Free Pratique Granted Meaning

[Nella Mcnairy]

Pratiqueˈprtɪk/ is the license given to a ship to enter a port, that indicates to local authorities (on assurance from the captain) that it is free from contagious disease. The clearance granted is commonly referred to as free pratique. A ship can signal a request for pratique by flying a solid yellow square-shaped flag. This yellow flag is the Q flag in the set of international maritime signal flags.[1]

In the event that free pratique is not granted, a vessel will be held in quarantine, according to the customs and health regulations prevailing at the port of entry, typically until a customs or biosecurity officer makes a satisfactory inspection.[2]

Since flying the Q flag involves a request for boarding by Port State Control,[3] it has also become an invitation to Customs to inspect a vessel for dutiable goods or contraband, as in the Rich Harvest case, where a yacht carrying a large quantity of alcohol flew the Q flag in order to seek exemption from having to pay duty during a temporary visit to port.[4] The same vessel was also flying the Q flag when she was boarded in Cape Verde and found to be carrying more than one ton of cocaine. However, although the captain had thereby invited the authorities to make an inspection (being, according to his claim, ignorant of the fact that the boat was carrying contraband), he and the crew were nevertheless arrested for trafficking.[5]

[13.1.a2]However if the vessel does not proceed immediately to such berth time shall commence to run 6 hours after (i) the vessel is lying in the area where she was ordered to wait or, in the absence of any such specific order, in a usual waiting area and (ii) written notice of readiness has been tendered and (iii) the specified berth is accessible.

[13.1.a3] A loading or discharging berth shall be deemed inaccessible only for so long as the vessel is or would be prevented from proceeding to it by tidal conditions, awaiting daylight, pilots or tugs, or port traffic control requirements (except those requirements resulting from the unavailability of such berth or of the cargo)

[22.2] A Notice of Readiness may only be tendered when Customs clearance and/or free pratique has been granted and/or all papers/certificates required are in order in accordance with relevant authorities requirements.

[22.5] The presentation of the notice of readiness and the commencement of laytime shall not be invalid where the authorities do not grant free pratique or customs clearance at the anchorage or other place but clear the vessel when she berths.

In addition to the principal issue of whether or not the original NOR was rendered invalid by failure to obtain free pratique, the court also considered the question whether, if the original NOR was invalid, the two subsequent emails sent by the Master on 16 January constituted valid NORs.

The obvious case for a delay in obtaining free pratique is that the crew are unwell which could be some contagious disease. For that reason, the standard Declaration of Health must be completed, answering questions about the health of the crew before the vessel can enter the port. Any positive answers are likely to cause delay and so the Master cannot say then that obtaining free pratique will be a formality.

The outbreak of COVID-19 brought all of this into sharp focus. COVID-19 started as an epidemic, breaking out first in China in December 2019. Free pratique when there were no calls at Chinese ports which were affected by COVID-19 could still be considered a formality, but not if the vessel had called at a COVID-19 affected port.

As we learnt more about COVID-19, methods of reducing its spread became common practice for those about to board and on board vessels. Testing kits appeared. We gained knowledge of the most common symptoms which allowed for more directed questions in the Declaration. It also became apparent that some countries were coping with the outbreak better than others - meaning vessels coming from those countries were under less scrutiny. If it could be reasonably said that there would not be any delays in obtaining free pratique because, for example, the vessel did not have any sick crew members on board, no high temperatures and the previous ports of call were in areas where COVID was under control, - in those circumstances, then the Master could tender the NOR.

Other charterparty clauses take a different approach and may make having free pratique a condition precedent to the tendering of a NOR. In that case, whether obtaining free pratique is irrelevant as the clause requires it to have been actually granted. In those circumstances, the owners bear the risk of delays in obtaining free pratique, even if the crew might be completely healthy.

The variety of clauses show that there can be very different times when the vessel is entitled to tender the NOR in the context of waiting for free pratique. At times whether it is a formality or not is not relevant. Getting it wrong, or having a particular disadvantageous clause, could leave the vessel owners seriously out of pocket. Indeed, this was a topic on which the writer spoke about at the recent ASDEM Demurrage Conference.

New clauses have been introduced to deal with this. For example, the BIMCO Clauses have been designed to protect owners in circumstances where there are orders where they are exposed to delays related to infectious diseases outbreaks. The Intertanko COVID-19 (Coronavirus) Clause for Voyage charterparties specifically provides:

In absence of a free pratique, the vessel would be an arrived ship in name only, but not in reality so far as regarded the charterer whose duty and obligation-the loading or unloading-should begin on arrival.[4] The charterer might be quite ready to unload, or ready with cargo waiting to load the vessel, but the disqualification of the ship would prevent this and indeed would lead to the ship being sent away from the place of loading or discharge. She would thus never be at the disposal of the charterer so as to enable him to fulfill his obligation.[5]

In the absence of express wording, courts have generally leaned against constraint clauses as conditions precedent to liability.[6] In London Arbitration 9/98[7], where the clause in question merely required the master to immediately protest in writing if free pratique was not granted promptly, the tribunal rejected the suggestion that the granting of free pratique was a condition precedent to a valid notice of readiness being given held that it was merely a formality. The Voyage Charterparty does not stipulate any condition that the free pratique shall be obtained before tendering a valid NOR. The loading or discharging operation can commence even if the vessel is not in free pratique. Free pratique is essential merely to make NOR effective for the purposes of commencing laytime where the vessel has not yet commenced the loading/discharging operations. It is merely an obstruction[8] to commence laytime which does not in any way invalidates an ineffective NOR which is still valid when the preliminary, routine matters or formalities[9] are pending such as obtaining free pratique which can be obtained at any time without causing delay to the loading/discharge[10].

It may also be argued that fulfilling the condition of free pratique shall be de minims and the de-minimis principle, (instead of strict application of condition precedents)shall be used in the absence of express clauses to obtain realistic and commercially viable results which are not harsh to the parties.[11] The balance of probabilities and the application of principles which a common man would recognize in order to solve legal problems[12] would suggest that the laytime shall commence when such Notice of Protest is issued by the master. Therefore, tendering of free pratique when such Notice of Protest has already been issued by the master shall not be the condition precedent to make the NOR effective for the laytime to commence where the clause is not sufficiently clear[13] for, the approach of the courts shall be not only to reflect upon the practicalities of a situation but also common sense[14].

The BPVOY4 voyage charter-party thus stipulates the mandatory requirement of tendering an effective NOR for the calculation of laytime, failure to which will impediment the commencement of laytime from the period when a valid NOR was tendered[22] A valid NOR shall become effective for the purposes of calculating laytime when the free pratique has been granted or is granted within six hours of the Master tendering NOR.[23] If free pratique is not granted in this period, owners can protect themselves from being penalized under Clause 6.3 by issuing the appropriate Letter of Protest. Clause 7 of the Charterparty governs the commencement of laytime. It states that the laytime shall start 6 hours after a valid NOR has become effective or when the vessel commenced loading, whichever occurs first.[24]

For a vessel not being in free pratique, the charter-party effectively marks the distinction between; (i) tendering an NOR with Notice of Protest and, (ii) tendering a NOR without Notice of Protest. The Charterparty sufficiently lays down when does the laytime commence in the second case when neither the free pratique nor the Notice of Protest is obtained but is silent upon the fact when does the laytime shall commence when the vessel though is not in free pratique but the master issues the Letter of Protest. Thus, the question of whether the issue of a letter of protest along with a NOR makes it effective for the purpose of commencement of laytime is left unanswered by the charter-party. There has also not been any judicial precedent on the question till date. However, the question was answered in obiter by the High Court of England and Wales in the case of Bow Cedar[25].

Every Voyage Charterparty stipulates a period of laytime free of any charge for loading/unloading the cargo. Laytime commences when the vessel has arrived withan effective notice of readiness and the vessel ready to be loaded. Many jurisdictions, however, allow the commencement of laytime the moment the ship is berthed to the charterers physically. Proceeding with the general practice, taking the hypothesis of a compulsory NOR, practice dictates that the free pratique has to be obtained prior to tendering an NOR in order to make it valid. Free pratique indicates that the port health authorities have certified that the ship is without infectious disease or plague and the crew is allowed to make physical contact with shore. In cases when the stipulation mandates a free pratique, the vessel would be an arrived ship in name only, but not in reality because it is legally not yet ready. The prime reason while maritime jurisprudence faces a huge number of conflicts related to free pratique regulations stems from the reason of non-uniformity of clauses related to NOR or free pratique. The Courts have dealt regarding the nature of free pratique time and again, arriving at different rationales in each case. The only way ahead lies with organizations to have harmonized uniform statutes for the trading parties. The legislators of the world need to fill in the lacunae present in this area for lessening the disputes arising and also need to find commercially viable procedures. In absence of such a position, a need arises to have at least prior agreements or improved formats which cover every possible conflict arising out of a dispute due to difference in territorial law.

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