AET Inc Ltd v Arcadia Petroleum Ltd

A contractual notice of readiness may be governed by specific clearance provisions which allocate the risk of delay. Where a charterparty clause addresses vessels waiting away from the berth, its exception for clearance granted when the vessel berths may apply where clearance was obtained before berthing. The phrase “when she berths” should not be read to exclude earlier clearance if that would produce a capricious commercial result. In construing a badly drafted commercial clause, the court should consider its structure and commercial purpose rather than concentrate on isolated words. An implied term requires necessity. A demurrage claim relying on a different commencement point is time-barred where the claim documents supplied within the contractual period disclose no such alternative basis.

The claimant owners sought additional demurrage under a voyage charterparty for an oil tanker. The vessel tendered a notice of readiness at the second loading port while waiting at anchorage. Free pratique was granted the following day, before the vessel berthed several days later.

The charterparty provided that the original notice would be invalid if specified clearances were not obtained within six hours, but also stated that presentation of the notice and commencement of laytime would not be invalid where the authorities did not grant clearance at the anchorage but cleared the vessel when she berthed. The central issue was whether those provisions preserved the original notice and caused laytime to run before berthing. The owners also advanced alternative cases based on later emails and the demurrage time bar.

1. Primary claim. The owners succeeded. The original notice of readiness remained effective, so laytime commenced six hours after its tender at Escravos.
2. Construction of SAC 22. The general provisions in [22.1]–[22.4] were poorly drafted and their precise scope was left unresolved. Sections [22.5] and [22.6] addressed the special case contemplated by clause II.13(1)(a), namely a vessel waiting away from the berth. They were concerned with what happened to the vessel, rather than with the general practice of the port.
3. “When she berths” included clearance obtained before berthing. Earlier clearance avoided loss of time and it would be commercially absurd if owners were better placed because officials attended later. Since the vessel had not received free pratique within the relevant six hours but had received it before berthing, [22.5] and [22.6] prevented charterers from relying on the general invalidation regime.
4. The court reached that conclusion without relying on the contra proferentem principle and without deciding the wider construction of [22.1]–[22.4] or the proposed implied term. The implication of terms remained subject to necessity and was not established merely by reasonableness.
5. Alternative claim. If the primary claim had failed, the later claim would have been barred by clause II.15(3). The documents submitted within 90 days identified only a commencement time six hours after the original notice. They did not assert that time commenced by reference to either later email. The court therefore did not decide whether the emails were notices of readiness.