《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

Equipment 货物设备

3.157 Although the holds must be ready to receive cargo on reaching the specified destination before the vessel can be considered in a state of readiness, the loading and discharging gear or other equipment need not be rigged and absolutely ready but only in such a state that they can be made ready and available for use when actually required.

3.157在某轮能够被认定已处于准备就绪状态之前，尽管她的全部货舱必须准备好收受指定目的地的货物，然而，她的装卸货索具或其他设备不需要绝对装配好和准备好，但是，当其实际需要时，它们是要做好准备和处于可以随时可用状态。

3.158 In Noemijulia Steamship Co Ltd v. Minister of Food, Tucker LJ explained the point this way:

It seems to me that there is a real distinction to be drawn between the cargo space and the gear. The charterer is entitled to the control of the whole of the cargo space from the outset of the voyage...

The loading gear had not got to be placed at his disposal and he had no rights with regard thereto save in so far as it was necessary to enable the shipowner to perform his contractual obligations under the charterparty. Providing the shipowner was able, when required, to load any cargo which the charterer was entitled to tender to him alongside, it was a matter for him to decide by what means he would carry out his contractual obligations.

3.158在Noemijulia Steamship Co Ltd v. Minister of Food案，Tucker大法官对这一点是这样解释的：

就我看来，对装货空间的要求与对索具的要求是有实际上的区别。从航次一开始，承租人就有权支配所有的装货空间……

装货索具并不在他的支配之下，对此他也没有这种权利，除了在某种条件下督促船东履行他的合同义务而已。只有当需要时，如果船东能够装载承租人有权运抵其船边交给他的任何货物，那么，决定用什么方式来履行他的合同义务就是他自己的事了。

3.159 In that case, responsibility for loading and discharge lay with the shipowner. It often happens that the charter makes the charterer responsible for these tasks. However, even then, it is suggested, the equipment need only be ready when required, provided it is clear that it will be so ready when the ship reaches the specified destination. Similar considerations apply to the opening of the hatches. This was one of the issues raised in Armement Adolf Deppe v. John Robinson & Co Ltd, where Swinfen Eady LJ said:

The ship was lying at a waiting berth, her voyage being ended; it would have been an idle form to take on board men and open hatches and make other preparations at the buoys when there was no desire or intention of the merchants to receive cargo until the ship was berthed at the quay.

The ship was ready to discharge in a business and mercantile sense, and the idle formality of incurring useless expense was not necessary as a condition precedent to the commencement of the lay days.

3.159在该案中，装卸货的义务由船东承担。但在租船合同中这些责任往往都落在承租人身上。尽管如此，甚至在那时，这建议，对设备仅要求在它需要的时候备好就可以了，除非这里明确规定要在船舶抵达指定目的地时准备好。类似的规定也适用于开舱。这也是Armement Adolf Deppe v. John Robinson & Co Ltd —案中所产生的争议之一，当时，Swinfen Eady大法官是这样说的：

该轮在等候泊位时，航程已经结束；在她靠上码头之前，当时货方也是没有要求或意愿去收受货物，在此系泊等待时期间，进行人员上下、打开货舱以及其他一些所应做的准备工作，这本来就是正常手续。

从行业和商业意识来看，该轮已做好了卸货准备，还有，正常手续产生的这种无聊的费用并不一定能够作为起算装卸时间的先决条件。

3.160 In the same case, Scrutton LJ explained that it was only after it had become settled in Leonis Steamship Co v. Rank (No 1) that laytime under a port charter could commence at the waiting berth that the question of opening hatches and rigging equipment before arrival in berth arose. He concluded:

And I cannot bring myself to hold that it was necessary for such a ship before her time would begin... to make preparations for discharging at a place where on the hypothesis discharging will not take place.

3.160同样在该案中，Scruton大法官解释道：这恰好发生在Leonis Steamship Co v. Rank 结案之后，在那个案中判定是在港口租船合同中，装卸时间可以在等候泊位时起算，这就产生了靠泊前开舱和设备配置的问题。他总结说：

我不能强迫自己判定该轮在装卸时间起算前必须要在一个设想不会进行卸货作业的地方作卸货准备工作。

3.161 Similar sentiments were expressed by Greer J in J Glynn & Son Ltd v. Consorzio Approvvigionamenti Fra Meccanici Ed Affini, where he said:

With reference to the question whether she was ready, it is clear that those words do not mean that she is to be when she gives notice in a position to start the discharge immediately the minute after the notice has been given.

What it means is ready in a commercial sense to discharge, that is to say, in such a position that the tackle can be got ready for use as soon as the receivers are in the ordinary course to do their part of the discharge... The hatches were not off, but matters of that sort do not prevent a vessel being ready to discharge, providing that she is in such a condition that her tackle and apparatus can be readily put in order to commence her discharge... ‘‘Ready to discharge’’ means having the tackle ready to be put into operation.

3.161在J Glynn & Son Ltd v. Consorzio Approvvigionamenti Fra Meccanici Ed Affini案，Greer法官也阐述了类似的观点，说：

针对该轮是否准备就绪这一问题，很明显，那些话的意思并不是指，当船舶递交准备就绪通知书时，她应该处于一个通知书递交之后眨眼间即可开始卸货的位置。

这里所谓的准备就绪是指商业意义上的，也就是说，处于这样一种状态，一旦收货人要按正常程序进行卸货作业时，船舶索具就能马上备好可以使用……货舱还没有打开，但诸如此类的事情并不妨碍该轮做好卸货准备，只要她的索具和器械在开始卸货时能立刻投入使用……‘卸货准备就绪’意味着索具已准备好投入使用。

3.162 What equipment must be ready will depend on the terms of the charter and the instructions given by the charterer. In Noemijulia Steamship Co Ltd v. Minister of Food, one of the issues raised was the ability of the San George, the vessel concerned, to load the cargo required by the charterer. The charterparty provided for her to load a full and a complete cargo of wheat and/or maize and/or rye in bags and/or bulk. Charterers were also given the option of shipping other lawful merchandise. Whilst the previous cargo was being discharged, a fire occurred and, shortly after this was extinguished, the main mast collapsed, breaking two wooden derricks. Temporary repairs were effected and an interim certificate of class was issued for the prospective voyage. Charterers, however, claimed that the vessel was not ready because she had no mainmast or after derricks.

3.162至于必须准备好哪些设备，就取决于租船合同中的条款和承租人的指示。在Noemijulia Steamship Co Ltd v. Minister of Food 案，提出的其中争议就是San George轮装载承租人货物的能力问题。在租船合同中规定要求该轮满舱满载袋装和/或散装小麦/玉米/黑麦。而且承租人还有装运其他合法货物的选择权。当卸前一个航次的货物时，发生了火灾，并且很快被扑灭了，但主桅杆倒坍将两个木制吊杆砸坏了。在临时修理一下之后，为了完成原定的下一航次的任务，发了一个临时性船级证书。尽管如此，承租人仍然声称该轮未准备就绪，因为她没有主桅杆或两个后吊杆。

3.163 In the subsequent arbitration proceedings, the umpire found that two of the holds could not have been loaded by ship’s gear but that, since the charterer intended to load bulk grain, the derricks would not have been necessary and, although for safety reasons some of the cargo had to be in bags, these could have been loaded by other means. In the High Court, Devlin J held that the rule as to readiness to load applicable to cargo space ought not to be so stringently applied in the case of gear required for loading and that, on the facts found by the umpire, the ship was not proved to be unready in a business sense. The Court of Appeal agreed. It would seem from this case that the onus is on the charterer and that, so far as the ship’s equipment is concerned, if he wishes to contend that the ship is unready, he must show that the ship would be unable to load some cargo which the charterer was entitled to load.

3.16在其后双方仲裁诉讼中，公断人认定：该轮中两个货舱不能用船吊进行装货，但是，既然承租人打算要装散装谷物，船吊就不需要了。还有，尽管从安全角度上还有一些袋装货，那也可以用其他方式装载。在高等法院，Devlin法官判定：适用于货舱的装货准备就绪的原则不应如此严格地适用于装货需要的索具。而且根据公断人认定的事实，从商业意义上讲，该轮并非没有准备就绪。上诉法院也同意这一看法。从这一案例中似乎可以看出：举证责任是在承租人一边，而且就船舶的设备而言，如果他想争辩该轮未准备就绪，他必须举证证明该轮不能装载某些他有权装运的货物。

3.164 In Sun Shipping Co Ltd v. Watson & Youell Shipping Agency Ltd, Rowlatt J held that a vessel chartered to load grain was not ready on arrival at a loading position when only some of the shifting boards required in the holds had been fitted.

3.164在Sun Shipping Co Ltd v. Watson Youell Shipping Agency Ltd案中，Rowlatt法官判定：船舶出租装运谷物，在该船抵达装货地点时，仅安装了货舱所需要的部分少量的止移板，还不能算是准备就绪。（早期箱型货舱要装散粮时，需要止移板防止货物移动导致倾斜，现在这种船型已经很少了）

3.165 In Vaughan and others v. Campbell, Heatley & Co, the charterparty provided for shipment of a full and complete cargo of wheat and/or flour in bags or other lawful merchandise. The ship was not at the cancelling date lined in the manner usual and necessary for the protection of a wheat or flour cargo. The charterers cancelled the charter because they said the ship was not in a state of readiness at the cancelling date. However, the Court of Appeal held that they were not entitled to do so. The case is very briefly reported, but it appears that Lord Esher MR based his judgment on the ground that the charter required the ship to be ready to load, not fit to load. Cotton and Lindley LJJ, however, added that the charter left it open to the charterers to load any kind of cargo and that many kinds of cargo would not require the ship to be lined. There was no evidence as to what kind of cargo it was intended to load, but the additional ground on which the Lords Justices based their decision negatives the idea that, so far as equipment is concerned, the shipowner has got to be ready from the outset to deal with any kind of cargo which the charterer is entitled under the charter to call upon him to take on board.

3.165在Vaughan and others v. Compbell，Heatley & Co案，租船合同规定承运满舱满载的袋装小麦和/或面粉以及其他合法商品。到了解约日，该轮未能以通常和必要的方式做好衬垫保护小麦或面粉。承租人取消了合同，原因是该轮在解约日没有达到准备就绪状态。然而，上诉法院判定承租人没有权力这样做。该案例的报告非常简洁，但能明显看出上诉法院院长Esher勋爵判决的根据是该租船合同只要求该轮做好装货准备，而不是适于装货。而且，Cotton大法官和Lindley大法官还补充道，该租船合同给予了承租人自由装载任何一种货物的权利，但是很多种类的货物并不需要船舶做好衬垫。而且也没有证据表明要打算装何种货物的意向，但是，大法官们基于他们做出的判决的另外一个理由而否定这一观点：就设备而论，船东一开始就必须做好准备，以装载承租人根据租船合同有权要求船东装上船舶的任何种类的货物。

3.166 In Grampian Steamship Co Ltd v. Carver & Co, the charter required the shipowner to provide the necessary mats for a cargo of cottonseed, wheat, beans, maize or other grain. Laurence J decided that it was not obligatory on the shipowners to have the mats laid down in order to be ready to load, but it was sufficient if they had the mats ready to lay if required.

3.166在Grampian Steamship Co Ltd v. Carver & Co案，租船合同要求船东准备好装运棉花籽、小麦、豆类、玉米以及其他谷物所必需的垫毯。Laurence法官判决：在做装货准备工作时，船东没有义务把垫毯铺好，但是如果需要，他们已经做好铺垫毯的准备，这样就足够了。

3.167 In The Demosthenes V (No 1), Staughton J drew a distinction between the ship being ready and equipment which was to be brought from shore being ready and available. The facts were that the Demosthenes V was to discharge a cargo of grain at Alexandria. An additional clause in the charter required owners to guarantee a minimum of six vacuators at the discharge port. On arrival her notice of readiness was rejected because at that time she had no vacuators on board. Three days later three vacuators were put on board which were capable of discharging at a rate greater than that specified in the charter. Later three more were supplied. By the time she was able to berth, she had the six vacuators required by the charter. In finding that the absence of vacuators on arrival did not prevent the ship being ready on arrival the judge said:

The vacuators were essentially, as I see it, equipment which was to emerge from the shore when the operation of discharge was to commence. The ship, as a ship, was ready. All that had not been done was to supply the equipment which the owners were to supply for the purposes of discharge.

He therefore held that the requirement as to vacuators was not a condition precedent to giving notice and that, even if they were an essential part of the vessel’s readiness, the vessel would have been ready when three were supplied and the remaining three could have been obtained at short notice.

3.167在The Demosthenes V案，Staughton法官针对船舶准备就绪与必需从岸上运来的设备准备就绪和随时可使用这二者之间做了区分。该案情是，Demosthenes V轮是去埃及亚历山大港卸谷物。租船合同的附加条款要求船东保证在卸货港至少备好6台真空吸粮机。但是，当该轮抵达时，准备就绪通知书被拒绝，原因是当时该轮上连一台真空吸粮机也没有。三天后，3台真空吸粮机送到船上，其卸货能力大大高出该租船合同中规定的数字，后来又供上来3台，这时她能够靠泊了，而且已按租船合同的要求配备有6台真空吸粮机。法官判定：该轮抵达时未配备有真空吸粮机并不妨碍她准备就绪。他说：

我明白，当卸货作业即将开始时，配备有从岸上运来真空吸粮机是非常必要的。但是就该轮本身来讲，实际上她已经准备就绪。全部尚未完成的工作只是提供设备，即船东为了卸货而必需供应的设备。

因此，他判定：真空吸粮机这类配置要求不能作为递交通知书的先决条件。而且，即使它们是该轮准备工作的重要部分，那么当她已配置了 3台，而余下的3台也随即通知可以运到时就可算准备就绪了。

3.168 In London Arbitration 4/93, the tribunal held that the fact that a windlass motor failed due to a latent defect subsequent to the vessel’s arrival, delaying her shifting from the anchorage to her loading berth, did not invalidate the notice of readiness presented by the vessel on her arrival.

3.168在报道的1993年第4号案，仲裁庭裁决：在船舶抵达后，由于潜在缺陷锚机马达故障停止工作，以致耽误了该轮从锚地移至其装货泊位。这一事实并不使船舶于抵达时递交的准备就绪通知书失效。