Taking the opportunity to share some past issues related to the NOR tendering & laytime due to Christmas Day (Holiday) or adjacent days.
- The terms of the recap state: “Scale load/xxx MT SHINC”, otherwise as per proforma, logically amended to reflect the main terms agreed. The proforma CP state: “Discharging Rate: xxx metric tons Sundays and Holidays included, excluding Super Holidays.” The vessel was discharged during the period 24-27 December.
Was the time to count during Christmas Day under the ‘SHINC’- provisions in the recap?
- Calculation of notional laytime consequent upon delay caused by Owners’ breach; whether the notional analysis that considers Christmas Holidays and New year Holiday produces damages reasonably foreseeable or on the cards or not unlikely to occur.
- Upon arrival, the vessel tendered NOR on Saturday, 26 December, to load the cargo and remained anchored due to congestion. The port shipping activities were operational on that date- not one of the four gazette holidays in the year. Monday was a public holiday. Clause X stated, “load rate xxx Sundays and Holidays included- see also clause Y. Clause Y provided the turn time upon tendering NOR business hours. Another clause provided the dates/ hours that the vessel could tender NOR, including the cancelling dates. The issue related to when the NOR was considered valid and the laytime clock started ticking. The word Saturday was struct out from the original printed text of the charter party that provided the NOR to be tendered on Saturday 0001-2400 hours. The Charterers argued that the parties intended that NOR would not be tendered on Saturday by striking’ Saturday’. The Charterers said that the 26 December was a de facto holiday. Was the reference to ‘business’ hours precluded the service of a notice on Saturday, as was struct out from the original printed text of the charter party?
Was Saturday a normal working day ( business day) for NOR tendering/ validity and laytime counting?
- Whether Monday 27 December was a holiday for laytime purposes and time did not count. The parties relied on conflicting evidence provided by different sources to support their case. The Charterers relied on an invoice from the port authorities that included extra service for public holidays performed on 27 December and a notice from the port authorities that 27 December is officially declared as a public holiday for Christmas. The SOF was silent on the point. The Owners adduced a message from an international shipping association stating that 27 December was not officially declared as a public holiday, according to their sources. They also relied on a statement from local lawyers who said that the date in question was not a public holiday.
So, on the balance of evidence, was the day in question a holiday?