MarIus

3.2.1 Introduction

The English noun notice was borrowed from Old French and derives originally from the latin verb gnoscere meaning “come to know, to get to know”.^{(1) Etymonline.com/word/notice} According to the Oxford English Dictionary, a notice is a “notification or warning of something, especially to allow preparations to be made.” The term notice may refer to both concrete and abstract concepts. On one hand, it may reference the specific message. On the other hand, notice may invoke the amount of time from notification until the event i.e., notice time. The phrase on short notice is an example of such use, conveying that something occurred with little time to prepare.

From a drafting point of view, the terminological ambiguity may present a challenge, as one may want to have requirements that pertain to the specific communication, for instance that it be written and what information it must and may contain, but also requirements that pertain to abstract notice time. In the following, we will attempt to show how the various formulations achieve these effects.

3.2.2 The redelivery notice clauses

The modern rule on redelivery notices was originally introduced in Clause 7 Baltime 1909.^{(2)Supra note 8.} In the latest Baltime edition, it reads as follows:

the Charterers shall give the Owners not less than ten days’ notice at which port and on about which day the Vessel will be redelivered.^{(3) Clause 7 Baltime 1939 (2001 revision). The formulation is essentially identical to Baltime 1909 with the exception that the original version required written notice. It is otherwise common to ask for written notice, cf. e.g., clause 55 NYPE 2015.}

The scope of information to be provided is defined with reference to both the place and time of redelivery. There is an 'about' qualifier concerning the time of redelivery that may be understood as a permissive norm, allowing the charterer to qualify his communication with some flexibility. If one accepts that view, the effect of the about qualifier is to give the charterer some leeway as to how accurate notice must be. When the charterer is permitted to say that redelivery will occur on about 11 January and assuming the qualifier permits at minimum a 1-day margin of error, it makes it so that there is no mismatch between notice and redelivery if the latter occurs on 12 January. If, however, that same notice takes effect on 1 January and redelivery occurs on 10 January, while still within the margin of error, the charterer will technically be in breach having given only nine days’ notice, whereas the clause requires not less than ten days’ notice.^{(4) Any such breach will likely be inconsequential.} For error to occasionally be permitted in one direction only is perhaps an oddity, but the drafters may have considered that the charterer had every opportunity to avoid that disparity by planning for longer notice e.g., 12 days rather than ten.

In NYPE 2015 the redelivery notice clause follows a slightly different tableau. Clause 4 (b) requires that the “Charterers serve the Owners with ___ days’ approximate and ___ days’ definite notices of the vessel’s redelivery”. Let us assume that two NYPE parties have agreed on ten days’ approximate notice. Like in Baltime, there is flexibility here achieved with the term ‘approximate’. Unlike in Baltime, the flexibility appears to extend not only to the accuracy of notice, but to the amount of notice time as well.^{(5) See also [2015] Lloyd’s rep 315. Though Cooke J. ultimately disagreed on the loss perspective, he agreed with the arbitrators that 20 days’ approximate notice was flexible enough to in effect require 18 days’ notice time, cf. para 30 on p. 321.} If the charterer issues an approximate notice on 1 January indicating redelivery on 11 January, following which the charterer redelivers on 10 January, the NYPE charterer is unlike the Baltime charterer not in breach.

It is common to refer to a redelivery notice requiring notice time, as we have done above.^{(6) See e.g., Michelet (1997), p. 201: ‘notistiden’.} We may define notice time as the amount of time that accrues between notice taking effect and until redelivery occurs. In the Baltime formulation, a notice time criterion emanates naturally from the text. The apostrophe linking the time parameter to the notice i.e., ten days’ notice hints at an abstract and temporal quality. It is unnatural to say that the owners received ten days’ notice only because the specific communication purported to be of that length, if the vessel was in fact redelivered on the day after receipt of the communication. The distinction drawn here is between 'ten days' notice', which by definition requires ten days of notice time, and a ten-day notice. The difference is that it is linguistically correct to refer to a tentative, purported, inaccurate or proforma ten-day notice as such even when it is not followed by ten days of notice time.

In some of the redelivery notice iterations, it is less easy to read into the wording a notice time criterion. One may observe that pursuant to NYPE 2015, the charterers are to serve the owners with approximate and final notices. The verb serve and the reference to notices in plural indicate that the clause describes the specific communications and what is required of them. The same can be said for when an amended clause requires a whole series of notices on the form “on redelivery charterer to tender 20/15/10/7 days approximate notice and 5/3/2/1 days definite notice”.^{(7)[2015] Lloyd’s rep 315. When a provision requires more than one notice, the first notice will often be the most important.}

The question is whether this has material implications. It would be drastic to abandon the concept of notice time – or something that works essentially the same way – only because the clause describes the specific notices. Especially as the shift in formulation from Baltime is minor and follows naturally when the clause requires more than one notice. It is not a stretch to consider it inherent in a 20-day notice that it must – in order to be proper – be issued 20 days prior to redelivery. Alternatively, one can simply say that it is an implied requirement that a __-day notice is sufficiently accurate. The conclusion is therefore that it essentially does not matter whether the clause requires 15 days of notice time, or a 15-day notice.^{(8) Whilst keeping in mind that how the permitted flexibility is formulated may still cause minor material discrepancies as explained above with respect to the Baltime and NYPE formulations.}

When, exactly, does notice time start to accrue? In this context, the notice functions as a påbud since it invokes the charterer’s right to avoid breach through observation of notice time. Consequently, notice takes effect at the time it reaches the recipient, but it does not depend on the recipient’s knowledge.^{(9) Pursuant to den avtalerettslige påbudsregel, cf. Hov and Høgberg (2009), p. 109. The rule is consistent with clause 55 NYPE 2015.} For non-instantaneous communications such as mail and e-mail, this occurs when notice reaches the owner’s mailbox or inbox without regard to the owner’s knowledge of its content. Notice taking effect and commencement of ‘notice time’ need not occur simultaneously.Parties may for example agree that measure of time does not commence outside of the owner’s business hours. In the absence of express regulation and considering the global nature of the shipping markets, the general rule is taken to be that commencement of notice time coincides with notice taking effect.