租船运输与其他业务一样，也存在合作对象不履行付款义务的风险。部分船东（包括大船东和二船东）认为，需要在租约中并入赋予船东各种权力和救济措施的条款来稳固船东地位，如货物留置权，以防承租人不支付租金。然而，值得注意的是，租约中所载的船东权力与实际中船东如何及在何处实施这些权力总是存在差异的。此外，不幸的船东甚至可能因承租人的债务，面临与他们并无合约关系的第三方的索赔。本文的目的是指出这些问题，提醒船东采取相应的措施来保护自身利益。
典型的定期租船合同明确规定承租人有义务按商定的费率支付租金。根据纽约土产格式NYPE 1946第5条，如承租人未能按时支付租金，或对本租船合同有任何的违反，“出租人有权将船舶从承租人营运中撤回，而不损害其（出租人）可能拥有的向承租人索赔的任何权利。” NYPE 1993第11(a)(2)条就 是相似的但有所扩大的条款。第11(b)(3)条进一步要求船东在获准撤回船舶前发出“宽限期通知”。该通知通常被称为“反技巧性通知”。第11 (b) 条:“由于承租人或其银行一方的疏忽，过失或错误而未能准时支付租金时，出租人应向承租人发出书面通知，要求其在[ ]净银行工作日（为协议的支付地点所承认）补交未付的租金，当承租人根据出租人通知在[ ]天内予以补交时，应视为其准时支付租金。如承租人在收到出租人通知的[ ] 天内未能支付租金，出租人享有本条(a)款所规定的撤船权。”即使使用NYPE 1946格式，在附加条款中通常也要并入类似的条款。
详细信息请参阅附件。
Owners’ remedies – contractual rights vs reality
The chartering of ships, like any other business, comes with risks that the business counterparts do not honour their obligations to pay. Some owners (including head owners and disponent owners) believe that their position should be relatively secure given the various rights and remedies written in the charterparties in the event of non-payment by charterers, such as the right to hold on to the cargo. It is important to note however that there is a gap between owners’ rights as written in the contract, and how and where they can enforce them in reality. Further, unlucky owners may even find themselves facing claims from third parties with whom they have no contract, because of the charterers’ debts. The purpose of this article is to highlight these issues and enable owners to take measures accordingly to protect their interests.
A typical time charter expressly imposes an obligation on charterers to make hire payments at the agreed rate. Under clause 5 of the New York Produce Form 1946, in the event of failure to make punctual payment of hire or on any breach of the charterparty “the Owners shall be at liberty to withdraw the vessel from the service of the Charterers, without prejudice to any claim they (the Owners) may otherwise have on the Charterers”. There is a similar but expanded provision at clause 11(a)(2) in NYPE 1993. Clause 11(b)(3) further requires that the owners give a “grace period notice” before they are allowed to withdraw the vessel. The notice is usually referred to as the “anti-technicality notice”. Clause 11(b) says “Where there is failure to make punctual and regular payment of hire due to oversight, negligence, errors or omissions on the part of the Charterers or their bankers, the Charterers shall be given by the Owners [ ] clear banking days (as recognised at the agreed place of payment) written notice to rectify the failure, and when so rectified within those [ ] days following the Owners’ notice, the payment shall stand as regular and punctual. Failure of Charterers to pay the hire within [ ] days of their receiving the Owners’ notice as provided herein, shall entitle the Owners to withdraw as set forth in Sub-clause 11(a) above”. It is common for parties to include a similar provision in the rider clauses even if they use NYPE 1946.
See attached file: Owners’ remedies – contractual rights vs reality.pdf
