2018-07-21
1635 
在航运实务中，涉及到争议的情况下，对合同条款的恰当解读将显得异常重要。如果出发点错误，那么将直接导致索赔或扣除不正当，即非法。比如，出租人未按合同要求发交船通知，承租人是否有权利拒绝接船？还是只能接了然后开始索赔？再如，交船的时候货舱未达到要求，那么是否可以拒绝接船？还是接了以后可以主张停租？尤其是后一种情况，很多人不会选择拒绝接船，而是会主张停租。那么主张停租是否正当呢？这还得看租船合同的停租条款是如何规定的，是net time loss条款，还是period条款。
为进一步理清这里面的厉害关系，笔者从几天前，前来咨询的人，她们所遭遇的问题说起。据她介绍，争议的情况如下：
4月30号将近2000的时候E轮的船长发ETANotice 预计5月2号1200到CJK会把船交船，然后他们的装港代理就安排了2号2100的引水。但是第二天下午，也就是5月1号船长给出租人他们发了交船通知，交船时间为1130；但是此时船舶并未在长江口锚地，而是开往外面去排洗舱水，回到CJK的时候已经是1号晚上2354了。然后船在CJK等了将近一天，在1952起锚去接的引航员靠泊。5月3号到了镇江港靠泊后，1630开始验舱，1730验舱未能通过，所有的船员包括船长下去重新把舱清理了一遍，到1930通过先清出来的4，5号两个舱，最终在2130通过全部货舱。
承租人认为在长江口期间应该停租，但出租人不同意。
缕清一下关系，时间节点如下：
4月30日晚上约2000LT，船长发了基于5月2日1200LT基于CJK的预计交船通知。
5月1日下午，船长发了交船通知，时间为5月1日的1130LT。
之后船长将船开到外面去排洗舱水，于5月1日晚2354LT回到CJK锚地。
5月2日的1952LT起锚，5月3日下午靠泊镇江。1730LT验舱不通过，1930LT通过4，5舱，2130全部通过验舱。
合同的相关条款如下：
-Delivery: Owners to give Charterers 5/3 days approximate delivery notice and 2/1 day(s) definite notice.
-ON DELIVERY VSLS HOLDS TO BE CLEAN, SWEPT, WASHED DOWN AND DRIEDUP SO AS TO RECEIVE/CARRYCHTRS INTENDED CARGO IN ALL RESPECTS FREE OF SALT, LOOSE RUST SCALE ANDPREVIOUS CARGO RESIDUES TO SATISFACTIONOF THE SHIPPERS INDEPENDENT SURVEYORS. SHOULD VSL NOT BE APPROVED BY THESURVEYOR THEN THE VSL TO BE PLACED OFF HIRE FROM THE TIME OF FAILURE OFINSPECTIONS UNTIL THE SAID INSPECTION IS PASSED AND ANY CLEANING EXPENSES INCLBUNKERS CONSUMED DURING OFF HIRE INCURRED THEREBY TO BE FOR OWNRS ACCOUNTUNLESS VSL PARTIALLY ACCEPTED IN WHICH CASE HIRE TO BE PAID PRORATA.
从这里可以看出，船长在4月30日晚上发预计交船通知，交船时间为5月2日中午，那么4月30日晚上发的通知最多只能算是2天的交船通知。而按合同，2天的交船通知是definite的交船通知。但5月1日船长又突然发了交船通知，这样直接导致船长所发的交船通知不准，出租人没有按合同要求来发所需要的预计交船通知。
其实，在5月1日交船后，船舶离开CJK到外面去排洗舱水，那么在交船的当时，船舶还未备妥，达不到交船的条件。但那时候，承租人并没有反对（后来承租人提供邮件说明已经反对了，不同意接船），而是默认接了船；只是后面排洗舱水的时间及因安排引水的实际损失要求停租。关于停租的问题，之前文章已经多次解释，合同格式为NYPE46，停租条款属于nettime loss条款，那么在长江口期间，似乎没有权利停租。但在靠泊后验舱不通过的时间，可以按合同条款（期间停租条款），从验舱不通过到验舱通过，整个期间停租；如果部分验舱通过，按比例停租。
基于此，笔者协助承租人草拟了如下电邮，以便事后来对抗出租人。
Dear All,
Good day!
Assume the Owners may recall that the Master sent ETA Notice on 30th/Apr o/a 2000hrs basis CJK for delivery o/a 2nd/May at 1200hrs,Charterers then book pilot on 2nd/May at 2100hrs basis vessel’s ETANotice.
The Master tendered delivery notice suddenly on 1st/Mayat 1130hrs and then his vessel sail away CJK to discharge hold washing water and return CJK on 1st/May at 2354hrs.
The vessel then stay at CJK anchorage until 2nd/May o/a1952hrs, after that heave up anchor and proceed to pilot station to pick up pilot.
But much regret that the vessel failed hold inspection at 1730hrs on 3rd/May after she got alongside at Zhenjiang.
The crews then cleaning hold again, and complete C/H No.4 & 5 o/a 1930hrs and passed hold inspection by then.
Basis above true situation, Charterers hereby draw Owners to pay their keen attention to below charterers’ comments.
1、 delivery notice
As per governing this charterparty, which provides:
Owners to give Charterers 5/3 days approximate delivery notice and 2/1 day(s) definite notice.
The Owners/Master only serve approximate 3 days notice or 2 days definite notice on 30th/Apr basis delivery o/a 2nd/May.Thus the Owners/Master failure to serve 5 days approximate and 2/1 days definite notice.
It’s well established in The “Great Creation” case and 7th Edition 《Time Charter》Chapter7- Delivery, 7.14 and 7.21 as below, Owners must serve required notice if it’s stipulated in charterparty.
7.14 Where the owners fail to give the required notice narrowing the laycan, but delivery is accepted, the owners are in breach of charter atdelivery because it occurs without the required laycan narrowing notice havingbeen given at the proper time: see Rix, J.’s comments in the context of adispute about redelivery notices in TheLiepaya[1999] 1 Lloyd’s Rep. 649, at page 672.(This may arise even if the charterers are entitled to refuse such a delivery,as charterers may always choose to accept a defective tender of delivery: seegenerally paragraph 7.53 et seq.,below.) Similarly, where the owners give notice, but that notice does notsatisfy the requirements of the charter (for example, where they give threedays’ notice instead of seven), there is probably no breach of charter until theship is actually delivered: see, again, by analogy, The Liepaya at page 672. Whereno notice, or no proper notice, is given before delivery, the charterers willbe entitled to damages that will put them in the position in which they wouldhave been, if proper notice had been given prior to the actual delivery.
7.21 Even on the basis that compliance with any requirement for advance notice of delivery is not a condition precedent to avalid delivery, the charterers may still be entitled to damages if the ownersfail to serve the required notices. The question of when breach occurs and thecharterers’ measure of damages are discussed inparagraph 7.14, above.
Thus, Charterers are entitled to claim damage due to Owners fail to serve the required notice. If Owners/Master serve all required notice, then the charterers may book pilot on 1st/May or the charterers may decide to accept valid delivery until the Owners/Master to serve all required notice and make vessel ready.
2、 Hold condition
In respect of hold condition clause, which reads:
-ON DELIVERY VSLS HOLDS TO BE CLEAN, SWEPT, WASHED DOWN AND DRIEDUP SO AS TO RECEIVE/CARRYCHTRS INTENDED CARGO IN ALL RESPECTS FREE OF SALT, LOOSE RUST SCALE ANDPREVIOUS CARGO RESIDUES TO SATISFACTIONOF THE SHIPPERS INDEPENDENT SURVEYORS. SHOULD VSL NOT BE APPROVED BY THESURVEYOR THEN THE VSL TO BE PLACED OFF HIRE FROM THE TIME OF FAILURE OFINSPECTIONS UNTIL THE SAID INSPECTION IS PASSED AND ANY CLEANING EXPENSES INCLBUNKERS CONSUMED DURING OFFHIRE INCURRED THEREBY TO BE FOR OWNRS ACCOUNT UNLESSVSL PARTIALLY ACCEPTED IN WHICH CASE HIRE TO BE PAID PRORATA.
On delivery,Vessel’s holds to be clean, swept…the vessel to be placed off hire from thetime of failure of inspections until the said inspection is passed…
It’s clear that this is period off hire clause. And further as per authority inLondon Arbitration 24/16 (2016) 960 LMLN 2, In that case, clause 7 as below:
7. – Hold condition on arrivalat 1st loading port to be clean…and ready to receive charterers’intended cargo, all respects subject to the shippers surveyors’ inspection. Ifthe vessel fails such survey, the vessel to be placed off-hire from time of therejection until accepted in all holds, and any extra directly-relatedcosts/expenses/time therefrom to be for Owners’ account.
And Arbitrators held that the outcome of the arbitration depended on the proper construction of clause 7 of the charterparty. The clause could be conveniently divided into three parts,namely: (1) the clean holds on arrival warranty; (2) the period off-hire clause; and (3) the additional “directly-related” costs provision.
At the outset, the tribunal could not see any reason not to interpret each of those provisions inaccordance with its wordings and to give effect to the meaning of thosewordings.
As for the warranty, itswording was clear and the owners had admitted their breach of it.
As for the period off-hire provision, its meaning was also clear, namely that the vessel was to beoff-hire for the period commencing at the time she failed inspection and endingat the time she was accepted as clean. There was nothing unusual orunbusinesslike in such a provision; it set out how breach of the warranty wasto be calculated in terms of hire, and avoided the need to investigate whetheror not the charterers actually suffered a loss of time as a result of thecleaning.
As for the additional“directly-related” costs provision, that, too, was clear in its meaning and wasuncontroversial from a commercial point of view. It meant that if, inconsequence of the breach of warranty, the charterers did indeed suffer loss“therefrom” in terms of costs and expenses or time, then the owners were to beresponsible for that loss – provided such loss was “directly-related” to thebreach of warranty.
It was certainly possible thata breach of warranty of that type would give rise to delay in berthing. Itwould not always do so; it depended on the actual situation in the port at thattime, over which the owners had no control; but if it did do so, then theowners had to take the risk of that – provided the delay in berthing was“directly-related” to the breach.
In the present case, the delayin berthing, at least until 22.15 on 17 March, was directly related to thevessel having to re-enter the queue for berthing once her holds had beenaccepted on 12 March. In other words, there was no reason for her delay inberthing other than her delayed entry into the berthing queue.
Once the tribunal had held thatthe owners were responsible for the additional 102.25 hours’ delay incurred,there was no reason, either on the wording of clause 7 or more generally, whythe owners should be entitled to discount that liability by the loss of timeunder the off-hire clause. The off-hire provision and the additional“directly-related” costs provision were separate provisions, addressingdifferent periods of time and circumstances, and each should be interpreted inaccordance with its wording, without the need for cross-reference. The breachof warranty gave rise to time spent in cleaning and, as a result, time spent inwaiting for a berth. There was no reason why the later period of time should bediscounted by the earlier period. The word “extra” pointed to something in addition,not to a set-off or net result.
Accordingly, the owners’ claimfor the balance of hire failed and the charterers were entitled, in addition tothe off-hire period of 70 hours, to compensation for the additional 102.25hours that the vessel spent in waiting for her berth after her re-entry intothe berthing queue. That compensation took the appropriate form of beingrelieved of the obligation to pay hire for that time.
Consideration the Master tendered delivery notice on 1st/May,but his vessel still not yet ready, with hold washing water on board and holdsare still not yet clean enough to load charterers’ cargo, therefore the Ownersbreach their warranty. The charterers are entitled to claim damage.
As the vessel is not ready, therefore this is not a valid deliveryon 1st/May, But even if charters accept delivery, the charterers arestill entitled to place the vessel off hire or claim damage thereby.
Basis above, Charterers hereby claim damage and equitable set offfrom hire basis below calculation:
Off hire/set off: 1130hrs/1st/May 2018 - 1952hrs/2nd/May2018
And off hire: 1630hrs -1930hrs/3rd/May 2018.
Hope above are clear and will be acceptable by the Owners.
邮件的大意内容为，出租人违反了合同条款，没有给予所需要的交船通知，租船有权索赔损失；其次，出租人违反了交船时候的保证条款，承租人有权索赔损失；同时因是期间停租条款，所以从验舱不通过到验舱通过整个期间停租。
这里面涉及到几个法律问题，第一，按合同要求给予交船通知，二是交船时货舱状况的保证。
通常情况下，按合同给予这些事前通知并不是有效交付的先决条件，也就是说即使出租人未按合同给予这些预计交船通知或者准确的交船通知，并不影响交船的有效性问题。这个问题可以参《TimeCharter》Chapter7- Delivery, 7.19,如下：
7.19 Where the owners fail to give the required notices, the question arises whether thecharterers may refuse delivery. In other words, must the owners give thestipulated notices before they can deliver the ship? The normal rule, it is suggested,is that the giving of due notice as required by the charter is not a condition precedent to a valid delivery.
但在另一方面，虽然事前通知不是有效交船的先决条件，但如果出租人未遵守，未给予所需要的通知，承租人可索赔损害赔偿。可以参《Time Charter》Chapter7- Delivery, 7.21,如下：
7.21 Even on the basis that compliance with any requirement for advance notice of delivery is not a condition precedent to a valid delivery, the charterers may still be entitled to damages if the owners fail to serve the required notices.
如在The Niizuru [1996] 2 Lloyd’s Rep. 66案中，Mance法官（当时是）在第73页判决书中说到，如果因为出租人未给予所需要的通知承租人想索赔的话，必须去证明错失了有价值的合同机会。
For these reasons, if charterers had been wrong on the first question, the onus would have been on them, as owners submitted, to prove that they had lost valuable employment opportunities as a result of not being given 25 days notice prior to Mar. 26, 1992. Somewhat ironically, the fact that owners' appeal on this second question would have succeeded, had it arisen, supports charterers'case on the first question, for reasons already explained.
The position under cl. 29 is no different. The breach lies in delivering the vessel without having given the proper notices in advance of such delivery.
《Time Charter》Chapter 7-Delivery, 在7.14也说明了这个问题，如下：
7.14 Where no notice, or no proper notice, is given before delivery, the charterers will be entitled to damages that will put them in the position in which they would have been, if proper notice had been given prior to the actual delivery. In practice, this means that they will probably have to show that they have lost valuable employment opportunities as a result of not being given the required notice.
还船通知的情况也类似，并不是先决条件，如果未遵守，只可以索赔损失。而关于交船时对货舱的保证条款问题，如仲裁判例仲裁员所说，在这里不再重复。
但出租人认为他们已经按合同发了所需要的交船通知，因此未违约；船上有洗舱水，也不影响有效交付船舶；同时依据代理提供的事实记录，延误是因为大雾，承租人没有损失，所以不得停租。出租人回复的电邮如下：
Good day!
Owner’s opinions as below:
1) Regarding delivery notice, owner sent 5days delivery notice on 25th Apr as below
//qte//
Owner here tender 5 days notice of vsl delivery dlosp CJK forapril 30th barring all unforeseen circumstances
//unqte//
& 4/3/2/1 delivery notice on27th Apr as below
//qte//
Till this morning, abt 6000mt cargo discharged and sub vsl’s etdis 30th Apr, iagw wp wog. Considering the coming weekend/holiday, ownerhere tender 4/3/2/1 days notice of vsl delivery dlospCJK for 1st May barring all unforeseen circumstances.
//unqte//
, so its not correct that owner failed to send delivery notice asper cp
2) Capt has clearlyexplained to chrtr abt hold cleaning as below on 2nd May
//qte//
According to relevant regulation .Hold washing water shoulddischarge at more than 12 miles outside of territorial base line .
The territorial base line outside CJK is to connnectSheShanDao (3125N 12214E)and HaiJiao (3044N 12308.5E)
My vessel's position at lat 3104Nlong12304E at 1540lt on May 1 2018 .
pass the 12 miles line form territorial base line .
My vessel's position at lat 3101.5N Long 12307.5E at2025lt on May 1 2018 .
enter into the 12miles line from territorial base line .
Vessel drift between 1600lt and 2000lt on May 1 2018 , No engine running .
No oil consumption.
We wash hold on the way . All dirty water were kepton ballast tank and
discharged them outside the 12 miles line from territorial baseline .
//unqte//
While owner also comment below to chrtr at the same day
//qte//
Discharging hold washing water does not affect the effectivenessof delivery notice. When capt tender delivery notice, the vsls holds wereclean/swept/washed down and dried, then delivery notice tendered is effective.There is no term in cp support chrtr’s opinion of cleaning water should bedischarged before vsl’s delivery. Owner will not accept any off hire.
//unqte//
Owner failed to understand why chrtr kept ignoring capt’sstatement and making up their own story.
3) According to SOF
3) According to SOFissued by zhenjiang agt(as attached), there was no pilot available due to foggyweather from 0000 to 1625 on 2nd May 2018, from which owner realized theberthing delay was arising from bad weather, instead of capt’s notice.
According to the clause chrtr quote,
“THEN THE VSL TO BE PLACED OFF HIRE FROM THE TIME OF FAILURE OF INSPECTIONS UNTIL THE SAID INSPECTION IS PASSED AND ANY CLEANING EXPENSES INCL BUNKERS CONSUMED DURING OFFHIRE INCURRED THEREBY TO BE FOR OWNRS ACCOUNT UNLESS VSL PARTIALLY ACCEPTED IN WHICH CASE HIRE TO BE PAID PRORATA”,
owner agree below period to be off hire:
From 1730 3rd May to 1930 3rd May at 100%;
From 1930 3rd May to 2030 3rd May at 60%;
From 2030 3rd May to 2130 3rd May at 20%
Owner’s above is clear and appreciate for chrtr’s promptconfirmation.
针对出租人的电邮，协助承租人起草电邮，答复如下：
Thanks for Owners’ last,but regret that Charterers still could not accept Owners’ allegation.
For avoid any misunderstanding, Charterers wish to draw Owners to pay their keen attention to below provision:
-ON DELIVERYVSLS HOLDS TO BE CLEAN, SWEPT, WASHED DOWN AND DRIEDUP SO AS TO RECEIVE/CARRYCHTRS INTENDED CARGO IN ALL RESPECTS FREE OF SALT, LOOSE RUST SCALE ANDPREVIOUS CARGO RESIDUES TO SATISFACTIONOF THE SHIPPERS INDEPENDENT SURVEYORS. SHOULD VSL NOT BE APPROVED BY THESURVEYOR THEN THE VSL TO BE PLACED OFF HIRE FROM THE TIME OF FAILURE OFINSPECTIONS UNTIL THE SAID INSPECTION IS PASSED AND ANY CLEANING EXPENSES INCLBUNKERS CONSUMED DURING OFFHIRE INCURRED THEREBY TO BE FOR OWNRS ACCOUNT UNLESSVSL PARTIALLY ACCEPTED IN WHICH CASE HIRE TO BE PAID PRORATA.
There is no any doubt that the vessel TO be clean, swept, washed down and dried up…in all respects…Please bear in mind that the word “to” did not confer an option but anobligation upon the Owners. Owners may refer to Lord Clarke his judgement in [2001] EWCA CIV 588 case:
Clause 42: Laycan on first half December to be narrowed to 10 days spread 32 days prior of the firstlayday.
For the reasons given by the judge and the reasons which I have tried to set out above (which are I think essentially the same as his) I would hold that clause 42 did not confer an option but an obligation upon the charterers,
And the Owners also breach their warranty as per authority inLondon Arbitration 24/16 (2016) 960 LMLN 2.
Owners alleged washing water/not in CJK anchorage does not affect valid delivery which the charterers denied. The vessel must be ready and in contractual place, otherwise is not a valid delivery. For this the Owners please refer to latest 7th Edition 《Time Charter》7.28 & 7.47 as below:
In what condition mustt he ship be on delivery?
7.28 The New York Produce form requires by line 22that, at the time of its delivery, the ship is to be “ready to receive cargo with clean-swept holds and tight, staunch, strong and in every way fitted forthe service”. The Baltime form requires by lines 25 and 26 that the ship is “inevery way fitted for ordinary cargo service”. These requirements are discussed in detail in chapter 8. Compliance with these requirementsis a condition precedent to a valid delivery. If the ship is not in therequired condition, the charterers are entitled to refuse the delivery.
7.47 As discussed above, there are two main conditions precedent to a valid delivery of the ship. First, the shipmust be in the proper condition, fit and ready for the charter service. Second,she must be in the place required by the charter. What happens, however, if theowners tender the ship for delivery without fulfilling these conditions? The answer depends on what the charterers choose to do. They can reject the ship orthey can accept her.
Consideration the vesselis not ready and in right place, therefore it’s not a valid delivery. For this,Owners please refer to 7.60, which provides:
7.60 The general principles set out above apply to a non-contractual tender under acharter made on the New York Produce form. However, because this form of charter requires the owners totender the ship for delivery by serving a notice of readiness, some additional points are relevant. If the owners serve notice of readiness tendering the shipfor delivery, but in fact the ship is not ready, or is not at the place ofdelivery, any notice of readiness is invalid and of no effect.
7.35, 7.37 went on said that:
7.35 The notice of readiness thatthe charter requires is a written notification of the readiness of the ship to be delivered into the charter service. In this context, “readiness” means that the ship is in all respects ready for delivery or ready to start the charterservice. Under the New York Produce form, the ship is ready for delivery if andonly if: (a) the ship is in thestate described in Lines 21 to 24; and (b)she is at the contractual place of delivery.
7.37 Fora notice of readiness to be valid, it must be a true statement of present fact– the ship must actually be ready – otherwise it is not a notice of readinessat all. If, when notice is purportedly given, the ship is not ready, the notice is invalid and of no effect:
The vessel failed hold inspection after alongside, It’s rather reasonable to presume that the vessel is not ready when the Master tendered delivery notice on 1st/May.The vessel is partial ready only after she passed hold inspection on 3rd/Mayat 1930hrs.
Consideration the vessel is not in fact ready, and not in right place for charterers’ service, Thus the delivery notice is not a valid delivery notice.
As the charterers already rejected the Master’s delivery notice, the ship is therefore not delivered to Charterers, hire never run before charterers to accept. As 7.48 which reads:
7.48 If the charterers reject the owners’ non-contractual tender of delivery, the shipis not delivered. The charter service does not start.
Charterers have rejected the delivery notice and no willing to accept the vessel in unready condition.Owners please double check all the exchanges rather carefully.
Hope above are clear andwill be acceptable by Owners.
这里面所涉及的主要问题是，在交船的时候船舶必须处于什么样的状况之下。如邮件中所说的，有效交付有两个主要的先决条款，如7.47所说，（1）船舶必须处于适当的状况，适合和准备就绪可为租约服务；（2）船舶必须处于租约所规定的位置。如果船舶达不到合同所规定的交船条件，那么承租人有权拒绝交船，如7.28。如果出租人在给予交船通知的时候，船舶事实上并未准备就绪，或者不在规定的位置，那么任何交船通知都是无效及没有效力的，如7.60。如果想使准备就绪通知有效，该通知书必须是对事实的真实陈述，船舶必须在事实上已经准备就绪，否则就完全不是一准备就绪通知书。如果船舶未准备就绪就给予了准备就绪通知书，该通知书无效且没有效力，如7.37所说。
在该争议中，承租人在船舶未准备就绪的时候就递交了交船通知，而在递交了通知后，还离开锚地去排洗舱水，处理出租人自己的事物。因此笔者认为该交船通知无效没有法律效力。
但出租人不接受该观点，相反出租人认为主要有两个争议，一是船舶在什么时间交付及承租人在什么时间已经接船；二是在验舱之前承租人是否有权停租。出租人认为，依据承租人的SOA，默认接船；但依据合同相关条款，为净时间损失条款，在锚地等泊并没有时间损失，不构成可停租事项，同时引援了The“Athena”案，拒绝了承租人的停租主张。出租人回复的电邮如下：
Good day!
For this case, there are two preliminary issues need to be considered,
aa. When was the vessel delivered/when charterers had taken delivery of vessel.
bb. Is charterers entitled to put any period off-hire before the hold inspection survey?
Below paragraphs charterers abstracted from text book TIME CHARTERS, concerning several points, such like “in what condition must the vessel be on delivery”, “whether the NOR tendered is valid” , however, these are merely in respect of issue aa. In the end charterers came to the conclusion that charterers hadrefuse to take delivery and vessel was not delivered.
After check we could notfound any statement made by charterers then saying that they shall refusetaking delivery of vessel. Please charterers provide it accordingly. Besides wefound charterers allegation paradoxical because in pursuant to charterers SOAthey have agreed to take delivery of the vessel since 1stMay 2018,0330 hrs utc.
On wholly without prejudiceand non-admission in liability basis, from our perspective, regardless ofthe vessel’s holds condition on delivery ( owners assert vessel’s holds areclean and ready for delivery pertaining to master’s NOR), charterers had takendelivery of the vessel at 0330 hrs utc, 1st May 2018.
We shall move to the nextissue, which charterers have failed to consider in their below letter, i.e.,whether charterers are entitled to put any period off-hire after vesseldelivered?
There are actually twooff-hire clauses in the time charterparty, the one in the fixture note,
ON DELIVERY VSLS HOLDS TO BECLEAN, SWEPT, WASHED DOWN AND DRIED UP SO AS TO RECEIVE/CARRY CHTRS INTENDEDCARGO IN ALL RESPECTS FREE OF SALT, LOOSE RUST SCALE AND PREVIOUS CARGORESIDUES TO SATISFACTION OF THE SHIPPERS INDEPENDENT SURVEYORS. SHOULD VSL NOTBE APPROVED BY THE SURVEYOR THEN THE VSL TO BE PLACED OFF HIRE FROM THE TIME OFFAILURE OF INSPECTIONS UNTIL THE SAID INSPECTION IS PASSED AND ANY CLEANING EXPENSESINCL BUNKERS CONSUMED DURING OFF-HIRE INCURRED THEREBY TO BE FOR OWNRS ACCOUNT
And cl. 15 in the main terms,
In the event of the loss oftime from deficiency and/or default and/or strike or sabotages by of officers
or crew or deficiency of stores,fire, breakdown of, or damages to, hull, machinery or equipment, grounding,detention by average accidents to ship or cargo unless resulting from inherentvice, quality or defect of the cargo, drydocking for the purpose of examinationor painting bottom, or by any other similar causeexcept as a result ofdefault or omission of Charterers, Sub-Charterers or their agents or theiragents/servants preventing the full working of the vessel, thepayment of hire and
overtime, if any, shall ceasefor the time thereby lost.
We both agree charterers canput the period from the time of vessel fail the inspection until passedoff-hire. Dispute is, if charterers can off-hire any period before vessel ‘shold inspection survey.
Charterers must prove theevent has fallen into the ambit described by cl.15. “Thereby lost “suggests this is a net loss of hire clause.
As to how to interpret cl.15,Tomlinson, L.J, said at the Athena, at page 683,
The ultimateconclusion of the judge that the vessel was not during the voyage off-hire is Ithink right for the reason that the full working of the vessel was notprevented whilst she proceeded from Ravenna to Piraeus, that being theservice immediately required of her. The decision is not however justified bythe fortuity of the orders which the charterers gave for the employment whichwas to be undertaken once the vessel had completed drydocking, orders whichwere given 13 days after, on Tuckey J’s approach., the vessel had already beenaffected by the relevant off-hire event. With respect, Tuckey J’s reasoning…failed to focus on the service immediately required of the vessel during thevoyage from Ravenna to Piraeus… I agree with Tuckey J that incertain circumstances it is not possible to determine what loss of time has occurreduntil the end of the off-hire event. The corollary is however that since theclause is concerned with the service immediately require of the vessel, it mustbe possible at the conclusion of the off-hire event to determine what net timehas been lost in consequence of the event.
In our case, we need to ask,after charterers taken delivery of the vessel since 0330 hrs utc, 1st May2018, what is the service immediately required by the charterers on the vessel?
Despite of the condition ofthe holds, can the vessel load cargoes? The answer is no, because we arewaiting for the surveyors to conduct the hold inspection survey. Either theholds are clean or unclean, the loading could not happen.
Apparently charterersimmediate request on the vessel is, waiting for the holds inspection survey.Can the vessel fulfill charterers immediately requirement ? Of course yes.
That said, charterers is notentitled to off-hire such period.
Hope it clarifies.
针对出租人的电邮，承租人认为收到交船通知后，得知船长继续开往外面去排压载水，已经发电邮明确表示船舶还未准备就绪，拒绝接船，承租人认为不存在出租人所声称的已经默认接船的事实，也因此不存在所谓的在接船后只有在有时间损失的情况下才能停租的情况。承租人认为，依据船舶轨迹及船长的报告，可以合理推断船舶在如此短的时间内不可能完成备舱，基于靠泊后验舱仍然不通过的事实，可断定在船长递交交船通知的时候，船舶事实上并未准备就绪的状态，因此承租人有权拒绝接船。在另一方面，船驶离锚地去排洗舱水，此时船舶已经不在承租人的控制和服务之下。对于出租人所引援的The“Athena”案，承租人认为对本案并没有帮助，因为在那个案中，Tomlinson勋爵认为，船长未听从承租人指示，未到锚地递交NOR导致承租人无法转嫁港口延误的风险，最终判承租人有权停租。和本争议的情况类似，船长私自驶离锚地去排洗舱水，船舶未准备就绪，未递交NOR，从而导致承租人无法转嫁港口延误的风险，纵然如出租人所声称的承租人已经接船，从这个角度上分析，承租人也有权停租。
承租人答复的电邮如下：
Good day!
Thanks for Owners’ last, but regret that Charterers could notaccept Owners’ allegation.
Owners contend that charterers accept delivery which was denied.Charterers have sent below emails to Owners, Which strongly indicate that charterers no willing to take delivery due to the vessel was not in physically ready condition.
Owners are called upon to review all exchanges carefully.
///
Dear Sherry,
Please note that vessel should delivered to us with clean holds according to cp terms. But vessel only can be ready till today 1200 2nd May asper Master's latest information. Even till just now the Capitan Luo agreed thispoint though the telecon.
Otherwise we can agree last delivery notice but all time/cost related to hold cleaning ready to be owners' account.
Please advice.
///
///
Dear Sherry,
We are also very surprised to hear below because we never ask master to discharge ballast water again today. We already know the vessel was ballast out of cjk range yesterday to discharge ballast water and how we askthem to discharge again??
According to cp terms below:
- ON DELIVERY VSLS HOLDS TO BE CLEAN, SWEPT, WASHED DOWN AND DRIED
UP SO AS TO RECEIVE/CARRY CHTRS INTENDED CARGO IN ALL RESPECTS FREE OF
SALT, LOOSE RUST SCALE AND PREVIOUS CARGO RESIDUES TO SATISFACTION OF THE
SHIPPERS INDEPENDENT SURVEYORS. SHOULD VSL NOT BE APPROVED BY THE SURVEYOR THEN THE VSL TO BE PLACED OFF HIRE FROM THE TIME OF FAILURE OF INSPECTIONS UNTIL THE SAID INSPECTION IS PASSED AND ANY CLEANING EXPENSES INCL BUNKERS CONSUMED DURING
OFFHIRE INCURRED THEREBY TO BE FOR OWNRS ACCOUNT UNLESS VSL PARTIALLY ACCEPTED IN WHICH CASE HIRE TO BE PAID PRORATA
The vessel discharging ballast water should be consider part of hold cleaning works and the time/cost related definitely to be owners' account.
Details see below from the captain which believe every party hasreceived:
qte
According to relevant regulation .Hold washing water shoulddischarge at more than 12 miles outside of territorial base line .
The territorial base line outside CJK is to connnectSheShanDao (3125N 12214E)and HaiJiao (3044N 12308.5E)
My vessel's position at lat 3104Nlong12304E at 1540 lt on May 12018 .
pass the 12 miles line form territorial base line .
My vessel's position at lat 3101.5N Long 12307.5E at 2025lton May 1 2018 .
enter into the 12miles line from territorial base line .
Vessel drift between 1600lt and 2000lt on May 1 2018 , Noengine running .
No oil consumption .
We wash hold on the way . All dirty water were kept onballast tank and discharged them outside the 12 miles line from territorialbase line .
Thanks for your understand .
Brgds
Capt Luo .
unqte
///
Therefore the remained issue is that whether the vessel is in physically ready or not.
Refer to below vessel’s trial records, The vessel sailed from lastdischarge port o/a 2100hrs on 30th/Apr 2018, and drop anchor at CJKanchorage o/a early am 1st/May, then sail from anchorage o/a 1130hrson 1st/May, o/a 1700hrs return and back to CJK anchorage o/amidnight 1st/May 2018.
Refer to Master’s reports and the vessel failed hold inspection upon berthing, It’s common ground that the vessel was not in physical ready by then. As per authorities which the charterers have clarified in last message,If the vessel was not in fact ready, It’s not a valid delivery. Therefore the charterers are entitled to reject the delivery notice which was prematurely tendered by the Master on 1st/May 2018 at 1130hrs, by then, his vessel was not ready at all.
On the other hand, Charterers have sent their voyage instruction to the Master, After arrival and ready, Master should tender NOR immediately on arrival at the commercial limit of the load port and discharge port. But the Master only tendered 1st NOR when his vessel cross port limit of Zhenjiang. Assume the Master well aware the true condition of cargo holds, So the Master decided not to tender NOR at CJK anchorage due to the vessel was not ready.
If the Owners may contend that vessel was ready, then Charterers will reserve their all rights to claim back against the Master not follow charterers’ instruction to tender NOR which cause laytime could not run and allocate risk of delay at CJK.
Lastly, Trust the “Athena” case does not support Owners’ argument for this case. In that case, Lord Justice Tomlinson said at p34 in his judgement:
The present case is complicated by the charterers' order forbidding berthing /discharging, but in the ordinary case a vesseldrifting at sea without proceeding to the port during a period when the vessel would otherwise have been awaiting a berth will have the result that the charterers are unable to start time running against their sub-charterers and the same will ordinarily be true as between sellers and purchasers. Seen inthis light the judge's notion of the charterers gaining a windfall in the event that the vessel is off-hire during the drifting period is wholly illusory sincethe Master's arbitrary action has resulted in the upsetting of the normal allocation of the risk of delay.
And finally, Charterers’ appeal was allowed, the vessel was off hire during those period due to not following the charterers’ instruction to proceed to discharge port, even there is no time lost.
For all these reasons I consider that the decision of the judge should be set aside and that of the arbitratorsrestored.
Accordingly, I would allow theappeal.
LJLewison and LJ Underhill agreed.
The same in present case, The Master not follow charterers’ instruction to tender NOR which allocation of the risk of delay at CJK, basis the judgement in The “Athena” case, The charterers are entitled to place the vessel off hire until the Master believed his vessel was ready and could tender NOR, even if as the Owners contended the charterers have accepted delivery on 1st/May or no time loss due to the vessel still have to stay at CJK anchorage.
Hope above are clear and will be acceptable by the Owners.
现在回过头来看看在镇江港代理所提供的事实记录，如下。抵达并在长江口抛锚的时间是5月1日的2354；递交NOR的时间是5月3日的1300；1630开始验舱，不通过；1930通过4舱和5舱；2030通过1舱和2舱；最终在2130通过3舱。
很显然，船长驶离长江口锚地，船舶不属于抵达船；去排洗舱水也不是承租人的指示；去排洗舱水也不是为了承租人的服务。出租人大可选择把压载水留在船上，只是这么做会面临被承租人索赔少装货的问题。
需注意的是，关于NOR递交，1300的时候船舶仍然在航，因此该NOR无效。至于前文船长所声称的在5月1日1600到2000，船舶漂航，主机停车，没有燃油消耗。该陈述有违常识，众所周知，长江口进出，南来北往的船舶众多，交通异常繁忙，在还存在海雾的情况下，几乎没有船长敢选择漂航。
Vessel drift between 1600lt and 2000lt on May 12018 , No engine running .No oil consumption.
如下图船舶轨迹显示，轨迹不是一个方向，而且在5月1日1831的时候已经掉头回长江口锚地。很显然，出租人和船长都无法自圆其说。
回到本文的争议中来，船长在递交交船通知之后，而是去处理船东方面的事务（排洗舱水），此时出租人并未将船舶交由承租人控制和处置之下，因此未完成有效交付，承租人无需支付租金。直到5月1日的2354船舶回到长江口锚地，开始等泊；如果承租人此时接受了交船，那么反过来，在净时间损失的停租条款下，承租人将得去举证有时间损失，才可以停租。如果无法证明有损失，那么将无权停租。
如邮件所提到的，所需要的交船通知并不是有效交船的先决条件，也就是说，就算没有按合同要求来发所需要的通知，不影响交船。但是承租人可索赔出租人未按合同给予所需要的通知而造成的损失。对于在长江口的排洗舱水的时间损失，因为承租人在长江口交船的当时并未安排检验，而合同又有条款明确规定，从验舱不通过的时候才能停租，而承租人当时并没有引水，需要的服务仍然是在锚地等靠泊，没有时间的实际损失，那么无法引援停租条款来主张停租，而只能索赔损失。剩下的只能是索赔损失，这种情况下，举证责任将落到承租人身上，他们得去证明，如果船长发了1号的交船通知，1号就可以安排引水靠泊，或者泊位没有船，只要船到了就可以安排合适的引水靠泊。如果能证明，那么这些损失将可以找出租人索赔。（或者因为船舶未准备就绪导致NOR无效无法开始laytime起算，但船长未递交NOR，因此没有这个问题）反之，将索赔不成功。笔者认为，在处理这个事情中，承租人错过了最佳时机，那就是到船长往外开，需要排洗舱水，那个时候就得立即主张船舶未准备就绪，拒绝接船；应该立即安排检验人员上船，货舱在这种情况下，基本上不可能通过验舱。于是，承租就可以光明正大地停租。
但合约解释必须将前后文当作一个整体来解释，基于所给出的这些理由，笔者最终认为船长在5月1日1130日递交交船通知的时候，船舶还未准备就绪，不符合合同所规定的交船条件，因此承租人有权拒绝接船；在不存在弃权的情况下，可以一直到拒绝接船直到5月2日1952开始起锚准备上引水靠泊。但从1952开始，承租人得支付租金，因为船舶开始遵从承租人指示并提供了服务；另一方面，承租人的行为构成了弃权，作出了选择，因此得开始支付租金。
关于支付租金的问题，可以参Bucknill勋爵在Royal Greek Government v. Minister of Transport (1948) 82 Ll.L.Rep. 196案中，在第199页判决书中所做的如下权威表述：
The cardinal rule, if I maycall it such, in interpreting such a charter-party as this, is that the charterer will pay hire for the use of the ship unless he can bring himself within the exceptions. I think he must bring himself clearly within the exceptions.If there is a doubt as to what the words mean, then I think those words must be read in favour of the owners because the charterer is attempting to cut down the owners' right to hire.
简单点说就是如果承租人使用了船舶那么就得支付租金；如果合同中的任何措辞有模糊的地方，那么将作出对出租人有利的解释，因为承租人想剥夺出租人享有租金的权利。
也可以参Kerr法官在 The Mareva A.S. [1977] 1 Lloyd’s Rep. 368案中，在第382页判决书中所说的如下：
But I think that the objectis clear. The owners provide the ship and the crew to work her. So long as these are fully efficient and able to render to the charterers the service then required, hire is payable continuously. But if the ship is for any reason not in full working order to render the service then required from her, and the charterers suffer loss of time in consequence, then hire is not payable for the time so lost.
如果船舶能提供承租人所需要的服务，那么承租人就得支付租金。很显然，在5月2日1952起锚靠泊过程中，船舶能提供承租人所需要的服务，因此不管是否弃权，不管货舱备妥与否，承租人从5月2日的1952到5月3日1424靠好，这段时间都得支付租金。
靠泊之后到验舱不通过的期间，船舶还是提供了承租人所需要的服务，因此不得停租；之后验舱不通过，依据合同条款按比例停租，没有任何争议。
最后再来看看和交船通知以及交付的几个相关问题。如果合同中没有包含交船时间及解约时间，对ETA通知也没要求，但出租人仍然有默示的责任，需要合理速遣去交付船舶；但这不是一个绝对责任，只要出租人已经尽合理勤勉，就不违约。对于这方面的解释，可以参The Democritos [1976] 2 Lloyd’s Rep. 149 (C.A.)案，在该案中，Denning勋爵在第152页判决书中说：
Now there is nothing in this charter which binds the owners positively to deliver by Dec.20, 1969. The only clue to any time of delivery is to be found in the cancelling clause. There is, of course, an implied term that the owners will use reasonable diligence to deliver the ship in a fit condition by Dec. 20,1969. But that is not an absolute obligation. So long as they have used reasonable diligence, they are not in breach. In this case it is found that reasonable diligence was used, so there is no breach by them of that impliedobligation.
也可以参《TimeCharter》Chapter7-Delivery, 7.16如下：
No time of delivery provision
7.16 Where a time charter contains neither a stated time of delivery, nor a cancelling clause, nor an ETA, the owners are probably under an implied duty to tender the ship for delivery with reasonable dispatch.
如果在合同中，即使没有相应的交船时间和解约条款，出租人仍然有默示的责任，必须合理勤勉地交付合适状况的船舶，当然这不是个绝对的责任，只要出租人尽了合理勤勉，他们就不违约。对此方面的解释，可以参The Democritos [1976] 2 Lloyd’sRep. 149 (C.A.)案，Denning勋爵在第152页判决书中对此评论到：
The only clue to any time of delivery is to be found in the cancelling clause. There is, of course, an implied term that the owners will use reasonable diligence to deliver the shipin a fit condition by Dec. 20, 1969. But that is not an absolute obligation. So long as they have used reasonable diligence, they are not in breach. In this case it is found that reasonable diligence was used, so there is no breach by them of that implied obligation.
关于交付的问题，在The Madeleine [1967] 2Lloyd’s Rep. 224案中，Roskill法官（当时是）在第238页判决书中说到，出租人通过将船舶置于租船人的处置之下，并将船长，高级船员和普通船员的服务交给承租人处置，以便承租人可以对船长，高级船员和普通船员下达关于船舶任务的命令，而出租人需指示他们的雇员遵从。
An owner delivers a ship to atime charterer under this form of charter-party by placing her at the charterers' disposal and by placing the services of her master, officers andcrew at the charterers' disposal, so that the charterers may thenceforth give orders (within the terms of the charter-party) as to the employment of the vessel to the master, officers and crew, which orders the owners contract that their servants shall obey.
在The Niizuru [1996] 2Lloyd’s Rep. 66案中，Mance法官（当时是）在第68页判决书中说到，交付即指出租人将船舶交给承租人处置，承租人没有在laycan之前接船的义务，但有权取消合约如果在解约日之前仍未交付的话。
Under this time charter, which is not by demise, delivery refers to th eplacing by the owners of the vessel at the disposal of the charterers as provided by lines 18-19, with a view to starting the time for payment of hire running. It is common ground (a) that, under cl. 14, the charterers were under no obligation to accept the vessel as delivered and time as having commenced for charter-party purposes before Feb. 20, 1992 and were entitled to cancel the charter-party if she was not delivered by 24 00 hours on Apr. 28, 1992.
也可以参第7版的《TimeCharter》Chapter7-Delivery, 7.2和7.29.
为避免出现类似的问题，笔者建议，如果对船舶的货舱状况没有把握的情况下，在船长递交交船通知或者NOR的时候应该作适当的保留；同时最好是安排检验人员上船，如果验舱不通过，将可以停租或者认为NOR无效，终止laytime起算。但是如果承租人默认接受接船，或者默认NOR有效，那么反过来，承租人将得举证有时间损失，才有可能有权利主张停租或者不计算laytime。如果证明不了，那么将如London Arbitration9/08 (2008) 748 LMLN 3，London Arbitration27/07 (2007) 733 LMLN 3，London Arbitration10/07 (2007) 719 LMLN 1及London Arbitration 14/02 (2002) 594 LMLN 3案一样，无权停租。需要注意的是，拒绝接船和主张停租是完全不同的两个法律问题；一旦同意接船，那么在净时间损失的条款下，很大程度上，承租人将无权停租。
2018.06.13 修改于香港
参考资料：
1、《Time Charter》第7版
海运圈聚焦专栏作者 Alex （微信公众号 航运佬）
