Happy Day Case [2002] CA(Flacker Ship-ping Ltd. v. Glencore Grain Ltd.)

2002. 08. 07.

‘부적격한 Notice of Readiness(NOR)를 통지한 후 실제 작업이 문제 없이 이루어진 경우, 용선자는 추후 하자 있는 NOR를 이유로 조출료 등을 청구할 수 없다.

1. 사건개요

    인디아에서 오뎃사로 밀가루 23,000톤을 수송하는 항해용선(Berth Charter)에 투입된 'Happy Day’호는 양륙항에서 tide로 인해 선석 대기하며 부적격하게 NOR를 하게됨. 다음날 접안하였으나 용선자측이 선하증권 및 Letter of Indemnity 제출을 지연함으로써 양륙완료까지 약3개월이 소요됨.

2. 용선자 조출료 청구

   NOR 통지 당시 및 양륙 작업 중 아무런 이의를 제기하지 않았던 용선자는 양륙 완료 6개월 후 용선계약상 유효상 NOR이 없었으므로 계약에 따라 정박기간(laytime)이 개시하지 않았고 이에 따라 조출료 청구함.

3. 각급 중재/법원 판단

가. 중재결정

NOR을 당시에는 부적격한 것으로 인정하였지만 선주 승소 판정.

나. High Court(Mr. Justice Langley)

유효한 NOR 없이 개시된 양륙작업에는 정박기간이 개시되지 않는다. 용선자 승소.

다. Court of Appeal

        부적격한 NOR이 내려진 상태에서 본선이 접안 및 작업을 개시하고, 용선자가 NOR에 대하여 아무런 이의를 제기하지 않는다면 용선자는 부적격 NOR에 대하여 이의를 제기할 수 있는 권리를 포기(waive)한 것으로 간주됨. 즉, Laytime은 접안/양륙시점부터 개시됨. 선주 승소 판정.

* 본건 관련 좀 더 자세한 사항은 이하 신문 기사(Lloyd's List 2002년 7월 24일자 기사 참조 바랍니다. 

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Appeal Court gives owners a happy day
It will come as a relief to many in the industry that the Court of Appeal has reversed an unpopular decision, writes Max Cross
Wednesday July 24 2002

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The owners of a vessel that took three months to discharge cargo through no fault on their part had to pay their voyage charterers for the privilege.

This was the effect of Mr Justice Langley’s first instance decision in the Happy Day case (Flacker Ship-ping Ltd v. Glencore Grain Ltd. [2002] 1 Lloyd’s Rep 754). That decision has now been reversed by the Court of Appeal in a judgment which will come as a relief to many in the industry.

The Happy Day was voyage chartered to carry 23,000 tonnes of wheat from Odessa to Cochin, India. She was unable immediately to enter the port due to tidal conditions but the master nevertheless issued Notice of Readiness. The vessel was only able to gain entry the following day when discharge commenced. In the absence of original bills of lading or a suitable letter of indemnity from the charterers discharge was not completed until three months later.

At the time, the charterers never raised any objection to the NOR. The validity of the NOR was only disputed six months later in written submissions to arbitrators about the amount of demurrage due to the owners.

As the charter party was a berth charter and there was no congestion at the berth, the NOR was ruled by the arbitrators to be invalid when given. No further NOR had ever been tendered.

The charterers argued that as no valid NOR was ever given, laytime never commenced under the charter party, thus entitling them to payment of despatch. The arbitrators rejected charterers’ argument and found for the owners.

In the absence of binding authority, the charterers were given permission to appeal on the single issue of whether laytime could commence under a voyage charter requiring service of a NOR when no valid NOR was ever served.

In a highly unpopular decision reversing the arbitrators’ award and finding for the charterers, Mr Justice Langley held that where discharge commenced without a valid NOR having been issued, even with the knowledge and consent of the charterers or their agents, and without any protest or reservation on their part, laytime did not start.

In the judge’s view, to find for the owners would be to rewrite the parties’ contract as if the notice provision contained the words “… and in any event laytime commences when discharge begins”.

Before the Court of Appeal, the owners successfully argued that it was an absurd result that no demurrage be earned and that despatch be payable where a charterer, aware of the readiness of the vessel, takes three months to discharge the cargo and only later disputes the validity of the NOR.

In delivering the unanimous judgment of the court, Lord Justice Potter found for the owners and held that where an invalid NOR is served and the vessel then arrives and commences discharge to the order of the charterer/receiver, without the charterer having made any protest or reservation about the invalid NOR, the charterer will be deemed to have waived reliance on the invalidity of the earlier NOR.

Following this decision, it is now vital for charterers that if they object to a NOR that they should communicate this to the owners and reserve their position. To avoid a dispute that charterers may or may not have adequately reserved their position, owners should continue to send repeat NORs in any case in which there may be doubt about the validity of an earlier NOR.

However, in cases where this has not been done and where charterers know that cargo operations have started and remain silent, they are likely to be deemed to have waived the need for a second valid NOR.

The charterers have stated that they will not be seeking permission to appeal to the House of Lords.

Ince & Co acted for the owners.

Bernard Eder QC of Essex Court Chambers and Michael Ashcroft of 20 Essex Street represented owners in the Court of Appeal.

Max Cross is a partner with Ince & Co.

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