《装卸时间与滞期费》第3章-装卸时间的起算-连载49

　　CHAPTER 3 第3章

　　Commencement of laytime 装卸时间的起算

　　Failure to have cargo available or arrangements for discharge

　　未备好货物或未安排好卸货

　　3.370 In Owners of Panaghis Vergottis v. William Cory & Son, the owners of the ship concerned complained that their vessel had been delayed in getting into dock at Barry to load under a dock charter because the charterers had failed to comply with a dock company requirement that approximately one-third of the cargo must be ready to load before the ship would be admitted to the dock. In holding that the charterers were liable for the delay, Greer J said:

　　But I think that shipowners and shippers of coal doing business at the South Wales ports would regard it as reasonable in times of congestion that the dock authority should require at least one-third of the vessel’s cargo to be ready before she was admitted to the dock; and I think, in refusing to assist the plaintiff’s ship to get into the dock by complying with the requirements of the dock authority, that the charterers broke their contract, and are liable to pay the agreed damages.

　　3.370在Owners of Panaghis Vergotds v. William Cory & Son—案中，根据码头租船合同，船东抱怨说，由于承租人未能满足码头公司的要求，即必须备好大约三分之一的货物才准予船舶靠泊，这就导致了船舶延误进入英国Barry港码头靠泊装货。Greer判定承租人应对此延迟负责，他说：

　　我认为，在码头拥挤的时期，对于在南威尔士港口做煤炭生意的船东和托运人应当合理考虑到码头当局会要求至少备妥三分之一的货物才准予船舶靠码头；而且我认为，由于未能满足码头当局的要求而不能协助原告的船舶靠抵码头，属于承租人违约。应当负责这一损失。

　　3.371 A similar failure by the charterers to have sufficient coal available, this time at Calcutta, to enable a berth to be obtained was considered by the Privy Council in Samuel Crawford Hogarth v. Cory Brothers & Co Ltd. The judgment of the court was given by Lord Phillimore, who, having repeated the general principle set out earlier, continued:

　　Whether the latter’s [i.e. charterer’s] measure of liability is arrived at by giving to the shipowner damages for the delay, or whether the lay days are ante-dated to that date when they ought to have begun, and the charterer pays for them at the agreed rate of demurrage, does not seem to have been determined. But no point as to which of these two measures of payment should prevail has been made by the parties in this case.

　　3.371另一个类似的由于承租人煤炭没有备足不能靠泊的案例是英国枢密院审理的Samuel Crawford Hogarth v. Cory Brothers & Co Ltd一案。这一次是在加尔各答港，Phillimore勋爵在其给出的法院判词中又一次重申了上述基本原则之后，说：

　　后者（即承租人）的责任程度是赔偿船舶东的延迟损失，还是将装卸时间提前到它本应开始起算的日期，并按双方协议的滞期费率支付滞期费，对于这个问题似乎并没有定论。但究竟哪一种赔偿方式优先，该案双方当事人也没有谈到。

　　3.372 The point was therefore left open. However, in Fornyade Rederiaktiebolaget Commercial v. Blake & Co and others, where the dispute was about what sort of railway wagons were to be provided for discharge and the dock company refused to allow the vessel to dock until it was resolved, the Court of Appeal held that damages were the appropriate measure. Scrutton LJ said:

　　She is not entitled to demurrage properly so called, because after she got to the place of discharge she was discharged within the contract time. But what she is entitled to is damages for detention during the four days in which she was prevented, by the wrongful attitude taken up by the receivers, from getting to the place of discharge.

　　3.372因此，这个问题是还没有定论。然而，在Fornyade Rederiaktiebolaget Commercial v. Blake & Co and others案中，它争议的问题是究竟要备好何种卸货用的火车车皮？这样只有解决这一问题，码头当局才准予靠泊。上诉法院在判定损失时是适当的额度范围，Scrutton大法官说：

　　她无权索要所谓的一定的滞期费，因为该轮抵达卸货地点之后，她是在合同规定的时间内进行卸货的。但她有权就收货人的错误行为阻止她不能抵达卸货地点而造成的4天延迟提出滞期延迟损失索赔的要求。
　　

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　　海运圈聚焦专栏作者 魏长庚船长（微信号CaptWei）