CHAPTER 3 第3章
Commencement of laytime 装卸时间的起算
Whether in berth or not (WIBON) 无论靠泊与否
3.387 This is perhaps the most common of the special clauses which have the effect of advancing the commencement of laytime from when it would otherwise start. In the case of a charter that names a berth as the speciﬁed destination or expressly gives the charterer the right to select the berth, this expression means that, if a berth is not available, laytime starts to run once any notice period has elapsed after the vessel arrives at ‘‘a position within the port where she is at the immediate and effective disposition of the charterer’’. As the cases which follow show, the point of arrival must be inside and not outside the port limits. It is thus not necessary for the vessel to have reached her designated berth before laytime can commence, provided the berth is not available. As will become clear, the word ‘‘available’’ does not equate with accessible.
3.388 Although also frequently included in port charters, it there has little effect. The deﬁnitive decision on the meaning of the phrase is that of the House of Lords in The Kyzikos, but before considering that case it may be convenient to consider the earlier cases in which it has been considered. The earliest judicial consideration of the phrase appears to be Northﬁeld Steamship Co Ltd v. Compagnie L’Union des Gaz, a decision of the Court of Appeal. That case concerned a berth charter which also contained a clause which read: ‘‘Time to commence when steamer is ready to unload and written notice given, whether in berth or not’’. Of this, Farwell LJ said:
Want of space to berth is of very frequent occurrence, and the parties appear to me to have expressly provided for it, and this disposes also of the contention that the ship was not ready to unload. She was ready so far as she was concerned, and the fact that she was not in a berth is rendered immaterial by this clause.
3.388尽管这一条款经常被引入118黑白图库租船合同中，但其作用并不大。对于这一短语含义的权威行的判决是上议院审理的The Kyzikos案。不过在谈这个案例之前，我们不妨先看一下早期审判的案例。对于这一短语最早的司法解释可见于上诉法院对Northfield Steamship Co Ltd v. Compagnie L’Union des Gaz案的判决。该案所涉及的是一个泊位租船合同，其中就包括了这一条款‘不论靠泊与否，装卸时间从该轮已做好卸货准备并已递交了书面通知书时起算。’对于这条规定，Farwell大法官说：