4. Calculation of damages for loss of profit
21.89 The measure of damages recoverable by owners, where a charterer’s breach deprives them of the opportunity to earn the chartered freight, is sometimes defined as the difference between the contract and the market rates of freight, thus reflecting the measure of damages recoverable in the case of a failure to accept and pay for goods for which there is an available market. In practice, however, there is rarely an available market in substitute charters, in the sense of sufficient cargoes to create a market and available for carriage from the same loading port, to the same destination and at the same time as the original chartered voyage; the ship will frequently have to proceed to a different loading port, and the substitute voyage will usually commence later than the original chartered voyage, and will finish later, and at a different port of destination.
21.90 In these circumstances, the damages are normally calculated by making a comparison between the gross profit (namely freight, demurrage and other charges, less voyage expenses) which the owner would have derived from the broken charterparty, and the gross profit which he has earned under the substitute charter or charters, the latter being apportioned so as to reflect the amount earned up to the date when performance of the original charter would have been completed. The following points should be noted:
(1) The Noel Bay establishes that the point of departure, for the purpose of making the comparison between the hypothetical voyage under the original charter and the substitute voyage, is the date at which the owner accepts the charterer’s breach as repudiation. For the purpose of calculating the probable income under the original charter and the date at which performance of that charter would have been completed, it is to be assumed that the performance of that charter would have commenced (or continued) as from that date. In accordance with the rule discussed above it will be presumed that the charterer would have used the entire laydays allowable under the charter, even though they exceed the normal period for loading or discharging at the ports in question and would have chosen to use ports or loading and discharge which impose the greatest expense on the owners. If it can be proved that demurrage would have been earned under the original charter, any such demurrage will be taken into account, and the owner compensated for its loss, in calculating the damages for loss of profit.
(2) Providing that the owners have acted reasonably in mitigating their loss, their actual receipts under the substituted charterparty will be taken, but if they have unreasonably delayed in accepting the repudiation or in obtaining substitute employment, or have failed to take reasonable steps to obtain the best substitute employment, the receipts under the substitute voyage and the date at which it would have commenced and terminated are to be calculated on the assumption that they had acted reasonably.
(3) The expense incurred in proceeding to the loading port under a substitute charter is treated as part of the expense of the substitute voyage and is brought into account in arriving at the overall result of that voyage; and that is so even if the vessel is at the loading port under the original charter but needs to proceed to a different loading port under the substitute charter. In The Noel Bay,the Court of Appeal declined to follow The Concordia C in which the expense of proceeding to the substitute loading port had been recovered in full, presumably as an expense of mitigation, and the voyage result of the substitute charter was calculated starting at the point of time when loading commenced under it.
(4) At the end of the substitute voyage, the ship may be better—or worse—placed for future employment than she would have been at the end of the chartered voyage. If such is the case, it should be reflected by the giving of an allowance against the damages if the ship is better placed, or by the award of an extra sum if she is worse placed.
21.91 Where the owners make more than one substitute charter. Where the charterer fails to perform a charter for a lengthy voyage, or a consecutive voyage charter, the owners may, rather than making a single substitute fixture covering the whole period of the original charter, enter into a series of substitute fixtures. The freight obtained under the later fixtures will probably reflect market fluctuations occurring after the date of breach of the original charter, and the question then arises whether the damages should be calculated by reference to the freights actually obtained on the subsequent fixtures, or simply by reference to the market rate at the date of the breach. It would seem on principle that the answer must depend upon whether, at the date of breach, there is an available market in suitable fixtures of a duration similar to that of the balance of the period of the original charter. If there is an available market, the damages should be assessed by reference to the market rate at the date of the breach. If there is no available market, the damages must be assessed by reference to the freights actually obtained by the owners, provided of course that the owner acts reasonably in obtaining alternative employment for the vessel.
21.92 Sub-charters. Where the claimant is a disponent owner, the charterers’ breach may not only cause a loss of profit under the sub-charter, but also render the disponent owner liable in damages to the head owner. There is no reason in principle why such damages should not be recovered, provided that the head charter is an ordinary market-fixture, entered into at the level of freight rates which the charterers ought to have contemplated and provided that the claimant did not act unreasonably in breaching the head charter rather than providing an alternative cargo, in which case the damages under this head should be limited to the cost of taking the latter course. If the disponent owner can extricate himself without liability from the head charter he should do so, and damages, at any rate where the charter is for a named ship, will be thereby limited to the difference between the head charter and the sub-charter rates.
The plaintiffs chartered The Kensington at 21s. per ton, with a right to cancel if she was not ready to load by 15 September. They sub-chartered her to the defendants at 28s. 6d. per ton, but the defendants refused to load her and repudiated the charter. The plaintiffs lawfully cancelled the head charter under the cancelling clause and claimed damages based on the difference between the sub-charter rate and the market rate at the date of termination—17s. per ton.
Rowlatt J. held that they were only entitled to the difference between the two charter rates, since they could not have earned the sub-charter rate except by paying the rate under the head charter.
(Weir v. Dobell [1916] 1 K.B. 722.)
21.93 In support of their larger claim the plaintiffs in Weir v. Dobell relied strongly on the general rule in sale of goods cases that sub-sales are irrelevant in calculating the damages for non-delivery, a rule which is also reflected in the cases concerning non-delivery by a carrier.However, Rowlatt J. distinguished those cases on the grounds that unlike the sale of goods cases, which were concerned with generic goods sold by description, the charters were for a specific ship. Thus, the plaintiffs could not have taken advantage of the low market by chartering in a different vessel at 17s. per ton and tendering her to the defendants under the sub-charter.
上面这一段英文是从VOYAGE CHARTERS 上面摘下来的，以供参考。这段英文讲的是航次租船租家毁约的后果，以及损害如何计算。COA也是由多个航次组成，计算的原理一致。
我们以前做过的案子是船东找到替代航次，然后向租家索赔的，还没有碰到没有找到替代航次这种情况。“如果市场非常差，这只是个假设，船东找不到替代航次，那么我认为船东可以索赔的损失应当为<原定航次运价*原定货量>-<与原定航次类似的航线类似的货量的运价*原定货量>”这仅仅是我个人的意见，由于我在律所，不是做实务的，不知道会不会存在类似的航线，这个可以去问问BROKER。因为船东找不到替代航次时，损失怎么计算还没有找到，但是船东索赔COA下所有的运费是不对的，所以我类比期租下提前还船的计算损失而得出上述结论。
根据杨大明先生写的书《期租合约》第127-第128页“ 在市场下跌的时候，船东可能面对承租人另一种刁难，即提早还船。承租人会是同时受到各种限制，如期租合同余下的租约期很短，又有租约下可装货物品种与航行地区等的限制，导致了找下一票生意的困难。所以提早还船让船东自己去减少损失会是比较明智的选择。有时承租人简单的理由也不找，或无法找，就以毁约（repudiation）的口吻说：市场太差，只好提早还船。如果是这样，特别在承租人执意还船的情况下，船东就要减少损失，接受承租人提早还船的毁约，然后根据与市场上所有报道的其他租船的市场租金与原来租约租金之间的差别，或与真正找到的代替租约（substitute charter）的差别, 再去向承租人索赔提早还船的一段时间。以前一种差别计算损失是在被提早还船的船舶找不到替代租约以致要抛老锚（lay up）或者在大海等待生意，甚至船舶去拆废铁或者出售。这一来，只能以市场上所报道的其他市场租金去计算了。” |
发表于 2009-7-5 15:05
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