《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

　　3.71 In The Johanna Oldendorff, Lord Diplock said that the distinction between the two cases was that in the latter the waiting area was inside the dock and therefore close to the discharging berths. This meant that as soon as a berth fell vacant, the ship could be warped to it from her moorings without any significant delay and she was therefore at the immediate disposal of the charterer.

　　3.71在The Johanna Oldendorff案，Diplock勋爵说：这两个案子的区别是后者的等泊区域就在码头港池之内，所以离卸货泊位较近。这就意味着一旦有泊位空出来，船舶就能从系泊点拖曳到泊位上，而不会造成明显延迟，所以她是处于承租人能够立即马上支配之下。

　　3.72 As already mentioned, dock charters came into common use as a separate class of charter during the third quarter of the nineteenth century, following the general expansion of trade about that time which had led to the development of extensive dock systems at many of the major ports. By 1872, it had become accepted that, in the case of a dock charter, the specified destination had been reached when the ship concerned entered the dock, regardless of whether it had reached a point where it could load or discharge cargo.

　　3.72如前所述，在19世纪第3个季度之间，随着贸易的全面扩展，码头租船合同作为一种独立的种类得到了广泛应用。大约也就是在这段时间内，导致许多主要港口也随之扩展其码头区域。到了1872年，这个观点已经被大家接受，按照码头租船合同，有关的船舶只要驶入码头港池，不论能否抵达进行装卸货作业的地点，都算是已经抵达了指定的目的地。

　　3.73 In Tapscott v. Balfour, Bovill CJ was also prepared to hold that the same principle applied to a port charter, although it took a further 37 years, until the decision of the Court of Appeal in Leonis Steamship Co v. Rank (No 1), before the point was finally settled. Bovill CJ said that the rule was that where a port was named in the charterparty as the port to which the vessel was to proceed then lay days did not commence upon her arrival in the port, but upon her arrival at the usual place of loading in the port, not the actual berth at which she loaded but the dock or roadstead where loading usually took place.

　　3.73 在Tapscott v. Balfour案，首席法官Bovill也准备判决该原则同样也适用于港口租船合同。尽管这一观点又过了37年，直到Leonis Steamship Co v. Rank案，上诉法院才在其判决中被最终确立。Bovill首席法官认为说：这个原则就是，如果租船合同中订明的港口就是船舶应该驶往的港口，那么，在该轮抵达驶入该港当时，装卸时间并不应该立即起算，而是在该轮抵达了该港内通常的装货地方时才起算时间，该地并不一定是实际的装货泊位，但可能是通常进行装货的码头或是开敞锚地。

　　3.74 In Nelson v. Dahl, in the Court of Appeal, Brett LJ carried out a comprehensive review of the earlier authorities dealing with the question of when a ship becomes an Arrived ship under berth, dock and port charters. On dock and port charters, he said:

　　If it describes a larger place, as a port or dock, the shipowner may place his ship at the disposition of the charterer when the ship arrives at that named place, and, so far as she is concerned, is ready to load, though she is not then in the particular part of the port or dock in which the particular cargo is to be loaded.

　　3.74在Nelson v. Dahl案，上诉法院Brett大法官针对早期在泊位、码头和港口租船合同下，船舶何时算作抵达船的问题所做出的那些判例进行了广泛的回顾。根据码头和港口租船合同，他说：

　　如果所指定的地方范围较大，比如说是一个港口或码头的话，当船舶驶抵指定的地点，船东可以将船舶置于承租人的支配之下，而且，就该船舶而言，她已做好了装货准备，尽管这时该轮还不在将来要装货的港口或码头某一部分具体范围之内。

　　3.75 Another slightly later case dealing with when the specified destination was reached in a port charter was Pyman Brothers v. Dreyfus Brothers & Co. In that case, a ship was chartered to proceed to Odessa ‘‘or as near thereunto as she might safely get’’. At Odessa, there was an outer and inner harbour with quays in both harbours. The quays were the only places at which it was practicable to load cargo. The cargo for the Lizzie English, the ship concerned, was stored at a quay in the inner harbour and charterers’ agents were unwilling to load it elsewhere. On arrival, the Lizzie English anchored in the outer harbour to await a berth in the inner harbour. Because of congestion, a berth did not become available until 17 days after her arrival when she was able to proceed into the inner harbour. Because of the crowded condition of the port, she could not have obtained a quay berth in either harbour earlier. Interestingly enough, there was also a finding that there was no custom of the port that a ship did not become an Arrived ship until moored alongside a quay.

　　3.75稍后另一个有关根据港口租船合同何时算已抵达指定目的地的案例就是 Pyman Brothers v. Dreyfus Brothers & Co 案。在该案，船舶被出租前往乌克兰Odessa港‘或距该港尽可能近的该轮能够安全抵达的地方’。在Odessa港，有内外两个港区，并且这两个港区内都有码头。只有这些码头才是实际能够进行装货的地方。该案所涉及的船舶Lizzie English轮，其所要装的货物当时就堆存在内港的一个码头上，而且承租人的代理人也不想在别的地方安排装货。该船抵达后，先在外港拋锚等候内港的泊位。由于港口拥挤，该轮在抵达外港17天后才得以进入内港靠泊。由于该港的拥挤状态，该轮未能更早地靠上内外两港港区内的任何一个泊位。更有趣的是，当时还有一项认定，即该港并不存在只有当船舶靠妥码头才算抵达船的惯例。

　　3.76 On these facts, both the High Court and the arbitrator, before whom the matter was originally argued, held that the Lizzie English became an Arrived ship on arrival in the outer harbour. In his judgment, Mathew J said:

　　Here the vessel arrived on December 22 at a point she was at the disposition of the charterers. They had only to indicate the place to which she was to go for her cargo, and she would have been there immediately.

　　3.76根据以上事实，高院和仲裁员，针对提交给他们的最初争议的事项，裁定当Lizzie English轮抵达了外港时就算是抵达船了。Mathew法官在他的判决中说：

　　在此，该轮已于12月22日抵达了可供承租人支配的地点。承租人就必须指示一个该轮应该并且能够立即马上前往装货的地方。
　　

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