《装卸时间与滞期费》第3章-装卸时间的起算-68
日期:2019-05-27 阅读:443
  《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

  3.429 In Ionian Navigation Co Inc v. Atlantic Shipping Co SA (The Loucas N), the Court of Appeal had to consider the applicability of a Centrocon strike clause to waiting time. The Loucas N, the ship concerned, was chartered for a voyage from Caen and Antwerp to Houston, New Orleans and Tampa. She was delayed off Caen for a little over a day by congestion and off Houston by a combination of a strike and congestion following the strike. On these facts, the Court of Appeal held, dismissing an appeal by the charterers, that time had been lost at both ports waiting for a berth and that the time lost clauses which the charter contained were independent of the Centrocon strike clause under which, had the vessel been in berth, both the time lost due to the strike and due to congestion would have been excused. Of the relationship between the clauses Lord Denning said:

  On this point Mr Rokison stressed the words ‘‘lost in waiting’’, which show, he said, that you had to look for the damage which the owners had suffered by the vessel being delayed outside. I cannot accept this contention. If anyone had asked the master of this vessel, when she was waiting outside Houston, ‘‘What are you waiting for?’’, he would say: ‘‘I am waiting for a berth.’’ No matter what was the cause of the waiting; no matter whether it was a strike or congestion or anything else at the port, he would say that he was waiting for a berth. That simple illustration shows that the time lost was lost in waiting for a berth.

  3.429在Ionian Navigation Co Inc v. Atlantic Shipping Co SA (The LoucasN)案,在金康租船合同中并入一条标准谷物租船合同中的罢工条款,上诉法院不得不考虑其是否适用于等泊时间的问题。有关船舶Loucas N轮被出租由法国Caen和比利时安特卫普前往美国休斯顿、新奥尔良和坦帕港。该轮在Caen港由于港口拥挤被延迟了1天多一点的时间,后来到了休斯顿又遇上了联合大罢工,接着又是罢工后遗症港口拥挤。基于这些事实,上诉法院驳回了承租人的上诉请求,判定:在这两个港口因等泊而损失的时间和租船合同中的等泊时间损失条款是独立于Centrocon罢工条款,根据后者罢工条款,如果船舶靠泊的话,其所遇到的港口拥挤和罢工时间,均应予以扣除。(但根据前者时间损失条款,在这两港等泊所损失的时间另外计算,相当于变相又加上这些时间。)有关这两个条款之间的关系,Denning勋爵说:

  在这点上,Rokison先生(承租人的大律师)着重强调了‘在等待的损失’这些词语,他还说,这表明,你必须寻找船东因在港外延迟所遭受的损失(他认为,因有罢工除外,船东没有损失)。我不同意他的看法。当该轮在休斯顿港外等候时,任何一个人问船长:‘您在等什么呢?’他都会回答:‘我在等泊。’不论是什么原因造成的等候,也不论是由于该港罢工、拥挤或是其他什么原因,他都会说他在等泊。显而易见,这实例显示损失的时间就是为了等泊的。

  3.430 Of this type of provision, Roskill LJ said in The Johanna Oldendorff in the Court of Appeal:

  . . . the sole question would be what the length of time was during which the vessel was waiting for berth and that (on the authorities) would be determined by reference to the calendar time so occupied. The exceptions in the laytime clause would not exclude from such calendar time Sundays, holidays and other periods excepted from laytime.

  3.430有关这种条款,Roskill大法官在上诉法院审理The Johanna Oldendorff —案时曾经这样说:

  ……唯一的问题是船舶的等泊时间有多长,而且在先例中,还要参考它所占用的日历日来决定。在装卸时间中的除外事项,并没有从这些(等泊条款)日历时间中被排除在外,例如,星期日、节假日以及其它装卸时间除外的期间。
  


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