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油轮航次承租人扣减运费纠纷

作者: 发布时间:2007-07-02 浏览量:6205
Freight – Tanker voyage charterparty – Charterers making deduction from freight on basis of short outturn of cargo quantity – Whether charterparty clause entitled charterers to make deduction
London Arbitration 13/06

(2006) 698 LMLN 2

By a charterparty dated 19 October 2004 the vessel, a 1981-built product carrier of 37,314 mt deadweight on summer marks, was chartered on an Asbatankvoy form incorporating various additional clauses and amendments. The vessel had been in dry dock since the middle of August 2004.

The relevant charterparty provisions were as follows:

“Part II

2. Freight

Freight shall be at the rate stipulated at Part 1 and shall be computed on intake quantity … Payment of freight shall be made by charterer without discount upon delivery of cargo at destination …

… Asbatankvoy C/P with following amendments.

9) Cargo clause

9.1 Cargo retention

In the event that any cargo remains on board the vessel upon completion of discharge, charterers shall have the right to deduct from freight an amount equal to the fob price of such cargo plus freight and insurance with respect thereto as determined by an independent surveyor provided that the volume of cargo remaining on board is liquid and pumpable and reachable by the vessel’s fixed pumps or would have been liquid and pumpable and reachable but for the fault or negligence of the owners, the master, the vessel, or her crew. Any action or lack of action in accordance with this provision shall be without prejudice to any rights or obligations of the parties.

9.3 Cargo clingage

If the vessel is ex dry dock, ex lay-up, or ex dry cargo, a value of cargo determined by fob price for such cargo, plus freight and insurance with respect thereto, will be deducted for any short outturn of cargo quantity, (as determined by an independent surveyor specified by the charterers) calculated by comparing the bill of lading quantity versus discharge quantity basis receiving short tank gauges. For any short cargo due to clingage, freight and insurance shall be deducted from freight to the extent that such quantity exceeds 0.5% of the bill of lading quantity.

9.4 Intransit loss

Owners will be responsible for the full amount of any intransit loss which exceeds 0.4% of total cargo. Charterers shall have the right to deduct the intransit loss from freight due owners, based on an amount equal to the fob price, plus freight and insurance with respect thereto. Intransit loss is defined as the difference between net volume after loading and before unloading at the discharge port basis vessel’s measurements taken by charterers’ independent inspector in accordance with ASTM/API procedures.

…”

The vessel loaded (according to shore tank figures) 29,992.802 mt of gasoil, completing on 26 October 2004. She discharged between 30 October and 2 November 2004 a quantity of 29,675.533 as measured in the shore tanks. That represented a loss on shore figures of 317.269 mt (about 1.06% of the bill of lading quantity).

On 29 October 2004 the owners had invoiced the charterers for the gross freight of US$286,005, based on a minimum quantity of 30,000 mt, or US$275,337.56 net of 3.75% total commission.

The charterers were CFR sellers, and their buyers instructed Saybolt to carry out the outturn survey. In reliance on Saybolt’s findings, the charterers deducted US$83,450.06 from freight, reflecting the extent to which the outturn loss exceeded 0.5% of the bill of lading quantity.

The owners objected to the deduction and referred the dispute to arbitration. They applied for an immediate award to recover the US$83,450.06 outstanding freight on the basis of well-known authorities such as The Brede [1973] 2 Lloyd’s Rep 333, The Aries [1977] 1 Lloyd’s Rep 334 and The Dominique [1989] 1 Lloyd’s Rep 431.

The charterers maintained that they were entitled to rely on additional clause 9.3 of the charterparty. They said that clauses such as clause 9.3 were commonly inserted in tanker voyage charterparties to allow freight deductions to be made on a simple, agreed basis, other freight deduction clauses being clause 9.1 (cargo retention) and 9.4 (intransit loss). The purpose was to allow for freight deductions to be made in certain limited circumstances so that the time and costs of investigating and arguing over the causes of cargo shortages would be avoided. The title of clause 9.3 (“Cargo clingage”) did not qualify the phrase “any short outturn [of] cargo quantity”. The title simply identified what the provision was intended to deal with but said nothing about how it was intended to operate. Clause 9.3 no more required the charterers to prove that a short outturn of cargo was caused by cargo clingage than clause 9.4 required the charterers to prove the accuracy of a measurement of intransit loss by independent inspectors. The charterers said that there was no material difference between the present case and The Olympic Brilliance [1982] 2 Lloyd’s Rep 205, where the Court of Appeal held that the relevant clause permitted a deduction from freight on a final basis, not a “security” basis.

The owners disputed the charterers’ construction of additional clause 9.3. They said that the entirety of the clause, and not just the last sentence of it, dealt solely with loss caused by cargo clingage. The Olympic Brilliance was distinguishable because the clause in that case was intended to allow a deduction by the charterer without having to demonstrate that the shortage in cargo was a consequence of any specific occurrence. In the present case, the short outturn had to be determined “by an independent surveyor specified by charterers”, a requirement not satisfied because the Saybolt report was undertaken on behalf of the buyers. Also the independent surveyor had to make a finding of clingage, but there was no mention of clingage in the Saybolt report. The requirements of additional clause 9.3 had to be strictly complied with, and the owners referred to the unreported Court of Appeal cases of The World Prestige (1981) and The Houda (1993). The owners also contended inter alia that the facts pointed to the alleged short outturn occurring after the gasoil had been discharged from the vessel and could be explained by (1) gasoil remaining in the ship/shore pipeline, (2) mixing of gasoil and seawater in the storage tank, or (3) inaccuracies and deformities in the storage tank itself.

Held , that so far as the construction of additional clause 9.3 was concerned, the tribunal would agree with the owners that the entirety of the clause, and not just the last sentence of it, dealt solely with loss caused by cargo clingage. Clingage was something that would be a particular factor when a vessel was “ex dry dock, ex lay-up or ex dry cargo”. It was not just the heading of the clause that indicated that it was to be limited to instances of cargo clingage, but the limitations in the first sentence (the three provisos all being relevant to the circumstances of clingage occurring) and also the wording of the second sentence. That was borne out by the commercial reality of the situation – there would be no sense at all in limiting the right of deduction in respect of outturn loss (bill of lading versus outturn) to cases where the vessel was “ex dry dock, ex lay-up or ex dry cargo” unless the intention was also to limit it to cases of cargo clingage.

Accordingly, the tribunal would agree with the owners that the independent surveyor did need to make a finding that there was clingage which had caused the short outturn, and that that was a pre-requisite to the right of deduction under additional clause 9.3. The independent surveyor in the Saybolt report had made no such finding – quite the contrary. Far from making an express finding of clingage, the Saybolt report on its face made it perfectly clear that there was no clingage, no loss in transit and no ROB. Accordingly, even though the shore tank outturn figures showed a “loss”, the figure was, on the face of the Saybolt report, wrong – at least in so far as it purported to show a shortage attributable to he vessel – and the tribunal could not take it at face value. Accordingly, the charterers were not entitled to make the deduction from freight owed. The Olympic Brilliance could be distinguished because not all the conditions had been met, and the case was indeed more akin to The World Prestige and The Houda .

For the sake of completeness, the tribunal did not accept the owners’ submission that Saybolt did not qualify as independent surveyor for the purposes of the clause because they had not been “specified by charterers”. They might not have been initially instructed by the charterers, but they were plainly “specified” by them for the purposes of the exercise, and the suggestion to the contrary was devoid of merit.

On the facts, it was clear that the loss on outturn did not occur as a result of clingage. Had there been any clingage, Saybolt would have undoubtedly mentioned that in their report, but they did not. The most likely cause of the outturn loss was an understated outturn figure, either because of an overstatement of water quantities and a corresponding understatement of outturn quantities of gasoil or because of inherent inaccuracies in the shore tanks (lack of electronic measurement devices and deformations in the tanks themselves). However, that was all academic in the light of the tribunal’s finding that the loss was not caused by clingage.

The owners were accordingly entitled to an award of US$83,450.06 plus compound interest at a commercial rate, plus costs.

来源:London Arbitration 13/06

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