《装卸时间与滞期费》第3章-装卸时间的起算-连载35

2019-03-01575
  《装卸时间与滞期费》第6版

  CHAPTER 3 第3章

  Commencement of laytime 装卸时间的起算

  3.272 Christensen v. Hindustan Steel Ltd was itself perhaps a slightly unexpected decision, although clearly commercially correct. The dispute concerned commencement of laytime at Vizagapatam, the loading port. The notice provision in the charter provided in respect of the load port for: ‘‘Time to commence at 24 hours after 1 p.m. if notice of readiness to load is given before noon and at 24 hours after 8 a.m. next working day if notice given during office hours after noon.’’ Further clauses provided that notice could only be given in office hours and that the master was to give three days’ and 24 hours’ notice of readiness to load. Not surprisingly perhaps, the charterers argued that this meant that three notices were to be tendered—three days before, one day before and upon readiness to load.

  3.272在Christensen v. Hindustan Steel Ltd案的判决结果尽管从商业的角度来看是对的,但其本身似乎稍有令人感到意外之处。该案的争议焦点是关于在装港印度Vizagapatam港的装卸时间的起算时间。租船合同中有关装港的通知书条款是这样规定的:‘如果装货准备就绪通知书在中午前递交的话,时间从下午1点后的24小时起算;或者如果通知书在中午后的办公时间递交的话,则从下一工作日的上午8点后的24小时起算。’另有条款还规定:通知书只能在办公时间内递交,而且船长还要分别提前3天和24小时给予预计装货准备就绪通知书。也许并不奇怪,承租人争辩说这意味着应递交三份通知书,即三天前、一天前和装货准备就绪当时的通知书。

  3.273 Notice of readiness to load was actually given on a Saturday morning. However, this did not say that the vessel was then ready but that it would be ready at 00 00 on Sunday. The ship had previously been discharging an inward cargo. The arbitrators found that at the material time the ship was ready to load and Donaldson J said that, on the balance of probabilities, this meant that she was ready to load at the time notice was given. Despite this actual readiness, the judge nevertheless said:

  In the present case the notice was on its face one of anticipated readiness and impliedly reported to the charterers that the vessel was not ready at the time at which it was given. Accordingly, it cannot be relied upon as a notice of actual readiness, even if in fact the vessel was ready.

  3.273实际上,装货准备就绪通知书是在星期六的上午递交的,但它并没有说该轮在当时已经准备就绪,而是说它将在星期日的0000时准备就绪。因为该轮先要卸下进口的货物。仲裁员认定:该轮已经在重要的时刻做好了装货准备,而Donaldson法官则说:依据证据的‘或然性平衡’原理,这意味着该轮在递交通知书的当时已经对装货准备就绪。不过,不管其实际的准备工作如何,法官认为:

  在目前这个案子中,该通知书从字面上看是一个预计的准备就绪通知书,而且暗示承租人,该轮在递交当时并未准备就绪。因此,即使事实上该轮已经做好了装货的准备,也不能相信把它是一个实际上真正准备就绪的通知书。

  3.274 Therefore it seems that not only must a notice of readiness be correct when it says that a vessel is ready but it cannot understate the case either, by saying it will be ready. However, whilst the facts stated in a notice of readiness must be correct at the time of tendering, contrary to what is sometimes suggested, a notice of readiness contains no warranty that the state of affairs described therein will continue to exist or that if it fails to do so, the notice of readiness will become retrospectively invalid.

  3.274由此,似乎可以认为,当认为船舶已经做好准备时,准备就绪通知书必须是正确性的,而且它也不能有任何的保留,避重就轻地说将来会准备就绪的。然而,当准备就绪通知书递交当时,在通知书上陈述的事实必须是正确的。相反,有时认为会认为通知书并不能保证其所描述的事务状态继续保持存在,如果不能的话,事后会追溯认为准备就绪通知书变得无效。

  3.275 On the facts of the case, Donaldson J, however, went on to hold that the owners were right in claiming that the charter did not require notice of actual readiness so that only two notices were needed, and even if that given on Saturday morning purported to give 15 and not 24 hours’ notice of anticipated readiness to load, the charterers suffered no detriment since laytime could not in any case commence until Monday morning. His reasoning is summed up in the following passage from his judgment:

  Which is right? The charterers can suggest no business reason for the curious arrangement which they suggest was agreed. The owners, on the other hand, can point with force to the fact that when the charterparty was concluded... the vessel was already at Vitzagapatam to the knowledge of the charterers and that accordingly one would expect less rather than more notice than usual. In these circumstances, I have no real doubt that the owners’ construction is to be preferred.

  3.275然而,基于该案的事实,Donaldson法官仍判决船东诉讼的理由是正确的,即租船合同并未要求实际准备就绪的通知书,所以只有两个通知书是必需的,即使是在星期六上午递交的提前15小时的而不是24小时预计装货准备就绪的通知书;因为无论在任何情况下,装卸时间都得等到星期一的上午开始起算,承租人没有遭受任何损失。他判决的理由可见下文的判决摘要:

  究竟谁是谁非呢?对双方达成的这一古怪的协议,承租人讲不出什么行业理由来。相反,船东针对这一事实却可强有力地指出:租船合同中已规定……承租人已经知道了船舶已经抵达了Vitzagapatam港,相应地,至少不必像通常那样递交更多的通知书了。在这种情况下,我毫不怀疑地认定船东的解释是更可取的。

  3.276 The whole question of what effect, if any, an incorrect notice of readiness has was considered by the Court of Appeal in Transgrain Shipping BV v. Global Transporte Oceanico SA (The Mexico I) where the only reasoned judgment was that of Mustill LJ.

  3.276不正确的准备就绪通知书,如果有的话,究竟会造成什么影响?在Transgrain Shipping v. Global Transporte Oceanico SA(The Mexico I)—案中,这整个问题被提交到上诉法院,唯一详细论述的判决词是由Mustill大法官作出的。

  3.277 In so far as this issue is concerned, the facts of the case were relatively straightforward. The Mexico I arrived off Luanda with a part cargo of bagged maize which was overstowed by a completion cargo. Although the maize was not accessible on arrival, the master gave notice of readiness in respect of it. The maize did not become accessible for approximately two weeks and it was not until a further two weeks that discharge began. No further notice of readiness was given.

  3.277就这一争议的问題而言,该案的案情相对来说很简单。当Mexico I轮抵达安哥拉的罗安达港外时载有部分袋装玉米,因货物倒装,它被(因不满载为收取更多的运费而承揽的)加装的货物压在下面。尽管在抵达当时玉米还不能卸载,船长却就这票货发出了卸货准备就绪通知书。大约过了两周,玉米仍不能卸,直到又过了两周,才开始卸。但是该轮没有再发出准备就绪通知书。

  3.278 At arbitration, the arbitrators decided that the original notice of readiness became effective when the maize became accessible, a conclusion shared by the High Court. However, the Court of Appeal disagreed, holding that laytime began on discharge, counsel for the charterers having conceded that that was the latest point in time it could have begun. The court did not have to consider, therefore, whether it ever began at all in the absence of a second valid notice, a possibility hinted at in the judgment.

  3.278在仲裁时,仲裁员裁定:当可以进行卸这票玉米时,最初的准备就绪通知书才能生效。该结论亦被高等法院接受。但在上诉法院却遭到反对。上诉法院判决:装卸时间应该从实际卸货时开始起算,承租人的大律师也承认这是装卸时间的最迟起算点。因此,法院确实根本没有去考虑,在未递交第二份有效通知书的情况下,卸货时间是否可以开始起算,在其判决词暗示有这可能性。

  3.279 In reviewing the earlier cases, Mustill LJ also cast doubt on the decision in The Massalia (No 2), saying the status of the premature notice of readiness was not fully argued in that case. He also drew a distinction between the idea of an inchoate notice of readiness in its purest form and a modified form put forward in the present case. In the pure form, the notice automatically takes effect when the ship becomes ready. The main practical objection to this is that the charterer would not know when this was. The alternative or modified version is that it takes effect when the charterers know, or have the means of knowing, when the ship is actually ready, which the judge described as a fertile source of dispute. He therefore concluded that the original notice was without any effect and went on to consider whether there had been any findings by the arbitrators that would have justified an inference of waiver, estoppel or agreement. Having concluded that there were not, he then commented that had he upheld the ‘‘inchoate’’ concept, he would have said that notice time should be allowed, but that if time began by waiver, estoppel or agreement, the precise moment when this happened would depend on the facts leading to it.

  3.279在回顾了早期的案例后,Mustill大法官也怀疑The Massalia(No.2)案的判决,说:在那个案例,过早的通知书的地位并没有完全得以辩论。他还指出了初步的准备就绪通知书的纯理论形式上的概念与该案中的更改形式之间的区别。纯理论形式的通知书当船舶准备就绪时自动生效,而在实践中提出反对意见的主要是承租人,因为他不知道何时才能准备就绪,而另一种替代或更改过的形式却是在承租人知道,或者本应知道何时船舶实际上准备就绪时才生效,也就是法官所谓的滋生争议的来源。因此,他得出以下结论说初步的通知书无效,接着又考虑仲裁员是否留有可以认定其弃权、禁止翻供或共同协议的证据推论。在查寻未果后,他解释道:如果他赞成‘初步的通知书’这一概念的话,他也就应该认为可以允许有通知时间,但,倘若时间因弃权、禁止翻供或共同协议而起算,则具体时刻就应以导致时间起算的事实发生之时为准。

  3.280 In London Arbitration 10/94, two written notices of readiness were prepared, both stating that they had been tendered at the same date and time, but both recording the times of events which occurred subsequent to the time when the notice was said to have been tendered. A copy of the second notice was returned to the vessel at a time when a valid notice could have been given. In these circumstances, the tribunal held that the notice should be treated as if it had been given again or a fresh one had been given at that time. The second notice was therefore valid despite what it said about the date and time of its tendering.

  3.280在报道的伦敦仲裁1994年第10号案中,准备有两份书面形式的准备就绪通知书,其中都写明了它们是在同一天同一时间内递交的,但它们所记载的时间都是表明本应该递交通知书的那个日期之后所发生的一些事件的时间。正当有效的通知书应该递交时,第二份通知书的一份复印件被返给了船上。针对这些情况,仲裁庭裁定:在此时此刻,这份通知书应该被看作是它已经被再次递交过,或者是如同已递交了一份新的通知书。因此,不管第二份通知书上写了什么样的递交时间和日期,它仍然是有效的。(在美湾装粮第一次验舱未通过,第二次通过后船长有递交第二份通知书)

  3.281 As was stated at the start of this section, where a notice of readiness is required, then when it is given, the vessel must first have arrived at her specified destination.

  3.281 如同在这本节开始所说的,当有要求递交准备就绪通知书的情况下,那么当它递交时,船舶首先必须是抵达她指定的目的地。
  

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