《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

Contracts of sale 买卖合同

3.209 An interesting illustration of how contracts of sale and their related charterparties may differ is provided by Kronos Worldwide Ltd v. Sempra Oil Trading SARL (The Spear I).

3.209 在Kronos Worldwide Ltd v. Sempra Oil Trading SARL (The Spear I)案，就买卖合同和相关联的租船合同之间的差异提供了有趣的说明。

3.210 Kronos entered into a contract for the supply of a maximum of 14 cargoes of oil with Sempra. The problem arose with the second shipment, which was to be carried on board the Spear I, which arrived at Constantza to load and tendered notice of readiness. A berth was available but the vessel did not move into it, because no cargo was available, because no letter of credit relating to the sale had been provided or called for. It was only about a week later that Kronos sought this, once their cargo had become available. It was not in dispute that time ran after the arrival of the Spear I in the normal way as between Sempra and the owners of the vessel.

3.210 Kronos公司与Sempra公司签订了一份最多供应14种货油的合同。问题出现在第2批次运输上，货物预计是装载在Spear I轮上，在该轮到达罗马尼亚的Constantza港装货并递交了准备就绪通知书。泊位是空闲可用，但船舶不能移入靠泊，因为没有可以装船的货物，原因是还没有开出或取得货物买卖的信用证。当他们的货物准备好，这已是大约一个星期后，Kronos（卖家）才试图解决这一问题。在Sempra（租船的FOB买方）和船东之间就船舶到达后装卸时间的正常起算方式并没有争议。

3.211 Reversing the decision at first instance, finding that time was not triggered under the sale contract by the notice of readiness, the Court of Appeal held that Sempra, who had been asked to defer the shipment until the cargo was likely to be available but who had refused, were in breach of their obligation to furnish a letter of credit in advance of the dates of shipment (The Spear I arrived in the middle of the shipment dates). Although as of the date of arrival of the Spear I Kronos had no cargo, the court held that the provision of a letter of credit was a condition precedent to the sellers’ duty to perform any part of the loading operation. The fact that the running of laytime under a sale contract depended on the provision of a letter of credit, whereas the running of laytime under the charterparty did not, derived from the differences between the nature and terms of the two types of contract, having regard in particular to the protection for the seller intended to be provided by the letter of credit.

3.211在此案一审，认定：根据买卖合同，准备就绪通知书并没有启动装卸时间的计算。但上诉法院推翻了这一判决，裁定：Sempra公司（买方）没有在货物付运日期之前提早开出信用证是违反其合同义务，因为它已经被要求推迟付运直到货物有可能备好，但它拒绝(Spear I轮是在付运期中间到达装港)。尽管Spear I轮到达时Fronos公司还没有准备好货物，法院判决：信用证条款的规定是卖方履行其部分装货作业义务的先决条件。事实上，在买卖合同下，装卸时间的起算是取决于信用证条款，而不能根据租船合同开始起算装卸时间，这是源自于这两种合同在性质和条款上的差别，考虑到卖方希望开出信用证作为自己特别的保障。

Implied requirements 默示规定要求

3.212 In London Arbitration 11/89, charterers sought unsuccessfully to argue that the charter, an Asbatankvoy form, contained an implied term that the master should ensure that everything necessary or customary is done on arrival at the discharge port to facilitate the prompt berthing of the vessel. Given the type of charter, this was probably an attempt to avoid the effect of the reachable on arrival provision.

3.212在报道的伦敦仲裁1989年第11号案，承租人试图争辩（没有成功）说Asbatankvoy格式范本的租船合同（美国船舶经纪人协会拟定的油轮程租合同格式）中包含一个默示条款：船长应保证抵达卸货港时，办理好一切必要的或习惯性的手续，以便能协助船舶及时靠泊。订立这种形式的租船合同，这可能是试图回避抵达即靠泊条款的作用。

3.213 The vessel arrived off the port late in the evening and the master cabled notice of readiness to the charterers’ agents. The cable took a little under nine hours to arrive. In the meantime another vessel arrived and registered her arrival with the Port Control by VHF, which the first vessel had not, resulting in the second ship gaining priority in berthing. Charterers argued there was an implied term to the charter that ‘‘the master and/ or crew would do as soon as practically possible any and all things necessary or customary to facilitate the prompt berthing of the ship and the discharge of her cargo’’, and this meant she should have registered with the port authority.

3.213船舶（2月2日星期天）晚上抵达港外，船长用电报向承租人的代理递交了准备就绪通知书，这电报经过约9小时才算送达（第二天星期一早上上班）。同时抵达的还有另一艘船，她通过无线电话向港口控制中心做了登记，而第一个船舶却没这样做，结果第二艘船先行靠泊。承租人声称该租船合同中有一默示条款，规定：‘船长和/或船员实际上应尽可能快地办理任何或所有必要或习惯性的手续，以便协助船舶能迅速靠泊卸货’，这就意味着她本应该向港口当局登记。

3.214 The arbitrators disagreed. No such term should be implied. Furthermore, it was the charterers’ duty to designate and procure a berth reachable on arrival. The charterers had provided detailed voyage orders, but had not instructed the master to register with the port authority.

3.214仲裁员不同意。这类条款不应被默示。而且，在船舶抵达时为其安排和获得泊位是承租人的义务。承租人虽然已经提供了详细的航次指示，但是并未指示船长向港口当局登记。