This issue was considered by the High Court in AET INC Ltd v Arcadia Petroleum Ltd (The “Eagle Valencia”) [2009] EWHC 2337 (Comm).

When the vessel arrived at the loadport, the NOR was tendered but the berth was occupied, and the vessel was required to wait at anchorage. Free pratique was granted around 20 hours after the NOR was tendered, and the vessel did not berth for over two days more. A dispute arose between the parties as to the commencement of laytime. The principal issue was whether the NOR was invalidated because the vessel failed to secure free pratique within six hours, as required under the charterparty.

Part II, clause 13.1.a2 of the Shellvoy 5 form, on which the vessel was chartered, provides that where the vessel does not proceed immediately to berth, time shall start to run six hours after either (i) the vessel is lying in the ordered or usual waiting area, (ii) written notice of readiness has been tendered, or (iii) the specified berth is accessible.

The charter also incorporated the Shell Additional Clauses February 1999 (SAC), clause 22.1 of which provided that if Owners fail to obtain free pratique either within six hours after the NOR was originally tendered or when time would otherwise normally commence under the charter, the original NOR shall not be valid. Clause 22.5 stated that the NOR shall not be invalid where authorities do not grant free pratique at the anchorage but clear the vessel when she berths. Clause 22.6 provided that under such conditions the NOR would be valid unless the timely clearance of the vessel for free pratique is due to the fault of the vessel.

Charterers argued that SAC 22 applied: Owners had failed to obtain free pratique within six hours of the NOR, and so the NOR was not valid. Owners submitted that the NOR met all the requirements of Part II of the charterparty, and that Charterers could not rely on SAC 22 to invalidate it.

The court held that the NOR was, and remained, valid. In general, SAC 22 sought to give Charterers a measure of protection if certain clearance criteria were not achieved when time would normally start to run under Part II. However, where the running of time fell within 13.1.a2, a failure within six hours to obtain free pratique would not necessarily have any adverse consequences for Charterers. If the vessel fell within 13.1.a2, there was no need to obtain free pratique during the six hours immediately following the NOR.