Free pratique – more than a formality?
This article first appeared in Maritime Risk International, December 2022.
Free pratique is permission given by a port for a vessel to enter once it has been certified free of infectious disease by the competent health authorities. It is required for the vessel to be determined legally ready to load or discharge the cargo, thereby allowing the tender of the vessel’s Notice of Readiness (NOR) and is thus important for the calculation of laytime and demurrage.
However, since the 1970s, it has been understood that the granting of free pratique could be considered a ‘formality’ such that a Master could tender the NOR with free pratique having been formally granted by the port in circumstances where there was no reason to fear delay on crew health grounds.
In The Delian Spirit, Lord Denning said that if the vessel has “apparently a clean bill of health such that there is no reason to fear delay, then even though she has not been given her pratique, she is entitled to give notice of readiness, and laytime will begin to run”. Further cases in the 1970s confirmed this approach of the Courts, Lord Denning (again) stating in The Tres Flores that if there is reason to support that routine matters will not “cause any delay, and it is apparent that the ship will be ready when the appropriate time arrives, then notice of readiness can be given”.
If the Master reasonably decides free pratique is only going to be a formality and not cause a delay, he can issue the NOR which remains valid even if there is then a subsequent delay.
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.
However, the Declaration of Health can also ask about the vessel’s port call history (usually for the previous 30 days) in order to identify whether the vessel might have called at any ports of concern. If the vessel has called at a port previously which the Master knows might be a concern and so cause delay in the granting of free pratique, it cannot be considered a formality. The Master cannot in those circumstances tender the NOR.
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.
The epidemic then became a pandemic and suddenly no port was free from risk. All vessels became an infectious diseases risk regardless of where they had called. Vessels could not enter any port until a period of quarantine had passed, causing delays worldwide. At its height, it’s difficult to see any situation where a Master could have reasonably believed that obtaining free pratique would be a formality, thereby justifying giving a NOR . Even with efforts to reduce the likelihood of COVID19 (e.g., limiting crew changes, mandatory quarantine after crew changes, crew PPE), checks were still enhanced and lengthy. So even if there was not automatic quarantine, there would be delays.
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.
By having that ability to tender the NOR, laytime starts running earlier without the vessel having to wait what might otherwise be a lengthy period. That ensures that the vessel and her owners do not bear the risk of delays at the port, unconnected with the health of the crew or the history of trading. Parties, of course, remain free to decide themselves when, in the context of free pratique, the NOR can be tendered. Some forms say nothing about free pratique – Gencon 1976 and ASBATANKVOY 1977 being two examples. As a result, the common law applies.
Many standard form voyage charterparties do just that. In this respect, there a number of different approaches. Some forms use the expression “whether in free pratique or not” or similar – e.g., Gencon 1994, HeavyliftVoy, meaning that the vessel can give the NOR in those circumstances. Of course, by giving the NOR, the Master is affirming that his vessel is ready – if it is not and there will be a delay (i.e., it will be more than a formality), this clause does not allow the tender of the NOR. To that end, this clause replicates what the common law says.
In London Arbitration 11/00 the charter allowed for the NOR to be tendered “whether in free pratique or not”. The vessel arrived and tendered her NOR, but could not berth for various reasons. There were then further delays for more reasons, but which included invalid vaccination certificates for some of the crew (including the Master). Free pratique was ultimately not granted until the vessel berthed. The owners’ reliance on The Delian Spirit was unsuccessful because obtaining the free pratique was more than just a mere formality given the requirement to obtain the certificates.
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.
In London Arbitration 14/86 time would begin, amongst other things, when “in free pratique”. The vessel tendered NOR on 6 June but had to wait at anchorage until 20 June, arriving at berth that day and being granted free pratique. The owner’s reliance on The Delian Spirit also failed here because, despite the fact that the crew were indisputably healthy when the NOR was tendered on 6 June, there was an express requirement that she be in free pratique. The same argument failed in London Arbitration 1/00.
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:
Any time taken for the purposes of obtaining free pratique shall be for Charterers’ account and shall not prevent the tender of a valid and effective notice of readiness.
Parties also regularly draw up their own bespoke clauses.
It has always been the case that a vessel needs to be legally ready to load or discharge the cargo on board, the health of the crew being one of the requirements to meet that legal readiness. It became recognised that, if the crew were healthy, confirming this would be a ‘mere formality’ and as such should not prevent the running of laytime.
Whilst the world has experienced various and serious epidemics in parts of the world since those cases in the 1970s, they were particular to those areas such that free pratique in those areas then might not be a ‘mere formality’ but could continue to be elsewhere in the world. COVID-19 was something different however, affecting the entire planet such that, at its height, there could be no ‘mere formality’ for any vessel entering any port worldwide.
As could be seen from The Delian Spirit and The Tres Flores, the Court’s language spoke not of whether or not it was a matter of fact that the crew were healthy and so the vessel would receive free pratique, but rather whether the Master could take the view that there would be no delay. That was certainly not the case during COVID-19 and so the ‘mere formality’ concept did not for a long time apply. But the return to normal has seen that whilst there may now be increased checks, the concept can, and is, again applicable.