《装卸时间与滞期费》第二章——装卸时间条款-连载(二十七)

2018-05-30701
  《装卸时间与滞期费》第6版

  Laytime Clauses 装卸时间条款

  2.183 In each case the laytime clause provided for an average rate (in the singular) of discharge. Commenting on this Pearson J said:

  Then the clause has the words ‘‘an average rate’’ suggesting one calculation, whereas ‘‘average rates’’ in the plural, or ‘‘average rate at each discharging port’’, or some similar phrase, could have been used to suggest two separate calculations if that had been the intention.

  Pearson J later went on to endorse what Croom-Johnson J said in United British Steamship Co Ltd v. Minister of Food:

  This is, I think, after all is said and done, a perfectly simple situation. This is one adventure and one enterprise. If the parties wanted to make an agreement under which they were going to pay demurrage for delay at one point and only get one-third of the demurrage... for any time they saved at the other port, they could no doubt have framed an appropriate clause which would have produced that result.

  It is quite plain that they have not done it, and it seems to me that, looking at this charterparty as a whole, when I see ‘‘cargo to be discharged at the average rate of’’ so-and-so, I think those words really mean what they say. It looks to me as if it would have been so simple to say, ‘‘cargo to be discharged at the average rate of so-and-so at each port’’. But they never did it.

  In both cases, therefore, it was held that there should be a single laytime calculation.

  2.183在以上的每个案例中,装卸时间条款都规定了(单数的)平均的卸货率,Pearson法官是这样评述说:

  那么,条款中使用的词句‘平均速率’(单数)表明是计算一次,然而所用的短语‘平均速率’是复数形式的,或者用‘每个卸港的平均速率’,或者用其他类似短语的话,那么如果他们有这种意图,使用了这些短语就表明进行两种分开的计算。

  Pearson 法官后来又赞同Croom-Johnson法官在United British Steamship Co Ltd v. Minister of Food案中所阐述的观点,后者曾这样说:

  我认为,在全都被说过,做过之后,这应是一种相当简单的情况。这是一种冒险和进取。如果当事双方想签订一个协议,根据此协议,他们同意将因在某个地方延迟而支付滞期费,但,对于在其他港口所节省的任何时间只能得到三分之一的滞期费(即速遣费),毫无疑问,他们制订一个合适的条款并使之产生这样的结果。

  很显然,他们没有做到这一点,而且似乎对我来说,应从整体上查看租船合同。当我看到‘卸货率平均为’如此这样时,我认为这些词语就是真正表达了他们所说的。在我看来,好像本可以简单地说,‘在每一港口平均卸货率为某某数”。但是,他们却从未这样做过。

  因而,在这两个案例中均判定:装卸时间应单独地计算。
  


  2.184 In The Tropwave, the laytime provision was:

  . . . 1000 metric tonnes provided minimum 5 hatches or pro rata, if less than 5 hatches available, per weather working day.

  2.184 在The Tropwave案,装卸时间条文的规定是:

  ……每个良好天气工作日1000公吨,最少5个舱口,如果可以作业的舱口少于5个的话,按比例计算。

  2.185 At the commencement of discharge only four hatches were available and the arbitrator decided that the discharge rate was 800 tonnes per day. The buyers of the cargo contended that this could possibly necessitate in circumstances which they suggested that the largest hatch would have to be discharged at 500 tonnes per day to meet this overall rate and therefore this conclusion was wrong because the clause contemplated a discharge rate of 200 tonnes per hatch per day. Dismissing this argument, Parker J said:

  The argument is highly ingenious but it involves reading the clause as if it said 200 tonnes per hatch per day and it does not. It is an overall rate and the charterer or receiver is free to discharge in what order and at what rate he chooses. Since one hatch will very often if not always be longer than the others, the buyers’ construction would involve the result that the specified rate was seldom if ever 1000 tonnes even if five hatches were available at the outset. This is wholly inconsistent with the wording.

  2.185 在卸货开始时,仅有4个可作业舱口,仲裁员裁定:卸货率为平均每天800吨。货物的买方辩称说在当时的情况下,最大的舱口必须每天卸500吨才能达到这一总速率,因此,这一结论是错误的,因为条款规定,每天每舱口卸200吨。Parker法官驳回这一争议,他说:

  这一争议非常巧妙,但它牵涉到对此条款的解读,好像说是每天每舱口200吨,而又不是这样的。这是一个总速率,而承租人或收货人可以完全按照自己的速率和方式进行卸货作业。既然,如果某舱口不总是比别的长,总会有一个舱口会比别的舱口的作业时间要长,所以,对照买方的解释,即使刚开始有5个可作业舱口,也很少会达到规定的速率1000吨。这同字面上的意义完全不一致。

  2.186 In London Arbitration 8/96, the relevant charter provided for discharge at a rate of 2,000 mt per WWD of 24 consecutive hours. The charterers argued this should be reduced to 1,600 mt because one of the vessel’s six holds was occupied by other cargo. As the owners pointed out, 1,600 was not five-sixths of 2,000. The ship was described as having ‘‘minimum five holds/hatches’’ and there was no representation or warranty that all the ship’s hatches would be made available for this cargo. The tribunal therefore held that as there was no express provision altering the basis for calculating laytime and there was no obligation of which the owners were in breach, there was no basis for a claim for damages that could conveniently be calculated by an adjustment to the laytime allowed.

  2.186在报道的伦敦仲裁1996年第8号案中,有关租船合同规定卸货速率是每连续24小时良好天气工作日2000吨。承租人争辩说:因为该轮6个货舱中的一个被其他货物占用,就应该递减为1600吨。如同船东指出的是,1600不是2000的六分之五。已经规定船舶提供‘最少5个货舱/舱口’,而且没有任何陈述或保证要求所有的船舶舱口都能够用于装货。因此,仲裁庭判决:由于没有明示条文改变装卸时间计算的基本方法,船东也没有违反其义务,虽然可以通过调整所允许的装卸时间能够很方便地计算出损失赔偿,但这没有理论依据索赔这一损失。
  


  2.187 A similar effort to seek a reduction in the discharge rate was considered by New York arbitrators in The Sea Wind, LMLN 531, 16 March 2000. In this case, the charterers apparently chose to load in only three out of five available hatches and therefore sought to reduce the discharge rate accordingly. Their argument was rejected by the tribunal.

  2.187在2000年3月16日,《劳氏海事法律情报资讯》第531期,The Sea Wind纽约仲裁案中,对试图减少卸货率之类似的努力进行了认真的讨论。在该案,有5个可用作业的舱口,承租人明显只选择其中三个舱口装货,而且企图寻求相应地减少卸货率。他们的论点被仲裁庭否决。

  2.188 London Arbitration 3/99 concerned a vessel which had been fixed to carry two separate cargoes under different charters, although with the same shippers and both cargoes were loaded by the same stevedores who were to work under the direction and control of the master who was also to supervise and be responsible for stowage. Most of the vessel’s holds were to contain both cargoes. The original intention was that the cargoes be loaded consecutively but the owners agreed to allow both cargoes to be loaded simultaneously which meant there were a number of occasions when loading of the first cargo was prevented in one or more of the four holds allocated for it. The charterers argued successfully that time should be reduced pro rata for those periods when less than four hatches were made available.

  2.188 在报道的伦敦仲裁1999年第3号案中,所涉及的船舶是根据不同的租船合同被确定去装载2票不同的货物,尽管涉及相同的托运人和相同的装卸公司装载这2票货物,并是在船长的指导和监控下且船方负责监督和货物积载。大部分的船舶货舱都装有这2种货物。原先的意向是2票货物连续装载,但船东同意允许这2票货物同时装载,这意味着当装载第1票货物时,会有许多的可能的机会被其他4个货舱中的一个或多个货舱内配置的货物干扰。承租人成功地争辩说,对于少于4个可以进行作业的舱口这段时间,应该按比例减少。

  2.189 Similar problems often occur due to cargo gear breakdowns which mean that one or more hatches cannot be worked. The normal practice in such circumstances is either to reduce the loading rate, thus allowing more time or to reduce the time used by pro rating the number of hatches available against the number that should be available. The end result is the same.

  2.189 由于起货设备故障导致一个或多个舱口不能作业时,也会出现类似的问题。在这种情况下,通常的做法是要么降低装货率,从而允许更多的时间,或者按照实际可用的舱口和本应该可用于装货的舱口的比率减少所使用的时间。最终的结果是相同的。
  


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