In the current poor shipping market, withdrawing a vessel due to charterers non payment of hire may be a possible situation which owners need to consider.
It has previously been the legal opinion that the owners should only withdraw the vessel when she is cargo free in view owners would not have the legal right to claim hire and bunkers consumed for the period after withdrawal until the cargo is discharged, on the basis the loss resulted from the owner’s own decision to withdraw.
This legal circumstance has now totally changed to the owner’s benefit on account of a Court Of Appeal judgement in the case of Petroleo Brasiliero v E.N.E. Kos (2012) UKSC 17.
The owners claim for the balance hire and bunkers were based on two grounds : –
1. Under the law of bailment as the owners were under a common law duty to care for the cargo after their contract with the charterers had been terminated.
The Supreme Court in the Court Of Appeal held unanimously the owners were entitled to claim charterers for the balance hire and bunkers consumed after withdrawal under the law of bailment.
2. Under an indemnity from the charterer contained in the charterparty against “all consequences or liabilities that may arise from the master…complying with charterers’ orders.”
The indemnity in this case was under clause 13 of Shelltime 3 Form and in the dry cargo trades the words in clause 11 of NYPE 93 are even more specific , “…the owners shall without prejudice to th e liberty to withdraw, be entitled to withhold the performance of any and all of their obligations hereunder and shall have no responsibility whatsoever for any consequences thereof, in respect of which the charterers hereby indemnify the owners, and hire shall continue to accrue and any extra expenses resulting from such withholding shall be for the charterers’ account.”
The Supreme Court held by a majority the owners could claim the balance hire and bunkers consumed after withdrawal under the indemnity clause 13 on the basis the owner’s losses arose effectively from the charterers’ orders to load the cargo.
Lord Mance dissented as he said the right of imdemnity must be subject there was a direct and casual cause between the charterer’s orders and the owner’s loss which there was not in the case. As matter of law, we would tend to agree with Lord Mance’s dissenting views as it is evident the owner’s loss was for the reason there was cargo on board, but this did not not solely arise from charterers’ orders, but arose from the owner’s decision to withdraw. However this Court Of Appeal decision certainly benefits the owners’ position which is welcoming.
See attached file : ALCO20120055 Withdrawal of vessel with cargo on board.pdf
有货物在船时的撤船问题
如今航运市场低迷，船东因租家未支付租金而需要考虑撤船的情况时有发生。
原来的法律观点认为，船东应当在船上没有货物时才撤船，因为从撤船到卸货完毕这一期间的租金损失和燃油消耗，船东缺乏法律依据向租家进行索赔，理由是该损失是由于船东自己的撤船决定导致的。
Petroleo Brasiliero v E.N.E.Kos (2012) UKSC 17 案的上诉法院判决，使得法律环境完全转变，变得有利于船东。
本案中，船东基于以下两个理由向租家索赔剩余租金和燃油：
1. 根据委托关系。船东与租家的合约关系结束之后，在英国普通法下，船东作为货物保管人承担照料货物的责任。
最高上诉法院一致认为，船东有权根据委托关系向租家索赔撤船之后的租金损失和燃油消耗。
2. 根据租约下的赔偿条款。该条款规定租家需赔偿”因船长遵守租家指令引起的一切后果或责任” 。
本案中赔偿依据的条款是 Shelltime 3 格式第13条，针对干货运输，93土产格式第11条的措辞更为明确”…在不影响船东撤船权利的原则下，船东有权中止履行其任何和全部义务，并且对由此产生的任何后果不负责任，租家应赔偿船东因此而遭受的损失，而且租金仍需照付；由于船东中止履行其义务而产生的任何额外费用，由租家承担。”
最高法院判决以多数通过，认为船东可以根据第13条赔偿条款索赔撤船后的剩余租金和燃油消耗，理由是船东的损失实际上是因租家装载货物的指令引起的。
Mance法官对以上解释有不同意见，他认为租家指令和船东损失之间必须有直接因果关系，船东才有索赔的权利，但本案并非如此。从法律角度考虑，我们倾向于支持Mance法官的反对意见，因为很明显船东发生这些损失原因是货物在船上，但这不是单单由租家的指令而引起的，船东的撤船决定也是原因之一。但是，该上诉法院的判决有利于船东，是船东所希望看到的。
以上由 ANDREW LIU & CO.,LTD 编译，应以英文为准！
详细信息请参阅附件。
