碇泊期間과 滯船料의 算定基準에 관한 연구

Abstract

The purpose of this paper is to describe the legal problems on the standard of deciding the calculation of laytime and demurrage under the voyage charter.

In the Charterparty Laytime Definitions 1980, Laytime means the period of time agreed between the parties during which the owner will make and keep the ship available for loading/discharging without payment to the freight.

If loading or discharging is not completed within the time allowed, then the shipowner is entitled to be compensated for the extra time taken. In the Charterparty Laytime Definitions 1980, demurrage means the money payable to the owner for delay for which the owner is not responsible in loading and/or discharging after the laytime has expired. The difference between demurrage and damages of detention, which is distinguished in maritime affairs in the United Kingdom. In this paper, both concepts are considered as a demurrage comprehensively. If loading or discharging is completed within the laytime allowed, then if so provided for in the charter, despatch will be usually payable in respect of all time saved. Where despatch money is payable, it almost always is at half the demurrage rate.

To commence laytime, normally three conditions must be satisfied before the charterer can be required to start loading or discharging. First, the ship must have arrived at the destination specified in the charter. Voyage charters are divided into berth, dock and port charters. Berth and dock charters on the whole create few problems, since it is comparatively easy to say whether a vessel has reached its berth or dock. The port charter, however, is more difficult. Until the decision of the Court of Appeal in Leonis Steamship Co v. Rank, the law was in some confusion, but in that case the court held that in a port charter, the specified destination was reached when the vessel arrived in the commercial area of the port and not as some of the earlier cases had suggested when the vessel actually arrived in berth. Later, difficulties arose in deciding what the Court of Appeal had meant and what factors had to be taken into account before it could be decided whether the usual waiting place was within the commercial area of the port. These were resolved by the House of Lords in The Johanna Oldendorff, where Lord Reid laid down.

"Before a ship can be said to have arrived at a port she must, if she cannot proceed immediately to a berth, have reached a position within the port where she is at the immediate and effective disposition of the charterer."

The presumption is that if the vessel concerned is at a place where waiting ships of that type usually lie and this is within the port, then she is at the 'immediate and effective disposition of the charterer'.

Second, the ship must be ready and in a fit condition to receive or discharge her cargo. It is decided on the basis of commercial sense whether the ship is ready in the aspects. Third, where required, notice of her readiness must have been given to the charterer. In the absence of an express provision to the contrary, however, this last requirement only applies at the first load port under English Common law. Where these conditions have been met the vessel is an Arrived ship and subject to the expiry of any period prescribed in the charter laytime begins to run.

It is, however, open to the parties to advance the time when laytime commences or to provide in some other way for time to count earlier than would be the case under the normal rules. In the case of a berth charter, the parties may agree that time should count "whether in berth or not", thus advancing commencement of time when the delay is due to congestion. Similarly, the parties may wish to allow time to start as soon as the vessel ceases to be underway, even if still outside the port limits.

Once laytime commences, it will not be interrupted unless otherwise agreed. But it is possible that actual loading or discharging operation would be interrupted due to owners' fault or the third's action which is beyond the control of the contractual parties. If charterers commit a fault and cargo operation is interrupted, then laytime is continued on behalf of owners and contrarily owners commit a fault and cargo operation is interrupted, then laytime is interrupted on behalf of charterers. A difficult problem to solve is that the interruption of cargo operation is caused by the action of the third party or force majeure. To settle this kind of problem, some specific clauses have been usually incorporated into the relevant charterparty.

Once commenced, laytime will continue to run until loading(or discharging) has been completed, or until it expires, if these operations are not finished earlier. The laytime allowed may be a single period covering both loading and discharging, or the charter may provide for separate calculations for each. In the event of the latter, provision may be made for the transfer of unused laytime from loading to the time allowed for discharge, or vice versa. The different methods by which this can be achieved are referred to as averaging and reversing.

A charter may either provide a specific duration for demurrage or more commonly just provide for a demurrage rate, leaving the period unspecified.

A phrase much used with regard to demurrage is "once on demurrage, always on demurrage". What this is intended to signify is that demurrage is payable on a running day basis, and that laytime exceptions do not apply once demurrage commences. Liability for demurrage rests with the charterer and even if the terms of the charter are effectively incorporated into the bills of lading issued under the charter. But it is contravercial about the relationship among receivers and holders of bill of lading when they are more than one person. However, one way in which the receiver may be made liable for demurrage, particularly demurrage at the discharging port, is by the grant of an express lien on the cargo in favour of the shipowner. Lien has two kinds - contractual lien which admitted under special contract between two parties and legal lien which is prescribed by the law for the auction.

Because there are just a few relevant articles for this field in Korea, it is insufficient to settle a dispute on laytime and demurrage. Considering the shipping power of Korea in the world, it is necessary to legislate more detailed articles