19th ANNUAL INTERNATIONAL MARITIME LAW ARBITRATION .19th annual international maritime law arbitration

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  • 19th ANNUAL INTERNATIONAL MARITIME LAW ARBITRATION MOOT 2018

    IN THE MATTER BEFORE LONDON MARITIME ARBITRATORS ASSOCIATION

    MEMORANDUM FOR APPLICANT

    APPLICANT

    Cerulean Beans and Aromas Ltd.

    945 Moccasin Road

    Cerulean 9659

    V

    RESPONDENT

    Dynamic Shipping LLC

    23 Fuchsia Crescent

    Cerulean 1268

    Team No. 26

    COUNSEL

    Aditya Andrea Sunny Vasilia

  • Team 26 Memorandum for the Applicant

    2

    TABLE OF CONTENTS

    ABBREVIATIONS

    A. LIST OF AUTHORITIES

    B. ARTICLES AND BOOKS

    C. CASE LAW

    D. LEGISLATION

    E. OTHER

    STATEMENT OF FACTS

    THE CHARTERPARTY CHART

    PART I: ARGUMENTS ON GOVERNING LAW

    A. LAWS OF NEW SOUTH WALES, AUSTRALIA GOVERNS THE CHARTER PARTY

    B. HAGUE-VISBY RULES APPLICABLE

    C. LAWS OF LMAA IS THE APPLICABLE LEX ARBITRI

    PART II: ARGUMENTS ON JURISDICTION

    A. THE ARBITRAL TRIBUNAL HAS JURISDICTION

    1. SCOPE OF REFERENCE

    2. THE CLAIMS ARE NOT TECHNICAL MATTERS

    3. CHOICE OF ROUTE UNDER EMPLOYMENT OF VESSEL

    B. CLAIM IS NOT TIME BARRED

    PART III: ARGUMENTS ON MERITS

    A. DEVIATION

    1. DUTY NOT TO DEVIATE

    (i) DUTY NOT DEVIATE: IMPLIED TERM

    (ii) DEVIATION WAS UNREASONABLE AND UNJUSTIFIED

    (iii) DEVIATION NOT FALLING UNDER COMMON LAW OR CHARTER PARTY

    EXCEPTIONS

    (iv) DEVIATION: DOCTRINE OF FUNDAMENTAL BREACH

    B. FORCE MAJEURE

  • Team 26 Memorandum for the Applicant

    3

    1. OCCURRENCE OF SOLAR FLARES IS NOT AN ‘UNFORESEEN’ EVENT

    2. ABSENCE OF DUE DILIGENCE ON THE PART OF THE RESPONDENT

    3. DELAY CAUSED BY DEVIATION AND NOT BY THE STORM

    C. SEAWORTHINESS OF THE VESSEL

    1. RESPONDENT HAD FAILED TO PROVIDE THE HARDCOPY OF MAP FOR THE

    VOYAGE

    2. RESPONDENT HAD BREACHED THE CONTRACTUAL DUTY OF

    SEAWORTHINESS

    3. RESPONDENT HAD BREACHED THE STATUTORY OBLIGATION OF

    SEAWORTHINESS

    4. FAILURE OF EQUIPMENT THAT CONSTITUTES SEAWORTHINESS

    5. DAMAGE OF THE CARGO IS CAUSED DUE TO THE UNSEAWORTHINESS OF THE

    VESSEL

    D. MARITIME LIEN

    1. FAILURE OF RETURN OF PAYMENT MADE BY THE APPLICANT

    2. ASSIGNMENT AND TRANSFER OF MARITIME LIEN RIGHT FROM THE CREW TO

    THE APPLICANT

    E. DELIVERY

    1. BARCODE PASS AND ELECTRONIC SYSTEM WAS NEVER AGREED BY THE

    APPLICANT

    2. BARCODE PASS DOES NOT CONSTITUTE DELIVERY

    F. DEMURRAGE DID NOT ACCRUE

    1. DEVIATION WAS NOT BASED ON FORCE MAJEURE

    2. DELAY IS ON ACCOUNT OF RESPONDENT UNDER CLAUSE 15 (B)

    G. DAMAGES

    1. THE APPLICANT IS ENTITLED TO DAMAGES

    (i) DAMAGES DUE TO THE BREACH OF THE CHARTER PARTY TERMS: LATE

    DELIVERY AND DAMAGED CARGO

  • Team 26 Memorandum for the Applicant

    4

    (ii) DAMAGES FOR THIRD PARTY CLAIMS: REPLACEMENT COFFEE PAYMENT

    AND SETTLEMENT PAYMENT

    (iii) DAMAGES DUE TO LOSS OF PROFITS (ISSUE OF FORESEEABILITY)

    (iv) LIMITATION OF LIABILITY

    2. REPLY TO COUNTER CLAIM

    (i) THE APPLICANT IS NOT LIABLE FOR THE DAMAGE TO THE HULL

    (ii) THE APPLICANT IS NOT LIABLE FOR THE AGENCY FEES AT THE PORT OF

    SPECTRE

    (iii) THE APPLICANT IS NOT LIABLE FOR THE ELECTRONIC ACCESS SYSTEM

    (‘THE BARCODE PASS’) AT THE DISCHARGE PORT

    PART IV: PRAYERS FOR RELIEF

  • Team 26 Memorandum for the Applicant

    5

    LIST OF ABBREVIATIONS

    Barcode Pass The barcode access document given by Respondent to Applicant as

    authority pass to take delivery of goods from Discharge port

    warehouse through electronic access system at Discharge Port.

    CANA 2012 Commonwealth of Australia Navigation Act 2012

    Cargo 70,000 kilograms (kgs) of coffee beans shipped in 4 containers.

    Charterparty Voyage charterparty dated 22 July 2017 entered between the

    Applicant and the Respondent for carriage of Cargo from Cerulean

    to Dillamond by the agreed date.

    Charterer Cerulean Beans and Aromas Ltd as Charterers who entered in the

    Charterparty with the Respondent for shipping the Cargo from the

    port of Cerulean to the port of Dillamond.

    COGSA 1991 Carriage of Goods by Sea Act 1991, Act No. 160 of 1991 as

    amended

    Discharge Port Port of Dillamond under clause 1 Box 9 the Charterparty

    HVR Hague Visby Rules

    LMAA London Maritime Arbitrators Association

    Loading Port Port of Cerulean under clause 1 Box 5 of the Charterparty

    NSWA New South Wales, Australia

    Parties Applicant and Respondent collectively referred as Parties.

    Respondent Dynamic Shipping LCC as the Shipowner who carried the Cargo

    from Discharge Port to Loading Port.

    SOLAS The International Convention for the Safety of Life at Sea

    Tribunal Arbitral Tribunal constituted under clause 27 of the Charterparty.

    Voyage Journey of the vessel from Cerulean to Dillamond

    Vessel The Madam Dragonfly

    YAR 2004 The York-Antwerp Rules 2004

  • Team 26 Memorandum for the Applicant

    6

    LIST OF AUTHORITIES

    A. Case Law

    Alfred C. Toepfer Schiffahrtsgesellschaft G.M.B.H. V. Tossa Marine Co. Ltd. (The Derby) [1985] 2

    Lloyd’s Rep. 325.

    Danciger v. Cooley, 248 U.S. 319, 327 (1919)

    DivFiona Trust & Holding Corporation & ors v. Yuri Privalov & ors., [2007] EWCA

    Encyclopaedia Britannica v Hong Kong Producer [1969] 2 Lloyd’s Rep. 536

    Foscolo, Mango v Stag Line (1932) 41 LILR 165

    Glencore International AG v MSC Mediterranean Shipping Co SA [2017] EWCA Civ 365

    Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd [2012] EWCA Civ 265

    Hain Steamship Company Ltd v Tate & Lyle Ltd [1936] 2 All ER 597.

    Hillcrest Homes Ltd v Beresford & Curbishley Ltd, [2014] EWHC 280

    Jones v Flying Clipper (1954) 116 Fed. Supp 386

    Kopitoff v Wilson (1876) 1 Q.B.D. 377

    Kyokuyo Co Ltd v AP Moller-Maersk A/S (t/a Maersk Line) [2017] EWHC 654 (Comm)

    Papera Traders Co. Limited & Others v Hyundai Merchant Marine Co. Limited, The Keihin Co.

    Limited [2002] 1 Lloyd’s Rep. 719.

    Procter & Gamble Co. v Svenska Cellulosa Aktiebolaget SCA, [2012] EWCA Civ 1413

    Rainy Sky SA v Kookmin Bank [2011] UKSC 50

    Reardon Smith Line Ltd. v Black Sea and Baltic General Insurance Co Ltd. [1939] AC 562 at p.584

    Reardon Smith Line v Black Sea and Baltic General Insurance, [1939] AC 562.

    Sadler v Dixon (1841) 151 E.R.1303

  • Team 26 Memorandum for the Applicant

    7

    Scaramanga v. Stamp (1880) 5 C.P.D. 295,

    Stanton v Richardson (1874) L.R. 9 C.P 390; (1875) 45 L.J.Q.B. 78 HL.

    Suisse Atlantique Societe d'Armement SA v NV Rotterdamsche Kolen Centrale [1967] 1 A.C. 361

    The Marine Star [1996] C.L.C. 1510

    The Petone [1917] P 198

    Whistler International Limited v Kawasaki Kisen Kaisha Limited, [2001] 1 Lloyd's Rep. 147

    Whistler International Ltd V Kawasaki Kisen Kaisha Ltd Lloyd's Law Reports [2001] 1 Lloyd's Rep.

    147

    Wood v Capita Insurance Services Ltd [2017] UKSC 24

    B. Legislation

    AAA International Rules (American Arbitration Association 1997)

    Arbitration Act 1996

    Carriage of Goods by Sea Act 1992

    Commonwealth of Australia Navigation Act 2012

    Hague-Visby Rules

    ICSID Convention (The International Center for Settlement of Investment Disputes 1965)

    LCIA Rules (London Court of International Arbitration 1998)

    The ICC Rules of Arbitration (International Chamber of Commerce 1998)

    The International Convention for the Safety of Life at Sea

    The York-Antwerp Rules 2004

    UNCITRAL Rules (United Nations Commission on International Trade Law 1976)

  • Team 26 Memorandum for the Applicant

    8

    C. Other

    LMAA (London Maritime Arbitrators Association)

    D. Articles and Books

    Anchorages- Jurisdictional responsibility for anchorages in Queensland, Department of Transport and

    Main Road

    Dicey and Morris, Conflict of Laws, 11th edition, p.1163

    J. F. Wilson, Carriage of Goods by Sea, 7th Ed. p. 16. English courts have restricted the concept of

    deviation to geographic deviation.

    Scrutton on Charterparties and Bills of Lading, 22nd Edition

    Yvonne Baatz’s Maritime law, 2nd Edition, Sweet & Maxwell, 2011

  • Team 26 Memorandum for the Applicant

    9

    STATEMENT OF FACTS

    1. On 22 July 2017, the Cerulean Beans and Aromas Ltd (“The Applicant”) entered into a voyage

    charterparty with Dynamic Shipping LLC (“The Respondent”) for the carriage of 70.000 kilograms

    (kgs) of coffee beans (“The Cargo”), packed in 4 containers (each containing 250 bags), from Cerulean

    to Dillamond (the Charterparty). As per the Charterparty, the Madam Dragonfly (The Vessel) was to

    sail from Cerulean on 24 July 2017 and to deliver the Cargo at Dillamond on 28 July 2017, no later

    than 19:00.1

    2. The freight rate was agreed at USD 500,0002 and the demurrage rate was agreed at USD 20,000

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