租约条款之警告
2011.10.01
英国 NORTH OF ENGLAND P & I CLUB 在本星期官方网站之 “LOSS-PREVENTION” SIGNALS 栏目上发表一篇解释如何避免”CUSTOMARY SHORTAGE-习俗性”货物短缺之赔偿. 在经济放缓之下船东经常会接到寄货人的索赔而头痛. 一般来说干散货在运输途中因它的性质和装卸方式加上装货后和卸货前所做的 DRAFT SURVEY等等都会导致轻微的损失. 因此如船东能在签署货运合约时在合约上包括一条对 “CUSTOMARY SHORTAGE” OF CARGO 概不负责的字句去避免寄货人之索赔.
“Customary shortage” warning
The combined effects of a global economic slowdown and rising commodity prices means shipowners are increasingly at risk of claims being made against them for bulk cargo shortages, even when they are within what is sometimes referred to as a ‘customary shortage’ warns the North of England P&I club.
The warning comes in the latest issue of the club’s loss-prevention newsletter ‘Signals’, published this week.
“Cargo 'loss' due to physical changes such as evaporation can occur during a voyage, added to which are measurement errors at load and discharge ports,” says the club’s head of loss prevention Tony Baker. “Yet with reduced profit margins and larger and more expensive shipments, shipowners need to ensure mate’s receipts and bills of lading are properly claused – and have very good explanations and evidence for any differences between load and discharge figures – to avoid costly claims.” According to North, the traditional notion of a “customary shortage” first arose when cargo underwriters applied a depreciation on their goods-in-transit policies and, though the figure was not determined scientifically, it was used because it was convenient.
Customs authorities around the world compounded the misconception by allowing other differences between received and manifested quantities before imposing penalties. “In reality, both US and English courts reject the idea of a customary allowance but accept there are a multitude of reasons why the quantity of bulk cargoes – both wet and dry – may be different,” says Baker. “It is generally possible to defend small shortages due to physical changes in the cargo during the voyage, but this requires accurate records such as ventilation, temperatures and bilge water removal during voyages as well as a detailed understanding of what is accepted local industry practice.” North warns that measurement differences are harder to defend. “While the law and Hague Visby Rules recognise the problem and afford the carrier some leeway – for example by upholding the carrier’s right in some jurisdiction to rely on expressions such as 'weight unknown', or by placing the ultimate responsibility for bill of lading figures on the shipper – it is vital that shipowners ensure load-port draught and ullage surveys are as accurate as possible,’ says Baker. ‘However, as many mariners will note, determining the quantity of bulk cargo loaded on board is more of an art than a science.”
