《装卸时间与滞期费》第3章-装卸时间的起算-连载17
日期:2019-01-10 阅读:749
  《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

  3.95 This requirement that to be an Arrived ship the vessel must be in an area where loading or discharging takes place became known as ‘‘the Parker test’’. When the case came before the House of Lords, the majority accepted the interpretation Parker LJ had put on the Leonis test. Lord Jenkins also added:

  The judgments (in the Leonis case), as I think, clearly postulate as the ‘‘commercial area’’ a physical area capable (though no doubt only within broad limits) of identification on a map. When the given ship enters that area and positions herself within it in accordance with the requirements just stated she is (in point of geographical position) an arrived ship.

  3.95成为抵达船的这一个要求是船舶必须处于能够进行装卸作业的区域范围之内——这就是著名的‘帕克准则’。当该案打到了上议院,大多数人都接受了Parker大法官对Leonis轮所适用的检验标准作出的解释,Jenkins勋爵还补充说:

  (在The Leonis案)的判决,我认为,很显然它所假设的‘商业区’应该是一个能够在地图上被识别出来的实际的物理区域(虽然,毫无疑问,是在一个较大的范围之内)。当已知的船舶按照上述规定的条件要求进入该区域内并使她自己驻扎安置在此(地理位置上的一点)时,她就成为一艘抵达船。

  3.96 Lord Morris apparently envisaged that the limits of the commercial area should be in close geographical proximity to the cargo berths, for he said that a ship may become an Arrived ship:

  . . . even if she is at anchor at a place where the charterer does not intend to load her, or even could not load her provided that the place bears a relationship to the actual or probable loading spot comparable with that which would exist between presence in a dock and presence at a particular berth in a dock...

  3.96 很明显,Morris勋爵设想到商业区域的范围应该在地理上距装卸泊位非常临近,因为他对船舶成为抵达船的条件说过:

  ……即使船舶锚泊于承租人并不打算让她装货的那个位置上,甚至不能装货的位置上,只要这个位置同实际装货或可能装货的地点之间存在着某种关系,即相当于处于码头港池内某一位置与处于码头内某一具体泊位之间的那种关系,那么该船就可成为一艘抵达船。

  3.97 Lords Radcliffe and Cohen dissented. Lord Radcliffe said he regarded the Parker test as:

  . . . altogether too imprecise as a general guide for identifying the relevant area: it is also in my opinion a misunderstanding of the true significance of the Leonis v. Rank decision to seek to treat ‘‘the commercial area’’ for the purposes of any particular charterparty as if it were a fixed area of defined geographical limits which the ship must be treated as reaching or failing to reach without regard to the actual circumstances that prevailed at the time when the obligations of the particular voyage matured.

  Presumably by this Lord Radcliffe had in mind that the limits of the commercial area might vary from time to time, for instance where, as with The Aello, a temporary limitation was introduced by the port authorities against proceeding further.

  3.97 在上议院Radcliffe勋爵和Cohen勋爵提出了异议。Radcliffe勋爵说他对帕克准则是这样理解的:

  ……总的来讲,作为识别有关区域的一般性指引太不精确:而且,在我看来,它是对Leonis v. Rank—案判决的真正含义的误解,它为了任何一个具体租船合同的目的而试图把‘商业区域’看作好像是在限定地理范围内的一个固定的区域,而船舶则必须被看成是要么已抵达该区域,要么未抵达,而不必考虑具体航程义务完成当时所存在的实际情况。

  大概据此推测,Radcliffe勋爵认为,商业区域的范围可以是不时地变动的,比如在此,对于The Aello—案,港口当局提出了临时性的限定以防船舶进一步前行。

  3.98 The difficulties of implementing the Parker test became apparent in the years that followed the decision, about which Roskill LJ said in the Court of Appeal in The Johanna Oldendorff:

  . . . It is now over 12 years since The Aello was finally decided. It is widely known that it was not a popular decision either in St Mary Axe or in the Temple. It is also widely known that its application has from time to time caused difficulty not only to brokers but also to arbitrators and umpires and indeed to judges...

  3.98在该判决作出之后的若干年中,对于Parker准则,在执行中的困难逐渐显现出来,针对这一情况,Roskill大法官在上诉法院审理The Johanna Oldendorff一案时指出:

  ……现在距The Aello—案的最后的判决已经过了不止12年了。大家都知道,不论在St Mary Axe(瑞士再保险集团大厦-Swiss Re Tower,坐落在伦敦金融城的中心地带,在Lloyds Building旁边,)还是在Temple(内殿和中殿,2大律师公会)的角度来讲,它都不是一个普遍欢迎的判决。并且大家也知道,不仅是经纪人,还有仲裁员、公断人,甚至法官,在应用它的时候都经常会遇到困难……

  3.99 In the same case, of the Parker test itself, Lord Reid said:

  Although Kennedy LJ clearly based his judgment on what he thought was commercial good sense, I do not find the judgment of Parker LJ any consideration of that matter.

  3.99同样在该案中,Reid勋爵就Parker准则阐述说:

  尽管Kennedy大法官明显表示他的判决完全是基于他所认为的商业性的理性判断,但我还没有发现在Parker大法官的判决词中对此有任何考虑。

  3.100 An interesting illustration of the sort of difficulties that could arise from the Parker test is provided by Shipping Developments Corporation SA v. V/O Sojuzneftexport (The Delian Spirit). In this case, the Delian Spirit was ordered to load a cargo of crude oil at the Soviet Black Sea port of Tuapse. The charter was a port charter and, as all four berths in the harbour were occupied, she anchored in the roads outside the harbour some 14 miles from the berth. The anchorage was within the administrative, pilotage and fiscal limits of the port of Tuapse and the Delian Spirit lay at the anchorage for some five days before a berth became available. One of the issues raised was whether she was an Arrived ship at the anchorage. Donaldson J opened his judgment in the High Court to which the case had been referred from arbitration upon a case stated by saying:

  The argument upon this award in the form of a special case has a looking-glass quality which would have delighted Lewis Carroll, for the claimant shipowners have been busily contending that the motor tanker Delian Spirit was not an arrived ship before she berthed at Tuapse, whereas the charterers contend that she became an arrived ship several days earlier when she anchored in the roads. Alas, this is not a practical expression of the spirit of Christmas but a belief on the part of the shipowners that they will recover more by way of damages for the detention of the vessel than by way of demurrage...

  3.100在 Shipping Developments Corporation SA v. V/0 Sojuzneftexport(The Delian Spirit)案,是在应用Parker准则过程中产生的这类难题的一个典型的例子。在该案,船舶Delian Spirit轮被指示前往苏联的黑海Tuapse港去装原油。所使用的合同是港口租船合同,然而,该港共有4个泊位当时全被占满,该轮只好在港外距泊位1. 25海里远的开敞锚地拋锚。该锚地属于Tuapse港的行政、引水和财政管辖范围区。而且Delian Spirit轮在锚地等了 5天多才有泊位空出来。该案提出的争议之一就是:该轮在锚地时,是否算抵达船?这个案子是由仲裁提交到高等法院,Donaldson法官对此公开审判,如下判决:

  在这一特殊案例的形式所呈现的判决书基础上产生的争议,具有一面镜子(写作素材)的特性,它会使Lewis Carroll(英国数学家,作家,写过《Alice’s Adventures in Wonderland/爱丽丝漫游记》和《Through the Looking-Glass/镜中世界》)欢心鼓舞。对于原告,船东一直在忙于争辩:Delian Spirit油轮在Tuapse港靠泊,不算是抵达船;然而,承租人却坚决主张:当该轮几天前在锚地抛锚时就已成为抵达船。哎呀!这可不符合实际的基督精神,但这只是船东的信念:他们希望通过索赔船舶滞期延迟损失的方式要比索取滞期费多得多……

  3.101 On the question of whether the Delian Spirit was an Arrived ship, the judge carefully avoided the Parker test, saying:

  Here, say the owners, the berth was in the harbour, whereas the vessel lay in the roads, which is manifestly a different part of the port. I agree that physically this is so. Nevertheless, I do not think that either Lord Parker or the House of Lords had in mind a small port such as Tuapse. What they had in mind was a large port, such as London, in which there are many ports each bigger than Tuapse, and the port in effect consists of separate ports within a larger port. In my judgment, the vessel when in the roads lay within the commercial area of the port of Tuapse.

  3.101就Delian Spirit轮是否是抵达船这一问题,法官在判决中巧妙地避开了Parker准则,说道:

  现在,谈到船东,泊位在港内,而该轮却拋锚在港外开敞锚地,它明显是在该港口的不同部分,而且我也承认事实的确如此。不论如何,我不认为Parker勋爵或上议院所指的小港是像Tusapse港这样,他们脑海里所指的是那些像伦敦一样的大港,这些港口的每一个港区都大过Tuapse港,这样的大港实际上是由许多独立的港区组成的。因此,我认为,该轮所在的锚地亦属于Tuapse港的商业区域范围内。

  3.102 The Court of Appeal agreed (on this point). However, in The Johanna Oldendorff, Viscount Dilhorne described the decision as ‘‘bold’’ and said that the interpretation put on the Leonis case by the majority of the House of Lords in The Aello was not applied. Therefore, by the Parker test, the case was wrongly decided. However, from a commercial as opposed to a strictly legal point of view, the decision was clearly right.

  3.102上诉法院也同意(这一观点)。然而,在The Johanna Oldendorff案,Dilhorne子爵称该判决是一个‘大胆的’判决,并认为上议院大多数法官对Leonis—案做出的解释并不适用于The Aello—案。所以,根据Parker准则,该案的判决是错误的。然而,从商业意识来看,相对于严格的法律角度,这个判决又明显是正确的。

  3.103 In view of the sustained criticism of the Parker test, the House of Lords agreed to reconsider the matter, which they did in The Johanna Oldendorff. The question in that case was whether the Johanna Oldendorff was an Arrived ship on anchoring at the Mersey Bar, having been ordered to Liverpool/Birkenhead with a cargo of grain. The Mersey Bar anchorage was the usual waiting place for grain ships wishing to proceed upriver and was within the port limits. However, it was some 17 miles from the nearest discharging berth.

  3.103鉴于Parker准则受到种种非议,上议院同意重新考虑这个问题,并在The Johanna Oldendorff案做出解释。在该案,Johanna Oldendorff轮在美国装完粮食后被指示前往利物浦/伯肯黑德卸谷物,问题是该轮在墨西河口沙洲锚地锚泊时算不算抵达船?墨西河口沙洲锚地是前往上游的谷物船通常等候的地点,尽管它距离最近的卸货泊位尚有17多海里,它仍在港口的范围内。

  

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