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　　《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

　　3.282 In The Agamemnon, the vessel was ﬁxed to load at Baton Rouge in the Mississippi but gave notice prematurely at the South West Pass, which is an anchorage at which ships lie whilst waiting to enter the Mississippi and must transit to enter the river. The vessel had been anchored at the South West Pass but had been forced to proceed out to sea because of the onset of Hurricane Opal; but when the weather abated and she returned, the master gave notice of readiness which was subsequently held to be premature and invalid.

　　3.282在The Agamemnon案，船舶被安排在密西西比河内Baton Rouge 港装货，但却在河口South West Pass递交了过早的通知书，该处是船舶在等待进入密西西比河时，临时的停留的锚地，而且必须穿过此处才能进河。船舶已经在SW Pass抛锚，但由于飓风Opal来临，却被强制开到外海；当天气缓和后她又返回抛锚，船长递交的准备就绪通知书最终被裁决是过早递交和无效的。

　　3.283 It looks from the report of the case as though the master may have given notice whilst underway, but no point was taken about that. The judge did, however, refer to a ﬁnding of fact made by the arbitral tribunal who ﬁrst dealt with the case that the vessel had not ‘‘reached a point as close to the loading berth as she might be permitted to approach’’. He continued:

　　. . . when considering the condition as to the geographical position the vessel has reached, the statement in the notice of readiness may or may not be true as to the geographical position of the vessel or whether she has reached the point that is nearest to the port or berth (as the case may be); what matters however, is whether the condition in the charterparty for the giving of notice has been met and the vessel is, at the time the notice is given, at the point stipulated in the charterparty where notice can be given. That is the test for validity . . .

　　3.283 从该案的报道中看出，好像船舶在航时船长可以递交通知书，但并没有人谈及过这一点。然而，法官确实参考最先处理案情的仲裁庭对事实的认定，即该船舶还没有‘抵达她被允许前往的装货泊位尽可能临近的那一点’。他继续讲说：

　　……当考虑到船舶已经抵达的地理位置的实际情况，准备就绪通知书的陈述可能是真的，或者就其所处的地理位置，还有她是否抵达港口货泊位最邻近的地点（视情况而定），也可能不是真的；无论任何，关键的问题是，租船合同内就递交通知书的条件是否满足，并且，在通知书递交当时，船舶所处的那一点是否是租船合同中规定可以递交通知书的位置。这就是通知书的有效性的检验准则……

　　3.284 Following the Court of Appeal decision in The Mexico I, it was inevitable that the subject of the effect of an invalid notice of readiness would return to the attention of the courts, particularly in relation to a case where no further notice had been tendered after the original invalid notice.

　　3.284在The Mexico I这一上诉法院案例之后，就无效的通知书的作用效果这一主题，不可避免地又回到法院并引其注意，特别是有关案件是在初始无效的通知书后并没有进一步再递交通知书的情况。

　　3.285 In January 2001, The Happy Day came before the High Court and this was followed in January 2002 by The Mass Glory. The Happy Day reached the Court of Appeal in July 2002.

　　3.285在2001年1月，The Happy Day案被提交到高院，接下来在2002年1月是The Mass Glory案。The Happy Day在2002年7月打倒上诉法院。

　　3.286 The Happy Day arrived off Cochin with a cargo of wheat. At the time of her arrival off the port, she was unable immediately to enter the port because she missed the tide. Nevertheless the master purported to give notice of readiness. She was only able to resume her voyage into the port on the next tide, the following morning, berthing and commencing discharge the same day. No further notice was presented. However, discharge was very slow and it took exactly three months from the date of her arrival off the port to be completed. The dispute was referred to arbitration and the tribunal found that the charterparty was a berth charter and therefore the notice of readiness given on arrival off the port was invalid. Nevertheless, they also held that laytime commenced on the ﬁrst occasion on which it could have commenced, had a valid notice been presented.

　　3.286装载有小麦货物的船舶Happy Day抵达印度科钦港外。在抵达港外时，因为错过高潮，她无法立即进港。尽管如此，船长声称是递交了准备就绪通知书。她只有在下一个高潮才能继续航程靠泊，第二天早上，在该天同时靠泊并开始卸货。并没有进一步递交第2个通知书。然而，卸货十分缓慢，而且从船舶抵达港外直到完货正好花了3个月时间。有关争议提交仲裁，则仲裁庭认定租船合同是泊位租约，所以在抵达港外递交的准备就绪通知书是无效的。不过，他们仍然裁定：如果有效的通知书递交的话，装卸时间在它本应能够开始的第一次机会起算。

　　3.287 The charterers appealed, claiming that as the notice was invalid, laytime never commenced and therefore they were entitled to despatch in respect of the full amount of laytime allowed, a possibility foreshadowed in The Mexico I. In the High Court, Langley J held that the invalid notice was not ‘‘accepted’’ in any sense on which reliance could be placed by the owners. He also held it was not possible to infer any agreement or convention from the mere facts of commencement and continuation of discharge and that it did not necessarily follow that the charterers must have agreed to give up their right to a valid notice because an invalid notice was not rejected. The appeal was therefore allowed and the charterers’ claim for despatch succeeded.

　　3.287承租人上诉，声称由于该通知是无效的，装卸时间从未开始，因此，就全部数量的允许的装卸时间而言，他们有权要求速遣费，这正是The Mexico I案所预示的可能结果。在高院，Langley法官判决：船东所依赖的无效通知书在任何意思上都是没有‘被接受’。他还判决说，仅仅从开始卸货并持续卸货的事实中不可能推断出存在有任何协议和约定，还有，也必然不能得出承租人因为无效通知书被拒绝就一定会同意放弃他们的在有效通知书上的权利。因而，允许上诉而且承租人成功索赔速遣费。

　　3.288 This was followed a year later by The Mass Glory, a decision of Moore-Bick J. Again this was a berth charter and a berth was available, the vessel having passed an inward inspection shortly after arrival, but on this occasion the reason for not berthing and commencing discharge was that the cargo documents were not in order and the charterers as sellers of the cargo ordered the vessel not to allow anyone to have access to the vessel without production of an original bill of lading. The master gave notice of readiness on the day after arrival, but it was common ground that it was premature and thus invalid. It took a week short of two months to resolve the problems with the cargo documents and, once this had been done, discharge started immediately. However, no further notice of readiness was given. The arbitrators to whom the dispute was referred held by a majority that laytime began to count at the commencement of discharge and that the owners were entitled to damages for detention for the earlier delay. The charterers appealed to the High Court.

　　3.288接下来一年后，是Morre-Bick法官审理的The Mass Glory案。这一次又是泊位租船合同，但泊位是空闲可用的，船舶在抵达（厦门港）后很快通过了入境检查，但这时候，不能靠泊和开始卸货的原因是货物文件没有准备好，而且作为货物卖方的承租人指示船舶在没有出示正本提单的情况下，不允许任何人员上下。船长在到达当天递交了准备就绪通知书，但，同样地，它是过早的，因此也是无效的。这花费了2个月差一周的时间才解决货物文件问题，接着，一旦这一问题得以解决，立即开始卸货。然而，并没有进一步递交第2个通知书。争议提交到仲裁庭，仲裁庭的大多数裁定：装卸时间在开始卸货时起算，而且船东有权索赔早期延迟的滞期延迟损失。承租人提出上诉到高院。

　　3.289 Although the owners sought to distinguish The Happy Day, they were unsuccessful in so doing and the judge came to the same conclusion that had been reached in the earlier case. The charterers’ appeal was therefore successful and they were held to be entitled to despatch.

　　3.289尽管船东试图与The Happy Day案做出区分，但他们并没有成功这样做，反而法官得出与前一个案例相同的结论。因而，承租人成功上诉而且判定他们有权获得速遣费。

　　3.290 Although it would appear that leave to appeal was given in The Mass Glory, the case never came before the Court of Appeal, probably because, by then, the principle had been considered by that court in The Happy Day where the only judgment was given by Potter LJ, a judgment with which Lady Justice Arden and Sir Denis Henry, both agreed.

　　3.290尽管在The Mass Glory案，明显给予上诉批准，但这个案件还是没有提交到上诉法院，当时，可能是因为在The Happy Day案，法院已经对这一原则审理过，其中只有Potter大法官给出判词，Arden女大法官和Denis Henry爵士都表示同意。

　　3.291 After an extensive review of the earlier authorities and the arguments put forward by both sides, Potter LJ concluded:

　　Laytime can commence under a voyage charterparty requiring service of a notice of readiness when no valid notice of readiness has been served in circumstances where (a) a notice of readiness valid in form is served upon the charterers or receivers as required under the charterparty prior to the arrival of the vessel; (b) the vessel thereafter arrives and is, or is accepted to be, ready to discharge to the knowledge of the charterers; (c) discharge thereafter commences to the order of the charterers or receivers without either having given any intimation of rejection or reservation in respect of the notice of readiness previously served or any indication that further notice is required before laytime commences. In such circumstances, the charterers may be deemed to have waived reliance upon the invalidity of the original notice as from the time of commencement of discharge and laytime will commence in accordance with the regime provided for in the charterparty.

　　Earlier in his judgment, Potter LJ said:

　　For the reasons which I have set out, I consider the doctrine of waiver may be invoked and applied in such a case and that the commencement of loading by the charterer or receiver without rejection of or reservation regarding the NOR can properly be treated as the ‘‘something else’’ which Lord Justice Mustill indicated (in The Mexico I) was required to be added to mere knowledge of readiness on the part of the charterers for a ﬁnding of waiver or estoppel to be justiﬁed. Not only does the commencement of loading manifest an acceptance of the vessel’s readiness to load, it also meets the concern of Lord Justice Mustill that to argue (as it was in The Mexico I) that laytime should begin at the point when the charterers or their agents became aware that the cargo was ready, would give rise to uncertainty and substitute a basis for the computation of laytime which would be a fertile source of dispute.

　　3.291在经过过早期的先例广泛地回顾和对当事双方提出的争议审查后，Potter大法官断定：

　　按照航次租船合同，需要递交准备就绪通知书才能起算装卸时间。当没有递交有效的通知书时，在下列情况下：（a）根据租船合同，按照承租人或收货人要求的格式，在船舶抵达之前送达的通知书是有效的；（ b）在该船舶抵达之后，承租人知道，或者接受她已是做好卸货准备；（c）接下来按照承租人或收货人的指示开始卸货，在装卸时间开始起算之前，没有就原先递交的通知书给予任何拒绝的暗示或者保留，也没有任何迹象显示要求进一步的递交通知书，装卸时间也可以开始起算。在这些情况下，承租人可以被认为是放弃依赖原先递交的无效通知书，因为，根据租船合同规定的形式，从卸货开始之时，装卸时间也就会开始起算。

　　在判决词的前一部分，Potter大法官说：

　　由于上述我所阐述的原因，我认为可以援引弃权的理论并适用于这类案件之中，因而，承租人或收货人开始卸货并没有就通知书表示拒绝或提出保留是能够恰当地视为Mustill大法官（在The Mexico I案中）所指出的‘别的事情’，对承租人一方来说，这需要对单纯的准备就绪方面的知识加以补充以认定弃权或禁止翻供被证明是正确的。不仅开始装货明显表示已经接受船舶做好装货准备，而且也满足Mustill大法官（在The Mexico I案中）所关注的和双方所争论的装卸时间应当在承租人或他的代理人知道货物已经准备好的那一时间点开始。正是这一点造成装卸时间的不确定性和替代了装卸时间计算的基础，同时也是滋生争议的来源。
　　