MarIus

1.3.1 Norwegian law

Johs. Jantzen’s position is clear – a redelivery on short notice can only give rise to a claim for damages premised on a right to earlier given notice.^{(1) Jantzen (1919), p. 240. Jantzen (1938), pp. 411–412.} In the only known Norwegian arbitration to date implicating the research question, ND 1952 p.104 Mimona cited Jantzen’s view. Mid-century one could therefore discern the contours of a Norwegian maritime law position.

A half-century later Hans Peter Michelet questions the propriety of the earlier held view, citing inter alia concerns that the owner would struggle to prove a disposition loss and that any such loss might face foreseeability-issues.^{(2) Michelet (1997), pp. 201–202.} Citing American arbitrations, Michelet suggests to instead apply the early redelivery-perspective. It bears mentioning that one of his cited cases, Loreto Compania vs. Crescent Metals, does not address a short notice situation; the sole irregularity was that the charterer redelivered too early in relation to the communicated date of redelivery, a 2A situation.^{(3) 1970 AMC 1966.} Transocean Shipping v. Western Shipping does on the other hand operate on a view that the owner is entitled to damages premised on later redelivery following short notice.^{(4) 1955 AMC 875.}

It is less easy to say whether Per Gram endorses one perspective over the other. In the earlier editions of his treatise, Gram emphasizes the owner’s lost opportunity and thus seems to concur with Jantzen that damages ought to be premised on a right to earlier notice.^{(5) Gram (1948), p. 113.} The revised language of the 1977 edition could be taken to indicate a change of mind, Gram now emphasizing that if the owner redelivers prior to the expiry of the required notice time, it constitutes early redelivery.^{(6) Gram (1977), p. 178.}

Neither of the above-mentioned authors purport to provide a comprehensive in-depth analysis of the subject matter. For both Jantzen and Gram, it is most essential to refute the spurious notion that an owner can refuse redelivery for reason of short notice alone. It is first in Michelet’s treatment, that the issue is explicitly framed as a tension between alternative loss perspectives in damages. While there is no doubt that Jantzen describes damages as premised on a right to correct earlier notice, rather than ‘correct later redelivery’, it is perhaps less easy to know if he would be as adamant that other loss perspectives must be wrong, as he is that redelivery cannot be denied. One may further observe that the authors do not entertain the potential for differential analysis on account of the type of short notice irregularity. Due to the above as well as more recent international developments, one may conclude that the subject matter has ample research potential.

1.3.2 English court cases

When the Liepaya was redelivered on a short one day’s notice, the Commercial Court awarded damages premised on placing the owner as if notice had been given at a correct earlier time corresponding with the Jantzen approach.^{(7) [1999] Lloyd’s rep 649 (672).}The Liepaya remained the sole authority until The Great Creation appeared in 2015. Since the market rate was higher than the charter rate, the Great Creation’s owner stood to benefit from having their loss viewed as a lost opportunity to fix the vessel earlier. The owner therefore wanted to follow The Liepaya. The Commercial Court did not agree. Proposing first that whether one or the other perspective is correct may turn on the facts of each case,^{(8) [2015] Lloyd’s rep. 315 (322, para 40).} the Judge concluded that it would be “wrongful” and “contrary to principle” to posit a non-breach scenario in which the charterer was to issue notice at a time they had no rational basis to notify of the redelivery that eventually occurred.^{(9) [2015] Lloyd’s rep. 315 (321, para 30).} The owner's damages therefore built on a later redelivery pursuant to proper observation of notice time following the notice that was given.