2018-05-23
1321 Laytime Clauses 装卸时间条款
Rate per hatch
每舱口的速率
2.164 The usual sort of clause might be:
At the average rate of... tons per hatch per working day.
2.164这类条款通常的类型是这样规定：
每一工作日每舱口平均…… 吨。
2.165 The question of whether this should be construed the same as clauses referring to a rate per working hatch fell to be considered by the Court of Appeal in Lodza Compania de Navigacione SA v. Government of Ceylon (The Theraios).
2.165关于解读这一条款是否应该与每作业舱口速率的含义一样的问题，上诉法院曾经在 Lodza Compania de Navigacione SA 诉 Government of CeyIon(The Theraios)—案中讨论过。
2.166 In the original arbitration proceedings out of which the appeal arose, the arbitrators held that an average rate per hatch per day meant simply what it said, and that to find the total daily rate all that was necessary was to multiply the rate by the number of hatches. If the total quantity loaded was then divided by this figure, this produced the allowed laytime.
2.166在该案上诉前的最初仲裁诉讼时，仲裁员裁定所谓每天每舱口的平均速率简单地说就是它本身所表达的那样，并判定要找出每天总的速率，全部所需要做的就是将该速率乘以舱口数。将装载的全部货量除以这个数字，就可得出允许的装卸时间。
2.167 In the High Court, Mocatta J held that this was not so and the way to determine the laytime allowed was to use the Sandgate formula as with rates per working hatch, where the laytime allowed was calculated by dividing the largest quantity loaded in any one hold by the agreed rate. This view was unanimously rejected by the Court of Appeal, who reinstated the judgment of the arbitrators. Salmon LJ said:
All that matters to the owners is the actual time occupied by those (loading and discharging) operations.... Since this vessel has five hatches, the clause seems to me to be a roundabout way of saying that the vessel shall be loaded and discharged at an average rate of 600 tons per day, that is to say five hatches at 120 tons per hatch. This meaning could certainly have been more clearly expressed by saying simply that ‘‘the cargo is to be loaded and discharged at the average rate of 600 tons a day’’. But charterparties are hardly renowned for the invariable clarity and simplicity of their language.
And Widgery LJ commented:
In the absence of any express reference to ‘‘working’’ hatches and of any compelling need to imply that adjective in order to give business efficacy to the contract, I am unable to say that the arbitrators erred in law in adopting the owners’ construction of the charterparty.
2.167在高等法院，Mocatta法官判定：不应该这样算，确定允许的装卸时间应该按照Sandgate准则，即用最大的货舱量除以协议规定的每作业舱口速率，方可以得出允许的装卸时间。这一观点遭到了上诉法院的一致否决，他们重新恢复了仲裁员的裁定，Salmon大法官说：
船东所关心的事情就是那些作业（装货和卸货）所实际占用的时间……既然该船舶有5个舱口，在我看来，该条款似乎拐弯抹角地说该轮每天的平均装卸率为600吨，就是说5个舱口，每个舱口 120吨。当然，这一意思本应该可以更明确地表述而简单地说：‘货物的装卸率为平均每天600吨’。但是，如果租船合同的语言始终是很清晰明了和简单浅显的话，它就很难那样著名了。
另外，Widgery大法官还补充道：
如果对‘作业’舱口没有任何明确的规定，而且也未强制性地要求暗示这一形容词是为了给予合同商业上的功效的话，我就不能说仲裁员采纳船东对租船合同的解释在法律上是错误的。
2.168 In London Arbitration 16/03 the tribunal had to consider a provision that provided for a discharge rate of ‘‘150 mt per hatch per weather working day’’. The vessel had three hatches and was due to discharge at three different ports. The stowage plan was agreed in advance and this had the inevitable result that only one hatch would be discharged at each port. The charterers argued that this effectively turned the vessel into a one-hold vessel per port so that the discharge rate should be 150 metric tonnes per weather working day. The tribunal however held that it was not necessary to imply the adjective ‘‘working’’ into the laytime provision to give it business efficacy. Had they wished, the charterers could have simply negotiated for a rate of 150 per day. However since the vessel had three hatches, the rate agreed was 450 metric tonnes per day. In fact, the rate achieved was at least twice that stipulated.
2.168 在2003年第16期伦敦仲裁一案中，仲裁庭不得不考虑这一条文，其规定卸货率是‘每个舱口每个良好天气工作日 150公吨’。该船舶有三个舱口和各自在三个不同的港口卸货。配载图是事先商定同意的，因而必然导致的结果是在每一个港口就只有一个舱口卸货。承租人争辩说这事实上是有效地将该轮变成每个港口一个货舱的船，因此卸货率应为每一良好天气工作日150公吨。然而，仲裁庭判决这没有必要一定把形容词‘作业的’默示在装卸时间条文中以给予其商业效率。如果他们希望如此，承租人本应该简单地商定为每天150公吨卸货率。所以，既然该船舶有3个舱口，协议卸货率就是每天450公吨。实际上，真正达到的卸货率是协议规定的2倍。
2.169 The Charterparty Laytime Definitions 1980 provide:
‘‘PER HATCH PER DAY’’—means that laytime is to be calculated by multiplying the agreed daily rate per hatch of loading/discharging the cargo by the number of the ship’s hatches and dividing the quantity of the cargo by the resulting sum. Thus
A hatch that is capable of being worked by two gangs simultaneously shall be counted as two hatches.
2.169《1980年租船合同装卸时间定义》中规定：
‘每天每舱口’是指装卸时间将按照最后总的货物数量除以双方约定的每个装卸货物舱口的日装卸效率与该船舱口数的乘积加以计算。即：
2.170 The laytime provision considered in London Arbitration 30/92 provided for a loading rate of: ‘‘500 metric tons per hatch... two hatches . . . Basis two hatches’’. The ship had four holds and seven hatches. She had twin hatches serving No 2 hold and it was that hold in which it was intended to load the cargo. The charterers said that the laytime calculation should be worked out as if only one hatch had been provided, because it was not possible to work each hatch with a double gang as they had intended, i.e. a total of four. The tribunal cast doubt on whether this would have been feasible even if two hatches each serving a single hold had been designated for the cargo. However, they decided the case in favour of the owners on the basis that the charter simply referred to two hatches and that was what the charterers got.
2.170在报道的伦敦仲裁1992年第30号案中讨论的装卸时间条款规定：装货率为每舱口500公吨……两个舱口……标准2个舱口。该船舶有4个货舱7个舱口，其中2号货舱是平行双舱口，也是计划要装货的舱。承租人声称：在计算装卸时间时应该好像是只按1个舱口计算那样，因为每一个舱口不可能像他们原来打算的那样用两个工班作业，即总共四个班。仲裁庭的质疑是：即使这两个舱口，每一个舱口服务于一个单独的已经指定要装货的货舱，这样作业是否切实可行？然而，他们对本案的判决还是对船舶所有人有利，依据是，租船合同中仅仅提到两个舱口，而且，这也是经承租人同意的。
2.171 This case should be contrasted with the definition of ‘‘per hatch per day’’ in the Voylayrules 1993 which state:
‘‘PER HATCH PER DAY’’ shall mean that the laytime is to be calculated by dividing (A), the quantity of cargo, by (B), the result of multiplying the agreed daily rate per hatch by the number of the vessel’s hatches. Thus:
Each pair of parallel twin hatches shall count as one hatch. Nevertheless, a hatch that is capable of being worked by two gangs simultaneously shall be counted as two hatches.
These rules of course apply only if specifically incorporated. The provision that, prima facie, a twin hatch shall count as one hatch is an addition to the corresponding definition in the Charterparty Laytime Definitions 1980.
2.171 现将本案与《1993年程租合同装卸时间解释规则》中‘每日每舱口’的定义进行对照。后者规定：
‘每日每舱口’是指装卸时间的计算是用货物数量（A）除以每天每舱口约定装卸率乘以船舶舱口数的乘积（B）。即是：
每对平行的双舱口按照一个舱口计算，但能够由2个工班同时进行作业的舱口数应算作2个舱口。
当然，这些规则仅适用于它们被明确地并入合同的情况。从表面上看，这种双舱口应该计为一个舱口的规定是《1980年租船合同装卸时间定义》中相应的定义的附加部分。
2.172 Had these definitions been included in the arbitration case considered above, the end result would, however, have been the same. The prima facie presumption that a twin hatch should count as one hatch would have been rebutted by the fact that it was capable of being worked by two gangs, although not four as contended for in that case. From a commercial point of view it makes sense to say that a twin hatch should count as two hatches only if it is capable of being worked by two gangs simultaneously.
2.172即使这些定义被包含在上述仲裁案例中，然而，其结果仍是一样的。表面上一个双舱口应该计为一个舱口的推论，已经被它（该双舱口）是有能力进行两个工班作业的这样的一个事实所推翻，虽然不是这个案件中所争论那样有4个工班。从商业角度看，更有意义地说：只要是它有能力同时进行两个工班作业的情况下，一个双舱口才应该按照两个舱口进行计算。
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