程租合同下等泊时间计算装卸时间条款与阻碍停算装卸时
间条款-港⼝拥挤
栩栩如生英文[1988] Vol. 2 LLOYD'S LAW REPORTS 416
COURT OF APPEAL June 23, 27 and 28, 1988
恶魔猎手英文NAVROMv.CALLITSIS SHIP MANAGEMENT S.A. (THE "RADAUTI")
responBefore Lord Justice Slade
Lord Justice Croom-Johnson本能的意思是什么意思
and Lord Justice Lloyd
Charter-party (Voyage) - Demurrage - Time lost in waiting for berth to count as laytime - Vesl waiting for berth due to congestion - Whether laytime ran during whole or part of period -Whether charterers liable for demurrage.
英国上诉法庭案例，法庭判定程租合同下等泊时间计算装卸时间条款是印就条款，其效⼒低于附加条款
中的阻碍停算装卸时间条款。阻碍包括港⼝拥挤的情况，该附加条款‘不可抗⼒’的标题不能将港⼝拥挤的情况排除在‘阻碍’之外。即使港⼝拥挤是事先可以预知的，也不影响和限制‘阻碍’的⼀般解释。
On Sept. 16, 1977 the owners let their vesl Radauti to the charterers for the carriage of a cargo of bagged wheat flour from Rotterdam to Tripoli.
The charter-party provided inter alia:
6 . . . Time lost in waiting for berth to count as laytime.
日你妈33 Force majeure: . . . or any other . . . hindrances happening without the fault of the Charterers . . . delaying . . . discharging . . . of the cargo are excepted and neither the charterers nor the shippers should be liable for any loss or damage resulting from any such exempted clau and time lost by reason thereof shall not count as laydays or days on demurrage.
The vesl arrived at Tripoli roads and anchored on Oct. 21, 1977; notice of readiness to discharge was given on Oct. 22 but the vesl did not obtain a berth until Dec. 15. Discharge was not completed until Jan. 18, 1978.
The time allowed for discharging calculated according to cl. 20, was 10 days 11 hours and 22 minute
s. The charterers were required to pay demurrage at the rate of $2000 per day.
The owners claimed demurrage for 73 days 23 hours eight minutes on the basis that time started to count on Oct. 22, 1977 when their notice of readiness expired. The charterers contended that time did not count until Dec. 15 when the vesl obtained a berth. On that basis they admitted liability for demurrage in the sum of $40,306.60.
The dispute was referred to arbitration and the umpire held that the owners’ claim for demurrage at Tripoli failed save to the extent admitted by the charterers; that the vesl was delayed at Tripoli Roads due to the port being congested and that such delay was without the fault of the charterers.
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The umpire stated his award in the form of a special ca the question of law for the opinion of the Court being: whether on the facts found and on the true construction of the charter-party laytime ran during the whole or part of the period that the vesl was waiting for a berth in Tripoli so as to
cau the vesl to go on demurrage at 17 22 hours on Nov. 5, 1977 or some other time and if so what time?
moralsThere was also a motion by the owners to remit or t aside the award on the ground of misconduct or procedural mishap.
-Held, by Q.B. (Com. Ct.) (Staughton, J.), that (1) cl. 6 was for the most part in printed form and it was well established that in ca of conflict it must yield to cl. 33 which was specially agreed by the parties; and although the words "time lost in waiting for a berth to count" had a different effect for some purpos there was no significant difference so far as concerned this ca or that one phra should have any greater weight than the other as an indication that time was to run when all berths were occupied and the port was congested; cl. 6 did not override cl. 33; if on a fair reading of cl. 33 the charterers were exempted from liability for the conquences of congestion in the port it might well be that the printed cl. 6 had little or no content;irma
(2) the authorities did not decide that the obstacles which prevented the vesl reaching a berth could not, if provided for in the exceptions clau stop waiting time from running;
(3) it would be wrong to conclude that becau obstructions had in the past been held to include congestion which prevented a vesl reaching a berth, the word "hindrances" in cl. 33 also included congestion; that could only be justified by reasoning that, although the parties ud different language, they must have intended to make a contract to the same effect as others had done in the past; the parties intended that the charterers were not to be liable for delay caud by events outside their control or occurring without fault on their part and there was no reason to restrict the ordinary m
越狱tbageaning of "hindrances";
(4) the title "force majeure" to cl. 33 was not sufficient to exclude congestion from being within the word "hindrances" even though as the umpire found it was well known that Tripoli had suffered from congestion for a number of years; and the umpire’s conclusion would be upheld;
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(5) the umpire was entitled to make the findings which he did without expressly stating that he was relying on his own knowledge or experience to the parties; there was no lack of natural justice or fairness, no misconduct and no procedural mishap; the owners’ motion failed.
The owners appealed.
-Held, by C.A. (Slade, Croom-Johnson and Lloyd, L.JJ.), that (1) the word "obstruction" covered the inability of a vesl to get to her berth becau of congestion; the degree of congestion was clearly irrelevant as was the likelihood of congestion; the phra "hindrances . . . delaying . . . the discharging of the cargo" should be given its ordinary meaning even though on the facts some degree of hindrance was inevitable; and the foreability of the congestion did not justify attaching an unusual or restricted meaning to the word "hindrances" (e p. 420, cols. 1 and 2; p. 422, cols. 1 and 2);-The Amstelmolen, [1961] 2 Lloyd’s Rep. 1, considered and applied.
(2) there could be no possible objection to the umpire using his general knowledge derived from his experience in the trade as to the prevalence of congestion at a particular port nor as to the caus and effect of congestion in general; there was no question of the umpire using any special knowledge which he might have possd; the umpire was entitled to infer from his general knowledge that the congestion occurred without the fault of the charterer and there was no need for him to disclo that piece of his general knowledge; there was no procedural mishap and no injustice to the owners; the appeal would be dismisd (e p. 421, cols. 1 and 2; p. 422, cols. 1 and 2).
