloyd’s Rep. 315 at p. 320; [1977] A.C. 850 at pp. 871B-872A.”
“In the context of this case I would answer the question of law in relation to which leave was granted as follows. Laytime can commence under a voyage charter-party requiring service of a notice of readiness when no valid notice of readiness has been served in circumstances where (a) a notice of readiness valid in form is served upon the charterers or receivers as required under the charter-party prior to the arrival of the vessel; (b) the vessel thereafter arrives and is, or is accepted to be, ready to discharge to the knowledge of the charterers; (c) discharge thereafter commences to the order of the charterers or receivers without either having given any intimation of rejection or reservation in respect of the notice of readiness previously served or any indication that further notice of readiness is required before laytime commences. In such circumstances, the charterers may be deemed to have waived reliance upon the invalidity of the original notice as from the time of commencement of discharge and laytime will commence in accordance with the regime provided for in the charter-party as if a valid notice of readiness had been served at that time. By answering the question in that way, I should not be thought to doubt that, in appropriate circumstances, the same result may follow by application of the doctrines of variation and estoppel.”
“Where an invalid notice of readiness is given laytime may not begin even when the ship commences loading or unloading. It will only do so where there is waiver by or on behalf of the charterers of the invalidity by accepting the notice with knowledge of the invalidity, or by loading or discharging with knowledge of the invalidity and without reservation; or if there is otherwise a contractual variation or estoppel …”
“The matter was revisited by the Court of Appeal in The Happy Day. In that case, the vessel had given notice of readiness when she had not reached her contractual destination. The question that the court posed itself was whether the mere fact that unloading has commenced with the knowledge and consent of the charterer or its agents, without any reservation of the charterer’s position, gives rise to an (implied) agreement, waiver or estoppel. The Court of Appeal invoked the doctrine of waiver, and considered that knowledge both of the vessel’s readiness and that the notice had been given before the vessel had arrived at the contractual destination, coupled with the charterer’s assent to the commencement of discharging operations without any rejection of the notice or at least reservation in connection with its validity, was in itself sufficient to give rise to a waiver of the requirement that a valid notice of readiness had to be given for time to start running.”
“On an appeal under this section the court may by order— (a) confirm the award, (b) vary the award, (c) remit the award to the tribunal, in whole or in part, for reconsideration in the light of the court’s determination, or (d) set aside the award in whole or in part. The court shall not exercise its power to set aside an award, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.”
“If the Court is hampered in ascertaining the true basis of the arbitrators’ conclusions by the absence of findings of fact directed to the underlying issues, and if that is because those issues were not canvassed before the arbitrators, then the Court should not seek to fill the gap with its own surmise as to what the arbitrators would have been likely to have found. In such a situation, the solution is to remit the reward for further findings of fact by the arbitrators. If, however, the arbitrators’ findings of fact are sufficient to justify their decision in law, such a step may not be necessary.”
“The effect of remission is not to allow a party to run entirely new points, so it may be appropriate to obtain undertakings that new points will not be run before remission is ordered. An award will not be remitted, however, if doing so would serve no useful purpose, for example because it would be inevitable that the award would be varied as proposed by the court, or there is no evidence on which the tribunal could reach any decision other than the one already made, in other words where the conclusion reached by the court is now the one which adopting the proper principles would have to be adopted by the tribunal. Nor will an award be remitted unless there is something further for the tribunal to consider and upon which its judgment could be exercised afresh.” (Paragraph 8-172, footnotes omitted.) 77. The cases Russell cites include Van der Giessen-de-Noord Shipbuilding Division BV v Imtech Marine & Offshore BV[2009] 1 Lloyd's Rep 273 , where Christopher Clarke J said in the context of the setting aside of an Award: “113. … it is necessary to consider the position if parts of the Award are set aside. If that is done the formal position would appear to be that the subject matter of those parts falls to be considered entirely afresh. It seems to me most undesirable that the appellants should be able to open up the entire subject matter of those parts, and to run, for instance, points that they have never taken before, or to adduce evidence that they did not choose to adduce before the arbitrators. On the contrary the matters remaining in dispute ought to be determined in the light of the evidence before the arbitrators.”
“WE FIND AND HOLD that the Claimant’s claims succeed in the amounts of US$4,114.06 and Euro 21,616.40 and no more”. (2) Paragraph C: “WE THEREFORE AWARD AND DIRECT that the Respondent shall forthwith pay to the Claimant the amounts of US$4,114.06 and Euros 21,616.46 together with interest thereon calculated at 6% (six per cent) per annum and pro rata compounded at three monthly intervals from27 August 2022 until the date of payment.”