On account of the recent number of pirate attacks in the Gulf Of Aden, many owners have tried to employ the terms of the BIMCO Standard War Risk Clause for Time Charter 1993 (CONWARTIME 1993) to enable them not to proceed via the Gulf Of Aden as instructed by the charterers.
However the owner’s legal right to do so under the CONWARTIME 1993 has not been defined until the case of The Triton Lark (2012).
In that case the master and the owners did not agree to transit the Gulf Of Aden which the Charterers insisted as many vessels were able to transit the Gulf Of Aden under naval escort.
The owners relied on clause 2 of the CONWARTIME 1993 which provided “The vessel unless the written consent of the owners be first obtained shall not be ordered to or required to continue to or through any port or place area or zone…where it appears that the vessel, her cargo, crew or other persons on board the vessel, in the reasonable judgement of the master and/or the owners, may be, or are likely to be, exposed to War Risks. Should the vessel be within any such place as aforesaid, which only become dangerous, or is likely to become dangerous, after her entry into it, she shall be at liberty to leave it.”
It was held by the High Court on appeal that the meaning of the words ‘may be, or are likely to be’ were not two different degrees of risk but had the same meaning, and the only test was a ‘real likelihood’ whereas the arbitrators had used an incorrect test of a ‘serious risk’.
It was also held the words ‘exposed to War Risks’ had a natural meaning of ‘a dangerous situation’, whereas the charterers had submitted this must be interpreted to mean the vessel being subject to a piracy attack or a failed attack and the owners submitted this meant simply being exposed to a risk of piracy.
In conclusion the CONWARTIME entitled an owner / master not to proceed to a place if there was a real likelihood that the vessel would be exposed to acts of piracy which would make that a dangerous place. What is dangerous is a question of fact and may change with the situation. The situation to be considered would be that at the time the master / owners decides not to proceed on the voyage as instructed by the charterers. Further this is an objective test and the owners’ judgement must be reasonable. Even if the owners had not made all possible enquiries will not automatically render his judgement unreasonable if it can be shown that had all necessary enquiries been made, this would have shown the owners’ judgement to have been reasonable.
If the owners / master have satisfied their obligations as defined above under the CONWARTIME, the prolongation of the voyage via the Cape Of Good Hope would not be a deviation and further the charterers would continue to be liable to pay hire during the voyage via the Cape Of Good Hope.
Owner’s legal rights under the CONWARTIME remains the same applies regardless whether the vessel’s war risks insurance policy is amended to include the risk of piracy in view War Risks is defined under the CONWARTIME to include acts of piracy.
See attached file : ALCO20120036 Owner’s right not to proceed via Gulf Of Aden.pdf
船东拒绝前往亚丁湾的权利
最近，由于在亚丁湾海域大量海盗袭击事件的发生，许多船东为了能避免租家将自己的船舶派往该海域，将BIMCO期租标准战争条款（CONWARTIME 1993）订入合同。
但是，船东在CONWARTIME 1993下的合法权利，直到 2012 年 The Triton Lark (2012) 一案，才真正确定下来。
该案中，船长和船东不同意过亚丁湾，而租家坚持让船舶通过亚丁湾，因为许多船舶在海军护航下安全通过了该海域。
船东指出，根据CONWARTIME 1993第二条的规定： “除非预先获得船东的书面同意，否则船舶就不应被指派或要求连续前往或通过如下港口、地区或区域…船长或船东基于合理的判断，认为如果船舶前往该区域，那么船舶、货物、船员以及其他船上的人员就有可能或似乎将处于战争的危险中。如果船舶正处于上述区域，只要该区域变得危险或有可能变得危险，那么船舶就有权驶离。”
在上诉中，高院认为 “MAY BE（有可能）” 和 “LIKELY TO BE（似乎）” 并不是用来形容不同程度的风险，而是表达相同的意思，即强调这种风险存在的 “可能性是真实的” ，仲裁认为的 “风险必须真实存在” 是不对的。
法院还认为，措辞 “EXPOSED TO WAR RISKS(处于战争的危险中)” 是指通常理解上的 “危险的情形” ，租家申辩认为这一措辞必须解释为受到了海盗袭击或袭击流产，而船东认为这一措辞仅仅是指处于海盗袭击的危险中。
总之，一旦某区域海盗袭击的可能性是真实存在的，其即为危险区域，CONWARTIME赋予了船东或船长拒绝前往该区域的权利。什么叫危险，是个事实问题，而且会随情况变化而发生改变。只有根据船长和船东拒绝执行租家所指示航次当时的具体情况，才能决定是否构成危险。这是一个客观的判断，船东需要有合理的理由做出这样的判断。但是，即使船东未能全面咨询，也不能简单认定船东的判断是不合理的，只要有证据表明船东已经尽力做了所有必要的咨询，那么就可以证明船东的判断是合理的。
只要船东尽到了上述CONWARTIME条款下所规定的义务，那么绕航好望角所多走的航程就不成之为绕航，租家就应当如约支付绕航好望角的租金。
在CONWARTIME标准条款中，战争风险是包括海盗行为的，所以不论船舶所保的战争险中有没有包括海盗行为，船东在CONWARTIME标准条款下的合法权利依然存在。
以上由 ANDREW LIU & CO.,LTD 编译，应以英文为准！
详细信息请参阅附件。
