Charter Parties II – Tendering NOR Under ASBATANKVOY We talked in class about tendering NOR under the ASBATANKVOY. Let’s discuss the below document in class. It is a short excerpt from a legal brief that I wrote concerning tendering NOR under the ASBATANKVOY.   A question in the case was whether the ship could tender NOR and commence laytime at SW Pass (where she had to anchor due no fault of her own). She was to discharge up river at Baton Rouge. I eliminated the names of the vessel, her owners, charterers, etc. as that is not important. POINT ONE THE VESSEL GEOGRAPHICALLY ARRIVED AT THE DISCHARGE PORT UPON ANCHORING SOUTHWEST PASS ON JANUARY 3, 1997 AT 1612. LAYTIME COMMENCED AT 2212 HOURS THAT DAY. The charter party allows the vessel to tender her NOR at the discharge port upon arrival at the “customary anchorage or waiting place” (Clause 11). The customary anchorage or waiting place was the anchorage at Southwest Pass. The vessel arrived at 1612 hours on January 3, 1997 and laytime commenced 6 hours later. Owners submit that the facts of this case and the applicable law would have allowed Owners to commence laytime at Southwest Pass even if the charter party did not contain its broad Clause 11 language allowing for tendering the NOR at the “customary anchorage or waiting place”.  This was a port charter party and (the vessel) was an arrived ship at Southwest Pass pursuant to the rule of the POLYFREEDOM. The leading case today, and one no doubt familiar to this Panel, that  concerns this issue is the M.V. POLYFREEDOM, 1975 AMC 1826, SMA 926 (1975) (Cederholm, Stam ,Van Gelder).    The charter party for POLYFREEDOM was, like the (the vessel’s) charter party,  a port charter party. As this Panel is no doubt aware, POLYFREEDOM was to discharge at Rotterdam. She arrived off of the Hook of Holland, which was outside of the legal, fiscal or geographic limits of the discharge port (in fact she was in the North Sea). The vessel anchored outside at an anchorage recommended for vessels waiting for berths at Rotterdam.  She was at a great distance from the berth. The pilots for Rotterdam kept track of the arrival and departure of vessels there. The charterer unsuccessfully argued that the vessel had to reach a point somewhere within the limits of the port  in order to tender a valid NOR. The majority of the Panel ruled that POLYFREEDOM was an arrived ship at the  anchorage off of the port and  that the “peculiarities of the port limits of Rotterdam cannot be allowed  to become a tool by the charterers to frustrate their contractual obligations”. 1975 AMC 1834. The Panel also explained the now familiar test for an arrived ship under US law: “…if a vessel has reached a point as close as she may reasonably arrive to the designated discharge berth, and can prove that it was not possible or practical to get nearer, then the physical and geographic location of the waiting point (provided that it is in the usual waiting area) is of no importance.” 1975 AMC 1836 In the case before this Panel, it is clear that (the vessel) was required to anchor at Southwest Pass due fog. Owners have submitted as its Exhibit 4  the  sworn affidavit of  ______________. He is an experienced agent for vessels calling at ports on the Mississippi River. He is a partner at _____________. He has no connection to this dispute and his firm was not Owner’s agent.   ___________ testified by affidavit that the anchorage at Southwest Pass  is the customary anchorage or waiting area for vessels that cannot proceed upriver because of fog and other conditions. There are additional  anchorages further upriver. However, these additional anchorages are used as intermediate staging areas for vessels proceeding further upriver towards berth. In this case, charterers have, in  essence, complained that the Southwest Pass anchorage is too far from the actual discharging berth and therefore cannot be a place to tender a valid NOR.   Charterers contend that the vessel must reach an anchorage somewhere further upriver, for example, some intermediate anchorage such as White Castle or Burnside. This is contrary to the rule of the POLYFREEDOM, and the agreement reached between Charterers and Owners by  express language in the charter party (which allows the vessel to commence laytime at the “customary anchorage or waiting place”). The Panel is also no doubt aware that any hardship imposed on Charterers  because of the distance from Southwest Pass to the berth at Baton Rouge is eliminated by the simple fact that transit time upriver does not count as laytime in accordance with the charter party’s terms (and Owner’s accordingly have not counted upriver transit time as laytime / demurrage). _________ also explained that the local pilots and the US Coast Guard have complete control over vessels that are anchored at Southwest Pass and awaiting a berth upriver.   Like the POLYFREEDOM riding at anchor off  Rotterdam, the (the vessel) could not proceed upriver without the permission from local authorities. End of excerpt to brief.