Публикация посвящена вопросам, связанным с фрахтование судов. Рассматриваются отношения по поводу фрахтования судов на рейс (рейсы) и фрахтования на время, а также важность и значение проформы чартера.
In our previous article we looked at the bill of lading and its various functions.
However in many cases (particularly in the bulk oil and commodity trades and with heavylift/out of gauge movements) the physical characteristics and size or quantity of the cargo to be lifted may negate completely the prospect of finding space on any available liner service; alternatively use of such a service may be an impractical or unappealing proposition for a variety of financial reasons. In yet other cases there may of course be no liner service at all between the contemplated load and discharge ports.
In all of these cases therefore it may be that booking of space under a voyage charterparty contract, rather than under a bill of lading contract, is the only practical solution.
The voyage charter is, as such, a primary feature of the tramp shipping and heavylift business trade.
The corollary of this flexibility in meeting the requirements of the individual shipper however is that the merchant shares with the shipowner at least some of the principal risks of certain aspects of the voyage (e.g. in relation to the suitability of the vessel for entry into, and loading/unloading at, the load and discharge ports and any delay in the loading and discharging operations) to far greater extent than he would if space were booked by bill of lading contract.
Typically the interest of the “owner” featured in any voyage charter may of course be very limited indeed and there may, and often are, any number of other parties in a contractual chain of superior charterparty relationships of one form leading ultimately to the registered owner of the ship.
It is worth noting however that even in the case of a time charterparty the charterer does not obtain possession of the ship or the cargo. The ship is still navigated, operated and maintained by the owner (albeit at the direction of the charterer) and the master and crew remain his employees rather than those of the charterer. It is only with a demise/bareboat charter party that the master and crew are employed by the charterer.
Whereas the remuneration payable under a voyage charterparty is referred to as freight (whether calculated by reference to a fixed lump sum or by reference to the weight or volume of cargo loaded) remuneration under a time charter is usually referred to as hire and is calculated by reference to an agreed daily high rate.
Time charters may take the form of time charters where the duration is fixed by reference to the time taken to perform a single voyage or return voyage or a period fixed by reference to a number of days or years.
The fundamental commercial and economic distinctions between voyage, time and bareboat charters are altogether critical to the contractual allocation of cost, risk and expense between the parties thereto under the various types of charterparty. With a voyage charter the charterer shares in some of the risks of delay in the loading and unloading operations but not much more. By contrast under a time charter the charterer assumes a far wider range of risks. Indeed with a demise charter, he assumes typically the whole costs of repairs and maintenance and perhaps even insurance; leaving merely the capital costs of the acquisition of the ship to be borne by the owner.
In the circumstances it is hardly surprising that most legal disputes in relation to voyage charterparties occur in relation to apportionment of liability as between owner and charterer for delays caused by inaccessibility of the load and discharge ports and berths or for delays in the loading and unloading operations themselves.
By contrast time and demise charterparty disputes may typically revolve around the liability of the parties for delays in delivery and redelivery at the beginning and end of the charterparty period, breaches of the charterparty description of the vessel as to e.g. speed and bunker consumption and responsibility for payment of hire when the ship or her gear suffers a breakdown.
Time charter disputes often also typically centre on the validity of any orders given by the charterers to the owners and whether any damage or loss suffered by owners in complying therewith should be for the account of the charterers
One of the main features of charterparties is their inherent flexibility and the extent to which standard forms charter party can be adapted to the particular requirements the circumstances of the parties. That is perhaps one of their main advantages over bills of lading though a charterparty is rarely, if ever, a complete replacement for a bill of lading; if only because a bill of lading is necessary to serve as a receipt for the cargo shipped to show the quantity and condition of the goods shipped and the date thereof.
A bill of lading will in any event also certainly be necessary for the purpose of transferring title in the goods where the cargo is to be shipped by the seller under a contract of sale; especially where payment is to be made by letter of credit issued by a trade bank. A charterparty as such cannot be viewed as a substitute for a bill of lading but rather as a corollary thereto. Unfortunately due to lack of clarity with some bills of lading it may be a moot point whether the contracting carrier under the bill of lading is the time charter (and if so which of them where there is more one) or rather any demise charterer or indeed the registered owner.
A charterparty need to be made in writing at all but invariably it will be so and usually it will be negotiated by shipbrokers on each side. Indeed the role of shipbrokers in introducing and concluding such business on behalf of their respective principals is another feature of this business which differentiates it from the liner bill of lading contract which is commonly arranged through freight forwarders acting for the merchant and liner agents acting for the carrier.
The terms of the charterparty are invariably structured around one of the well-known standard forms of charterparty according to the type of charter (i.e. voyage time or bareboat/demise) involved.
There are multifarious voyage charter forms in use according to the particular cargo (e.g. oil, grain, coal etc), trade and the party originating the form; e.g. whether cargo interests, shipowner interests, broker interests or some other independent shipping body such as the BIMCO. Sellers and buyers in particular countries and trades often favour a particular form of voyage charter for historical or other reasons and of course the form used may often of course depend on the relative bargaining power of the parties to the transaction.
On the other hand the number of time charter forms in common use is far less and typically one or other version of the New York Produce Exchange standard form is employed.
Standard form charterparties, in theory at least, serve to standardise a number of clauses commonly employed by the parties in different trades and in theory it should only be necessary to complete the ‘boxes’ with the name of the parties and particulars of the voyage and ship and agreed freight or hire but changes in market practice, shipping economics and trade usage along with the use of outdated and even archaic forms often leads to the need to add bespoke clauses. In practice charterparties are often the subject of much detailed negotiation between the parties leading to very substantial amendments to, and supplementation of, the basic standard form employed.
All in all the interpretation of such a charterparty can often be a difficult and unrewarding task as frequent deletions and amendments to the printed text may be combined with a large number of additional clauses so that it is not unusual to find that same points dealt with more by than one clause but to a slightly different effect in each case so that the terms of the additional clauses contradict the terms of the printed conditions or even each other!
It is not to be assumed that a voyage charter will necessarily be of the whole carrying capacity of the ship but even where this is so it is quite possible that the same ship may be voyage chartered by the seller for a single consignment intended for sale to more than one of his buyers so that multiple bills of lading may be issued for the cargo.
Contracts of affreightment for shipment of a certain amount of cargo over a certain time by the same ship (or by ships to be nominated by the owners) may contain features of both the voyage and time charter may not easily fall into any one category. This is also true of TEU container slots charters which contain some features of both time and voyage charterparties as well as some features not found in either.
In subsequent articles we will explore in more detail some of the particular legal features of a voyage and time charters.
Автор: Paul Bugden
Источник: http://www.forwarderlaw.com/library/view.php?article_id=862