CHAPTER 3 第3章
Commencement of laytime 装卸时间的起算
3.485 Having said that, the textbooks were of little assistance on this occasion, seeming to concentrate on ‘‘always accessible’’ being synonymous with ‘‘reachable on arrival’’, ignoring its possible application to departure from the berth, as did the Voylayrules 1993 (but see the deﬁnition in Baltic Code 2007 quoted above). The tribunal inferred that this meant that the charterers, by agreeing ‘‘always accessible’’ terms, were under an obligation to provide a berth which was available immediately on arrival but that that particular regime did not apply after the ship was actually in berth, when the normal charterparty provisions as to laytime would apply.
3.486 That there had been no academic discussion of the point, or that it had not been considered by the authors of the Voylayrules, seems a rather weak basis to draw the inference the tribunal did. However, the tribunal then went on to consider dictionary meanings of ‘‘accessible’’ and concluded that none had made any mention of ‘‘access from’’ as opposed to ‘‘access to’’. They did not consider what effect the addition of the word ‘‘always’’ might have.
3.487 In The Forum Craftsman, Hobhouse J said:
The word ‘‘always’’ imports an absence of qualiﬁcation and is often used for that purpose in the drafting of exceptions clauses.
Applying this to the phrase ‘‘always accessible’’, the question becomes: does it mean the berth itself should be able to be approached by any vessel of the size of the vessel in question during the period of loading/discharging (or could be but for the presence of the berthed vessel); or is it more restricted in meaning, as the arbitral tribunal held, and means only that the particular vessel must be able to get to the berth when it wishes to do so?
3.487在The Forum Craftsman案，Hobhouse法官说：
3.488 The tribunal had a further reason for ﬁnding as they did based on the High Court decision in The Kyzikos, where Webster J held that the expression ‘‘always accessible’’ did not mean that because fog or other weather conditions prevented the vessel from safely approaching the berth it was not accessible. However, on that point the subsequent decisions in The Fjordaas and The Sea Queen went the other way and, in relation to a ‘‘reachable on arrival’’ provision, held that bad weather was within the protection afforded by the phrase. On this point there is no logical reason why different considerations should apply between the two phrases and it is suggested that the Fjordaas and Sea Queen decisions are the ones that should be followed in relation to ‘‘always accessible’’.
3.488仲裁庭还认为他们有理由做出如此认定是基于高院在The Kyzikos案中Webster法官对‘always accessible’这一表述方式的判决，即该短语并不是指由于大雾或其它天气情况（阻止船舶安全进入泊位）才导致泊位是不可自由进入的（即还有其它情况）。然而，对于那一点，后来的案例The Fjordaas 和The Sea Queen却使用另一种方法处理，是有关‘抵达即立即马上靠泊’条文，它们的判决是恶劣天气是在这种短语提供的保护之下。关于这一点，这里没有逻辑上的理由为什么要在这两个短语之间适用不同的考虑，所以，这建议，就有关‘始终可以自由进入的’方面的争议，这两个The Fjordaas 和The Sea Queen案例的判决是应当遵循的。