denning_lee

7# abner0816


在没有其他补充材料
（1）根据案例：Lloyd's Law Reports  [1989] Vol. 1 LLOYD'S LAW REPORTS   1   贵族院判决：wibon只适用于泊位被占用的情况，如果由于坏天气等原因泊位有空而无法靠泊，则不能递交有效的NOR以起算装卸时间，在本案中 有这个time lost in waiting for berth to count as laytime  条文，但是被判决不能帮助船东（泊位是有空的）。
（2）根据The “Darrah” (1976) 2 Lloyd’s Rep. 359 这是贵族院针对time lost in waiting for berth to count as laytime条文，承租人可以享受到周末周日节假日以及坏天气停算装卸时间的好处。
（3）回到现实情况：你的租约中有这据条文.TIME FOR WAITING FOR BERTH ,IF THE BERTH IS OCCUPIED TO COUNT AS LAYTIME.，关键的是 if the berth is occupied，直白的解释本条分两种情况：
a：泊位被占，则扣除坏天气后计算装卸时间
b：泊位有空：依照上述第（1）点，我个人认为递交的NOR无效，装卸时间根本不起算
（4）以下是Lloyd's Law Reports  [1989] Vol. 1 LLOYD'S LAW REPORTS   1的摘录以支持第（3）a的观点
英国贵族院：
Lloyd's Law Reports  [1989] Vol. 1   
   LLOYD'S LAW REPORTS   
   1   
案例导引：By a charter-party dated Oct. 26, 1984 the owners’ vessel Kyzikos was fixed to load a cargo of steel and/or steel products in Italy for discharge in Houston.

The charter which was on the Gencon form provided inter alia:
Discharging port or place - 1/2 safe always afloat, always accessible berth(s) each port
. . .

5 Loading . . . cargoes are to be . . . discharged free of expense and risk for Owners.
Time to commence at 2 p.m. if notice of readiness . . . is given before Noon and at 8 a.m. next working day if notice given during office hours after noon . . . Time lost in waiting for berth to count as loading time . . .
Time to count as per Clause 5 Wipon/Wibon/Wifpon/Wccon . . .
Clause 6 provided inter alia that time lost in waiting for a berth to count as discharging time.
Kyzikos arrived within the discharging port, Houston, at 06 45 hours on Dec. 17, 1984.
Notice of readiness was tendered between 06 45 hours and noon. At all material times the
berth to which the vessel was destined, and at which she ultimately discharged, was
available.
The vessel was however unable to proceed immediately to it because of fog which resulted
in the pilot station being closed. The vessel arrived at her berth at 14 50 hours on
Dec. 20 and discharging was completed at 17 00 hours on Jan. 11, 1985.

The owners claimed that laytime commenced at 14 00 hours on Dec. 17 and the vessel was
on demurrage for a total of 14 days nine hours and 16 minutes. The charterers denied
liability and the dispute was referred to arbitration.

The arbitrator concluded that the reference in cl. 5 to "wibon" had the effect of making
the charter into a port charter and he held that the owners’ claim succeeded in full.

The charterers appealed. The owners were given leave to contend that the award should be
upheld on the alternative ground that in breach of the charter the berth nominated by
the charterers was not always accessible and that the charterers were liable in damages
for detention in a like sum to demurrage.   
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)"
phrase "whether in berth or not" should be interpreted as applying only to cases where a
berth is not available and not also to cases where a berth is available but is unreachable by reason of bad weather.
点评：这是第一次有关于wibon条款适用于泊位租约下已经抵达港口，泊位有空但是由于坏天气而无法靠泊的英国案例，一直上诉到英国贵族院代表现在的英国法律！那就是该条款只是用于泊位拥挤而无法靠泊的情况！