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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

　　Congestion due to charterer’s other commitments

　　由于承租人的其他应尽义务造成的拥挤

　　3.376 That, however, is subject to the second limitation that the principle does not apply where the delay complained of was such that it should have been within the contemplation of both shipowner and the charterer at the time the charter was made.

　　3.376然而，该原则还受到第二种限制，那就是：它不适用于在订立租船合同当时船东和承租人本应该会预料想到的那种延迟。

　　3.377 Thus, in Harrowing v. Dupre, a vessel had to wait for 20 days before getting a berth. Had it not been for four ships under charter to the same charterer who were ahead of her, she would have berthed seven days earlier. Nevertheless, Bigham J held that the delay was not the fault of the charterer and that where, under such a berth charter, the delay was such as ought to have been in the contemplation of both parties at the time of making the charter, no cause of action arose.

　　3.377因此，在Harrowing v. Dupre案中，该轮在靠泊前不得不等了 20天，如果没有同一承租人租用的四艘船在前的话，她本应该早7天靠泊。然而，Bingham法官判定这种延迟不是承租人的过错。在这种泊位租船合同下，这种延迟是双方当事人在订立合同的当时本应能够预料到的，并没有诉因产生。

　　3.378 The Court of Appeal reached a similar conclusion on another coal charter in Barque Quilpue Ltd v. Brown, where Vaughan Williams LJ cited with approval a dictum of Rigby LJ in Carlton Steamship Co v. Castle Mail Packets Co, where he said:

　　I do not think that a delay which arose from a contingency, the probability of which must have been perfectly well known to and contemplated by the shipowners when they entered into the charterparty, can be considered unreasonable.

　　Vaughan Williams LJ also added:

　　In the present case I think it is clear that when the shipowners entered into the charterparty to load in regular turn, that is, regular colliery turn, they must have known that the charterers would have prior engagements which would delay the colliery turn of this particular ship, and they must also have known that a delay of the ship for loading for a number of days—certainly between 40 and 50 days—was not an impossible or even an unusual thing under the conditions of this port.

　　3.378另一个煤矿租船合同的案例Barque Quilpue Ltd v. Brown案中，上诉法院也是得出了类似结论。Vaughan Williams大法官引用并赞同Rigby大法官对 Carlton Steamship Co v. Castle Mail Packets Co案的审理中的附带意见，说：

　　我认为这种延迟不是偶然产生的，这种可能性船东是十分清楚的，而且在订立租船合同的当时应该会预料到的，不能将其看作是不合理的。

　　Vaughan Williams大法官还补充道：

　　目前这个案子，我认为，船东在订立租船合同时明显是按正常顺序装货，也就是，煤矿场安排的正常顺序装货，他们必须应该知道承租人以前所做的安排会导致该轮的正常装货顺序受到延迟，而且，他们还应该明白，装货延迟一些天，当然40天到50天，也不是不可能的，甚至根据这个港口的状况也是常有的事儿。

　　3.379 In the American case of The Venore, it was held that, even if the shipowner had been able to provide that other engagements of the charterer were a serious cause of delay, the evidence showed that when the contract was executed, the shipowner either knew or should have known of the charterer’s other grain ﬁxtures. Furthermore, the court held that, where delay was caused by something taken into account in ﬁxing the freight rate, the shipowner could not afterwards complain. It is likely that in this country such a factor will also be taken into consideration, at least by commercial arbitrators.

　　3.379在美国The Venore案，这判决是，即使船东能够证实延迟的重大原因是承租人其它安排造成的，但证据表明，在合同签字生效时，船东要么知道，要么本应知道该承租人的其他谷物租约合同。而且，法院还判定，在签订运费率时已经考虑到了某些因素所造成的延迟，船东不能事后抱怨。在英国，这样的因素也可能会考虑进去，至少商业仲裁员们是如此。
　　