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. |
发表于 2009-7-17 18:20
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