Tidebrook Maritime Corporation v Vitol SA of Geneva ("Front Commander")

Where a voyage charterparty makes a notice of readiness the trigger for laytime, a charterer which directs in writing that the vessel give an early notice, berth and load thereby consents to laytime beginning early. The relevant clauses must be construed together and commercially.

Absent clear contrary wording, time used by a charterer to load or discharge a vessel known to be ready after a valid, or knowingly accepted, notice of readiness is accountable laytime after any contractual notice period. An early-loading clause which credits time before laydays against laytime or demurrage presupposes that time is running. A 50/50 provision gives the charterer half that credit; it does not give free loading time plus a further credit.

The disponent owners of a tanker claimed the unpaid balance of demurrage under a voyage charterparty. At the charterers’ written direction, the vessel tendered notice of readiness, berthed and began loading on 8 January 2004, before the contractual laydays commencing on 9 January.

The Commercial Court held that the charterers had consented only to the early notice, berthing and loading, not to an early commencement of laytime. It therefore held that laytime began at 0600 on 9 January: [2005] EWHC 2582 (Comm).

The owners appealed. The central issue was whether clauses 31 and 33, read with the standard charterparty provisions, made the charterers’ written early-loading directions consent to laytime running before the earliest layday.

Appeal allowed unanimously. The owners’ construction of the charterparty was correct. The charterers were liable for the agreed principal sum of US$70,489.71.

1. Per Rix LJ, the starting point was that a charterer cannot be required to load before the earliest layday. However, an owner which has presented a ready vessel is ordinarily entitled, and may be obliged, to tender notice of readiness on early arrival. Where the charterer then uses the vessel for loading or discharge after a valid notice of readiness, time is not ordinarily free. Subject to contractual notice time and clear contrary agreement, laytime runs.

2. Pteroti v National Coal Board did not govern the case. It concerned use before a notice of readiness and before the contractually required notice period. The Happy Day, [2002] EWCA Civ 1068, instead supported the commercial function of a notice of readiness as tendering the vessel and triggering laytime accountability.

3. Clauses 31 and 33 had to be read as one contract. The charterers’ written orders for an early notice, berthing and loading waived the protection of the earliest layday. Clause 31 did not require a separate written consent expressed specifically as consent to an early commencement of laytime. The notice and early loading directions necessarily carried that consequence.

4. Clause 33 treated time from berthing until laydays as time otherwise running against laytime or demurrage, then credited it back. Its 50/50 amendment entitled the charterers to half, not all, of that credit. The court left open whether clause 33 was the exclusive code for all time before berthing in an early-loading case, since that issue was not argued and was unnecessary to decide. Buxton LJ agreed, stressing the close ordinary connection between notice of readiness and laytime and the impracticality of the contrary construction. Scott Baker LJ agreed.

• Court of Appeal (Civil Division) Allowed the owners’ appeal and reversed the conclusion that laytime could not begin before 0600 on 9 January: [2006] EWCA Civ 944.
• High Court (Commercial Court) HHJ Mackie QC held that the charterers’ emails and early loading did not amount to consent to an earlier commencement of laytime, and rejected the owners’ claim: [2005] EWHC 2582 (Comm).