《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

Other physical matters 其它实质性事项

3.169 In The Virginia M, Hobhouse J had to consider the validity of a notice of readiness tendered at Lagos where the vessel was due to discharge. The problem was that the vessel had steam winches and arrived with only about 15 tons of fresh water, but a daily consumption of 20 tons. The laytime allowed for discharge was in excess of 15 weather working days and therefore the vessel would have been unable to discharge all her cargo.

3.169在The Virginia M案,Hobhouse法官不得不考虑该轮在应该卸货的尼日利亚拉各斯港递交的准备就绪通知书的有效性问题。问题是该轮使用的是蒸汽绞车,但在抵达时仅剩下大约15吨淡水,而每日的消耗是20吨。允许的卸货时间是超过15个良好天气工作日,因此该轮无法卸完全部货物。

3.170 In arbitration, the arbitrators held that the notice was valid. However, the judge disagreed, saying:

If the vessel having proceeded into berth and having discharged some cargo has to stop and take on fresh water or bunkers either at that berth or another berth, that is not consistent with the vessel having been ready to discharge...

Nevertheless, he also added:

In some ports, maybe even in most ports in the world, the taking on board of further fresh water at a discharging berth may be a mere formality which will in no way impede or hold up the discharge of the cargo and will not prevent the vessel from being ready to discharge the whole cargo as soon as the charterers may wish and at the rate at which they may wish.

3.170在仲裁时,仲裁员裁定该准备就绪通知书有效。然而,法官却表示反对,他说:

如果该轮直接靠泊卸货,卸了一部分又不得不停下来在该泊位或去其他泊位加油加水的话,这与船舶已经准备就绪并不协调……

不过,他又补充道:

在一些港口,甚至可以说在世界上许多港口,在卸货泊位上加装淡水仅是例行公事,而且也不妨碍或阻止船舶的卸货作业和做好卸货准备工作,以便按照承租人要求的速度卸完全部货物。

3.171 Presumably, the same would apply to bunkers. It would therefore seem that whether insufficient supplies of water or bunkers will invalidate a notice of readiness will very much depend on what facilities may be available at the particular port.

3.171 大概,类似情况也能适用于燃料,因而,淡水或燃料供应不充足是否会使准备就绪通知书失效一事,似乎在极大程度上取决于具体港口内可以利用的设施是什么。

Legal readiness 法律上准备就绪

3.172 Just as a ship must be physically ready to load or discharge, so must it also be legally ready. At common law, by this is meant that the ship must have all her papers in order, there must be no infection on board and all permits or consents which it is customary for the ship to obtain must have been received so that there is likely to be no legal impediment to the commencement of loading or discharge when the charterers or those concerned are ready so to do. If any such permit is normally obtained by the charterers or those for whom they are responsible, then, if this is necessary for the ship to proceed from an anchorage where she would not have been deemed to have reached her specified destination to such a point, the charterers, etc., are bound to act with reasonable diligence to ensure it is received as timeously as possible. Where the vessel concerned has already reached her specified destination and the permit is needed for her to proceed further, then its absence does not, unless there is a clause to the contrary, normally prevent her from becoming an Arrived ship. This is the effect of the two decisions which are now discussed.

3.172正如船舶必须在实质上做好装货或卸货准备一样,她也必须在法律上做好准备。根据普通法,这意味着船舶必须按要求将所有的文件准备好,这必须是没有疾病感染,并且,船舶必须办理她习惯上能够办妥的所有许可证或证书,以便承租人或其他有关人员准备开始装卸货时,船舶不至于在法律方面受阻。如果某项许可证通常是由承租人或承租人对其负有责任的人提供的话,那么,如果在锚地认为船舶不能在此获得此许可证的话,这必须要她从锚地驶往并到达承租人指定的某一地点,承租人等人有责任尽其所能确保船舶尽可能及时取得此项许可证。如有关船舶已经抵达了指定的目的地,但为了进行下一步程序,需要办理某项许可证的话,除非有相反的条款,在正常情况下,没有这一证件也不会妨碍她成为抵达船。现在,我们就来讨论下面两个判决的结果。

3.173 The first of these is The Atlantic Sunbeam, a decision of Kerr J. Here the Atlantic Sunbeam was due to complete the discharge of her cargo at Calcutta. However, she could not proceed beyond the anchorage off Sandheads, which was outside the port until a document called a ‘‘jetty challan’’ had been obtained from the port authorities. This enabled her to then proceed up the River Hooghly to Calcutta. The procedure was described by Kerr J as follows:

The first step which is required has to be taken by the owners. This is the lodgment with the Calcutta Customs of the lodging of the ship’s manifest. Once that has been done, certain steps have to be taken, first by the consignees or receivers, secondly by the port authority, and thirdly by the Customs authorities.... Once the port authority and the Customs have gone through all the documentary procedures which are required in any particular case, the consignees obtain a document called a ‘‘jetty challan’’ from the port commissioners. Once that document has been obtained and presumably passed over to the owners’ agents, the vessel is free to come up the River Hooghly . . .

However, having arrived at Sandheads, there was a delay of some days before a ‘‘jetty challan’’ was issued and the owners pointed out that the charterers could only be responsible for their own or consignee’s delay (in this case they were effectively both) and not delay by the port or Customs authorities. The judge said of the level of diligence required from the charterers:

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.

It therefore follows that in my view the term to be implied in this case is to the effect that the charterers were bound to act with reasonable dispatch and in accordance with the practice of the Port of Calcutta in doing those acts which had to be done by them as consignees to enable the ship to become an arrived ship.

3.173第一个是The Atlantic Sunbeam案,Kerr法官的判决。该案,Atlantic Sunbeam轮受命前往加尔各答港完成卸货任务。然而,船舶到达港外的Sandheads锚地后,不能再前进了,直到其获得港口当局称之为‘jetty challan’许可文件,才能驶往Hooghly河上游的加尔各答港。对于这一程序,Kerr法官如下描述说:

所要求采取的第一步是必须由船东向加尔各答港海关提交船舶货物舱单。一旦此步完成,紧接着需要采取各个步骤是,第一是由收货人,第二由港口当局,第三由海关当局……在任何情况下,一旦港口当局和海关当局通过了所要求的全部文件的检查,收货人就会获得由港口署长签发的名为‘jetty challan’的一份文件。一旦获得这份文件并且假设该文件已经转给船东代理人,这时该轮才可自由地驶往胡格利河的上游……

然而,当该轮抵达Sandheads锚地后,在签发‘jetty challan’许可证之前耽搁了几天,船东提出:承租人承担他们自己或收货人(在本案中,二者实际上是一家)应负责的那部分时间损失,其中不是港口当局或海关当局造成的那段延迟。法官在谈到承租人应有的勤勉程度时说道:

对于这种性质的情形下,不可能默示要求承租人高标准地积极主动,更谈不上某种超乎寻常的热情了,尽管许多人都可能希望如此。对于这些要求需要用明示条文加以规定。比如,在某个港口船舶办理这些文件有两种程序方式,一种得通过采取某些特殊的办法,或支付额外加急的费用;另一种就是通常的方式。那么就我看来,承租人并没有任何默示的义务要求去采用那种非正常的和快捷的方式去办理这些手续。

因此,我认为,在该案中可以得出,存在默示条文要求承租人有责任合理迅速办理文件,并根据加尔各答港的实际情况,如同收货人一样做其必须要做的事情,以使该轮成为抵达船。

3.174 The judge continued that the onus of proof in this case rested with the shipowner but that the arbitrators would, of course, be entitled to draw an inference adverse to the charterers if there were unexplained periods of delay or inactivity. However, as he was unable to see whether the arbitrators had taken the approach he had set out or how they had arrived at the period of undue delay they had found, the case was remitted back to them for further consideration. In such a case, the shipowner will, of course, only be able to recover for any excess period beyond what is reasonable, not for the whole of the delay.

3.174法官接着又说:该案的举证责任在船东一方,但若出现一些无法解释的延迟或不作为,仲裁员则当然有权做出一些不利于承租人的推断。然而,由于法官无法知道仲裁员是否按他的阐述的方法处理,或者他们怎样得出他们已经认定这些不合理的延迟时段,该案发回交他们做进一步审理。当然,在该案中,船东仅能追偿到超出任何合理期限的延迟损失,而不会是全部延迟损失。

3.175 The second decision is The Aello, which has already been considered in some detail, and the basic facts of which need not be repeated. One of the peripheral issues considered was the effect of a Customs permit known as a ‘‘giro’’, which at the material time was required for a vessel to proceed beyond Intersection, the temporary waiting area some 22 miles from Buenos Aires. The practice was for the shipper to obtain a certificate from the Grain Board to the effect that a cargo was available and a giro would then be issued when that cargo was ready to be loaded. Until this happened, the vessel was held at Intersection. In the House of Lords, Lord Radcliffe, who dissented from the majority on the main issue, as to whether the Aello had reached her specified destination on arrival at Intersection, commented:

It is, of course, possible to take the view that until the giro was granted the Aello had not arrived because she had not got into the required area of the port. That is one thing. But, if you do not take that view and think that she was in the port within the meaning of the charterparty, the giro became, under the prevailing conditions, nothing but official permission to enter a loading berth. If the absence of such permission prevents an arrived ship from claiming that its lay days have begun, the distinction between port charters and berth charters established by Leonis Steamship Co Ltd v. Rank Ltd [1908] 1 KB 499 disappears again and every ship waiting for a berth, however correct its standard of propinquity, must also be waiting for its lay days to begin. In my opinion this point is unmaintainable.

3.175第二个判决是The Aello案,已经比较详细地讨论过,该案的基本情况在此不必重述。其中一个探讨的外围争议是:被称作‘giro’的海关许可证的效力。在那一重要时期,船舶要获得这种许可之后才能离开中转交汇区,这是距布宜诺斯艾利斯大约22海里远的短暂等候区域。在实践中,都由托运人从散粮局取得货物证书,其作用表示是有货可装,然后当货物准备好装船时,才会签发Giro这种许可证。直到这一切发生时,船舶还要一直停在中转交汇区。在上议院,针对Aello轮抵达中转交汇区是否算已抵达了指定的目的地这一重要问題,Raddif fe勋爵不同意大多数人的观点,他认为:

当然,可能会有这样的观点:在Aello轮获得‘giro’前,她不算抵达,因为她没有驶入要求的港区,这是一种情况。但是,你若不同意这种观点,而认为她已抵达该租船合同意义下所指的港口内时,则在现行的条件下,‘giro’非是别的,而只是船舶驶入装货泊位的一种官方许可证。若缺少这种许可证,就会阻止抵达船舶主张她的装卸时间开始起算的话,那么在Leonis Steamship Co Ltd v. Rank Ltd 案中确定的港口租船合同与泊位租船合同的差别就会再次消失,而且不管船舶靠近(泊位)的标准如何正确,每艘等候泊位的船也都必须等待它的装卸时间的起算。我的意见是这个观点是站不住脚的。

Common law 普通法

3.176 The usual clearances that a vessel must receive are from the Customs, Immigration and Health authorities. The documentation that they will wish to inspect may include the ship’s certificate of registry, the cargo manifest, the official log book, list of dutiable stores, crew list and ship’s articles. Individual ports or countries may add considerably to this, according to local requirements established by custom and local or national law. It is the ship’s duty to have on board whatever documentation is required at the port in question. Provided that the master has no reason to believe that such clearances will be withheld, he may proceed at common law to declare his vessel ready on reaching the specified destination even though clearance has not yet been given. Such clearances may usually therefore be considered to be one of the preliminaries, etc., Lord Denning had in mind in The Tres Flores when he said:

. . . notice of readiness can be given even though there are some further preliminaries to be done, or routine matters to be carried on, or formalities observed. If those things are not such as to give any reason to suppose that they will cause any delay, and it is apparent that the ship will be ready when the appropriate time arrives, then notice of readiness can be given.

3.176船舶办理结关手续通常必须经过海关、移民局和卫生检疫三个部门。他们所希望检查的文件包括船舶登记证书、货物舱单、船旗国服务簿、纳税物品名单、船员名单以及船舶物品等。在不同的港口或国家受检的文件多寡不一,要根据由当地的习惯和当地法律或国家法律所确立的当地条件标准。但是,不论港口所要检查的文件有多少,提供这些文件在船的责任都在船方。倘若船长有把握认为这种结关手续不会被拒绝,那么即使他的船舶还没取得结关单,根据普通法,在船舶抵达了指定的目的地时他也可以宣布他的船舶已准备就绪。因此,这类结关手续可能往往被看作是各项预备措施之一,正如Denning勋爵在The Tres Flores—案中所认为那样:

……即使一些进一步的预备措施还要办或者例行的公事还要去做,或者正常手续还没通过,准备就绪通知书仍可以递交。如果有理由证实办理这些事情不会产生延迟,而且很显然,船舶到时候会准备就绪的,那么,准备就绪通知书就可以递交。

3.177 In addition to the clearances mentioned above, other local authorities may have their own requirements. An instance of this is provided by the London Arbitration Award described in Lloyd’s Maritime Law Newsletter No 35. This concerned a routine inspection of a vessel by the local harbour authorities on her arrival at a Chinese port. The dispute concerned whether clearance by the harbour authorities was required before laytime could commence. The inspection itself took 40 minutes and there was no evidence to show that this was other than the approximate time usual for this operation. The inspection did not find anything untoward with the vessel and was not causative of any delay to the ship; after the inspection the vessel waited for a discharge berth for about a week. The arbitrator decided the case in favour of the owners: he considered that a fairly broad approach should be taken to preliminaries which have to be carried out when vessels arrive at a port and such preliminaries cannot be carried out for some time after the vessel has arrived, assuming no failure by those on board the vessel in presenting the vessel for the preliminaries. He accepted the owners’ plea that a routine inspection is a mere formality which can be ignored for the purpose of commencement of laytime and that it is not a condition precedent or something of such substance that it prevents the triggering off of the laytime clock.

3.177除了上述结关手续外,其他地方部门也有他们各自的要求。其中一例见于1981年第35期《劳氏海商法资讯》中的一个伦敦仲裁的裁决。该案所涉及的是一艘船舶抵达一个中国港口后所受的港口当局的例行检査的情况。产生的争议是:在装卸时间起算之前联检是否必要?联检本身用了40分钟,而且又没有证据表明它比通常的联检大约花费的时间更长些。该检查并未发现对该轮有何不利,而且又未因此对该轮造成延迟;在该轮联检后,因等泊又用了大约1周的时间。仲裁员裁定该案对船东有利,他认为,应该对这一初步工作采取一个公正开明的态度来看待,也就是说,在船舶抵港时,就必须进行这一检查工作,而不应凭想象船上没有缺陷肯定能顺利通过,就要在抵港后的一段时间再办理。他接受船东的抗辩,认为这种例行检査仅不过是一种正常手续而已,在装卸时间起算问题上对之不必考虑。而且它也不是什么先决条件,它并不能阻碍装卸时间时钟的启动。

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