В редакционной публикации рассматривается свежее арбитражное решение, в котором имеются ответы на некоторые вопросы, связанные с определением мертвого фрахта. Так, одним из вопросов были правовые последствия расхождения веса погруженного на судно груза, указанного в штурманской расписке и коносаменте, с драфт-сюрвеем. Фрахтователь, зафрахтовавший судно в соответствии с проформой Nype (Нью-Йоркской товарной биржи), отфрахтовал затем судно в субчартер на рейс для перевозки 50 000 метрических тонн груза зерна с грузовым марджином 10% из бразильского порта. Капитан подписал консамент, в котором имелось расхождение с данными драфт-сюрвея в количестве от 767.017 до 781.236 тонн. Капитан судна внес в консамент следующую оговорку: “quality, quantity, weight, measure, condition, contents and value are unknown” – “качество, количество, вес, мера, состояние, состав и цена неизвестны”, кроме того, капитан заявил протест. Фрахтователю было заявлено требование за недополученный фрахт. Фрахтователь, в свою очередь, заявил требование мертвого фрахта, которое было удовлетворено, поскольку трибунал определил, что капитан судна не выполнил своих обязанностей по защите интересов фрахтователей.
Настоящая публикация может быть особенно интересна, точнее, исключительно тем, кто специально занимается английским морским правом.
The background facts were that the vessel had been chartered by the
owners to the charterers on an amended NYPE Form for about 40 / 60 days.
Clause 7 and 8 of the charterparty required that the whole reach of the
vessels deck, holds and usual places of loading would be available. In
addition, that the Captain would render all customary assistance with the
ship’s crew and boats. The Captain although appointed by the owners would
be under the orders and directions of the charterers as regards employment
and agency. The charterers were to load, stow secure, discharge, lash,
unlash, dunnage, undunnage and secure and tally and trim the cargo at their
expense but under the supervision of the Captain. He was to sign bills of
lading for cargo as presented in strict conformity with the mates receipts.
The charterers then sub chartered the vessel for the carriage of 50,000
metric tons of corn in bulk (10% more or less in charterers’ option) from Brazil
to one / two safe ports in Indonesia. In accordance with the sub charterers’
instructions, the vessel loaded a cargo of bulk corn in Brazil. Loading was
completed on 13 January 2011 and the vessel sailed on the 15 January.
The quantity of cargo loaded (as recorded) by the terminals shore scales
was 50,299.983 metric tons. That amount was reflected in the mates’
receipts which were signed by the Master on the 13 January. In the mates’
receipts the quantity were described as “said to be” and were qualified by the
words “quality, quantity, weight, measure, condition, contents and value are
unknown”.
Four draft surveys were then carried out on 13 January. Those draft surveys
showed varying amounts of cargo on board. The lowest draft figure indicated
51,067.00 metric tons was on board. The highest draft figure indicated that
51,081.219 metric tons was on board.
The cargo was to be shipped for 6 separate shippers. The bills of lading
showed the same overall quantities as recorded by the shore scales and
shown on the mate’s receipts i.e. 50,299.983 metric tonnes. The bills of
lading referred to the shippers’ description of the goods and also stated
“quality, quantity, weight, measure, condition, contents and value are
unknown”. Notwithstanding the discrepancies that had been recorded
between the shore scale measurements and the draft calculations, a
decision was made that no remarks would be put on the mates’ receipts in
relation to the discrepancy. More fundamentally, no comments would be
made on the bills of lading.
On 14 January, after the vessel had completed loading but before it sailed,
the Master issued a notice of protest highlighting the discrepancy between
the draft figures and the shore scales. The notice of protest was addressed
to the port agent and “to the shippers”. The charterers claimed they had
never received a copy of the notice of protest until some days later by which
time clean bills of lading had actually been issued.
Various other issues then arose between the parties and arbitration
proceedings were commenced.
The charterers were being pursued for outstanding hire of USD140,148.21
by the owners in the arbitration. As part of their defence to that claim they
argued they were entitled to set off deadfreight of USD34,710.00 from hire,
representing the lost freight that they would have earned if the mates’
receipts and bills of lading had been issued with accuracy and reflected the
draft surveys.
In relation to the deadfreight claim, the charterers’ argument was that the
owner was in breach of clause 7 of the charter and had under recorded the
loaded cargo. The Master had also prevented the whole reach of the vessel
being made available to the charterers. As a result of both of those breaches
the charterers incurred a loss of freight under the sub charter which they
identified to be USD34,710.00, as compared to the freight that would have
been earned if the mates’ receipts had accurately reflected the difference.
Charterers secondary argument was that the Master was in breach of clause
8 of the Charterparty by failing to render customary assistance. This was put
on the basis that the Master had failed to protect the charterers interests in
relation to the loading of the cargo. The owners argued that the charterers
bore the responsibility for loading operations and should therefore bear the
responsibility for any mistakes made by the terminal as to the quantities
loaded. They also relied upon Article III Rule 5 of the Hague-Visby rules. Rule
5 provides that the shipper is deemed to have guaranteed to the carrier the
accuracy of the quantity and weight of the cargo at the time of shipment.
The tribunal were satisfied there was a large discrepancy between the
amount of cargo which had been recorded in the mates’ receipts / bills of
lading on the one hand and the figures in the draft surveys. The shortfalls in
the figures ranged between 767.017 mts and 781.236mts. Moreover the
discrepancy was noticed by the Master on loading which is why he issued
the notice of protest on the 14 January.
For that reason the tribunal did not accept the Master had done all that he
responsibly could to protect the charterers’ interests. The Master could and
should have made direct contact with the charterers by email or if necessary
by telephone advising them on the discrepancy. He should not have signed
the mates receipts before obtaining instructions from the charterers. His
failure to do so involved a breach of his obligation under the clause 7 of the
charter and therefore constituted a breach of the charter.
Charterers’ claim for deadfreight therefore succeeded.
Источник: LA Marine Charterparty Bulletin: October 2013