Osmium Shipping Corporation v Cargill International SA (The Captain Stefanos) [2012] EWHC 571 (Comm) 案中，船东Osmium Shipping Corporation 和租家Cargill International SA 根据经修订的NYPE46签订租约。涉案船舶于2008年9月21日在索马里海岸外遭到海盗劫持，船东向海盗支付一大笔赎金后船舶于2008年12月6日获释。船东主张，从2008年9月21日到12月6日船舶处于租期中。
本案租约包括以下条款：
第56条
Should the vessel put back whilst on voyage by reason of any accident or breakdown, or in the event of loss of time either in port or at sea or deviation upon the course of the voyage caused by sickness of or accident to the crew or any person onboard the vessel (other than supercargo travelling by request of the Charterers) or by reason of the refusal of the Master or crew to perform their duties, or oil pollution even if alleged, or capture/seizure, or detention or threatened detention by any authority including arrest, the hire shall be suspended from the time of the inefficiency until the vessel is again efficient in the same or equidistant position in Charterer’s option, and voyage resumed therefrom. All extra directly related expenses incurred including bunkers consumed during period of suspended hire shall be for Owners’ account.
在 Saldanha [2011] 1 Lloyd’s Rep 187 一案中，英国法院认为，根据NYPE46第15条的规定，海盗扣留船舶不构成停租事由。但同时，该案法官也认为，作为一个补充，以下租约条款也需要同时被考虑：
第40条
Should the vessel be seized, arrested, requisitioned or detained during the currency of this Charter Party by any authority or at the suit of any person having or purporting to have a claim against or any interest in the Vessel, the Charterer’s liability to pay hire shall cease immediately from the time of her seizure, arrest, requisition or detention and all time so lost shall be treated off-hire until the time of her release.
法院认为第40条规定”明白的……不包括海盗扣押船舶” 。租家从租约中找不到任何可以停付租金的理由，因此租家需支付船舶被扣期间的租金。法官认为，”在定期租约下，若双方有意将海盗扣押船舶视为停租事由，他们可以直截了当地用最明显的方式，在‘扣押’或‘扣留’条款中作明确规定。”
本案中，船东主张，第56条”捕获/扣押” 必须由某一当局做出。但租家认为捕获/扣押显然是单独的停租事由，不同于”被任何当局扣留或威胁扣留” 。因此，海盗行为无疑包含在”捕获/扣押” 之内。
法官赞同租家的观点，认为第56条应该按照”条款中简单和明显的措辞意思” 来进行解释。海盗行为无疑属于停租事由，符合第56条”捕获/扣押” 的含义。因为相关”捕获/扣押” 并非要求由”某一当局” 做出。法官根据”整个条款语言、语法形式、单词的使用” 或”从租约整体意思上” 对条款进行解释。法官同时认为，如果双方希望”捕获/扣押” 受到”被任何当局” 的限制，他们就不可能像现在这样表述租约中的条款。
本案清楚的表明，海盗袭击期间是否损失租金，取决于租约本身的措辞及解释。双方针对实践中具体的事由可以通过在租约中订入明示条款来分配风险。条款的措辞应明确，以避免争议，诸如本案租约56条中的措辞，足以清晰地将海盗行为的风险归于船东。
以上由 ANDREW LIU & CO.,LTD 编译，应以英文为准！
详细信息请参阅附件。
Latest update on whether piracy is an off-hire event
In the Osmium Shipping Corporation v Cargill International SA (The Captain Stefanos) [2012] EWHC 571 (Comm), Osmium Shipping Corporation (“Owners” ) and Cargill International SA (“Charterers” ) entered into a charterparty on an amended NYPE (1946). The vessel was hijacked by pirates off the coast of Somalia on 21 September, 2008 and was released by the pirates on 6 December, 2008 after Owners paid a substantial ransom to the pirates. Owners claimed that vessel was on hire during the period from 21 September to 6 December, 2008.
In “Captain Stefanos” , the charterparty has included the following clause:
Clause 56
Should the vessel put back whilst on voyage by reason of any accident or breakdown, or in the event of loss of time either in port or at sea or deviation upon the course of the voyage caused by sickness of or accident to the crew or any person onboard the vessel (other than supercargo travelling by request of the Charterers) or by reason of the refusal of the Master or crew to perform their duties, or oil pollution even if alleged, or capture/seizure, or detention or threatened detention by any authority including arrest, the hire shall be suspended from the time of the inefficiency until the vessel is again efficient in the same or equidistant position in Charterer’s option, and voyage resumed therefrom. All extra directly related expenses incurred including bunkers consumed during period of suspended hire shall be for Owners’ account.
In the Saldanha [2011] 1 Lloyd’s Rep 187, English court has established that detention by pirates is not an off-hire event within the meaning of clause 15 of the NYPE46. However, the judge in that case also considered an additional, bespoke clause in the charterparty between the owners and charterers in that case which read as follows:
Clause 40
Should the vessel be seized, arrested, requisitioned or detained during the currency of this Charter Party by any authority or at the suit of any person having or purporting to have a claim against or any interest in the Vessel, the Charterer’s liability to pay hire shall cease immediately from the time of her seizure, arrest, requisition or detention and all time so lost shall be treated off-hire until the time of her release.
It was held this clause 40 “plainly…did not extend to cover seizure by pirates” . Charterers failed to bring themselves within any of the charterparty exceptions to hire and accordingly hire was payable throughout the detention period of the vessel. The judge also held that “should the parties be minded to treat seizures by pirates as an off-hire event under a time charterparty, they can do so straightforwardly and most obviously by way of an express provision in a “seizures” or “detention” clause” .
In Captain Stefanos, clause 56 was contended by owners that any “capture/seizure” had to be by an authority, whereas charterers argued that capture/seizure was an off-hire event distinct and separate from “detention or threatened detention by any authority” and that acts of piracy clearly feel within the meaning of “capture/seizure” .
The judge found in favour of charterers, and held that clause 56 should be construed in accordance with the “plain and obvious meaning of the words used in the clause” . Piracy was indeed an off-hire event, being a “capture/seizure” within the meaning of clause 56, as the relevant capture/seizure was not required to be by “an authority” . The judge based his construction of the clause on “the whole language of the clause, its grammatical form, and the usage of the word” or “throughout it, in a purposeful manner” . The judge also said that if the parties had wished “capture/seizure” to be qualified by the words “by any authority” , then it was “inconceivable” that they would have worded the clause in the way it appeared in the charterparty.
This case clearly showed that weather the hire is lost during a piracy attack depends much on the wording of the charterparty itself and its interpretation. It is open to the parties to allocate the risk of practical events by means of express clauses to that effect in their charterparties. The wording of such clauses need to be clear to avoid dispute and wording such as that used in clause 56 of the Captain Stefanos charterparty is sufficiently clear to have the effect of allocating the risk of piracy to owners.
See attached file :ALCO20120063 Latest update on whether piracy is an off-hire event.pdf
