Some cargos are perhaps more susceptible to stevedore damage than others (i.e. bagged cargo, steel coils, paper rolls, wood pulp). Recently we received such a claim in which disputes arises between owners and charterers about the allocation of responsibility in C/P. Other than cargo, stevedores may also cause damage to the vessels. Even though both owners and charterers may obtain their P&I entry, it is necessary to start at a fairly clear point. It is important for owners and charterers to negotiate about the allocation of liability arising from stevedore damages in the C/P, in order to figure out their roles in the cargo operation.
It is the vessel owners who, under common law, are obliged to load, stow, trim and discharge the cargo. That means that responsibility for losses caused by the negligence of stevedores remains that with the owners. The owners can escape this liability on by proving that the charterers, on their part, acted in such a way as to break the chain of causation (i.e. interfering actively with the stevedoring operations) and with this intervention form charterers being immediate and proximate cause of the loss. Consequently, owners will endeavor to include a clause in the C/P where these obligations are transferred to the charterers. On their side, the charterers will of course endeavor to have the responsibility for stevedore operations remain with the owners-even if charterers do accept responsibility for arranging and paying the stevedores. Arranging and paying for stevedores will usually not mean that responsibility for the operations as such are transferred to charterers.
Use the NYPE 46 form as an example, which includes clause 8 providing that: “Charterers are to load, stow and trim the cargo at their expense under supervision of the captain.” This clause therefore shifts the (primary) responsibility for cargo operation to charterers.
Despite the wording of clause 8 of the NYPE 46 form, the vessel’s master owes no positive duty to the charterers to supervise these operations. The responsibility for any stevedore damage will only be transferred back from the charterers to the owners if the master either actively interferes in the stevedoring operations or shows negligence by failing to intervene in the stevedoring operations where this would have been necessary to ensure the safety of the vessel, its crew or cargo.
Much will therefore depend on what evidence is available concerning the sequence of events, who did what and when, and what would (in some cases) be necessary to ensure the vessel’s safety etc.
Clause 8 is quite often itself amended in another way: the words “and responsibility” are added after the “supervision” in clause 8. In English law at least, this change results in the responsibility for stevedoring operations being transferred back to the owners. Stevedore damage clauses thus come in either incorporated in standard forms or as specially drafted rider clauses. This actually make the picture less clear since in some cases stevedore damage clauses were specially for the vessel damage only or related to incompetent stevedore (CLIPPER SAO LUIS case).
Similar considerations will have to be made in connection with voyage C/Ps. Again, if the voyage C/P has no express clause allocating responsibility for cargo operations, this will be an owners’ responsibility.
C/Ps may often provide that charterers are to appoint or pay (or both) for stevedores but it does not actually specify whether owners or charterers are to be responsible for the cargo operations (stevedores).
In the context of voyage charterers, the courts have considered various types of wording some of which have been held not to transfer responsibility from owners to charterers and others where the words chosen did exactly that namely transferred responsibility from owners to charterers. Some of the cases listed below relate to time rather than voyage charter parties.
No transfer of responsibility from owners to charterers:
“Charterers being allowed to appoint a head stevedore at the expense and under the inspection and responsibility of the master for proper stowage” (The HELENE) (Sach v Ford) (Union Castle v Borderdale)
“Stevedores to be appointed by the charterers… but employed and paid for by the owners at a current rate” (Harris v Best)
“Cargo on delivery alongside to be received by the master… and to be at vessel’s risk…Shipper for the sum of two dollars per load to appoint and pay any stevedore to load the cargo.” (Anderson v Crundalle)
“Cargo to be loaded, stowed and discharged free of expense to steamer, with use of steamer’s winch or winch men if required” (Ballantyne v Paton)
Transfer of responsibility from owners to charterers:
“Ship to be stowed by charterers’ stevedore at the expense and risk of the vessel (The CATHERINE CHALMERS)
“Charterers to provide and pay a stevedore to do the stowing of the cargo under the supervision of the master” (Brys & Gylsen v Drysdale)
“Charterers are to load, stow and trim the cargo at their expense under the supervision of the captain” (Courtline v Canadian Transport)
“Cargo to be loaded, discharged, trimmed and stowed free of any expense to the owners” (Government of Ceylon v Chandris)
Thus it is also important to figure out whether owners wish to transfer responsibility for cargo operations to charterers that a very clear clause to this effect is included in voyage C/Ps. One such clause is the FIOST amendment to the clause 5 of the GENCON form.
See attached file : ALCO20120011Liability for Stevedore Damages of Cargo Loss.pdf
因货物装卸致损之责任承担
在货物运输中有些货物可能更容易受到装卸行为的影响而遭受货损,比如袋装货物、钢卷、卷筒纸以及木浆。最近我们有收到这样的索赔请求，然而船主与承租人之间就租约关于装卸货物而导致的货损之责任分担产生了争议。除了货物，船舶本身也可能因为装卸行为而遭受损失。尽管船主和承租人两方都可以从保赔协会处获得承保从而得到赔偿，但在租约订立之时就应当将此责任分配明文列清。船舶所有人和承租人应该对货物装卸责任问题进行协商议定，以明确彼此在货物装卸作业中的角色。
在普通法下，应是由船舶所有人来负责装载、积载货物、平舱以及卸载货物。这就意味着因装卸不当而引起的货损应由船舶所有人承担责任。但船舶所有人可以通过证明承租人的行为中断了因果关系链并且成为了近因来摆脱此种责任，例如承租人有主动行为干涉到了装卸作业。因此，船舶所有人会尽力地在租约中写入将此种责任转移给承租人的条款。而承租人一方当然会想让装卸货损之责任留在船舶所有人一方。要注意的是，即使承租人接受了安排装卸以及为之付费的责任，这也不意味着装卸货物的责任已经转移给了承租人。
以NYPE46为例，此定期租船标准合同第8条部分如下： “承租人在船长的监督下进行装载、积载货物和平舱，并承担其费用。” 此条款就将货物装卸作业的（主要）责任转移给了承租人。
尽管NYPE46之第8条表述如上，但船长并不对监督承租人的货物装卸作业负有积极的义务责任。任何因装卸作业而导致的货损责任只有在船长有干扰装卸作业之积极行为，或者因过失而未能在需要确保船舶、船员以及货物安全之时监督介入装卸作业，才会从承租人转到船舶所有人。
因此这更多地要根据实际案件中事件的发生顺序，相关人何时做了什么，（在具体情况下）什么是确保船舶安全所必要，以及能否取得有效的证据证明来做判断。
第8条也常常会在 “监督” 一词之后加入 “以及责任” 。这至少在英国法下，改变了因装卸作业而导致的货损责任之归属，重新回到了船舶所有人一方。装卸损坏条款因此进入到租约合同中了, 或以修改标准格式合同条款的形式, 或以特别起草的附加条款形式。这实际上让装卸导致的货损之归责变得不太清晰，因为在之前的案例中此类装卸损坏条款有可能只针对船舶自身的损失，或者规定由承租人指令装卸而产生该指令是否不当的争议（CLIPPER SAO LUIS 案）。
在航次租船合同中同样有类似的考量。如果航次租船合同并未对货物装卸作业的责任作出明文规定，依旧将会是船舶所有人应承担此种责任。
租船合同常常会规定由承租人对装卸作业进行指令或支付费用（或两者皆有），但这并没有表述清楚到底是由船舶所有人还是承租人来对货物装卸承担责任。
在航次租船的情况下，普通法系下的法院已经考虑了不同类型的条款表述，有些被认为不会将上述责任从船舶所有人转移到承租人，而也有一些被认为明确地将此种责任转移给了承租人。在此列出一些案例，其中的一些案例与定期租船更相关。
未将货物装卸责任转移至承租人的条款表述：
“Charterers being allowed to appoint a head stevedore at the expense and under the inspection and responsibility of the master for proper stowage” (The HELENE) (Sach v Ford) (Union Castle v Borderdale)
“Stevedores to be appointed by the charterers… but employed and paid for by the owners at a current rate” (Harris v Best)
“Cargo on delivery alongside to be received by the master… and to be at vessel’s risk…Shipper for the sum of two dollars per load to appoint and pay any stevedore to load the cargo.” (Anderson v Crundalle)
“Cargo to be loaded, stowed and discharged free of expense to steamer, with use of steamer’s winch or winch men if required” (Ballantyne v Paton)
将货物装卸责任转移至承租人的表述：
“Ship to be stowed by charterers’ stevedore at the expense and risk of the vessel (The CATHERINE CHALMERS)
“Charterers to provide and pay a stevedore to do the stowing of the cargo under the supervision of the master” (Brys & Gylsen v Drysdale)
“Charterers are to load, stow and trim the cargo at their expense under the supervision of the captain” (Courtline v Canadian Transport)
“Cargo to be loaded, discharged, trimmed and stowed free of any expense to the owners” (Government of Ceylon v Chandris)
“Costs… free in and stowed – the charterers shall load and stow the cargo free of any expense whatsoever to the owners” (CHZ Role Impex v Eftavrysses (The PANAGHIA TINNOU))
因此在航次租船合同中，同样要注意租约中是否包含了将船舶所有人的装卸货损责任明确转移到承租人身上的有效表述之条款。此种条款的例子之一就是用FIOST（船方不管装、不管卸、不管积载和平舱）对金康租约第5条进行修改。
以上由 ANDREW LIU & CO.,LTD 编译，应以英文为准！
详细信息请参阅附件。
