文/ALEX（航运顾问委员会 委员）
近期碰一案，船按租家航次指示到某港口装货，但却装多货了，就是租家本来要求装MIN/MAX的货，结果装超了。此类事情也涉及到默示索赔权的问题，那首先来了解一下英国普通法下的默示索赔权。
一、“默示索赔权”的基本含义
在期租合同下（TC/TCT），船东如果遵从了租家关于使用船舶合法的航次指示及命令，但船东因遵守租家的航次指示及命令造成了直接损失，船东可以依据英国普通法下赋予他的默示索赔权（implied indemnity），也就是依据NYPE合同第8条，“Thatthe Captain shall prosecute his voyages with the utmost dispatch, and shallrender all customary assistance with ship’s crew and boats. TheCaptain(although appointed by the Owners), shall be under the orders anddirections of the Charterers as regards employment and agency; and Charterersare to load, stow, trim and discharge the cargo at their expenses under thesupervision of the Captain, who is to sign Bills of Lading for cargo aspresented, in conformity with Mate’s receipts.”要求租家赔偿损失。
如果在期租合同里没有具体列明应该赔偿的事项，英国普通法下的默示索赔权的基本原则，可追溯到Bret J法官在Dugdale v Lovering (1875) LR 10 CP196里提到的默示索赔权：
...that when an act hasbeen done by the plaintiff under the express directions of the defendant whichoccasions and injury to the rights of third persons, yet if such an act is notapparently illegal in itself, but is done honestly and bona fide in compliancewith the defendant’s directions, he shall be bound to indemnify the plaintiffagainst the consequences thereof.
及 Mustill J 法官在The Georges C Lemos (3rd party proceedings) [1991] 2 Lloyd’s Rep 107提到的：
Usual form of time charter contract when the charterer requiresto have the vessel at his disposal and to be free to choose voyages and cargoesand negotiates bill of lading terms also, adopts the concept that the ownermust be expected to grant such freedom only if he was entitled to be indemnified against loss and liability resulting from it. In otherwords indemnity serves to compensate the owner against losses arising fromrisks or costs which he has not expressly or implicitly agreed in time charterpartyto bear.
The right to indemnity exists notwithstanding the fact thatthe loss incurred while complying with the order which the time charterer wasentitled to give and the shipowner was bound to obey. Furthermore, the lossmust directly arise from the charterer’s instructions, be one which the owner must not be taken to have accepted andthe owners’ compliance with the order should not break the chain of causationbut it is the essential link in the chain of causation.
以及在最新的2016 EWHC 1506 (Comm)- The 'ANNY PETRAKIS' (subsequentlyrenamed the 'CORAL SEAS')一案中，法官强调补充：
It is well established that as a generalrule a shipowner has an implied right of indemnity against a time charterer inrespect of the consequences of complying with the charterer’s orders as to theemployment of the ship, even if the orders were ones the charterer wascontractually entitled to give. However, it is equally well established thatsuch indemnity does not extend to the usual perils of the voyage in respect ofwhich the owner must be taken to have accepted the risk.
Onethe other hand, where no right to an indemnity arises because the risks wereassumed by the Owners, such as usual and expected marine fouling duringlegitimate deployment of the Vessel.
归纳起来公认的默示索赔权一般原则就是，如果船东遵守了租家关于使用船舶合法的指示命令，即根据合同约定租家本来就有权利发出该等指示命令，对于船东因此遭受的损失，船东对租家享有默示的索赔权；但是另一方面，通常且可以被预见的风险除外，比如去热带水域长时间在港会导致船舶污底等情况就是可以被预见的风险。
此外如在租家指定的装卸港在装卸货过程中发生工损、装载了租家提供的非法货物船舶遭到扣押，船舶遵从租家指示到了不安全的港口或锚地、听从租家指示签发了清洁大副收据及提单等等情况，如果事后给船东造成损失，如合同无特殊规定，这些不可预见的情况及风险则船东可以依此默示索赔权，找租家索赔损失。
以下以船舶实际发生的情况，来简单谈谈默示索赔权及需要注意的地方。
二、船舶实列
a. “HOF”轮某航次，NYPE46格式，TCT租家CARGILL的第二个LADEN 航次，到从阿根廷SAN LORENZO+BAHIA BLANCA装货到越南的CAI MEI+CAILAN卸。因在CAI LAN由于船方和岸方因水密度计测量的水密度不一致，导致货量差异约300吨，水尺数据争议不下，无法开始卸货。船长及时通报租家该情况，租家随即让代理安排检验员，但因为半夜安排不了，检验员第二天早上上船，前后耽误约15小时。随后租家以船方没有水密度计证书导致时间损失，要求停租；我们以租家没有按合同及时给船长发指示，卸货耽误是由于船长听从租家的航次指示造成的需由租家自己承担。
以下是关于停租部分其中之一邮件：
RE: MV HOF/ CARGILL- CPDD XXOCTXXXX-PFHS
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…
3. Alleged off hire dueto water density discrepancy
In present case, the discrepancy was occurred due to water density, Themaster and chief officers had to exercise their best judgment of a responsiblefor the cargo qtty loaded on board, also this were under their employment.
Trust the charterers also aware and understand the Master and chiefofficer their position, if they failed to do so they will be in breach of theiremployment.
In accordance with charterparty clause 11, which provided that:
…That the charterers shall furnish the Captain from time to time with allrequisite instruction and sailing directions…
And clause 8 provided:
…the captain ( although appointed by the Owners), shall be under theorders and directions of the charters as regards employment and agency …
And the charterers’ general instruction for cargo damage or shortage whichread:
…At discharge, in case of slight damage advise us giving approximatequantity and cause. In case of heavy damage notify us immediately and we mayappoint a cargo surveyor. In urgent cases appoint on our behalf a well-knownindependent cargo surveyor and inform us. You will get instructions from us inthe event of cargo shortage. In case of damage or shortage at discharge, alwaysreject any liability as receivers may claim, referring to b/l conditions…
In present case, the Master duly inform the charterers for thisdiscrepancy and risk of shortage, the charterers also appoint the independentcargo surveyor, but not available due to midnight, and surveyor attend on boardon am 30th/Jan.
But the charterers never send their instruction to the master, to sign thereport or not. The master never received instruction from the charterers tosign the report.
Hence that the main reason for this delay was that the charterers failingto furnish the master with their instruction. There is no any fault from theMaster and chief officer.
The charterers should bear this delay and risk due to their failure tosend the master clear instruction.
The charterers contended that there is no cert for hydrometer, which israther groundless. Owners own/manage hundreds of vessels, how could supply noncert hydrometer for their vessels? The hydrometer is not hammer.
Herewith attached cert for charterers’ perusal. Due to some oversight, theprior chief officer not yet hand over clear to present chief officer, and theMaster also oversight for this.
Owners are sorry for any inconvenience and misunderstanding caused.
Even though the charters still no willing to accept the above, Owners wishto draw the charterers’ keen attention to below:
If the charterers may contend that the cargo qtty figures from shore sideis precise and correct, then there will be no any shortage at disport.
Cargo loaded on board at load port and discharged at discharge port to bealmost the same.
The master ever try his best to protect the owners/charterers’ interests,but finally there was still shortage of about 285mts.
The shortage which was just due to the charterers/shipper failing toprovide sufficient cargo for the vessel in load port and ought to issue cleanB/L as per shore weight figures.
Thus, the Charterers were the authors, for the purposes of their businessto issue clean B/L as per shore weight figures, that was the responsibility ofthe Charterers themselves.
The charterers should indemnity Owner’s loss in accordance withcharterparty clause 8 & clause 91.
If there was not any shortage claim occurred finally, the Master’s figurewas correct, then the charterers are not entitled to place the vessel off hire.
Now, Hope above are clear enough and will be acceptable by the Charterers.
In order to finalize this file earlier, the charterers are kindlyrequested to confirm the same and arrange remittance accordingly.
So many thanks for the charterers’ kind consideration and cooperation inadvance.
b. “FMA”轮NYPE 46格式，TCT航次，租家安排船舶到阿根廷的SAN LORENZO装粮食。事先向租家声明如果完货后出现货量差异，租家要求签发清洁提单的话，要求租家提供保函。关于这类保函另文解释过了，如果租家不可靠的话，就算租家肯提供也不应该接受。对于没有信誉的租家来说，保函和一张废纸没什么区别。
同时该航次租家代理拒绝提供允许开始的推荐吃水，仅仅告之允许开航的最大吃水。因涉及到往下走的时候可能会造成搁浅坐底，事先向租家声明如果因为租家或其代理给船长提供了错误的信息，船长按照租家或其代理的信息，装多了造成搁浅，将按合同第8条的默示索赔权索赔损失。
五月份相继有“Nord Hydra”轮、DubaiEnergy轮、“Smew”轮搁浅于巴拉那河流域。日前，又有Zeta轮搁浅于巴拉那河Isla del Medio 附近。
根据布宜诺斯艾利斯当地通代的消息，阿根廷当局对船舶富余水深做出了最新规定Provision SNAV, NA9 No 27/2016，吃水超过10.36m的船舶在巴拉那-拉普拉塔河航行期间应当满足最小富余水深的要求，即在原有0.6m最小富余水深的基础上额外增加富余水深。新规将会在批准后（2016年9月26日批准）第60个自然日，即2016年11月25日生效，并将取代原有规定ProvisionSNAV, NA9 No 028/2007。新规定具体内容为：
巴拉那河水域(Timbues （廷布斯港）-San Martin（圣马汀）-San Lorenzo Ports（圣洛伦索港）)-到Km.57处：
a) 对于吃水10.37m≤DRAFT＜10.49m的船舶，吃水每增加1cm需额外增加3cm的富余水深；即UKC=（0.6+3*(DRAFT-10.37)）m
b) 对于吃水10.50≤DRAFT的船舶，富余水深为10%静水吃水；即UKC=10%DRAFT
巴拉那河水域：从Km.57处到雷卡拉达引航站：
a) 对于吃水10.37m≤DRAFT＜10.67m的船舶，吃水每增加1cm需额外增加1.5cm的富余水深；即UKC=（0.6+1.5*(DRAFT-10.37)）m
b) 对于吃水10.68≤DRAFT的船舶，富余水深为10%静水吃水；即UKC=10%DRAFT
此类搁浅坐底风险也涉及到安全港口问题，可参阅伦敦仲裁判例，London Arbitration (1981) 40 LMLN 1-“MV Mary Lou”一案，该船在SW Pass 那里搁浅，法官判租家违反合同的SAFETY WARRANTY，NOLA不是安全港口。
以下是其中之一邮件：
RE: MV FMA / NIDERA- CPDD XXSEPXXXX-CARGO & BS/L & MAXDRAFT
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Thanks for Charterers’ last, but up till now, Owners neverreceived any draft Bs/L.
If there is discrepancy for cargo qtty loaded between vessel’sdraft survey and shore weight figure, and Charterers or shipper need to issueMate’s Receipts & Bs/L base shore weight figure, Even though there are somewording such as quantity, quality unknown showing on Bs/L ,There is stillpotential risk of claim may arising in discharge port for cargo shortage.
A pre-loading survey has been carried out at loading port on theintended cargo of grain, and the Master and chief officer had to exercise theirbest judgment of a responsible for the cargo qtty loaded. The Master have toclause the Mate’s Receipt(s) of the cargo qtty discrepancy if occurred finally.
On the other hand, It’s common ground that the Master, when he wasasked for signed Mate’s receipt(s), was under a duty to his employer, the shipOwners, to record the apparent condition accurately, So that if he failed to doso he was in breach of that term of his employment.
This is commercial way to protect both in advance, OtherwiseCharterers may contend that why Owners not require them to provide LOI for thisdiscrepancy in advance after clean Bs/L were signed/released, And Charterersmay refuse to provide by then.
Hope Charterers could fully understand both position, and theywill be happy to provide their LOI for this discrepancies; but if no anydiscrepancy, needless to say that this will be closed.
Thanks for Charterers’ kind consideration in advance.
F’more, In respect of max recommendable/allowed sailing draft,Charterers or their agent refuse to disclose any recommendable draft despite ofMaster’s numerous request. Owners wish to remind that the structure ofresponsibility under at time charter is that matters of seaworthiness andnavigation aside, the Charterers are responsible for and obligated to indemnifythe shipowners for loss caused by their employment or their/and or theirservant’s instructions.
An indemnity arising out of clause 8 for the Owners to beindemnified against the consequences of complying with Charterers’ or theirservant’s orders for employment of the vessels, e.g consequences of thecarriage of a particular cargo with exceeded max recommendable sailing draft.
As Owners/Master concerned that the prospective unsafety of downriverafter departure from San Lorenzo, was said to arise from the circumstance thatthe vessel might be grounded on account of strong wind or bad weather,especially of vessel with too much sailing draft. There was a real, as opposedto a fanciful, risk, that the vessel may be grounded somewhere when shedownriver if she loaded upto max allowed sailing draft, not only loaded uptomax recommendable sailing draft.
The Owners agree to let and the Charterers agree to hire thevessel from the time of delivery time charter trip via safe berth, safe port,safe anchorage, always AFLOAT except NAABSA in Argentina in grain berth only.
Thus if the vessel may be grounded unfortunately, which will causeCharterers breach this warranty. The Charterers will be hold whole responsiblefor any damages/costs/expenses whatsoever which result from their breach.
Owners are lookingforward to receiving Charterers’ further comments for above.
c. “FMA”轮TCT航次，租家安排船舶到阿根廷的SAN LORENZO装粮食，租家要求往3舱6舱装11,000吨货并要求船东承担责任。以合同第8条，租家负责装卸货为由，声明船东不负责，由租家自己承担。
以下是其中之一邮件：
RE: MV FMA / NIDERA- CPDD XXSEPXXXX-EXACT CARGO IN HOLDS NO.3&NO.6
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In respect of Charterers/Shipper’s requirement to load exact cargoquantity 11,000 mts in holds No.3 & No.6, Owners/Master have no objectionfor Charterers’ this arrangement.
But meanwhile, For avoid any misunderstanding, Owners herebyemphasize that Owners/Master will not hold any responsible for if there is notexact quantity of 11,000 mts loaded into C/H No.3 and No.6, more or less is beyond Master and his crews’control.
Ref to Master’s pre-stowage plan, Vessel is possible to take thosecargo sub to Charterers/shipper to provide exact cargo quantity of 11,000mtsfor vessel.
On the other hand, Pursuant to charterparty clause 8, Which readas following:
…and Charterers to load, stow, and trim and discharge the cargoat their expense…
Thus, the Charterers were the authors, for the purposes of loadingexact quantity 11,000mts into C/H No.3& No.6, that was the responsibilityof the Charterers themselves.
Thanks for Charterers’ attention for above.
碰到类似的情况，比如租家要求装MIN/MAX 29,000吨的情况。船东及船长需要特别注意，做好以下几个方面的工作：
先声明装卸货是租家的责任风险；租家得按船长提供的PRE-STOWAGE PLAN提供相应的货物，船东及船方不负责装多或者装少。
指示船长做好水尺计算，尤其是快完货的时候；比如装到28,000吨了，此刻水尺一定要计算准确，清楚明确地要求租家、代理或码头方再提供1,000吨货。
如果完货了，做水尺后经过仔细计算发现总共装了29,100吨，则立刻要求码头负责把多出的货卸出去并及时通报租家及代理。该要求必须以书面的形式发出并尽量得到租家、代理或码头方的确认。
如果租家、代理或码头方以没有卸货设备拒绝把多出的货卸回去，则一定要收到租家或码头方的书面确认。
如果租家或代理以影响开航为由，要求正常签发大副收据及提单，要不就威胁说停租什么的，则一定要取得租家书面确认，并声明保留相应的权利。
花了这么大力气去做这些工作做什么呢?就是最大努力把责任转嫁到租家身上，船东船长做这些都是遵从了租家的指示；如果出了问题，则可以依据英国法下赋予的默示索赔权找租家索赔对应的损失。
碰到实例，因船长没注意租家合同要求，装超了合同上限几吨，签发了大副收据，代理随后签发了对应的提单。因矿价下跌太多，最后租家以提单数超过合同规定的上限货量，信用证结不了汇，整船货不要了。船东收不到运费，只能自己想办法去把货卖了减少损失。
d. “HHA”轮89航次，TC租家安排到鲅鱼圈港卸货，期间遭遇工损，前后耽误约5天时间；租家确认按合同44条承担相应的时间及修理费用，但拒绝承担因委派船级社人员的费用。在随后一个航次也发生工损，威胁如果租家还不确认费用将采取法律行动，最终租家确认承担委派船级社人员的费用。
关于此类工损影响到船舶适航性，需要船级社人员检验的情况，最好在合同关于装卸工损坏的条款，明确加入如下类似措辞，避免不必要的争议。
A.In case of any damage for which Charterers are responsible affecting thevessel's seaworthiness and/or the safety of the crew and/or affecting thetrading capabilities of the vessel, the Charterers shall immediately arrange orrequest Owners to arrange on their behalf for repair of such damage(s) at theirexpense and the vessel to remain on-hire until such repairs are completed andif required passed by the vessel's classification society.
B.Any time for repairing outstanding stevedore damage(s) for which Charterers areresponsible and not described under point (A) which cannot be completed duringOwners' occasional repair work or dry docking time shall be for Charterers'account as well as (if applicable) all costs for the Vessel's classificationsociety surveyor.
或者
Costs of attendance byClass to survey damage/attend repairs/certify vessel’s seaworthiness afterrepair of and relating to stevedore damages for which Charterers areresponsible whether such attendances are compulsory or not are deemed as costsof repair of such damages and shall be always for Charterers’ account.
以下是其中之一邮件：
RE: HHA V89 / BHPB-STEVEDORE DAMAGE AT BAYUQUAN-TOP URGENT
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Owners would thanks for charterers’ positive action torectify/repaire stevedore damage at their time and cost to avoid any problemfor seaworthiness.
But as Owners clarify earlier, such stevedore damage affect thevessel’s seaworthiness, Owners have to inform this vessel’s Class NK.
Assume the charterers also well aware that shipowners shouldcomply with their class concerned regulations strictly.
Hence that Owners have to arrange NK class surveyor attend onboard, such repairment should be to surveyor their satisfactory beforedeparture.
In respect of the cost which result from this damage, Charterersreply on clause 44, they contended that already arranged repairment and then nowilling to bear the other cost for arranging Class surveyor and Owners’ technicalsuperintendent.
As per governing this charterparty clause 8, there is an impliedindemnity arise from the Master under the orders and directions of thecharterers as regards their employment. In other words, The Owners are entitledto be indemnified against loss and liability resulting from the Master followcharterers’ instruction to discharge charterers’ cargo at Bayuquan. Thecharterers should compensate the Owners against losses arising from risks orcosts which has not expressly or implicitly agreed in time charterparty tobear; This damage was arised from the charterers’ employment directly, thus thecharterers should indemnify Owners’ loss, which is common sense under theEnglish common law.
Hope above are clear and will be acceptable by the Charterers.
Charterers’ positive confirmation for the cost total usd3,626which will be highly appreciated.
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