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　　《装卸时间与滞期费》第6版

　　CHAPTER 3 第3章

　　Commencement of laytime 装卸时间的起算

　　Charterer’s duty to act to enable a vessel to become an Arrived ship 承租人使船舶成为抵达船的义务

　　3.380 The leading case on this aspect is Sunbeam Shipping Co Ltd v. President of India (The Atlantic Sunbeam), which has already been considered in some detail. In that case there was a delay of some four days in connection with part of the documentary procedures required in securing Customs clearance for the discharge of her cargo. One of the steps necessary for this had to be undertaken by the charterer and the question arose as to the level of diligence required from the charterer in getting this done. Having considered the various possibilities, Kerr J concluded:

　　A requirement of a high standard of initiative, let alone any excessive zeal, cannot be implied in a situation of this nature, however much one would like to see it used. Something of that kind would require an express term. If, for instance, there were two procedures in a certain port whereby a vessel’s documentation can be dealt with, one on paying an expedition fee or taking some special steps, and the other one the ordinary procedure, then it seems to me that the charterers would be under no implied obligation to use the speedier and unusual procedure.

　　3.380在这方面，典型案例是Sunbeam Shipping Co Ltd v. President of India(The Atlantic Sunbeam)案。该案的一些细节已经讲过。该案中约4天的延迟是与在办理卸货清关所需要的部分文件手续方面有关。其中一个关键的步骤必须是由承租人办理，产生的问题是：在办理这件事上，对于承租人所要求的勤勉尽责的程度标准如何？在考虑多种可能性之后，Kerr法官总结道：

　　高标准的积极主动性，更不用说过分热情了，在这种类型的背景状况下是不能作为一个默示要求的，无论人们多么希望看到这种情形。若需要的话，就必须用明示条文将其规定下来。比如，在某些港口，如果文件的办理程序有两种途径，一种是支付加急费用或者采取一些特殊措施，另一种就是正常的程序。而在我看来，承租人没有默示的义务要通过更快捷的和非常的程序去办理有关的手续。

　　3.381 In the original arbitration proceedings from which the case arose, the arbitrators had held that there was a breach of duty for which they said damages were payable. Kerr J did not deal expressly with the question as to what remedy was appropriate where there was a breach, but presumably in not doing so agreed that they were right. However, in The Delian Spirit, which concerned a ‘‘reasonable on arrival’’ provision, Sir Gordon Willmer said:

　　. . . I prefer to say no more upon the difﬁcult question which might have arisen if the vessel had not been found to be an arrived ship at the time when she was lying in the roads. But I certainly do not wish to be taken as accepting that, even in that situation, the owners would necessarily be entitled to prosecute an independent claim for damages, without giving credit for the laytime to which the charterers were entitled, and for which, as we have been reminded, they paid when they paid the freight.

　　3.381该案最初提交仲裁时，仲裁员的裁决是未履行义务，应赔付损失。Kerr法官并未明确地涉及违约赔付是否合适的问题，但，他没有这样做，大概是同意仲裁员们的观点是对的。尽管如此，在涉及‘抵达即靠泊（此处怀疑应为Reachable on arrival）’条款的The Delian Spirit案中，Gordon Willmer认为：

　　……如果一条正在开敞锚地锚泊的船，尚不能把它视为抵达船，对于这样的难题我宁肯缄口不语。但是，即使在这样的情况下，我肯定也不希望被认为已接受这样的观点，即船东必定有权单独起诉索赔滞期损失而不用给予承租人有权得到的装卸时间上的任何好处，而对于该装卸时间，正如大家所提醒的，他们已经在支付运费时已经支付了（相当于用运费买的装卸时间）。

　　3.382 If that is so in a ‘‘reachable upon arrival’’ situation, then it may still be an open point in a situation such as that which arose in The Atlantic Sunbeam, although it is submitted that in both cases damages for detention should be payable and charterers should not be entitled to advance the running of laytime.

　　3.382如果是在‘到达即可靠泊’的情况下也是如此的话，那么这仍然是悬而未决的问题，就像在The Atlantic Sunbeam案中的情况。尽管在这两个案子中均认为应该对滞期延迟损失予以赔偿，而承租人还是无权提前起算装卸时间。

　　3.383 One of the disputes that arose in The Boral Gas concerned responsibility for the supply of pre-coolant preparatory to the carriage of a cargo of liquid ammonia. Under the terms of the charter, shippers were to supply the pre-coolant. The vessel could not tender a valid notice of readiness until the tanks were pre-cooled. It later transpired that charterers only instructed the shippers to provide the pre-coolant some time after the vessel’s arrival. Charterers argued that the reference to shippers providing the pre-coolant imposed no obligation on them, and it was up to owners to make their own arrangements with shippers. This argument was rejected by Evans J, who held that on the express terms of the charter the obligation fell on the charterers. At the end of this part of his judgment, he commented:

　　The majority of arbitrators referred to The Atlantic Sunbeam [1973] 1 Lloyd’s Rep 482, as authority for an alternative approach leading to the same conclusion by reference to an implied duty upon the charterers to co-operate in enabling the vessel to become an arrived ship.

　　3.383在The Boral Gas案中，提出的一个争议是运载液化氨水究竟由谁负责供应预冷却剂的问题。根据租船合同的规定，托运人负责供应预冷却剂。货舱在未预先冷却之前该轮不能递交有效的准备就绪通知书。事后透露出是承租人指示托运人在船舶抵达了一段时间之后才提供预冷却剂。承租人辩称说对于托运人提供预冷却剂的义务是不能强加于他们，而这是由船东和托运人之间做出的安排。但，这一主张却遭到 Evans法官的反驳，他判定，依据租船合同中明示条文，责任在于承租人。在他的判决词的结尾部分，他评述道：

　　该案大多数的仲裁员都提到了The Atlantic Sunbeam案例，参考承租人的默示义务，即要求协助船舶成为抵达船，如同先例一样，用另一个方法得出同样的结论(船东胜诉)。

　　3.384 However, in view of his previous ﬁnding, he declined to comment further on this aspect.

　　3.384然而，反观他以前的认定，他拒绝再进一步评论这一方面的问题。

　　3.385 The Atlantic Sunbeam was also considered in The World Navigator. That case concerned a f.o.b. sale of maize. Under the terms of the contract, laytime only commenced when the vessel arrived in berth, although notice of readiness was given earlier. For the vessel to be allowed to berth, the sellers’ documentation had to be in order. In this case, therefore, the lack of documentation affected not the giving of notice of readiness but laytime commencing, although it appears to have been accepted that in both cases, the same principles apply.
　　