明确装卸货作业中合同责任的转移
来源: The North P&I Club @ 28/10/2020
Sea Master轮在卸载本船货物玉米和大豆时被拖延数月。在租船人破产后，船东要求收货人赔偿延迟造成的损失。为此，船东认为运输合同中有一个默示条款，即收货人须采取一切必要措施，使货物能够在合理的时间内被卸下与被交付。
法庭首先审查被并入提单的航次租船合同中的明示条款。船东认为，recap中的两个条款—“货物应免费卸载到船舶上”和“卸货港的卸货工人由租船人/收货人指定并支付费用”—有将卸货的合同责任划归承租人和收货人的效果。
法官回顾了约旦上议院先前的裁决，在该裁决中，卸货责任已经从船东手中转移，因此，根据“海牙规则”，船东没有“适当和谨慎地”卸货的义务。一般原则是，如果合同没有明确规定，则由船东负责卸货。
每一次运输作业都有三个部分：谁承担费用，谁实际操作，如果未能谨慎和适当操作，谁负赔偿责任。在提单条款仅涉及谁承担卸货费的情况下，法官很自然地推论出卸货操作的责任归属船东。
法官得出结论，在这个案件中，提单的条款很清楚：船东不必支付卸货的费用，但相关责任并未交给货人或租船人。凭借航次租船合同/提单中存在的装卸损坏条款，以及另一项规定“装卸工人应被视为船东的雇员，并在船长的监督下工作”，法官进一步巩固了他的结论。
给船东的经验教训是，如果想让承租人或收货人为他们的装卸工人的疏忽承担责任，你就必须在提单上或航次租船合同上明确说明这一点。
最终，法官得出结论，在提单中没有任何默示条款要求收货人确保在合理的时间内卸载或交货。如果提单持有者未在合理的时间内主张交付货物，船长有权将货物卸载并向货物所有人要求支付相关费用，但货物所有人通常无权对货物损坏提出索赔。
A recent decision of the UK High Court in The Sea Master is a reminder of the importance of making it clear in any charter or bill of lading any transfer of contractual responsibility for cargo operations to a charterer or receiver.
The Sea Master was delayed for months in discharging its cargo of corn and soya. After voyage charterers went bankrupt, the shipowner looked to the cargo receivers to recover damages for delay. To achieve this, the shipowner argued that it was an implied term of the contract of carriage that the receiver would take all necessary steps to enable cargo to be discharged and delivered within a reasonable time.
The Court started by looking at the express terms of the voyage charter (which had been incorporated into the bill of lading contract). Owners argued that two provisions in the recap – “cargo is to be discharged free of expense to the Vessel” and “stevedores at discharging ports are to be appointed and paid for by the Charterers/Receivers” – had the effect of allocating contractual responsibility for discharge of cargo to charterers and receivers.
The Judge looked back at the previous decision of the House of Lords in The Jordan II where it was decided that responsibility for discharge operations had been transferred away from the shipowner, and so the owner had no obligation under the Hague Rules to discharge cargo “properly and carefully”. The general rule is that responsibility for cargo discharge rests with the owner in the absence of a clear contractual provision to the contrary.
There are three parts to any cargo operation: who pays for it, who physically carries it out and who is liable if it is not done properly and carefully. Where the terms of the bill of lading only deal with who was to pay for discharge, the natural inference is that responsibility for cargo operations remains with the shipowner.
The Judge concluded that the terms of the bill of lading in the present case were clear: cargo was to be discharged free of expense to the owner but the responsibility for doing so had not been delegated to the receiver or charterer. The Judge was reinforced in his conclusion by the existence of a stevedore damage clause in the voyage charter/ bill of lading contract, and another provision saying that “stevedores shall be deemed to be the servants of the Owners and shall work under the supervision of the Master”.
The lesson for shipowners is that if you want charterers or receivers to be responsible for the negligence of their stevedores, then you need to make that plain in the bill of lading or voyage charter.
The Judge then went onto conclude there was no implied term under the bill of lading contract requiring receivers to ensure the cargo was discharged or delivered within a reasonable time. Where a bill of lading holder does not claim delivery within a reasonable time, the Master is entitled to land the cargo and charge the cargo owner with the costs, but the owner is not usually entitled to damages.
返回
