In our post on 13 May, where valid NOR tender was key, we referred in outline to the “HAPPY DAY” ([2002] EWCA Civ 1068)
 
With NOR again centre stage and nearly $175,000 at stake, London Arbitration 12/19 [(2019) 1030 LMLN 3] considered the related “MEXICO 1” ([1990] 1 Lloyd’s Rep 507) and one force majeure and two WWD issues.  
Terms 
 
On an amended Synacomex 90 form with additional clauses the vessel had been fixed to carry bulk wheat from 1–2 anchorage(s) Kavkaz OPL to 1–2 anchorage(s) Chittagong. 
 
As amended, printed clause 8 said: 
 
“NOR to be tendered ... when vessel is in the loading berth and is in all respects ready to load. ... Charterers ... may inspect the holds [and if] … rejected, laytime to start when vessel is ready. 
 
When the actual loading berth is unavailable, Master may warrant … the vessel ... in all respects ready and tender from any usual waiting place, WIPON, WIFPON, WCCON. 
 
If the vessel is subsequently found unready, laytime not to count from [rejection until acceptance].” 
 
Two additional clauses said: 
 
“34. NOR to be tendered within specified times and time to count from 0800 next working day. 
Master’s right to tender NOR [electronically] and time to count WIBON, WIPON, WCCON, WIFPON.” 
 
“52. Before tendering NOR, holds … to be presented in a stated condition. [If they subsequently fail], time not to count from … failure until … passed for loading.” 
 
Facts 
 
Kavkaz itself could only accommodate smaller vessels, but larger ones could use two deepwater anchorages, hence the specified destination. 
 
On 21 August the vessel anchored at a prescribed waiting area, tendering NOR that said it was awaiting “permission to proceed to a designated loading area”. 
 
Charterers did not then inspect the holds, likewise on 1 September when the vessel shifted to the actual loading position and tendered a second NOR. 
 
The vessel failed a hold inspection later that day but passed on 2 September, tendering a third NOR which was accepted. 
 
Decision on loadport laytime 
 
Rejecting charterers’ various submissions, the Tribunal held that the 21 August NOR was valid, reasoning that: 
 
1, Clauses 8, 34 and 52 conformed and could be read together; 
2. On the evidence, on 21 August the vessel was not at her specified destination but at a “waiting place” (Clause 8) and due to the (Clauses 8 and 34) WIPON etc provisions it did not matter whether that was inside or outside port limits; 
3. Both deepwater anchorages (i.e. the loading locations) were unavailable on 21 August, so (Clause 8 underlined text) since the Master had warranted the vessel as ready, NOR could validly be tendered where she then was; moreover 
4. Charterers had not then inspected the holds - which (Clauses 8 and 52) they could immediately have done, such that laytime would not have run until the holds passed - so laytime started (Clause 34) at 08.00 hrs on 22 August, and it ran from then, apart from the September failure period due to the later inspection; 
 
The Tribunal distinguished this from a case such as the “MEXICO 1” (invalidity of premature NOR not automatically cured when the relevant condition is later met) on two bases: 
 
(i) the maybe doubtful point that the “MEXICO 1” had concerned overstowage, whereas this involved unclean holds; and 
(ii) because by Clauses 8 and 52 the parties had expressly covered what was to happen if the holds were subsequently found unready - charterers had first to inspect, as only failure could impact laytime. 
 
Other issues 
 
The Tribunal refused charterers’ attempt to rely on force majeure as there was no evidence that locally decreed closure of an adjacent strait had caused any delay, and also ruled in owners’ favour on two WWD matters. 
 
The first saw charterers seeking to exclude two whole days’ laytime because of a storm warning. This was rejected on the straightforward basis that such was just a threat - it was not actually bad weather itself
 
The second WWD issue arose at the disport, where the vessel had to discharge into lighters, and charterers sought to deduct two periods of bad weather. 
 
While the report does not give the relevant wording, so the decision will not necessarily apply generally, we can nevertheless capture the issue that arose. The Tribunal ruled that: 
 
1. a WWD is where the weather allows planned cargo operations; 
2. for discharging, the weather must allow safe removal of the cargo from the vessel and receipt by the relevant facility - here, lighters; however 
3. the weather did not mean that the vessel could not safely operate her gear - it merely prevented the lighters from getting into position, as they could not reach the vessel; so 
as the weather did not prevent cargo operations - in the sense of removal from the holds - the days still counted as WWDs; because 
4. the weather did not prevent discharge - it prevented the lighters being moved into position ready for that, and the WWD definition was not wide enough to protect charterers. 
 
Commentary 
 
This decision shows that (a) care must always be taken to tender NOR from the right place (b) at that time the vessel must also be ready - owners succeeded here, but one cannot rely on charterers’ failure to act so as to invoke favourable wording and (c) WWD issues can involve distinctions between the vessel’s gear and discharging (and also loading) facilities. 
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