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《装卸时间与滞期费》第3章-装卸时间的起算-连载39

发布者:海员网|更新时间:2019-03-13 15:28:06|咨询可以加微信:cyfu01 | 45人评论)

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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

  3.312 In Paci?c Carriers Corporation v. Tradax Export SA (The North King), the facts of which have already been given, the judge and the umpire both decided the case on the basis that the charterers’ agents, acting with the authority of their principals, had accepted the vessel’s notice of readiness on a Saturday, which was a holiday, when arguably under the charter they should not have done, in pursuance of an agreement with the owners’ agents. The umpire was also prepared to hold that the charterers were estopped by acceptance of the notice from denying its validity and effectiveness. On this aspect, Mocatta J said:

  . . . it is not strictly necessary for me to consider whether the owners can also support the conclusion at which the umpire arrived on the basis of estoppel as distinct from that of agreement. I have no doubt that the proper inference of fact is that a representation was made to the effect that if a proper notice, in the sense that the ship was then ready physically, was given on Nov. 1, before noon, it would be treated as having the same effect as a similar notice given on any other Saturday. The question, however, whether the owners acted upon that representation in a way in which they would not otherwise have acted is, perhaps more dif?cult. Accordingly, although it may be that on the point of estoppel, if it had stood alone, I would have reached the conclusion that the owners were entitled to succeed, I think it best not to base my judgment in the alternative upon that, but to restrict it to the ?rm ground with which I have already dealt, namely, that there was an agreement between the parties, the effect of which was to treat Saturday Nov. 1 in the same way as any other Saturday for the purposes of the giving of a Notice of Readiness.

  3.312在Pacific Carriers Corporation v. Trad ax Export S A (The North King)案,该案的案情前面已经给出,法官和公断人都根据这样的理由对该案作出判定,即承租人的代理,在他们代表其委托人在授权范围内行事之时,在属于节假日的星期六里接受了船舶的准备就绪通知书,但是值得争议的是,当根据租船合同的规定并按照与船东代理人的协议一起执行时,他们本来是不应该这样做的。公断人还准备裁定:由于承租人接受了该通知书,他被禁止翻供不能否认通知书的有效性和效力。针对这一问题,Mocatta法官说:

  ……严格对我来说,这并非一定要去考虑船东是否也能支持公断人基于禁止翻供的原则所得出的结论,因为它是与通过协议得出的结论是有区别的。毫无疑问,这正确的事实推论是,如果一个适当的准备就绪的通知书在11月1日(星期六)的中午之前递交,那么,在某种意义上是表明船舶在实质上已经准备就绪,则其效果将被视为如同在任何其他星期六递交的类似通知书一样,然而,船东是否根据通知书所表述的形式而行动,而不是另有所谋,要弄清这一问题或许是很难的。相应地,尽管可以基于禁止翻供的观点,如果这一理论能够独自成立的话,我本应来可以得出船东有权胜诉的结论,但我认为,最好不要使我的判断有选择地基于上述(禁止翻供)论点,而应是立足于我已经提到的牢固的基础,即当事双方之间已有一个协议,其作用是,对于递交准备就绪通知书而言,11月1日星期六应视为与任何其他星期六完全一样。

  3.313 The question as to whether there was an estoppel when receivers’ agents accepted a notice of readiness incorrectly was one of the main issues raised in Surrey Shipping Co Ltd v. Compagnie Continentale (France) SA (The Shackleford). Under the relevant charter, notice of readiness was required to be given to receivers or their agents at or before 16 00 on of?cial working days, the vessel also having been entered at the Custom House. This latter requirement was therefore a condition precedent to the giving of notice, but unfortunately for the owners, the vessel could only be entered at the Custom House having berthed. However, it did not matter what sort of berth she arrived at, provided she was alongside, i.e. it did not have to be a discharging berth and could, for instance, be a bunkering berth.

  3.313当收货人的代理错误地接受了准备就绪通知书时是否存在着禁止翻供的问题是Surrey Shipping Co Ltd v. Compagnie Conti-nentale (France) SA (The Shackleford)案中争议的焦点之一。按照该租船合同中,要求准备就绪通知书应该在正式工作日的下午1600点或者之前递交给收货人或其代理人,并且该轮还应该已经完成了报关手续。所以,后一条件要求就成立递交通知书的先决条件,但是,遗憾的是,该轮只有靠泊后才能办理报关手续。不过,她随便靠什么泊位都可以办理这项手续,比如,她不必靠卸货泊位,即使靠在加油的泊位也行。

  3.314 On arrival at the usual anchorage, the Shackleford tendered notice of readiness, although she had not been entered at the Custom House. Nevertheless, this was accepted by the receivers’ agents, who also advised the owners that time would count from arrival in the roads off the port. As there was congestion in the port, there was some delay before the vessel could berth and the ?rst berth she proceeded to was a bunkering berth. Customs entry was effected whilst she was in the bunkering berth and she then proceeded to a lay-by berth and eventually to a discharging berth. The owners argued that in reliance upon acceptance of notice of readiness by the receivers’ agents and the message they subsequently received, they did not attempt to procure an earlier berth to effect Customs entry.

  3.314在抵达通常锚地后,尽管Shackleford轮并未办妥报关手续, 她还是递交了准备就绪通知书。而且不管怎样,它还是被收货人的代理接受了,并且他还告诉船东装卸时间应从船舶抵达了港外锚地开始起算。由于该港的拥挤,该轮在靠泊前延迟了一段时间,而她所靠的第一个泊位就是一个加油泊位。当她靠在加油泊位时,办理了报关手续,接着她就驶往一个等候泊位,最后才靠上了卸货泊位。船东辩称说他们依赖了收货人的代理接受了准备就绪通知书的事实以及后来又收到的信息,他们就不准备专为报关而提前安排一个泊位。

  3.315 In the High Court, Donaldson J held that the notice of readiness given on arrival was a good notice in that the vessel had arrived at Constantza, the discharging port, and was ready to discharge, but it was premature in that no Customs entry had been obtained; under the terms of the charter, the receivers could have rejected or ignored the notice but they had accepted it and this created an estoppel by conduct so that the charterers could not now allege that the notice was premature.

  3.315在高等法院,Donaldson法官判定:抵达时递交的准备就绪通 知书是一个有效的通知书,表明了该轮已抵达了卸港——罗马尼亚Constantza港,并做好了卸货准备。但是由于当时尚未报关,该通知书还是有些为时过早。根据该租船合同的条文规定:收货人本应该有权拒收或者不理会该通知书,但既然他们已经接受了,这就产生了行为上的禁止翻供,因此承租人就不可以再争辩说该通知书递交得过早。

  3.316 In the Court of Appeal one of the main points raised was whether the receivers were acting within their authority in accepting premature notice of readiness and on this the court were prepared to accept that it was open to the arbitrator to ?nd from his own experience, in the absence of any evidence either way, that this was within their usual authority, a conclusion supported by Potter LJ in The Happy Day.

  3.316在上诉法院,提出一个主要争议是:收货人接受这一过早的准备就绪通知书是否是其授权范围之内的行为?关于这一点,法院准备接受仲裁员根据他们的经验所做的裁决,在别无其他证据的情况下,裁定这一种接受行为是属于他们的正常授权范围,在The Happy Day案,Potter大法官也支持这一结论。

  3.317 On the estoppel issue, Sir David Cairns said:

  An important issue at the arbitration and before the judge was whether the acceptance was relied on by the shipowners. The arbitrator found that it was. The judge held that he was bound by that ?nding and charterers have not challenged that part of the judge’s decision in this court.

  3.317关于禁止翻供的问题,David Cairns爵士说:

  提交仲裁和法院的主要争议就是:船东是否可以依赖于这一接受行为?仲裁员认定是,法官也接受仲裁员的这一裁决,而承租人对此也未提出异议。

  3.318 Another case concerning acceptance of a notice of readiness was So?al SA v. Ove Skou Rederi (The Helle Skou). Here the vessel concerned was chartered for the carriage of skimmed milk in bags, the previous cargo being ?shmeal in bags. A clause in the charter required the vessel to be presented with holds clean and dry and free from smell. On presentation, the charterers accepted the vessel without verifying the state of the holds and commenced loading. In fact, the vessel was not free from smell and eventually it was decided that the cargo that had been loaded must be discharged so that the vessel might be cleaned. As a result some four days were lost. The owners admitted that notice of readiness should not have been given, but denied that the charterers were entitled, as they contended, to reject the notice of readiness since they had begun loading. It was, of course, not in dispute that damages were payable.

  3.318另一个有关接受准备就绪通知书的案例就是Sofial SA v. Ove Skou Rederi(The Helle Skou)案。在该案中船舶被租运装载袋装脱脂奶粉,上一票货是袋装鱼粉。租船合同中的一个条款规定:船舶在递交(通知书)前必须使货舱清洁、干燥、无异味。当该轮递交(通知书)时,承租人接受了,并且没有核实货舱状况即开始了装货。实际上,该轮并非没有异味,最终导致已装上船的货物必须卸下,然后再清洁货舱。这样,就耽搁了 4天的时间。船东承认不应该递交准备就绪通知书,但,如其争论的,又否认承租人有权拒绝准备就绪通知书,因为他们已开始了装货。当然,就没有什么损失可以要求赔偿了。

  3.319 In upholding the owners’ argument, Donaldson J said:

  There have been many cases of notice of readiness being rejected as premature and subsequently accepted: see, for example, Compania de Naviera Nedelka SA v. Tradax International SA (The Tres Flores) [1973] 2 Lloyd’s Rep 247, but I think that this is the ?rst case in which charterers have accepted such a notice and later claimed to reject it. I do not think that they can do so. As Mr Hallgarten pointed out, the contrary view would enable a charterer to reject a notice of readiness and to start laytime all over again if he discovered some lack of readiness in the ship at a late stage in loading. And this would be the case even if the cargo did not have to be discharged.

  A notice of readiness which is rightly rejected is a nullity, save to the extent that with the express or implied agreement of the charterers, it may be left with them instead of being re-served and will then take effect when it truly represents the facts. But this notice was far from being a nullity. It was the key which unlocked the holds of the vessel and allowed loading to begin. And it was the charterers’ act which created this position. Whether it is labelled as waiver or estoppel or something else, I do not consider that the charterers can resile from this position, save upon grounds of fraud.

  3.319 Donaldson法官支持船东的观点,说:

  这有许多由于准备就绪通知书递交的过早而被拒绝和随后才被接受的案例,比如,Compania de Naviera Nedelka SA v. Tradax International SA (The Tres Flores)案,但是我认为,这是第一个承租人已经接受了通知书和后来主张拒绝它这样的案例。我认为他们不可以这样做。正如Hallgarten先生所指出的,假如赞同相反的意见,那么就会使承租人拒绝通知书并重新起算装卸时间,如果他在装货的后一阶段发现该轮的准备工作有缺欠的话。而本案就是这样的情况,即使货物不一定卸下。

  被正确驳回的准备就绪通知书是无效的,除非承租人明示或暗示地同意可以将它留下以代替再交一份,并等到它能真正体现事实时再行生效。但是这样的通知书远非无效的。它是一把开舱的钥匙,可以打开舱口并允许装货作业开始。而这把钥匙却掌握在承租人手中,只有他们的行为才能创造这一局面。不论将这种行为标以弃权、禁止翻供或其他什么,我都不认为承租人反悔恢复到原状,除非涉及欺诈骗局。

  3.320 In The Shackleford, the Court of Appeal mentioned that in that case, Donaldson J had in part relied upon his own earlier decision in The Helle Skou, but did not ?nd it necessary to consider it further.

  3.320 上诉法院在The Shakleford案中也曾提到那一案例(The Helle Skou),Donaldson法官部分依据了他早期对The Helle Skou案的判决(这两个案件,在高院都是Donaldson审理的),但他认为没有必要进一步研究。

  3.321 The following cases illustrate the attitude taken by various panels of arbitrators to the question of acceptance of defective notices. As Donaldson J pointed out in The Helle Skou, it is a common commercial practice for defective notices of readiness to be left with those upon whom they have been served in the expectation that they will take effect when the vessel eventually meets all the requirements of readiness. The danger of so doing will be obvious from the judgment of the Court of Appeal in The Mexico I, although some of those effects may have been lessened by the further decision of the Court of Appeal in The Happy Day.

  3.321下面这些案例显示出不同的仲裁庭成员对接受有缺欠的通知书这一问题的各种不同的看法。正如Donaldson法官在The Helle Skou案中所指出的那样,按照正常商业习惯,对于有缺欠的准备就绪通知书被送达的一方,他们会期望船舶最终在各方面都满足准备就绪条件时,这一通知书才生效。从上诉法院对Mexico I的判决中,我们可以明显地看出这样做的风险所在,尽管,由于上诉法院的又一个判决(The Happy Day),这方面的危险效果才有所减轻。
  

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