最进我们公司程租了同一个船东的三条船，用的是同一个performa c/p.在合同中规定了“3.75% addcomm”的字样。前两条船进行的都没有问题，船东在收取尾帐的发票中主动扣除了3.75% 的滞期费跟运费做为addcomm，我司也及时给予了确认并顺利付款。但是在做第三条船时关于addcomm的问题出了争议，由于此船的滞期费高达200多万美金，船东突然提出addcomm的计算不应包含滞期费，理由是根据一条BIMCO ADV，如下所示:
Enquiry: Clause 14 of the printed text was deleted entirely and a rider clause states "Brokerage commission and to whom payable (Clause 14)" to which was added "2.5 per cent. address commission to Charterers plus 1.25 per cent. each to (us) and (Charterers' broker)". There is no other reference to this matter in either the printed form or the attached clauses.
Owners have claimed an amount due for demurrage against which an amount covering despatch earned by charterers. Thus there is a "net" claim in excess of USD 50,000.00 due to owners. Charterers have accepted owners' calculations in every respect but one, namely that charterers and their broker claim that demurrage should be paid net of 3.75%. We and owners have disputed this on the grounds that unless specifically mentioned in the C/P there should be no deduction made from demurrage rightly claimed by owners. Whilst this dispute continues, owners are in receipt of no balance from charterers. BIMCO's advice was sought as to whether charterers in the circumstances were entitled to deduct commission from demurrage due to owners.
Reply: Starting with the ultimate paragraph of your enquiry there is absolutely no rationale for withholding an amount which is undisputed and, hence, charterers' non-payment of the amount which is undisputed is totally unwarranted.
When it comes to the question of whether or not commission is due on demurrage the answer is that commission on demurrage is not payable unless the governing C/P expressly so provides. In this context we refer to page 17 of this book and we also quote the following excerpt from a handbook on maritime law entitled Scrutton on Charterparties and Bills of Lading:
"The commission may be expressed to be payable on the freight, dead freight and demurrage, but, in the absence of such expression, 'Commission at ..... per cent.' will be payable on freight only (Moor Line v. Dreyfus [1918] 1 K.B. 89."
至于船东在前两条船都默认的情况下，只在第三条船对addcomm的计算方法提出异议是否违反了英国合约法的弃权与禁止反供的原则的问题，答案是“否”（除非有特殊的事实与情况）。因为这三个合约毕竟是不同的合约，而且弃权与禁止反供是衡平法，必须要讲究合理。试想，如果船东在上两条船的租约计算错误，算少了，难道他就必须一路错下去，永远不能去修正，原因是弃权与禁止反供，这怎么会是公平合理。所以占了便宜而且知道的话，为了防止对方将来去修正，就应该试图达成和解协议，作为full and final settlement，这才会有机会避免对方翻案。另也可以在往后的租约中加上条较短的时效条文。
