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发表于 2011-3-5 12:36 | 只看该作者

期租 租约期 duration

1 [1976] Vol. 2  Lloyd's Rep.  97  ANDERS UTKILENS REDERI A/Sv.COMPAGNIE TUNISIENNE DE NAVIGATION OF TUNIS (THE "GOLFSTRAUM") 高院
（1）-Held, by Q.B. (Com. Ct.) (Mocatta, J.), that (1) cl. 1 of the charter did not expressly provide for the time when the charterers had to give directions for the available berth to which the vessel was to go to make her delivery but the necessary inference was that directions had to be given either on arrival at Sfax or before arrival (see p. 102, col. 1); and it followed that the charterers impliedly warranted that a berth would be available on the vessel's arrival at any time between Mar. 8 and Mar. 12 (see p. 102, col. 1);
租约的第一条并未明示规定，租家何时发布指令前往一个可用的泊位，但是必要的推论是指令必须在船舶抵达交船地或者抵达之前发布，所以推出租家默示保证在船舶抵达的时候泊位有空
-Harris and Dixon v. Marcus Jacobs & Co., (1885) 15 Q.B.D. 247, applied.
(2) upon the true construction of the charter the answer to the question of law was in the affirmative (see p. 102, col. 2). Award in favour of owners upheld.
Whether on the facts found and the true construction of the charter-party . . . the charterers were in breach of the charter-party in failing to order the vessel to an available berth on her arrival at Sfax on the 8th March, or at any time prior to the 12th March 1974.
租家是否违反租约，未能指定船舶前往一个可用的泊位在其抵达交船的港口时候
（2）有争议的定期租约条款：Clause 1 of the charterparty referred to above reads as follows:-

'The Owners let, and the Charterers hire the vessel for a period of . . . from the time (not a Sunday or a legal Holiday unless taken over) the vessel is delivered and placed at the disposal of the Charterers between 9 a.m. and 6 p.m. or between 9 a.m. and 2 p.m. if on Saturday, at Sfax in such available berth where she can safely lie always afloat, as the Charterers may direct, she being in every way fitted for ordinary cargo service. The
vessel to be delivered not before 8th March 1974'.
（3）The New York Produce Exchange government form of time charter makes special provision for the non-availability of a berth to which the charterers may direct the vessel on delivery by providing that time is to count during the period of non-availability.纽约土产有特殊的条文关于交船的时候泊位没有空的情况
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denning_lee

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2 Reports  [1991] Vol. 1   LLOYD'S LAW REPORTS  100  HYUNDAI MERCHANT MARINE CO. LTD. vGESURI CHARTERING CO. LTD. (THE "PEONIA") 高院与上诉庭
高院：租约期 关于还船的时间 最后的非法航次 以及因此产生租金损失
（1）[Line 14] . . . about minimum 10 months maximum 12 months time charter. Exact duration in
charterers’ option.大约最少10个月最长12个月 关于这个about的理解一般为5%
[Line 15] Charterers have further option to complete last voyage within . . . trading limits.
（2）-Held, by Q.B. (Com. Ct.) (Saville, J.), that on a true construction of the charter the charterers were not entitled to order the vessel to perform a voyage which could not reasonably be anticipated to be completed before about June 11, 1988 and the owners were entitled to refuse to comply with any such order; the appeal would be allowed.
高院的法官认为，租家无权指示船舶完成一个航次，而该航次无法合理预计在租约期满时完成，船东有权拒绝完成这个指示
（3）about minimum 10 months maximum 12 months 关于如此明确的租约期，法官不打算再进行默示延长，没有必要和商业上的意义；高院法官倾向于说在非法航次下当还船时间超过租约期的时候，市场租金下降船东并未损失，但是市场租金上升，船东遭受了损失船东可以因此向租家索赔（但是本案并非直接关于租金的支付问题）
（4）当为合法的最后航次的时候，如果某些不属于双方的过失的情况下，该如何处理这个问题？有三个可能性1）将按时还船是一个条件条款或者是合约的根本，租家未能按时还船则自动合同终止，这个并不符合商业的实际和需要，上议院也否认了这个说法2）将按时还船的条款看成是一个中间条款。船东也可以索赔损失主要是租金的损失 3）只要是一个合法航次租家就未违反条款
（5）法官倾向于上述第4点2），在合法的航次下，船东仍然可以索赔租金的差价 In the end I remain unpersuaded that I was bound by any authority to conclude that, even without the further option, the charterers had the contractual right for which they contended, or, putting it the other way round, that the owners were not entitled to claim damages for failure of the charterers to redeliver the vessel by the agreed date when the vessel is sent on a legitimate last voyage.
（6）For the reasons given in this judgment, therefore, it seems to me that on the true construction of this charter the further option gave the charterers the right to complete a last legitimate voyage without being in breach, but no right to send the vessel on an illegitimate last voyage. I accordingly allow the appeal in this case.只是说明合法航次下延误还船并不是违约，但关于租金差价的支付法官倾向于船东可以索赔（当然本案并没有直接关于租金损失的支付，所以只是法官的倾向而已仅作参考）

上诉庭
（1）当只有个确定的还船日期时，法院会默示一个偏差或者差额（在没有明示的相反规定下），当合约双方已经明确上下限的时候，法院不会再默示一个偏差和差额（我想这是尊重合约的问题）
（2）关于租家的指令为非法航次 Alternatively, he may comply with the order although not bound to do so: if he does comply, he is entitled to payment of hire at the charter-party rate until redelivery of the vessel and (provided he does not waive the charterer’s breach) to damages (being the difference between the charter rate and the market rate if the market rate is higher than the charter rate) for the period between the final terminal date and redelivery. In the further alternative, if (which we do not decide) the charterer’s breach is repudiatory, the owner may accept the repudiation, treat the charter as at an end and claim damages. 上诉庭明确说明在超出订下的还船日期后，船东可以索赔市场租金与租约租金
（3）关于租家的指令为合法的最后航次But what if, the orders for the last voyage being legitimate in the sense defined above, the charterer fails to redeliver by the final terminal date for reasons (such as bad weather) for which neither party is responsible?当延迟还船非双方的责任或者过失时？此时的情况如何？租家是否违约？市场租金上涨如何？
（4）思路：第一确定租约期（对租约条文进行解释） 第二判定最后的航次是否属于非法航次（这是个事实问题取决于多方面的因素）第三延迟还船是否属于租家违约（在最后航次为合法航次的时候）若租家违约（则需要支付更高的租金，相反若未违约则支付合约租金）
（5）Lord Justice SLADE:  The interesting and difficult general point of law which has been argued so cogently on both sides may be expressed thus: if under a time charter the charterers send a vessel on a legitimate last voyage and the vessel is thereafter delayed without fault on the part of the charterers, so that redelivery of the vessel takes place after the final terminal date, are the charterers, in the absence of agreement to the contrary, liable in any event to pay hire for the excess period merely at the charter rate or are they liable to pay at the market rate if that be the higher rate?
   (9) I know of no authority which explicitly supports the proposition that the Court will be prepared to imply some further term, beyond any margin or tolerance which it will be willing to imply in ascertaining the final terminal date, which will have the effect of rendering charterers’ contractual obligation to redeliver by the final terminal date// an obligation merely to use their best endeavours to do so by that date. If the Court had been prepared to imply a further term of this broad nature, I cannot see the need for the implication of a margin or tolerance. As a matter of principle, it would seem to me right that, save in so far as otherwise agreed and within the limits of a proper margin or tolerance, the risk of unexpected delays, save for those which are due to the fault of the owners, should fall on charterers, such risk to include the risk of the market rate of hire exceeding the charter-party rate during the excess period.
我知道没有直接案例明确支持法院将进一步的默示条款，将有使得租家按时还船的责任变成了一个合理尽责的责任，如果需要默示这样一个广泛性质的条款，就没有必要默示偏差，除了其他的同意以及在偏差的合理范围内，不可预见的延迟，除非是船东的过错，否则就风险落在了租家的头上，其中包括了市场租金的上涨（也就是在本案中上诉庭认为租家应该按市场租金赔付给船东）
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denning_lee

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发表于 2011-3-5 12:38 | 只看该作者
3 [1991] Vol. 2   LLOYD'S LAW REPORTS  251  CHISWELL SHIPPING LTD
AND LIBERIAN JAGUAR TRANSPORTS INC V. NATIONAL IRANIAN TANKER CO. THE "WORLD SYMPHONY" AND "WORLD RENOWN" 高院与上诉庭（关于利息计算为看）
-Held, by Q.B. (Com. Ct.) (Hobhouse J.), that (A) As to the dispute on the final voyage: (1) the charter was a contract for the vessel to carry crude petroleum with places of delivery and redelivery respectively Hormuz and off Oman; the contemplation was that the vessel would be employed on a series of round voyages carrying cargoes of Iranian crude oil to consumer countries and then returning to an Iranian loading port and the "round voyage" referred to in cl. 18 must have been contemplated to be such a combination of a laden and ballast voyage (see p. 261, col. 1);关于laden voyage的解释包括一个载货航次和空放航次
(2) there was nothing inconsistent with the general purpose of the charter; it was a workable contractual scheme; the charterers were entitled to give orders which took advantage of their rights under the last sentence of cl. 18; to do so was to order the vessel on a legitimate last voyage; provided the round voyage was started before the expiry of the calendar period it was a round voyage which the charterers were entitled to require the vessel to perform and complete before redelivery; the charterers were not in breach of the charter and the owners’ claim for damages for such breach failed (see p. 261, cols. 1 and 2);
主要是一个特殊条款起到了保护租家的作用，若无18条，则租家执行了一个非法航次需要承担支付高额的租金
-Dene Steam Shipping Co. v. Bucknall, (1900) 5 Com Cas. 372, applied
-Hyundai Merchant Marine Co. Ltd v. Gesuri Chartering Co. Ltd; [1991] 1 Lloyd’s 100 and The Black Falcon, [1991] 1 Lloyd’s Rep. 77, distinguished这是因为本案的特殊性所在，有一个明确的特殊条文
（2）有争议的租约期条款：Owners agree to let and the Charterers agree to hire the vessel for a period of six months fifteen days more or less in Charterers’ option commencing from the time and date of delivery of the vessel for the purpose of carrying crude oil
特殊的18条：Notwithstanding the provisions of clause 3 hereof, should the vessel be upon a voyage at the expiry of the period of this charter, Charterers shall have the use of the vessel at the same rate and conditions for such extended time as may be necessary for the completion of the round voyage on which she is engaged and her return to a port of redelivery as provided by this charter.
In my judgment there is nothing inconsistent with the general purpose of this charter-party as evidenced by its terms and surrounding circumstances in construing cl. 18 in the same way as cl. 23 was construed in the Dene Steam Ship case.
It is a workable contractual scheme. The charterers are entitled to give orders which take advantage of their rights under the last sentence of cl. 18; to do so is to order the vessel upon a legitimate not an "illegitimate" last voyage. Provided the round voyage is started before the expiry of the calendar period, it is a round voyage which the charterers are entitled to require the vessel to perform, and complete, before redelivery.

上诉庭 [1992] Vol. 2  LLOYD'S LAW REPORTS    115   
(1) the words in cl. 18 "notwithstanding the provisions of clause 3 hereof" were crucial; in construing the two clauses in the time charter which, read together, displayed not only a tension but also an inconsistency, it was clear that cl. 18 overrode cl. 3; consequently the charterers were entitled to give the order for the final voyage in the knowledge that the voyage would overrun the time otherwise stipulated for redelivery under cl. 3 (see p. 118, cols. 1 and 2; p. 119, col. 1);
(2) cl. 18 was to be construed as it stood and covered what would otherwise be "legitimate" and "illegitimate" voyages (see p. 118, col. 2; p. 119, cols. 1 and 2);
(3) there was a commercial desirability if not a necessity of cl. 18 of the Shelltime 3 form receiving the same construction worldwide; the appeal would be dismissed (see p. 118, col. 2; p. 119, cols. 1 and 2).
（2）Lord DONALDSON of LYMINGTON, M.R.:Mr. Justice Hobhouse accepted, on the authority of Hyundai Merchant Marine Co. Ltd. v. Gesuri Chartering Co. Ltd. (The Peonia), [1991] 1 Lloyd’s Rep. 100, that in the present case if cl. 3, which defines the charter period in terms of "six (6) months fifteen (15) days more or less in charterers’ option", had stood alone, the charterers would have been in breach of the time charter in two separate respects. First, they would have been in breach of contract in ordering the master to proceed on a voyage the undertaking of which would inevitably result in the vessel being redelivered after the expiration of the period specified in cl. 3, i.e. after 22 50 hours on Dec. 24, 1988. It would not have been a legitimate order. Second, they would have been in breach of the independent obligation to redeliver the vessel by that date.按时还船是一个独立的责任和义务，这是在非法的航次下，如果是合法航次下，出现了双方不能控制的延迟还船的结果是什么？
（3）法官认为有以下几种情况：in the light of The Dione and Hyundai. They are that: 1. A charter for a fixed period will have a small implied tolerance or margin in its duration. 2. A charter for a fixed period with an expressed tolerance or margin - in this case "15 days more or less" - will have no further implied tolerance or margin. 3. In either of these cases, in the absence of a "last voyage" clause, charterers will be in breach of contract if the vessel is redelivered after the expiry of the fixed period extended by the implied or expressed tolerance or margin, unless the late delivery arises out of a cause for which the owners are responsible. 4. A "last voyage" clause is needed and will protect the charterer if he orders the vessel to undertake a last voyage which can reasonably be expected to enable the vessel to be redelivered punctually, but without fault on his part in the event such redelivery proves impossible. （这种就是Hyundai的案例，保护租家在合法的航次下）5. If a "last voyage" clause is to protect a charterer from being in breach by late redelivery in circumstances in which he has ordered a voyage which is likely to or must have this result, the intention to provide this protection must be clearly expressed.（这个是本案的情况，保护租家在非法的航次下，但是需要明确的说明）
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denning_lee

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4 [1970] Vol. 2 Lloyd's Rep. 207 LONDON AND OVERSEASFREIGHTERS LTD. v. TIMBER SHIPPING COMPANY S.A.   London Explorer 高院及上诉庭
（1）if the charterer ordered a voyage which he was entitled to order and the owner acted upon those orders, then the charter-party continued in force and the hire provisions continued in force until the voyage was, in fact, ended and the vessel redelivered.
If the charterer, on the other hand, ordered a voyage which he was not entitled to order, then the owner had an option whether to comply with that order or not. If, however, he complied with the order, then the charter-party again continued in force until the voyage, in fact, ended and the ship was redelivered, either because the owner had waived any right that he had to withdraw his vessel or because of an implication arising from the facts that the provisions of the charter-party should continue to apply until redelivery, in fact, took place. In such a case, however, Mr. Diamond submitted that if the state of the market permitted in relation to the rate of hire in the contract, the owner could over and above hire recover damages, notwithstanding that he had acted on an improper order. 合法的航次下租约一直有效，需要支付租约的租金，非法的航次下若租约租金低于市场租金船东仍然有权索赔高的租金即使其履行了一个不合适的指令










[1971] Vol. 1  Lloyd's Rep.  523  London Explorer贵族院   
By a time charter-party of Oct. 25, 1967, the respondent owners agreed to "let" and the appellant charterers agreed to "hire" the motor vessel London Explorer "from the time of delivery, for 12 months 15 days more or less in Charterers option". That charter-party further provided (inter alia):
[Clause 4] That the Charterers shall pay for the use and hire of the . . . Vessel at the rate of $3.15 . . . per ton . . . per Calendar Month, commencing on and from the day of her delivery . . . and at and after the same rate for any part of a month; hire to continue until the hour of the day of her re-delivery . . . to the Owners . . . at Montreal . . . unless otherwise mutually agreed. . . .
[Clause 5] Payment of . . . hire to be made in London . . .
-Held, by Mocatta, J., (1) that no breach of contract occurred ipso facto with the non-delivery back of the vessel by the time charterers on or by the last day of the expressed term of the charter;
(2) that whether time be of the essence or not, if the vessel was left to the use of the charterers after the expiry of the expressed term of the charter-party, then hire continued to run until the vessel was redelivered;and that, therefore, the owners were entitled to be paid hire in the terms of the award;
除非明示相反规定，还船时间并不是条件条款，租约继续有效晚还船租家并没有违反合约，租金按照合约的继续支付（这是在市场租金下降的情况下，这样的判决逻辑也比较公道，但是在市场租金上涨的时候）
-Held, by C.A. (Salmon, Edmund Davies and Phillimore, L.JJ.), (1) that the charter-party did not come to an end even if there was a breach by the charterers; and even if the charter did expire the charterers were still liable to pay hire at the charter rate up to the date of redelivery, but, in any event, the charterers were not in breach, the charter-party did not die by effluxion of time, and the charterers were liable to pay hire up to Apr. 24, 1969;
即使租家晚还船违反租约，但是租约并不终止，即使租约届满，租家仍然有责任支付合约租金直到还船，但是无论如何租家并未违约，租约并未终止，以及租家有责任继续支付合约租金
Lord REID:  Gray & Co. v. Christie & Co., (1889) 5 T.L.R. 577This case has been regarded as authority for some very wide propositions. I think it is authority, and good authority, for the proposition that there is a presumption that a definite date for the termination of a time charter should be regarded as an approximate date only. I think that it was rightly held that Christies were within their rights in sending the ship on a voyage expected to end four days after the stipulated date. But I do not think that Mr. Justice Mathew intended to say that they would have been entitled to send the ship on a voyage not expected to end until Oct. 13. And further I think that Mr. Justice Mathew was right in holding that, once the vessel had set out on a legitimate voyage, a further delay of 13 days presumably due to causes for which neither party was responsible, did not prevent hire for that period from being due at the charter rate.
假设租约期是一个固定的日期则这个日期应该视为一个接近的时间只是一个大致的时间，我认为租家有权指示船舶进行下一个航次，而该航次在合理的时间内可以完成，但是我不认为法官是认为说租家有权指示船舶进行一个航次而该航次要延误13天（这个13天并不是合理的所以只是一个非法的航次，lord reid也认为高院法官正确的认为一旦船舶开始了一个合法的航次，一个13天（无论这个13天的延迟是否是合理的或者是不合理的）的延误并非双方的需要负责的原因，并不能阻止租金按照租约的租金支付，这是在市场租金上升的情况下船东因此索赔，但是本案的特殊情况在于市场租金下跌）

关于合法的航次指令，其标准是在租约内的默示合理时间内或者在租约明示的期间内完成这个航次，但是合法的航次指令不违约并不代表晚还船就是一个违约

But it does not mean, as the appellants argue, that the appellants were necessarily in breach of contract by failing to redeliver the vessel on or before Jan. 13. If what I have said earlier is right// there still remains the separate presumption that the parties intended that, if unexpected delays on the last legitimate voyage caused redelivery to be delayed beyond the agreed date, the charter should nevertheless continue in operation until the end of the voyage.在合法的航次下，如果出现非双方责任的延迟则双方默示打算租约期继续有效（通过对LORD REID 的判词理解：首先判断租约期除非相反协议则是还船日期只是大概，除非租约明确偏差则法院默示一个合理的偏差，如果在合法的航次下出现了非双方的延迟，无论该延迟是否合理除非合约受挫则晚还船并非违约，合约继续有效租金继续按照租约来支付）

Lord MORRIS OF BORTH-Y-GEST:    Watson Steamship Company v. Merryweather & Co., (1913) 18 Com. Cas. 294.. . . "hire to continue from the time specified for terminating the charter until her redelivery to owners (unless lost) at a port on east coast of the United Kingdom" [-the parties had in writing added-] "between 15th and 31st October, 1912.". . .
Even though the time set out in a charter-party is not made of the essence /so that the continued use of the vessel after the stated time will not at once have the result that such continued use will be in breach of contract it will be necessary that redelivery should be within a reasonable time. It might well be, therefore, that with a clause similar to clause 4 a charterer would be liable to pay hire at the contractual rate to the time of actual redelivery and in addition (if the current rate exceeded the contractual rate) to pay damages in respect of his failure to redeliver within a reasonable time.

Furthermore, time was, in my view, not made of the essence. Quite apart, however, from these various considerations the charterers were liable, under the terms of clause 4, to pay hire at the contractual rate until the time of actual redelivery. 还船的时间并非是合约的本质，违反其并不代表租家违约，而且租约的条款要求租金支付到实际的还船时间
Lord GUEST: My Lords, I have had the advantage of reading the speech of my noble and learned friend, Lord Morris of Borth-y-Gest. I agree, for the reasons given by him, that the appeal should be disposed of as he suggests.
Lord DONOVAN: My Lords, I agree that the appellants (the charterers) are liable to pay hire to the respondents (the owners) at the charter-party rate for the period from Dec. 28, 1968, to Apr. 24, 1969.
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denning_lee

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发表于 2011-3-5 12:39 | 只看该作者
5 [1974] Vol. 1 Lloyd's Rep. 86  ALMA SHIPPING CORPORATION OFMONROVIA v. MANTOVANI(THE "DIONE") 高院
-Held, by Mocatta, J., that (1) the date for redelivery under a time charter-party was not an inflexible one (see p. 93, col. 1);
-Watson S.S. Co. v. Merryweather & Co., (1913) 18 Com. Cas. 294, and Timber Shipping Co. S.A. v. London & Overseas Freighters Ltd., [1972] A.C.1.; [1971] 1 Lloyd's Rep. 523, applied.
租约下还船并非是一个没有弹性的时间（前提是没有相反的明示约定）
(2) in the absence of very special words in the charter-party no breach was committed by the charterers in ordering a vessel on her last voyage knowing that she would not be redelivered until later than the last date mentioned for redelivery provided that at the date of the order, there were no reasonable grounds for anticipating that the overlap would not exceed a reasonable tolerance (see p. 94, col. 1);
-Gray & Co. v. Christie & Co., (1889) 5 T.L.R. 577, applied.
在租约缺乏明示的条文下，租家在指示最后一个航次上并没有违约，条件是在发布指示的方面，没有合理的理由预计超过的时间不会超过合理的偏差
(3) assuming that the arbitrators would have decided that the extension from Sept. 28 to the expected date of redelivery about the middle of October/ at the time when the charterers ordered the vessel on the third voyage was unreasonably long, there was a technical breach of contract (see p. 93, col. 2); but in view of the fact that redelivery had taken place within 8 days after the time fixed for redelivery and this was a reasonable time, the owners could recover no more than nominal damages (see p. 43, col. 2; 94, col. 1);
（1）合约条款Whether on the true construction of the charter the Charterers were or were not in breach in failing to redeliver the Dione for 8.416 days after the latest date for redelivery specified in Clause 1 of the charter; namely 28th September 1970.
晚还船是否是违约 逻辑在于第一解释合约条款的租约期 第二是否是合法航次 第三延迟还船是否属于双方的违约
  2. Under Clause 1 of the charter (a copy of which is attached hereto and forms part of this Award) the Dione was time-chartered by her Owners to the Charterers for a period of six months 20 days more or less, in the Charterers' option, from the time she was put at the Charterers' disposal at Savannah.

Watson Steamship Co. v. Merryweather & Co., (1913) 18 Com. Cas. 294
In the second case the terms of the charter were that the vessel the Hugin was chartered on time charter terms "from 15/31 May, 1912, until 15/31 October, 1912". There was also a provision as follows:
. . . The charterers shall pay for the use and hire of the said vessel £615 sterling per calendar month, commencing on and from the date of her delivery, as aforesaid, and at and after the same rate for any part of a month; hire to continue from the time specified for terminating the charter until her re-delivery to owners (unless lost) at a port on east coast of the United Kingdom between 15th and 31st October, 1912.
Clause 5, which I have read out, was in print save for the last words, namely, "between 15th and 31st October, 1912", which were in writing. By reason of those words Mr. Justice Atkin decided the issue in favour of the owners. It was only by reason of those words that he so decided. He was unable to give those words any meaning unless their purport was to make Oct. 31 the last permitted date for re-delivery, and to produce the result that re-delivery thereafter was in breach of contract. That was his decision, but before coming to that decision he said much of what the general position would be but for so special a clause as the one mentioned. I read from p. 300.
Clearly Mr. Justice Atkin was expressing the opinion that no breach of contract was committed if before the last date expressly mentioned in the time charter for re-delivery the charterers ordered the vessel on a new voyage knowing that that could not be completed by that date. The limitation on the power, as appears from the passage I have read, is that such an order must not be an unreasonable one.(我认为的合理是在合理的期限内还船，比如3天或者5天)
当租家知道这个航次不能在那个租约下固定的时间完成航次的时候并不算违约，这个指令不能是一个不合理的
If the clause in the charter-party remained as printed, I think there is nothing in the facts which would entitle the owners to say that the charterers had committed a breach of contract, because what has been found is that on October 18 the vessel was at West Hartlepool, and there was despatched to St. Petersburg, and that it was impossible to perform that voyage and re-deliver the vessel to the owners by October 31, and that that was known to the charterers. . . . There is no finding that the voyage to St. Petersburg was not a reasonable voyage, or that the period of 20 days was an unreasonable period . . .
首先是解释租约

上诉庭 [1975] Vol. 1 Lloyd's Rep.  115   
（1）本案事实：租家没有合理的理由在明示的偏差和默示的偏差内还船，Charter-party (Time) - Redelivery - Vessel chartered for 6 months and 20 days from delivery - Vessel sent by charterers on final voyage near end of charter period - Reasonable expectation that redelivery would be about 16 days late - Vessel redelivered 8 days late - Whether charterers in breach of contract - Baltime 1939 form, cl. 1.

-Held, by C.A. (Lord Denning, M.R., and Browne, L.J., Orr, L.J., dissenting) that (i) cl. 1 of the charter-party expressly defined the margin as "20 days more or less" and it was the duty of the charterers to deliver the vessel by the "20 days more" i.e. by Sept. 28, 1970 (see p. 118, cols. 1 and 2; p. 119, col. 2; p. 120, col. 1; p. 121, cols. 1 and 2; p. 123, col. 1);
-Dictum of Lord Reid in The London Explorer, [1972] A.C. 1; [1971] 1 Lloyd's Rep. 523, applied.
-Watson SS. Co. v. Merryweather & Co., (1913) 18 Com.Cas. 294, distinguished.
(ii) (by Lord Denning, M.R.), it was illegitimate for the charterers to send the vessel on the third voyage as they could not reasonably have expected it to complete the voyage by Sept. 28 (see p. 118, col. 1);
(iii) (by Orr and Browne, L.JJ.) that since the arbitrators had held that 8.416 days were "within the reasonable elasticity which it is proper to allow" the Court could not go behind this finding (see p. 119, col. 2; p. 120, col. 1; p. 123, col. 2);
(iv) since the charterers had failed to redeliver the vessel within the permitted margin they must pay the charter rate up to Sept. 28 and the market rate thereafter (see p. 118, col. 1; p. 123, col. 1);
-Prebensens Dampskibsselskabet A/S v. Munson S.S. Line, (1919) 258 Fed. R. 227 applied.
Appeal allowed. Charterers to pay the owners £6058 and interest at 712 per cent. from Oct. 1, 1970.
  
Per Lord Denning, M.R., (at p. 118): If the charterer sends the vessel on an illegitimate last voyage - that is a voyage which it cannot be expected to complete within the charter period, then the shipowner is entitled to refuse that direction and call for another direction for a legitimate last voyage. If the charterer refuses to give it, the shipowner can accept his conduct as a breach going to the root of the contract, fix a fresh charter for the vessel, and sue for damages. If the shipowner accepts the direction and goes on the illegitimate last voyage, he is entitled to be paid - for the excess period - at the current market rate, and not at the charter rate . . .如果租家发布一个非法的最后的航次指令，船东有权拒绝执行这个指令，一旦拒绝这个指令可以要求租家发布下一个合法的航次指令，如果租家拒绝给予这种合法的指令，船东可以接受这个违约，重新制定一个租约，并且寻求损害赔偿，但是如果船东执行了这非法航次，他可以要求超过期间支付市场租金（这个类似本案 市场租金上涨，如果市场租金下降则按照贵族院london exploer的判例）
（2）LORD DENNING：(d) If the charterer sends the vessel on a legitimate last voyage - that is, a voyage which it is reasonably expected will be completed by the end of the charter period, the shipowner must obey the directions. If the vessel is afterwards delayed by matters for which neither party is responsible, the charter is presumed to continue in operation until the end of that voyage, even though it extends beyond the charter period. The hire is payable at the charter rate until redelivery, even though the marketrate may have gone up or down, see Timber Shipping Co. S.A. v. London & Overseas Freighters Ltd., [1972] A.C. 1; [1971] 1 Lloyd's Rep. 523.
关于在合法的航次下，由于双方不能控制的原因导致延迟还船，合约继续有效租家没有违约，租家仍是按照租约的租金支付（这个仍有疑问）
I would prefer to follow Lord Reid, who said (at pp. 15 and 527) that on a certain view. . . the 15 days more or less was intended to define the degree of flexibility and to oust the ordinary presumption of flexibility.
这个LORD DENNING的逻辑思路是解释租约期间并没有默示，然后在说这是一个非法的航次，晚还船更是一个违约，需要支付更加高额的租金
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denning_lee

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6 [1976] Vol. 1 Lloyd's Rep.  542  GULF SHIPPING LINES LTD. V. COMPANIA NAVIERA ALANJE S.A. (THE "ASPA MARIA")  高院与上诉庭
The charter-party provided, by lines 13 and 14, that Aspa Maria was to be hired for a period of "six months  30 days more or less at charterers option" from the time of delivery. It further provided by cl. 13 that
  . . the charterers shall have the option of continuing this charter for a further period of further six months 30 days . . . at charterers' option declarable at the end of fourth month.
我个人认为这是两个独立的选择权，不能连续使用。
Whether on the true construction of the charter-party the maximum duration of the charter is 12 months plus 60 days or 12 months plus 30 days.解释租约下，最大的租约期是12个月+60天还是+30天？
（1）If this line of reasoning is correct and the "30 days more or less" in line 14 is intended to replace/ whatever margin the common law would allow for redelivery at the end of the charter, there is nothing for these words to operate upon once the option under cl. 13 has been declared since this again provides a con-sensual margin of tolerance in place of that which the common law would allow and of course there is only one redelivery.

THE "ASPA MARIA上诉庭 [1976] Vol. 2 Lloyd's Rep.  643   
（1） Lord Denning, M.R.   So here the 30 days is not an extension of the charter. It is simply an express agreement as to the tolerance permitted. If that is the right interpretation of the orginal period, then, when one comes to the option clause, when it speaks of "a further period of a further 6 months", it means a further period following on the first six months- not following on five months or seven months.
（2）Lord Justice ORR:the learned Judge was, in my view, entirely right in holding that it can hardly have been the intention of the parties that the charterers in the circumstances of this case should have the benefit of two tolerance periods in respect of only one delivery.
一点是不符合商业上双方的意图，第二点是正负30天是租约明确的偏差和余额，只有一个还船那么只能有一个默示的偏差，就是说两个选择权是独立的，不能连续使用，将其扩大到10月-14月（本案的用词确实不清楚，但是考虑到双方的意图，这样的判决是符合公平合理的）
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denning_lee

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7 [1977] Vol. 1 Lloyd's Rep. 368 MAREVA NAVIGATION CO. LTD. V. CANARIA ARMADORA S.A. (THE "MAREVA A.S.")  高院
Whether on the facts found and the true construction of the charter-party
(1) What was the vessel's last legitimate voyage?
这个只是预计的，只要在发布指令的时候预计可以在明示的偏差或者默示的偏差内完成航次就可以
The legitimacy or otherwise of whatever is to be regarded as a vessel's last voyage must be judged at the time when the charterers give an order for the vessel to carry out the voyage in question, and then by reference to what they order her to do. The owners must be given certain clear orders and must have the opportunity of deciding whether or not to accept them as legitimate, having regard to the remaining time, the nature of the employment and distances involved, and the delays, if any, to be expected.
But in the present case there was never any order which the owners wrongfully disobeyed. The communications on Apr. 18 cannot avail the charterers, since they were to carry out a further loaded voyage which the owners were by then clearly entitled to refuse to do. 船东会拒绝履行下一个装货的指令
(2) the charterers were entitled to a reasonable extension of time for redelivery beyond May 5, 1974;
船东违约，造成时间损失，否定的答案，因为有明示的条款法律不再默示延长
(3) the owners were entitled to any damages for the late redelivery of the vessel;
船东违约，造成时间损失，否定，自身的原因导致晚还船
I think that the burden of proof is in any event on the owners and not on the charterers. The charterers' order was to send the vessel on a legitimate last voyage. It was then for the owners to establish, if they could, that the ultimate delay in redelivery was due to some subsequent breach on the part of the charterers, or at any rate stemmed from some unreasonable act or omission by them. It was not for the charterers to establish a negative. Since the owners have failed to establish any breach or unreasonable act or omission by the charterers which caused the vessel to be redelivered in Algiers later than May 5, it follows in my judgment that the owners' claim must fail in any event.

(4) the charterers were entitled to damages because the owners made it clear that they would not let the vessel perform a further loaded passage from Algeria to a port in the redelivery range;
船东有权在租约期届满后收回船舶要求还船
(5) the vessel was off hire in any of the Algerian ports of discharge;
船舶是否停租在卸港卸货
(6) the owners were entitled to claim credit for any part of the demurrage received or receivable by the charterers from the sub-charterers.
船东无权主张在分租约下的滞期费
On
Nov. 29, 1973, an addendum no. 2 was concluded which provided:关于租约期的条款
Charterers are to keep the vessel on Time Charter for a further period of 2 months minimum, 3 months maximum, in direct continuation from the end of the full period of 5 months and 20 days.


The off-hire clause provided as follows:停租条款
15. That in the event of the loss of time from deficiency of men or stores, fire, breakdown or damages to hull, machinery or equipment, grounding, detention by average accidents to ship or cargo, dry-docking for the purpose of examination or painting bottom, or by any other cause preventing the full working of the vessel, the payment of hire shall cease for the time thereby lost.

8 1983] Vol. 1 Lloyd's Rep. 24 JADRANSKA SLOBODNA PLOVIDBA V. GULF SHIPPING LINE LTD. (THE "MATIJA GUBEC")   高院
（1）At what date must the legitimacy of a last voyage be judged?Skibsaktieselskapet Snefonn Skibsaksjeselskapet Bergehus and Sig. Bergesen D.Y. & Co. v. Kawasaki Kisen Kaisha Ltd., [1975] 1 Lloyd's Rep. 422. Mr. Justice Donaldson said at p. 424:
. . . Against this background the law, with great good sense, concentrates upon the planning obligation. If the charterer plans a last voyage or voyages which should lead to the punctual redelivery of the vessel, he is under no liability if in the event the vessel is late in completing the last voyage provided that this is not his fault.
Since the problem is, as I have said, one of interpretation or implication based on business convenience, I would hold that a firm intention on the part of the charterer is, by itself, insufficient to fix the date when the legitimacy of a last voyage must be established. There cannot be a legitimate last voyage in pectore - which may not be an inappropriate metaphor in view of events that are to take place later this week.
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denning_lee

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9 [1992] Vol. 2  LLOYD'S LAW REPORTS   40  TORVALD KLAVENESS A/S V. ARNI MARITIME CORPORATION (THE "GREGOS") 高院
By a time charter dated Dec. 30, 1987 the owners let their vessel Gregos to the charterers for a period of about 50 to maximum 70 days time charter in charterer’s option. Redelivery was to take place at or off a port in the Gibraltar, Hamburg range and the vessel was to be delivered off Antwerp. The charter was in the New York Produce Exchange form and provided inter alia:

4 Hire . . . to continue until the hour of the day of her redelivery.
8. . . . the Captain . . . shall be under the orders and directions of the Charterers as regards employment and agency . . .
11. . . . the Charterers shall furnish the Captain from time to time with all requisite instructions and directions, in writing.
法官处理的逻辑还是：一解释租约期 二解释航次指令是否合法，什么时间合法 三晚还船是否属于船东或者租家应该负责
-Held, by Q.B. (Com. Ct.) (Evans, J.), that (1) the charterers did commit a breach of contract by failing to redeliver at the end of the charter period and was liable to damages, if the market exceeded the charter rate, as well as for hire until redelivery took place (see p. 43, col. 1);
-The Peonia, [1991] 1 Lloyd’s Rep. 100, applied.
(2) the charterers had two separate obligations, first to give orders for a legitimate last voyage and second to redeliver the vessel at the end of the agreed charter period regardless of whether the orders for the last voyage were lawful or not (see p. 43, col. 2);
按时还船是一个独立的责任，不论该航次指令是否合法
(3) the charterers’ contention that the legitimacy of the last voyage should be established at the date when the order was given would be rejected; it would mean if correct that the charterer could choose a time well in advance of the last voyage and the instruction if reasonable at that time would remain binding on the vessel regardless of subsequent events; the weight of authority and the balance of practical considerations supported this conclusion; the charterers’ obligation was to give a lawful order before the last voyage began (see p. 46, col. 2);
法官驳回关于合法的航次指令应该在发布指令的时候成立；如果租家的正确，那么租家可以选择一个提前的时间发布航次指令，以及如果在发布当时航次指令是合理的话就要约束船东而不顾后续发生的事情；租家发布合法航次指令的时间应该是在最后的航次开始之前
(4) an order might be accepted in advance of the last voyage and then would remain binding (see p. 46, col. 2);

(5) the charterers’ breach, when an illegitimate last voyage was ordered and the order was insisted on, was in failing to give a lawful order with which the vessel could comply; the test of a legitimate voyage did not permit any overrun, once the last date for redelivery had been determined, and if the charterer persisted in ordering a non-contractual last voyage then the owner was entitled to accept that as a repudiatory breach (see p. 47, col. 1);
如果租家继续坚持不合法的航次指令船东有权将其当作是租家违反主要条件
(6) it was difficult to avoid the conclusion that the time for performance of the redelivery obligation was essential; the obligation may be defined as an undertaking to redeliver by the agreed terminal date unless a legitimate last voyage was extended without the fault by the charterer; such a term might be treated as a condition and an order for an illegitimate last voyage would necessarily be a repudiatory breach of contract; the appeal would be dismissed (see p. 47, col. 2).
无可避免的得出这个结论还船义务是根本的，这个义务可以被描述为承诺在合约的中止日期完成还船，除非是一个航次的航次被非租家负责的事件延迟（合法的航次指令），发布一个非法的航次指令可能是违反合约的根本，是个条件条款（这个发布非法的航次指令是违反合同的主要条款值得商榷，可以说是中间条款较为恰当，但是一旦租家坚持发布非法的航次指示则船东可以认为租家违反了主要条件可以宣布合同解除，关于晚还船是否是条件条款，我认为是中间条款，足够的延迟可以使得合约受挫而终止）

The "generally held perception of the effect of the authorities" was that this view was correct (see Redelivery under Time Charters by Michael Wilford, LMAA Law Review 1989-91 p. 17 and cf. Time Charters by Wilford, Coghlin and Kimball (3rd. ed. 1989) (p. 89)). But it is now established by the Court of Appeal decision in The Peonia, [1991] 1 Lloyd’s Rep. 100 that Lord Morris’ view in The London Explorer should be preferred. The charterer does commit a breach of contract by failing to redeliver at the end of the charter period and is liable to damages, if the market exceeds the charter rate, as well as for hire until redelivery takes place.晚还船是一个严格的责任，合法航次下，非双方过失，可以索赔较高的租金

This judgment necessarily implies that the obligation to redeliver by the agreed date, notwithstanding that further time is required to complete a legitimate last voyage, is a term, the breach of which sounds in damages only. There can be no question of the owner refusing to complete the voyage and in most cases it would be impracticable for him to do so (per Lord Justice Bingham at p. 108). The analysis in the light of The London Explorer must be that the charter-party continues until redelivery but that the charterer commits a breach of contract when the agreed period ends without redelivery taking place. In other words, the charter agreement does not include an implied (or express) extension of the charter period until redelivery after a legitimate last voyage. The risk of the "exigencies of maritime business" in this respect rests upon the charterer alone.这个上诉庭的判决暗示按时还船是一个严格的责任，违反其可以让的船东索赔损失，换句话说租约不再默示或者明示的延长租约至合法的航次结束，这个不可避免的海事风险将落在租家的头上

Issue (2) - did the charterers commit a repudiatory breach?
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denning_lee

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发表于 2011-3-12 15:09 | 只看该作者
上诉庭 [1993] Vol. 2   LLOYD'S LAW REPORTS   335   
（1）The second question was as follows:
If the last voyage is legitimate at the time when the order is given but subsequently becomes illegitimate before the time for the performance of the voyage, what are the respective rights and obligations of the parties in the changed circumstances?上诉庭考虑到了这个情事变更，在发布的时候是合法的航次指示，但是当实际履行前该航次变得不能在合理的还船日内完成，则双方的权利义务是什么？
（2）如果执行了非法的航次，船东完全可以要求索赔，这个我认为也没有错，但是并没有解决一个问题，那就是如果船东有权拒绝履行非法的航次指令，而租家又没有再次发布新的合法的航次指令，此时双方的权利和义务分别是什么？此时的话如果不给予船东以租家违反合约根本条件而解约，就会产生可笑的结果，租家可以坚持这个非法的航次，而船东除了索赔没有其他的救济？
（3）上诉庭是从商业的角度来说，这样并没有错，航运是有巨大的风险，随时可能产生事情，如果仅在最后航次开航前才决定是否是合法的，这样不利于租家开展工作，所以法律默示了还船日期除了明示规定只是大概的意思表示，就是为了避免这样的事情，但这与租家坚持发布航次指示是不同的，既然合约约定了固定的日期或者明示的偏差日期，则应该给予他们意义（所以我个人同意上诉庭关于商业上的考虑，但是也应该了解到如果租家坚持非法的航次指令则船东有权取消的权利，不然会产生可笑的结果，那就是船东必须履行一个非法的航次，从而进行索赔）
（4）I would therefore accept the charterers’ case on the first question, and hold that the legitimacy of the last voyage order has to be established at the date when it is given, having regard not only to the reasonableness at that date of the estimate of the expected duration of the voyage, but also to the reasonableness at that date of making an estimate at all, as already explained.
更多的是考虑不是在发布指令的时候确立是否合法，以后将产生很多现实的问题，如何才能算撤回变得非法的航次指令等
（5）I shall therefore confine myself in considering whether an illegitimate last voyage order is per se repudiatory; this leaves open the possibility that, as Mr. Rix concedes, and I accept, an illegitimate last voyage order may on a given set of facts be repudiatory, dependent on all the circumstances.关于发布非法的航次指示是否自身构成一个违反合约的主要条件In my judgment there are a number of strong commercial reasons for not treating an illegitimate voyage order as per se repudiatory, and for not attributing such an intention to the parties.
（6）在刚开始是合法的航次指示下：Simon Brown, L.J.  Thus the real issue is: who should bear the risk of delays unforseeable at the date of the charterers’ order for which neither party is to blame and which then become manifest before the last voyage begins?转换一个角度和思路 In the result I would hold that owners are obliged to accept and obey the charterers’ last voyage order whenever it is given save insofar as they are entitled (i) to refuse to obey it if it is illegitimate (i.e. already then appears likely to overrun) and (ii) to refuse to commit themselves whether or not to obey it if it is given unreasonably early.






贵族院 [1995] Vol. 1     LLOYD'S LAW REPORTS    1   
（1）如果将晚还船视为是条件条款，视为是合约的本质的话那么发布非法的航次指令本身可以是一个预期违约，可以使得船东接受这个违约终止合约并且索赔，但是从商业实践的角度出发，这样做并没有太大的实际意义。
（2）Lord Mustill：发布航次指令从实际意义上来说是可以的，但是要符合后续的情事变更，一旦变得不能执行船东有权拒绝执行，希望发布新的指令，这是在协调船东和租家的双方矛盾。for if a charterer is free to recall his original order and substitute another the inference is irresistible that he ought to make such a substitution if changed circumstances cause the performance to break the bounds of the shipowner’s original promise. What is the commercial convenience of such an interpretation? Undeniably,
（3）that the critical time would pass without any valid orders being given. This is the significance of the changed circumstances which rendered the original order invalid. Not that the order constituted a repudiation in itself, but that the charterers’ persistence in it after it had become invalid showed that they did not intend to perform their obligations under the charter. That is to say, they "evinced an intention no longer to be bound" by the charter. This was an anticipatory breach, which entitled the owners to treat the contract as ended.
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发表于 2011-3-12 15:10 | 只看该作者
10 [1984] Vol. 1 Lloyd's Rep. 583  ATLANTIC LINES & NAVIGATIONCO. INC.v.DIDYMI CORPORATION AND LEON CORPORATION ("THE DIDYMI" AND "LEON") 高院及上诉庭
（1）案情梗概  案情是租约规定可以延长3月正负，但是在第四年的年底租家可以选择45天正负，但是租家并没有在第四年的年底行使这个选择权. . . 因为市场租金下跌，租家不想继续运营船舶
有关条款：That the said owners agree to let and the said charterers agree to hire the said vessel from the time of delivery for five years time charter with three months more or less in charterer's option, to be narrowed to 45 days more or less in charterer's option latest by the end of the fourth year.
（2）However, the decisive argument, as I see it, is that/ which treats the option to narrow the redelivery period to 45 days more or less /as a duty, albeit one which contains an option within it. If it is a duty, and the words "to be narrowed" suggest that/ it is, then the charterer cannot rid himself of the obligation to narrow the redelivery period by failing to take any action before the fourth anniversary of the date of delivery. I also think, contrary to the owners' argument, that a failure to narrow the redelivery period would leave the charterers with a right to redeliver at any time between three months before and three months after the fifth anniversary and not with an obligation to redeliver on that date.


11 [2003] Vol. 2 LLOYD'S LAW REPORTS 584PETROLEO BRASILEIRO S.A. v.KRITI AKTI SHIPPING CO. S.A. (THE "KRITI AKTI")  高院
（1）The charterers chartered the vessel Kriti Akti from the owners under a time charter on the Shelltime 3 form. The charter-party provided, by cl. 3, that Kriti Akti was to be hired for a period of "11 (eleven) months, 15 days more or less in Charterers’ option". It further provided:
18 . . . Notwithstanding the provisions of clause 3 hereof, should the vessel be upon a voyage at the expiry of the period of this charter, charterers shall have the use of the vessel at the same rate and conditions for such extended time as may be necessary for the completion of the round voyage on which she is engaged and her return to a port of redelivery as provided by this charter . . .（这个是关于最后航次条款的问题） I would hold that under this charter cl. 18 comes into operation only at the point at which the basic period, the extension period and the option period cumulatively have all expired.
CLS 50 - EXTENTION
Any loss of time during which the vessel is off hire shall count as part of the charter period and may be used by charterers at their option as an extention of the aforesaid charter period.
高院The expression "the charter period" in cl. 50 obviously refers to the period prescribed in cl. 3.
（2） They took the view that the reference to "the period of this charter" in cl. 18 meant the total period for which they would otherwise be entitled to employ the vessel.
租家认为是11月+15天（其选择权）+36天（停租时间）

On May 29, while the vessel was discharging, the charterers ordered her to carry out another voyage. The owners took the view that the charter had already expired, on the basis that the "the period of this charter" in cl. 18 meant the basic 11-month period in cl. 3 only, or at most, the basic period plus the cl. 50 extension period, but in either case excluding the 15-day option period. They refused to comply with the charterers’ orders unless the hire was increased.
船东认为：11月+36天（不能加入15天给予船东双重好处，跟随上诉庭先例）
（3）The arbitrators were asked to determine two preliminary issues, namely (1) whether the "period of this charter" in cl. 18 includes or excludes any additional period for which charterers may elect to keep the vessel on charter in exercise of their option under cl. 50, and (2) if it includes cl. 50 periods, whether the charter as so extended by cl. 50 includes the tolerance of 15 days in cl. 3. Period of this charter是否包括扣租期，如果包括扣租期，是否租约再次延长了15天
上诉庭 [2004] Vol. 1  LLOYD'S LAW REPORTS   712   
（1）Here the particular wording is "11 (eleven) months, 15 days more or less in charterers’ option" (as it was in The Dione, although Lord Denning’s propositions do not expressly address this wording).
The natural meaning of this wording is in my view to entitle charterers to the full commercial use of the vessel for a period of between 11 months plus or minus 15 days. Apart from cl. 18 and apart from authority, I would see no reason for restricting charterers’ freedom to give voyage directions by reference to any date, except the final terminal date.并不需要将发布航次指令的时间限制过死只要是在租约期内（其中算上明示的或者默示的偏差）
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charlesblake

新手上路

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发表于 2014-3-14 11:01 | 只看该作者
这么多好东西，楼主辛苦了。我复制下来啃啃。
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