MarIus

1.2.1 Introduction

There is more than one way in which short notice – and notice irregularities more generally – may occur. As provided below, the category may implicate the analysis. To explain how this is accounted for, we will first explain the typology used in this thesis, and then how our main and secondary research questions track that typology.

1.2.2 Typology

We draw a typology utilizing two plausible criteria of proper notice.^{(1) The typology itself is not intended to be more than a descriptive tool.} In the first dimension, there is notice time. Here we define notice time as the time between receipt of notice and redelivery. In the other dimension, there is compliance with notice. The second dimension indicates whether redelivery occurs in contravention of what the charterer positively communicates to the owner by way of notice.

If the charter demands 15 days’ notice and the charterer issues a 3-day notice which he subsequently observes, there is a 1B situation. On the other hand, if he issues a 15-day notice but subsequently redelivers after 5 days, there is a 1A situation.

From time to time a charterer intending to redeliver on short notice may go through the motions of issuing notices that purport to be contractual, but that nonetheless are understood to be proforma i.e., not genuine by both parties.^{(2) E.g., [2015] Lloyd’s rep 315.} This will be described as a 1B situation, as there can be no justified expectation that the charterer will comply with a proforma notice.

1.2.3 Main and secondary research questions

We will distinguish analytically between the two short notice situations 1B and 1A. 1B is characterized by notice being short, but not misleading, whereas the 1A situation invites us to grapple with the significance of redelivery occurring not only on short notice, but also in contravention of what was positively communicated to the owner.

The 1B situation will be treated as the main research question, and the analysis will be geared towards that situation through chapters 3–4. In chapter 5, the thesis will analyse the 1A situation and thereby discuss the properties of the notice itself as a binding communication.^{(3) In that regard, while beyond the strict scope of this thesis, it will be natural to comment shortly on overstay of a given notice (3C).}

When tasked with finding the applicable loss perspective in a 1A situation, we need to ascertain the legal effects of the issued notice, in particular whether it amounts to a promise to redeliver on or around the communicated date. If so, one concludes that the owner may claim damages premised on that promise, thus yielding a later redelivery perspective on losses incurred. In respect of the 1A situation, one observes that there are a priori two potential bases for the owner’s claim, one arising from the fact of the short notice time per se and another from violation of the specifically given notice.

The second basis is not available for the 1B situation. The analysis must centre on how the notice provision itself works and how it interoperates with measurement principles in damages. The benefit of giving primacy to the 1B situation is that it serves to focus the initial analysis, which can then later be expanded upon.

Another justification is that the 1B scenario appears most practically relevant. Of the five short notice cases and arbitrations touched upon in this thesis, four involve 1B situations, see table 3 below. A possible explanation for this trend is that a 1B scenario can arise whenever an unexpected change of circumstances leaves the option to keep the vessel on hire commercially untenable for the charterer e.g., a delay at port or at sea closing the window thought available for another voyage. Plausibly, such occurrences are not exceedingly rare. A 1A situation requires on the other hand, that the charterer first issues a notice in good faith and then proceeds to upend that estimate in such a way that time is gained. That path is plausibly somewhat narrower.

1.2.4 Limitations