合约的解释第十一章 香港仲裁案件

第十一章 有关解释合约的香港仲裁案件 正如在本的序中所讲，邓宁勋爵就在其自传《The Discipline of the Law》中写道：“In the daily practice of the law, the most important subject is the construction of documents.”。这也是笔者作为仲裁员的深刻体会。为了让读者更好地了解合约解释规则的活学活用，同时避免篇幅过长，笔者会在本章节录4个比较近期作出的仲裁裁决书。这只是在笔者众多涉及合约解释规则的裁决书的冰山一角。读者可以从中看到本书所介绍的解释合约的规则的方方面面，例如是背景/语境，如何协调解释合约条文/文字，私人字典，合约合并其他标准格式，默示条文等等。也希望读者能够从这些实例中看到，只要掌握了解释合约的全面知识，就可以在从草拟合约的第一步直到作为仲裁员或是法官都可以做到游刃有余。 1 香港仲裁案件之一 以下是一个笔者在香港近期的裁决书，它是有关期租合约的纠纷，涉及了租约期的计算，这是一种经常会出现的争议，尤其是航运市场高涨。在本案件，如果承租人的计算被接受，就可以多跑一两个航次才还船给船东，这会涉及了可去多赚取两百万美元以上的差价。这一个裁决书涉及了本书好几个部分的内容，如第六章所介绍的背景/语境以及第三章第13段的私人字典。另也涉及了一条重要规则就是去整体解释合约条文，去协调与给与每一个字都有一定意思，这在本书第三章第1与第2段。 ================================================================ IN THE MATTER OF THE ARBITRATION ORDINANCE (CAP.341) AND IN THE MATTER, OF AN ARBITRATION BETWEEN 承租人. (The Charterers) AND 甲轮船东 (The Owners of "甲轮") 乙轮船东 (The Owners of "乙轮") DECLARATORY AWARD WHEREAS: I) By two identical time charterparties dated 28th July 2000 for the "甲轮" and 1st August 2000 for the "乙轮", the Owners agreed to charter the two vessels to the Charterers upon the terms and conditions set out therein. 2) The two charterparties provided for, in Clause 17, for any disputes to submit to Hong Kong arbitration with English law to govern. 3) A dispute having arisen between the Charterers and the Owners and on 21st September 2005, the parties entered into an agreement to appoint me, the undersigned Philip Yang of 18A, Casey Building, 38, Lok Ku Road, Sheung Wan, Hong Kong, as the sole arbitrator. 4) The dispute referred to me concerned the precise durations of the two charterparties. 5) The parties provided me with extensive written submissions and submissions in response, together with the relevant documentary evidence they rely on. 6) Neither party requested an oral hearing. 7) Under the Hong Kong Arbitration Ordinance, I am obliged to issue a Reasoned Award and my reasons are accordingly attached hereto and form part of this my DECLARATORY AWARD. NOW I, the said Philip Yang, having taken upon myself the burden of this my reference and having carefully and conscientiously read and considered the submissions made by the Owners and the Charterers, and the documentary evidence they put before me, DO HEREBY MAKE, ISSUE AND PUBUSH this my DECLARATORY AWARD as follows: A) I AWARD, ADJUDGE AND DECLARE that the two charterparties' precise durations should be 36 months + 12 months (first optional period) + 11 to 13 months (second optional period) + at Charterers' option any off-hire time as per Clause 83 + /- 15 days for “about” in Charterers' option. B) I tax and settle the costs of this my DECLARATORY AWARD at the sum of HK$… C) I RESERVE for later determination all questions as to liability on costs (both the parties' costs and the costs of this my Award). GIVEN under my hand this 3rd November, 2005. Philip Yang Sole Arbitrator Witness ================================================================ "甲轮" / "乙轮" REASONS For and forming part of DECLARATORY AWARD 1) In this reference, the parties have agreed to jointly appoint me as the sole arbitrator with a view to come to a "quick" decision on the precise redelivery dates of the two (2) vessels, "甲轮" and "乙轮" under their governing Time Charter-parties (T-C/Ps). It has to be quick or instant because the Owners' position is that the redelivery dates ought to be as early as 21/11/2005 for "乙轮" and 1/12/2005 for "甲轮". If the Owners prevail in this arbitration, they need to start looking for next employments for the vessels. Likewise, if the Charterers prevail, they also need time to look for next employments. In that sense, 21/11/2005 is not far off. 2) The precise redelivery dates must necessarily depend on the durations of the two T-C/Ps. Briefly put, the Owners position is: the durations in both T-C/Ps should be "36 months + 12 months (first optional period) + 11 to 13 months (Second optional period) + at Charterers' option any off-hire time as per Clause 83+/-15 days for "about" in Charterers' option". But the Charterers' position is that they are entitled to use the vessel for a maximum period of: "maximum 38 months +13 months 15 days + 13 months 15 days + (off-hire time as per Clause 83". This kind of dispute is common when the freight market rises substantially and the Charterers logically wish to use the vessel having chartered-in at lower rate for as long as possible. Whether the Charterers are entitled to do so must depend on the construction of the governing T-C/P. 3) I must therefore first set out the material provisions in the two governing T-C/Ps (which are the same) as follows: "Lines 13-15 - "That the said Owners agree to let, and the said Charterers agree to hire the said vessel, from the time of delivery, for about minimum 34 and maximum 38 months Time Charter exact period in Charterers option. Charterers option further about 11 / about 13 months Time Charter: Charterers option additional further about 11/about 13 months time Charters. About means15 days more or less in Charterers option. Optional period to be declared latest 3 months prior to the expiry of the previous period (I.E. latest the last date of the 33rd month and last date of 45th month respectively). Hire for optional period to count from expiry of the 36th month and the 48th month respectively…. Clause 4 - "That the Charterers shall pay for the use and hire of the said Vessel at the rate of USD10,600. - daily including overtime payable15 days in advance for the first 3 years period and USD11,400.- daily including overtime for the optional period(s)· Clause 83 - "Charterers' option to add any off hire time to Charter Party" Addendum No.6 - "Notwithstanding the terms and conditions of above Charter Party ... Charterers hereby exercise their first option for further about 11 months/13 months time charter for M/V "甲轮" as per subject Charter Party dated 28th July 2000. Hire for the optional period start to count from 37th month (1st November; 2003) and the hire rate to be USD11,400. - daily including overtime." Addendum No.10 - "Notwithstanding the terms and conditions of above Charter Party ... Charterers hereby exercise their second option for further about 11 months/13 months time charter for M/V ''甲轮" as per subject Charter Party dated 28th July 2000. Hire for the optional period start to count from 49th month (1st November, 2004) and hire rate to be USD11,400. - daily including overtime." For the "乙轮", the Charterers had also exercised their two options in similar wording, recorded in Addendums Nos. 6 & 9, which I shall not repeat. 4) Both parties exchanged initial written submissions concurrently (no doubt with a view to expedite the process) and had a second round of exchanging submissions in response. The submissions are very lengthy or wordy which make it very difficult for me to decide quickly or instantly. As an illustration, the submissions in response have 9 pages and 14 pages from the Charterers and the Owners respectively. 5) Essentially, the dispute boils down to the following issues: (i) Factual Matrix/private dictionary or mutual understanding during negotiation. (ii) Construction of the material provisions as set out in Paragraph 3. I will deal with these issues and the main arguments of the parties in paragraphs to follow. Factual Matrix 6) I shall first deal with this issue. The Owners' solicitors had initially applied for the specific disclosure of two other fixtures relating to a vessel called "ABC轮" and an unnamed vessel in what is called "XYZ轮". They were mentioned by the Charterers during negotiations and there was suggestion of private dictionary in that the parties reached mutual understanding with regard to the charter duration. The Charterers strongly resisted. 7) I sent a fax to the parties on 6/10/2005, stating, inter alia: " … 1 am happy to express my initial impression to the arguments with regard to specific disclosure and factual matrix. 3) If 1am to consider factual matrix in my construction (if the executed C/Ps, I must consider what transpired between the parties during the earlier negotiations. No doubt I will receive the fixture files in due course, .... 4) But my rough understanding of factual matrix or "relevant circumstances" which then exist ought to be limited to those within the common knowledge of the parties at the time when they made their C/Ps. Thus, I am not altogether persuaded that further disclosure should be ordered, which are the documents the Owners did not see during negotiations... " 8) The Owners pursued no further on specific disclosure. But in subsequent written submissions and submissions in response, factual matrix remains a main issue in dispute. The parties argued extensively which had taken up a lot of time. 9) I have looked at the fixtures negotiations submitted by the Owners. It started with the Owners' offering the "甲轮" (then a Panamax newbuilding under construction) for a period of "minimum 58/ maximum 62 months time charter; exact period in Charterers' option". It was back on 26/4/2000. 10) But the Charterers countered on 3/5/2000 with "minimum 331maximum 39 months time charter exact period in Charterers' option, Charterers ' further 10/14 months time charter and Charterers ' further10/14 months time charter." 11) On 10/5/2000, the Owners had also used the words of "minimum" and "maximum" to describe the initial or basic period by counter-offering: "minimum 47 maximum 49 months time charter exact period in Charterers' option. Charterers' option further minimum 11/maximum 13 months time charter; such option to be declared latest on the 1st day of the 44th month after delivery, if option period be declared by Charterers, optional period and rate of hire for optional period to count from the starting of the 49th month after delivery." 12) The Owners further conceded on 12/6/2000 at 11 :58H to a shorter initial or basic period and granted to the Charterers two (2) further optional periods. It reads as follows: "minimum 35/maximum 37 months time charter exact period in Charterers' option. Charterers' option further minimum 11/maximum 13 months time charter. Charterers' option further minimum 11/maximum 13 months time charter. Optional period to be declared latest 3 months prior to the expiry of the previous period (I.E. latest the last date of the 3.3th (sic) month and the last date of the 45th month respectively). Hire for optional period to count from the expiry of the 36th month and the 48th month respectively. " 13) On 13/6/2000, the Charterers attempted to further increase the span or spread between "minimum/maximum" charter duration to "minimum 34/maximum 38 months time charter exact period in Charterers' option" At the same time, the Charterers accepted the declaration and hire commencement. 14) In the morning of 14/6/2000, the Owners maintained position in the time charter period to be "minimum 35/maximum 37 months time charter exact period in Charterers' option. ". 15) The parties' respective positions kept changing and by 14/6/2000, in late afternoon, the Owners conceded to and settled at "about 35/about 37 months time charter exact period in Charterers' option, Charterers' option further about 11/about 13 months time charter, Charterers' option further about 11/about 13 months time charter. "A bout" means 10 days more or less Charterers' option (MOLCO) ". 16) By 15/612000, the Owners' further conceded to "about" being "15 days MOLCO" instead of "10 days MOLCO". 17) It was finally agreed and recorded in the fixture recap and in the executed T-C/Ps that the durations should be "minimum 34 maximum 38 months time charter exact period in Charterers' option, Charterers' option further about 11/about 13 months time charter, Charterers' option further about 11/about 13 months time charter, "about" means 15 days MOLCO". 18) In my view and my general experience in chartering, I find it to be a perfectly normal negotiations process, with some signs of the Owners yielding to the Charterers' demand insofar as the duration is concerned. Clearly, it must be to the Charterers' advantage in having two (2) periods of options than a flat period initially proposed by the Owners, even with a tolerance of "min/max". 19) The parties referred me to several authorities and the leading text in Chitty on Contracts. I shall only repeat one citation here of what Lord Wilberforce said in Prenn v. Simmonds (1971) 1WLR 1381, of: "In my opinion, then, evidence of negotiations, or of the parties' intentions, and a fortiori of[the plaintiff’s] intentions, ought not to be received, and evidence should be restricted to evidence of the factual background known to the parties at or before the date of the contract, including evidence of the 'genesis' and objectively the 'aim' of the transaction." (bold words are my emphasis) 20) I see it as a warning not to be influenced by what is in truth a finding of the subjective intention of the parties at the relevant time (which was, in this, more than 5 years ago), instead of carrying out what I believe should be the correct exercise of determining objectively the mutual intention of the parties from the words of the documents in the fixture file in the light of the circumstances surrounding the transaction. 21) With the above in mind, I must conclude that I have difficulty accepting the Owners' arguments of factual matrix. To start off, the relevant words used by the parties such as "minimum/maximum" are exceedingly clear and unambiguous to people in the chartering business. There is no imperfection of language which I need to enquire further. Furthermore, there were many rounds of offers and counters, part of which is being cited by me from Paragraphs 9 to 17 above. I cannot find any factual background "known to the parties" or "special circumstances" that could lead to the construction or "manipulation" of "minimum 34/maximum 38 months time charter" as meaning the same as "3 years" or "36 months". Indeed with several counters back-and-forth in narrowing or expanding the "minimum//maximum" period (such as, in Paragraph 14, the Owners countered with "minimum 35/maximum 37 months" against Charterers' last of "minimum 34/maximum 38 months"), I have difficulty in accepting all the different descriptions of the precise time charter periods used by the parties can all be taken to mean "3 years". In any event, I find the Owners (and indeed the Charterers) are very experienced and knowledgeable in that they know precisely what was meant by the use of the description of "minimum/maximum" for the time charter period at the time of negotiations. 22) Therefore, I reject the Owners' argument of factual matrix or mutual understanding during the negotiation. As mentioned, it has taken up a lot of time in this reference. In today' s environment of awarding costs based on success and failure of different issues, I have a feeling that if I am asked to deal with costs later by the parties, I will take this matter into account. If any authority is needed to support my intended cause of action with regard to costs, I can cite NLA Group Ltd v. Bowers (1999) 1 Lloyd’s Rep. 109. Construction of the Time Charter-parties 23) I now turn to the construction of the various material provisions in the two (2) T-C/Ps, of which I have cited in Paragraph 3 above. In the written submissions, both parties cited many important rules of construction, such as, the famous canon of construction by Lord Reid: "The fact that a particular construction leads to a very unreasonable result must be a relevant consideration. The more unreasonable the result, the more unlikely it is that the parties can have intended it, and if they do intend it, the more necessary it is that they should make that intention abundantly clear". 24) I was also referred by the Owners' solicitors to Chitty, 29th Ed. Paragraph 12-078 of: "an effort should be made to give effect to every clause in the agreement and not to reject a clause unless it is manifestly inconsistent with or repugnant to the rest of the agreement." 25) The Charterers referred me to Glynn v Margetson & Co. (1893) A.C. 351 of: "Looking at the whole of the document, and seeing what one must regard … as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract." The Charterers also referred me to a Canadian case of Sawley Agency v Ginter (1964) regarding the same principle when it comes to inconsistency. 26) I remember other rules of construction such as: "One should be reluctant to hold that parts of a contract are inconsistent with each other, and will give effect to any reasonable construction which harmonises such clauses." (see The Interpretation of Contracts, 3td Ed.). Lord Goff said in Vien Yieh Commercial Bank Ltd. v. Kwai Chung Storage Co. Ltd. (1989) 2 HKLR 639, PC: "Their Lordships wish to stress that to reject one clause in a contract as inconsistent with another involves a rewriting of the contract which can only be justified in circumstances where the two clauses are in truth inconsistent… " 27) The parties also referred me to many cases on time charter durations, such as: The "Peonia" (1991) 1 Lloyd's Rep. 100; The "Gregos" (1995) I Lloyd's Rep. 1 (H.L.), etc. But the parties argued before me mostly on the case of The "Aspa Maria" (1976) 2 Lloyd's Rep,.643. In that case, the initial time charter period was agreed for "six months 30 days more or less at charterers' option". Then a further clause 13 said: "the charterers shall have the option of continuing this charter for a further period of further six months 30 days ... at charterers' option … " The charterers in that case said to have a total duration of "12 months pins 60 days". But it was rejected by the High Court and the Court of Appeal and held that the margin of tolerance of 30 days either way applies only once and not twice. It seems to me that the cases being cited to me have little application to this dispute, except in The "Aspa Maria", I have a feeling of construing in that case the charter period option against the charterers. In another word, the rule of contra proferentem may apply because the option is in favour of the charterers. 28) Having said the above, I understand fully that the rules of construction are not the law. With every contract differs in the words used by the contractual parties, I know my duty as the arbitrator of having to consider the contract (in this case, the T-C/P) as a whole, in support of all the provisions and harmonise any inconsistent terms (if at all possible), not to rewrite the parties' contract, etc., and come up with a hopefully reasonable and objective result. Last but not the least, I say that in the construction of contract, it is in many cases a matter of an overall impression. 29) I must also mention that the Owners had presented to me the reasons for a Declaratory Award dated 17/9/2004, which on the face appears to be strikingly similar to the dispute in this reference. The material clause/provision in that time charter can be cited as follows: "Lines 13-15 -- That the said Owners agree to let, and the said Charterers agree to hire the said vessel, from the time of delivery, for about Minimum 11months/maximum 13 months timecharter, Charterers' option further minimum 11months/maximum 13 months timecharter. Optional period to be declared latest within8 months after vessel’s delivery". Briefly put, it was decided by a London sole arbitrator (name of which is not disclosed due to confidentiality) that the charterers prevailed on a true construction of the charterparty that they were entitled to the use of vessel for an initial or basic period of 13 months (maximum period) plus a further 13 months (maximum period). This is notwithstanding a rider clause entitled "Rate of Hire" stated a hire rate of USD17,500 daily for the optional year and the option year is to be commenced on the first day of the thirteenth month period. That means the 13th month in the initial or basic period the charterers must pay an increase of daily hire from the original rate of USD15,500 to USD17,500. This apparent anomaly was criticized by the disponent owners in that case as "absurd". The arbitrator said that there was no doubt that the draughtsmanship of clause 75 in this respect was somewhat unfortunate. He concluded that because clause 75 was entitled "Rate of Hire" it was dealing simply with the rates of hire and not with the duration of the basic or extended hire periods. The above, I hope, is a very brief summary of what my understanding of the reasoning in the London arbitration award to be. 30) I appreciate that the London arbitration award is only of persuasive value at its best, especially with no knowledge to other documents of the case. But I have considered it very carefully and humbly because it will be most unfortunate in differ with the London arbitrator for no good reason in the construction of identical contractual wording/provisions and cause the Charterers to be caught in between, whom I understand to be the disponent owners in that case. Especially, the amount in dispute, as I was told, is substantial in this case. 31) To facilitate reading, I repeat the most important provisions in the two disputed T-C/Ps in this reference, which I have already cited earlier in Paragraph 3. I will also highlight the different wording which I can detect in comparison with the charterparty wording faced with in the London arbitration award cited in Para.29. It is as follows: "Lines 13-15 - "That the said Owners agree to let, and the said Charterers agree to hire the said vessel, from the time (if delivery, for about minimum 34 and maximum 38 months Time Charter exact period in Charterers option. Charterers option further about 11/about 13 months Time Charter. Charterers option additional further about 11 / about 13 months 'time Charters. About means 15 days more or less in Charterers option. Optional period to be declared latest 3 months prior to the expiry of the previous period (I.E. latest the last date of the 33rd month and last date of 45th month respectively). Hire for optional period to count from expiry of the 36th month and the 48th month respectively .... " It should be a lot clearer now that the words used are not the same. Much more has been said and agreed in the two T-C/Ps of the "甲轮" and the "乙轮". The words used and added are a lot more precise and definite. 32) I have carefully considered the arguments of both parties. They proposed various constructions or interpretations to the highlighted words or provisions. Briefly put, the Charterers argued, inter alia, that: (i) The initial or basic period of "maximum" 38 months is exceedingly clear and unambiguous. There is no "expiry" of this period until it reaches the last day of the 38th month. (ii) Having to pay increased or higher hire rate for the optional period per Addendum No.6 "from 37th month (1st November, 2003)" does not necessarily mean the commencement of the optional period must start to run on that date. In another word, the Charterers argued that in the remaining 2 months of the initial period of 37th & 38th month, the higher optional period hire rate should be paid. No doubt the Charterers are relying on the reasoning of the London arbitration award referred to in my Paragraph 29. (iii) Nowhere in the Addenda says that by agreeing to pay different hires for different specified periods, the optional periods should commence at the same time when different hires are to be paid. (iv) Nowhere in the T-C/Ps says when optional periods are to be commenced once the options are exercised. (v) The expiry of the initial or basic period and the first optional period should be the end of the 38th month and the 51. 5th month respectively instead of the end of the 36th month and the 48th month, as alleged by the Owners. (vi) The words used in Lines 13-15 of "latest three months prior to the expiry of the previous period" should be rejected due to inconsistency. It is in contradiction with the clear description of the "maximum" initial or basic period. 33) The Owners argued, predominantly and forcefully, on the words used in Line 13-15 (the duration clause) of "the expiry of the previous period” and said the whole clause makes perfect sense as an agreed mechanism whereby, on exercise of the Charterers' option for an additional 11-13 months, the previous time charter period(s) shall expire on the last dates of the preceding calendar years, i.e. as expressly defined to be "the last date of the 33rd month and last date of the 45th month respectively". My deliberation and decision 34) On a fine balance, I have some difficulty in accepting the Charterers' arguments. Whilst I agree that the term of "minimum/maximum" is exceedingly clear to people in the chartering business (and I am sure to the Owners' knowledge during the negotiations), it is not the only term or words in the "duration clause" of L 13-15. As pointed out and highlighted in Paragraph 3l, there are a lot more specific words or provisions in the same clause, which I must try to give them meaning and read them as a whole. 35) The Charterers urged me to reject some words in the duration clause of "latest three months prior to the expiry of previous period' due to inconsistency, presumably in contradiction with "maximum 38 months" earlier in the same clause. But based on the rules of construction that I have mentioned earlier, in particular, the guidance of Lord Goff in Paragraph 26, I should not reject words in an executed contract lightly or else it amounts to a rewriting of the contract or T-C/Ps. 36) It will also involve the change or manipulation of the clear words used by the parties, defining in brackets the last dates of "33rd month and 45th month" to "38th month and 51.5th month". This, in my view, is going too far into rewriting the T-C/Ps. Obviously if the Charterers are to exercise the option to extend a charter, the market then must be buoyant. It is logical that the Charterers would like to enjoy the maximum initial or basic charter period. But in this case, the duration clause in Line 13- 15 specifically says, I repeat: "latest 3 months prior to the expiry of the previous period (I.E. latest the last date of the 33rd month ant/last date of 45th month respectively)" . 37) I am also mindful that the first optional period (as against the initial or basic period) of "about 11/about 13 months" does not use the strong words of "minimum/maximum". 38) With regards to the Charterers' arguments in Paragraph 32(ii) and (iii), it is true that it was the same conclusion in the London arbitration award that was brought to my attention. Although this conclusion is not "unreasonable", it is at least in my view "unusual". If the Charterers wish to pay higher hire rate to the Owners by reason of having exercised the option, they can agree on an even higher rate for the optional period or periods. There is no need to disturb the original rate agreed upon for the initial or basic period in the last 2 months. If this "unusual" contractual arrangement is intended, I expect much clearer words should be used by the parties - as stated in the famous canon of construction by Lord Reid in Paragraph 23. Afterall, adequate and punctual hire payment is crucial in a time charter, especially when the market is buoyant, failing which the Owners can use as an excuse to withdraw the vessel. 39) Incidentally, in this case, the parties had also made reference to hire payment in the duration clause (Line 13-15) of "Hire for optional period to count from expiry of the 36th month and the 48th month respectively". Therefore, the reasoning in the London arbitration award of "Rate of Hire" clause was dealing simply with the rate of hire and not with the duration of charter is inapplicable in this case before me. 40) With all the considerations I have mentioned in Paragraph 28 in the construction, in particular with an intention to support all the provisions/words and to give meanings to them, notwithstanding the apparent inconsistency, I accept the proposed construction put forward by the Owners. That is, to harmonise the whole duration clause as: (i) If the Charterers do not exercise the option, they can use the vessel for a period within the span or spread of "minimum 34 months and maximum 38 months". (ii) If the Charterers exercise the option or options, then the "expiry of the previous period" (i.e. initial or basic period) will be 36 months and the first option must be declared latest 3 months prior on the last date of the 33rd month. The first optional period hire rate must then start from 37th month as stated in Addendum No.6. By this way of construction, I can give meanings to all the words or provisions used by the parties in Lines 13-15, the duration clause. 41) The Charterers may think that in Paragraph 40 (i) above, what I have decided is artificial because if the Charterers do not exercise the option to extend, the freight market is more likely to be depressed. There is accordingly no way that the "maximum 38 months" will be utilized. Thus, I am still not giving meaning or weight to this clear and common description to the charter period or duration. But I believe even if the freight market is marginally better than the time of fixture, there can still be scenarios of the Charterers not to exercise the option. Such as, the vessel in hand is a problematic vessel. Another scenario could be: the Charterers do not exercise the option on the last date of the 33rd month and is thus considered as waived. But thereafter, the freight market sharply increases and the Charterers are only left with the initial or basic period, which they will try to use for as long as possible, upto or close to the "maximum 38 months". 42) I feel unhappy that I must decide against one party, the Charterers in this instance. I appreciate it has major financial consequence. But regrettably this is not a mediation or conciliation. I must come to a decision, sometimes on a fine balance of probability, against one party who has put trust and confidence in me by accepting me as the sole arbitrator. I can only hope that my speedy service to the parties in avoiding uncertainty and further escalation of losses or damages can makeup this unfortunate result to the Charterers. 43) I must also mention that I did not extensively cover every arguments &/or cases referred to me. But I can assure the parties that I have read and/or considered all of them. If have to be comprehensive, the reasons of this Declaratory Award will go on much longer This is a quick or an instant arbitration and I do not intend to hold back from the parties my decision. 2 香港仲裁案件之二 以下的仲裁裁决书是有关一个国际货物（丙烷与丁烷）的买卖合约，双方其中一个争议（Issue 4）是有关一份标准油轮租约格式是否有合并在买卖合约，并把该标准格式内对船东非常优越的有关滞期费/滞期损失计算的条文也一并合并进来。有关合并另一份文件的课题请看本书第三章第8段。 ============================================================= IN THE MATTER OF THE ARBITRATION ORDINANCE (CAP. 341) A N D IN THE MATTER OF AN ARBITRATION B E T W E E N （卖方） Claimants/Sellers A N D （买方） Respondents/Buyers “（运载货物的船舶）” Sales Contract dated 8 September 2002 FINAL ARBITRATION AWARD 1) By a Sales Contract dated 8 September 2002, （卖方） (“the Sellers”) agreed to sell and deliver Delivery Ex Ship/DES （中国某卸港的某泊位）, and（买方） (“the Buyers”) agreed to purchase, receive and pay for a cargo of 30,000 MT +/- 5% Propane and Butane. 2) The said Sales Contract provides for: “17. Law and Arbitration This contract shall be governed by and construed in accordance with the English law and the arbitration shall be held in Hong Kong in English.” 3) Disputes (hereinafter more particularly defined) did arise between the parties. The Sellers applied to the Hong Kong International Arbitration Centre (“HKIAC”) for the appointment of arbitrator pursuant to the Arbitration Ordinance. 4) On 31 January 2003, the HKIAC approached me, the undersigned Philip Yang of 18th Floor, Casey Building, 38 Lok Ku Road, Sheung Wan, Hong Kong and asked if I was available to be the sole arbitrator in this reference. I confirmed my availability and the ability to act independently and impartially between the parties. The parties were formally informed on 19 March 2003 by the HKIAC of my appointment. 5) The dispute referred to me as the sole arbitrator is the Sellers’ claim for demurrage of a total sum of US$400,000.00. 6) The parties subsequently exchanged written submissions (including but not limiting to Claim Submissions, Defence & Counterclaim Submissions, Reply & Defence to Counterclaim Submissions, Rejoinder Submissions), attached with documentary evidence they relied on. 7) The parties called for an oral hearing and a hearing was held at the HKIAC on 15-16 June 2006. The Sellers were represented by Counsel and have adduced expert evidence by (X先生) who was subject to cross-examination. The Buyers were represented by a law firm in Shanghai and they did not adduce expert evidence. Both parties did not adduce factual witness. 8) After the oral hearing, the parties exchanged written closing submissions before I was invited to proceed to my Award. 9) Under the Hong Kong Arbitration Ordinance, I am obliged to issue a Reasoned Award and my reasons are accordingly attached hereto and form part of this my FINAL AWARD. NOW I , the said Philip Yang, having taken upon myself the burden of this reference and having carefully and conscientiously read, heard and considered the submissions and evidence put before me by the Sellers and the Buyers, and having given due weight thereto, DO HEREBY MAKE, ISSUE AND PUBLISH this my FINAL AWARD, as follows: A) I HEREBY FIND AND HOLD that the Sellers’ claim for US$400,000.00 succeeds only to the extent of US$85,000.00 and no more. B) I THEREFORE AWARD AND ADJUDGE that the Buyers shall forthwith pay to the Sellers the sum of US$85,000.00 TOGETHER with interest at the rate of 4.5% p.a. or pro rata calculated from 24 October 2002 until the date of actual payment. C) I FURTHER AWARD AND ADJUDGE that the Buyers shall bear and pay their own legal costs and in addition, the Buyers shall pay 25% of the Sellers’ legal costs in the reference (to be assessed/determined by me, if they cannot agree) AND in respect of the costs of this my FINAL AWARD which I hereby assess/determine and settle at the sum of HK$ , the Sellers shall pay 40% of such costs while the Buyers shall pay 60% of such costs PROVIDED ALWAYS that if, in the first instance, the party who has paid in excess of its share of the costs of this my FINAL AWARD, it shall be entitled to an immediate refund from the other party of the sum so paid. GIVEN UNDER MY HAND in Hong Kong this 1st November, 2006. _________________________ _______________________ Philip Yang Witness Sole Arbitrator ================================================================== “（运载货物的船舶）” – Sales Contract dated 8 September 2002 REASONS, for and forming part of FINAL AWARD THE FACTS: 1) By a Sales Contract (“Sales Contract”) dated 8 September 2002, （卖方） (“the Sellers”) agreed to sell and deliver “DES （中国某卸港的某泊位）”, and,（买方） (“the Buyers”) agreed to purchase, receive and pay for a cargo of 30,000 MT +/- 5% Propane and Butane. 2) The cargo was carried and delivered by two (2) vessels, a cargo of 20,000 MT of Propane onboard the “（运载货物的船舶）” (sometimes referred to as “the Vessel”) and 10,000 MT of Butane onboard the “另一艘船舶”. The movements of “另一艘船舶” were described in the Sellers’ opening submissions in Paragraph 4 as follows: “The Vessel carrying the Cargo arrived at （中国卸港） on 29.9.02 at 1800 and tendered NOR at the same date and time. At about the same time, the “另一艘船舶” also arrived at (中国卸港) and was given priority to berth. The “另一艘船舶” completed discharge at 1.10.02 at 12 10 hours. She cleared the berth at 1418 on the same day” Whereas the movements of “（运载货物的船舶）” were, according to the Sellers’ “Time Sheet”, as follows: “Arrival (end of Sea Passage) 1800 29.09.2002 Pilot onboard 0840 12.10.2002 Completed mooring 1100 12.10.2002 Pratique granted 1315 12.10.2002 Notice of Readiness (tendered) 1800 29.09.2002 Notice of Readiness (accepted) 1500 12.10.2002 Commenced discharging 1620 12.10.2002 Completed discharging 2235 17.10.2002” 3) In the Sales Contract, the following terms and conditions are relevant and/or material to the dispute: 03. Product Propane and Butane (Segregated) with C3/C4 50/50 +/- 5% at Seller’s option. 05. Quantity As per original supplier’s specification (Cargo Origin: Algeria and/or Arabian Gulf and/or Malaysia). 06. Vessel “（运载货物的船舶）” or sub. 08. Delivery DES （中国某卸港的某泊位） 0.9. Price USD 265.00/MT Fixed Price DES one safe berth (中国卸港) 10. Laytime for discharge 60 hours SHINC + 6 hours NOR basis 18,000 MTS, extra laytime shall be given on pro rata basis for quantity over 18,000 MTS. For demurrage calculation purpose only, Seller shall guarantee vessel is capable to discharge min. 200 MT/hr for propane and min. 500 MT/hr for butane. If Seller’s vessel fails to meet the high tide in daytime (0600-1800) on the day of arrival at (中国卸港) Pilot Station, then waiting time till next available high tide in daytime or till vessel is fully alongside, whichever is earliest, shall not be counted as laytime. 11. Demurrage USD29,000 per day or pro rata Claims, if any, shall be communicated in written with in 90 days after NOR. 15.Commercial Terms Incoterms 2000 plus amendments for Ex-Ship sales shall be applied. 16. Maritime Terms As per Asbatankvoy C/P. 19. Title and Risks Title, beneficial ownership and risks of loss shall pass from Seller to Buyer as the product passes vessel’s flange at disport. THE CLAIM AND THE ISSUES: 4) The Sellers claimed the permissible fixed laytime for discharge in the Sales Contract was 60 hours but the total time used by the “（运载货物的船舶）” was 392 hours. Therefore, the Vessel was on demurrage for 330 hours and at the demurrage rate of US$29,000 per day, the total demurrage due from the Buyers is accordingly US$400,000.00. The Buyers denied any demurrage is due to the Sellers. 5) The issues in dispute can be broken down as follows: (A) Whether “（运载货物的船舶）” was an arrived ship on 29 September 2002 at 1800 hours when the Notice of Readiness (“NOR”) was tendered? (B) Whether the 1st NOR tendered on 29 September 2002 at 1800 hours was to the correct and/or proper party/parties? (C) Whether the 1st NOR was a valid NOR in light of the free pratique and expiry of Deratting Exemption Certificate? (D) The construction of the Sales Contract and to what extent the Asbatankvoy C/P was incorporated? (E) Whether the Sellers were in breach by delivering the cargo by two vessels of “另一艘船舶” and “（运载货物的船舶）”? (F) The Buyers’ duty, if any, in ensuring early berthing of “（运载货物的船舶）” (G) Whether the Vessel was in breach of the discharging capacity and possible problem of back pressure? There are many other sub-issues being raised by the parties, especially by the Buyers, which I will attempt to cover all of them in the discussions or deliberations that follow. Issue No.1 - Whether “（运载货物的船舶）” was an arrived ship on 29 September 2002 at 1800 hours when the Notice of Readiness (“NOR”) was tendered? … Issue No.2 - Whether the 1st NOR tendered on 29 September 2002 at 1800 hours was to the correct and/or proper party/parties? … Issue No.3 - Whether the 1st NOR was a valid NOR in light of the free pratique and expiry of Deratting Exemption Certificate? … Issue No.4 - The construction of the Sales Contract and to what extent the Asbatankvoy C/P was incorporated? 24) This is the primary case for the Sellers and a most difficult issue for me. So much so, I have invited the parties’ lawyers at the end of the oral hearing for further and better explanation/clarification in their written closing submissions, particularly with regard to the extent of incorporation by the qualification of “Maritime Terms”. A) Sellers’ arguments 25) Briefly put, the arguments or submissions of the Sellers are, inter alia: Clause 16 of the Sales Contract provided that: “Maritime Terms As per Asbatankvoy C/P”. Laytime and demurrage are matters which properly fall within the definition of “maritime terms” and Clauses 10 and 11 of the Sales Contract are to be supplemented with the appropriate provisions of the Asbatankvoy form of C/P. Accordingly, Clause 6 of Asbatankvoy as cited in Paragraph 6 was incorporated which was to “advance” the time for the tendering of a valid NOR (at customary anchorage) when the Vessel arrived at (中国卸港) on 29 September 2002. It has also triggered the commencement of laytime at 1418 hours on 1 October 2002. 26) In the written closing submissions, the Sellers further referred me, belatedly, to the House of Lords’ decision in The “Laura Prima” (1982) 1 Lloyd’s Rep.1 which has to do with an absolute warranty of the charterers to provide “a berth reachable on vessel’s arrival” in Clause 9 of the Asbatankvoy C/P. 27) The Sellers also argued that all those terms that are “maritime” in nature, which could supplement the laytime and demurrage clauses in Clauses 10 & 11 and should be incorporated. That includes Clause 6 of the Asbatankvoy C/P, which effectively “advanced” the tendering of NOR and triggered the commencement of laytime. In support of similar situations in practice, the Sellers cited the case in The “Adolf Leonhardt” (1986) 2 Lloyd’s Rep. 395 which has a clause on laytime and demurrage in the sales contract, reading as follows: “special conditions … Time to count as per Centrocon charter party, WIBON, WIPON, WIFPON. Demurrage/Despatch as per C/P … Other Conditions as per Centro Exportadores term … (my emphasis). 28) As to the case of The “Handy Mariner” (1991) 1 Lloyd’s Repl.378 heavily relied on by the Buyers (see Paragraph 30), the Sellers pointed out that the material clause in that case only read as follows: “Discharge 400 metric tones per hold/weather working day Sundays and Holidays excepted unless used with maximum 2000 metric tones per day. Demurrage U.S.$3,500 per day pro rata with half despatch.”. Although the sales contract in that case has also incorporated GAFTA 100, the Sellers submitted that it did not incorporate any standard C/P and had no provision (express or by incorporation) for the tendering of NOR and “notice time”. This is different with the present case in which Asbatankvoy C/P was specifically incorporated. B) Buyers’ arguments 29) The first main argument advanced by the Buyers was that the sale is on the basis of “DES （中国某卸港的某泊位）” and therefore the Sellers were obligated to deliver the cargo to the exact spot as agreed. The Buyers also referred me to the Incoterms 2000 which explain the term “DES (Delivery Ex Ship)” as follows: “‘Delivered Ex Ship’ means that the seller delivers when the goods are placed at the disposal of the buyer on board the ship not cleared for import at the named port of destination. The seller has to bear all the costs and risks involved in bringing the goods to the named port of destination before discharging. If the parties wish the seller to bear the costs and risks of discharging the goods, then the DEQ term should be used. This term can be used only when the goods are to be delivered by sea or inland waterway or multimodal transport on a vessel in the port of destination. ” Then the Incoterms 2000 provide for in “A. THE SELLER’S OBLIGATIONS” as follows: “A3 Contracts of carriage and insurance a) Contract of carriage The seller must contract at his own expense for the carriage of the goods to the named point, if any, at the named port of destination. If a point is not agreed or is not determined by practice, the seller may select the point at the named port of destination which best suits his purpose. (Emphasis added) b) Contract of insurance No obligation. A4 Delivery The seller must place the goods at the disposal of the buyer on board the vessel at the unloading point referred to in A3 a), in the named port of destination on the date or within the agreed period, in such a way as to enable them to be removed from the vessel by unloading equipment appropriate to the nature of the goods. (Emphasis added) A5 Transfer of risks The seller must, subject to the provisions of B5, bear all risks of loss of or damage to the goods until time as they have been delivered in accordance with A4.” 30) The second main argument advanced by the Buyers was the reference to the case in The “Handy Mariner” (1991) 1 Lloyd’s Rep. 382. It was about a “CIF sale, Free Out, Lorient”. In the sales contract, the material clause with regard to discharge laytime and demurrage has been cited in Paragraph 28 earlier, which I shall not repeat. But in the clause, there was nothing concerning when the vessel could be deemed to be an “arrived ship” at Lorient and could commence laytime counting against the buyers. It so happened that there was delay to the berthing of the vessel after she arrived the port of Lorient. So, the dispute between the sellers and the buyers was: Were the buyers liable to pay demurrage to the sellers in respect of the period between the arrival of the vessel in port of Lorient and the time when the vessel was berthed? 31) The High Court and the Court of Appeal reversed the arbitration award. In the High Court, Hobhouse J. held: “that on the proper construction of the contract the buyers’ obligation to discharge did not begin until the goods were ready for discharge at the discharge berth; the clause did not impose on the buyers any risk with regard to waiting time …” 32) In the Court of Appeal, Staughton LJ, said, inter alia, as follows: “To undertake a liability for demurrage while the vessel is in port but waiting for a berth would be an open-ended commitment in a contract for the purchase of what must probably be a part cargo. It would also be open-ended for a full cargo, since the receiver cannot normally control congestion in the port. In the case of a part cargo the problem is worse and the result may be capricious; the buyer does not know when he makes the contract how much other cargo will be carried on the vessel and so share his liability pro rata – unless some or all of it has been discharged at a previous port. I would require rather clearer words before holding that the buyers had assumed such a liability in this case.” 33) The Buyers had also referred me in the written closing submissions to the judgment of Hobhouse J regarding the difference between a charter-party and a CIF sales contract, unless the latter has put in clear words that would radically transform the scheme of the CIF contract. His Lordship said as follows: “… There is no provision in this contract for the tendering of any notice of readiness, or for any lapse of time between the time when the vessel was an ‘arrived vessel’ and the time at which an obligation to discharge, or the running of laytime, starts. It is an indication in my judgment of this confusion, that the appeal board has treated this contract as if it included some laytime provision which provided for the serving of a notice of readiness, and for the commencement of laytime at some interval after the notice of readiness had been served. I accept that before me that was no an essential part of the sellers’ submissions. But it does indicate and illustrate that it is mistaken to incorporated into a c.i.f contract … considerations which are not in that contract and would be considerations that would have to be derived from some express provision of some charter-party or similar contract. If this contract, or this demurrage provision, was drafted on some basis of indemnity, then there would be either an implied or express cross-reference to a charter-party which would justify the introduction of such concepts because there would be need to refer to the charter-party and therefore to consider what were the terms of the charter-party. But that is not the case here. It is common ground that there is no cross-reference to a charter party and the provisions of this contract stand on their own as between seller and buyer. … It would have been easy to include such a provision, and the most obvious way in which it could have been done is to include some reference to a charter-party which would radically transform the scheme of this contract. There are other ways in which it could be to done, which would be to expand the discharge provision so as to include some words like ‘whether in berth or not’ or ‘time waiting for berth to be treated as discharging time’, or indeed to expand it into a full-blooded laytime provision together with notice of readiness and so on. None of these things have been done. … In those circumstances, in my judgments, the buyer’s contentions are right and ought to have been accepted.” 34) The third argument by the Buyers raises matters or issues such as the meaning in on words such as: “terms”, “as per” and “incorporated” in the context of whether the disputed clauses in the Asbatankvoy C/P could have been incorporated. Furthermore, the Buyers argued that there are several versions of Asbatankvoy C/P, etc. The Buyers also argued that the control of berthing was in the hands of the (中国卸港) Port Authority and they have no control whatsoever. Finally, the Buyers argued that the main cause of the delay in berthing had to do with bad weather/gale wind. C) My Deliberations & Decisions on this issue 35) This is the most difficult issue in this reference as far as I am concerned. I found it difficult at the hearing on 15-16 June 2006. In fact I have specifically asked the parties to fully address me in written closing submissions on this issue of “Maritime Terms” in Asbatankvoy C/P to be incorporated in Clause 16. One of my doubts was: being a C/P pro-forma, I would regard all terms therein should be classified as “maritime terms”. Accordingly, would all the terms and every word in Asbatankvoy C/P be incorporated, subject only to necessary or reasonable “verbal manipulations”? Would there be any limitation as the title of Clause 16 of “Maritime Terms” seems to suggest or infer, ;or I shall give little or no weight to the title of a clause? 36) In essence, it boils down to one important question, as the Sellers putting it in Paragraph 28, of whether the incorporation of Asbatankvoy C/P in this Sales Contract, which is lacking in The “Handy Mariner” (1991) 1 Lloyd’s Rep. 382, would have made the difference or distinction that leads to a completely opposite result to the trading terms used by the parties (CIF or DES)? It is very much an exercise of the construction of the Sales Contract. The fundamental rule is to ascertain, by objective means, the meaning which the Sales Contract should convey, as a whole, to a reasonable person. 37) As I understand it, to incorporate another contract (actual or standard pro-forma) is to bring in all its terms, conditions and exceptions that are relevant and/or germane to the main contract. It is a very common practice in charter-party bills of lading and there have been a lot of well-known principles of construction dealing with the extent or limitation of a general incorporation clause. Such as: - an incorporation clause does not incorporate a clause that would otherwise render a party in breach of his basic duty; - inconsistent and repugnant clauses ought not be incorporated generally; - unreasonable and unusual terms in the trade ought not to be incorporated generally; - overall rationality, business sense or commercial commonsense ought to be considered when it comes construction of incorporation clause; - ancillary clause (such as arbitration clause or time bar clause) ought not to be incorporated generally; - oral agreement ought not to be incorporated generally; - etc. 38) Therefore, it is general knowledge in shipping that a general incorporation clause in bills of lading is insufficient to incorporate an arbitration clause in the charter-party. More so, the demurrage clause and the discharge laytime clause, even though they are clearly germane to the voyage, may not be incorporated especially if it involves a part cargo and/or verbal manipulation, because it would be unreasonable and umcommercial to expose the bills of lading holder to potential liability of such demurrage. It would not make business sense to say he has intentionally entered into a contract with such potential liability in his mind. As far as part cargo is concerned, there is the added difficulty of how to operate between different consignees of different parts of the cargo. 39) Turning to this case, I observe that firstly, the Sales Contract provides for “DES” (Delivery Ex-Ship) and a named point of “中国卸港某泊位” at the named port of destination of “(中国卸港)” has been agreed upon. As I understand it and in the Incoterms 2000 that was also expressly incorporated, the term “DES” itself bears the clear meaning of the Sellers having to deliver, at their own expense, for the carriage of cargo to the named point at the named port of destination (see my added emphasis in Paragraph 29). Therefore, the starting point must clearly be, it should be the Sellers who must bear the consequence of delay in berthing (or arriving at the agreed point of destination), unless it is the fault of the Buyers. With freedom of contract, the Sellers can pass the risk of delay in berthing to the Buyers, thus changing the basic framework or structure of “DES”. But it has to be achieved by very clear and unambiguous terms or provisions in the Sales Contract. Such as, in The “Adolf Leonhardt” (1986) 2 Lloyd’s Rep. 395, it has specifically stated in the laytime clause the well-known and unmistakable acronyms of “WIBON, WIPON”. 40) Secondly, I take note of the case in The “Handy Mariner” (1991) 1 Lloyd’s Rep. 382, heavily relied on by the Buyers, was a “CIF sale, Free Out, Lorient”. But still, it was decided that the sellers could not pass on to the buyers the risk of delay from the time of vessel’s arrival at the port of Lorient until the time of berthing to the buyers. Yet, in this case, it is a “DES sale, （中国某卸港的某泊位）” which gives a stronger impression that the Sellers must deliver the cargo closer to the “home” of the Buyers. Accordingly, if the Sellers wished to pass the risk of delay (in particular, navigational risks such as bad weather/gale wind) from the time of vessel’s arrival at the “customary anchorage” of (中国卸港) (which can be inside or outside of port limit) until the time of berthing at the agreed named point, I expect even clearer, totally unambiguous and unmistakable words have to be used by the Sellers (and agreed by the Buyers). 41) Thirdly, I shall now examine whether or not the Sellers have achieved this duty in order to change the basic framework of “DES”. In the written closing submissions, the Sellers essentially argued that: (1) Demurrage is plainly a maritime term as opposed to commercial terms within the framework of the distinction between Clauses 15 & 16 in the Sales Contract. (2) Questions of laytime and demurrage are matters which properly fall within the definition of “maritime terms” in Clause 16 of the Sales Contract and Clauses 10 & 11 are to be “supplemented” with the appropriate provisions of the Asbatankvoy C/P. (3) The Sales Contract and the Asbatankvoy C/P must be read together. (4) This case is rather like The “Adolf Leonhardt” (1986) 2 Lloyd’s Rep. 395 which incorporated the standard form of Centrocon C/P. 42) I accept some of the arguments/submissions of the Sellers, such as the Asbatanvoy C/P must be read together with the Sales Contract, which has been expressly incorporated. So would be the Incoterms 2000, expressly incorporated in Clause 15. The question is to what extent the Asbatankvoy C/P should be incorporated. Would it incorporate Clauses 6 & 9 of the Asbatankvoy C/P, which as the effect of substantially advancing the commencement of laytime and passing the risk of delay in berthing (even if it was caused by navigational hazards) to the Buyers, thus upsets the basic framework of a “DES” sale set out in Incoterms 2000? 43) My problem is – if Clauses 6 & 9 of the Asbatankvoy C/P were intended to be incorporated and to “supplement” Clause 10 entitled “Laytime for discharge”, why was the incorporation not expressly stated in Clause 10. The Sellers relied on The “Adolf Leonhardt”. But the important distinction is that the incorporation of Centrocon C/P in that very case was in or together with the laytime and demurrage provisions (which was entitled “Special Conditions” and please see my Paragraph 27). In this case, the Asbatankvoy C/P was incorporated in a completely separate and different clause (Clause 16) to the “Laytime for discharge” clause of Clause 10. The two clauses were far removed from each other. Furthermore, Clause 16 has no express (certainly no implied) link to Clause 10. 44) I also bear in mind that in The “Adolf Leonhardt”, the relevant clause has also expressly stated “WIBON, WIPON” to make it beyond doubt that the intention was to pass on the berthing delay to the Buyers. But in this case, there is no such clear, unambiguous and unmistakable agreement in Clause 10. Yet, I expect even clearer words/clauses must be used in order to change the basic framework of a “DES” sale, more so than a CIF sale in The “Adolf Leonhardt”. 45) I am not suggesting in earlier paragraphs that the incorporation of Asbatankvoy C/P has no meaning. There are still a lot of “Maritime Terms” in the Asbatankvoy C/P that could be incorporated in Clause 16. Such as, the General Exceptions Clause, the Paramount Clause, the General Average Clause, the Limitation of Liability Clause, the War Risks Clause, the Agents Clause, etc. It is just the irrelevant clauses such as the nomination of loading port or tendering of notice of readiness for loading that should not be included in incorporation. Also not included are the inconsistent clauses to a “DES” sale unless the incorporation itself is clearly meant to override the “DES” framework, such as, at the very least, the incorporation clause is expressly stated in Clause 10 or Clause 16 is linked to Clause 10. 46) Even better and clearer, the Sellers could have inserted (with the Buyers’ agreement) in Clause 10 of the Sales Contract clauses or provisions like: “Berth Reachable on arrival”, or “The Master is entitled to give notice of readiness upon arrival at the customary anchorage of (中国卸港)”, or “WIBON, WIPON”, Etc. But there is nothing of this sort in this Sales Contract. 47) In support of my construction of this DES Sales Contract which is apparently against the Sellers, I repeat the words of Hobhouse J in the first instance judgment of The “Handy Mariner”, which I fully accept and humbly follow, as below: “It would have been easy to include such a provision, and the most obvious way in which it could have been done is to include some reference to a charter-party which would radically transform the scheme of this contract. There are other ways in which it could be to done, which would be to expand the discharge provision so as to include some words like ‘whether in berth or not’ or ‘time waiting for berth to be treated as discharging time’, or indeed to expand it into a full-blooded laytime provision together with notice of readiness and so on. None of these things have been done. … In those circumstances, in my judgments, the buyer’s contentions are right and ought to have been accepted.” 48) Finally, I must also say that I have reservation as to whether or not laytime and demurrage clauses are strictly “Maritime Terms”. It is because they can be found in both charter-parties and sales contracts. Thus, they should be “maritime” as well as “commercial” terms in nature. Indeed, it is becoming one of the main terms in the negotiation of international sales contracts. But I need not deal with this matter in light of my earlier construction of the Sales Contract. Likewise, I need not deal with other arguments raised by the Buyers such as the meaning of “as per” or “incorporated”, and what version of Asbatankvoy C/P should be incorporated, if at all. Save to say, I am not persuaded by the Buyers over these arguments or issues. But this would not affect the result in my construction. Issue No.5 - Whether the Sellers were in breach by delivering the cargo by two vessels of “另一艘船舶” and “（运载货物的船舶）”? … Issue No.6 – The Buyers’ duty, if any, in ensuring early berthing … Issue No.7 - Whether the Vessel was in breach of the discharging capacity and possible problem of back pressure? 3 香港仲裁案件之三 以下是另一个笔者在香港近期的裁决书，它是有关程租合约的纠纷，涉及了承租人是否要给运费，因为船舶在装货后起航不久沉没，这造成了租约的受阻。如果租约约定的运费支付日期是在受阻前欠下，承租人就必须支付。但如果支付的日期是在受阻后才欠下，承租人就无需支付。有关受阻的课题在笔者的《国际商务游戏规则—英国合约法》一书第十二章与本书第八章第一段有详及。但主要想去介绍的是这一个裁决书涉及了默示条文/地位的其中一个争议，这一个重要课题在本书第七章有详论。 ================================================================== IN THE MATTER OF THE ARBITRATION ORDINANCE (CAP. 341) AND IN THE MATTER OF AN ARBITRATION BETWEEN 原告船东 Claimants/Owners AND 被告承租人 Respondents/Charterers ================================================================== M.V. “船舶”: C/P dd. 05.04.2005 FINAL ARBITRATION AWARD ============================= 1) By a fixture note or charter-party dated 05th April 2005 (the “F/N”) the Claimant, 原告船东, entered into a voyage charter in respect of M.V. “船舶” (“the Vessel”) with the Respondent, 被告承租人 for a voyage from 印度装港 to 中国甲卸港 or 中国乙卸港, upon the terms and conditions set out therein. 2) The said F/N provided for: “18. ARBITRATION IN HK WITH ENGLISH LAW TO APPLY.” 3) Disputes (hereinafter more particularly defined) did arise between the parties. The Arbitration Clause did not provide for the appointment of a sole arbitrator. A three-man tribunal was required in this arbitration. 4) The Owners and the Charterers subsequently agreed to appoint the undersigned Philip Yang of Unit A, 18th Floor, Casey Building, 38 Lok Ku Road, Sheung Wan, Hong Kong as the sole arbitrator to deal with all disputes arising out of or in connection with the above F/N. 5) The Owners’ claims (hereinafter more particularly defined) related to the freight of US$ 750,000.00 which has failed to be paid by the Charterers. The Owners also claimed interest and costs. 6) The parties through their respective lawyers delivered written submissions attaching the documents and evidence upon which they relied. 7) Under the Hong Kong Arbitration Ordinance, I was obliged to issue a Reasoned Award and my Reasons are accordingly attached hereto and form part of this FINAL AWARD. NOW I , the said Philip Yang having taken upon myself the burden of this reference and having carefully and conscientiously read and considered the submissions and the documentary evidence put before me by the Owners and the Charterers, and having given due weight thereto and being in agreement, DO HEREBY MAKE, ISSUE AND PUBLISH this my FINAL AWARD, as follows: A) I HEREBY FIND AND HOLD that the Owners’ claim succeeds in full in the total sum of US$750,000.00. B) I AWARD AND ADJUDGE that the Charterers shall pay forthwith to the Owners the sum of US$750,000.00 TOGETHER with interest at 6.5% p.a. from 24th April 2005 until the actual date of payment. C) I FURTHER ORDER AND ADJUDGE that the Charterers shall bear their own costs and the Owners’ costs of this arbitration on party and party basis (to be assessed and determined by me, if not agreed) AND the Charterers shall also bear and pay the full amount of the costs of this my FINAL AWARD which I hereby assess, determine and settle at the sum of HK$_______, PROVIDED ALWAYS that if, in the first instance, the Owners having paid any part of the costs of this my FINAL AWARD, they shall be entitled to an immediate refund from the Charterers of the sum so paid. GIVEN UNDER MY HANDS in Hong Kong this 10 March, 2007. _________________________ _______________________ Philip Yang Witness ================================================================== “船舶” C/P dd. 05. 04. 2005 (Reasons, for and forming part of Final Arbitration Award) THE FACTS: 1) By a fixture note (“F/N”) or charter-party dated 05th April 2005 (the “F/N”) the Claimant, 原告船东, as the Owners, entered into a voyage charter in respect of M.V. “船舶” (“the Vessel”) with the Respondent, 被告承租人, as the Charterers for a voyage from 印度装港 to 中国甲卸港 or 中国乙卸港 , with a cargo of minimum 20,000 Metric Ton 货物 in Bulk. 2) The Vessel completed loading cargo at 印度装港 on 19th April 2005 and a draft survey made by 检验公司on 20th April 2005 showed that a quantity of 20,100 mt 货物 has been loaded on board. Bill of lading No.01 (“the Bill of Lading”) was issued with the date 19th April 2005 and marked “Freight payable as per charter-party dated 05/04/2005”. On 20th April 2005 the Vessel left 印度装港 to sail for 中国乙卸港. On 25th April 2005, the Vessel sank in the Indian Ocean. 3) The movements of the Vessel in the Statement of Facts (“the SOF”) and Time Sheet were, inter alia : “Arrival at Pilot Station: 1600 Hours 15/04/05 … Notice of Readiness Tendered: 1600 Hours 15/04/05 Notice of Readiness Accepted: 2150 Hours 15/04/05 Commenced Loading: 2150 Hours 15/04/05 Completed Loading Hatch 1: 0530 Hours 18/04/05 … Completed Loading Hatch 2: 2150 Hours 19/04/05 Completed Loading Hatch 3: 2300 Hours 19/04/05 Time Sailed: 0130 Hours 19/04/05” 4) The material or relevant provisions in the F/N can be cited as follows: “(2) CGO AND CGO QTY: MIN 20,000 MT TO VSL’S FULL CAPACITY AT CHARTER’S OPTION 货物 IN BULK, CARGO QUANTITY TO DETERMINED BY DRAFT SURVEY AT BENDS. (6) FREIGHT: USD40.00 PMT ON FIOST BSS I/I FOR 中国甲卸港 DISCHARGE USD44.50 PMT ON FIOST BSS I/I FOR 中国乙卸港 DISCHARGE (9) FULL FREIGHT LESS ADD COM TO BE PAID IN USD TO OWNER’S NOMINATED ACCT WITHIN 3 BANKING DAYS AFTER COMPLETION OF LOADING AND SIGNED B/L MARKED “FREIGHT COLLECT” AS PER SHIPPER’S. FORMAT IN L/PORT BUT ALWAYS BEFORE BREAKING BULKS. (21) ADDCOMM: … (22) OTHER TERMS AND CONDITIONS AS PER GENCON 76” THE CLAIM AND THE ISSUES: 5) The Owners’ case is that the freight, US$ 750,000.00, became due and payable by the Charterers to the Owners “within 3 banking days after completion of loading”, namely 3 banking days after 19th or 20th April 2005. It is alleged by the Owners that 19th, 20th April, 21st, 22nd and 23rd April 2005 were all banking days in Hong Kong and thus the freight, US$ 750,000.00, was due and payable by the Charterers by 22nd or 23rd April 2005. This was prior to the date of Vessel’s sinking on 25th April 2005, hence its timely payment was not affected or frustrated by the sinking of the Vessel. … 7) The Charterers denied that any amount was due to the Owners. 8) The issues in dispute can be broken down as follows: (A) Whether the loading was completed on 19th April 2005 or after the Draft Survey on 20th April 2005? (B) Whether the Bill of lading (“the B/L”) was signed on 19th April or on 20th April 2005? Whether the B/L was back-dated and whether it was a nullity? (C) Whether the requirement for the B/L to be marked “freight collect” under Clause 9 of the F/N was changed to “freight payable as per C/P dated 05/4/2005”? (D) Whether there was an implied term that the 3 banking days should start to count after releasing of B/L? (E) When was the end of the three banking day period? (F) Whether the freight accrued due and payable by the Charterers before the vessel sank? A) The Owners’ Arguments … B) The Charterers’ Arguments … DISCUSSIONS & DELIBERATIONS 33) Both the Owners and the Charterers accepted that if the date of advance freight payment under Clause 9 of the F/N was prior to the date of the Vessel’s sinking on 25th April 2005, it remained payable despite the Vessel’s loss which should frustrated the C/P. Likewise, if the date of advance freight payment happened to be later than the date of Vessel’s sinking, no payment would be due by reason of the frustration of the C/P. Clause 9 did not refer to “freight earned” or “freight due” upon the completion of loading, thus making advance freight an accrued debt which would be payable notwithstanding the subsequent sinking of Vessel or frustration of C/P. It is not disputed that the Frustrated Contracts Act 1943 (the F/N is governed by English law) does not apply to freight payment under F/N or C/P. Therefore, there is no subsequent adjustment of loss or return of freight payment, in full or in part, short of a proven breach of contract by the Owners having caused the Vessel’s sinking. For the reasons mentioned above, it is understandable why the parties have gone into such extensive arguments regarding the commencement and the counting of “3 banking days” (within which period advance freight has to be paid) under Clause 9, in order to arrive at the payment date of advance freight. 34) The Owners and the Charterers also accepted that the physical loading was completed at 2300 hours on 19th April 2005 and the Bill of Lading (“B/L”) was released to the Charterers (who were also the Shippers) on 21st April 2005. Furthermore, both parties did not dispute that 21st, 22nd & 23rd April (Wednesday – Friday) 2005 were banking days in Hong Kong and that 24th & 25th April 2005 were not banking days. 35) Accordingly, if the commencement date for the purpose of counting 3 banking days was on 19th March 2005, the advance freight would become payable at the latest on 22nd April 2005 and if the commencement date was on 20th April 2005, the advance freight would become payable at the latest on 23rd April 2005, both of which dates were before the sinking of the Vessel. This, understandably, is the Owners’ position. The Charterers’ position is that the commencement date should be on 21st April when the B/L was released. Therefore the 3 banking days were 22nd, 23rd & 26th April 2005 which would mean that the last payment date of advance freight subsequent to the sinking of the Vessel. The Charterers also raised other issues in support of their position that advance freight was not due or payable. To facilitate reading, the various issues in dispute are dealt with in sequence, as follows: A) Effect of draft survey 36) The first argument related to the time to carry out the draft survey. It was raised by the Charterers in Paragraph 7(a) & (b) of the Re-Amended Points of Defence, served with the Respondent’s Final Submissions. It has to do with the completion of the draft survey which was recorded to be on 20th April 2005 in the Provisional Draft Survey Report. The Charterers argued: “Until and unless draft survey at the load port had been carried out loading operation of the Vessel had not been completed. Since draft survey at the load port was conducted by 检验公司 only on 20th April 2005 the loading of the Vessel could not be said to have completed on 19h April 2005. Unless such loading operation had been completed no shipped bill of lading could have been issued by the Claimants, the Master of the Vessel and/or their agents (船东代理).” 37) Briefly put, the Tribunal finds difficulty in accepting that the draft survey is to be treated as part of the loading operation. It is accepted that the purpose of the draft survey is to ascertain (or sometimes to countercheck) the quantity of cargo being loaded onboard the vessel. In addition to a draft survey to ascertain the cargo quantity, there may be other surveys to ascertain the condition of the cargo loaded (as one example) the purpose of which is to determine whether “clean” or “clause/unclean” bills of lading be issued. It would not make sense to say that until all surveys are completed, the loading operation would not be considered as completed. Furthermore, what if the result of the initial survey or surveys are disputed by the parties, calling for further survey(s) to be held? Would it mean that the completion of the loading operation has to be put back continuously or indefinitely? Last but not the least, if cargo was loaded on the last few days of the shipment period permissible under the sales contract and/or the letters of credit, can the buyers (as an example) by disputing the draft survey or condition survey findings, cause the “timely” shipment to become an “untimely” shipment, giving rise to a fresh but lawful excuse to reject the cargo? 38) To conclude, I consider that the phrase “completion of loading” should be given its ordinary and natural meaning, limited to the physical operation of cargo loading. The phrase does not include other ancillary matters relating to loading such as the draft survey or issuance of bills of lading. Although it is irrelevant to this dispute, I go further to say that the time taken for the draft survey should not even count for the process of loading laytime or demurrage. A London arbitration award is reported in LMLN No.488 (1998) which appears to take the same view as mine. B) The signing and possible back-dating of Bill of Lading 39) This issue was raised by the Charterers in the Re-Amended Points of Defence in Paragraph 7(d) - (e), which can be cited as follows: “It is submitted by the Respondents that the Bill of Lading concerned in this case was not issued and signed by (船东代理) (Owners’ agents) on 19th April 2005. It must have been issued and signed after the completion of the draft survey by (检验公司) on 20th April 2005 but have been backdated to 19h April 2005 by (船东代理). Since (船东代理) were authorized by the Claimants and/or the Master of the Vessel to sign bills of lading on their/his behalf, Claimants are responsible for the backdating/antedating of the bill of lading by (船东代理). In the circumstances it is submitted by the Respondents that the Bill of Lading concerned in this case was not properly issued and signed and was thus a nullity. Consequently the period of 3 banking days set out in Clause 09 of the Fixture Note never began to run and count and no freight was ever due and became payable by the Respondents. When the Vessel sank on 25th April 2005 the charter as evidenced by the Fixture Note was frustrated and the Respondents were and are under no obligation to pay any freight to the Claimants.” C) Construction of Clause 9 and the remark of freight in Bill of Lading 44) This issue was belatedly raised by the Charterers in the Re-Amended Points of Defence in Paragraph 4(iii) as follows: “It is further denied that the Bill of Lading No.1 dated 19h April 2005, being marked “freight payable as per C/P dated 5th April 2005” was a Bill of Lading capable of triggering any obligation under Clause 9 of the Fixture Note to pay advance freight”. 45) On its face, this appears to be an unreasonable argument on the part of the Charterers. If the argument is to be accepted, only a B/L marked “Freight Collect” in accordance with Clause 9 of the F/N could trigger freight payment. If it was a B/L marked “Freight payable as per C/P dated ….”, then, according to the Charterers, freight would never become due or payable, even if the B/L was in fact utilized and the voyage performed (up to the time of Vessel’s sinking in this case). This clearly cannot be correct. After all, I do not see that there is any important difference between these two remarks about freight payment in the present context. 46) Bills of lading are invariably prepared by the Shippers with remarks or endorsements about freight payment which would suit the requirements of sales contracts and/or letters of credit, knowledge of which is not privy to the Owners or the Master. For example, under a CIF or a CFR sale, bills of lading are normally required to be marked “freight prepaid”. However, in this case, the Charterers denied that they were involved in the issuance of the B/L bearing a remark different to that provided in Clause 9. It was stated in the Re-Amended Points of Defence in Para.4(iii) as follows: “The format of bill of lading which was approved by 被告承租人 is attached in ‘Annexure 2’ hereto. It is denied that Bill of Lading No. 01 dated 19h April 2005 marked ‘freight payable as per C/P dated 05/4/2005’(‘the Bill of Lading’) was issued in accordance with the request by the Shippers and confirmed and/or approved by the Respondents. It is specifically denied that either 被告承租人 or the Resources ever requested, gave confirmation or approval to the Claimants, the Master of the Vessel and/or (船东代理) to issue the Bill of Lading…”. 47) In the witness statement of (船东证人) who is a Manager in the Shipping Department of the Owners, a fuller account of what had happened at the material time is provided in Paragraph 7. He stated in Sub-Paragraph (iv) that: “By an email dated 17th April 2005 (see exhibit “LJ-4”), the Vessel’s agent sent to me the draft Bill of Lading provided by the shipper for my approval. The draft was marked ‘freight payable as per C/P’”. (My emphasis) Then in Sub-Paragraph (v), 船东证人 continued as follows: “I then added some amendments to the draft Bill of Lading and faxed the revised draft to the Vessel’s agent (see exhibit “6”),” The Exhibit showed that two hand-written amendments had been made by 船东证人. The first was to the cargo quantity which was remarked/amended as “said to weigh” and the second was to insert the C/P date. 船东证人 did not amend the remark “freight payable as per C/P”. 船东证人 then followed-on to state in Sub-Paragraph (viii) that: “The Bill of Lading was signed by (船东代理) as agents for the Master and was dated 19th April 2005.”. 48) Based on the evidence, I am inclined to accept that the remark of “freight payable as per C/P” first came from the Shippers (being also the Charterers in this case). This is logical. The draft B/L submitted for the approval of the Owners included other details such as the Shipper’s name and address, the Consignee (being “TO ORDER”) and the name of the notify address. The Owners were not privy to these details. They must have been provided or typed in by the Charterers. It is difficult to accept that the remark “Freight payable as per C/P” was inserted by the Owners or their agents in the draft B/L. 49) This being the case, whether one calls it a variation or an estoppel (by convention), it would not be right for the Charterers to argue that the B/L should have been marked “freight collect” as per Clause 9 of the F/N and should not have been marked “freight payable as per C/P”. I cannot accept the Charterers’ bare denial that the remark of “freight payable as per C/P” did not originate from them (as Shippers) or their agents, and was never approved. I accordingly decide against the Charterers on this issue. D) Construction of Clause 9 and Implied term 50) This issue was raised by the Charterers in the Re-Amended Points of Defence in Paragraph 7(h) and can be cited as follows: “Further or alternatively, the Respondents will say that in construing Clause 09 of the Fixture Note it is necessary, so as to give business efficacy to the provision, to imply a term to the effect that in any event the 3 banking day period for payment of freight will not start to run until the Bill of lading is actually released. It is admitted and averred that the Bill of Lading was released on 21st April 2005. In the premises, if which is denied, freight ever became due and payable, it did not do so until 26th April 2005 by which date the Vessel had sunk.” 51) I also find difficulty with this argument of the Charterers. The reasons are: Firstly, there is a complete and express clause (i.e. Clause 9) dealing with the freight payment namely, it has to be paid within 3 banking days “after completion of loading” (which was on 19th April 2005 and being discussed inter alia in Paragraph 38) and “after signed B/L” (which was on 20th April 2005 and being discussed inter alia in Paragraph 40). These provisions should override any implied position with regard to freight payment. Secondly, I am not aware of any implied term that freight is payable upon the release of the bills of lading. The Charterers did not show me any authority or persuasive material in support of the term sought to be implied by them. Thirdly, if the parties intended to pay freight only after the release of bills of lading, they should have expressed this clearly in Clause 9 of the F/N. It is not uncommon for parties to state that freight should be paid before or after the release of bills of lading, as explained in the report by the Owners’ expert, Capt. (船长姓名). This is also the general experience of me. For instance, it is not uncommon for the owners to insist in the F/N or C/P that freight must be paid prior to the release of bills of lading marked “freight prepaid”. This is motivated by a concern that if such bills of lading fall into the hands of innocent holders, they will be binding on the vessel/owners so far as the freight provision is concerned so the Owners will be unable to collect the freight. Therefore, if the parties in this F/N agreed expressly that the freight should be paid only upon the signing of B/L and nothing was said about the release of B/L, I consider it wrong to imply such a term which would contradict parties’ expressed stated intention as shown in Clause 9 of the F/N. 52) The Owners referred me to what Lord Simon has said in BP v. Hastings (1977), setting out the five stringent requirements which needed to be satisfied in order to imply any term into a contract. They are, it must be reasonable and equitable, it must be necessary to give business efficacy to the contract, it must be so obvious that it goes without saying, it must be capable of clear expression and it must not contradict any express term of the contract. I have to say that in this case, none of the five requirements have been satisfied for implying the term sought by the Charterers to be implied in Clause 9 of the F/N. E) The period of 3 banking days 53) The Charterers raised one further argument in the Re-Amended Points of Defence in Paragraph 7(g) which can be cited as follows: “Without prejudice to the generality of the foregoing, further or alternatively, the Respondents will say that, if (which is denied) the Bill of Lading concerned in this case was valid, it must in any event be treated as if it were signed on and dated 20th April 2005, in which case freight had not become due and payable by the Respondents by the time of the sinking of the Vessel. 21st, 22nd and 23rd April 2005 (Wednesday to Friday) were banking days in Hong Kong, but 24th and 25th April 2005 were not banking days in Hong Kong. In the premises if (which is denied), freight ever became due and payable, it did not do so until 26th April 2005. The Vessel sank on 25th April 2005 so the Charter as evidenced by the Fixture Note had became frustrated as at that time before the right to freight crystallized. It follows that the Claimants have no cause of action against the Respondents and are not entitled to payment of freight as claimed under the terms of the Fixture Note.” 54) This issue has in fact been responded by the Owners in the Claimants’ Final Submissions, Paragraph 43, which can be cited as follows: “43. The Charterers contend, on the basis that the bill of lading was or must have been signed on 20 April 2005, freight was not due until 26 April: Amended Points of Defence paragraph 7 (g). This is a simple fallacy: freight was due ‘within 3 banking days’, ie 21-23 April. Freight had to be paid by the end of banking hours, or at least midnight, on 23 April. It was an accrued right before the ship sank on 25 April….” 55) I accept the argument of the Owners. The word used in Clause 9 of the F/N is “within” the 3 banking days of 21st, 22nd & 23rd April 2005 so the freight payment must have become due by midnight on 23rd April 2005. If Clause 9 had used another common word “after” the 3 banking days, then the Charterers’ argument that freight became due only on 26th April 2005 may well be correct. But it is not the case here. F) Conclusion about the payment of advance freight 56) To summarize the above, I find that the advance freight became due for payment prior to the sinking of the Vessel on 25th April 2005. Accordingly, the Charterers must pay to the Owners the sum of US$750,000.00 together with interest at 6.5% p.a., from 24th April 2005 until the date of actual payment. … I) Costs of the arbitration 60) Following the principle of costs to follow the event, the Charterers must bear their own costs and pay the costs of the successful Owners on party-and-party basis. The costs of this Award shall also be paid by the Charterers. I take notice that the Charterers disputed the employment of a London QC by the Owners, probably by reason of “excessiveness”. This is a matter concerning the assessment and determination of the quantum of the recoverable costs which I shall consider and deal with later should it be called upon to assess and determine the 4 香港仲裁案件之四 以下是另一个笔者在香港近期的裁决书，它涉及的金额并不高，争议是有关经常发生的滞期费。在国际货物买卖与租约经常会出现的有关固定装卸时间条文有多少天，通常会去加以限制，就是周日与假期不算在内（Sundays and Holidays Excluded或简称SHEX）。在本案件，双方争议是周六（Saturday）是否也不算在内。显然，周六并没有特别去加在SHEX一词内。承租人以中国的《劳动法》作为支持，内中规定了周六也算是假期，认为即使不去特别加上也可以假期为由不算在内。笔者判是这一个说法不成立，因为：（一）是《劳动法》与航运/国际外贸的本质（context）是两码事，这在本书第一章5.2.2段与第四章2.1段及其他部分都有讲到。（二）合约条文已经特别针对一件事情但不提其他同类事情，这是在本书第四章第6段有详论。因为如果周末在双方订约的意图下算是假期，就何必去把周日加在SHEX一词内？肯定是周日在感觉上应该比周六更加接近周末假期。所以只加上周日，看来双方订约意图就是去排除周六。（三）笔者在航运租船业务有多年的经验，知道市场上有专门针对不计算或只是部分计算周六的标准条文，例如是Baltimore Form C Saturday Clause。所以，如果什么都没有写上就去判周六也包括在假期内，可以不算在装卸时间内，笔者认为这样的解释并不合理与违反商业的常识（这可看本书第四章第三段）。正如Diplock 勋爵在The “Antaios” (No. 2) (1984) 2 Lloyd’s Rep. 235所说的： “… if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense.”。 ================================================================== IN THE MATTER OF THE ARBITRATION ORDINANCE (CAP. 341) A N D IN THE MATTER OF AN ARBITRATION B E T W E E N A公司 Claimants (Owners) A N D B公司 Respondents (Charterers) “X轮” C/P dated 28 APRIL 2007 FINAL ARBITRATION AWARD 1) By a Charter-Party (the “C/P”) evidenced by a Fixture Note (the “F/N”) dated 28 April 2007, it was mutually agreed between A公司 as the Owners (the “Owners”) and B公司 as the Charterers (the “Charterers”) to charter the MV “X轮” (the “Vessel”) for a voyage from one safe port/one safe berth Shanghai, China to one safe port/one safe berth Calcutta, India. 2) The said C/P (evidenced by a F/N of 28 April 2007) provides for: “17. Dispute, differences, controversies, if any, TB settled by arbitration in Hong Kong and English law to apply with LMAA rule including LMAA small claim procedure up to USD25,000.” 3) Disputes (hereinafter more particularly defined) did arise between the parties. By agreement of the parties, I, the undersigned Philip Yang of 18A, Casey Building, 38, Lok Ku Road, Sheung Wan, Hong Kong, was appointed as the sole arbitrator in respect of all disputes arising out of or in connection with the C/P on 8 June 2007. I accepted the appointment on the same day. 4) The dispute referred to me as the sole arbitrator was the Owners’ claim against the Charterers for demurrage accrued in the loading port of a total sum of US$*****. 5) The parties subsequently exchanged written submissions (including but not limiting to Claim Submissions, Defence Submissions, Reply Submissions), attached with documentary evidence they relied on. 6) Neither party asked for an oral hearing and they invited me to proceed to my Award based on the submissions and documents presented. 7) Under the Hong Kong Arbitration Ordinance, I am obliged to issue a Reasoned Award and my reasons are accordingly attached hereto and form part of this my FINAL AWARD. N O W I , the said Philip Yang, having taken upon myself the burden of this reference and having carefully and conscientiously read and considered the submissions made by the Claimants, and the documentary evidence they put before me, DO HEREBY MAKE, ISSUE AND PUBLISH this my FINAL AWARD, namely:- A) I FIND AND HOLD that the Owners’ claim for US$******* succeeds in full. B) I THEREFORE AWARD AND ADJUDGE that the Charterers shall pay to the Owners the sum of US$******* within seven days after completion of discharging at Calcutta which is estimated to be on 15 June 2007. C) I FURTHER AWARD AND ADJUDGE that the Charterers shall pay the costs of my FINAL AWARD which I tax and settle at HK$******* PROVIDED ALWAYS that if, in the first instance, the Owners has paid any part of the costs of this my FINAL AWARD, they shall be entitled to an immediate refund from the Charterers of the sum so paid. GIVEN UNDER MY HAND in Hong Kong this day of June, 2007 __________________________ ________________________ Philip Yang Witness Sole Arbitrator ================================================================== “X 轮” C/P dated 28 APRIL 2007 R E A S O N S For and forming part of FINAL AWARD THE FACTS: 1) By a Charter-Party (the “C/P”) evidenced by a Fixture Note (the “F/N”) dated 29 April 2007, it was mutually agreed between A公司 as the Owners (the “Owners”) and B公司 as the Charterers (the “Charterers”) to charter the MV “X轮” (the “Vessel”) for a voyage from one safe port/one safe berth Shanghai, China to one safe port/one safe berth Calcutta, India. 2) According to the Statement of Facts (the “SOF”), the Vessel arrived at the loading port of Shanghai and tendered Notice of Readiness (the “NOR”) at 0640 hours on 15 May 2007. 3) The relevant and/or material terms and conditions in the C/P (evidenced by a F/N of 28 April 2007) are as follows: 2. QTY: MIN 10,500MT FERTILIZER IN BAG STOWAGE FACTOR ABT 1.15 5. LOADING/DISCHARGING RATE: 2,500MT/1,500MT PWWD SHEX UU 7. DEM/DES: USD4,000/DHED PER DAY OR PRO RATE, DEM.DES IF ANY TO BE SETTLED W/I 07 DAYS AFTER COMPLETION OF DISCHARGE SUPPORT BY RELEVANT DOCS. 21. HOLIDAYS IN THIS FIXTURE NOTE SHALL DENOTE NATIONAL HOLIDAY AND HOLIDAYS AS DECLARED BY GOVERNMENT. 4) Whereas the movements of the Vessel were, according to the Owners’ SOF, as follows: Date Time Description From To 15-May TUE 0640 ARRIVED AT FANGCHENG P/S N TENDERED NOR 0640 2400 AWAITED FOR BERTHG DUE TO PORT CONGESTION 16-May WED 0000 2400 AWAITED FOR BERTHG DUE TO PORT CONGESTION 17-May THU 0000 2400 AWAITED FOR BERTHG DUE TO PORT CONGESTION 18-May FRI 0000 2400 AWAITED FOR BERTHG DUE TO PORT CONGESTION 19-May SAT 0000 2400 DITTO (0400-0800 RAIN) 20-May SUN 0000 2400 AWAITED FOR BERTHG DUE TO PORT CONGESTION 21-May MON 0000 2400 AWAITED FOR BERTHG DUE TO PORT CONGESTION 22-May TUE 0000 2400 AWAITED FOR BERTHG DUE TO PORT CONGESTION 23-May WED 0000 2400 AWAITED FOR BERTHG DUE TO PORT CONGESTION 24-May THU 0000 2048 AWAITED FOR BERTHG DUE TO PORT CONGESTION 24-May 2048 2345 PILOT ON BOARD N ALL LINES FAST 24-May 2345 2400 JOINT INSPECTION N INMARD FORMALITIES 25-May 0000 0100 JOINT INSPECTION N INMARD FORMALITIES 25-May FRI 0100 0800 AWAITED CGO HOLD INSPECTION DUE TO RAIN 25-May 0800 1050 CGO HOLD INSPECTION N PREPARATION FOR LDG 25-May 1050 2400 LOADING COMMENCE N CONTINUE 26-May SAT 0000 2400 LDG CONTINUE 27-May SUN 0000 2400 LDG CONTINUE 28-May MON 0000 1600 LDG SUSPENDED DUE TO RAIN 28-May 1600 2400 LDG RESUMED N CONTINUE 29-May TUE 0000 0900 LDG CONTINUE 29-May 0900 1300 LDG SUSPENDED DUE TO RAIN 29-May 1300 2400 LDG RESUMED N CONTINUE 30-May WED 1300 2400 LDG CONTINUE N COMPLETED THE CLAIM AND THE ISSUES: 5) The Owners’ claim against the Charterers for demurrage accrued in the loading port of ****** days amounts to a total sum of US$******. The Charterers denied such demurrage was due. 6) The issues of the disputes can be broken down as follows: i) Whether a Saturday is a holiday in Shanghai? ii) Whether it rained on 16 to 18 May 2007? If it did rain, how it affected the calculation of laytime and demurrage? This argument may be contingent on which evidence should be relied on, the SOF of the Vessel, the SOF of another vessel loading at the material time, MV “Y轮” or the testimonial of the weather provided by the Shanghai Weather Station? OWNERS’ ARGUMENTS 7) In the Claim Submission, the Owners argued that the SOF of the Vessel, signed by the Captain and the local Port Agent, should be relied on to calculate the demurrage of this dispute. In that SOF, there is no record of the alleged raining periods from 16-18 May 2007. 8) Further, the Owners argued that, pursuant to Cl. 21 of the F/N and the government declared that the holidays include the New Year’s Day (one day), the Labour Day (three days), the National Day (three days), the Lunar New Year’s Day (three days), Saturdays were not holidays. Then, the Owners submitted that the “S” in “SHEX” in Cl. 5 of the F/N should stand for “Sundays” or “Saturdays”. Then, if Sundays could be excluded, then Saturdays could not. Similarly, if Saturdays could be excluded, then Sundays could not. As a result, the Owners alleged that, in order to exclude both Sundays and Saturdays, SSHEX should be provided in the F/N. Finally, the Owners argued that if Saturdays were holidays, there was no need to state SHEX in the F/N and merely HEX can exclude both Sundays and Saturdays. This cannot be right in Owners’ submissions. 9) In the Reply Submissions, the Owners further agued that the “Weekly Holidays” (周休息日) provided in the “Provisions of the State Council on Working Hours of Workers and Staff” were not the same thing as “Holidays”. 10) Also in the Reply Submissions, the Owners submitted that the berths for the Vessel and the MV “Y轮” were not the same place even both vessels were loading fertilizer. As a result, even if it rained at the berth for the MV “Y轮”, it did not rain where the Vessel berthed. What was more, the Owners argued, though the testimonial of the weather provided by the Shanghai Weather Station recorded the raining time/period between 15 May 2007 and 24 May 2007, it did not record where it was raining. Thus, the Owners insisted to use the SOF of the Vessel to calculate the demurrage they claimed against the Charterers. CHARTERERS’ ARGUMENTS 11) In the Defense Submissions, the Charterers argued that, pursuant to Article 7 of the “Provisions of the State Council on Working Hours of Workers and Staff” and the Decision of the State Council on Revising the “Provisions of the State Council on Working Hours of Workers and Staff” promulgated on 25 March 2007, both Sundays and Saturdays were “Holidays”. The said Article 7 are, inter alia: “All state organs and institutional organizations shall institute a unified working hour system under which Saturday and Sunday shall be arranged as weekly holidays. 　　Enterprises and institutional organizations that cannot institute the unified working hours prescribed in the preceding paragraph may make flexible arrangements for weekly holidays in the light of their actual conditions.” 　 （《国务院关于职工工作时间的规定》 第七条 国家机关、事业单位实行统一的工作时间，星期六和星期日为周休息日。 　　企业和不能实行前款规定的统一工作时间的事业单位， 可以根据实际情况灵活安排周休息日。） 12) Further, the Charterers argued that no matter what the “S” stood for, whether it was Sunday or Saturday, it would not matter because both days or either one of the two would be holidays within the meaning of the official document referred to in Para.11. 13) At the end, the Charterers challenged the SOF which was calculated based on the Log Book provided by the Owners. In accordance with the SOF of MV “Y轮”, prepared by the same Port Agent, there were raining periods recorded on 16 to 18 May 2007. The relevant descriptions of MV “Y轮” in the SOF are cited as follows: Date Time Description From To 16-May WED 2200 2400 LDG SUSPENDED DUE TO RAIN 17-May THU 0000 0330 LDG SUSPENDED DUE TO RAIN 18-May FRI 0330 2400 LDG RESUMED N CONTINUED 14) Then, the Charterers further argued that due to the refusal of the SOF of MV “Y轮” by the Owners, the testimonial of the weather provided by the Shanghai Weather Station should be used to calculate the demurrage, recording clearly the raining time/period between 15 May 2007 and 24 May 2007. MY DECISIONS A) Whether a Saturday is a Holiday at Shanghai? 15) I shall first deal with the question of whether a “Saturday” should be a “Holiday” in this F/N. In chartering, “Holidays” can be described in many ways such as: “general or local holidays”, “legal holidays”, “official and local holidays”, “charterparty holidays”, “legal and local holidays”, “non-working holidays”, etc. These terms have precedent cases with slightly varying meanings. But I need not be bothered because the term used in this F/N to denote “Holidays” is in Cl.21 of: “HOLIDAYS IN THIS FIXTURE NOTE SHALL DENOTE NATIONAL HOLIDAY AND HOLIDAYS AS DECLARED BY GOVERNMENT.” 16) Without this Cl.21, I have little or no hesitation that in normal chartering practice, week-ends or weekly breaks (i.e. Saturdays and/or Sundays) are not “Holidays”. This can be supported at least by two reasonings. One is the well-known definition of “Holidays” in all of commonly used chartering rules or codes, namely, The Charterparty Laytime Definitions 1980, Voyrules 1993 and Baltic Code 2003 as: “HOLIDAY – a day other than the normal weekly day(s) of rest or part thereof, when by local law or practice the relevant work during what would otherwise by ordinary working hours is not normally carried out.” Although the above rules or codes were not incorporated in this F/N, they nevertheless illustrate the common understanding in chartering. 17) Another reasoning in supporting my belief is the common chartering practice of using the acronyms SHEX (which stands for “Sundays & Holidays Excluded”) and/or SHINC (which stands for “Sundays and Holidays Included”). Indeed it is the case in this F/N. If Sundays (and/or Saturdays) can be considered as “Holidays”, then as the Owners argued in Para.8, people in chartering needs only the acronym of HEX, which is all-inclusive, rather than to negotiate for SHEX/SHINC or even further for SatSHEX. I agree and further add it is common in chartering to use clear words or provisions to exclude Saturdays by a so-called “Weekend Clause” which typically reads: “Time shall not count between noon on Saturday and 8 am on Monday” or an even more elaborated “Baltimore Form C Saturday Clause”. 18) But in this case, there is the very difficult problem created by Cl.21, which I have never seem before in my many years of chartering experience. The said clause has stated that as long as holidays declared by the Government (and in this case the PRC Government), they should be holidays within the meaning of this F/N for the calculation of laytime. Then in Para.11, the Charterers produced the “Provisions of the State Council on Working Hours of Workers and Staff” issued by the PRC Government which defines “Saturdays” as “Weekly Holidays” in the English text. 19) It is appreciated that due to the small amount in dispute, parties did not adduce experts (legal experts) in the relevant PRC law to better explain to me what is the meaning of by “Weekly Holidays” in that piece of official document and the difference, if any, with other public holidays. The Owners’ argument was essentially that it would be ridiculous and wholly unreasonable to have so many holidays (over 100 in a year) in the PRC. 20) I have to say that I am not being able to tell the difference, if any, by reading the document in English, between the terms “Weekly Holidays” and “Holidays”. Thus, if it has only the English text, I probably will decide that Saturdays should be “Holidays” within the meaning of this F/N because the parties have chosen to incorporate Cl.21. However, if I go on to read the Chinese text, the corresponding term of “Weekly Holidays” is “周休息日”, which I understand to mean “Weekly Resting Days”. In the Chinese text, I do not find a reference to “Holidays” which in my view should more commonly read as “假日”. Of importance, I am confident that the Chinese text should prevail over the English text. 21) I should also point out that in the Chinese text (人事部贯彻《国务院关于职工工作时间的规定》的实施办法) presented to me by the Charterers, in page 3, Article 3, there is another term of “节假日” following the term of “周休息日”. The literal translation of the former term appears to be “Festival Holidays”. I understand that there is other official document issued by the PRC Government defining what those days are, such as the National Day, the Lunar New Year’s day, etc. I am therefore persuade that the word “Holidays” in this F/N is more appropriate to equate to “Festival Holidays” declared by PRC Government. 22) To therefore conclude on this issue, I have decided in favour of the Owners in that Saturdays at Shanghai are not “Holidays” within the meaning of the F/N and even within the meaning of the “Provisions of the State Council on Working Hours of Workers and Staff” issued by the PRC Government. As a matter of fact, the dispute between the parties has only to do with the 1st Saturday on 19 May 2007, as the subsequent Saturday fell on demurrage period and hence the well-known maxim of “Once on demurrage, always on demurrage” applies. 23) Last but not the least, under English law which governs the F/N, there is nothing to stop the parties from agreeing to something which is “ridiculous” or simply unusual (in chartering practice). The agreement will be given effect provided the words used are clear, unambiguous and can have no other meaning. In this case, I say that the Charterers have narrowly failed to persuade me. B) Raining periods from 16-18 May 2007 24) I shall now turn to the second issue in dispute. To start off, I shall touch on some of the basic principles under English law, as I see them, before I shall apply the facts of this case to the principles. 25) Firstly, in Cl.5 of the F/N, the laytime allowed is based on “WWD” or “Weather Working Days”. It should not be in dispute by the parties that raining periods affecting the loading of fertilizer ought to interrupt laytime running for reason that they are “non-WWD”. 26) Secondly, it was the weather at the loading place which matters. Namely, the raining would have to be there to interrupt laytime running, even if the Vessel happened to be waiting elsewhere, say at the anchorage, where fine weather was encountered. There is clear precedent case on this point. In The “Danita” (1976) 2 Lloyd’s Repl.377, it was said: “It was held that the words ‘weather working day’ applied to days when weather permitted working in the dock. If the weather did not permit working in the dock, then that day was not a weather working day.” 27) Thirdly, under English law, there is a difference between the terms of “WWD” and “WWD of 24 consecutive hours”. In WWD, it appears if raining was outside the relevant working hours of the port, it is itself irrelevant and a full working day should be counted. In Charterparty Laytime Definitions 1980, it has explained under “WWD” that: “If such interference (raining) occurs (or would have occurred if work had been in progress) there shall be excluded from the laytime a period calculated by reference to the ratio which the duration of the interference bears to the time which would have or could have been worked but for the interference.” But the term “WWD of 24 consecutive hours” is different and it is defined as: “If such interference (raining) occurs (or would have occurred if work had been in progress) there shall be excluded from the laytime the period during which the weather interfered or would have interfered with the work.” In this F/N, it was agreed to be “WWD” instead of “WWD of 24 consecutive hours”. But even the disputed raining periods were at midnight or at very early hours from 16 to 18 May 2007, I would not think this principle matters because Shanghai appeared to work 24 hours. 28) Fourthly, it is the evidential value of the SOF, in this case jointly signed by the Master and the Port Agent, without any reservation. It so happened in the latest Lloyd’s Maritime Law Newsletter No.717 (9 May 2007), which has reported a case in the English Court of The “Newforest” 30 January 2007 and the judgment by Judge Mackie QC with regard to SOF is as follows: “The statement of facts was not binding because it did not say so and because the words ‘on the basis of’ did not point clearly enough to finality. The word ‘mutually’ meant, at the least, around the same time. However, the evidential value of the statement of facts was unquestionably strong whether or not the requisite mutuality was achieved, and regardless of its contractual status. The statement of facts had been prepared on the spot by the agent confirmed at the time by the master and, albeit much later, by the port authority. That was powerful evidence to set against the potentially self serving recollection and reconstruction of unremarkable and detailed facts, albeit assisted by weather records and other contemporaneous documents two years later. In general that evidence was likely to discharge the charterers’ burden of proof unless the owners showed it to be wrong, an exercise which required more than speculation and needed convincing live evidence and/or persuasive contemporaneous documents.” (my emphasis) I wish to say that it is my view all along with regard to the evidential value of a SOF. 29) Now, turning to the facts in this case and in applying the above principles mainly the Second and he Fourth ones under English law, I start off by saying that the SOF signed by the Master of the Vessel and the Port Agent is unquestionably strong evidence. To suggest some of its contents were wrong or missing, the Charterers have to adduce convincing evidence (even if it is not live evidence) and/or persuasive contemporaneous documents. It cannot be a speculation, no matter how persuasive it sounds. 30) After some serious consideration, I am not convinced that the burden has been discharged by the Charterers. Primarily, it has to do with the weather at the loading place that really matters – see Para.26. In the SOF of the other vessel, MV “Y轮”, although raining periods were recorded, as stated in Para.13 above, but it is unclear as to the place of loading of MV “Y轮” was precisely the same spot or of close proximity as the MV “X轮” which was loaded a while later. But in the Owners’ Reply Submissions, they have stated that both vessels were not at the same place of loading or similar loading berth. The Charterers did not retort to this allegation of fact. Therefore, I am left in doubt as to the proximity of the two places of loading and whether or not it could be a case of raining at the berth occupied by MV “Y轮” but the weather remained fine at the would-be berth of MV “X轮”. 31) As to the testimonial of the weather provided by the Shanghai Weather Station adduced by the Charterers to contradict the SOF of the Vessel, I have even greater suspicion or reservation. It is because the testimonial is much more likely to cover a vast area of the port of Shanghai. If the testimonial has specially targeted at the place of loading of the Vessel, it would have much higher persuasive value. But it did not. 32) If the Charterers wanted to contradict the SOF, they should, as indicated in Para.28, adduce much better evidence (live or otherwise). For example, a witness statement by the Port Agent who was said to have signed both SOFs of MV “Y轮” and MV “X轮”, explaining the alleged contradiction. It is especially necessary in light of the SOF of MV “Y轮” and the testimonial provided by the Shanghai Weather Station are defective for reasons I have mentioned earlier. 33) I am conscious of the fact that the alleged raining periods recorded in the SOF of MV “Y轮” were late in the night. Therefore, what was the weather at the would-be place of loading of MV “X轮” could be unnoticed even by the same Port Agent. But I am not going to speculate on probability. I have to decide on the documentary evidence before me and I am not convinced that the burden to contradict the SOF of the Vessel has been discharged by the Charterers. 34) I should also mention that the SOF of the Vessel had in fact recorded one period of rain on 19 May 2007, from 0400 hours to 0800 hours. A much longer raining period was recorded in the SOF of MV “X轮”. On 19 May 2007, the Vessel was still waiting for berth at the anchorage due to congestion. So it was not exactly a case of all possible raining periods were being brushed aside or ignored because the Vessel was at anchorage. 35) To therefore summarise, I have to decide also against the Charterers on this issue. C) Conclusion 36) To conclude, I decide that the Owners’ claim of US$****** must prevail. In view of the demurrage had been agreed to be paid within seven days after completion of discharging at Calcutta and the Vessel at the date of the Award is still discharging at Calcutta, estimated to be completed on 13 June 2007, therefore no interest is awarded in this arbitration. 37) As to costs, the parties are not represented and therefore no recoverable costs should be involved. Neither party (in particular, the Owners who are the winning party) asked for costs in any event. Therefore I award no costs. As to costs of this Award, i.e. my fees, I have spent considerably more time in this case but in order to encourage and support the way this case is handled (which is efficient, cooperative and economical by both parties), I have decided only to charge a lumpsum of HK$******. On top，I have to add a further sum of HK$****** as my standard appointment fee which I did not charge in the outset due to the speedy handling of this case. This total amount of HK$****** should be borne by the Charterers, who are the losing party in this reference.