Waiver. A person may “waive” a benefit when he renounces or disclaims it. A waiver can be express or implied.
A benefit to the charterer, for example, can be the commencement of laytime or the requirement that a Notice of Readiness is given before laytime commences. If the charterers are to be considered to release the owners from the need to give a notice or waive their right to the commencement of laytime, this must be shown clearly. The concept of waiver was said to be “elusive” (in The Mexico 1, 1990.) Before a court will accept a claim by the owner, usually, that there is a “waiver” by the charterer of some right, the owner must introduce strong evidence that conduct or statements by the charterer are waivers. For example, discharging the cargo without requiring a valid Notice of Readiness to be given may allow the counting of laytime to commence but only if there is clear custom to this effect or a. clear implied or express statement by the charterer or his agent.
Another area concerning waiver by a charterer concerns the option of averaging laytime, that is, to set off despatch at one port against demurrage at another. If for the cargo is loaded faster than the laytime would allow and despatch becomes payable, the charterer should not claim and receive despatch before the cargo is discharged and any demurrage (or despatch) is calculated. If the charterer receives despatch for the loading port either directly or by a deduction from freight, he will be taken to have waived his right to average the laytime.