DEMURRAGE-主文

Chapter 16DemurrageDemurrage7.Demurrage 101Ten running days on demurrage at the rate stated in Box 18 per 102 day or pro rata for any part of a day, payable day by day, to be 103 allowed Merchants altogether at ports of loading and discharging. 10416.1As with laytime, the Lloyd’s Shipping Law Library contains a specialist work on demurrage,1 to which reference should be made for a full treatment of the subject.General16.2If the vessel is detained in loading or discharging beyond the agreed laytime, the charterer is in breach of charter and the suggestion to the contrary implicit in the word “allowed” does not alter this analysis. The charterer’s liability may sound in damages at large or, where a demurrage rate is agreed, in demurrage, which is liquidated damages for that breach. Viscount Finlay stated the principle in William Alexander v. Akt. Hansa2:“If the charterer has agreed to load or unload within a fixed period of time … he is answerable for the non-performance of that engagement, whatever the nature of the impediments, unless they are covered by exceptions in the charterparty or arise through the fault of the shipowner or those for whom he is responsible.”The liability is absolute, subject to the two matters mentioned by Lord Finlay, and not dependent upon fault on the part of the charterer. This is so even where the Hague Rules are incorporated, Article IV rule 3 of which provides that: “The shipper shall not be respo nsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without the act, fault, or neglect of the shipper, his agent or servants”.3 Even where a clause does specifically require delay due to“charterer’s fault” in order to trigger the liability to pay demurrage, it seems that the mere fact of the laytime being exceeded is a sufficient fault, in the sense of breach of contract, by the charterer.4Exceptions clauses—“once on demurrage always on demurrage”16.3 Exceptions clauses must be clearly worded to lessen or exclude a liability for demurrage once there has been a failure to load or discharge, as appropriate, within the allowed laytime. Lord Reid treated as correct the proposition that once a vessel is on demurrage no exceptions or interruptions will operate to prevent demurrage continuing to be payable unless the clause is clearly worded to have that effect.5This is often, but sometimes perhaps misleadingly, abbreviated to the phrase “once on demurrage, always on demurrage”. The rule probably owes its origin, at any rate in part, to the consideration that, if the charterer had performed his undertaking to load or discharge in the laydays, the vessel would not have been affected by occurrences causing delay during the demurrage period. As Lord Reid put it in The Spalmatori,6 a case concerning the Centrocon Strike Clause:“I do not think it is an arbitrary rule for this reason. If a strike occurs before the end of the laytime neither party can be blamed in any way. But if it occurs after demurrage has begun to accrue the owner might well say: true, your breach of contract in detaining my ship after the end of the laytime did not cause the strike, but if you had fulfilled your contract the strike would have caused no loss because my ship would have been on the high seas before it began: so it is more reasonable that you should bear the loss than that I should.”However, the rule has been applied frequently in cases where no such considerations exist, and where the interruption or delay in question was an ordinary incident of the voyage, such as shifting7 or fumigating,8 which would have occurred anyway, whether the laydays had been exceeded or not. It has also been held that, where laytime is reversible and the vessel is already on demurrage when she arrives at the discharging port no notice of readiness need be given, demurrage will continue to accrue as soon as the vessel has arrived and is ready to unload, and the charter accordingly loses the benefit of any free period provided for in the charter between the giving of notice and the commencement of time.916.4There is no absolute requirement of law that, if an exceptions clause is to apply to time on demurrage, it must expressly so stipulate,10 butin principle generally worded exceptions clauses will not have that effect, and in the absence of an express reference the clarity of the clause must be very great. There is, in fact, only one reported case in which an exceptions clause not referring expressly to demurrage has been held to apply to events after the laytime was exceeded.11Delay caused by the fault of the shipowner16.5 One exception which does apply equally to laytime or to time on demurrage is the implied exception of delay caused by the fault of the owner or of those for whom he is responsible. The nature of this exception has already been discussed in connection with laytime.12 Where the owner’s fault delays or impedes cargo operations but does not deprive the charterer of access to the vessel or cargo, it is clear that the onus lies on the charterer to prove how much delay was actually caused by the fault.13 But whe n the owner’s conduct results in the charterer being deprived of the use of the ship the burden is on the owner to prove that no delay resulted from his action. Moreover, where the owner is using the ship for his own purposes, unconnected with the loading or discharging operation, it may be that demurrage will not accrue even if no delay has resulted, on the grounds that demurrage, being liquidated damages for detention, cannot be claimed in respect of a period in which the ship is not being detained.14Demurrage and mitigation16.6Since demurrage is liquidated damages, almost invariably payable ata fixed rate per day and pro rata, there can be no question of the owner being under any duty to mitigate damages15 by making efforts to reduce his daily loss resulting from the detention, since the agreed rate per day will apply whatever may be the actual loss. However, the owner may be required to take reasonable steps to ensure that the period of detention of his ship is not unnecessarily prolonged by any failure on his part to act reasonably, and the decided cases appear to recognise a duty to mitigate in this fairly limited respect. It may also be that it is, in effect, recognised in the situation where the vessel performs other functions for the account of the owner at a time when she is and would inevitably be waiting to load or unload under the relevant charter.1616.7 The situation in which an owner is most frequently accused of a failure to mitigate is where the discharge of the cargo is delayed by theexercise of a lien. Prima facie it is no answer to a claim for demurrage that discharge was delayed by the lawful exercise of a lien. However, if the exercise of the lien was wholly unreasonable in the circumstances, for example, if it should have been obvious to the owner that he could have secured his claim equally well, at a saving in cost and with no extra inconvenience to himself, by discharging the cargo under lien, he may be held to have failed to mitigate. Such cases are likely to be rare.The Cape Wrath was delayed at the discharging port due to the owners’ exercising a lien for demurrage at the loading port. The precise amount was in dispute between the parties and there were lengthy negotiations which resulted in the provision of security for the owners’ claim to be determined later. Discharging was halted for four days during these negotiations. There was evidence that if the vessel had discharged the cargo liened into a warehouse under the Merchant Shipping Act, there would have been a minimum charge of 20 days’ rent. The owners claimed damages for detention during the period when discharging had ceased.Bigham J. held they were entitled to recover damages for detention because he considered that they had exercised the lien in a reasonable manner. He said this of the owners’ claim: “This depends, in my opinion, upon whether they exercised their lien in a reasonable manner. If it was the cheaper course to keep the cargo on board the ship, rather than to warehouse it under the Merchant Shipping Act, then they acted reasonably in keeping it on board. If, on the other hand, it would have been cheaper to put the cargo into warehouse then they acted unreasonably in keeping it on board … [After referring to Moller v. Jecks (1865) 19 C.B.(N.S.) 332, he continued:] … it was held that damages could not be recovered for detention caused by [the master’s] own unreasonable exercise of what may have been his strict legal right …”(Lyle Shipping Co. v. Cardiff Corporation (1899) 5 Com. Cas. 87 at page 97.)16.8 If anything, the test adopted by Bigham J., involving as it does a simple comparison of the cost of exercising the lien on shore or on board, is too rigorous, for the situation at the time is often less than clear cut, and there may be other factors to be taken into account, such as whether the exercise of the lien ashore could be guaranteed to be as valid as its exercise on board, and whether the owner would have an equally effective remedy to recover the costs involved. In Smailes v. Hans Dessen,17 another case in which it was argued that owner had failed to mitigate by discharging the cargo under lien, the Court of Appeal, whilst accepting that in principle the doctrine of mitigation applied to ademurrage claim, adopted a less rigorous approach, and Cozens Hardy L.J. pointed out:“They are bound to act reasonably. Reasonableness begins at home; a shipowner has a right to look at his own interests before he considers how far he can mitigate damages imposed on another person. A plaintiff is not bound to jeopardise any of his own rights in the hope of mitigating damages that may be payable by his opponent.”Thus, the reas onableness or otherwise of the owner’s conduct is to be determined by reference to what was reasonable for a person in his position to do bearing in mind his own interests as having priority over those of the receiver or charterer.16.9 Another illustration of the application to demurrage of ordinary principles of mitigation is that where the owner does take steps, going beyond his legal obligations, to diminish the time his vessel spends on demurrage he is entitled to recover any costs reasonably incurred in so doing. In Leeds SS. Co. v. Duncan Fox18 it was held that an overtime payment to stevedores was recoverable on this ground.16.10Some contracts of carriage by sea, more frequently bills of lading than charterparties, provide that the receiver shall receive the goods as fast as the ship can deliver, failing which the owner shall be entitled to land and store the goods at the consignee’s expense. A clause of this nature is for the owner’s benefit, and does not exclud e his right to lien the goods on board and to claim in respect of the detention of the ship,19 provided that it is not unreasonable for him to adopt this course.Demurrage and damages for detention16.11The demurrage clause in the Gencon 1976 form is rarely left intact in modern charters. It provides for only 10 running days on demurrage. It is only that period during which the damages for delay in loading or discharging are liquidated at the rate stipulated in the charterparty. Once that period has passed, the owner is entitled not to demurrage but to damages for detention at large. Those damages will be such as to compensate the owner for his actual loss, subject to the ordinary rules of remoteness and causation,20 and may be greater or less than the demurrage rate, but the burden of proving his loss lies on the owner. It is the potential for a claim for damages for detention at large which explains the insertion of those words in the lien clause, so that the owner has a lien for damages at large as well as demurrage.16.12 By contrast with the Gencon 1976 form, the great majority of charterparties impose no express limit on the period of demurrage.21 In those circumstances the demurrage rate applies throughout the entire period of detention, and the owner is not entitled to claim damages at large after the expiry of a reasonable time on demurrage.The Inverkip was chartered to load grain at New Orleans or Galveston and was ordered to Galveston, but before she arrived there it was struck by a tidal wave and, with the agreement of the owner, the charterer redirected her to load at Newport News, where she was delayed beyond the agreed laydays for loading because of the difficulty in obtaining a substitute cargo as well as other causes. The owner claimed damages for detention at large for the delay in obtaining a substitute cargo on the grounds, first, that the agreed demurrage rate only applied during a “reasonable” period of detention beyond the laydays, and, secondly, that it only applied to delay in loading as such, and not to the breach of the separate obligation to provide a cargo.The Court of Appeal rejected both these arguments and held that the cha rterer’s sole liability was to pay demurrage at the agreed rate. In the absence of stipulation to the contrary the agreed rate of demurrage applied without limit of time, until the delay was such as to frustrate the contract, or the owner was entitled to and did treat the charterer as having repudiated the contract. The fact that the charterer may also have been in breach of the separate obligation to provide cargo was immaterial, since the only loss caused to the owner by that breach was the delay in loading, and the agreed demurrage rate applied to all such delay, whether it resulted merely from the failure to load within the laydays, or from breach of some separate obligation.(Inverkip Steamship Co. v. Bunge [1917] 2 K.B. 193.)Thus, in the absence of a stipulation limiting the time on demurrage, and questions of frustration and repudiation apart, demurrage at the agreed rate accrues continuously until the completion of the functions that would have stopped laytime running.22 The corollary is that the provision for demurrage will normally prevent the owner from treating the charter as terminable for breach of duty to load in the laytime alone, and he must wait until the delay is sufficient, or it is clear that it is bound to become sufficient, to frustrate the adventure, or the charterer renounces the charter.23 It is arguable that clause 7, by fixing the time on demurrage as 10 days, produces a different result, and entitles the owner to terminate the charter after the expiry of the 10 days. However, it is unlikely that the provision would be interpreted as having this effect.16.13The second point of general importance decided in Inverkip Steamship Co.v. Bunge is that the demurrage provisions of the charter apply to all situations where the loss suffered by the owner is a detention of the ship by reason of a failure to load or discharge within the laydays, and it matters not that the charterer may have been in breach of some other obligation, so long as that breach resulted in no other kind of loss. This principle has been applied in Chandris v. Isbrandtsen-Moller,24where the charterer loaded dangerous cargo in breach of the charter, and The Delian Spirit,25 where the charterer failed to indicate a berth reachable on arrival. In both cases the only consequence was a failure to load or unload within the laydays, and it was held that the situation was governed by the laytime and the demurrage provisions of the charter, with demurrage payable at the agreed rate after the expiry of laytime. So long as the relevant period of delay is covered by the agreement as to demurrage, the owner is limited to a claim for demurrage even where the delay is deliberately caused, unless and until he justifiably terminates the charter on the ground of repudiation. The exclusivity of demurrage as a remedy may be of importance where, for example, there is a string of charterparties containing arbitration clauses; unlike courts, arbitrators have no inherent power to order that a party to one arbitration within the string should pay any costs incurred in another arbitration likewise within the string but an arbitrator can award costs as damages, where otherwise appropriate. Where the liability of a party is solely for demurrage it will not normally be possible to make such an award.2616.14 Where, however, in addition to the failure to load or discharge within the laytime, there is a further obligation which has been broken causing additional loss, then the owner is not necessarily restricted to his claim for demurrage.The Sagatind was chartered to load a full and complete cargo of timber at Archangel at a freight referable to the quantity loaded. The loading took longer than the agreed laydays and was therefore completed during the winter season, which meant that the vessel was permitted only to load to her winter marks. A “full and complete cargo” was less than it would have been if the vessel had loaded within the laydays and so the owner received less freight. They claimed their lost freight from the charterer who argued that, because the loss resulted from the delay in loading, their liability was limited to the demurrage payable under the charter.The Court of Appeal held that the owner was entitled to recover the lost freight. Atkin L.J. said (at page 363): “The provisions as to demurrage quantify the damages, not for the complete breach, but only such damages as result from the detention of the vessel. For correlative to the ship’s right to receive the agreed damages is the charterer’s right to detainthe ship for the purpose of enabling him, if possible, to perform his broken contract and so mitigate any further damage. If, however, for reasons other than the shipowner’s default, the charterer becomes unable to do that which he contracted to do—namely, put a full and complete cargo on board during the fixed laydays, the breach is never repaired, the damages are not completely mitigated and the shipowner may recover the loss which he has incurred in addition to his liquidated demurrage …”Sargant L.J. thought that the breach of charter in failing to load what was a full and complete cargo as ascertained at the date of the vessel’s arrival at Archangel was a breach which was distinct from mere delay. Bankes L.J., while agreeing in the result, seems to have thought also that the existence of the demurrage agreement did not exclude the additional claim for special damage.(Akt. Reidar v. Arcos[1927] 1 K.B. 352, discussed in Total Transport Corp. v. Amoco Trading (The Altus)[1985] 1 Lloyd’s Rep. 423and The Bonde[1991] 1 Lloyd’s Rep. 136.)16.15There may also be cases of pure delay, caused by the charterer’s breach of a term of the charter, which are not governed by the laytime and demurrage provisions because the delay occurs before the commencement of laytime, or after the completion of loading or, less probably in practice, after completion of discharging. Some examples are:∙(1) failure to nominate a loading port punctually;∙(2) preventing the vessel from becoming an arrived ship, for example, by failure to have cargo available27or, where the charter so requires, by failure to provide equipmentnecessary for loading28 or failure to indicate a berth reachable on arrival29; and ∙(3) delay in nominating the discharging port, or in presenting bills of lading for signature.30It is, of course, perfectly possible for the charter to contain express provisions which bring these situations within the laytime and demurrage regime, or which provide that liquidated damages shall be payable at the demurrage rate or some other rate. The “time lost in waiting for berth” provision of the Gencon charter is an example of the former, although it is not dependent on breach. Charterers are not generally responsible for the acts of receivers after discharge, such as acts of preventing departure or arresting the vessel as security for cargo claims.31When demurrage falls due16.16Demurrage under the clause is payable “day by day”, so that the owner has an accrued and enforceable cause of action for demurrage at the end of every day. Once again, this is important for the purposes of the lien clause. It may, however, be displaced by a special agreement postponing the time for payment.32The words “pro rata for any part of a day” exclude the rule that, if any part of a day is used, a full day’s demurrage falls due.3316.17For the meaning of “running days”, see the commentary on clause 6.34Who is liable to pay demurrage?16.18 The clause does not specify who is to pay demurrage. Clearly the charterer is liable, save to the extent that he is protected by the provisions of the lien clause.3516.19When the Gencon charterparty, with this clause more or less intact, is incorporated into a bill of lading, it seems to be the case that the bill of lading holders are liable for demurrage incurred at both loading and discharging ports. In The Miramar,36where the charter stipulated that the “charterer” wa s to pay demurrage, the House of Lords held that liability for charterparty demurrage was not imposed on the holder of a bill of lading which incorporated the terms of the charter. However, in spite of the very wide-ranging explanations for holding that the bill of lading holder in that case was not liable for demurrage, the House of Lords did not overrule Porteus v. Watney,37 where the bill of lading holders were held liable for demurrage by reason of the incorporation into the bills of lading of a charter which did not specify the “charterer” as the party responsible for paying demurrage. The language of clause 7, with its reference to “Merchants”, if anything reinforces this conclusion. The word is certainly wide enough to include bill of lading holders, and although the clause does not expressly provide that the “Merchants” are liable for demurrage, it does provide an indication that the payment of demurrage will be the concern of persons other than the charterer.16.20The word “altogether” is inserted apparently so that the owner cannot recover demurrage at the charterparty rate from each and all of the bill of lading holders. The question whether, in the absence of such a provision, the charterparty demurrage could be recovered from all the bill of lading holders, it being no defence that payment had already been made by another bill of lading holder, provoked a divergence of view in Porteus v. Watney. It is submitted that the better view is that, whilst the effect of the charterparty incorporation clause in the bill of ladingis to make each bill of lading holder jointly and severally liable for the whole amount of the demurrage calculated in accordance with the provisions of the charterparty, as was held in Porteus v. Watney, there is only a single sum due to the owner in respect of that demurrage, and a payment by any bill of lading holder, or by the charterer himself, discharges the others to the extent of the payment.American Law16.27Once the allowed laytime (“free time”) expires, the charterer becomes liable for demurrage (“extended freight”) in the amount (usually based on a daily rate) agreed in the charter for all additional time that the vessel is delayed beyond laytime. Absent a specific clause to the contrary by which laytime exceptions are to apply to time on demurrage, once the vessel is on demurrage, “the rule is that…it will not be suspended by the occurrence of an event within the exceptions of the loading clause”.38This rule is often stated as, “Once on demurrage, always on demurrage”.16.28The underlying premise of this rule is that but for the charterer’s failure to complete loading and/or discharging within the allowed laytime, the subsequently arising event would not have caused the vessel any further delay; therefore, the charterer should not be entitled in such a case to the benefit of the exception. “All delays after [the date the vessel went on demurrage] were the result of the negligence of the [charterer] a nd whether it ‘rained or shined’, was Sunday or a weekday, he should pay demurrage for every day thereafter, until the ship was discharged.”39Similarly, if the vessel arrives at a port “on demurrage”, the charterer is not entitled to the benefit of any “notice time” (e.g., between arrival and “next working period”), absent a clause to the contrary.4016.29 Once the vessel is on demurrage, the occurrence of a delay due to an event covered by a general exception to laytime or a vis major event does not interrupt time on demurrage.41 If such time is to be excepted from time on demurrage, the charter must say so explicitly.42A “general exceptions” clause alone is insufficient.4316.30With respect to the non-contractual exception of fault of the owner, however, the rationale behind the rule does not apply. In the usual case at least, a charterer’s failure to complete loading/discharging within the allowed laytime has no connection with, for example, a subsequent additional delay caused by a crane breakdown. That is, while a charterer’s failure to load/discharge the cargo within the a llowedlaytime necessarily exposes the vessel to various risks to which she would not have been exposed had charterer complied with the laytime provisions, a subsequently arising fault of the owner causing additional delay is normally not such a risk.44 But see The Danita.45 In any event, under general principles, it should be the charterer’s burden to prove not only the fault itself but that such fault increased the delay.How and when payable16.31Clause 7 of the 1976 and 1994 Gencon forms make clear that demurrage is payable “per day or pro rata for any part of a day”. Without such language, any time used on a day on which the vessel is otherwise on demurrage causes the entire day to count.4616.32Clause 7 of the 1976 form also provides that demurrage is “payable day by day”. This allows the owner to demand payment for each day the vessel is on demurrage and thereby allows him an opportunity to assert his lien on the goods under clause 8 as discharge is taking place.4716.33Clause 7 of the Gencon 1994 form provides that demurrage “shall fall due day by day and shall be payable upon receipt of the Owners’ invoic e.” The 1994 form also provides: “In the event the demurrage is not paid in accordance with the above, the Owner shall give the Charterers 96 running hours written notice to rectify the failure. If the demurrage is not paid at the expiration of this time limit and if the vessel is in or at the loading port, the Owners are entitled at any time to terminate the Charter Party and claim damages for any losses caused thereby.”Demurrage contrasted with “damages for detention” or “detention”16.34 Clause 7 of the 1976 Gencon form limits the time on demurrage to “ten running days on demurrage at the contract rate stated in Box 18”; this limitation has been eliminated in the 1994 form. Under this clause, if the vessel is detained longer, the owner is entitled to collect “damages for detention” for such additional time, and clause 8 provides the owner with a lien on the cargo for such damages in addition to demurrage and freight.4816.35Ordinarily, where the number of days on demurrage has been limited and a daily rate has been agreed, the agreed demurrage rate will be adopted for any period of further detention, but, as to this further period ofdetention, either party may prove the actual loss was less or more, either by proving the market rate for the vessel or by proving the daily gross earnings of the vessel less any expenses saved by virtue of the fact that she is lying idle.4916.36 It is rare today, however, that parties agree to limit the number of days the vessel may be on demurrage (sometimes referred to as “contract demurrage”), and, indeed, the 1994 form deleted this provision. Instead, the demurrage rate usually applies to however many days in excess of laytime the vessel takes to load and/or discharge. The question then arises whether the concept of “damages for detention” has any meaning in a typical charter today which allows a fixed period of laytime and contains no limit to the number of days on demurrage. As conceived above, “demurrage” in such a charter would seem to leave no time period to which “damages for detention” could apply.16.37Some arbitrators and courts have, however, found that “damages for detention” can be an alternative remedy for delays during, or after, what otherwise would be laytime and/or that they are not bound to the agreed daily demurrage rate as compensation for such periods. This contention typically arises when the charterer causes a delay in the loading or discharging of the vessel and, but for the breach, the vessel could have otherwise commenced or continued loading or discharging. The owner will contend that while he assumed various risks in agreeing to the method of calculating laytime and the daily rate of demurrage, he did not assume the risk of a delay caused by the charterer’s breach of the charter, especially not an intentional delaying of the vessel for the charterer’s own purposes. The examples range from failing to have a cargo ready when the vessel arrives to delaying the vessel intentionally for use as a storage facility.16.38The question is most likely to arise when the demurrage rate agreed in the charter is less than the market rate for the vessel; if it is the same, or more, the owner is likely to remain content with the agreed rate a nd/or the charterer will not be “tempted” to delay the vessel for his own purposes. The financial consequences are not, however, a function of the agreed daily rate alone; the owner will argue that since the “detention” is not due to a risk covered by the laytime clause, the days should count continuously, i.e., not subject to laytime exceptions. The question of “damages for detention” versus “demurrage” seems to arise a disproportionate number of times in sugar charters, but it is by no means limited to them.16.39 Two schools of thought are evident. On the one hand, there is the view that the parties agreed on a method of calculating laytime (“free。