“Arrived ship”, NORs and demurrage time bars: owners beware!
A recent unpublished LMAA arbitration award* for one of the Club’s owner Members has concluded that, where a vessel tenders NOR too early, not only does laytime not start to count because the NOR is invalid, but owners are also not able to claim damages for breach of charterers’ “reachable on arrival” obligation.
Points for owners to remember:
- NORs don’t need to be in any particular format - email notifications as to the vessel’s arrival and readiness to load/unload should be sufficient. In this case, however, charterers argued that email service was defective because clause 6 Asbatankvoy was unamended and therefore referred only to “letter, telegraph, wireless or telephone”. The Tribunal considered that it did not need to decide this point and therefore left the question unanswered, however charter parties should refer to modern forms of communication for service of NORs to avoid such arguments being raised;
- As the adage goes: if owners are in doubt about the validity of their NOR, keep serving NOR’s “without prejudice to the validity of any previous NOR/s”.
A further option may be for owners, when serving each NOR to write to charterers as follows ”Please confirm charterers’ acceptance of this as a valid NOR. If charterers or their agents or sub charterers know of any facts or circumstances that affect the validity of this NOR they must say so to owners, otherwise charterers shall be deemed to have waived their right to dispute the validity of this NOR“. However, this has not been tested in English case law, as far as the writers are aware, and it is not known whether a court or arbitration tribunal would find in owners’ favour in this scenario. For this mechanism to work, owners must also show that charterers (or their agents or sub charterers) knew of relevant facts or circumstances but did not tell owners about them.
4. Ensure that all relevant documents, including NORs and emails referencing the tendering of NOR, are included when submitting a demurrage claim. See also ABQAIQ  which is a published decision for another West (owner) Member.
* Since this is an arbitration award, the names of the parties, the vessel and the tribunal must be kept confidential.