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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

　　3.431 In the course of his judgment in the court below in The Loucas N, Donaldson J had also expressed the opinion that under a port charter, notwithstanding that the time spent by the vessel in waiting for a berth would fall within the period in which laytime was actually running, the ‘‘time lost’’ code would override the laytime provisions so that periods which would have been excluded from laytime under the latter were not excepted. A similar result was held to apply by Donaldson J at ﬁrst instance in The Finix. However, these cases were followed by The Darrah, which eventually reached the House of Lords.

　　3.431法院在审理The Loucas N案件时，法官Donaldson先生也曾阐述了自己的看法：根据港口租船合同，尽管如此，等泊花费时间应是属于实际计算的装卸时间范畴，但‘时间损失’这一规则的效力优于装卸时间条款，所以，那些根据后者（装卸时间条款中）应予除外的时间，在此就不可以除外。在The Finix—案时初审时Donaldson法官也作出过类似的结论。不过，这些案例之后，紧随着就是The Darrah案件，最终一直打到上议院。

　　3.432 In The Darrah, the relevant charter was a port charter under which the ship had been engaged to carry a cargo of cement from Novorossisk to Tripoli. The dispute concerned the time the vessel spent waiting for a berth at Tripoli within the port limits. Under the normal rules time had therefore commenced to run and the question was whether periods of adverse weather and holidays/weekends, which would normally be excluded from laytime, should be excluded from waiting time. At ﬁrst instance, Ackner J held, following the earlier cases, that no time was excluded from waiting time. This was reversed by the Court of Appeal, who drew a distinction between waiting where the vessel was an Arrived ship and where she was not. In the former situation, the laytime exceptions applied, but in the latter they did not. When the case came before the House of Lords, their Lordships decided that the laytime exceptions always applied whether the ship had reached her speciﬁed destination or not. The leading speeches were by Lord Diplock and Viscount Dilhorne, both of whom reviewed the earlier cases. Lord Diplock then explained why the law needed to be changed. One of the reasons he gave was that:

　　. . . the results of ascribing to the clauses the meaning accepted since 1966 do not make commercial sense; it gives to the shipowner the chance of receiving a bonus dependent upon whether (a) his ship is lucky enough to be kept waiting for a berth and (b) is so kept waiting during a period which includes time which would not have counted against permitted laytime if the ship had been in berth.

　　3.432在The Darrah案，所涉及的是港口租船合同，船舶被安排由俄罗斯黑海Novorossisk港前往利比亚的Tripoli港运送水泥。其争议的焦点就是该轮在Tripoli港界范围内的所花费等泊时间。按照常规，装卸时间已经起算，然而，问题是通常应从装卸时间中扣除的时间，恶劣天气和节假日/周末是否也应在等泊时间内扣除？在案件一审，Ackner法官遵从以往判例得出，判决是等泊期间内没有任何时间扣除。上诉法院推翻了他的结论，对抵达船的等泊时间与非抵达船的等泊时间之间的差异做了区分。前一种情况可适用装卸时间的除外条款，但后一种非抵达船的情况却不适用。当该案打到上议院，大法官们判定：不论船舶是否已经抵达了目的地，装卸时间的除外条款始终是可以适用的。在回顾了以往的案例之后，Diplock勋爵和Dilhorne子爵均做了有代表性的发言。后来Diplock勋爵又解释了法律需要改变的原因，其中之一就是：

　　……自1966年以来，人们认为这个短语所接受的含义并不带有任何商业性质；它使船东有机会依据以下两点获得额外补偿：（a）其船舶是否有幸在等泊；（b）这段等泊期间，是否包括若她已靠泊就不应该会被计入所允许的装卸时间的那段（除外的）时间。

　　3.433 Viscount Dilhorne took a similar view, saying:

　　So in the present case it does not look right that there should be deducted from the permitted discharging time by virtue of the time lost provision periods of time which would not be counted under the discharging provision...

　　If my conclusion is correct, the fact that there is an overlap of the time lost and the discharging or loading provisions will not matter, for the time will be counted in the same way and a shipowner will not gain a greater advantage from his ship being kept waiting for a berth from her being kept at her berth.

　　3.433子爵Dilhorne也持有类似的观点，他说：

　　因此，在目前这个案例中，那些应当从允许的卸货时间内扣除的（除外时间），由于时间损失条文，这段时间在卸货时间条文下却不能被计算（扣除），这看上去是不对的……

　　如果我的这一结论是正确的话，事实上，时间损失条款同装卸货条款有些重叠也并没有什么关系，因为这些时间是以同样的方法计算的，船东也不会因他等泊就比在泊位获得更大利益。

　　3.434 After their Lordships’ decision in The Darrah had been given, the Court of Appeal considered an appeal from the decision of Donaldson J in The Finix. This aspect took little of the court’s time, Lord Denning saying simply that the decision of the umpire and the judge was wrong.

　　3.434上议院的大法官们对The Darrah—案的判决做出之后，上诉法院也研究了对由Donaldson法官判决的The Finix—案的上诉。在这方面，法院只花费了很短一段时间，Denning勋爵就（遵从The Darrah案的判决）简单地说，公断人和高院法官的裁决都是错的。

　　3.435 In London Arbitration 8/03, the tribunal held a time lost waiting for berth provision was effective, even though they had held that a notice of readiness which had been tendered earlier in reliance on a WIPON provision was invalid. However, in London Arbitration 14/05, the tribunal held that where a vessel had reached a place at which a valid notice of readiness might be given, but failed or was unable for any reason to tender a valid notice, the ‘‘time lost’’ provision did not provide for time to still count in the absence of a valid notice.

　　3.435在报道的伦敦仲裁2003年第8号案，仲裁庭裁决：在等泊时间损失条文是有效的，即使他们依据WIPON条文已经裁决过早递交的通知书是无效的（参看3.417段）。然而，在伦敦仲裁2005年第14号案，仲裁庭却认为，当船舶已经抵达能够递交通知书的地方，但是，没有递交通知书或者由于其他原因递交的通知书无效，在缺少有效通知书的情况下，‘时间损失’条文并不能规定该（损失的）时间仍旧计入（装卸时间，船东败诉）。

　　3.436 Where there is more than one charter or the shipowner has been allowed to complete with other cargo, then with this sort of clause the waiting must be in respect of the cargo to which the charter relates and not some other cargo.

　　3.436当有不止一份的租船合同时或者当允许船东加载装满其他货物时，那么，在等泊时，这类条款就应分清是与哪个租船合同名下的货物有关，而不能将它们混同起来。

　　How time lost should be counted 损失的时间如何计算

　　3.437 The question that arises is whether time lost in waiting should be counted at the beginning of lay days or added at the end. The two cases that discuss the problem give different answers, but it is suggested that the better answer is the second and later decision to the effect that it should be counted as it occurs.

　　3.437这产生的问题是，等泊损失的时间是否应在装卸时间开始时计入，还是应加在装卸时间结束之后？这有两个案例对这一问题进行了讨论，却给出不同的结果，但，这建议，第二答案更合适一些，对这种情况，后者的判决是：一旦产生即应计算。

　　3.438 The ﬁrst case was Government of Ceylon v. Societe Franco-Tunisienne d’Armement-Tunis (The Massalia (No 2)) where Diplock J said:

　　The last matter which I have to decide is whether one adds the time lost in waiting for a berth at the beginning or at the end of the lay days. That sounds to an arithmetician as if the sum must come to the same, but in this particular case I understand that it makes a difference of a day, because, if one adds it at the beginning, the Sunday, Oct 28, is excluded from the laytime and therefore counts as demurrage. If, on the other hand, one adds it at the end, then the Sunday comes during laytime, and does not count. So it does make a difference of 24 hours. Without giving any reason, I hold that it should be added at the end.

　　3.438第一个案件是Goverment of Ceylon v. Societe Franco-Tunisienne d’Armement-Tunis(The Massalia (No 2) )案。Diplock法官认为：

　　最后的问题，我不得不判定，等泊损失的时间是否应加在在装卸时间开始时，还是加在结束时呢？在一个数学家看来，其结果应是相同的。但在这种特殊情况下，我完全知道这是有分别的。因为，若在开始时加入，10月28日星期日，其本来应当从装卸时间内扣除掉，但却计入滞期时间了；如果，用另一种方法，把它加在末尾，那这个星期日在装卸时间内，不应计算。这样就产生了24小时的差别。不必再多解释了，我判定应加在后面。

　　3.439 The other case was Ionian Navigation Co Inc v. Atlantic Shipping Company SA (The Loucas N), where at ﬁrst instance Donaldson J said:

　　. . . I consider that it should be brought into account as and when the delay occurs. It is, of course, quite separate from the time allowed for loading and discharging but the extent of the delay in waiting for a berth affects the yardstick which has to be applied in determining how much chronological time remains available for the completion of these processes.

　　3.439另一个案子是Ionian Navigation Co InC v. Atlantic Shipping Company SA(The Loucas N)—案。在初审时，Donaldson 法官说：

　　……我认为该时间应在延迟产生之时就计入。当然，这与所允许使用的装卸时间（概念）完全不同，但，等泊所造成的延迟程度，却打乱了在决定尚有多少剩余日历日时间可用于完成装卸作业时的适用标准。

　　3.440 It must be remembered that at the time this judgment was given it was held that laytime exceptions did not apply to waiting time, whereas now they do, and that was why the judge said that waiting time was quite separate. However, the fact that laytime exceptions do apply makes it even more appropriate that waiting time should be brought into account as it occurs.

　　3.440 值得提醒的是，在这个判决做出当时，该案曾判定装卸时间除外条款不适用于等泊期间，然而现在却适用了，这就是为什么法官会说等泊时间完全不同于装卸时间。然而，除外条款也适用（等泊损失时间）这一事实更证实了等泊时间一旦发生即应计入的观点是适宜的。
　　