杨良宜先生个人网站 - Powered by Discuz! Board

标题: 期租 off hire [打印本页]

作者: denning_lee 时间: 2011-3-18 20:12 标题: 期租 off hire

1 [1891] AC 48HUGH HOGARTH AND OTHERS (OWNERS OF "WESTFALIA")
APPELLANTS;ANDALEXANDER MILLER, BROTHER, & CO.贵族院
（1）in the event of loss of time from deficiency of men or stores, break-down of machinery, want of repairs, or damage, whereby the working of the vessel was stopped for more thanforty-eight consecutive hours, the payment of hire should cease until she should be again in an efficient state to resume her service.本案争议的停租条款
（2）LORD HALSBURY, L.C: : I confess that I entertain no doubt whatever that the vessel was not efficient in any sense for the prosecution of her voyage from Las Palmas to Harburg.贵族院解释了最后一句话 in an efficient state
he vessel was "in an efficient state to resume her service"? That being once admitted as a question of fact (and if it were not admitted I certainly should find that upon the evidence), it appears to me that /she was not herself seaworthy or efficient to perform the voyage, and did not herself perform the voyage
关于本轮船提供部分动力，这个法官认为没有拖轮的帮助是不能完成双方认定的航次，故而不考虑本船舶还能提供部分的动力问题。
How does a vessel work when she is lying alongside a wharf to discharge her cargo? She has machinery there for the purpose. It is not only that she has the goods in the hold, but she has machinery there for the purpose of discharging the cargo. It is not denied that during the period that she was lying at Harburg there was that machinery at work enabling the hirer to do quickly all that this particular portion of her employment required to be done. It appears to me, therefore, that at that period there was a right in the shipowner to demand payment of the hire, because at that time his vessel was efficiently working; the working of the vessel was proceeding as efficiently as it could with reference to the particular employment demanded of her at the time.
（3）LORD WATSON: The first question which arises is this: Was the vessel, when she started under tow for Harburg, in an efficient state to resume her service within the meaning of the contract? I have no hesitation in answering that question in the negative. The service contemplated was a service to be performed by the vessel without foreign aid, the means of propulsion through the water being her own machinery. But the fact is, that she did not proceed from Las Palmas to Harburg in that condition; she was towed; and I think that is quite sufficient to bring the whole period from her leaving Las Palmas till she reached the pier at Harburg within the terms of the condition I have referred to, and that no hire is due for that period.该航次是使用该船舶进行，而不是在拖轮的帮助下才进行完成。
（3）LORD HERSCHELL: If the word "efficient" had been left out and the word "working" had been the only word there, I think I should have come to the same conclusion as that at which I have arrived. The subject-matter of this contract of hire is a steamer as a steamer, not either as a hulk to serve as a warehouse for goods, or as a vessel to be propelled without steam by means of her sails.
（4）LORD MORRIS:考虑的过于严格，将卸货的时间也算入了停租时间，而停租主要是考虑 loss of time 所以贵族院合理的解释这个问题，那就是停租只能是在影响租家使用船舶或者装卸货、或者航行，其他的时间是不能计入停租时间。

作者: denning_lee 时间: 2011-3-19 08:57

2 [1920] 3 KB 321 SS. MAGNHILD v MCINTYRE BROTHERS AND COMPANY 高院

（1）"in the event of loss of time from deficiency of men or owners' stores, breakdown of machinery, or damage to hull or other accident preventing the working of the steamer and lasting more than twenty-four consecutive hours, the hire shall cease from the commencement of such loss of time until she be again in an efficient state to resume her service; but should the steamer be driven into port, or to anchorage by stress of weather, or from any accident to the cargo, or in the event of the steamer trading to shallow harbours, rivers, or ports where there are bars causing detention to the steamer through grounding or otherwise, time so lost and expenses incurred (other than repairs) shall be for charterers' account.停租条款（一般来说天气因素属于不可抗力不停租）解释同义规则，主要要找出先前列举的是否有一个共同的种类或者属性？
If then there be no such common or dominating feature the ejusdem generis rule cannot apply. Even if a genus could be found it would, I think, be so wide (having regard to the totality of words) as to allow the present facts to fall within the general words. Those words are, moreover, "or other accident," etc., which appear to suggest that the precedent genus, if any, was intended to cover cases of accidental occurrences to the ship which prevented her working for twenty-four hours or more.
（2）本案争议的焦点： This contention /raises a difficult question, whether or not the ejusdem generis rule did or did not apply to the words "or other accident preventing the working of the steamer."是否类似于同意规则
（3）Two rules of construction now firmly established as part of our law may be considered as limiting those words. 解释规则
One is that words, however general, may be limited with respect to the subject matter in relation to which they are used. 广泛的语句受限于租约的标的内容
The other is that general words may be restricted to the same genus as the specific words that precede them."同义解释规则
the Court of Appeal in Tillmanns v. SS. Knutsford. n(4) Vaughan Williams L.J. said n(5) : "If a common genus is not to be found the necessary consequence would be that the words 'or any other cause' could not be limited by the doctrine of ejusdem generis." Farwell L.J. said n(6) : "Unless you can find a category there is no room for the application of the ejusdem generis doctrine." Kennedy L.J. said n(1) : "The genus must first be found, and then you must find whether the words that follow/ are applicable to the species enumerated belonging to the one genus."
So far as I can see the only test seems to be whether the specified things which precede the general words// can be placed under some common category.也就是先前的那些单词能否归于同一种共同的种类？
上诉庭 [1921] 2 KB 97
（1）"in the event of loss of time from deficiency of men or owners' stores, breakdown of machinery, or damage to hull or other accident preventing the working of the steamer and lasting more than twenty-four consecutive hours, the hire shall cease from the commencement of such loss of time until she be again in an efficient state to resume her service; but should the steamer be driven into port, or to anchorage by stress of weather, or from any accident to the cargo, or in the event of the steamer trading to shallow harbours, rivers, or ports where there are bars causing detention to the steamer through grounding or otherwise, time so lost and expenses incurred (other than repairs) shall be for charterers' account.
（2）Held, agreeing with McCardie J. on this point, that the ejusdem generis rule could not be applied to the words "or other accident" in the first part of clause 12, and that those words covered any accident to the steamer preventing her working for more than twenty-four consecutive hours; but reversing the judgment of McCardie J., that the words "where there are bars," in the second part of clause 12, which was a qualification of the first part, applied only to "ports," and not to shallow harbours or rivers, and as the grounding which caused the detention took place when the steamer was trading to a river, the time so lost was for charterers' account.上诉庭认为高院在关于适用同义规则方面是正确的，也就是该停租条款适用于一切阻止船舶正常运行的事件，但是由于条款的后半部分特地的强调了关于搁浅是在租家的头上，故而判决租家应该支付搁浅期间的租金。

作者: denning_lee 时间: 2011-3-20 08:07

3 [1904] 2 KB 377 In re AN ARBITRATION BETWEEN TRAAE AND LENNARD & SONS, LIMITED 上诉庭
（1）(14.) that, in the event of loss of time from deficiency of men or stores, breakdown of machinery, or damage preventing the working of the vessel for more than twenty-four running hours, the payment of hire should cease until she should be again in an efficient state to resume her service; but should the vessel be driven into port or to anchorage by stress of weather, or from any accident to the cargo, such detention or loss of time should be at the charterers' risk and expense;
(26.) detention by ice to be for account of charterers, unless caused by breakdown of steamer.
由于冰引起的延滞是租家负责，除非是船舶坏了上述两条是本租约的那个停租条款
The question for the opinion of the Court was whether upon the facts stated in the special case, and upon the true construction of the charterparty, hire was and would be payable by the charterers to the owners under the charter during the detention of the ship at Reval awaiting the opening of the port of St. Petersburg.
Ridley J. held that the decision of the arbitrators was right and that the award must stand. He therefore gave judgment for the respondents.租家不再支付等待在卸港外时间的租金
（3）This steamer, in my opinion, undoubtedly broke down in consequence of stranding, and by reason of that breakdown was delayed so long that she was unable to get into the port of St. Petersburg on account of its being blocked by ice. It appears to me that there was consequently a detention by ice, which by the terms of the charter was not to be for account of the charterers. 逻辑是：由于搁浅所以延迟所以符合第26条的说法，不负责

4 [1914] 1 KB 293 BURRELL & SONS v F. GREEN & CO 高院
（1）In the event of loss of time from deficiency of men or stores, breakdown of machinery, collision, docking, stranding, or other accident, or damage preventing the working of the vessel for more than twenty-four consecutive hours, the time lost shall be allowed to the charterers, including first twenty-four hours ....; but should the vessel be driven into port or to anchorage by stress of weather, or from accident to the cargo, such detention or loss of time shall be at the charterers' expense."停租条款，避难避风以及货物的问题，遇到恶劣海况，进港避风木材掉下甲板损坏船舶，有九天时间的修理船舶，这九天的是否可以off hire!
（2）Held, that the nine days and twelve hours were time lost from "damage preventing the working of the vessel" and were not "detention or loss of time" from the ship being "driven into port by stress of weather, or from accident to the cargo," within the meaning of the above clause, and that the ship was off hire for that period.
（3）I think the words "should the vessel be driven into port or to anchorage by stress of weather, or from accident to the cargo, such detention or loss of time shall be at the charterers' expense" refer only to time actually lost by stress of weather or by accident to cargo, that is to say time lost in repairing the accident to cargo, for example in discharging and restowing the cargo, if that is necessary, but not time expended in repairing the ship itself. I do not think the words can properly include loss of time from damage to the ship caused by accident to the cargo or by stress of weather. When damage to the ship is caused by accident to the cargo or by stress of weather, the damage so caused comes, in my view, within the words "or other accident or damage preventing the working of the vessel" in the earlier part of the clause. There is no qualification of those words.
For the purposes of this charterparty it matters not what is the cause of the damage to the ship.
如论发生什么样的原因造成船舶的损坏，即使是由于后面应该由租家负责的stress of weather或者货物的损坏等原因，船舶应该停租
If she has been damaged from any cause and the damage requires to be repaired and delay is thereby occasioned exceeding twenty-four hours, the ship is off hire for that time.
如果任何原因船舶损坏，如果需要修理船舶和延迟，那么船舶应该停租

作者: denning_lee 时间: 2011-3-23 19:05

（5）[1966] Vol. 1 Lloyd's Rep. 683 COURT LINE, LTD. v. FINELVET, A.G. (THE "JEVINGTON COURT") 高院
（1）11 (A). In the event of drydocking or other necessary measures to maintain the efficiency of the Vessel, deficiency of men or Owners' stores, breakdown of machinery, damage to hull or other accident, either hindering or preventing the working of the vessel and continuing for more than twenty-four consecutive hours, no hire to be paid in respect of any time lost thereby during the period in which the Vessel is unable to perform the service immediately required. Any hire paid in advance to be adjusted accordingly.
11 (B). In the event of the Vessel being driven into port or to anchorage through stress of weather, trading to shallow harbours or to rivers or ports with bars or suffering an accident to her cargo, any detention of the Vessel and/or expenses resulting from such detention to be for the Charterers' account even if such detention and/or expenses, or the cause by reason of which either is incurred, be due to, or be contributed to by, the negligence of the Owners' servants.有关的争议条文，上述两条B条是修饰和限制A条
2 争议的焦点，先解释租约
(1) Whether vessel was "trading . . . to river or ports with bars";
(2) Whether shipowners had to prove causal connection between trading of vessel "to river or ports with bars" and detention and expenses;
(b) Whether expenses recoverable while aground included overtime;
在搁浅的时候是否能够收回费用（租金）
(5) Whether vessel was on hire during discharging, cooling and reloading at Buenos Aires and expenses recoverable included bunkers and overtime;
在卸货冷却重新装载在避难刚的时间是否继续付租
（）-Held, by Roskill, J.,
(A) (i) that River Plate was no less a river// because it was made up of River Uruguay and River Parana, and all other attributes of a river were present;
A (ii) that it would be wrong to construe Clauses 11 (A) and 11 (B) historically, and only present language of Clause should be considered;
B (iii) that "bars" in phrase in Clause 11 (B) applied to rivers and ports;这条最关键，直接让租家负责了，这些语句的解释是有关地理学上的解释，需要依靠有关的举证问题
C (iv) that Martin Garcia Bar was a bar within Clause 11 (B) (and mere existence of artificial channel did not prevent it being a bar);
D (v) that, accordingly, vessel was trading to river with a bar, but she was not trading to a port with a bar;初步符合了停租条款的内容

E (B) that shipowners had to show that proximate cause of detention or expense was trading to a river with a bar; and that shipowners had failed to establish such causal connection;
F (C) that charterers' contention that vessel was off hire because there was an "accident", within meaning of "other accident" in Clause 11 (A), failed, in that Jevington Court was able to perform service required after she was refloated and she was perfectly efficient;
G (D) that charterers were liable for overtime even if vessel was off hire; and that, therefore, charterers were liable for overtime while Jevington Court was aground and under Clause 17 for overtime at Buenos Aires;

Whether on the true construction of the said Charterparty a ship-owner who seeks to recover detention of the vessel and/or expenses resulting from detention /must prove a causal connection between the trading of the vessel "to shallow harbours or to rivers or ports with bars" and the detention and expenses; and (if so) what causal connection must be proved.
In my judgment, before the owner can get himself within Clause 11 (B), he has got to show that the proximate cause of the detention, for which he seeks to recover hire or other compensation from the charterer, was trading to a river with a bar, and that it is not enough for him merely to show that he was in point of time and geography so trading at the time of the casualty.需要在延滞损失与在某样时间之间的时间需要联系起来，有因果关系，船东关于11（B），租家可以停租在11（A）

作者: denning_lee 时间: 2011-3-23 19:06

（5）[1966] Vol. 1 Lloyd's Rep. 683 COURT LINE, LTD. v. FINELVET, A.G. (THE "JEVINGTON COURT") 高院
（1）11 (A). In the event of drydocking or other necessary measures to maintain the efficiency of the Vessel, deficiency of men or Owners' stores, breakdown of machinery, damage to hull or other accident, either hindering or preventing the working of the vessel and continuing for more than twenty-four consecutive hours, no hire to be paid in respect of any time lost thereby during the period in which the Vessel is unable to perform the service immediately required. Any hire paid in advance to be adjusted accordingly.
11 (B). In the event of the Vessel being driven into port or to anchorage through stress of weather, trading to shallow harbours or to rivers or ports with bars or suffering an accident to her cargo, any detention of the Vessel and/or expenses resulting from such detention to be for the Charterers' account even if such detention and/or expenses, or the cause by reason of which either is incurred, be due to, or be contributed to by, the negligence of the Owners' servants.有关的争议条文，上述两条B条是修饰和限制A条
2 争议的焦点，先解释租约
(1) Whether vessel was "trading . . . to river or ports with bars";
(2) Whether shipowners had to prove causal connection between trading of vessel "to river or ports with bars" and detention and expenses;
(b) Whether expenses recoverable while aground included overtime;
在搁浅的时候是否能够收回费用（租金）
(5) Whether vessel was on hire during discharging, cooling and reloading at Buenos Aires and expenses recoverable included bunkers and overtime;
在卸货冷却重新装载在避难刚的时间是否继续付租
（）-Held, by Roskill, J.,
(A) (i) that River Plate was no less a river// because it was made up of River Uruguay and River Parana, and all other attributes of a river were present;
A (ii) that it would be wrong to construe Clauses 11 (A) and 11 (B) historically, and only present language of Clause should be considered;
B (iii) that "bars" in phrase in Clause 11 (B) applied to rivers and ports;这条最关键，直接让租家负责了，这些语句的解释是有关地理学上的解释，需要依靠有关的举证问题
C (iv) that Martin Garcia Bar was a bar within Clause 11 (B) (and mere existence of artificial channel did not prevent it being a bar);
D (v) that, accordingly, vessel was trading to river with a bar, but she was not trading to a port with a bar;初步符合了停租条款的内容

E (B) that shipowners had to show that proximate cause of detention or expense was trading to a river with a bar; and that shipowners had failed to establish such causal connection;
F (C) that charterers' contention that vessel was off hire because there was an "accident", within meaning of "other accident" in Clause 11 (A), failed, in that Jevington Court was able to perform service required after she was refloated and she was perfectly efficient;
G (D) that charterers were liable for overtime even if vessel was off hire; and that, therefore, charterers were liable for overtime while Jevington Court was aground and under Clause 17 for overtime at Buenos Aires;

Whether on the true construction of the said Charterparty a ship-owner who seeks to recover detention of the vessel and/or expenses resulting from detention /must prove a causal connection between the trading of the vessel "to shallow harbours or to rivers or ports with bars" and the detention and expenses; and (if so) what causal connection must be proved.
In my judgment, before the owner can get himself within Clause 11 (B), he has got to show that the proximate cause of the detention, for which he seeks to recover hire or other compensation from the charterer, was trading to a river with a bar, and that it is not enough for him merely to show that he was in point of time and geography so trading at the time of the casualty.需要在延滞损失与在某样时间之间的时间需要联系起来，有因果关系，船东关于11（B），租家可以停租在11（A）

作者: denning_lee 时间: 2011-3-23 19:06

6 [1949/50] Vol. 83 Ll.L.Rep. 228 ROYAL GREEK GOVERNMENT v.MINISTER OF TRANSPORT. Mr. Justice Devlin. Ann Stathatos 高院
（1）9. The master to prosecute all voyages with the utmost dispatch and to render customary assistance with the vessel's crew. The master to be under the orders of the charterer as regards employment, agency or other arrangements. The charterer to indemnify the owners against all consequences or liabilities, arising from the master, officers or agents signing bills of lading or other documents or otherwise complying with such orders, as well as from any irregularity in the vessel's papers or for overcarrying goods. . . .
-Held, that the consequences of complying with the charterer's order to load a particular cargo were within the scope of the indemnity provided by Clause 9; 该条款明示的说明：将负责装货产生的责任或者费用等,但仲裁员作为事实认定，履行租家指令装货并不是直接导致货物爆炸船舶受损的最直接原因（换言之如果认定是装货导致的那么租家将按照本条款进行补偿）
11 ( A). In the event of drydocking or other necessary measures to maintain the efficiency of the vessel, deficiency of men or owners' stores, breakdown of machinery, damage to hull or other accident, either hindering or preventing the working of the vessel and continuing for more than twenty-four consecutive hours, no hire to be paid in respect of any time lost thereby during the period in which the vessel is unable to perform the service immediately required.
11 ( B). In the event of the vessel being driven into port or to anchorage through stress of weather, trading to shallow harbours or to rivers or ports with bars or suffering an accident to her cargo, any detention of the vessel and/or expenses resulting from such detention to be for the charterer's account even if such detention and/or expenses, or the cause by reason of which either is incurred, be due to, or be contributed to by, the negligence of the owner's servants. Charterer not to be responsible for any expenses under this clause which are recoverable by owners from their marine insurance underwriters. 高院法官也同样默示了在事件和结果之间的因果关系，不能因为地理上的关系就认为。。。
One of the events in Clause 11 (A) is "damage to hull." This, I think, makes it clear that if the accident to cargo results in damage to hull, any detention so caused is within Clause 11 (A); while if it results in damage to cargo (or a change in the condition of the cargo, such as by shifting) the detention so caused is within Clause 11 (B). In this case, the damage to the cargo was negligible, and the arbitrator has found as a fact that the detention of the ship was due to the damage to the hull and not for any purpose connected with the cargo.如果由于货物损坏导致船舶损坏，此时修船的时间是属于停租的，但是如果货物损坏而船舶没有问题此时则是租家需要负责的情况
13. . . . The charterer to be responsible for loss or damage caused to the vessel or to the owners by goods being loaded contrary to the terms of the charter or by improper or careless bunkering or loading, stowing or discharging of goods or any other improper or negligent act on their part or that of their servants.
（2）The dispute arose out of explosions in and consequent damage to the vessel while on a voyage from Barry to Rio Janeiro with a cargo of coal, and the questions for the Court were whether the vessel was off hire during the period of detention for the repair of such damage, and whether the owners were entitled to be indemnified by the charterer, under. Clause 9 of the charter-party, against the loss caused by the detention of the vessel.争议就是货物爆炸，船舶损坏，修船时间是否停租，船东是否可以要求损害船舶的补偿，最主要的问题还是解释租约的有关条文

作者: denning_lee 时间: 2011-3-26 13:19

7 [1980] Vol. 1 Lloyd's Rep. 638 (THE "HERMOSA") 高院
（1）(lines 3-5): The . . . good . . . ship Hermosa . . . with hull machinery and equipment in a thoroughly efficient state and classed HIGHEST AMERICAN BUREAU . . .
船舶适航问题
(lines 21-22) Vessel on her delivery to be . . . tight, staunch, strong and in every way fitted for the service . . .
在交船的时候保证适航
1. That the Owners shall . . . maintain her Class and keep the vessel in a thoroughly efficient state in hull, machinery and equipment.

That in the event of the loss of time from . . . damages to hull machinery or equipment . . . preventing the full working of the vessel, the payment of hire shall cease for the time thereby lost . . .

22. The Owners shall maintain the gear of the vessel as fitted.

34. Should the vessel put back whilst on voyage by reason of an accident . . . the hire shall be suspended from the time of the inefficiency until vessel is again efficient in the same position and voyage resumed therefrom and all expenses incurred . . . shall be for owners' account.

48. The Charterers to have the option of adding any time the vessel is off-hire to the charter period but maximum 90 days.将停租期间的时间加在租约期上，但是最大90天（这个代表停租期可以超过90天）
（2）大船东、二船东、分租家，两个租约背靠背，由于大船东违反适航的保证，导致货损船损，船舶损害停租，后来在空放的过程中出现了碰撞，修理了8个月，分租约的时间是2年
（3）Even if Nitrates can show that a cause of the relevant type was operating, they cannot establish that it brought about any loss of time.
Until the collision /the ship was proceeding on the ballast voyage in a perfectly ordinary way, the condition of the hatches having no effect on her progress at all. Once detected, the condition of the hatch covers would of course have necessitated repairs which, when commenced, would put the ship off-hire; but Nitrates' cancellation prevented this moment from ever arriving. 关于停租条款，需要证明停租事件并证明时间损失与事件之间的关系。舱盖板的缺陷是不适航但未必能够说明是停租的，这个舱盖板的并不影响海上的航行。

作者: denning_lee 时间: 2011-3-26 13:20

8 [1992] Vol. 1 LLOYD'S LAW REPORTS  460 SIG BERGESEN D.Y. A/S AND OTHERS
v.MOBIL SHIPPING ANDTRANSPORTATION CO.(THE "BERGE SUND")高院与上诉庭
（1）8(a) In the event that a loss of time, not caused by Charterer’s fault, shall continue, (i) due to repairs, breakdown, accident or damage to the vessel, collision, stranding, fire, interference by authorities or any other cause preventing the efficient working of the vessel, for more than twenty-four (24) consecutive hours . . . then hire shall cease for all time so lost until the vessel is again in an efficient state to resume her service and has regained a point of progress equivalent to that when hire ceased hereunder.
这个off hire不一样，不是由于租家的过失导致的时间损失才可以停租
11(b) Master, although appointed by, and in the employ of Owner, and subject to Owner’s direction and control, shall observe the orders of the Charterer as regards employment of the vessel . . . or other arrangements required to be made by Charterer hereunder.
(d) Master shall be furnished by Charterer, from time to time, with all requisite instructions and sailing orders . . .这个后面贵族院的案例中有提到过，但是并不是特别的重要
（2）The off-hire clause sets out the events which lead to a cessation of hire. If the charterers fail to prove a loss of time due to a cause specifically mentioned in the clause hire will not cease. Here the charterers relied on the words "or any other cause preventing efficient working of the vessel". The burden rested squarely on the charterers to show that the case falls within these words.
停租条款就是说明有些事件的发生可以使得停付租金，但是如果租家未能证明损失是由于在条款里的事情产生的，则租金应该继续支付，这里租家依赖停租条款中的船舶未能正常工作，这个举证责任是在租家的头上来显示这些事件是发生在条款中的
It is a truism that the objective of the off-hire clause is to relieve the charterers of the obligation to pay hire continuously during certain periods when the charterers do not have the use of the vessel. The clause does not require that "off hire events" should be attributable to the fault of the owners. Instead the emphasis is on a pragmatic allocation of risk. It is also not restricted to a case where something goes wrong with the vessel or the crew, as is shown inter alia by the inclusion of the event of "interference by authorities". 在租家未能使用船舶的时候，该条款不需要说明这是属于船东的错误，取而代之的是一个风险的分配
上诉庭 [1993] Vol. 2  LLOYD'S LAW REPORTS 453
（1）上诉庭并不认为额外的洗舱时间是停租的。As is fashionable nowadays, the clause is said to deal with allocation of risk. The only general rule that can be laid down is that one must consider the wording of the off-hire clause in every case. The words which give rise to dispute in the present case are (i) loss of time, (ii) not caused by charterer’s fault, (iii) any other cause preventing the efficient working of the vessel, and (iv) time so lost until the vessel is again in an efficient state to resume her service.
They must be considered separately, but there is a considerable overlap between them.在这四个步骤中有些重叠
（2）I should read the contract as meaning this . . . that she should be efficient to do what she was required to do when she was called upon to do it.在要求其工作的时候船舶能够正常工作
The reasoning in that decision seems to me equally applicable in the present case, whether one is considering "loss of time", or "preventing the efficient working of the vessel", or "again in an efficient state." In each case one has to decide whether Berge Sund while at Ras Tanura, was in the words of Lord Halsbury "efficient to do what she was required to do" by the charterers.
（3）上诉庭认为有些时间损失必须算在租家的头上，比如说执行租家的指令，但是这些事件的损失应该是常规的、可以预见的。
（4）In my opinion the critical question is, what was the service required of the vessel on Dec. 20, 1982? What were the charterers’ orders? They were not to load cargo; as I have said, that was the very last thing that the charterers would have ordered, since the copper strip test had been failed. The orders were, in part expressly and at all relevant times by implication, to carry out further cleaning. That was the service required, and the vessel was fully fit to carry it out.
最关键的问题是在装港发生的到底是什么？什么才是租家的指令？他们的指令并不是装货。船舶完全适合洗舱（这个是上诉庭的意见那就是租家让他洗舱，他是完全可以洗舱的，但是为什么没有考虑到洗舱的原因是什么）
In my judgment the distinction lies in the fact that cleaning is in the ordinary way an activity required by a time charterer. It is his choice what cargoes are loaded, and consequently when and what cleaning is required. If in a particular case the charterer declines to load until there has been further or extraordinary cleaning, the service required is that cleaning. Of course there may be cases where the need for such extra cleaning results from a breach of contract on the part of the owner or even from "nelgect of duty on the part of the master, officers and crew". In that event the charterer has a remedy. But here the arbitrators rejected the charterers’ case that there had been negligence or want of due diligence in cleaning on the ballast voyage. Once they had reached that conclusion, the argument that the vessel was off hire or that the charterers could recover the hire paid was in my opinion doomed to failure.这个洗舱是正常的装货所造成的
（5）关于洗舱的问题，是租家指定的货物，租家应该知道需要洗舱的，所以一切的洗舱应该是合理的或者正常的，这个应该是租家负责不应该是停租的。

9 [1947/48] Vol. 81  Ll.L.Rep. 355 ROYAL GREEK GOVERNMENT v. MINISTER OF TRANSPORT. 高院
  11 (A). In the event of drydocking or other necessary measures to maintain the efficiency of the vessel, deficiency of men or owners' stores, breakdown of machinery, damage to hull or other accident, either hindering or preventing the working of the vessel and continuing for more than twenty-four consecutive hours, no hire to be paid in respect of any time lost thereby during the period in which the vessel is unable to perform the service immediately required.

13. . . . The owners not to be liable for loss or damage arising or resulting from strikes, lock-outs or stoppage or restraint of labour (including the master, officers or crew) whether partial or general. Subject to Clause 11 (A) and Addendum thereto. . .

34. Addendum to Clause 11 (A). Notwithstanding the provisions of Clause 11 (A) it is agreed that in the event of loss of time due solely to inability to get or to complete a crew (a) full hire will be paid for the first seventy-two hours of such loss of time and (b) in the event of such loss of time taking place at a port in the United Kingdom or in ports in the British Empire overseas and continuing beyond such seventy-two hours, half hire will be paid for a further period of seventy-two hours, but thereafter hire shall cease until the vessel is again ready to resume her service. . . .
协调解释两个条文，但是34条优先
（2）Physical inability to work is different in quality and character from refusal to work when full capacity to do so exists. In my opinion, the provision "deficiency of men" in the suspension of hire clause is directed to putting the vessel off hire when an adequate complement of officers and crew for working the ship is not available.
上诉庭  [1948/49] Vol. 82  Ll.L.Rep.  196
（1）-Held, by C.A., upholding Sellers, J., that the provision "deficiency of men" meant "numerical insufficiency" and was directed to puting the ship off hire when an adequate complement of officers and crew for working the ship was not available; that there was no such "deficiency of men" or "inability to get or to complete a crew"; that the crew's wilful refusal to work was not an "accident" within the meaning of Clause 11 (A); and that therefore the charterer was not entitled to invoke Clause 11 (A) or its Addendum and was liable for hire during the period of the delay-Award upheld.
（2）Per Bucknill, L.J. (at p. 199): The cardinal rule . . . in interpreting such a charter-party as this, is that the charterer will pay hire for the use of the ship unless he can bring himself within the exceptions. I think he must bring himself clearly within the exceptions. If there is a doubt as to what the words mean, then I think those words must be read in favour of the owners because the charterers are attempting to cut down the owners' right to hire.解释的一个原则，如果出现了模糊的解释那么就应该对援引者作不利解释（反面也说明租家不能清楚的证明这就是停租条款所指的事情）

作者: denning_lee 时间: 2011-3-30 20:55

10 [1939] Vol. 64  Ll.L.Rep. 212 COURT LINE, LTD. v. DANT & RUSSELL, INC. 高院
（）15. 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, drydocking 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. . . .
(16) That should the vessel be lost, money paid in advance and not earned (reckoning from the date of loss or being last heard of) shall be returned to the charterers at once. The act of God, enemies, fire, restraint of princes, rulers and people, and all dangers and accidents of the seas, rivers, machinery, boilers and steam navigation, and errors of navigation throughout this charter-party, always mutually excepted.
(20) Coals used by vessel while off hire . . . to be allowed by owners.
（2）案情梗概：船舶在长江里卸货，中日战争爆发，长江封航，租家认为合约受挫以及停租而终止租约，而船东认为租家错误毁约（错误毁约有十分可怕的后果）

11 [1980] Vol. 2  Lloyd's Rep.  237 ACTIS CO. LTD.v.THE SANKO STEAMSHIP CO. LTD.(THE "AQUACHARM")  高院
（1）Clause 8 of the charter provided that the master was to be under the order and directions of the charterers as regards employment and agency. Clause 15 provided inter alia:

. . . in the event of the loss of time from deficiency of men or stores, fire breakdown or damage to hull, machinery or equipment or by any other cause preventing the full working of the vessel the hire shall cease for the time therby lost.关于解释停租条款，这是租家条款，有任何的模糊或者不清楚应该做出对船东有利的解释，而且租家要证明发生了条款中所列明的事项以及需要证明因此损失了租家使用船舶的时间 any other cause 并不适用与同义规则
The Hague Rules were incorporated into the charter by cl. 24 so that by art. 4 (2) (a) the owners were exempted from liability for the act, neglect, or default of the master in the navigation or in the management of the vessel. 有争议的条款，海牙规则下，船东可以免责
（）-Held, by Q.B. (Com. Ct.) (Lloyd, J.), that (1) for the words "or by any other cause preventing the full working of the vessel" in cl. 15 to apply the test was whether the vessel was fully efficient in herself, i.e. whether she was fully capable of performing the service immediately required of her, and if she was, then she was not off hire even though she was prevented from performing that service by some external cause such as the refusal by the canal company to permit the vessel to pass through the canal (see p. 240, col. 1); and the umpire, having found that the vessel was fit in herself to perform the service immediately required had applied the right test and come to the right conclusion that the vessel was not off hire (see p. 240, col. 1);停租条款中船舶不能有效的工作考量的是船舶本身的状态或者状况
The words are not apt to cover a case where the ship is in every way sound and well found, but is prevented from continuing her voyage by such a cause as this. If there was no "off-hire" period, the charterers would recover nothing in respect . . .只要船舶本身是可以的，但是由于某些外在的因素阻止其正常工作，并不算是停租
-Court Line Ltd. v. Dant & Russell Inc. (1939) Ll.L.Rep. 212, applied.
-The Apollo, [1978] 1 Lloyd's Rep. 200, considered.
(2) the finding by the umpire that the master had failed to use reasonable care to comply with the charterers' orders as to loading under cl. 8 was correct in that the master had known that Aquacharm would go down by the head on passing into fresh water and should have allowed for that factor when loading at Baltimore (see p. 240, col. 2; p. 241, col. 1);船长确实在装载货物的时候没有谨慎考虑吃水的问题。
(3) the concept of unseaworthiness would not be extended to cover a vessel which had to be lightened to enable her to get into a port and Aquacharm was not unseaworthy for the particular voyage which involved passage through the Panama Canal merely because she was an inch or two over her permitted draught of 39 ft. 6 ins. when she arrived at the entrance of the canal and the umpire was right in holding that the vessel was not unseaworthy (see p. 241, col. 2);
(4) no question of due diligence arose and the owners were therefore entitled to rely on art. 4, r. 2 (a) to exempt them from the consequences of the master's failure to comply with the charterers' orders (see p. 241, col. 2);
(5) the umpire, in finding that it was not proved that the failure by the master to exercise reasonable skill and care caused the canal company to refuse the vessel entry, was stating his conclusion on the basis of the legal burden of proof and it was impossible for this Court to

say that he was wrong (see p. 242, col. 2); and the charterers had failed to show that they had suffered any damage by reason of the master's error in making his calculation without regard to the density of the water in the Gatun Lake and therefore failing to comply with the charterers' order that the vessel be loaded up to the draught permitted by the Panama Canal Company (see p. 243, cols. 1 and 2);
(6) cl. 8 on its true construction did not oblige the charterers to pay for the loading and discharging more than once and the words "load and discharge" did not in their natural and ordinary meaning cover what happened in relation to the expenses incurred in hiring Mini Lux and other transhipment costs (see p. 244, col. 2);
-General Steam Navigation Co. v. Slipper, (1862) 11 C.B. (N.S.) 493, considered.
(7) the costs of transhipment were an ordinary expense incurred in the course of navigation and there was no ground on which the owners on whom the expense had fallen could recover it from the charterers (see p. 245, col. 1).关于转运费用的问题
Clause 8 provides:
The Captain (although appointed by the Owners), shall be under the orders and directions of the Charterers as regards employment and agency; and Charterers are to load, stow, and trim tally and discharge the cargo at their expense under the supervision of the Captain.
上诉庭 [1982] Vol. 1  Lloyd's Rep.  7
（1） In seeing whether cl. 15 applies, we are not to inquire by whose fault it was that the vessel was delayed. We are to inquire first whether the "full working of the vessel" has been prevented. Only if it has, do we consider the "cause". I do not think the lightening of cargo does "prevent the full working of the vessel". Often enough cargo has to be unloaded into a lighter - for one reason or another - to get her off a sandbank - or into a basin. The vessel is still working fully, but she is delayed by the need to unload part of the cargo.首先要考虑的是是否发生了停租的事件，而不是先关注是谁的错误，法官不认为减载货物算是停租的，因为船舶是完全可以工作的
（2）Both the umpire and the Judge found that this vessel was seaworthy. I agree with them. I think the word "seaworthy" in The Hague Rules is used in its ordinary meaning, and not in any extended or unnatural meaning. It means that the vessel - with her master and crew - is herself fit to encounter the perils of the voyage and also that she is fit to carry the cargo safely on that voyage - see Scrutton on Charter-parties (18th ed.), p. 83. This vessel was so fit. It may be that she had to be lightened to pass through the Panama Canal, but that did not make her unfit.关于适航，法官认为适合面对一般的风险以及船员，以及适货等，不应该延伸的范围太广。
（3）关于停租条款，思路是首先是否发生了停租中列明的事项，然后证明有损失使用船舶的时间，然后证明是谁的责任。

作者: denning_lee 时间: 2011-3-30 20:56

12 [1985] Vol. 1 Lloyd's Rep. 140 THE SANKO STEAMSHIP CO. LTD.v.FEARNLEY AND EGER A/S(THE "MANHATTAN PRINCE") 高院
（）The vessel was off hire throughout the set period under cl. 21 of the charter-party, in that throughout/ her stay at Oxelosund she was subjected to a boycott by the local longshoremen and/or by the I.T.F. and was not permitted to berth or discharge because her crew were not employed under a collective agreement acceptable to the I.T.F. The relevant cause of the time lost /must, according to Mr. Collins' contention, be attributed to the history and condition of the vessel and not to any extraneous circumstances. Mr. Phillips, on the other hand, emphasizes the physical condition as crucial to the resolution of the problem arising under cl. 21. That clause provides, so far as material-
. . . In the event of loss of time, whether arising from interruption in the performance of the vessel's service or from a reduction in the speed of the performance thereof, or in any other manner (1) due to deficiency of personnel or stores, repairs, breakdown (whether partial or otherwise) of machinery or boilers, collision or stranding or accident or damage to the vessel or any other cause preventing the efficient working of the vessel . . . or due to strikes . . . or for the purpose of obtaining medical advice or treatment . . . hire shall cease to be due or payable from the commencement of such loss of time until the vessel is again ready and in an efficient state to resume her service from a position not less favourable to charterers than that at which such loss of time commenced.
（）It seems to me that the true interpretation of the phrase in its context demands that it should apply, and apply only, to the physical condition of the vessel, with the result that, as Mr. Phillips contends, the phrase "efficient working" must enjoy the connotation of efficient physical working. In my judgment the vessel worked, even though she was prevented from working in the way the charterers would have wished by the action of I.T.F. She was indeed fully operational and as such was not within the scope of the off hire clause.
（）The answer to this point would appear to be that given by Mr. Phillips, that one must look to see what is meant in cl. 5 by the term "Wages". The obligation is expressed quite simply:
. . . Owners undertake to provide and to pay for all provisions, wages, and shipping and discharging fees and all other expenses of the Master, officers and crew.

作者: 杨永 时间: 2011-3-30 22:14

收藏并学习

作者: denning_lee 时间: 2011-4-3 14:54

13 [1978] Vol. 1 Lloyd's Rep. 200 SIDERMAR S.p.A. vAPOLLO CORPORATION(THE "APOLLO") 高院
（1） Clause 15 of the charter provided inter alia:
That in the event of loss of time from deficiency and/or default of men or deficiency of stores, fire, breakdown or damage to hull, machinery or equipment, grounding, detention by average accidents to ship or cargo, drydocking for the purpose of examination or painting bottom, or by any other cause whatsoever preventing the full working of the vessel, the payment of hire shall cease for the time thereby lost: and if upon the voyage the speed be reduced by defect in or breakdown of any part of her hull, machinery or equipment, the time so lost, and the cost of any extra fuel consumed in consequence thereof, and all extra expenses shall be deducted from the hire.
（2）In my view although there is considerable tautology about the printed clause, which has been increased by the typed amendments, the use of the word "whatsoever" coming after the words "or by any other cause" excludes the application of the ejusdem generis rule so as to limit the "other causes" to those of the same genus as previously enumerated, if such a genus can be found. This does not, however, necessarily mean that there is no limitation on the application of the amended clause since one has the general context of the charter and the words "preventing the full working of the vessel". It is for the owners to provide the ship and the crew to work her and provide the service then required by the charterers. Here the obtaining of free pratique was no mere formality owing to the illness of the two members of the crew, who had to be discharged to hospital at the vessel's previous port of call suffering from suspected typhus. Where the obtaining of health clearance is a mere formality I think the very minor delays, if any, involved in obtaining it would not bring the off-hire clause into play, since the ship would be able to render the service then required of her. But in the present case the obtaining of free pratique was no mere formality and there was good cause for the careful testing and disinfection that was carried out before free pratique was given involving a delay of 29 1/2 hours. In my judgment the action taken by the port health authorities did prevent the full working of the vessel and did bring the off-hire clause into play.高院法官强调了本案中的检疫并非是例行手续，而是船舶未能备妥作业，受到了程祖的影响比较大
（3）船舶没有获得检疫许可，未能正常装货，是属于船舶自身感染的问题，阻止了船舶的正常工作和运行，个人认为这样的判决还是合理的，但是在后来上诉庭关于巴拿马运河减载的问题却判决并未停租。

14 1987] Vol. 2 LLOYD'S LAW REPORTS 498 C.A. VENEZOLANA DE NAVEGACION v.BANK LINE(THE "ROACHBANK") 高院及上诉庭
（）15. That in the event of loss of time . . . by any other cause whatsoever preventing the full working of the vessel the payment of hire . . . shall cease for the time thereby lost.
（1）The only other authority I should mention in this connection is The Apollo, [1978] I Lloyd’s Rep. 200. In that case a vessel was detained for nearly 30 hours by the port health authority because of two members of the crew who had previously been taken to hospital with suspected typhus. The port authorities insisted on the vessel being disinfected before they would grant free pratique. Mr. Justice Mocatta held that the vessel was off hire. The dividing line between a vessel which is unable to enter a port until she has been disinfected and a vessel which is unable to enter port until she has been lightened may be narrow; but it has never, so far as I know, been suggested that in the latter case the vessel would be off hire. I can see no difference between that case and the present.法官认为两个案例难以区分
上诉庭 [1988] Vol. 2 LLOYD'S LAW REPORTS 337
（1）Lord Justice NEILL: In these circumstances, it is necessary for me to attempt to summarise the effect of the earlier authorities of the approach which should be followed in considering the meaning and application of cl. 15. That approach, as it seems to me, is first to consider whether the full working of the vessel has been prevented. Although, as I said earlier, that would appear prima facie to be a pure question of fact, the Courts have unquestionably put a judicial gloss on the way in which that question of fact is to be put, so that the question which has to be asked, according to the authorities, is whether the vessel is fully efficient and capable in herself of performing the service immediately required by the charterers.
第一是船舶是否不能正常和有效的工作，这个问题是一个事实问题

作者: denning_lee 时间: 2011-4-3 14:55

15 [1936] 41 COM. CAS 206 Tynedale Steam Shipping Co Ltd v Anglo-Soviet Shipping Co Ltd  COURT OF APPEAL
（1）The "Baltime" Charter of 1920 includes the following clauses: " the owners to maintain the steamer in a thoroughly efficient state in hull and machinery during service; the steamer to be fitted and maintained with winches and derricks; in the event of loss of time caused by accident preventing the working of the steamer and lasting more than 24 consecutive hours, hire to cease from commencement of such loss of time until steamer is again in efficient state to resume service.
（2）Held - (i) in the absence of an express or implied request by the owners for assistance they were not liable to repay to the charterers the sums paid for the hire of the shore cranes and floating craft.
在缺乏明示或者默示的要求船东提供协助时，船东没有责任和义务支付岸吊和浮吊费用
(ii) on a proper construction of the charterparty the cesser of hire clause had been put into operation by the delay, and the shipowners' right to be paid hire ceased in respect of the time occupied in discharge.
由于船舶的吊车坏了停租条款适用，船东租金的权利因为在卸货时的设备损坏而停止了
(iii) in construing a standard charterparty of this nature it must be assumed that it was drawn and its terms settled with full knowledge of the cases reported prior to the time the document was settled, and was intended to be construed and ought to be construed in the light of those cases.
在解释标准租约的时候，应该按照之前的判例进行解释
'Clause 2.--Owners to provide and pay for all provisions and wages, for insurance of the steamer, for all deck and engine room stores and maintain her in a thoroughly efficient state in hull and machinery during service. Owners to provide one winchman per hatch. If further winchmen required, or if stevedore refuses to work with the crew, charterers to provide and pay qualified winchmen from land.

'Clause 3.--Charterers to provide and pay for all coals and all other charges and expenses whatsoever the steamer to be fitted and maintained with winches, derricks and ordinary runners capable of handling lifts up to three tons.
As to that, it is sufficient to say that in my judgment there is no doubt that this stipulation with regard to the winches and with regard to the ship generally, in clause 2 of the charterparty, that the owners are to "maintain her in a thoroughly efficient state in hull and machinery during service," do not constitute an absolute engagement or warranty that the ship-owners will succeed in so maintaining her whatever perils or causes may intervene to cause her to be inefficient for the purpose of her services. On the contrary, there is a very wide exception clause, namely clause 12 of the charterparty, lines 96 and 97:
'Owners not to be responsible in any other case nor for damages or delay whatsoever and howsoever caused even if caused by the neglect or default by owners' servants.'这个责任只是一个合理尽责的责任，因为有一条广泛的免责条款就可以免除这个绝对的责任。
'Clause 10.--In the event of loss of time caused by dry-docking or by other necessary measures to maintain the efficiency of steamer, or by efficiency of men or owners' stores, breakdown of machinery, damage to hull or other accident preventing the working of the steamer and lasting more than 24 consecutive hours, hire to cease from commencement of such loss of time until steamer is again in efficient state to resume service. Should steamer be driven into port, or to anchorage by stress of weather, or in the event of steamer trading to shallow harbour, rivers or ports with bars, or in case of accident to cargo, causing detention to steamer, time so lost and expenses incurred shall be for charterers' account even if caused through fault or want of due diligence by owners' servants.

'Clause 12.--Owners only to be responsible for delay in delivery of the steamer or for delay during the currency of this charter for loss or damage to goods on board, if such delay or loss has been caused by want of due diligence on the part of owners or their manager, in making steamer seaworthy and fitted for the voyage or any other personal act or omission or default of owners or their manager. Owners not to be responsible in any other case nor for damage or delay whatsoever and howsoever caused even if caused by the neglect of or default by owners' servants.（）

16 [1973] Vol. 1 Lloyd's Rep. 27 CANADIAN PACIFIC (BERMUDA) LTD.v. CANADIAN TRANSPORT CO. LTD.(THE "H. R. MACMILLAN")  高院以及上诉庭
（）1. [The owners are to] keep the vessel in a thoroughly efficient state in hull machinery and equipment including Munck gear for and during the service.这个只是合理的责任，并不是绝对的

That in the event of the loss of time from deficiency and/or default of men or deficiency of stores, fire, breakdown or damages to hull, machinery or equipment, grounding, detention by average accidents to ship or cargo, drydocking 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; and if upon the voyage the speed be reduced by defect in or breakdown of any part of her hull, machinery or equipment, the time so lost, and the cost of any extra fuel consumed in consequence thereof, and all extra expenses shall be deducted from the hire.
Net loss of time条款，需要证明损失的时间
"period clauses". The reason for this /is that under them hire ceases upon the occurrence of an event, and the off-hire period thus started continues until it ends on the occurrence of another event.有一条属于期间条款，从一个事件开始到一个事件结束
23. Vessel to work night and day, if required by Charterers, and all winches to be at Charterers' disposal during loading and discharging . . . day and night as required. . . . In the event of a disabled crane or cranes, or insufficient power to operate cranes, Owners to pay for shore engine, or engines, in lieu thereof, if required, and pay any loss of time occasioned thereby.

38. With references to clauses 15 and 23, in the event of a breakdown of Munck crane or cranes by reason of disablement or insufficient power the hire to be reduced pro rata for the period of such inefficiency in relation to the number of cranes available. Owners to pay in addition the cost of labour affected by the breakdown, either stood off or additionally engaged. This does not exempt Owners from liability for the cost of hiring shore appliances in accordance with clause 23.
I therefore answer question 1 (a) in the affirmative, and question 1 (b) in the negative, in the same way as did the arbitrators.
If the answer to Question 1 (a) or (b) be Yes, whether upon the true construction of the charter-party and upon the assumption that there was an obligation on the Claimants to maintain the Munck cranes in working order and that the breakdown of the crane or cranes by reason of disablement was caused by or constituted a breach of that obligation, Clause 38 limits //the amount recoverable by way of damages for loss of time caused by that breach.
上诉庭 [1974] Vol. 1  Lloyd's Rep. 311
（1）The first clause to be considered is the "off-hire" clause. It is cl. 15, which says (so far as material):上诉庭考虑到15条停租条款，38条一个特殊的条款（这个是上诉庭立论的基础，但是其他的NYPE没有这样特殊的条款，是否可以成立net loss 条款）
That in the event of loss of time from . . . breakdown . . . to . . . machinery or equipment, . . . or by any other cause preventing the full working of the vessel, the payment of hire shall cease for the time thereby lost . . .
But here comes the problem: How is the "period of inefficiency" to be calculated? A simple example is when one crane breaks down during loading at 9 a.m. on Monday and is out of action for two hours until 11 a.m. on the same day. The period of inefficiency is two hours. The hire
is reduced by one-third for two hours. But now suppose that that one crane was out of action

for two days and is not repaired until 9 a.m. on the Wednesday. The arbitrators would say that the "period of inefficiency" would not include night time or lunch time, but would be only the number of working hours lost. That is Monday (9 00-12 00 and 13 00-17 00), Tuesday (8 00-12 00 and 13 00-17 00); and Wednesday (8 00-9 00), making in all 16 hours lost. But the Judge would say that the "period of inefficiency" was two days. I prefer the Judge's view, for this reason: The hire is payable per day. If all three cranes had been out of action for two days, the charterers would have lost two days use of the vessel. They would be relieved of two days hire, not of 16 hours hire. So also if one crane is out of action for two days, they should be relieved of one-third of two days hire. If the period of inefficiency was two days and two hours, the hire should be reduced accordingly - not for 18 hours - but for two full days and two hours.
（2）Bringing together those examples, it seems to me that the "period of inefficiency" includes the whole of the time during which the task in hand, for which the charterers were using the ship, required the use of a Munck crane or cranes, such time to run continuously, except when the charterers put the vessel to use for another task which did not require the use of cranes.这就是原则的问题，如果有吊机损坏则应该按比例扣减

作者: denning_lee 时间: 2011-4-4 18:38

16 [1973] Vol. 1 Lloyd's Rep. 27 CANADIAN PACIFIC (BERMUDA) LTD.v. CANADIAN TRANSPORT CO. LTD.(THE "H. R. MACMILLAN")  高院以及上诉庭
（）1. [The owners are to] keep the vessel in a thoroughly efficient state in hull machinery and equipment including Munck gear for and during the service.这个只是合理的责任，并不是绝对的

That in the event of the loss of time from deficiency and/or default of men or deficiency of stores, fire, breakdown or damages to hull, machinery or equipment, grounding, detention by average accidents to ship or cargo, drydocking 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; and if upon the voyage the speed be reduced by defect in or breakdown of any part of her hull, machinery or equipment, the time so lost, and the cost of any extra fuel consumed in consequence thereof, and all extra expenses shall be deducted from the hire.
Net loss of time条款，需要证明损失的时间
"period clauses". The reason for this /is that under them hire ceases upon the occurrence of an event, and the off-hire period thus started continues until it ends on the occurrence of another event.有一条属于期间条款，从一个事件开始到一个事件结束
23. Vessel to work night and day, if required by Charterers, and all winches to be at Charterers' disposal during loading and discharging . . . day and night as required. . . . In the event of a disabled crane or cranes, or insufficient power to operate cranes, Owners to pay for shore engine, or engines, in lieu thereof, if required, and pay any loss of time occasioned thereby.

38. With references to clauses 15 and 23, in the event of a breakdown of Munck crane or cranes by reason of disablement or insufficient power the hire to be reduced pro rata for the period of such inefficiency in relation to the number of cranes available. Owners to pay in addition the cost of labour affected by the breakdown, either stood off or additionally engaged. This does not exempt Owners from liability for the cost of hiring shore appliances in accordance with clause 23.
I therefore answer question 1 (a) in the affirmative, and question 1 (b) in the negative, in the same way as did the arbitrators.
If the answer to Question 1 (a) or (b) be Yes, whether upon the true construction of the charter-party and upon the assumption that there was an obligation on the Claimants to maintain the Munck cranes in working order and that the breakdown of the crane or cranes by reason of disablement was caused by or constituted a breach of that obligation, Clause 38 limits //the amount recoverable by way of damages for loss of time caused by that breach.
上诉庭 [1974] Vol. 1  Lloyd's Rep. 311
（1）The first clause to be considered is the "off-hire" clause. It is cl. 15, which says (so far as material):上诉庭考虑到15条停租条款，38条一个特殊的条款（这个是上诉庭立论的基础，但是其他的NYPE没有这样特殊的条款，是否可以成立net loss 条款）
That in the event of loss of time from . . . breakdown . . . to . . . machinery or equipment, . . . or by any other cause preventing the full working of the vessel, the payment of hire shall cease for the time thereby lost . . .
But here comes the problem: How is the "period of inefficiency" to be calculated? A simple example is when one crane breaks down during loading at 9 a.m. on Monday and is out of action for two hours until 11 a.m. on the same day. The period of inefficiency is two hours. The hire
is reduced by one-third for two hours. But now suppose that that one crane was out of action

for two days and is not repaired until 9 a.m. on the Wednesday. The arbitrators would say that the "period of inefficiency" would not include night time or lunch time, but would be only the number of working hours lost. That is Monday (9 00-12 00 and 13 00-17 00), Tuesday (8 00-12 00 and 13 00-17 00); and Wednesday (8 00-9 00), making in all 16 hours lost. But the Judge would say that the "period of inefficiency" was two days. I prefer the Judge's view, for this reason: The hire is payable per day. If all three cranes had been out of action for two days, the charterers would have lost two days use of the vessel. They would be relieved of two days hire, not of 16 hours hire. So also if one crane is out of action for two days, they should be relieved of one-third of two days hire. If the period of inefficiency was two days and two hours, the hire should be reduced accordingly - not for 18 hours - but for two full days and two hours.
（2）Bringing together those examples, it seems to me that the "period of inefficiency" includes the whole of the time during which the task in hand, for which the charterers were using the ship, required the use of a Munck crane or cranes, such time to run continuously, except when the charterers put the vessel to use for another task which did not require the use of cranes.这就是原则的问题，如果有吊机损坏则应该按比例扣减
（3）LORD DENNING: I find myself in agreement with the Judge on all the points argued before us except on the question of a strike. I think the "period of inefficiency" continues throughout notwithstanding that there is no loading actually being done owing to a strike. It is on the same footing as rain. The vessel is still required for use for loading even though it is temporarily suspended for rain or a strike.关于罢工仍然需要停租，这只是一个附带的法官意见

17 [1981] Vol. 2  Lloyd's Rep.  622  EASTERN MEDITERRANEANMARITIME (LIECHTENSTEIN) LTD.v.UNIMARINE S.A.(THE "MARIKA M") 高院
（）15. That in the event of the loss of time from deficiency and/or default of men or stores, fire, breakdown or damages to hull, machinery or equipment, grounding, detention by average accidents to ship or cargo, drydocking 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; and if upon the voyage the speed be reduced by defect in or breakdown of any part of her hull, machinery or equipment, the time so lost, and the cost of any extra fuel consumed in consequence thereof, and all extra expenses shall be deducted from the hire. 停租条款需要租家证明出现了条款中所列明的事项，而且是直接的时间损失，不包括那些不能证明的间接损失
45. If during the currency of this charter-party, vessel deviates or puts back whilst on voyage or there is any loss of time caused by accident, breakdown . . . hire shall not be paid for the time so lost and the cost of extra fuel consumed and other extra expenses incurred shall be for owners' account until vessel is in the same position or in charterers' option at a point equidistant from where deviation took place but nearer her destination and voyage is resumed therefrom.
由于搁浅，耽误了原定的靠泊计划，在起浮后仍然等待了很长的时间，这是关于停租的问题，是停租到起浮时，还是停租到最终靠泊？停租到起浮时，如果能证明损失，则应该以违约为由索赔事件损失，但是一般船长有航行免责？
（2）但是从来没有一个案例说明在船舶有效的成为一艘船舶或者修复后，还要继续停租的（我认为这个案例有了仲裁员对于事实的认定那就是船舶搁浅并不是双方违约所造成的，但是如果是船长过失或者失职呢，本案并没有讨论）

作者: denning_lee 时间: 2011-4-4 18:39

18 [1982] Vol. 2  Lloyd's Rep.  160 WESTERN SEALANES CORPORATION V. UNIMARINE S.A. (THE "PYTHIA")  高院
（） Under cl. 8 of the charter, the time charterers were to load, stow, trim and discharge the cargo at their expense under the supervision of the master.
（1） I shall turn first to the main issue between the parties, which is concerned with discharging costs, and I shall consider later the off-hire dispute.
I approach the matter as follows. It is first necessary to ascertain the parties' relevant rights and obligations under the time charter. Under a time charter in this form, it is the obligation of the time charterers both to arrange and to pay for the discharging of the ship. This does not however mean that, whenever discharging is necessary, the time charterers must pay for it. It is plain from the decision of the Court of Appeal in The Aquacharm, [1982] 1 Lloyd's Rep. 7 that the obligations of time charterers in relation to discharging will in general only apply to discharging at the designated discharging place. 法官首先认定在租约下，租家只需要承担在装卸港的有关费用，航次途中产生的费用并不能算是租家的责任和义务，船东仍旧有义务执行完该航次
（2）Whether, in the event of such different performance, the owners would be entitled to any further remuneration, would depend on the circumstances, to which I shall return in due course.因为现实的原因，船舶不能在进行卸港卸货，而改用驳船，船东是否可以索赔这部分的费用，而这个卸货方式租家也是同意的？这个在操作的时候需要注意，是否会出现禁止翻供的
（3）It follows that I reject the owners' primary submission that the anchorage became a new designated discharging place under the charter. I turn next to their second submission which was that, if the time charterers gave no such orders, they committed a breach of contract in failing so to do.当船舶出现事故，租家没有明确的指令指定新的卸货港，是否违约？It follows, in my judgment, that in the present case the time charterers were under no obligation to issue orders for a fresh discharging place. Indeed, by acquiescing in the owners discharging the goods into barges for on-carriage to Khorramshahr, they enabled the owners to perform their obligations under the bill of lading contracts, if such transhipment was necessary for that purpose.
（）15. That in the event of the loss of time from deficiency and/or default of men or stores, fire, breakdown or damages to hull, machinery or equipment, grounding, detention by average accidents to ship or cargo, drydocking 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; and if upon the voyage the speed be reduced by defect in or breakdown of any part of her hull, machinery or equipment, the time so lost, and the cost of any extra fuel consumed in consequence thereof, and all extra expenses. ARE TO BE REIMBURSED TO OWNERS BY CHARTERERS AFTER COMPUTATION AND AGREEMENT OF CLAIM. [The typed additions to the clause are underlined].
38. If, during the currency of this Charter Party, vessel puts back whilst on voyage or any loss of time caused by accident, break-down, accident or sickness to crew (including Master) or any person on board the vessel (other than super cargo or passengers travelling under Charterers' auspices) hire shall not be paid for the time so lost and the cost of extra fuel consumed and other extra expenses incurred shall be for Owners' account until vessel is in the same position where deviation took place and voyage is resumed therefrom.
Net loss of time 当停租事件结束后马上停租结束，有的时候两者的区别并不大

19 FORESTSHIPS INTERNATIONAL LTD.v.ARMONIA SHIPPING AND FINANCE CORPORATION(THE "IRA") [1995] Vol. 1 LLOYD'S LAW REPORTS 103  高院
（）
In the event of loss of time from drydocking preventing the full working of the vessel the payment of hire shall cease for the time thereby lost.

This is what has been described as a net loss of time clause. It was the subject of consideration by Mr. Justice Robert Goff (as he then was) in The Pythia, [1982] 2 Lloyd’s Rep. 160, where he said at p. 168:
In my judgment, both as a matter of construction of the clause and as a matter of authority, it falls into the same category as the off-hire clause in a Baltime charter. The clause contemplates the happening of a certain event which has the effect of preventing the full working of the vessel in the performance of the service immediately required of her. If such an event occurs, "the payment of hire shall cease for the time thereby lost". The clause therefore contemplates a cessor of the payment of hire during the period when "the full working of the vessel" is so prevented, but only to the extent that time is thereby lost.
（2）A period off-hire clause is one which puts the vessel off-hire for the duration of the off-hire event without reference to its effect. A net time clause, such as this clause is, requires the charterer to prove the happening and the duration of the off-hire event, and that time has been lost to him thereby. So it is a two-stage operation and it does not follow merely by proof of the off-hire event and its duration that he is able to establish a loss of time to him. That must depend upon the circumstances of the particular case.
（3）像NYPE的条款是net loss of time 条款，不仅租家需要证明出现了停租的事件，而且需要证明租家丧失了使用船舶的时间，就像本案中的船舶前往装港的时候顺道绕航，所以租家并没有任何的损失，前往进坞的时间就当是预备航次了。但是如果特地绕航，那情况会怎样呢？当缺乏绕航条款的时候，应该可以停租的。

20  [1985] Vol. 2  Lloyd's Rep. 62NAVIGAS INTERNATIONAL LTD.v.TRANS-OFFSHORE INC.(THE "BRIDGESTONE MARU NO. 3")
（）1. Owners guarantee that at the date of delivery of the vessel under this charter she shall be classed NKK.

2. Owners shall . . . exercise due diligence to make the vessel in every way fit to carry fully refrigerated Butane and/or Propane and . . . in every way fit for . . . service . . .
I reject as a matter of principle these two suggested implications. In my judgment, business efficacy is fully met by the express obligation to exercise due diligence, and there is no necessity to superimpose more rigorous terms specifically applicable to the mode of installation and the class aspects of the booster pump. I therefore hold that the implied terms are not made good and that the defendants' obligations in these respect are to be found in cl. 2, though I should add that I think that the due diligence obligation in relation to class can properly be construed as including an obligation to exercise due diligence to seek and obtain any requisite class approval for any given installation.
法官也认为保持船级中也包含合理尽责的取得船级社关于装备的证书
21. In the event of loss of time . . . due to deficiency of . . . or any other cause preventing the efficient working of the vessel . . . hire shall cease to be due or payable from the commencement of such loss of time until the vessel is again ready and in an efficient state to resume her service . . .
In my judgment, this case falls within the latter of the above two categories. The cause of refusal to allow the vessel to discharge was the failure of the pump to comply with the RINA regulations in that it was unfixed. This allegation was a potential challenge to the efficiency of part of the ship's equipment, namely, the portable pump. To adapt the words of Lord Justice Griffiths in The Aquacharm, the incapacity of the ship to discharge was attributable to the suspected condition of the ship itself, and as a result the crew could not use the relevant part of the machinery, namely, the pump. Consequently I hold that the charterers have clearly established as a matter of principle the occurrence of an off-hire event at Livorno.
不允许船舶卸货的原因是港口当局的阻碍，但是为什么会产生阻碍因为船舶上的设备不符合有关的规范
41. The vessel is not in the possession of either a U.S.C.G. letter of compliance or R.I.N.A. certificate and does not comply with either authorities' requirements . . .

44. . . . vessel shall not be ordered to United States of America; Cuba, North Korea; Vietnam [- and then a number of other countries are listed, but Italy is not mentioned -].

48. Charterers shall send vessel to a Japanese port during May, 1981 and under no circumstances later than 21st June, 1981.

53. Owners agree at a subsequent date that booster pump(s) shall be fitted at a first discharge port in Western Europe or Mediterranean in Charterers' option after 15th November, 1980. Fitting of this equipment shall be carried out prior to discharge.

Alongside the charter-party, both the plaintiffs and the defendants signed on the same day, Mar. 3, 1981, a side letter (4B 21) which was in the following terms: The original fixture was contained in a telex dated Oct. 17, 1980 (160), which referred to the booster pump in the following terms:事件是发生在1981年

Description: . . . Two boosters and heater shall be fitted at a first discharge port in Western Europe or Mediterranean in Charterers' option after November 15th, 1980. Fitting of this equipment shall be carried out prior to discharge and vessel shall be considered off-hire. Charterers and Owners to co-operate to reduce off-hire time to a minimum. Owners undertake that gas-freeing shall not be required.
（）

作者: denning_lee 时间: 2011-4-5 08:19

20 [1985] Vol. 2 Lloyd's Rep. 62NAVIGAS INTERNATIONAL LTD.v.TRANS-OFFSHORE INC.(THE "BRIDGESTONE MARU NO. 3")
（）1. Owners guarantee that at the date of delivery of the vessel under this charter she shall be classed NKK.

2. Owners shall . . . exercise due diligence to make the vessel in every way fit to carry fully refrigerated Butane and/or Propane and . . . in every way fit for . . . service . . .
I reject as a matter of principle these two suggested implications. In my judgment, business efficacy is fully met by the express obligation to exercise due diligence, and there is no necessity to superimpose more rigorous terms specifically applicable to the mode of installation and the class aspects of the booster pump. I therefore hold that the implied terms are not made good and that the defendants' obligations in these respect are to be found in cl. 2, though I should add that I think that the due diligence obligation in relation to class can properly be construed as including an obligation to exercise due diligence to seek and obtain any requisite class approval for any given installation.
法官也认为保持船级中也包含合理尽责的取得船级社关于装备的证书
21. In the event of loss of time . . . due to deficiency of . . . or any other cause preventing the efficient working of the vessel . . . hire shall cease to be due or payable from the commencement of such loss of time until the vessel is again ready and in an efficient state to resume her service . . .
In my judgment, this case falls within the latter of the above two categories. The cause of refusal to allow the vessel to discharge was the failure of the pump to comply with the RINA regulations in that it was unfixed. This allegation was a potential challenge to the efficiency of part of the ship's equipment, namely, the portable pump. To adapt the words of Lord Justice Griffiths in The Aquacharm, the incapacity of the ship to discharge was attributable to the suspected condition of the ship itself, and as a result the crew could not use the relevant part of the machinery, namely, the pump. Consequently I hold that the charterers have clearly established as a matter of principle the occurrence of an off-hire event at Livorno.
不允许船舶卸货的原因是港口当局的阻碍，但是为什么会产生阻碍因为船舶上的设备不符合有关的规范
41. The vessel is not in the possession of either a U.S.C.G. letter of compliance or R.I.N.A. certificate and does not comply with either authorities' requirements . . .

44. . . . vessel shall not be ordered to United States of America; Cuba, North Korea; Vietnam [- and then a number of other countries are listed, but Italy is not mentioned -].

48. Charterers shall send vessel to a Japanese port during May, 1981 and under no circumstances later than 21st June, 1981.

53. Owners agree at a subsequent date that booster pump(s) shall be fitted at a first discharge port in Western Europe or Mediterranean in Charterers' option after 15th November, 1980. Fitting of this equipment shall be carried out prior to discharge.

Alongside the charter-party, both the plaintiffs and the defendants signed on the same day, Mar. 3, 1981, a side letter (4B 21) which was in the following terms: The original fixture was contained in a telex dated Oct. 17, 1980 (160), which referred to the booster pump in the following terms:事件是发生在1981年

Description: . . . Two boosters and heater shall be fitted at a first discharge port in Western Europe or Mediterranean in Charterers' option after November 15th, 1980. Fitting of this equipment shall be carried out prior to discharge and vessel shall be considered off-hire. Charterers and Owners to co-operate to reduce off-hire time to a minimum. Owners undertake that gas-freeing shall not be required.
（）

21 [1917] 2 KB 54 THOMAS SMAILES & SON v EVANS & REID, LIMITED 高院
1这是 period clause 当船舶恢复完全状态的时候就不算停租（绕航修船等，但是如果吊机损坏可以持续扣租）net loss of time（吊机损坏部分扣租）
By a charterparty it was provided that "in the event of loss of time from ... damage preventing the working of the vessel for more than twenty-four running hours, the payment of hire shall cease until she be again in an efficient state to resume her service."The charterers contended that after the grounding hire ceased to be payable until the whole of the discharged cargo had been reloaded:-Held, rejecting this contention, that the vessel was "in an efficient state to resume her service" when the repairs were finished, and consequently, that hire again became payable from

22 The Essex Envoy[1929]35 Com Cas 63
（1）A time charterparty contained the following cesser clause: "In the event of loss of time from deficiency of men or stores, breakdown of machinery (whether partial or otherwise) collision, stranding, fire in ship and/or cargo, damage, or interference by authorities, preventing the working of the vessel for more than twelve running hours, the payment of hire shall cease until she be again in an efficient state to resume her service at the place where the accident occurred. ..."事故出现在缔结期租之前
（2）Held: the cesser clause applied to damage arising before as well as after the vessel came on hire, and there was "loss of time from damage" within the meaning of the clause, this being so even if the charterers were not going to use the vessel during the four days in question, and, therefore, the charterers were entitled to deduct four days' hire, and the owners were entitled to recover the amount so deducted from the defendants as damages for loss of use of their steamer.

作者: denning_lee 时间: 2011-4-5 08:19

23 [1978] Vol. 1  Lloyd's Rep.  53COSMOS BULK TRANSPORT INC.v.CHINA NATIONAL FOREIGN TRADETRANSPORTATION CORPORATION(THE "APOLLONIUS") 高院
The charter, which was on Baltime 1939 form, described the vessel as ". . . capable of steaming 14 1/2 knots . . ." and by cl. 1 provided that on delivery the vessel was to be in every way fitted for ordinary cargo service. The charter also provided, inter alia:

3. The Owner to . . . maintain her in a thoroughly efficient state in hull and machinery, equipment and keep her class during service.

7. The Master to prosecute all voyages with the utmost despatch . . .

11A.
In the event of dry-docking or other necessary measures to maintain the efficiency of the vessel, deficiency of men or owner's stores, breakdown of machinery, damage to hull or other accident, grounding except in berth, strike of officers and/or crew either hindering or preventing the efficient working of the vessel, no hire to be paid in respect of any time lost thereby during the period in which the vessel is unable to perform the service immediately required. Any hire paid in advance to be adjusted accordingly.

13. The Owners only to be responsible for delay in delivering of the vessel or for delay during the currency of the charter . . . if such delay . . . has been caused by want of due diligence on the part of the Owners . . . in making the vessel seaworthy . . .
（2）I turn now to the first and most important point of all arising in this case, namely, whether the speed warranty in the preamble of the charter-party applies only at the date of the charter-party as is contended by the owners or also or in any case applies at the date of the delivery of the vessel under the charter.
In my judgment there are overwhelming commercial considerations favouring the charterers' argument that the speed warranty, whenever else it may apply, certainly applies at the date of the delivery of a vessel, subject only to the owners being protected from the consequences of any breach of such warranty by any exception clause that may be applicable.

24  [1985] Vol. 2  Lloyd's Rep. 164 OCEAN GLORY COMPANIANAVIERA S.A.v.A/S P.V. CHRISTENSEN (THE "IOANNA") 高院

The charter provided inter alia that the owners were to keep the vessel in a thoroughly efficient state in hull machinery and equipment for and during service; that the captain should prosecute his voyage with the utmost despatch; and that the vessel was capable of steaming about 13 knots fully loaded. Further cl. 51 provided inter alia:
. . . (305) In the event of loss of time either in port or at sea . . . caused by . . . damages or lack of maintenance to hull . . . machinery or equipment . . . or by any other cause whatsoever preventing the full working of the vessel the payment of hire . . . shall cease for the time thereby lost until the vessel is again ready and in an efficient state to resume her service . . . and all extra expenses are to be for owners' account and may be deducted from hire.

(316) . . . and if upon the voyage the speed be reduced by defect in . . . any part of her hull machinery or equipment the time so lost and the cost of any extra fuel consumed . . . and all extra expenses are to be for owners' account and may be deducted from the hire.

作者: denning_lee 时间: 2011-4-5 08:21

24  [1981] Vol. 2 Lloyd's Rep.  308INTERNATIONAL SEA TANKERS INC.
v.HEMISPHERE SHIPPING CO. LTD.(THE "WENJIANG") 高院及上诉庭
[1982] Vol. 1 Lloyd's Rep.  128
21. In the event of loss of time for more than 12 . . . consecutive hours (. . . arising from interruption in the performance of the vessel's service . . . or in any other manner) (i) due to . . . any other cause preventing the efficient working of the vessel . . . [the vessel was to be off-hire].
上诉庭认为战争的爆发直到合约受挫，租家需要继续支付租金，因为船舶是完全可以使用的。

35. War and/or mine risk insurance, if any shall be for Owners account but . . . war risk insurance on hull and machinery on a mutually agreed value in excess of the rate ruling at the date hereof shall be for Charterers' account (see clause 48).

48. With reference to clause 35 of the Charter-party, any additional war risk insurance premiums on the vessel, officers and crew, in excess of the levels in effect at the commencement of the Charter-party are to be for Charterers' account.

25 1981] Vol. 2 Lloyd's Rep.  267SANTA MARTHA BAAY SCHEEPVAARTAND HANDELSMAATSCHAPPIJ N.V.v.SCANBULK A/S(THE "RIJN") 高院
4. That the Charterers shall pay for the use and hire of the said vessel . . . commencing on and from the day of her delivery . . . hire to continue until the hour of her redelivery in like good order and condition ordinary wear and tear excepted, to the Owners . . . at a safe port South Japan (not north of Tokyo Bay)/Singapore Range . . .

15. That in the event of the loss of time from . . . breakdown or damages to hull, machinery or equipment . . . or by any other cause preventing the full working of the vessel the payment of hire shall cease for the time thereby lost; and if upon the voyage the speed be reduced by defect in or breakdown of any part of her hull machinery or equipment the time so lost . . . and all extra expenses shall be deducted from the hire.

26 [1926] Vol. 26  Ll.L.Rep.  76 BOARD OF TRADE v. TEMPERLEYSTEAM SHIPPING COMPANY, LTD.  高院以及上诉庭
[1927] Vol. 27  Ll.L.Rep.  230 上诉庭
（）Now, in respect of those 16 days the Admiralty, claim the benefit of the clause in the charter-party which provided:-
If from . . . breakdown of machinery, or any other cause, the working of the steamer is at any time suspended for a period exceeding twelve running hours, pay shall cease for the whole of such and any subsequent period of whatever duration during which the vessel is inefficient.
（）When the Admiralty claim to deduct hire for the period during which she was inefficient at Falmouth repairing her damage, the shipowner endeavours to answer: "I must still have my hire paid, because, although it is true I was inefficient, the reason why I was inefficient was that you stopped me from making myself efficient

26 [1934] Vol. 50 Ll.L.Rep.  62 LENSEN SHIPPING, LTD. v. ANGLO-SOVIET
SHIPPING COMPANY, LTD. 高院
(1) Vessel to load "where she can lie safely always afloat or safe aground where steamers of similar size and draft are accustomed to lie aground in safety. 这个是关于安全泊位的问题
(10) In the event of loss of time caused by drydocking or by other necessary measures to maintain the efficiency of steamer, or by . . . damage to hull or other accident preventing the working of the steamer and lasting more than 24 consecutive hours, hire to cease from commencement of such loss of time until steamer is again in efficient state to resume service. Should steamer be driven into port, or to anchorage by stress of weather, or in the event of steamer trading to shallow harbours, rivers or ports with bars or in case of accident to cargo, causing detention to steamer, time so lost and expenses incurred shall be for charterers' account, even if caused through fault or want of due diligence by owners' servants. 这个是停租条款
(12) Owners only to be responsible for delay in delivery of the steamer or for delay during the currency of this charter and for loss or damage to goods on board, if such delay or loss has been caused by want of due diligence on the part of owners or their manager, in making steamer seaworthy and fitted for the voyage or any other personal act or omission or default of owners or their manager. Owners not to be responsible in any other case nor for damage or delay whatsoever and howsoever caused even if caused by the neglect or default by owners' servants. Charterers to be responsible for loss or damage caused to steamer or owners by goods being loaded contrary to the terms of this charter or by improper or careless loading or stowage of goods or any other improper or negligent act on their part or that of their servants"-
Finding of umpire that there was no want of due diligence on the part of the shipowners or their servants and that the charterers were liable 这个作为一个事实问题，认为船东以及雇员并没有问题。
（2）也就是说装木材出现了问题，如果简单的问题是没有租家指定了不安全泊位的争议，那么本案只是一个简单的关于停租的争议，什么时候船舶不能正常工作以及处于修理过程中以及重新装货的过程（这个要看net loss of time ）但是本案中出现了租家指定了不安全的泊位进行装货，导致船舶搁浅的问题
（）The questions for the opinion of the Court were as follows:
Whether it was an implied term of the charter-party that the Terneuzen, when employed in the loading of timber cargoes with a deckload, should not be ordered so to load nor be so loaded except at a place where she could lie always afloat.
(2) Whether assuming that the charter-party was subject to the implied term set out in Question 1 above the charterers were liable on the facts as found to pay hire for the time lost and to bear the damages and expenses consequent upon the shooting of the deck cargo of the Terneuzen, having regard to the provisions of Clause 12 of the charter-party.
(3) Whether on the facts found the charterers were liable to pay hire for the time lost and to bear the damages and expenses consequent upon the shooting of the deck cargo of the Terneuzen, having regard to the provisions of Clause 12 of the charter-party.
(4) Whether on the facts found the provisions of Clause 10 of the charter-party entitled the charterers to treat the Terneuzen as being off hire from 12 45 p.m. on June 24, when she shot her deck cargo and damaged her hull, until 9 45 a.m. on July 13, 1933, when she was again fit to resume service.租家是否可以停租
（）In that sense "lying afloat" becomes material, because it is, I gather, implicit in the findings// that she was sent there as a place which everybody thought was and intended to treat as a floating berth, and not a berth where she could take the ground. In that sense it was not a proper berth, because she had to take the ground, and as she took the ground when everybody was unaware of the fact, it thereupon became a place where she could not lie safely, and in that sense I think it was a breach of the charter-party to send her to that berth.

作者: denning_lee 时间: 2011-4-6 21:15

27 S.S. ARILD (OWNER) v SOCIT ANONYME DENAVIGATION HOVRANI [1923] 2 KB 141 高院
（1）Shipping - Charterparty - Vessel off Hire while under Repair - Liability for Coal consumed while Vessel off Hire.
在停租的时候租家支付燃料的义务是否终止（还是解释租约的有关条文）
A time charterparty provided that the owner was to maintain the steamship in a thoroughly efficient state for and during the service; that the charterers were to provide and pay for all coal; and that in the event of loss of time through (inter alia) breakdown or other accident preventing the working of the steamer and lasting more than twenty-four consecutive hours the hire should cease until the vessel was again in an efficient state to resume her service.
During the currency of the charterparty the vessel was off hire for repairs, and while so off hire bunker coal to the value of 105l. 15s. was consumed:-
Held, that notwithstanding the fact that the vessel was off hire the charterers were bound to pay for the coal consumed during that period.

28 [1941] Vol. 71 Ll.L.Rep. 166SEA & LAND SECURITIES, LTD. v.WM. DICKINSON & CO., LTD. 高院
（）-Held, affirming award, that Clause 12 indicated that the use of the ship was to be a condition precedent to the payment of hire; that so far as degaussing was concerned the owners had agreed to give to the charterers the absolute and unconditional use of the vessel, and that as the ship was withdrawn from the charterers' use by the voluntary and deliberate act of the owners, no hire was payable by the charterers during the period when she was being degaussed; but that degaussing apparatus could not be said to come within "owner's stores."
使用船舶是支付租金的先决条件关于消磁设备安装既然船东已经同意了给予租家绝对的无条件的使用船舶，因为从租家手中撤出使用是船东的自愿和故意的行为，那么在那段时间内租家应该停租的，，但是消磁设备的安装不能是12条停租条款中owner’s stores
（）12. That in the event of loss of time from deficiency of men or owner's stores, breakdown of machinery, or damage to hull or other accident preventing the working of the steamer, and lasting more than twenty-four consecutive hours, the hire shall cease from the commencement of such loss of time until she be again in an efficient state to resume her service; but should the steamer be driven into port or to anchorage by stress of weather, or from any accident to the cargo, or in the event of the steamer trading to shallow harbours, rivers or ports where there are bars causing detention to the steamer through grounding or otherwise, time so lost and expenses incurred (other than repairs) shall be for charterers' account.
（）两段时间在装货，但是在安装消磁设备的同时船舶在轮候等泊（这个问题说明全部或者部分的时间并没有产生损失）这个是有问题的，如果在装货进行的时候船东撤出服务那么确实可以停租，但是在船舶等泊的时候安装设备，能否停租（？？这个是本案纠结的问题）
（我个人认为这个类比laytime的问题，等泊毕竟不是在海上的时候，因为随时等泊可能结束，泊位可以空出，此时完全就不能在租家的支配之下）
（） namely, that if the charterer is deprived of the use of the ship owing to some act on the part of the owner, the hire is not payable.
（）It seems to me there that the view taken was, even where the ship was withdrawn as of right that there was a failure of consideration and that hire was not due for the period for which it was withdrawn.
上诉庭 [1942] Vol. 72 Ll.L.Rep. 159
（）- Held, by Atkinson, J., affirming award, that Clause 12 indicated that the use of the ship was to be a condition precedent to the payment of hire; that so far as degaussing was
concerned the owners had agreed to give to the charterers the absolute and unconditional use of the vessel, and that as the ship was withdrawn from the charterers' use by the voluntary and deliberate act of the owners, no hire was payable by the charterers during the period when she was being degaussed; but that degaussing apparatus could not be said to come within "owner's stores."
（）- Held, by C.A., that so far as the first period was concerned there was no breach by the shipowners, as the vessel was always ready to load under the charter-party (her cargo was in fact not available); that, as regards the second period, there was no breach as the charterers had suggested and approved of the fitting of the apparatus; and that therefore, as there was no provision excusing payment while the degaussing apparatus was being fitted, the charterers were not relieved from paying hire- Shipowners' appeal allowed.
关于第一段等泊的时间，因为货物尚未准备好，故无时间损失所以租家应该支付租金（这个我个人认为也是唯一能够使得租金继续支付租金的理由所在，并未影响到租家使用船舶的时间）（观点高院与上诉庭的观点都是客观而有正确的，只是看问题的角度不同，上诉庭更加偏重于实际的时间损失，因为期租是给予租家服务只要在一定的时间内向租家提供适当的服务则租金应该是持续支付的，而高院只是认为只要是阻止了租家使用船舶就可以停租，从这个角度来看船东的要求和上诉庭的判决更加的有根据和有道理）
（）that if the shipowners during any particular period of time fail to render to the charterers the services which they have agreed to render, that is to say, if they commit a breach of their contract during a certain period of time, the charterers would be entitled to damages for that breach, and the damages for that breach would be at any rate the amount of hire which the charterers under the terms of the contract have to pay for the agreed services of the shipowners, there being default by reason of the breach on the part of the shipowners. They might even get a greater amount of damages than the amount of the hire, but, at any rate, the amount of the hire during the period when the shipowners were failing to perform the agreed services would be at least the amount of the damages which the charterers could claim.这个是关于船东违约和停租条款之间的关系
（）Therefore, if the charterers are to be able to say: "We need not pay hire for this period," their contention must be based upon an allegation that there has been a breach by the shipowners in the rendering of the services they promised to render; and, upon the facts of this case, I am unable to find that there was any such breach.
如果说不能证明发生了停租条款中的事项，租家唯一能够不用支付租金的办法就是认为船东违反了合同义务，没有给予租家使用船舶的权利，但是这个船舶使用的权利必须要建立在特定的情况下，如装卸货物或者是海上航行等

作者: denning_lee 时间: 2011-4-6 21:16

29 [1953] Vol. 2 Lloyd's Rep. 47LEOLGA COMPANIA DE NAVIGACION, S.A. v. JOHN GLYNN &SON, LTD. 高院
（）1. Steamer to be employed in lawful trades for the conveyance of lawful merchandise between good and safe ports or places within the following limits: Full Mediterranean and Red Sea. . . .

10. In the event of loss of time caused by drydocking or by other necessary measures to maintain the efficiency of steamer. . . . breakdown of machinery, damage to hull or other accident preventing the working of the steamer and lasting more than twenty-four consecutive hours, hire to cease from commencement of such loss of time until steamer is again in efficient state to resume service. . . .

12. Charterers to be responsible for loss or damage caused to steamer or owners by goods being loaded contrary to the terms of this charter or by . . . improper or negligent act on their part or that of their servants.

31. In the event of explosives being shipped it is agreed that charterers are to supply at their expense the necessary magazine in order to comply with Board of Trade regulations.

32. Dangerous cargo may be carried in accordance with Board of Trade Rules. . . .
（）-Held, that to constitute "lawful merchandise" the goods loaded must be such as could be loaded without breach of the law in force at the port of loading and such as could be lawfully discharged at the nominated discharging port; that in causing the cargo to be discharged at Adabiya the charterers had knowingly disregarded the prohibition contained in the letter from the Egyptian authorities; that accordingly the cargo loaded was not "lawful merchandise" and the charterers were in breach of the charter-party (though not on the basis of Vanderspar & Co. v. Duncan & Co.); and that, it not having been shown that the umpire had misdirected himself or acted without evidence in assessing damages, his assessment should not be interfered with- Award upheld on different grounds.
（）本案的思路第一是否停租；这个是肯定的，第二这个停租是否是由于租家违反合约托运合法货物第三租家所托运的货物是否合法？这个需要考虑的是合法货物的定义？

欢迎光临杨良宜先生个人网站 (http://yangliangyee.com/)