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标题: 轻载之前走锚 [打印本页]

作者: chengsisi 时间: 2009-6-3 13:07 标题: 轻载之前走锚

杨先生,您好.我是上海海运毕业的.在一家做TRADER的租家公司做操作. 大三时开始接触专业课,拜读您的书,受益匪浅.在工作中遇到问题,想向您请教一下. 我公司做VC租了希腊船东一条CAPE船从巴西的GIT到中国的SHEKOU.合同规定是RIDER CLAUSE如下:
disport : 1(2)sas 1(2)sbs 1(2)sps shekou opt huangpu opt mawan,prchina chtrs gurantee draft in shekou max 16.8m smsw , lightering to be for chrtrs acct and time to count in full at dischport chtrs g'tee max d/as $80,000 lps in/out all inclusive and to be decucted fm initial frt without supporting vouchers lightening clause at discharge port
1.the charterers shall have the right, where and when it is customary and safe for vessels of similar type and size to do so, to order the vessel to lie at a safe anchorage to be lightened by customary port barges or lighters;
2. any such operation is always to be effected to the full satisfaction of the master regarding general safety and is to be carried out in accordance with sound and proper marine practice. charterers are to provide and pay for all fenders or other equipment as may be required to enable any of the operations mentioned in this clause to be completed safely.
3. weather working days of 24 consecutive hours does not apply in case of lightening. lightening time, including time waiting at anchorage for lightening count in full without any exception whatsoever.
4. it is expressly agreed that the master shall have the right to refuse to allow the vessel to perform as provided in paragraph(1) above if in his reasonable opinion it is not safe to do so. if at any time the master considers, at his sole discretion, that the safety of his vessel is endangered he has the right to immediately order lighters away from his vessel. all costs and expenses incurred as a consequence shall be for charterers account, and time will count in full without any exception whatsoever.
5. charterers are to give notice to owners not less than three working days in advance when such an operation is to be performed, advising: a) the nature of the operation; b) where the operation is to take place; c) the type and quantity of cargo involved;
6. the charterers expressly agree to hold owners harmless against and indemnify them in respect of any costs, damages and liabilities resulting from any of the perations mentioned in this clause.
船舶进入在香港URMSTON锚地(蛇口港惯常减载锚地), 抛好锚等待驳船减载的时候船舶发生走锚,被香港海事处强令增加2个拖轮和引水. 之后从新抛好锚才开始减载作业. 希腊船东说这是不安全港口,所有的费用时间都有租家负责.我想请问您一下, 1.租家能否根据列名港口的安全责任在船东来回击, 2. 如果上条理由不行,能否通过很多相同或更大尺寸船舶在此地无事故减载, 和香港海事处接受此船来证明此锚地是安全的 3. 实际减载3天后,由于此走锚的耽搁,减载完成时已经赶不上潮水进蛇口港靠泊,要多等半天,此时间是否是算船东的? (我个人觉得,租家必须证明如果不走锚,减载完成的时候可以称潮水靠泊,但是这没法证明或很难) 4. 从走锚到备妥的时间损失是否由船东来承担?

作者: guoxinwei 时间: 2009-7-17 18:20

解决了吗？拿来分享一下撒……

作者: kenny16633 时间: 2009-7-28 18:05

comment:
1) no inherent inconsistency between a safe port warranty and a named loading or discharging port.
2) suggest you to enquiry yr agent if any actually physical hazard exist indeed ,if any other vsl suffered the same case b4
3)as chtrs have guarantee "draft in shekou max 16.8m smsw ",time wait for tide should on
chtrs account
4) laytime should not count from the moment of replacement of anchor until readiness, cause obviously such case arised from negligence of owner's crew

await yr comments

作者: chengsisi 时间: 2009-7-29 14:19 标题: Re: comment

Re: comment

Firstly, I would like to thank you for your comment.

Secondly, I think I cannot agree with you on the issue that there is no relationship between a safe port warranty and a named port. Please refer to “the Archimidis”, in that case, the judge ruled that charterers guarantee the safety of the port if both parties agree “one safe named port”. Therefore, in this case, the safety of the port should be guaranteed by charterers, let alone the charterers promised in the C/P “the charterers shall have the right, where and when it is customary and safe for vessels of similar type and size to do so, to order the vessel to lie at a safe anchorage to be lightened by customary port barges or lighters”;

Thirdly, I totally agree with your suggestion that we should make sure that if the ship suffered any physical damage. However, my understanding is that when the shipowners alleged that the port was unsafe, they indented to let the charterers assume the time lost and cost and expense caused by the drag of anchor, because the shipowners did not tender any NOR then.

Last, I was told that the ships are often drag of anchor in URMSTON anchorage, so I was not so sure that the drag of anchor was either caused by this distinct characteristic which would render this discharging port unsafe or by the negligence of crew. As to the time waiting for the tide, i have to say that there is WIBON clause in this charter, so time waiting for tide should be assumed by the charterers. My problem is if there had not been any drag of anchor, the ship would have got the tide and started discharging earlier.

wating for your another comment.

作者: guoxinwei 时间: 2009-12-4 14:45

Some brief and tentative comments as follows:

According to your introduction to the clauses of the charter, it seems the critical includes:
(1) This is a berth charter whereby the discharging port is upon charterers’ option from a range of named ports, i.e. Shekou, Huangpu, Mawan of PR China;
(2) The charterers shall have the right, where and when it is customary and safe for vessels of similar type and size to do so, to order the vessel to lie at a safe anchorage to be lightened by customary port barges or lighters;
(3) Lightening time, include waiting for lightening at anchorage count in full without any exception whatsoever;
(4) WIBON.

1. Whether the anchorage is safe or not?

So far as to the safety of the named port(s), it is clear established in English law that the owners shall run the risk of safe port as per the A.P. J. Priti [1987] 2 Lloyd’s Rep.37. Therefore, I agree that the charterers have no undertaking on the safety of the named ports, i.e. Shekou, Huangpu or Mawan in this reference.

However, this seems would not assist the charterers in respect to the safety of URMSTON, since URMSTON was not covered in the named ports by the charterers, let alone there’s a ride clause providing that “the charterers have rights… to order the vessel to lie at a safe anchorage to be lightened by customary port barges or lighters.” This clause clearly establishes a warranty for the charterers to undertake the lightening anchorage is safe for the vessel to reach it, lighten, and then depart there. The following question is, whether the URMSTON anchorage was safe to the vessel?

As to the safe port, there’s not particularized definition in details. The most respectable phrase in this regard should be referred to the principle established by Sellers L. J. in the Eastern City, which read as follows: “a port will not be safe unless, in the relevant period of time, the particular ship can reach it, use it and return from it without, in the absence of some abnormal occurances, being exposed to danger which cannot be avoided by good navigation and seamanship.”

In this particular case, the lightening anchorage was alleged not safe to the vessel due to dragging of anchor, in which case I share with you that it is not sure whether the dragging of anchor was caused by either the unsafe of the port or the negligence of the crewmember of the vessel. According to the principle of Sellers L.J., it is the charterers’ interest to prove that the dragging of anchor was caused by negligence of crew, or at least can be avoided by good navigation and seamanship, opposite is the owners’ interests. Therefore, we shall pay our attention to the anchoring operation and the cause of dragging of anchor.

As I understand from several maritime investigations, the vessel would possibly drag of anchor in the circumstances of worse seabed (such as stone, slope), or strong wind and rough sea, or short chain in water. In my opinion, the seabed off course would not be so worse at anchorage, but it’s in want of supporting evidence, such as the geological survey report etc. Insofar as to the weather and sea conditions, it is easy to obtain the relevant records from the authorities. And even if the weather and sea condition was very bad at the material time, but it is not certain that the dragging of anchor could not be avoided by good navigation. For the last reason (of short chain in water), it seems that absolutely is the owners’default.

Considering the above, I think the dragging of anchor would be avoided by good navigation and seamanship, and therefore the anchorage for lightening in this reference is safe to the vessel.

2. Whether the time lost caused by drag of anchor should count as laytime?

The second question to be disposed is whether the time lost at the anchorage due to drag of anchor should count as laytime.

Link to this, the relevant clause provides that “lightening time, including time waiting for lightening should count in full without any exceptions whatsoever.” Absolutely it is a very dangerous clause to the charterer. As explained in Chapter 35 of Time Charters by Ernest Yang, the word “whatsoever” is broad enough for the owners to hold the charterers blamed in almost conditions of time loss. If that is the case, I am afraid that the charterers should bare the loss of time arising from drag of anchor.

Notwithstanding the above, it seems that the charterers also have a chance to challenge their position. That is, interpretation on the contents of the “exceptions” and the relationship with “whatsoever”. The charterers may argue that the “exceptions” only covers the charterers’ defaults, and consequently “whatsoever” should be covered in the scope of charterer’s defaults in accordance with the spirit of The Mareva A.S. If that is the case, the charterers would be discharged from the time loss arising from the drag of anchor, providing which was proved as owners’ default. But we need further research and precedent to clarify in this regard.

3. Whether the time waiting for tide should count as laytime?

The third dispute is whether the time waiting for tide to entre into Shekou port should count as laytime?

The charter suggested that there’s a WIBON clause in order to commence laytime in advance. For the meaning of WIBON, Lord Brandon in the “Kyzikos” (1989) 1 Lloyd’s Rep. 1, said, “As I indicated earlier, the phrase has been treated as shorthand for what, if set out in longhand, would be ‘whether in berth (a berth being available) or not in berth (a berth not being available)’.” Baring in mind that this charter is a berth charter, the risk of bad weather and navigation adventure shall on the owners’ account even under the WIBON clause (please see Mr. Yang on Laytime and Demurrage, Chap 4, section 2.6.1).

In the circumstances, if the berth was available but merely frustrated to reach due to ebbing tide, the owners shall bare the time loss of waiting for spring tide.

作者: guoxinwei 时间: 2009-12-7 14:19

再考虑一下。。。

作者: chengsisi 时间: 2009-12-28 14:37

呵呵，郭兄，期待你深思熟虑之后的答复

作者: chengsisi 时间: 2010-1-18 13:34

5# guoxinwei

Your comments are educational. Obviously, I have to say that you are a good writer, and if you are billing on a time basis, you will make big money. Just kidding!

作者: guoxinwei 时间: 2010-1-21 16:28

5# guoxinwei

Your comments are educational. Obviously, I have to say that you are a good writer, and if you are billing on a time basis, you will make big money. Just kidding!
chengsisi 发表于 2010-1-18 13:34

Thanks for this.
我是想能讨论的详细一些，大家可以发现我想法中的不足、缺漏和错误，和这个命题下更多的争议或问题。

P.S.: 如果你采纳的话，告诉我你的地址，等着收账单哈， a ha^ha^ha^

唉，快过年了，又有人开始疯狂的刷帖了，这才清净了多儿会啊……

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