《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

CHAPTER 3 第3章

Commencement of laytime

装卸时间的起算

3.13 Most tanker charters, however, allow the charterer to nominate alternativeports after a first nomination, or to order the vessel to proceed to a holding destinationfor further instructions to be passed by radio. Thus the Asbatankvoy formspecifies Gibraltar or Land’s End for orders and the STB Voy form also adds14 Eurico SpA v Philipp Brothers (The Epaphus) [1987] 2 Lloyd’s Rep 215, at p. 220.15 Eurico SpA v Philipp Brothers (The Epaphus) [1986] 2 Lloyd’s Rep 387, at p. 392.16 Eurico SpA v Philipp Brothers (The Epaphus) [1987] 2 Lloyd’s Rep 215, at p. 219.17 Anglo-Danubian Transport Co Ltd v Ministry of Food (1949) 83 Ll L Rep 137, at p. 139 per Devlin Jand cases cited therein. See also The Antalya (NY Arb), LMLN 291, 29 December 1990.18 Aktieselskabet Olivebank v Dansk Svovlsyre Fabrik Ltd [1919] 1 KB 388, where the nominationof a Danish port to which a British ship could not lawfully proceed was held to be nugatory, obligingthe charterers to give a fresh nomination.COMMENCEMENT OF LAYTIME87Quoin Island, Suez and Aruba. Moreover there may become a point after whichthe right to change the nomination becomes spent. In The Batis , 19 charterers soughtto change the load port after arrival at the original nominated port. The charterwas on an ASBA II form and provided for 1/2 load ports. Owners complied withthe change under protest and reserved their rights to claim additional remuneration.In arbitration, the arbitrators held that the right to change the nominated load porthad been lost, but compliance with the charterers’ orders deprived the owners fromthe full remedy sought. Leave to appeal from the finding that the changed orderswere illegitimate was refused by the High Court, who held that it was not an orderthat the charterers were entitled to give. They did, however, hold that the ownerswere not to be denied their remedy because they had complied with the orders.

3.14 The case may be contrasted with The Jasmine B , 20 where the charter provideda special provision 2 for discharge at 1/2 safe ports in three ranges with amaximum of three ports total. A further clause, M1, provided for charterers tohave the right to change at any time its nomination of the loading and/or dischargingports subject to special provision 2. The charterers ordered the vessel to dischargeat Porto Torres in Sardinia and, after arrival at that port, ordered her insuccession to proceed to Houston for orders, which the owners challenged, to waitoutside Porto Torres for instructions, to proceed to New York for orders and finallyto discharge at Genoa.

3.15 The High Court affirmed the general principle that, in the absence of anyspecial provision in a charterparty, the effect of the nomination of a loading ordischarging port by the charterer was that the charterparty was thereafter to betreated as if the nominated port had originally been written in the charter, andthe charterer had neither the right nor the obligation to change that nomination.

3.16 The nominations for orders were outside the terms of the charter. Thecourt held that clause M1 was in wide terms and entitled the charterers to changeat any time their nomination and there was no reason to imply the words “so longas Notice of Readiness had not been given” or “so long as the vessel is not alreadyon demurrage” into the clause. It was further held that the general principle setout above should not be extended so as to hold that a representation that thenominated port was to be the sole discharging port constituted the exercise of aright of election or selection and that, even if that was wrong, the charterers wereentitled to change their nomination under clause M1 of Porto Torres as sole dischargeport to Genoa as sole discharge port. If Porto Torres had become an effectiveport of discharge since the vessel had tendered notice of readiness, then theeffect of the order was that the charterers changed their nomination so that PortoTorres became the first port of discharge and Genoa the second.

3.17 In The Batis , the High Court only considered whether the charterers wereentitled to change their nomination under the change of load/discharge portsprovision, not under any other term of the charter, such as that allowing loadingat more than one port, although that argument was rejected in arbitration.19 Batis Maritime Corporation v Petroleos Mediterraneo SA ( The Batis ), LMLN 263, 2 December1989; [1990] 1 Lloyd’s Rep 345. See also London Arbitration 12/90 – LMLN 286, 20 October 1990.20 Bulk Shipping AG v Ipco Trading SA (The Jasmine B) [1992] 1 Lloyd’s Rep 39.COMMENCEMENT OF LAYTIME88

3.18 The relationship between a clause allowing charterers to change a previouslynominated port and one giving charterers a right to cancel the charter was oneconsidered by the High Court, on appeal from arbitration, in The Kriti Filoxenia.21The clauses in question were clauses 17 and 24 of the BP Voy 3 form of charter.

3.19 The ship in question had previously discharged in Santa Panagia in Sicilyand then fixed to load at a range of Black Sea ports. The charterers nominatedTuapse in Russia as the intended load port but after sailing asked for ETAs forthis and two other ports as well – Sevastopol in Crimea and Batumi in Georgia.At the time, the vessel’s route was common to all three ports. Of the three ports,Sevastopol was nearest to Santa Panagia, then Tuapse and the furthest was Batumi.The day after ETAs were provided, the charterers changed their nomination toBatumi, where the vessel was expected to arrive after the right to cancel arose. Ifmatters had gone according to plan, the vessel would have arrived at Tuapse theport originally nominated, two hours before any right to cancel would have arisen.

3.20 The charterers purported to cancel under the second paragraph of clause17. However the arbitral tribunal that heard the case originally, which included aretired member of the Court of Appeal, and the High Court held that in exercisingtheir right to change their nomination under clause 24, the charterers lost theirright to cancel under clause 17.

3.21 An example of a particularly widely drafted change in a nomination clauseis clause 9 (b) of the Exxonvoy 84 form, which provides:CHANGE OF DESTINATION . After nominating loading and/or discharging port(s) or place(s)pursuant to Paragraph (a) of this Clause, Charterer may nominate new port(s) orplace(s), whether or not they are within the range of the previously nominated port(s)or place(s) and/or vary the rotation of any nominated port(s) or place(s) . . .

3.22 The clause goes on to make it clear that the right to nominate a differentloading/discharging port in a different range is lost once notice of readiness istendered at a nominated loading/discharging port. This leaves open the questionas to whether a different port may be nominated within the same range. Probablythe answer is that by implication it can.

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