In the recent shipping market downturn, many shipowners have faced, are facing or will face a situation where the time charterers fail to pay hire timely.
Cl. 5 NYPE 1946 provides “….failing the punctual and regular payment of hire…owners shall be at liberty to withdraw the vessel…without prejudice to any claim they have on the charterers.”
In many situations especially when it is now apparent the freight market will not likely improve in the shorter term, the charterers are more concerned about not continuing their obligation to pay hire for the balance of the charter period agreed at a substantially higher hire rate than the current market hire, even though they may be willing to pay outstanding hire installments already due.It is very important for owners to be aware before they consider to invoke Cl. 5 of NYPE, they will not have an automatic legal right to claim for future losses which is usually the agreed hire rate to the current market hire rate, with credit given to charterers for the substitute fixtures.
In English law, future losses are only claimable if the failure to pay hire is a repudiatory breach. Many owners would consider serving a warning notice to charterer as may be required under the charterparty that if hire is not received during this grace period the owner will invoke Cl. 5 and withdraw the vessel and claim for future losses.
Not many owners are aware that this course of action will only enable them to claim past outstanding hire installments but NOT the future losses.It is important to know that future losses can only be recovered if the charterer repudiates the contract. The charterer will only be taken to have repudiated the contract where his words or conduct show a clear intention that he will no longer be bound by the contract. Therefore where the charterer has failed to pay one hire installment timely this will NOT amount to a repudiation. There is no legal definition on the number of failures to pay hire installments which would be necessary to amount to a repudiation and every case is considered on its own merits.
The same legal principle applies to a COA contract. Zodiac v Fortescue Metals was a case which occurred during the financial crisis in 2008 where the charterers under a COA were unable to perform further voyages after the first five voyages had been completed. Charterers advised owners they were not able to fulfill the future freight commitments and requested a suspension of the contract. There were several exchanges between owners and charterers whereupon the owners declared the charterers’ communication and conduct amounted to a repudiation which they were accepting and hence the owners cancelled the contract and claimed damages for future losses. Charterers argued their exchanges were not repudiatory and alleged the owners themselves were in repudiatory breach by terminating the contract.
Although in this case it was held a particular conversation between owners and charterers amounted to a repudiatory breach by charterers, it is clear that a breach by charterers in failing to perform future shipments does not automatically amount to a repudiatory breach.
Should you have any enquiry, please feel free to contact with us.
See attached file : ALCO Circular 20110020 Failure to pay hire timely and vessel withdrawal.pdf
未按时支付租金与撤船
在目前航运市场整体低迷的状态下，很多船东都曾经，正在或者将要面对期租租家不能按时支付租金的情况。
NYPE1946第5条规定”….租家如果没有定期准时支付租金，船东有权撤船，撤船不影响船东向租家提起索赔的权利。”
考虑到短期内海运运费市场不可能有明显改善，许多租家即使愿意如约支付已经到期的部分租金，也可能在考虑不再执行剩余的租期，因为合同租金往往是远高于现在的市场租金水平。船东在依据NYPE1946第5条规定撤船前必须要清楚，船东撤船后并一定能自动享有向租家索赔预期租金损失，即合同租金超过市场租金的那一部分损失的权利。
按照英国法的规定，只有未按期支付租金已经构成实质性违约（Repudiatory breach）的情况下，船东才有权索赔预期租金损失。许多船东可能会按照租约的规定向租家发出警示文件称，如果租家在规定的时间内仍未支付到期的租金，船东会依据NYPE1946第5条的规定撤船，并向租家索赔预期租金损失。很多船东并没有认识到，通过类似的警示文件，他们只能依法向租家索赔那些已经到期未支付的租金，而并不包括尚未到期的租金损失。
只有在租家构成实质性违约的前提下，船东才有可能成功索赔预期租金损失。要构成实质性违约定，需要租家以语言或者行动明确表示他将不再继续履行合同。如果租家没有按期支付某一期的租金并不能构成实质性违约。法律也没有规定具体租家未按时支付多少期租金才能构成实质性违约，每一个案件都需要单独分析。
包运合同（COA）也适用同样的法律原则。Zodiac v Fortescue Metals一案发生于2008年金融危机时期，租家在执行了5个航次以后，无力继续履行与船东的包运合同。租家通知船东无法继续履行，要求中止合同。租家和船东之间针对此事进行过几次磋商，船东据此认为租家已经构成实质性违约，并因此取消合同向租家索赔预期租金损失。租家抗辩称，他们之间关于无法继续履行合同的磋商并不构成实质性违约，但是船东擅自终止合同的行为已经构成实质性违约。
尽管法院最终依据船东和租家的对话记录认定租家构成实质性违约，但是很明显，租家不履行运输合同本身并不能构成实质性违约。
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详细信息请参阅附件。
