Invalid NOR: no laytime, no demurrage?

In Trans Trade RK SA v Sebat Shipping and Trading Company [2026] EWHC 950 (Comm), the Commercial Court reaffirmed a fundamental starting point in voyage charterparties: laytime will not commence unless and until a valid notice of readiness (NOR) has been tendered by or on behalf of the owners.

Background
The dispute arose under a voyage charterparty for the carriage of barley in bulk from Constanta in Romania to Brake in Germany on board the Vessel “SEBAT”. The charterparty incorporated the Synacomex 2000 form, supplemented by specifically agreed terms.  The charterparty inter alia, provided that; 

Only when the loading and/or discharging berth is unavailable, Master may warrant that the Vessel is in all respects ready and may tender notice of readiness to load and/or discharge from any usual waiting place, whether in port or not, whether in free pratique or not, whether customs cleared or not…

After loading in Constanta, the Vessel proceeded to Brake for discharge. On 10 May 2022, the Master tendered NOR at the Brake pilot station at the same time as ending sea passage.  However, the Vessel subsequently anchored, and no further NOR was tendered.

The Vessel thereafter proceeded to berth and, on 14 May 2022, her hatches were opened in preparation for discharge. However, discharge could not commence because phosphine levels following fumigation remained too high. The Vessel was ordered back to anchorage and did not return to berth until 27 July 2022.  Discharge was completed on 30 July 2022, over two months after NOR had been tendered. 

As a consequence, the Owners claimed substantial demurrage of approximately USD840,000.  The Charterers rejected the claim and the dispute was referred to arbitration.

The Arbitral Award
The Tribunal accepted that the NOR tendered by the Master at the Brake pilot station was invalid because it had been given before the Vessel had become an “arrived ship”.   Nevertheless, the Tribunal held that laytime commenced when the Vessel’s hatches were opened in preparation for discharge:-

“It is trite law that, absent tender of a valid NOR, the trigger for laytime to commence is the commencement of cargo operations”. 

On that basis, the Owners succeeded in their claim for discharge port demurrage.

The Commercial Court’s decision
The Court overturned the part of the award granting the Owners discharge port demurrage, on the basis that the Tribunal had erred in law.  The Court reaffirmed the orthodox position that a NOR which does not satisfy the contractual requirements when tendered is invalid. It is therefore incapable of triggering laytime and the subsequent accrual of any demurrage. This remains so even where:

• cargo operations subsequently commence;
• the NOR complies with some, but not all, of the contractual requirements; and/or
• the requirements for a valid NOR are only satisfied after the notice has been tendered.

A NOR must be valid in all respects at the time of tender. If it is not, it is ineffective for laytime and demurrage purposes. There is no principle by which an invalid NOR later becomes effective merely because the vessel subsequently arrives, becomes ready, or cargo operations commence.

The Court accepted that the general rule may be displaced:

• by agreement between the parties;
• by waiver, including where the charterers accept the NOR with knowledge of its invalidity or proceed with loading or discharging with such knowledge and without reservation (as was the case in The Happy Day[1]); or
• by estoppel or contractual variation.

Indeed, the Court firmly rejected the suggestion that The Happy Day judgment established a separate principle of “deemed waiver” requiring something less than actual waiver, holding that no such doctrine exists as a matter of English law.

The Court concluded that the Tribunal had erred as a matter of law in holding that laytime began to run upon the commencement of cargo operations notwithstanding its finding that the NOR was invalid when tendered.

The result was stark. The Owners’ claim for demurrage failed notwithstanding the substantial delay at the discharge port.

Key Reminders
The Judgment provides a helpful reminder of the basic tenets of tendering NOR and what the consequences are of not doing so:

• An NOR that is invalid when tendered remains invalid. There is no concept of an “inchoate” or “delayed-action” NOR that automatically becomes effective once the missing requirements are later satisfied.
• As a starting point, a valid NOR is required to trigger laytime. This remains so even if cargo operations subsequently commence.
• Departure from that starting point requires agreement, waiver, estoppel, or contractual variation. There is no concept of “deemed waiver” operating on a less demanding basis than actual waiver.
• The consequences of an invalid NOR can be substantial. Significant delay alone does not provide a basis for a demurrage claim. Without a valid trigger for laytime, demurrage will not accrue.

Concluding remarks
The decision is a reminder that the traditional relationship between NOR, laytime and demurrage remains intact. The starting point is, and continues to be, that laytime does not commence without a valid NOR.

For owners, the decision underscores the importance of continuing to tender NORs (without prejudice to those previously tendered) whenever there is uncertainty as to the validity of an earlier notice.  For charterers, the decision serves as a reminder, whenever there is reason to believe that an NOR is invalid, to reserve rights promptly and expressly so as to avoid arguments based on waiver, contractual variation or estoppel.

The decision also serves as a reminder that parties remain free to regulate the commencement of laytime through express contractual provisions.

Nordisk remains available to assist our members and clients with any queries regarding this case or its implications.

[1] The Happy Day [2002] EWCA Civ 1068