2018-04-25
979 Laytime Clauses 装卸时间条款
2.96 Explaining these passages, Sir John Donaldson MR said in The Vorras:
Undoubtedly Lord Devlin was saying that ‘‘weather permitting’’ is a ‘‘phrase of exception’’ which requires regard to be had to the actual effect which weather is having on the loading process and he was basing himself on the Court of Appeal decision in Stephens v. Harris. But regard can be had to the actual effect of the weather in two different ways. You can look to see whether the loading process is in fact prevented by the weather or you can look to see whether it is the weather which is the actual cause of the particular vessel not being loaded.
2.96 在The Vorras一案，上诉法院院长John Donaldson爵士对这些细节进行了解释，他说：
毫无疑问，Devlin勋爵将‘天气允许’表述为‘除外短语’，而除外要求天气确实影响了装货作业过程并要考虑必须有实际的效果，同时，他的这一结论是基于他自己在上诉法院对Stephens v. Harris—案的判决而得出的。但是在考虑天气影响的实际效果时有两种不同的方式，您可去看装货作业过程是否确实因天气受阻，或者去看天气是否是该轮不能进行装货作业的真实原因。
2.97 Sir John then went on to point out that both in Stephens v. Harris and in the case that Lord Devlin was considering, the answers to each of these questions would have been the same. In neither case was the loading process affected by the weather. The particular vessel in Stephens v. Harris was prevented from loading because the cargo could not be brought to the ship, and in the Reardon Smith case because of strikes preventing the elevators from being worked. Lord Devlin therefore did not have to consider a case where weather was the sole cause of the loading process being at a standstill for the vessel alongside and where there was an additional reason affecting the particular vessel he was considering, namely that she was not in berth.
2.97 于是John爵士进一步指出，在Stephens v. Harris案和Devlin勋爵审理这一案件(指Reardon Smith)中，对这些问题的每一个都本应该是一样的答案。在这两个案子中，装货作业均未受到天气的影响。特别是Stephens v. Harris—案中船舶装货受阻的是因为货物无法运至船边，而在Reardon Smith一案中，则是因为罢工而使吊车手无法工作。因此，Devlin勋爵不必去考虑天气是否是造成靠泊船舶装货停顿的唯一原因，以及他正在思考的是影响具体船舶另有原因，亦即不能靠泊的额外原因。
2.98 In The Camelia and the Magnolia, Brandon J, as he then was, had to consider a laytime clause providing for laytime defined as ‘‘ . . . 750 metric tons per day of 24 consecutive hours per weather permitting working day’’. There was also a ‘‘berth occupied’’ clause providing for time to count if there was any delay before berthing.
2.98在审理The Camelia and the Magnolia—案时，Brandon法官在当时不得不研究一下装卸时间条款的规定，其把装卸时间定义为：‘每一个天气允许工作日，每连续24小时750吨……’还有一个‘泊位占用’条款规定：如果在靠泊前有任何延迟，其时间计入装卸时间。
2.99 In his judgment, Brandon J asked himself what is the effect of the words ‘‘per weather permitting working day’’ in relation to actual laytime after the ship was in berth and also what was their effect on notional laytime before the ship berthed. The answer he gave to the first question based on Stephens v. Harris was that whether ‘‘weather permitting’’ came before or after ‘‘working day’’, it meant:
. . . a working day which counted unless work was actually prevented by the weather . . .
2.99 在他的判决，Brandon法官自问：‘每一个天气允许的工作日’这些词语的作业效果与船舶靠泊后的实际装卸时间究竟有什么关系？它对船舶靠泊前的纯理论的装卸时间有什么影响？对他提出的第一问题，他的回答是以Stephens v. Harris—案为依据，即当‘天气允许’加在‘工作日’之前或之后，就意味着：
……除非这一工作日确实受天气影响，否则时间应当照计…… 。
2.100 With regard to the second question, Brandon J held that, whilst weather could not affect laytime under this particular clause unless the vessel was in berth, the effect of the berth occupied clause was to put both parties in the same position as if the vessel was in berth. This therefore meant that weather interruptions were excluded whilst the vessel was waiting for a berth, as if she had been in berth.
2.100针对第二个问题，Brandon法官判定，根据这一特殊条款，除非船舶已经靠泊，否则天气并不影响装卸时间的计算，泊位占用条款的作用是将双方当事人放在同等位置上，就好像船舶已经靠泊了一样。因此，这就意味着：船舶在等泊过程中，应将因天气影响造成的中断排除，如同船舶已经靠泊一样。
2.101 The judge’s answer to the first question, however, was said by Sir John Donaldson MR in The Vorras to be ‘‘based upon a misreading of Stephens v. Harris’’.
2.101然而，针对他对第一个问题的回答，上诉法院院长John Donaldson爵士在The Vorras案中却说是‘他是基于对Stephens v. Harris案的误解做出的’。
2.102 The first of the two most recent decisions to consider this type of laytime clause was Gebr Broere BV v. Saras Chimica SpA, a decision of Parker J, where the laytime clause was expressed in ‘‘running hours weather permitting’’. In the course of his judgment, the judge confirmed that, from the point of view of the effect of weather, there was no material difference between a clause which fixed laytime by reference to ‘‘working days weather permitting’’, and a clause which did so by reference to ‘‘running days weather permitting’’ or as in the case with which he was then dealing ‘‘running hours weather permitting’’. He then went on to find that in a port charter there had to be excluded from the computation of laytime used up, any periods during which, had the vessel berthed on arrival, weather would have prevented loading which would otherwise have taken place. Although pointing out that on the actual laytime clause, Brandon J had held that it was impossible for work actually to be prevented by weather because the vessel was not in berth, Parker J then went on to cite Brandon J’s decision in The Camelia and the Magnolia and the House of Lords’ decision in The Darrah as authority for this proposition.
2.102对于这类装卸时间条款的两个最新判决的第一个是Parker法官在审理Gebr Broere BV v. Saras Chimica SpA—案时做出的。该案所涉及的那个装卸时间条款规定：‘天气允许情况下连续小时’。在其审理过程中，他肯定了从天气影响这一角度来看，它同‘天气允许的工作日’的固定装卸时间条款以及‘天气允许的连续日’或者他随后审理的案子中的‘天气允许情况下连续小时’之间没有什么本质的区别。接着他又认定：在港口租船合同下，如果船舶一抵达即刻靠泊的话，装货作业就会开始，若天气阻止了装货作业的进行，这一期间的延迟应从装卸时间的计算中扣除掉。尽管他是以实际装卸条款指出的， Brandon法官仍然判定：实际作业不可能受到天气影响，因为该轮并未靠泊。但是Parker法官接着还援引了Brandon法官在审理The Camelia and the Magnolia案时的判决以及作为对此问题的权威判例的上议院对The Darrah的判决。
2.103 It is difficult to see, however, how the former can support this statement and with regard to the latter, which was apparently the basis of the decision at first instance in The Vorras, in that case in the Court of Appeal Sir John Donaldson MR said he did not see its relevance since it was a weather working day case.
2.103不过，很难看出前者案例是怎么会支持这一主张，而对于后者，很显然它是基于对The Vorras案件的一审的判决，而在上诉法院那案审理时，上诉法院院长John Donaldson爵士说，他并没看出它们之间有何关联，因为那是一个关于良好天气工作日的案例。
2.104 Whilst apparently agreeing with Parker J’s conclusion, Sir John expressly refrained from commenting on the reasoning in the Gebr Broere case.
2.104很显然，John爵士是同意Parker法官的结论的，他明显没有对Gebr Broere—案中给出的理由作出评论。
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