DEMURRAGE-注释

1Schofield on Laytime and Demurrage (5th edn, 2005).

2 [1920] A.C. 88, at p. 94.

3Leeds Shipping Co. v. Duncan Fox & Co. (1932) 37 Com. Cas. 213.

4 See N.V. Reederij Amsterdam v. President of India (The Amstelmolen) [1960] 2 Lloyd’s Rep. 82, at p. 94 (Pearson J.).

5 See Union of India v. Compania Naviera Aeolus (The Spalmatori) [1964]

A.C. 868, at p. 879.

6 [1964] A.C. 868, at p. 882.

7Total Transport Corp.v. Amoco Trading Co. (The Altus)[1985] 1 Lloyd’s Rep. 423.

8Dias Cia. Naviera v. Louis Dreyfus (The Dias)[1978] 1 Lloyd’s Rep. 325.

9 See the commentary on clauses 6 and 7 of the Asbatankvoy Charter, in Chap. 57.

10Marc Rich v. Tourloti Cia. Naviera (The Kalliopi A)[1988] 2 Lloyd’s Rep. 101, esp. at p. 106.

11President of India v. N.G. Livanos Maritime (The John Michalos)[1987] 2 Lloyd’s Rep. 188.

12 See para. 15.7et seq. See also para. 15.58et seq. (removal of ship from berth).

13Islamic Republic of Iran Shipping Lines v. Ierax Shipping (The Forum Craftsman)[1991] 1 Lloyd’s Rep. 81 (cargo damage).

14Ropner Shipping Co. v. Cleeves Western Anthracite Collieries [1927] 1 K.B. 879; cf. Stolt Tankers v. Landmark Chemicals (The Stolt Spur)[2002] 1 Lloyd’s Rep. 786 discussed at para. 15.64 above.

15 For the principles of mitigation of damage see below, para. 21.38et seq.

16Stolt Tankers Inc.v. Landmark Chemicals S.A. (The Stolt Spur)[2002] 1 Lloyd’s Rep. 786, discussed at para. 15.64, above. The argument in that case was not, however, explicitly concerned with mitigation.

17 (1906) 12 Com. Cas. 117.

18 (1932) 37 Com. Cas. 213.

19The Arne [1904] P. 154.

20See Chap. 21.

21The time limit has been abandoned in the 1994 version of the charter.

22 See above para. 15.5.

23Universal Cargo Carriers v. Citati[1957] 2 Q.B. 501, affirmed on appeal [1957] 1 W.L.R. 979.

24 [1951] 1 K.B. 240.

25Shipping Developments Corp. v. Sojuzneftexport (The Delian Spirit) [1972] 1 Q.B. 103, where the ship was an arrived ship during the period of delay.

26Suisse Atlantique Société d’Armement Maritime v. N.V. Rotterdamsche Kolen Centrale[1965] 1 Lloyd’s Rep. 166, [1967] 1 A.C. 361.

27Agrimpex v. Soc. Financiera de Bienes Raices (The Aello) [1961] A.C. 135.

28Rashtriya Chemicals v. Huddart Parker (The Boral Gas)[1988] 1 Lloyd’s Rep. 342.

29Inca Cia. Naviera v. Monofil Inc. (The President Brand)[1967] 2 Lloyd’s Rep. 338, where the vessel was not an arrived ship during most of the period of delay. Once she arrived, the laytime and demurrage regime took over, and damages at large ceased to accrue. Contrast The Delian Spirit, above n. 24.

30Nolisement (Owners) v. Bunge y Born [1917] 1 K.B. 160.

31See generally The Paros[1987] 2 Lloyd’s Rep. 269and The Adelfa[1988] 2 Lloyd’s Rep. 466.

32 See, e.g., Rashtriya Chemicals and Fertilizers v. Huddart Parker Industries (The Boral Gas).

33Commercial Steamship Co. v. Boulton (1875) L.R. 10 Q.B. 346.

34 Above, para. 15.11et seq.

35 See para. 17.4et seq.

36Miramar Maritime Corp.v. Holborn Oil Trading (The Miramar)[1984] A.C. 676.

37 (1878) 3 Q.B.D. 227 and 534.

38Berwind-White Coal Mining Co. v. Solleveld, 11 F.2d 80, 82 (4th Cir. 1926); Bell v. Stewart, 31 F.2d 44, 47 (5th Cir. 1929) (“After the expiration of the lay days, Sundays and holidays are included in the assessment. The charter party excludes them only during the lay days, and, in the absence of an exclusion in the charter party, they are to be included in the computation.”).

39Lindsay, Gracie & Co.v. Cusimano, 12 F. 503, 504 (C.C.E.D. La. 1882); The Oluf, 19 F. 459 (C.C.E.D. La. 1883) (even though charter called for discharge “weather permitting”, once vessel was on demurrage, time lost when she had to put to sea to ride out violent storms held to count—“If [she] had been discharged with dispatch when the stormy season came on, she could have sailed for smoother seas and safer ports”); Lehigh Valley Coal Co.v. Ionia Transp. Co., 174 F. 798, 800 (8th Cir. 1909) (“The home of the ship is on the sea…If [she] had been promptly di scharged, she might the sooner have been chartered for some other voyage and commenced earning additional freight”); The Sava, SMA 2563 (1989) (Palmer, Asmus, Ring) (rain time counts once vessel is on demurrage).

40The Capira, SMA 2241 (1986) (Busch, Berg, Stapleton).

41Taisho Kaiun Kabushiki Kaisha v. Gano Moore Co., 14 F. 2d 985, 987 (D. Del. 1926), The Sissy, SMA 1085 (1977) (Nisi, Chatkuff, Nelson) (time lost due to strike occurring after vessel went on demurrage counted); The Danita, SMA 1391, 1980 AMC 435, 441 (1979) (Engelbrecht, Cederholm, Nisi) (time during which fog closed port not excluded from time vessel was on demurrage); The Christina C, SMA 1688 (1982) (van Gelder, Poe, Sauer) (exception from laytime for time lost during draft survey not applicable once vessel is on demurrage).

42See e.g., the Fosfo form, clause 2 (“time lost by reason of [excepted events] shall not count as lay days or days on demurrage”).

43 See para. 15.219, above.

44The Philippi, SMA 1367 (1979) (Bauer, Arnold, van Gelder) (“once on demurrage, always on demurrage” does not apply to delays—here, a crane breakdown—caused by the fault of the owner); The Prosperity, SMA 2880 (1992) (Zubrod, Hukins, Siciliano) (where ballast tank vent pipe ruptured after vessel was on demurrage, causing further delay, panel refused to apply rule of “once on demurrage, always on demurrage”, finding “time lost by reason of a vessel defect does interrupt demurrage”); The Mountain Lady, SMA 3704 (2001) (“once on demurrage always on demurrage” did not apply to stoppage due to engine room technical problems and due to U.S. Coast Guard testing of cargo pump emergency cut-off system).

45 Above, 1980 AMC at 440 (time during which repairs done not excluded from time on demurrage where vessel would not have berthed anyway, where the owner made sure she would not lose her turn as a result of the repairs, and where the panel accepted the evidence that the repairs could have been stopped as soon as the charterer instructed the vessel to berth).

46E.g., The Lake Yelverton, 300 F. 47, 50, 1924 AMC 1056, 1060 (4th Cir. 1924).

47 See, e.g., Milburn v. 35,000 Boxes of Oranges and Lemons, 57 F. 236, 240 (2d Cir. 1893).

48The Unity, SMA 214, 1967 AMC 798 (1967) (Allen, Zock, Stam) (“When this simple device [of limiting the number of days on demurrage] is employed, the shipowner, after expiration of the stated demurrage period, becomes en titled to detention damages for any further delay”).

49Tweedie Trading Co. v. Strong & Trowbridge Co., 195 F. 929 (2d Cir. 1912); Dewar v. Mowinckel, 173 F. 544 (N.D. Cal. 1909), aff’d, 179 F. 355 (9th Cir. 1910).

50 SMA 214, 1967 AMC 798 at 804-805.

51 SMA 1354 (1979) (van Gelder, Gray, Nelson).

52E.g., Gloria SS. Co.v. India Supply Mission, 288 F. Supp. 674 (S.D.N.Y. 1968) (“Whether the cargo was or was not available, lay days in favor of [the owner] against [the charterer] started to run under Clause 5 ‘whether in berth or not’.…[W]here there is no express exception, the demurrage clause covers delays during the process of loading including the not uncommon one of failure to supply cargo”); The Wilmington, SMA 3489 (1998) (Palmer, Woolmar, Busch) (demurrage rate); The Sayany, SMA 3130 (1994) (Ring, Aitcheson, Fox) (demurrage rather than detention is the appropriate remedy for delay resulting from an insufficient supply

of cargo, where the evidence submitted by both parties did not convince the panel that charterers had failed to have the cargo ready and all of the vessels involved completed loading and discharging within the allotted laytime); The Balsa 21, SMA 2899 (1992) (van Gelder, Muff, Nelson) (despite finding that charterer delayed vessel’s loading for its “own commercial reasons” even though berth and cargo were available, majority held that owners were not entitled to detention damages where loading was nevertheless completed within the allowed laytime); The Golden Nagos, SMA 2770 (1991) (Vismans, Bonnabel, Cederholm) (majority held that thirty day delay due to charterer’s failure to open a letter of credi t was subject to laytime provisions); The Mesis, SMA 2610 (1989) (van Gelder, Nisi, Cederholm) (Bulk Sugar) (where vessel was delayed due to a dispute between the supplier and intermediate purchaser, but the vessel was loaded and departed within the allowed laytime, the panel majority held that charterer itself did not cause the delay, and denied owner’s detention claim); The Hellenic Champion, SMA 1867 (1983) (van Gelder, Boulalas, Coles) (Bulk Sugar) (even though charterer arbitrarily delayed loading while berth was available, panel majority held that where the charter provides a specified time for loading, charterer need not load the cargo as soon as the vessel is ready to receive it even if the cargo is available, and charterer may delay loading for his own purposes so as to use the full laytime allowed); In re Arbitration between Sunroc Shipping Co. Inc. and People’s Republic of Bangladesh, SMA 1123 (1977) (Sauer, Berg, Siebel) (where charterer failed to have cargo ready, but delays were not great and ch arter contained “no demurrage, no dispatch” provision, majority held that damages for detention were not appropriate); The Unity, SMA 214, 1967 AMC 798 (1967) (Allen, Stam, Zock) (reviewing cases, the panel stated, “Otherwise, the American reports abound w ith cases where demurrage was awarded for similar delay [failure to have the cargo ready] without a hint that detention damages might or could have been properly sought or recovered”); The Velos, SMA 128 (1967) (Stam, Hukins, McRoberts) (although the vessel had to await a balance of cargo being brought by a laker, loading was completed within the allowed laytime, and panel held that the delay was covered by the charter party demurrage provisions). The Bei Ji Xing, SMA 3702 (2001) (Arnold, Mordhorst, Hansen) (owner awarded demurrage and additional expenses at discharge port for extended delays where a cargo of gypsum had compacted and solidified during the sea voyage due to high moisture content, making it impossible to

self-discharge using the vessel’s conve yor system); The Osman Mete, SMA 3823 (2004) (Bulow, Dean, Tsagaris) (demurrage rather than detention awarded since the owner’s claim for deadfreight was granted in full based on maximum cargo quantity and since the owner’s freight rate was factored in laytime at load and discharge ports).

53 268 F. 815 (5th Cir. 1920).

54 268 F. at 816-817.

55See also, e.g., The Chios Charm, SMA 2983 (1993) (Lowndes, Palmer, Nisi) (owner entitled to detention damages for time lost due to withholding of cargo and documentation); The Sugar Islander, SMA 2805 (1991) (Palmer, Nottingham, Ring) (Norgrain) (notwithstanding that the vessel was loaded within the allowed laytime, panel awarded damages for detention for delay due to charterer’s failure to open letter of credit in a timely manner); The Stilianos S, SMA 2056 (1985) (van Gelder, Orton, Sondheim) (delay in loading while awaiting a letter of credit in favor of the supplier was a breach of the charterer’s absolute obligation to make cargo available for loading upon the vessel’s arrival, warranting an award of detention damages); and The Aquagem, SMA 1436 (1980) (Cederholm, Hopkins, Zubrod) (detention damages awarded for delay awaiting letter of credit where charter had a “no demurrage/no dispatch” clause); The Angelina F, SMA 3911 (2006) (Martowski, van Gelder, Hawkins) (panel awarded owner detention of 7.5 days representing all time lost by vessel directly caused by t he charterer’s wrongful repudiation, even though the charterparty provided for approximately six days laytime before demurrage would commence). In The An An, SMA 3792 (2003) (Nichols), the sole arbitrator found that detention, at an increased rate, rather than demurrage should apply to the vessel’s extended waiting time of almost three weeks as a result of the charterer instructing the vessel to discharge at a sugar refinery in Baltimore where both port cranes were out of service. The arbitrator found that the delays were not beyond the charterer’s control and that the charterer knew, or should have known that the nominated sugar terminal was “completely shut down” due to the crane failures. He found credible evidence that alternative terminals were available and that the charterer used the vessel “for its own commercial purposes as a floating warehouse during a rising freight market.” The arbitrator awarded detention based on “provable damages for loss of use” of the vessel, which was in excess of the demurrage rate. In The Sea Light II, SMA 3907 (2005) (Hearn, Siciliano, Martin), the panel awarded both demurrage and detention where the charterer breached its obligation to provide a cargo and wrongfully cancelled the charter. In awarding the owner its net lost revenue the panel distinguished between time lost for demurrage and time lost for the subsequent detention up until NOR was accepted under the owner’s substitute charter. The demurrage rate was applied to both the demurrage and detention periods.

56 261 F. Supp. 757, 758 (S.D.N.Y. 1966) (where the charterer used some of the allowed laytime to fumigate the cargo, but nevertheless completed

loading within the agreed time, owner held not entitled to recover damages for detention for the time during which the cargo was being fumigated).

57 SMA 3125 (1994) (Berg).

58See also The Aurora Jade, SMA 3454 (1998) (Martowski, Arnold, Siciliano) (demurrage, not damages for detention, is remedy for delay due to the charterer’s decision to berth “priority” cargoes first); The Nani, SMA 3311 (1996) (Fox, Cederholm, Siciliano) (majority found that demurrage, not damages for detention, is remedy for delay due to the c harterer’s intentional suspension of discharge for six days); The Pontiaki Doxa, SMA 3236 (1996) (Wolmar, Bulow, Siciliano) (demurrage, not damages for detention, is remedy for delay due to non-availability of loading documents); The Boni, SMA 3053 (1994) (Bauer, Berg, Mahoney) (owner’s claim for detention damages was denied because owner did not prove that it suffered any damage due to the alleged delay; “Detention damages are recoverable only if the delay in question caused the shipowner a loss”); The Pal Eagle, SMA 3132 (1994) (Tobin, Berg, Carpenter) (charterer found to have provided a safe berth despite receiver’s failure to accommodate the vessel at her berth, causing significant delays as the vessel had to load from barges; still, owner was due damages for demurrage but not detention as claimed); The Hans Leonhardt, SMA 2820 (1991) (Arnold) (delay during dispute over signing of bills of lading counts as time on demurrage not detention); The Shin Ming, SMA 1161 (1977) (Arnold, Haller, Litzler) (Bulk Sugar) (time lost while charterer arranged sale of cargo not compensable as detention where discharge was completed within laytime); The Maryland Trader, SMA 676 (1972) (Busch, Meehan, Nash) (where contaminated cargo had to be discharged at the loading port, but loading was completed within the allowed laytime, owner’s detention claim was denied); and The Wearfield, SMA 238 (1968) (Besman, van Gelder, Stockman) (even though loading was deliberately delayed—but completed within laytime—because the charterer required June bills of lading, a detention claim was denied). For examples where detention claims were allowed, see The Kale I, SMA 3516 (1999) (Arnold, Lowndes, Hansen) (panel awarded owner detention damages arising from charterer’s deviation after loading, stating, “Detention in the usual connotation is an abnormal delay caused by others preventing the normal conduct of its voyage by a vessel. As such, it is not part of the laytime allowed for loading and/or discharging cargo or the reasonably expected durat ion of the voyage”); The Kinzan Maru, SMA 3465 (1998) (Arnold, Bulow, Wolmar) (detention allowed where master properly rejected torn and stained bags of cocoa and vessel awaited replacement cargo); The Coral I, SMA 3287 (1996) (Berg, Tsagaris, Zubrod) (det ention allowed for delay caused by charterer’s breach of its duty to load a “lawful general cargo”); The Wilmington, SMA 3489 (1998)

(Palmer, Wolmar, Busch) (delay due to contaminated cargo caused by charterer gives rise to detention claim, awarded at rate of demurrage); The Ultrasea, SMA 3151 (1995) (van Gelder, Meyer, Nisi) (charterer failed to open a workable irrevocable letter of credit before the vessel was ready to load; because the charterparty specifically contained a reference to all applicable rules and regulations of Public Law, Title 1, owner was entitled to an award of detention); The Amaryllis, SMA 3046 (1994) (Lofberg, Siciliano, Hukins) (detention damages awarded where loading was delayed and extra expenses were incurred because the cargo arrived at the loading port in damaged condition and vessel properly refused to accept it); The Woodlands, SMA 2886 (1992) (Arnold, Mossberg, Nelson) (detention damages awarded for time lost as result of arrest of vessel by charterer’s agent); The Exi, SMA 2709 (1990) (Tyd, Bulow, Cederholm) (where vessel was delayed due to infestation after completion of loading, but before expiration of laytime, owners awarded detention less dispatch); The Sea Royal, SMA 2279 (1986) (Bauer, Arnold, Palmer) (detention where the charterer deliberately used the ship for storage); The Concord, SMA 2215 (1980) (Sauer, Nelson, van Gelder) (damages for detention allowed for delay at discharge port while charterer located another buyer); The Edipsos, SMA 2177 (1985) (Fox, Nichols, Arnold) (detention allowed where charterers breached their contractual obligation to give prompt discharging orders); The Mini Lioness, SMA 1948 (1984) (Cederholm, Siebel, Nichols) (detention allowed where the vessel was delayed due to the absence of cargo documents at the discharge port); The Costanza M, SMA 1919 (1983) (Nelson, Vismans, Arnold) (where delay was caused by charterer’s breach of a draft guarantee at the discharging berth); The Victory, SMA 1490 (1980) (van Gelder, Andrews, Berg) (detention allowed for 42 day “extraordinary” delay due to various breaches relating to documentation); The Omnium Pride, SMA 1354 (1979) (van Gelder, Gray, Nelson) (storage facility); The Sophia Transoceanic, SMA 1050 (1976) (Coutsodontis, Kreimer, Berg) (same); The Intrepid Colocotronis, SMA 794 (1973) (van Biema, Sauer, Stam) (detention claim allowed where the shipper loaded the wrong cargo, which had to be discharged); and The Mosdale, SMA 740 (1972) (Cameron, Berg, Nelson) (failure to order vessel to any port or berth—“wrong to think that Owners bargained to have their vessel lie in the harbor as a storage facility”).

59 SMA 3694 (2001) (Arnold, Bush, Hansen). See also In re Arbitration between Edlow International Co. and BBC Chartering and Logistics GmbH & Co. K.G., SMA 3822 (2004) (Martowski), where the arbitrator awarded detention for delays under “liner out” discharge terms during the period after discharge in which the vessel was detained in order for charterer to remove padeye s it had welded to vessel’s tanktop.

60 SMA 2595 (1989) (Bauer, Mordhorst, Nelson). See also The Archangelos Michail, SMA 1306 (1979) (Arnold, O’Riordan, Miller); Larsen v. A.C. Carpenter, Inc., 620 F. Supp. 1084, 1124 n. 32 (E.D.N.Y. 1985), aff’d, 800 F. 2d 1128 (2d Cir. 1986); Yone Suzuki, 27 F. 2d at 805.

61The Corvus, 282 F. 939 (D. Md. 1922), aff’d, 288 F. 973 (4th Cir. 1923). 62West Africa Navigation Ltd. v. Ore & Ferro Corp., 192 F. Supp. 651, 652-653, 1961 AMC 2366 (S.D.N.Y. 1960).

63Hellenic Lines v. Commodities Bagging & Shipping, 611 F. Supp. 665, 675 n.13 (D.N.J. 1985).

64West Africa Navigation, Ltd. v. Ore & Ferro Corp., 199 F. Supp. 771, 773 (S.D.N.Y. 1961); Red “R” SS. Co. v. North American Transport Co.,

91 F. 168, 169-170 (2d Cir. 1898); West India SS. Co.v. Field Line, 196

F. 591, 592 (S.D.N.Y. 1910).

65Pool Shipping Co. v. Samuel, 200 F. 36, 40-41 (3d Cir. 1912).