Trans Trade RK SA v Sebat Shipping and Trading Company – The "Sebat"
DMC/SandT/26/08
England
Trans Trade RK SA v Sebat Shipping and Trading Company (The “Sebat”)
English Commercial Court: Peter MacDonald Eggers KC, sitting as a Deputy Judge of the High Court: [2026] EWHC 950 (Comm): 28 April 2026
Judgment available at https://caselaw.nationalarchives.gov.uk/ewhc/comm/2026/950
Michael Nolan KC (instructed by W Legal Ltd) for Trans Trade (Charterers)
Sean O'Sullivan KC and Thomas Steward (instructed by Schjødt LLP) for Sebat (Owners)
VOYAGE CHARTERPARTY: NOTICE OF READINESS (“NOR”): PREMATURE NOR TENDERED AT PILOT STATION: NOR INVALID: NO FURTHER NOR TENDERED: OPENING OF HATCHES: COMMENCEMENT OF CARGO OPERATIONS: WHETHER LAYTIME STARTED TO RUN: THE “HAPPY DAY”: WAIVER: ESTOPPEL: DEEMED WAIVER: ARBITRATION ACT 1996 SECTION 69 APPEAL ON POINT OF LAW
Summary
In allowing Charterers' appeal under section 69 of the Arbitration Act 1996, the Commercial Court held that laytime did not start to run at the port of Brake where Owners had not tendered a valid NOR and there was on the facts found in the award no agreement, waiver or estoppel treating the invalid NOR as valid.
The Court made clear that The “Happy Day” (fn.3) should not be read as creating a deemed waiver. Starting cargo operations may help Owners argue waiver in the right case, but it is not enough on its own. There must still be a proper factual basis showing that Charterers accepted the NOR, waived the defect, or are prevented from relying on it.
Case note contributed by Jean-Paul Dezutter, Independent Laytime & Demurrage Counsel, Maritime Commercial Claims Expert, CIArb Mediator, Baltic Expert Witness and International Contributor to DMC’s CaseNotes
Background
Trans Trade, as Charterers, entered into a voyage charterparty dated 9 April 2022 with Sebat, as Owners, for the carriage of Ukrainian-origin barley in bulk from Constanta, Romania, to Brake, Germany, on board the vessel Sebat.
The charterparty was evidenced by a recap and incorporated the Synacomex 2000 form. The recap provided that NOR was to be tendered Monday to Friday between 0800 and 1700 hours at both load port and discharge port. It also provided that, at the discharge port, laytime would start at 0800 hours on the next working day after presentation of a valid NOR, if that notice had been tendered during office hours.
The Synacomex 2000 form provided that the vessel's written NOR was to be tendered when the vessel was in the loading or discharging berth and in all respects ready to load or discharge. Where the berth was unavailable, the Master could tender NOR from any usual waiting place, whether in port or not, and whether in free pratique or customs cleared or not.
The vessel loaded 14,756.96mt of barley at Constanta. The cargo was fumigated after loading. On that cargo quantity, the laytime allowed for discharge was 3 days, 18 hours and 36 minutes.
The vessel then proceeded to Brake. On Tuesday 10 May 2022 at 1000 hours LT, at the end of the sea passage, the Master tendered NOR at the Brake pilot station, located at River Weser Light Vessel about 25 miles downstream from the port of Brake (fn.1). The vessel then anchored either at 1100 hours LT, according to the Brake statement of facts, or at 1450 hours LT, according to the vessel's log.
The arbitral tribunal found that the Brake NOR had been tendered before the vessel had become an ‘Arrived Ship’ (which requires that the vessel is physically and legally ready for cargo operations and at the designated contractual geographical location, thereby placing her at the effective disposal of her charterers). The NOR was therefore invalid. No further NOR was tendered by Owners at Brake.
On Friday 13 May 2022, the vessel proceeded from anchorage to berth. On Saturday 14 May 2022, the hatches were opened in preparation for discharge. Gas tests then showed phosphine levels well above those at which the port would permit discharge. The vessel was ordered to leave the berth and return to anchorage on the same day.
The phosphine levels remained high for a long period. The vessel did not berth again until 27 July 2022. Discharge was completed shortly before 2000 hours LT on 30 July 2022.
Owners claimed demurrage at both Constanta and Brake. The tribunal awarded Owners USD4,114.06 for load port demurrage and USD840,017.19 for discharge port demurrage, together with EUR21,616.40 for discharge port expenses. Charterers appealed on questions of law under section 69 of the Arbitration Act 1996.
The main question for the Court was whether, where Owners had failed to serve a valid NOR and there was no agreement, waiver or estoppel treating the invalid notice as valid, laytime nevertheless started to run, and if so when.
Judgment
The Court held that the tribunal had made an error of law. The tribunal had treated the start of cargo operations as the trigger for laytime even though the NOR was invalid when tendered. That was not correct.
The Court reviewed the authorities, including The “Mexico I” (fn.2) and The “Happy Day” (fn.3). It confirmed that a NOR which is invalid when tendered does not start laytime unless the parties agree otherwise, or unless there is an effective waiver or estoppel. An invalid NOR does not work as a delayed-action notice which becomes effective later when the vessel finally meets the contractual requirements.
Owners relied on The “Happy Day”. They argued that, where a NOR was valid in form but premature, and the vessel later went to berth and hatches were opened, laytime should run from the start of cargo operations. They put this forward as a form of deemed waiver.
The Court rejected that approach. It held that The “Happy Day” did not create a separate, easier rule of deemed waiver. Waiver still has to be proved on the facts. There must be clear conduct by the party said to have waived its right, and that conduct must be inconsistent with later insisting on that right. The party said to have waived the right must also know the relevant facts and know that the right exists.
The Court treated The “Happy Day” as a fact-specific waiver case. In that case, the Court of Appeal proceeded on the basis that the charterers knew the NOR had been tendered too early and was therefore invalid, yet still allowed discharge to proceed without objection or reservation of their rights. On those facts, their conduct could amount to a waiver.
The position in the present case was different. The tribunal had made no finding that Charterers knew, when the hatches were opened on 14 May, that the Brake NOR was invalid. Nor had the tribunal found that Charterers had given up their right to insist on a valid NOR.
The Court also noted that a waiver had not been argued before the tribunal in the manner in which the Owners later relied upon. The tribunal had not analysed the requirements of waiver. Instead, it had effectively treated the commencement of cargo operations as enough in itself. That was the error. The Court therefore held that, in the absence of a valid NOR, or any agreement, waiver or estoppel treating the invalid NOR as valid, laytime did not commence at Brake.
Charterers' appeal against the award of discharge port demurrage therefore succeeded. The award was varied so that Owners' monetary recovery was limited to USD4,114.06 and EUR21,616.40, together with interest. The issue of arbitration costs was remitted to the tribunal and was left for a consequential hearing.
Comment
This judgment is a useful reminder not to read The “Happy Day” too widely.
An invalid NOR can, in the right case, become effective by agreement, waiver or estoppel. But The “Sebat” confirms that starting cargo operations is not, by itself, a substitute for a valid NOR.
That distinction matters in practice. In The “Happy Day”, the relevant charterers were treated as knowing that the NOR had been tendered prematurely and was invalid. They nevertheless allowed discharge to start without objection or reservation. In that setting, their conduct could be treated as giving up the right to rely on the invalidity of the NOR later.
In The “Sebat”, the missing link was knowledge and clear conduct. The tribunal had not found that Charterers knew the NOR was invalid when the hatches were opened. It had also not found that Charterers had deliberately given up their right to insist on a valid NOR.
Opening hatches, preparing for discharge, or even starting cargo operations may therefore be relevant evidence in a waiver argument. But those steps do not automatically cure a NOR which was invalid when tendered. The facts still have to show agreement, waiver or estoppel.
The case also helps to keep separate two different types of defective NOR. A NOR tendered outside contractual office hours may, depending on the wording of the charterparty, take effect at the next contractually permitted time. That is different from a NOR which is untrue because the vessel is not yet an ‘Arrived Ship’ (as defined in Background above). In that situation, the NOR does not cure itself simply because the facts later change.
For Owners, the practical lesson is simple. If there is any doubt about the validity of an earlier NOR, a fresh NOR should be tendered, without prejudice to the validity of earlier tendered NORs, as soon as the vessel is contractually entitled to do so and is in all respects ready. Owners should not rely on the start of operations as a safety net for a doubtful NOR.
For charterers, shippers, receivers and operators, the decision is also important. If there is concern that an NOR is premature or otherwise invalid, later operational steps should be handled carefully. Clear and timely reservations of rights may be needed to avoid any later argument that the invalidity of NOR has been waived.
So, the decision does not undermine The “Happy Day”. It confirms its proper limits. The “Happy Day” keeps the door open for waiver on the right fact pattern. The “Sebat” confirms that the door does not open automatically absent supportive factual findings.
Footnote 1: The House of Lords in The “Maratha Envoy” [1977] 2 Lloyd’s Rep 301 (HL) held that, under a voyage charter on ‘Port Charter’ terms (i.e. the vessel is not physically arrived until she is within the port limits), a vessel anchored at the River Weser Light Vessel at the mouth of the river was not an ‘arrived ship’ at the port of Brake. The vessel had to arrive at the port of Brake before a valid notice of readiness could be tendered for the purpose of validly commencing laytime.
Footnote 2: [1990] 1 Lloyd’s Rep 507 (CA)
Footnote 3: [2002] EWCA Civ 1068; [2002] 2 Lloyd’s Rep 487 (CA)
