Статья посвящена вопросам, связанным с институтом мертвого фрахта. Перед арбитражным судом стоял вопрос о праве на мертвый фрахт, когда в штурманской расписке и коносаменте неправильно указано количество погруженного груза. Спор возник из задолженности по арендной плате за судно в тайм-чартере, и ответчик заявил требование о зачете суммы мертвого фрахта, то есть фрахта, который был бы заработан фрахтователем по суб-чартеру, если бы количество груза было указано правильно в коносаменте и штурманской расписке. Арбитраж нашел вину капитана судна в том, что он не обеспечил интересы фрахтователя, хотя расхождение между данными о количестве груза в штурманской расписке и коносаменте, с одной стороны, и драфт-сюрвея, – с другой, было заявлено капитаном в морском протесте. Таким образом, было установлено нарушение условий тайм-чартера судовладельцем, служащим которого являлся капитан, и право фрахтователя на мертвый фрахт.
In a recent London Arbitration decision, (2013) 881 LMLN, the arbitrator was asked to consider whether deadfreight was payable in circumstances where the mate’s receipts and the bills of lading did not reflect the actual quantity of cargo loaded.
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. Clauses 7 and 8 of the charterparty required that the whole reach of the vessel’s deck, holds and usual places of loading would be available.
In addition, they required 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 securely, discharge, lash, unlash, install and remove dunnage, and secure, tally and trim the cargo at then-expense under the supervision of the captain. He was to sign bills of lading for cargo as presented in strict conformity with the mate’s receipts.
The charterers then sub-chartered the work vessel for the carriage of 50,000 tonnes 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 January 13,2011 and the vessel sailed on January 15.
The quantity of cargo loaded, as recorded by the terminal’s shore scales was 50,299.983 tonnes. That amount was reflected in the mate’s receipts, which were signed by the master on January 13. In the mate’s receipts the quantity was described as “said to be” and this was qualified by the words “quality, quantity, weight, measure, condition, contents and value are unknown”.
Four draft surveys were then carried out on January 13. These showed varying amounts of cargo on board. The lowest draft figure indicated that 51,067.00 tonnes was on board, while the highest indicated 51,081.219 tonnes.
The cargo was to be shipped for six 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 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 between the shore scale measurements and the draft calculations, a decision was made that no remarks would be made on the mate’s receipts in relation to the discrepancy. More fundamentally, no comments would be made on the bills of lading.
On January 14, 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 that they had not 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 commenced.
Interestingly, it does not appear as if a short shipment claim was received at the discharge port. The charterers were being pursued for outstanding hire of US$140,148.21 by the owners in the arbitration. As part of their defence to that claim, they argued that they were entitled to set off deadfreight of US$34,710.00 from hire, representing the lost freight that they would have earned if the mate’s receipts and bills of lading had been issued with accuracy and reflected the draft surveys. Various other allegations and other claims were also presented.
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 from being made available to the charterers.
As a result of these two breaches, the charterers incurred a loss of freight under the sub-charter which they identified to be US$34,710.00, as compared with the freight that would have been earned if the mate’s receipts had accurately reflected the difference.
The 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’ interest 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 was satisfied that there was a large discrepancy between the amount of cargo that had been recorded in the mate’s receipts and bills of lading on the one hand and the figures in the draft surveys on the other. The shortfall in the figures ranged between 767.017 tonnes and 781.236 tonnes. Moreover, the discrepancy was noticed by the master on loading, which is why he issued the notice of protest on January 14.
For that reason the tribunal did not accept that the master had done all 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 of the discrepancy.
He should not have signed the mate’s receipts before obtaining instructions from the charterers. His failure to do so involved a breach of his obligation under clause 7 of the charter and therefore constituted a breach of the charter.
The charterers’ claim for deadfreight therefore succeeded. ■
Автор: Linda Jacques
Источник: Сontainer Management. – 2013. – November. – P. 42 – 43.