CHAPTER 3 第3章
Commencement of laytime
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  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.
3.105 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.
3.106 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.
(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。
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：
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。