《装卸时间与滞期费》第3章-装卸时间的起算-连载18
日期:2019-01-11 阅读:436
  《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

  3.104 Nevertheless the House of Lords had no doubt that she was an Arrived ship and, furthermore, that the Parker test was wrong, having put an unjustifiable gloss on the Leonis case. They therefore substituted what has become known as the ‘‘Reid test’’, summarised in this passage from Lord Reid’s speech:

  Before a ship can be said to have arrived at a port she must, if she cannot proceed immediately to a berth, have reached a position within the port where she is at the immediate and effective disposition of the charterer. If she is at a place where waiting ships usually lie, she will be in such a position unless in some extraordinary circumstances, proof of which would lie in the charterer. For as Mr Justice Donaldson [1971] 2 Lloyd’s Rep 96, at p. 100, points out:

  ‘‘ . . . In this context a delay of two or three hours between the nomination of a berth and the ship reaching it is wholly immaterial because there will be at least this much notice before the berth becomes free... ’’

  If the ship is waiting at some other place in the port then it will be for the owner to prove that she is as fully at the disposition of the charterer as she would have been if in the vicinity of the berth for loading or discharge.

  3.104尽管如此,上议院还是毫无怀疑将她判定为抵达船,而且更进一步认为Parker准则是错误的,它导致了人们对Leonis案的不公正的误解。因此,上议院随后用众所周知的‘Reid准则’取而代之。下面是从Reid勋爵演讲片段的摘要:

  在船舶被认为是已经抵达某港之前,她必须,如果不能直接前往泊位靠泊的话,抵达该港内的某一位置,在此,她能够在承租人的立即马上和有效的支配之下。如果她所在的地方是船舶通常的等泊地,那么,她就是处在了这样的位置,除非在某些特殊的情况,对于承租人主张的特殊情况,承租人负有举证之责。对此,正如Donaldson法官在1971年劳氏法律报告第2卷第96页(起),在第100页指出的那样:

  ‘……依前后背景来看,从指定一个泊位到该轮抵达泊位之间的两三个小时的延迟完全是无关紧要的,因为,在泊位空出以前至少应有一个这样的重要通知……’

  如果该轮在该港的某一别的地方等候,那么这就要船东去证明船舶是完全在承租人的支配之下,就像她本可以在装卸泊位附近一样。

  3.105 The reason why the area of a port where a vessel can be considered to be an Arrived ship is so much larger today than it was at the turn of the century was discussed by Lord Diplock. Having said that the requirements of a waiting area within the port are that the ships there should count for a berth in order of arrival, that the charterer should be able to communicate with them, and that there should be no significant delay in their moving into berth when one becomes free, his Lordship continued:

  The waiting places within the limits of an extensive port which have these characteristics alter as ships become more manoeuvrable, faster or larger, and communications between ship and shore improve...

  In days of sailing ships close proximity to berths likely to become vacant may have been necessary in order that a place should possess those characteristics, but distance from the actual berth becomes of less importance as steam and diesel power replaces sail and instantaneous radio communication is available between ship and shore.

  3.105在谈到如今被认为是抵达船所要抵达的港口区域的范围为什么较世纪之交时期已经大了许多的原因时,Dipbck勋爵说:对于港内等候区域的要求是,船舶在此可以等候到一个能被视为抵达的泊位;而承租人在此也可以与船舶保持通讯联系;并且在泊位空出时指示她移往泊位而不会有过分地延迟。他接着又说:

  在一个大范围的港口界限之内的等候区域,随着船舶变得更为机动灵便,更加快捷或体积更大,还有船岸之间的通信联络改善提高,其具有的特性也相应地改变……

  在帆船时代,为了使某处具有这些特性,需要船舶距将来可能空出的泊位更加接近,或许必须要如此这样,但随着蒸汽机和柴油机取代了帆船,以及船岸间无线电即时通信的出现,船舶与实际泊位的距离已变得并不那么重要了。

  3.106 In his speech, Viscount Dilhorne summarised the state of the law as follows:

  (1) That under a port charterparty to be an arrived ship, that is to say a ship at a place where a valid notice of readiness to load or discharge can be given, she must have ended her voyage at the port named.

  (2) The port named in the charterparty must be given the meaning which those persons using it as a port, shippers of goods, charterers of vessels and shipowners, would give it.

  (3) The physical limits of a port afford no reliable guide, for the physical limits, as indeed the pilotage limits, may extend far beyond the limits of what those using it would regard as the port.

  (4) The area of some ports may be defined by law . . .

  (5) A vessel has not reached her port of destination until it has ended its voyage within the port, either in its legal, or, if it differs, in its commercial sense. If it is refused permission and ordered to wait outside the port by the port authority it is not an ‘‘arrived ship’’.

  (6) If it is within the port in its legal sense it does not follow that it is within the port in its commercial sense.

  (7) Brett MR’s definition in Steamship Garston Co v. Hickie & Co (supra) and his reference to port discipline may be useful in determining what are the limits of the port in its legal sense but port disciplining may be exercised and submitted to over a wider area than the port in its commercial sense.

  (8) Under a port charterparty a vessel has arrived when

  (i) if it can proceed directly to a berth or dock, it has arrived there and

  (ii) if it cannot do so, it has reached that part of the port in which vessels waiting to load or discharge cargo usually lie before moving directly to a dock or berth. At that part of the port she can be effectively placed at the charterer’s disposal for loading or unloading and that part of the port is to be regarded as part of the port in its commercial sense.

  (9) If within the port though not for some reason at the usual waiting place, a ship may still be an ‘‘arrived ship’’ if, at the place where she is, she can be effectively placed at the disposal of the charterers.

  (10) The ‘‘usual place’’ may be changed by a port authority or by a regulation. If, for some reason due to the conditions of the port and not of the ship, a vessel wishing to wait at the usual waiting place is ordered to lie elsewhere by the port authority, I think, though the question does not arise for decision in this case, that she ought to be regarded as an arrived ship.

  3.106 在他的发言中,Dilhome子爵就法律要点总结如下:

  (1) 根据港口租船合同,要成为抵达船,就是到达一个可以递交有效的装货/卸货准备就绪通知书的地方,而且已在指定的港口结束了航程,这才能算抵达船。

  (2) 租船合同中指定的港口,应是托运人、承租人和船东等把它当做港口使用时,并赋予它港口的含义。

  (3) 港口的有形范围并不是一个可靠指引,因为其实质范围例如作为领航员范围可能延伸到很远的地方,这一地点远超出一般人士当做港口使用的界限。

  (4) 某些港口的区域范围可以是由法律规定的……

  (5) 船舶只有在抵达港内并完成其航程——法定港口区域内,或者在有区别的情况下,在港口的商业区域内,才算抵达了目的港。如果她被港口当局拒绝进港而奉命在港外等候的话,就不能算‘抵达船’。

  (6) 如果她所在的是法律意义上港内,这并不能代表她已经在商业性的港口区域之内。

  (7) 上诉法院院长Brett大法官在Steamship Graston Co v. Hickie & Co—案的判决中对港口的定义和所提及的港口规定或许在确定港口的法定范围方面有借鉴作用,但是行使和遵守港口规定的区域可能会比港口的商业性区域更大的范围。

  (8) 根据港口租船合同,船舶满足了下列条件才算抵达:

  (i) 她已经驶抵了她能够直接驶抵的泊位或码头,而且

  (ii) 如果不能这样做,在直接移往码头或泊位之前,她已经抵达了船舶通常所在的装/卸货等候的港区。在此,她可以被有效的支配进行装/卸货,则这个区域就被认为是该港的商业性区域。

  (9) 如果由于某些原因船舶是一直都在港内但不在通常的等候区,则只要她在那里也能受承租人的有效支配,她仍然可以是‘抵达船’。

  (10) ‘通常的地方’也可能被港口当局或某个规定所改变。如果由于港口而不是船舶的条件限制,欲进入通常等候区的船舶却受港口当局指示在别处等候,我认为,尽管本案未出现这种情况,她应被视为抵达船。

  3.107 In Federal Commerce & Navigation Co Ltd v. Tradax Export SA (The Maratha Envoy), an attempt was made unsuccessfully to widen the guidelines set out above so that a vessel anchored at the usual waiting place would always be considered an Arrived ship under a port charter, whether the waiting place was inside or outside the port limits. This approach was firmly rejected by the House of Lords.

  3.107 在Federal Commerce Navigation Co Ltd v. Tradax Export SA(The Maratha Envoy)案,所涉及的港口租船合同,企图扩大上述指引的适用范围——锚泊在港口通常等候地方的船舶,不论该等候区域是在港内还是港外,该船都应视为抵达船,所做的努力未获成功,这种观点被上议院坚决驳回。

  3.108 In that case, the Maratha Envoy was ordered to Bremen after lightening at Brake on the River Weser. The dispute concerned whether she was an Arrived ship for Brake when she anchored at the Weser lightship, which was the usual waiting area for the four Weser ports but outside the port limits of Brake. Whilst waiting at the anchorage, she moved upriver to Brake on the flood tide, turned in the river off the port of Brake and went back to the anchorage, as anchoring in the river in or near the area of the port was forbidden. The manoeuvre was said by Lord Diplock to have been variously described as ‘‘showing her chimney’’, ‘‘a charade’’ and ‘‘a voyage of convenience’’. The reason given by Donaldson J at first instance why a voyage of convenience did not serve to make the Maratha Envoy an Arrived ship at the port of Brake was that the essential feature of an Arrived ship was that the voyage should have ended and the vessel be waiting. This never happened in the case of the Maratha Envoy.

  3.108在该案,Maratha Envoy轮被指示在德国Weser河内Brake港减载后再驶往Bremen/不来梅(注意:Bremen在最上游,不来梅港/Bremerhaven在最下游Weser河口处,从上游到下游依次是:Bremen、Brake、Nordenham和Bremerhaven)。所产生的争议是:当该轮抵达了Weser灯船在此抛锚,该处也是Weser河内4个港口的通常等候地,但在Brake港界之外,对于Brake港,她是否是抵达船?因为在河内或距港口很近的地方禁止锚泊,所以在抛锚等候时,她在涨潮就往上游移往Brake港,在Brake港外又折回到原地拋锚。船舶的机动策略被Diplock勋爵以不同形式地描述为‘在展示她的烟囱/放烟雾’、‘游戏表演’以及‘航次之便利’等等。正如初审Donaldson法官所说的理由是:为什么航次便利的原因并不足以使Maratha Envoy轮成为到达Brake港的抵达船?这是因为作为一艘抵达船的根本特征是她的航程本应该已经结束和她正在等候。但Maratha Envoy—案的情形并非如此。

  3.109 In the Court of Appeal, it was suggested for the first time that arrival at the Weser lightship was itself arrival at the port of Brake, although some 25 miles separated them and the lightship anchorage was outside the legal, fiscal and administrative limits of the port. This suggestion found favour with a majority of the court, who were prepared to regard the rationale of the test laid down in The Johanna Oldendorff as based exclusively upon the vessel being ‘‘as effectively at the disposal of the charterer for loading or discharging while at that waiting place as she would have been if waiting in the immediate vicinity of the berth’’. Whilst conceding that this approach might have much to be said for it if the chartering of ships were a recent innovation instead of one of the earliest forms of commercial contract, nevertheless the House of Lords rejected it. The views of the House were given by Lord Diplock, who said that whilst, until The Johanna Oldendorff, there might have been uncertainty under a port charter as to where within the named port a ship must be in order to complete the voyage stage, there was legal certainty that neither in port nor berth charter was the voyage stage brought to an end by the arrival of the ship at any waiting place short of the limits of the named port. He continued:

  Where charterers and shipowners as part of their bargain have desired to alter the allocation of the risk of delay from congestion at the named port which would otherwise follow from the basic nature of their contract, they have not sought to do so by undermining whatever legal certainty had been attained as to when a voyage stage ends. Instead they have achieved the same result without altering the basic nature of the contract, by inserting additional clauses to provide that time should begin to run for the purposes of laytime or demurrage if, although the voyage stage is not yet ended, the ship is compelled to wait at some place outside the named port of destination until a berth falls vacant in that port.

  3.109在上诉法院,最初曾有人提议,尽管两者相距约25海里之遥,而且该灯船锚地又在该港法定的和财政、行政管辖范围之外,但是抵达灯船本身就算是抵达了Brake港。该提议得到了大多数法官的支持,他们准备把在The Johanna Oldendorff—案所确定的准则——在承租人的有效支配下,为了装/卸货,船舶在等泊地点如同她本应该在临近泊位近旁一样——作为到达船舶的唯一基础。如果说船舶租赁是近年来用于取代早期商业合同格式的一种新生事物,尽管承认这种处理方法还有值得商榷的之处,然而,上议院还是否决这一方法。上议院的观点是由Diplock勋爵(其它4位只是简单地同意)给出的,他说:尽管在The Johanna Oldendorff—案之前,在港口租约中有关一艘船舶为了结束航程阶段应该在指定港口内泊处于何处的这个问题还存在某种不确定性,然而不论港口租约或泊位租约都没有规定船舶到达了任何等泊地点而没有达到指定港口范围就算结束了航程阶段,法律在这一点上肯定的。接着他又说:

  作为合同谈判的双方,承租人和船东如果想要改变在指定港口内因拥挤而引起的延迟风险的分配安排,而又不必遵循所订合同的基本性质,同时他们也不用试图去打破已有的关于何时才算航程阶段结束方面的法律的肯定性。相反,通过在合同中插入一项附加条款本可以达到同样的结果而又不用变动合同的基本性质。这项条款规定:尽管航程阶段尚未结束,如果在该港口泊位空出以前,船舶被迫在指定目的港外某一地点等泊,则此时装卸时间或滞期费即可开始计算。

  3.110 An interesting illustration of some of the criteria set by Viscount Dilhorne in The Johanna Oldendorff is provided by London Arbitration 5/90. Here, the ship in question was ordered to Haldia in India which, although a separate port, came under the aegis of the Calcutta Port Trust. Notice of readiness was given by the vessel on arrival at the Sandheads anchorage, some two hours’ steaming from Haldia, in accordance with commercial practice. Sandheads was, however, outside the legal limits of the jurisdiction of the Calcutta Port Trust, although they exercised de facto control of the anchorage, giving orders as to anchoring and arranging pilots. This, the arbitrator held, was sufficient and she was an Arrived ship.

  3.110在报道的1990年第5号案,对Dihorne子爵在The Johanna Oldendorff案中所确定的一系列准则做了生动的展示说明。其中,争议船舶被指示前往印度东岸Haldia港,尽管是个独立的港口,却受加尔各答港务局管辖。该轮驶抵还距Haldia港两小时航程远的Sandheads/沙头角锚地按商业惯例递交了准备就绪通知书。尽管Sandheads锚地在加尔各答港务局的法定管辖界限之外,然而却对该锚地行使事实上的控制权,并给予有关锚泊和引航安排方面的指令。因此,仲裁员裁定,该轮足以被认作是抵达船。
  
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