Express Clauses Concerning Ship Readiness

There are times where the courts have found that despite the holds not being clean a NOR is still valid. This depends on the construction of the charterparty and any additional clauses as the following cases show. In the Linardos (1994) 1 LLR 28, and the Jay Ganesh (1994) 2 LLR 358, both vessels were waiting for berths and a subsequent hold inspection. Both vessels had given NOR believing the holds to be clean, but they were subsequently found not to be clean. The charterparty in each case included clauses which provided that time lost due to the vessel not fulfilling her requirements, including cleanliness, should not count towards laytime. Including such a provision infers that the NOR can be given and time will start and continue to run until the vessel is inspected and the problem is discovered. Time from failure of the inspection and the cleaning time will clearly not count. For an example of relevant wording, see Gencon 94 Clause 6 (c) lines 117-119. Similar provisions are also found in many tanker charterparties which will exclude time spent or lost while tank cleaning. It should be noted, however, that such clauses only protect the owner to the extent that the NOR was given in good faith. If the master had given a NOR knowing his holds were not clean then the NOR would not be valid. Had the charterparties not contained such clauses, the NOR would have been invalid and the owners would have been responsible for all the time between the tender of the (invalid) NOR and the re-tender of a new NOR once the vessel was in fact ready. Note that the introduction of the International Ship and Port Facility Security (ISPS) Code in 2005 has led to a number of specific clauses being drawn up to account for any delays that may arise in ports when the vessel is inspected. Absent any specific agreement (and decided cases) on this subject, it is probably safe to assume that if the vessel does not have all the required ISPS documents on board, the vessel will not be ‘ready’ for the purpose of tendering a valid NOR.