《装卸时间与滞期费》第二章——装卸时间条款-连载(三十一)

2018-06-08564
  《装卸时间与滞期费》第6版

  Laytime Clauses 装卸时间条款

  CUSTOMARY LAYTIME

  习惯性的装卸时间

  2.207 If the parties to a contract of affreightment do not in their agreement provide for the period during which the vessel is to be allowed to load or discharge her cargo, or provide for ‘‘liner terms’’ or ‘‘customary despatch’’, then a reasonable time for these operations will be allowed by implication of law.

  2.207 如果运输合同的当事双方在他们的协议中没有规定允许进行装卸货的时间,或者规定‘班轮条款’或‘习惯性速遣’,那么,根据法律上的默示原则,一段合理的作业时间期限就是允许的时间。

  2.208 It may be that the contract is wholly silent as to the time within which these tasks are to be carried out or the contract may contain some such phrase as ‘‘with all dispatch according to the custom of the port’’. In either case the period allowed will be dependent on the circumstances encountered at the particular port and may therefore vary from ship to ship and from time to time. It will thus be noted that, unlike fixed laytime, the period allowed cannot be determined in advance of loading or discharging as the case may be.

  2.208 也许合同自始至终对这些作业的完成时间都只字未提,或者包含有这类短语,例如‘按港口的习惯尽力速遣’。不论是其中的哪一种情况,所允许的时间期限都要根据所挂靠港口的情况来定,并会因船因时而异。因此,值得一提的是,与固定的装卸时间不同,像在这种情况下,允许的时间在装卸货之前是无法确定的
  


  What is a reasonable time?

  什么是一个合理的时间呢?

  2.209 The obligation, where no time was fixed, to do the work of discharging (and by implication loading) in a reasonable time arose in two early cases decided within a few days of each other. The facts in each case were similar. Both cases concerned the discharge of cargoes into bond, where delay was caused by congestion in the docks. In Rodgers v. Forresters the charterparty expressly stated that ‘‘the said freighter should be allowed the usual and customary time to unload the ship or vessel at her port of discharge’’, and Lord Ellenborough ruled that the usual and customary time was that which would be taken to discharge into a bonded warehouse in the then state of the docks. In Burmester v. Hodgson, which came before Mansfield CJ three days later, there was no charterparty, but the question arose on a bill of lading. The bill was silent as to the period of discharge and it took some 63 days before the discharge was completed. In his judgment, the learned Chief Justice said:

  Here the law could only raise an implied promise to do what was in Rodgers v. Forresters stipulated for by an express covenant; viz. to discharge the ship in the usual and customary time for unloading such a cargo. That has been rightly held to be the time within which a vessel can be unloaded in turn, into the bonded warehouses. Such time has not been exceeded by the defendant. If the brandies were to be bonded they could not be unloaded sooner, and the defendant seems to have been as anxious to receive, as the plaintiff was to deliver them.

  2.209 当没有明确的时间,要求在一段合理的时间内完成卸货(也默示包括装货)作业义务,早期的两个判例中均将这一义务判定为几天。这两个案子的案情基本相似。它们都是将货物卸至保税区,由于码头拥挤而造成延迟。在Rodgers v. Forresters案中,租船合同明确载明:‘在卸货港,货主应被允许在通常的和习惯的时间内将货卸完’,Ellenborough勋爵将这一通常的和习惯的时间判定为在码头当时的条件下,能将货物卸至保税仓库的时间。在三天后,Buirmester v. Hodgson—案提交至Mansfield首席大法官的手中,该案无租船合同。但问题出自提单。关于卸货期间在提单中只字未提,而实际上用了大约63天的时间才卸完货。在他的判决中,这位资深的首席大法官讲道:

  对此,法律所能做的就是如在Rodgers v. Forresters案按照明文契约规定的那样提出一个默示的承诺去进行货物作业;即是,要求在通常的和习惯性的时间内将这批货物卸完。这已经正确地判定:这段时间应是船舶能够依次将货物卸入保税仓库的时间。被告并未超出这段期间。如果这些白兰地酒要进入保税库的话,它们就不能被很快地卸完。当然,被告显然是急于要收到这批酒,就像原告急于要交给他们一样。
  


  2.210 In Ford and others v. Cotesworth and another, based on Burmester v. Hodgson it was argued that what was usual and customary for each port should be determined objectively, based on the normal state of affairs at that port, rather than the actual circumstances encountered. If accepted, such an argument would have meant that the charterparty should be construed as if a specified number of lay days had been inserted, the only point being that instead of the parties fixing the number of days, they left that to be ascertained by subsequent inquiry as to what was usual and customary in the port for such a vessel. However, this argument was vigorously rejected by Blackburn J, who held that, where a charterparty provides that a ship shall proceed to a certain port and there, or as near thereto as she can safely get, deliver the cargo in the usual and customary manner, but is silent as to the time to be occupied in the discharge, the contract implied by law is that each party will use reasonable diligence in performing that part of the delivery which by the custom of the port falls upon him. He also held that there is no implied contract that the discharge shall be performed in the time usually taken at the port.

  2.210基于Burmester v. Hodgson案的判决,在 Ford and others v. Cotesworth and another—案中提出的争论观点是:对每一个港口来讲,究竟如何客观地确定什么是通常的和习惯的时间,应立足于该港正常的事务情况,而不是实际上所遭遇的情形。如果这一观点被接受的话,这就意味着应将这一租船合同解释为仿佛已经将一定数目的装卸天数写入合同一样,唯一的问题是,不是当事双方确定这一具体天数,而是要根据他们随后对这类船舶在该港的通常和习惯的做法进行调查后来确定。然而,这一观点遭到了Blackburn法官的强有力的抨击。他判决道:当某一租船合同规定某轮应驶往某一特定的港口,并且是她能够安全抵达那个地方或者尽可能临近的地方,同时以通常的和习惯的方式进行交付货物,而只字未提卸货时间的话,根据法律,这种合同的默示义务是,每一方当事人都应合理尽职,以该港习惯为其提供的通常方式来完成货物交接任务。他还判定:并不存在必须在该港通常所用的时间内完成卸货的默示合同。

  2.211 However, a different judicial attitude on this latter point was taken in Ashcroft v. Crow Orchard Colliery Co and Wright v. New Zealand Shipping Co, where some of the judgments suggest that performance should be measured against the time usually taken. Much judicial and academic effort seems to have been expended in reconciling these two cases with later decisions of the House of Lords, but the simpler view is that they were wrongly decided.

  2.211然而,对于他的后一个观点,在Ashcroft v. Crow Orchard Colliery Co案和Wright v. New Zealand Shipping Co案,有些法官却持有不同的态度。有些法官判决认为:作业时间的衡量应该对照通常所用的时间来进行。司法界和学术界似乎努力花费心思将这两个案件和上议院后来判决的案件协调起来,但归根到底一句话,就是(这2个案件)它们都被错判了。
  
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  海运圈聚焦专栏作者 魏长庚船长(微信号CaptWei)

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