《装卸时间与滞期费》第3章-装卸时间的起算-连载44

2019-03-23748
  《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

  Readiness under GAFTA f.o.b. contracts

  在GAFTA f.o.b.合同下的准备就绪通知书

  3.347 A different sort of readiness was considered in Soufflet Negoce v. Bunge SA a case that eventually reached the Court of Appeal. The buyers were required to present a vessel within specified dates under clause 6 of GAFTA Form 49. They did so on the last day allowed but there was a dispute as to whether the vessel’s holds were in a condition of readiness to load. The issue was whether the buyers had to present a vessel able to give a valid notice of readiness or simply present a vessel for loading. The GAFTA Board of Appeal, the High Court and the Court of Appeal all held that all the buyers had to do was present a vessel within the delivery period. The fact that any notice of readiness presented might be invalid did not mean that the sellers could throw up the sale contract.

  3.347在Soufflet Negoce v. Bunge S.A.案,考虑的是另一不同类型的通知书情况。该案最后达到上诉法院。根据GAFTA(The Grain and Feed Trade Association谷物和饲料贸易协会)第49号格式范本第6条款规定要求买方在指定日期内派船。 他们确实是在允许日期的最后一天安排船舶抵达装货港,但其中一个争议是:船舶货舱是否是做好装货准备就绪状态。还有,必须派船的买方是否能够递交有效的通知书或者是仅仅派船装货而已。GAFTA的仲裁,仲裁上诉委员会,高等法院和上诉法院都判决:买方所有必须要做的是在付运期之内派出船舶。递交的通知书可能是无效的这一事实并不意味着卖方可以撕毁销售合同。

  Work before laytime commences 装卸时间起算前开始作业

  3.348 Charters often specify that laytime should begin after the expiry of a given period after notice of readiness has been presented and it sometimes happens that work begins before the end of this time. It may even happen that work begins before the commencing date stated in the charter for laytime to begin.

  3.348租船合同常常会规定:装卸时间应从准备就绪通知书递交后的一段指定期间届满时起算。但是,往往在这段期间届满之前,作业已经开始了,有时,甚至在租船合同中规定的装卸时间起算日期之前作业就已经开始了。

  3.349 Whilst notice may be given before the start of the laycan spread, the courts will only hold that the parties have agreed to vary the time at which the charter says that laytime should begin upon very clear evidence of such an agreement, whether this be to advance the laytime commencement date or shorten the period after notice of readiness has been given. The principles that apply are similar to those that appertain to working on holidays or other excepted periods.

  3.349当通知书可以在受载期开始之前递交时,只有非常明显的证据显示(双方)达成协议装卸时间应该开始起算,法院才会判定双方已经同意变更该租船合同中规定的时间,无论是把装卸时间开始的日期提前或是缩短通知书递交之后的(通知)时间。同样地,该原则也适用于在节假日或其他除外期间作业的情况。

  3.350 The mere fact that work proceeds is not enough to evidence a variation of the charter. In at least one early case, however, this was not so, although in this case, The Katy, the actual issue was whether work on part of a day should count as a whole day. Fourteen running days were allowed for loading and discharging but there was no provision as to when laytime should begin. However, it was usual for laytime to count only from the first full day and, in The Katy, the question was whether a full day should be counted as the ship berthed at 10 a.m. and cargo operations continued during the afternoon. On these facts, the Court of Appeal held that, by working the ship, the charterers had agreed to count a whole day against laytime. As Lord Esher said:

  The captain said ‘‘Come—agree with me to take delivery’’; and they did agree to take delivery, and they did it. Is that, or is that not, agreeing to treat Saturday as one of the lay days?

  3.350单就实施作业的事实而言,尚不足以证实租船合同的改变。不过,至少在早期的一个案例中,并不是这样的,尽管在该案中,The Katy案,实际争议是:不足一天的作业时间是否可以计算为一整天?允许使用的装卸天数为14个连续日,但是并没有条款规定装卸时间从何时开始起算。然而,在通常情况下,装卸时间都是从第一个完整日开始计算的,在The Katy案中,问题是该轮在上午10点靠泊,下午就接着作业,这一天是否可以算作一个完整的日。基于以上事实,上诉法院判定:既然该轮已作业了,就应视为承租人已经同意将该日计为一个整天。正如Esher勋爵所说的那样:

  船长说:“喂,请同意我的意见提货吧! ”于是,他们真的同意了提货,而且也的确是这样做了,那意味着是同意还是不同意将星期六看作为一个完整的装卸日呢?

  3.351 However, in Nelson & Sons v. Nelson Line Liverpool Ltd (No 3) the House of Lords refused to accept that working in an excepted period meant that both sides had agreed to count such time. Lord Loreburn LC, giving his reasons, said:

  In my view it is a question, not of law, but of fact, whether or not there was an agreement varying the terms of the charterparty and providing that the holidays in question should count as lay days. I am unable to see any evidence of such an agreement.

  3.351尽管如此,在 Nelson & Sons v. Nelson Line Liverpool Ltd(No3)案中,上议院拒绝接受在除外期间作业就意味着当事双方同意计入该段时间这种的观点,首席大法官Loreburn勋爵的理由是这样的:

  在我看来,就当事方是否有协议修改租船合同中的条文,并规定将有争议的节假日计入装卸时间这一问题,是一个事实的问题,而不是法律问题。因为我未能见到关于这一问题协议的任何证据。

  3.352 A more modern case, however, on this issue is Pteroti Compania Naviera SA v. National Coal Board (The Khios Breeze) where the charter provided for laytime to commence 24 hours after written notice was given. In fact, discharge commenced half an hour after the vessel’s arrival—before notice was given and therefore before the 24-hour period had even started.

  3.352然而,最近有关的案例,即Pteroti Compania Naviera SA v. National Coal Board (The Khios Breeze)案中,针对这—问题,尽管租船合同中规定装卸时间从书面通知书递交后的24小时起算,而事实上,船舶抵达半小时后卸货作业就开始了,这时通知书还未递交,甚至那24小时期间还未曾开始。

  3.353 In refusing to accept that there had been any agreement to vary the terms of the charter, Diplock J drew attention to the House of Lords’ decision in Nelson & Sons v. Nelson Line Liverpool Ltd (No 3) and also to the dissenting judgment of Fletcher Moulton LJ in the Court of Appeal in the same case, which pointed out the principles on which the court should be prepared to infer agreements of that kind between the parties and also contained a warning against an easy inference of such agreements. The judge continued:

  I can see no ground whatever on which I could infer an agreement here that, because the charterers started to unload, and the shipowners’ servants assisted in doing so, at 2.30 in the morning, there was an agreement between the parties that laytime should start then... Equally, I can see no ground upon which I should be entitled to hold that it had been waived by the charterers.

  He also added that the clause relating to time commencing and the clause relating to notice were not ones put in solely for the benefit of the charterers, and were not ones to which waiver would apply in any event.
  

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