CLAIMANT’S MEMORANDA OF ARGUMENT - Murdoch University · part seven: there was no negligence by the master or crew page 31 a. the construction of the negligence exceptions does

Claimant’s Memoranda Of Argument (RMIT University)

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16th International Maritime Law Arbitration Moot, 2015

CLAIMANT’S MEMORANDA OF ARGUMENT

Team 18

IN THE LONDON ARBITRATION TRIBUNAL

BETWEEN:

WESTERN TANKERS INCORPORATED

(Claimants)

-AND-

LESS DEPENDABLE TRADERS PROPRIETARY LIMITED

(Respondents)

Team 18

| Elise Steegstra | Paul Melican | Olivia Dean | Naomi Keessen | Gavin van Rensburg |


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-TABLE OF CONTENTS-

ABBREVIATIONS Page 5

AUTHORITIES Page 6

STATEMENT OF FACTS Page 16

ARGUMENTS Page 17

PART ONE: JURISDICTION Page 17

A. THE EXPRESS AND VALID ARBITRATION AGREEMENT FOUND IN THE

CHARTERPARTY SPECIFIES THE SEAT OF LONDON

B. THIS TRIBUNAL HAS THE POWER TO RULE ON ITS OWN JURISDICTION

C. KNOWN APPROACHES OF ENGLISH COURTS WHEN DECIDING THESE

MATTERS

D. THE CORRECT COMMENCEMENT OF THIS MATTER UNDER THE ARBITRATION

ACT 1996.

PART TWO: BREACH OF CONTRACT Page 19

A. THE CONTRACT OF CARRIAGE

B. CONTRACTUAL TERMS AND THE INCORPORATION OF TERMS

C. THE FAILURE OF THE RESPONDENT TO DELIVER BUNKERS

D. THE FAILURE OF THE RESPONDENT TO MAKE PAYMENT ON TIME

E. ABROGATION OF THE CARRIER’S INCORPORATED DUTY OF CARE

PART THREE: REPUDIATION OF CONTRACT Page 23

PART FOUR: FRUSTRATION OF CONTRACT Page 24

A. THE SUPERVENING AND UNFORESEEN CIRCUMSTANCES

B. THE LACK OF DEFAULT ON THEIR SIDE OF THE PARTY


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C. THE CONTRACTUAL OBLIGATION INCAPABLE OF BEING PERFORMED

BECAUSE IN SUCH A CIRCUMSTANCE PERFORMANCE WOULD BE RADICALLY

DIFFERENT FROM THAT, WHICH WAS UNDERTAKEN BY THE CONTRACT

D. ONCE APPLIED THE CONTRACT WOULD CEASE TO BIND EITHER PARTY

E. THERE ARE NO EXCEPTIONS FOR TIME CHARTERPARTIES

F. INVOLUNTARY BAILMENT

PART FIVE: TORT OF FRAUD Page 28

A. THERE IS PROOF THAT A FRAUD WAS COMMITTED

B. THE FALSE REPRESENTATION PROMISING BUNKERING WAS MADE

KNOWINGLY

C. THE FALSE REPRESENTATION PROMISING BUNKERING WAS MADE

RECKLESSLY AND CARELESSLY

D. THERE WAS RELIANCE ON THIS PROMISE OF BUNKERING

E. DAMAGE OCCURRED BECAUSE OF THIS MISREPRESENTATION.

PART SIX: NEGLIGENT MISSTATEMENT Page 30

A. THERE IS PROOF THAT THE RESPONDENTS MADE A NEGLIGENT

MISSTATEMENT

PART SEVEN: THERE WAS NO NEGLIGENCE BY THE MASTER OR CREW Page 31

A. THE CONSTRUCTION OF THE NEGLIGENCE EXCEPTIONS DOES NOT ALLOW A

CASE TO BE RAISED

B. THE MASTER DEVIATED UNDER AGENCY AUTHORISATION AND AS A RESULT

THERE IS NO CLAIM TO ANSWER FOR MISDELIVERY OF CARGO

C. THERE WAS NO NEGLIGENCE IN THE NAVIGATION OR MANAGEMENT OF THE

SHIP


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D. EXCEPTIONS LAST FOR THE DURATION OF THE POSSESSION OF THE GOODS IN

QUESTION AND

E. THE MASTER AND CREW ARE NOT LIABLE FOR ACTS OF PIRACY ON THE

HIGH SEAS

PART EIGHT: TORT OF CONVERSION WAS NOT COMMITTED Page 36

A. A LIEN HAS BEEN CREATED THROUGH THE CHARTERPARTY;

B. THE CLAIMANT HAS NOT UNDERTAKEN SUFFICIENT INTENTIONAL CONDUCT

TO HAVE CONVERTED THE GOODS IN QUESTION;

C. GOODS LOST OR DESTROYED CANNOT BE SUBJECT TO AN ACT OF

CONVERSION

PART NINE: VESSEL WAS SEAWORTHY Page 38

1. ALL OF THE OBLIGATIONS OF THE OWNER WERE MET

2. THE CONDITION ON REDELIVERY IS A MATTER FOR THE RESPONDENT

PART TEN: QUANTIFICATION OF DAMAGES Page 40

A. DAMAGES UNDER THE LAW OF CONTRACT

B. DAMAGES UNDER THE LAW OF TORT

C. INTEREST AS PER THE ARBITRATION ACT 1996

D. CONSIDERATION OF LIMITATION OF LIABILITY.

PRAYER FOR RELIEF Page 43


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-ABBREVIATIONS-

B/L; BoL Bill of Lading Bunker Fuel used to operate ships Bunkering Action of supplying a ship with bunkers (fuel). Note stemming is placing

bunker into ship BMP4 Best Management Practices for Protection against Somalia Based Piracy,

Version 4 – August 2011 CHOPT Charterers options CP Charter party ENS Electronic navigation systems Ex pipe Used to describe a mode of delivery for marine fuels or bunkers to ships IFO Intermediate fuel oil Laycan Lay day cancelling date MEP Most Economic Power MT Metric tonnes NOP Normal operating power OPL Off port limitations PDPR Per day, pro rata Redel Redelivery ST4 Shelltime 4 Charter party contract STS Ship to ship transfer TCT Time charter trip VO Voyage orders WAF West Africa


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-AUTHORITIES-

CASES

A

AB v South West Water Services Ltd [1993] Q.B. 507

Addis v Gramophone Co. Ltd [1909] A.C. 488

‘The Agios Lazaros’ [1976] 2 Lloyd’s Rep 47

Akai Pty Ltd v People’s Insurance Company Ltd [1999] I.L.Rd. 24

Alderslade v Hendon Laundry [1945] K.B. 189

Anastassia v Ungle-Export (1934) 49 L1.L.Rep. 1

Angus v Clifford [1981] 2 Ch 449 at 471

Annen v Woodman (1810) 3 Taunt. 299

Applyby v Myers (1867) L.R. C.P. 651

Armstrong v Strain [1951] 1 TLR 856 at 871

Assicurazione v Bessie Morris [1892] 2 Q.B. 652

Athens Maritime Enterprises Corporation v Hellenic Mutual War Risks Association (Bermuda) Ltd [1982] 2 Lloyd's Rep. 483 Australasian SN Company v Morse (1871-1873) LR 4 PC 222 B

Balihache J in Admiral Shipping Co v Weidner Hopkins [1916] 1 K.B.429.

Bank Line v Capel & Co [1919] A.C. 435

Bank of Australasia v Clanline [1916] 1 KB 39 55

Banques Bruxelles Lambert S.A. v Eagles Star Insurance Co. Ltd [1995] Q.B. 375

Black Sea & Danube Shipping Co v Goeland Transport & Trading Co. (1942) L.I.L.R. 192

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266


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Bradford Third Benefit BS v Borders [1941] 2 All ER 205

‘The Brimnes’ [1975] QB 929, CA

Briscoe v Powell (1905) 22 T.L.R. 128

British Crane Hire Corp Ltd v Ipswich Plant Hire Ltd (1975) QB 303

British Transport Commission v Gourley [1956] A.C. 185 at p. 187 British Westinghouse Electric v Underground Electric Railways Co. of London Ltd [1912] A.C. 673 Byrne v Australian Airlines Ltd (1995) 185 CLR 411 B.T.P. Tiozafr Ltd v Pioneer Shipping Ltd and Armada Marine S.A. (The Nema) [1982] A.C. 72 Burgess v Wickham (1863) 3 B & S. 669

|C

Calico Printers’ Association v Barclays Banks (1931) 36 Com.Cas. 197

Canada Steamship Lines v The King [1952] A.C. 192 (p.C.)

Canadian Pacific (Bermuda) Ltd v Logan Martime Overseas (The Fort Kipp) [1885] 2 Lloyd’s Rep. 168 Caparo v Dickman [1990] 2 AC 605 ‘The Carron Park’ (1890) 15 P.D. 203 Chapelton v Barry Urban District Council [1940] 1KB 532 ‘The Captain George K’ [1970] 2 Lloyd’s Rep. 21 Cargo ex Argos, Gaudet v Brown (1872) LR 5 PC 134 Carras v. London and Scottish Assurance [1936] 1 K.B. 291

Chartered Mercantile Bank of India v Netherlands India S.N. Co (1883) Chellew Navigation Co v Applequist (1933) 38 Com.Cas 218 China Pacific SA v Food Corporation of India (‘The Winson’) [1982] AC 939 Christopher Brown Ltd v Genossenchaft Oestereichischer Waldbestizer Holwirtscafsbetriebe Registrierte GmbH [1954] i QB 7 City of Baroda (Owners) v Hall Line (1926) 42 T.L.R. 717


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City of Lincoln v Smith [1904] Cosmos Bulk Transport Inc v China National Foreign Trade [1978] 1 Lloyd's Rep 53 C.P.R. v Board of Trade (1925) 22 L.I.L.R. 1 (H.L.) Czarnikow v Koufos [1969] 1 A.C. 350 D

Dahl v Nelson, Donkin and Company (1881) 6 App Cas 38

Daniels v Harris (1874() L.R. 10 C.P. 1

‘The David Agmashenebli' [2003] 1 Lloyds Rep 92

Davis Construction Ltd v Foreham U.D.C. [1956] A.C. 14

De Clermont v General Steam Navigation Co. (1891) 7 T.L.R. 187

Derry v Peek (1989) 14 App.Cas. 337

The 'Dolphina' [2011] SGHC 273

E

‘The Eastern City’ [1958] 2 Lloyd’s Rep 127 E.Clemens Horst Co v Norfolk etc.& Co. (1906) 11 Comm.Cas. 141 Eddington v Fitzmaurice (18885) 29 ChD 459 Embiricos v Reid [1914] 3 K.B. 45 Empresa Cubana Importada de Alimentos “Alimport” v Iasmos Shipping Co. S.A. (The Good Friend) [1984] 2 Lloyd's Rep. 586 ‘The Eugenia’ [1964] 2 Q.B. 226 at p 240 F

Fercometal SARL v Msc Mediterranean Shipping Co SA (The Simona) [1988] 2 Lloyd's Rep 199

The ‘Fjord Wind’ [2000] 2 Lloyds Rep 191 (C.A.)

G

Geipel v Smith (1872) L.R. 7 Q.B. 404

Giertsen v Turnbull, 1908 S.C. 1101


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Golden Arces Ltd v Queensland Estates Pty Ltd [1969] Qd R 378

Golden Fleece Maritime & another v. ST Shipping [2007] EWHC 1890 (Comm)

Goose v Wilson Sandford [2001] Lloyd's Rep PN 189

Gosse Millerd v Candaian Govt. Merchant Marine [1929] A.C. 223 (H.lL) Great Northern Railway Co v Swaffield (1874) LR 9 Ex 132 The ‘Gregos’ [1994] 1 WLR 1465 Gulnes v Imperial Chemcial Industries (1937) 43 Com.Cas 96 H Hadley v Baxendale (1854) 9 Ex. 341 Hedley Byrne & Co v Ltd v Heller Partners [1964] AC 465 Henderson v Stevenson (1875) LR 2HL Sc 470 ‘The Hermosa’ [1982] 1 Lloyd’s Rep 570, p 572-573 Hertford Foods Ltd v Lidl GmbH [2001] EWCA Civ 938 The ‘Hill Harmony’ [2001] 1 AC 638 Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 1 All ER 474 Howard Marine & Dredging Co Ltd v A Ogden & Sons (Excavations) Ltd [1978] QB 574 Houghland v R.R. Low (Luxury Coaches) Ltd [1962] 1 QB 694 Hourani v Harrison (1927) 32 Com.Cas. 305 I

The ‘Indian City’ [1939] AC 562 The ‘Island Archon’ [1994] 2 Lloyd's Rep 227 Ingram v Little [1961] 1 QB 31 J

Jackson v Union Marine (1874) L.R. 10 C.P. 125

James Finlay & Co. v Kwik Hoo Tong [1929] 1 K.B. 400

James Buchanan & Co v Hay’s Transport Services and Duncan Barbour and Son [1972 2 L1.L.R


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535

Joseph Constentine v Imperial Smelting Corporation [1942] A.C. 154

Joseph Travers and Sons Ltd v Cooper [1915] 1 KB 73

J. Lauritzen A.S. v Wijsmuller B.V. (The Super Servant Two) ˆ[1990] I1 Lloyd’s Rep 1

K

Kulukundis v Norwhich Union [1937] I K.B.

L

Larrinaga v Societe Franco-Americaine (1922) 28 Com.Cas 1

Leesh River Tea v British India Steam Navigation Co. [1966] 2 Lloyd's Rep. 193

Lewis v Averay [1972] 1 QB 198

Livingstone v Raywards Coal Co. (1880) 5 App. Cas. 25 at p. 39

Lloyd v Guibert (1865) LR 1 QB 115

London and North-Western Railway Company v Hudson and Sons [1920] AC 324

Ludsin Overseas Ltd v Eco3 Capital Ltd [2012] EWHC 1980 (Ch)

M

Maritime National Fish v Ocean Trawlers [1935] A.C. 524

Marriot v Yeoward [1909] 2 K.B. 987

McCarthy v St Paul International Insurance Co Ltd [2007] FCAFC 28; 175 FCR 402

McFadden v Blue Star Line [1905] 1 K.B. 697 at p 706

Mead v Babington [2007] EWCA 518

Miramar Maritime Corporation v Holborn Oil Trading Ltd [1984] 1 AC 676

Monarch SS Co v Karishamns [1949] A.C. 196

Morris v C.W. Martin & Sons Ltd [1965] 2 Lloyds Rep 63

Motor Oil Hellas (Corinth) Refineries SA v Shipping Corp of India (The Kanchejunga) [1990] 1

Lloyd’s Rep 391


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N

National carriers Ltd v Panalpina (Northern) Ltd [1981] A.C. 675

Nickoll v Ashton [1901] 2 K.B. 126

Norman v Binnington (1890) 25. Q.B.D. 475

Northumbrian Shipping v Timm [1939] AC 397

O

Owners of SS. Lord v Newsum [1901] 1 K.B. 846

Osmium Shipping Corp v Cargill International SA [2012] EWHC 571 (Comm)

Overseas Tankship (U.K.) v Morts Dock & Engineering Co. (The Wagon Mound) [1961] A.C. 388

P

Pacific Basin IHX Ltd v Bulkhandling Handymax AS [2012] 1 C.L.C. 1QB (Commercial Court)

Palace Shipping Company v Gans Steamship Line [1916] 1 KB 138

Parker v South Eastern Railway Co Ltd [1877] 2 CPD 416

Pasley v Freeman (1789) 3 Term Rep 51

Paterson Steamships v Canadian Co-operative Wheat Producers [1934] AC 538 PC

‘The Pearlmoor’ [1904] P 286

Perera v Vandiyar [1953] 1 W.L.R. 672

Petroleo Brasileiro SA v ENE Kos 1 Ltd [2012] UKSC 17; [2012] 2 AC 164

Phillips v Brooks[1919] 2 KB 243

Photo Production Ltd v Securicor Transport Ltd [1980] AC 367

Potts v Union SS. Co. of New Zealand [1946] N.Z.L.R. 276

Price v Union Lighterage Co. [1904] 1 K.B. 412

Pyman v Hull and Barnsley Co. [1915] 2 K.B. 729

R

Re Privacy Hire Gentium [1934] A.C. 586 (P.C.)

Red “Superior” v Dewar & Webb [1909] 1 K.B. 998 (C.A.)


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Republic of Bolivia v Indemnity [1909] I K.B. 784

Robinson v Harman (1848) I Exch 850

Rookes v Barnard [1964] A.C. 1129

Royscot Trust Ltd v Rogerson [1991] 3 All ER 294

Rutter v Palmer [1922] 2 K.B. 87

Ruxley Electronics & Construction Ltd v Forsyth [1995] 3 W.L.R. 118

S

Scottish Navigation Co. v Souter [1917] K.B. 222

Shearman v Folland [1950] 2 K.B. 43 at p. 49 Shipton Anderson v Harrison [1915] 3 K.B. 676 SK Shipping (S) PTE Ltd v Petroexport Ltd [2009] EWHC 2974 (Comm) Slough Estates plc v Welwyn Hatfield DC [1996] 2 PLR 50 Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460

Stanton v Richardson (1984) L.R. 9 C.P. 390

The’ Stork’ [1955] 2 QB 68 (Court of Appeal)

The ‘Starsin’ [2003] 1 Lloyds Rep 571

Sutcliffe v CC of West Yorkshire [1996] RTR 86

T

Tattersall v National Steamship Co. (884) 12 Q. B.D. 297

Taylor v Caldwell (1863) 3 B. & S. 826

Thin v Richards [1892] 2 Q.B. 141

Third Equitable Benefit BS v Borders [1941] 2 All ER 205

Transfield Shipping Inc v Mercator Shipping Inc [2008] 2 Lloyd’s Rep 275

Travers v Coopers [1915] K.B. 73

Tsakiroglou v Noblee Thori [1962] A.C. 93

TW Thomas & Co Limited v Portsea Steamship Company Limited [1912] 1 AC 1 at 129


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V

Varnish v The Kheti (1949) 82 Li.L.R. 525

Victoria Laundry (Windsor) Ltd v Newman Industries Ltd (1949) 2 KB 528

W

Whalley v Wry (1799) 3 Esp 74

Worms v Storey (1855) ii Ex, 427; The Rona (1884) 51 L.T. 28

Wye SS. Co v Compagnie P.O. [1922] 1 K.B. 617


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-AUTHORITIES-

BOOKS

R Aikens, R Lord and M Bools, Bills of Lading (Informa, 1st ed, 2006)

Simon Baughen, ‘Shipping Law’ (Cavendish Publishing, 3rd ed, 2004)

Hugh Beale, Chitty on Contracts (Sweet & Maxwell, 30th ed, 2008)

Terrance Coghlin, Andrew W. Barker et al, Time Charters (Informa, 6th ed, 2008)

Stewart Boyd, Andrew Burrows and David Foxton, Scrutton on Charterparties and Bills of Lading

(Sweet & Maxwell, 20th ed, 1996)

Norman Palmer, ‘Palmer on Bailment’, (Sweet & Maxwell, 3rd ed, 2009)

Martin Dockray, ‘Cases & Materials on the Carriage of Goods by Sea’, (Cavendish Publishing, 3rd

ed, 2004)

Brian Harris ‘Ridley’s Law of the Carriage of Goods by Land Sea and Air’, (Sweet & Maxwell, 8th

ed, 2010)

E.R. Hardy Ivamy, ‘Casebook on Shipping Law’, (Lloyd’s of London Press, 4th ed, 1987)

Lane Kendall and James Buckley. ‘Business of Shipping’, (Cornell Maritime, 7th ed, 2001)

John Mo, International Commercial Law (Lexis Nexis Butterowrths, 5th ed, 2013)

P M North, Cheshire’s Private International Law (Butterworths, 9th ed, 1974)

Jeannie Paterson et al ‘Principles of Contract Law’, (Thomson Reuters, 4th ed, 2009

Other

Chief Justice Allsop, ‘Recent Charterparty Decisions’, (Speech delivered at a lunchtime lecture for

MLAANZ and University of Newcastle, 26 June 2013).


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-AUTHORITIES-

CONVENTIONS, RULES AND STATUTES

INTERNATIONAL

United Nations Commission on International Trade Law, Arbitration Rules 1976

Convention on Limitation of Liability for Maritime Claims 1976

Protocols to Amend the Limitation of Liability for Maritime Claims 1996

Protocol to Amend the International Convention for the Unification of Certain Rules of Law

Relating to Bills of Lading (The Hague Visby Rules) 1968

DOMESTIC

Arbitration Act 1996 (UK)

Carriage of Goods By Sea Act 1971 (UK)

Law Reform (Contributory Negligence) Act 1945 (UK)

Merchant Shipping Act 1995 (UK)

Misrepresentation Act 1967 (UK)

Torts (Interference with Goods) Act 1977 (UK)

MISCELLANEOUS ‘English law - Due diligence to maintain a vessel's condition’ The Gard News 188, November 2007, http://www.gard.no/ikbViewer/web/updates/content/52513/english-law-due-diligence-to-maintain-a-vessels-condition Charterparty repudiation’, Steamship Mutual, http://www.steamshipmutual.com/publications/Articles/ProVictor0210.html Chief Justice Allsop, ‘Recent Charterparty Decisions’, (Speech delivered at a lunchtime lecture for MLAANZ and University of Newcastle, 26 June 2013).

http://www.gard.no/ikbViewer/web/updates/content/52513/english-law-due-diligence-to-maintain-a-vessels-condition

http://www.gard.no/ikbViewer/web/updates/content/52513/english-law-due-diligence-to-maintain-a-vessels-condition

http://www.steamshipmutual.com/publications/Articles/ProVictor0210.html


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-STATEMENT OF FACTS-

1. Between the 3rd March and 2nd May the Western Dawn completed a range of appropriate

certification, inspection and questionnaires at the port of Singapore. All of these inspections and

questionnaires were satisfactory and passed without issue.

2. On the 26th May, the contract was concluded for the charterers LDT, to chart the vessel

Western Dawn, on an amended ST4 CP with rider clauses for 3 months +/- 30 days.

3. On the 27th May the Charterers gave the first set of VO for the vessel to load at Singapore.

4. On the 3rd June, the Charterers represented that a sufficient supply of bunkers would be

‘available passing Durban or Cape Town’.

5. On the 8th June, the Bill of Lading was duly created and on the 23rd June, a recapitulation

was executed between the charterer and the owner, specifying the terms of the CP.

6. On the 28th June the Charterers, via ASA2 as agents, represented that sufficient bunkers

would be available ‘on arrival STS Area 1’. ASA2 instructed the Master that the vessel was

under ‘control’ of ASA2 as the ‘agency’ of the charterers and via ‘local instruction’ would

discharge the cargo.

7. Prior to the vessel’s arrival at the alternative discharge place in international waters off the

Angolan coast, the good Master repeatedly confirmed (on the 28-29th June and 1-3rd July) that

the vessel would be ‘taking bunkers on arrival’.

8. On the 3rd July the charterers did not pay hire as stipulated by the terms of the CP.

9. On the 4th July, the Western Dawn arrives at OPL Luanda, and tenders notice of readiness.

On the same day, the Charterers considered the vessel off hire

10. On the 17th July the Master advised of a pirate attack and cargo diversion where 5 crew were

injured and cargo was stolen. Due to no instruction from the Charterer and low bunker supply,

the vessel proceeded directly to Cape Town for emergency assistance.


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PART ONE: JURISDICTION

11. The Claimant submits this Tribunal has jurisdiction to hear this dispute because: (A) the

express and valid arbitration agreement within the CP specifies the seat of London; (B) this

Tribunal has the power to rule on its own jurisdiction; (C) of the known approach of English

Courts when deciding these matters; and (D) the correct commencement of this matter under the

Arbitration Act 1996 (UK).

A THE EXPRESS AND VALID ARBITRATION AGREEMENT FOUND IN THE

CHARTERPARTY SPECIFIES THE SEAT OF LONDON

12. The law governing contracts of carriage are determined by principles of private international

law and mandatory regulation applicable in the forum of the dispute.1

13. Per the CP agreed between the Claimant and Respondent, the ST4 proforma with

amendments, states at clause 46(a), (the choice of law clause) that the laws of England will

apply.

14. Per 46 b) of the CP it is stated all charter disputes shall be referred to Arbitration in London.

15. The claimant relies on Akai Pty Ltd v People’s Insurance Company Ltd,2 which states

‘where parties have bargained for English law, the court should give effect to that intention’.

16. The B/L states all CP clauses are incorporated into the B/L; therefore the Choice of law

clause is incorporated as ‘general words of incorporation of an applicable law clause are

effective’.3

17. As a commercial contract, both contracting parties would expect disputes arising out of the

agreement to be resolved in the one jurisdiction and as there is a close relationship between the

B/L and the CP, disputes arising from either document must be resolved and read together.4

1 Lloyd v Guibert (1865) LR 1 QB 115 2 [1999] I.L.Rd. 24. 3 R Aikens, R Lord and M Bools, Bills of Lading (Informa, 1st ed, 2006)


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18. We contend London is the seat of arbitration and English Law applies to this matter.

B THIS TRIBUNAL HAS THE POWER TO RULE ON ITS OWN

JURISDICTION

19. Per s 30 of the Arbitration Act 1996 (UK), the claimant contends the tribunal has

competence to rule on its own substantive jurisdiction as there is a valid arbitration agreement

and the matters submitted are in accordance with the arbitration agreement.

20. The claimant relies on established precedent stating that an arbitral tribunal has inherent

power to rule on its own jurisdiction, including questions as to the validity of the arbitration

agreement.5

C KNOWN APPROACHES OF ENGLISH COURTS WHEN DECIDING

THESE MATTERS

21. The methods used to determine the governing law of a contract is through reference to

express intention of the parties and the ‘connection’ test6 whereby Courts refererence the

implied intention of the parties7 as a decisive factor.8

22. The intention of the Claimant was clear that any dispute matters were to be heard in

London.

23. The Respondent may assert they did not intend for disputes to be heard in London,9 however

we refer to Golden Acres Ltd v Queensland Estates Pty Ltd,10 which states a court may neglect

‘intention’ in special circumstances in the interests of the parties and justice.

4 Per the approach taken in The 'Dolphina' [2011] SGHC 273. 5 Christopher Brown Ltd v Genossenchaft Oestereichischer Waldbestizer Holwirtscafsbetriebe Registrierte GmbH [1954] i QB 7, 12-3. 6 As seen in Viva Vino Import Corporation v Farnses Vuni Srl 2000 US Dist LEXIS 12347. 7 John Mo, International Commercial Law (Lexis Nexis Butterowrths, 5th ed, 2013) 755. 8 P M North, Cheshire’s Private International Law (Butterworths, 9th ed, 1974) 201. 9 Moot problem, page 2, where the Charterers state they have had arbitral problems in London. 10 [1969] Qd R 378.


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D THE CORRECT COMMENCEMENT OF THIS MATTER UNDER THE

ARBITRATION ACT 1996

24. This matter is brought in accordance with section 14(3) of the Arbitration Act 1996 (UK);

the arbitrator is named in the agreement to which these arbitral proceedings have commenced

and the Claimant has served the Respondent written notice requiring them to submit that matter.

25. Regarding the case of ‘The Agios Lazaros’11, notice was provided in writing and was valid.

26. We rely on the UN Commission on International Trade Law, Arbitration Rules 197612;

notice of arbitration should contain: a demand the dispute be referred to arbitration; names and

contact details of the parties; identification of the arbitration agreement that is invoked;

identification of any contract or other legal instrument out of or in relation to which the dispute

arises; a brief description of the claim and an indication of the amount involved if any remedy is

sought.

27. The Claimant submissions are clearly in writing containing details of the: parties; arbitration

agreement; dispute; and prayer for relief and as such this action has been brought correctly

under the Arbitration Act 1996.

PART TWO: BREACH OF CONTRACT

28. There has been a breach of contract by the Respondent because of (A) The contract of

carriage; (B) The incorporations of terms; (C) The failure of the Respondent to deliver bunkers;

(D) The failure of the Respondent to make payment; and (E) Abrogation of the carriers duty of

care.

A THE CONTRACT OF CARRIAGE

11 [1976] 2 Lloyd’s Rep 47. 12 Art 3.


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29. Contracts of carriage are governed by general common law, however are distinguished from

commercial contracts as goods are transferred for purposes of relocation and to perform discrete

trade undertakings of sale and purchase, performed via private contract. 13

30. Only the carrier (herewith the Charterer) can exercise control over the performance of the

carriage and care for the goods in transit, so there is commercial risk borne in bailing goods.14

31. Third parties frequently facilitate contractual performance for ancillary actions such as

loading, discharging, trans-shipping and delivery and these services create individual

contractual and non-contractual legal relationships, raising challenges when apportioning

liability for breach.15

32. The cargo is carried via a carriage contract16 and regulatory considerations include

mandatory state regulation, the Hague-Visby convention17 made applicable by the Carriage of

Goods by Sea Act 197118 and the private contractual terms agreed between parties per the ST4

agreement.

B CONTRACTUAL TERMS AND THE INCORPORATIONS OF TERMS

33. Contractual terms once had three categories,19 however are now either fundamental terms

(or conditions) and ordinary terms (or warranties).20 If one party breaches a fundamental term

the innocent party may end the contract with damages.21

34. The terms of the contract must have been brought to the attention of the parties at the time

the contract was made.22 For standard forms such as this, the bound party must receive

‘reasonably sufficient’ notice of those terms for valid incorporation.23

13 Brian Harris ‘Ridley’s Law of the Carriage of Goods by Land Sea and Air’, (Sweet & Maxwell, 8th ed, 2010). 14 Ibid. 15 Ibid. 16 cf: London and North-Western Railway Company v Hudson and Sons [1920] AC 324. 17 Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (The Hague Visby Rules), 1968 18 s1. 19 Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 1 All ER 474. 20 Photo Production Ltd v Securicor Transport Ltd [1980] AC 367. 21 Jeannie Paterson et al ‘Principles of Contract Law’, (Thomson Reuters, 4th ed, 2009. 22 Henderson v Stevenson (1875) LR 2HL Sc 470; Chapelton v Barry Urban District Council [1940] 1KB 532.


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35. If there is an insufficient course of dealings between parties, as with this case as it is a first

time interaction, certain conditions of contract may not be deemed as incorporated.24 Standard

industry terms of trade amounting to customary dealings disregard a course of dealings and

serve to incorporate customary terms as implied.25

36. The Claimant asserts the following customary industry dealings are to be impliedly

incorporated into the CP as fundamental conditions: the carrier’s duty of care to the vessel,

cargo, servants and shipowner, including provision of sufficient bunkers with allowance for

contingencies26 and a duty not to direct the ship to a place of peril.27

C THE FAILURE OF THE RESPONDENT TO DELIVER BUNKERS

37. The Claimant contends the Respondent breached the contract by failing to deliver an

adequate supply of bunkers based on the incorporation of the Carriers overriding duty of care

(‘the duty’).

38. The duty developed to prevent unfair reliance by carriers on exclusion clauses, is based on

the Carrier’s role as bailee of goods28and is ‘a special duty to exercise due care and skill in

relation to the carriage of the goods and a special duty to furnish a ship fit for its adventure at its

inception’.29

39. In Northumbrian Shipping v Timm30 it was stated that: bunkering stages should be fixed at

voyage commencement; fuel sufficient for the intended stage and a margin for contingencies

should be loaded; and allowance for contingencies should not be reduced due to STS transfers

even if the contract allows liberty to deviate.31 This approach to carrying a reserve supply of fuel

23 Parker v South Eastern Railway Co Ltd [1877] 2 CPD 416. 24 Hertford Foods Ltd v Lidl GmbH [2001] EWCA Civ 938. 25 British Crane Hire Corp Ltd v Ipswich Plant Hire Ltd (1975) QB 303. 26 Northumbrian Shipping v Timm [1939] AC 397. 27 ‘The Eastern City’ [1958] 2 Lloyd’s Rep 127. 28 Martin Dockray, ‘Cases & Materials on the Carriage of Goods by Sea’, (Cavendish Publishing, 3rd ed, 2004). 29 Paterson Steamships v Canadian Co-operative Wheat Producers [1934] AC 538 PC. 30 [1939] AC 397. 31 Martin Dockray, ‘Cases & Materials on the Carriage of Goods by Sea’, (Cavendish Publishing, 3rd ed, 2004).


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aligns to common, mandated requirements of marine underwriters regarding safety of life at

sea.32

40. The Claimants assert by provisioning the absolute minimum volume of bunkers, 950 mt, not

990mt as required,33 the Respondents breached their duty to furnish a ship fit for adventure.

a) Issue of Speed and Fuel Consumption

41. As the Respondents failed to sufficiently stem the vessel upon departure and continued to

not repair this deficiency, the vessel was inadequately bunkered which compelled the Master to

reduce the vessel to MEP and not NOP as stipulated per the VO.34

42. The ‘The Apollonius’35 raised the legal question of whether the charterers were entitled to

damages due to failure to prosecute the voyage with ‘utmost diligence.’36

43. The Claimants rely on this case, that the speed warrant is subject to the owners being

protected from the consequences of any exception clause that may be applicable.

44. The Claimants assert that actions of the Master in following alternative voyage order

instructions impacted his ability to prosecute the voyage with utmost dispatch and are exempted

as they are a direct result of the following actions and responsibilities of the Respondents: from

insufficiently stemming the vessel upon departure which placed the vessel in a position of

sensitivity should any unforeseen circumstances ensue; from following the orders of a

nominated agent, the ASA2 which placed the vessel at the mercy of rogues at sea and; from

failing to maintain vital communications to the Master for 25 days.

D THE FAILURE OF THE RESPONDENT TO MAKE PAYMENT

45. If a ship owner has a record of accepting late payment for hire, this conduct may waive the

right to withdraw from contract for a future late payment, unless notice has expressly been given

that the owner insists on timely future payments.37

32 Lane Kendall and James Buckley. ‘Business of Shipping’, (Cornell Maritime, 7th ed, 2001) 183, 306. 33 Moot problem, page 25 where the Master states requirements incorporating contingencies. 34 Moot problem, page 42. 35 Cosmos Bulk Transport Inc v China National Foreign Trade [1978] 1 Lloyds Rep 53 36 Martin Dockray, ‘Cases & Materials on the Carriage of Goods by Sea’, (Cavendish Publishing, 3rd ed, 2004)


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46. This exception does not apply as there is no record of previous dealings between the parties,

therefore there is no established conduct that late payment has been or will be accepted.

47. The Claimants claim the contract has been breached by failure to make payment.

E ABROGATION OF THE CARRIER’S INCORPORATED DUTY OF CARE

48. Unless there is an express exclusionary clause, a charterer has a duty of care not to direct

a ship to a place known as unsafe.38 ‘The Eastern City’39 defined a safe port in the following

terms: ‘[if] the particular ship can reach it, use it and return from it without, in the absence

of some abnormal occurrence, being exposed to danger which cannot be avoided by good

navigation and seamanship..’

49. ASA2 were the Respondents nominated agents, per the communication ‘continue to liaise

with your STS coordinator..’40 The ASA2 VO instructions directed the vessel to a place of peril.

50. Nominating an unsafe port is a breach of contract and therefore subsequent damage to the

vessel or cargo is apportioned to the principles of causation and remoteness of damage.41

PART THREE: AN OBJECTIVE INTENTION NOT TO PERFORM HAS REPUDIATED THE CONTRACT

51. For repudiation to be made, there must be: a clear, unequivocal and absolute expression; by

words or conduct; that would lead a reasonable person to conclude the other party does not

intend to fulfil its contractual obligations; and the innocent party takes as a demonstration other

party does not intend to perform the contract.42

52. The Respondents advised bunker supplies would pass ‘either Durban or Cape Town’ and

that ‘everything is under control’.43 The Master messaged the Charterers on 8 occasions with no

37 The Brimnes [1975] QB 929, CA 38 Martin Dockray, ‘Cases & Materials on the Carriage of Goods by Sea’, (Cavendish Publishing, 3rd ed, 2004). 39 [1958] 2 Lloyd’s Rep 127. 40 Moot problem, page 40. 41 The Stork [1955] 2 QB 68 (Court of Appeal). 42 “The Hermosa” [1982] 1 Lloyd’s Rep 570, p 572-573; Fercometal SARL v Msc Mediterranean Shipping Co SA (The Simona) [1988] 2 Loyd’s Rep 199; SK Shipping (S) PTE Ltd v Petroexport Ltd [2009] EWHC 2974 (Comm) 43 Moot problem, page 26, 28.


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response and protested that bunkers were not supplied as promised.44 The Respondent asserted

coordinates for bunkering are ‘Area 1’;45 which were not defined in the CP, VO or prior

communications. The Master’s pleas for explanation are ignored.46

53. The leading authority falls to the ‘The Hermosa,’47 affirmed in SK Shipping (S) PTE Ltd v

Petroexport Ltd,48 for repudiating a shipping contract via conduct by words, where the history

and context of the communications and demonstrates an objective intention not to perform.

54. No bunkering schedule was provided, per customary norms, containing ports on the

itinerary, locations to re-bunker, estimated quantity to be loaded and estimations of oil to be

consume.49

55. The Charterers repudiated the contract, evidenced by their words and conduct and are fully

liable for payment of the whole contracted on-hire period and for subsequent damages incurred

via loss of cargo, personal injury (physical and mental) to crew and damage to vessel.

PART FOUR: FRUSTRATION OF CONTRACT

56. In the alternative the Claimant submits the contract should be discharged because of

frustration of the commercial purpose of the adventure. This is on the basis of (A) Supervening

and unforeseen circumstances; (B) The lack of default on their side of the party; (C) The

contractual obligation is incapable of being performed because in such a circumstance

performance would be radically different from that which was undertaken by the contract; (D)

Once applied the contract would cease to bind either party and; (E) There are no exceptions for

TCP.

A THE SUPERVENING AND UNFORESEEN CIRCUMSTANCES

44 Moot problem, page 32. 45 Moot problem, Page 33, 34. 46 Moot problem, Page 34. 47 [1982] 1 Lloyd’s Rep 570, p 572-573. 48 [2009] EWHC 2974 (Comm). 49 Lane Kendall and James Buckley. ‘Business of Shipping’, (Cornell Maritime, 7th ed, 2001) 312.


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57. For a contract to be declared frustrated there must be circumstances which prevent the

contract from being able to be performed50 which can include the subject matter of the contract

or something essential for its performance is destroyed.51

a) Destruction of Essential Item for Performance

58. The Claimants assert that piracy occasioned severe vessel damage to navigational and radio

equipment in the wheelhouse, the main deck hose crane and the starboard side ladder.52

Performance of the contract relies on this essential equipment, therefore this is a supervening

and unforeseen circumstance.

59. This argument depends on the time53 and expense54 of repairing the vessel.

b) Where the circumstances supervene which render performance of the

contract in the time contemplated by both parties impossible

60. To conclude the circumstances have come to such a delay that they frustrate the commercial

purpose of the adventure depends on the facts of the matter before the tribunal.55

61. Prolongation of the voyage by interruption of the contemplated route is capable of

frustrating the contract of carriage in law.56 It is acknowledged such a delay would need to be

radical.57

62. The Claimants argue from the 17th July 2014 the vessel was 13 days behind the original

ETA. This existing delay, combined with the MEP speed due to limited bunkers to Cape Town58

and repair time, should be considered a radical prolongation of the voyage.

B THE LACK OF DEFAULT ON EITHER SIDE OF THE PARTY 50 Jeannie Paterson et al ‘Principles of Contract Law’, (Thomson Reuters, 4th ed, 2009 51 Taylor v Caldwell (1863) 3 B. & S. 826; Applyby v Myers (1867) L.R. C.P. 651; Nickoll v Ashton [1901] 2 K.B. 126; Shipton Anderson v Harrison [1915] 3 K.B. 676; Gulnes v Imperial Chemcial Industries (1937) 43 Com.Cas 96. 52 Moot problem, page 42 53 Jackson v Union Marine (1874) L.R. 10 C.P. 125. 54 Assicurazione v Bessie Morris [1892] 2 Q.B. 652; Carras v. London and Scottish Assurance [1936] 1 K.B. 291; Kulukundis v Norwich Union [1937] 1 K.B. 1. 55 Stewart C. Boyd, Andrew S. Burrows and David Foxton, Scrutton on Charterparties and Bills of Lading (Sweet & Maxwell, 20th ed, 1996) 27. 56 The Eugenia [1964] 2 Q.B. 226 at p 240; The Captain George K [1970] 2 Lloyd’s Rep. 21 at p. 31. 57 Ibid. 58 Moot problem, page 42.


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63. Given that the frustrating event has now been proven, the onus of proving that it arose

through the default of the other party rests upon us as the party alleging the default.59

64. The Claimants contend the failure of the Respondent to provide sufficient bunkering at

various points of the journey frustrated this contract, as the Western Dawn was forced to travel

at MEP60 and lie floating whilst waiting for essential bunkers61 in an area with known piracy

threats.

65. These events caused the ship to be seized and cargo to be stolen, which frustrated the

contract.

C THE CONTRACTUAL OBLIGATION INCAPABLE OF BEING

PERFORMED BECAUSE IN SUCH A CIRCUMSTANCE PERFORMANCE

WOULD BE RADICALLY DIFFERENT

66. For a contract to be frustrated, circumstances must render the contractual obligation

incapable of being performed because in such circumstances performance would have been a

thing radically different from that which was undertaken by the contract.62

67. Ultimately this is a ‘conclusion is almost completely determined by what is ascertained as

the mercantile usage and understanding of commercial men.’63

68. The Claimants raise the argument that the CP agreed a hire period of 3 months +/- 30 days64

for a ship that was seaworthy with a final delivery to the Mediterranean on the conclusion of the

CP.65

69. The damaged ship journeyed to Cape Town with damage resulting from fraudulent claims.66

59 Joseph Constentine v Imperial Smelting Corporation [1942] A.C. 154. 60 Moot problem, page 32. 61 Moot problem page 41. 62 Daivs Construction Ltd v Foreham U.D.C. [1956] A.C. 14 per Lord Radcliffe at pp. 728, 729; National carriers Ltd v Panalpina (Northern) Ltd [1981] A.C. 675, at pp. 688 and 717; B.T.P. Tiozafr Ltd v Pioneer Shipping Ltd and Armada Marine S.A. (The Nema) [1982] A.C. 724. At 751, 752. 63 B.T.P. Tiozafr Ltd v Pioneer Shipping Ltd and Armada Marine S.A. (The Nema) [1982] A.C. 724. At 751, 752 Lord Roskill citing Lord Radcliffe in Tsakiroglou v Noblee Thori [1962] A.C. 93 at p. 124. 64 Moot problem, page 5. 65 Ibid. 66 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; Caparo v Dickman [1990] 2 AC 605.


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70. The vessel must now undergo repairs, which will be costly and timely, therefore

performance of the contract will be greatly different to those originally agreed to in the CP.

D ONCE APPLIED THE CONTRACT WOULD CEASE TO BIND EITHER

PARTY

71. Once the doctrine of frustration applies, the contract ceases to bind either party,67 the

contract is terminated and there is no requirement for either party to elect to terminate the

contract.68

72. The contract can be brought to an end even if it has been partly performed.69

73. The CP has been frustrated by the above events, notwithstanding the contract was partly

performed and the Claimants cannot be required to complete the remainder of the CP

agreement.

E THERE ARE NO EXCEPTIONS FOR TIME CHARTERPARTIES

74. Historically, the doctrine of frustration could not apply to a time CP in its ordinary form,70

which was displaced.71 Time CP are subject to the usual incidents of the law of contract.72

75. There are no exceptions in applying the doctrine of frustration to this matter and we contend

the contract be declared frustrated, pursuant to the above arguments.

F INVOLUNTARY BAILMENT

76. If deemed the VO of ASA2 were not authorised, the CP was frustrated from the date of these

instructions, 28 June.73 From this point the Claimants were involuntary bailees of the cargo and

claim recovery of costs for bunkers and storage at market rates from this date.

67 Jackson v Union Marine Co. (19874) L.R. 10 C.P. 125 at 144, Geipel v Smith (1872) L.R. 7 Q.B. 404 at 410. 68 Larrinaga v Societe Franco-Americaine (1922) 28 Com.Cas 1 at p.2,Bank Line v Capel [1919] A.C. 435 at p. 454, Maritime National Fish v Ocean Trawlers [1935] A.C. 524, J. Lauritzen A.S. v Wijsmuller B.V. (The Super Servant Two) ˆ[1990] I1 Lloyd’s Rep 1. 69 Embiricos v Reid [1914] 3 K.B. 45. 70 Balihache J in Admiral Shipping Co v Weidner Hopkins [1916] 1 K.B.429. 71 Scottish Navigation Co. v Souter [1917] K.B. 222. 72 Stewart C. Boyd, Andrew S. Burrows and David Foxton, Scrutton on Charterparties and Bills of Lading (Sweet & Maxwell, 20th ed, 1996) 29. 73 Moot problem, page 35.


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77. Costs were incurred to care for the goods, thus additional benefit was conferred to the

Respondents as their goods were cared for longer than was contractually accounted for.74

78. The standard of care required of the bailee, whether gratuitous or not, is the standard

required dependent on the circumstances of the case.75 The circumstances of this case are

extraordinary and in the circumstances the Master exercised all reasonable care.

PART FIVE: TORT OF FRAUD

79. The Claimant submits a tort of fraud has been committed by the Respondent in failing to

provide bunkering as promised because (A) There is proof that a fraud was committed; (B) The

false representation promising bunkering was made knowingly; (C) In the alternative the false

representation promising bunkering was made recklessly and carelessly; (D) There was reliance

on the promise of bunkering; (E) Damage occurred because of this misrepresentation and (F)

Motive and gain are not considerations.

A THERE IS PROOF THAT FRAUD WAS COMMITTED

80. To make a Tort of Fraud reliance falls to Derry v Peek,76 demanding proof of the fraud. The

Claimants reference communications whereby the Master was falsely promised stems.77

81. If the representation was true at the time it was made, the effect of making that statement

required it to be corrected when it became false.78

B THE FALSE REPRESENTATION PROMISING BUNKERING WAS MADE

KNOWINGLY

82. Per Derry v Peek,79 we contend that the false representation of promising stems was made

knowingly, or without belief in its truth, or recklessly, or carelessly whether it be true or false.

74 Cargo ex Argos, Gaudet v Brown (1872) LR 5 PC 134; Great Northern Railway Co v Swaffield (1874) LR 9 Ex 132; China Pacific SA v Food Corporation of India (‘The Winson’) [1982] AC 939. 75 Houghland v Low Luxury Coaches Ltd [1962] 1 QB 694. 76 (1989) 14 App.Cas. 337. 77 Moot problem, page 28, 33. 78 Slough Estates PLC v Welwyn Hatfield CT [1996] 2 PLR 50. 79 (1989) 14 App.Cas. 337


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83. The Respondent had actual knowledge of the false representation per Armstrong v Strain:80

‘there must be knowledge in the narrower sense; and conscious knowledge of the falsity must

always amount to wickedness and dishonesty’.

84. The Claimants submit the Respondent had conscious knowledge that sufficient bunkers

would not be delivered to the Master at Luanda, as they had consciously planned to do.

C IN THE ALTERNATIVE THE FALSE REPRESENTATION PROMISING

BUNKERING WAS MADE RECKLESSLY, CARELESSLY

85. In the alternative, he Respondent was reckless and careless of the truth of their bunkering

promise.

86. The Claimants rely on Angus v Clifford81 which held: ‘Not caring, in that context, did not

mean not taking care, it meant indifference to the truth, the moral obliquity of which consists in

a wilful disregard of the importance of the truth.’

87. The Respondent had wilful disregard for the truth, demonstrated by their repudiatory

actions.

D THERE WAS RELIANCE ON THIS PROMISE OF BUNKERING

88. For this tort to be successful it must be found that the Respondent intended the Claimant to

rely upon the statement.82 The statement in question for this matter is that of the promise of

bunkering to be supplied to the vessel en route at Durban and Cape Town.

89. Presently, authorities have not determined if the ‘intention’ requirement is actual intention,

or if it is simply reasonable foreseeable.83

90. For reliance to be made, it must be shown the Claimant was induced to act by the fraudulent

statement84 and the maker of the statement intended for the Claimant to rely on the statement.85

80 [1951] 1 TLR 856 at 871 81 [1981] 2 Ch 449 at 471 82 Mead v Babington [2007] EWCA 518. 83 Hugh Beale, Chitty on Contracts (Sweet & Maxwell, 30th ed, 2008) 6-030 84 Goose v Wilson Sandford [2001] Llyods Rep PN 189 85 Bradford Third Equitable ex v Boarders [1941] 2 All ER 205 at 211


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91. The statement was one factor inducing the Claimant to act; it does not need to be the only

factor.86

92. The Claimants contend they were induced to enter into contract on belief adequate

bunkering would be provisioned and assert reliance on the fraudulent representation regarding

bunkering and state this element of the tort has been met.

E DAMAGE OCCURRED BECAUSE OF THIS MISREPRESENTATION

93. The final element is that the Claimant suffered financial loss owing to the fraud.87

F MOTIVE AND GAIN ARE NOT CONSIDERATIONS

94. Per Pasley v Freeman,88 the essence of action was the deception of the Claimant. It is not

material that the Respondent did not gain from this deception.

95. In reliance on Bradford Third Benefit BS v Borders,89 the Respondent’s motive is of no

relevance.

PART SIX: NEGLIGENT MISSTATEMENT

96. Claims for loss by negligent misstatement for carriage contracts are made via the principles

of Hedley Byrne v Heller90 and the test laid down in Caparo v Dickman.91

97. The Claimant must establish the Respondent owed a duty of care which was breached which

occasioned damage; the duty is to take reasonable care that information and advice is sound.92

98. Notions that the duty is only imposed to those claiming skill and competence in the matter

of the representation are rejected,93 but remain relevant to determining if the reliance was

reasonable.94

86 Eddington v Fitzmaurice (18885) 29 ChD 459. 87 Brian Harris ‘Ridley’s Law of the Carriage of Goods by Land Sea and Air’, (Sweet & Maxwell, 8th ed, 2010). 88 (1789) 3 Term Rep 51. 89 [1941] 2 All ER 205, which was followed in Ludsin Overseas Ltd v Eco3 Capitial Ltd [2012] EWHC 1980 (Ch) 90 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. 91 [1990] 2 AC 605. 92 Jeannie Paterson et al ‘Principles of Contract Law’, (Thomson Reuters, 4th ed, 2009. 93 Howard Marine & Dredging Co Ltd v A Ogden & Sons (Excavations) Ltd [1978] QB 574. 94 Jeannie Paterson et al ‘Principles of Contract Law’, (Thomson Reuters, 4th ed, 2009.


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99. To seek relief via rescission or damages, a causal and not too remote link must lie between

the misrepresentation and entry into contract, through proof of reliance on the representation.95

100. The loss must be reasonably foreseeable to the person liable for the misstatement

with a sufficient relationship of proximity between the party relying on the misstatement and the

party liable and it must be fair, just and reasonable to impose a duty of care.96

101. The Respondent owed the Claimants a duty of care to sufficiently stem the vessel

and per customary industry dealings were knowledgeable of this fundamental duty. The

Claimants contracted in belief this duty would be executed in good faith and as such

experienced loss.

102. In the alternative the Claimants seek statutory relief via s 2(1) of the

Misrepresentation Act 1967 (UK), which reverses the burden of proof and per Royscot Trust Ltd

v Rogerson97 damages are assessed as with tort of fraud; all direct loss is recoverable, whether

or not it was foreseeable.98

PART SEVEN: THERE WAS NO NEGLIGENCE OF THE MASTER AND CREW

103. There can be no case of negligence or incompetence against the Master of the

Western Dawn because: (A) The construction of the negligence exception does not allow a case

to be raised; (B) There was no negligence in the navigation or management of the ship; (C)

These exceptions last for the duration of the possession of the goods in questions and; (D) The

Master and crew are not liable for acts of piracy on the high seas.

A CONSTRUCTION ON NEGLIGENCE EXCEPTIONS

104. The general principles of construction relating to whether an exception clause

excludes liability for negligence are that negligence is most obviously excluded where the

95 Jeannie Paterson et al ‘Principles of Contract Law’, (Thomson Reuters, 4th ed, 2009. 96 Caparo v Dickman [1990] 2 AC 605; Brian Harris ‘Ridley’s Law of the Carriage of Goods by Land Sea and Air’, (Sweet & Maxwell, 8th ed, 2010). 97 [1991] 3 All ER 294. 98 Simon Baughen, ‘Shipping Law’ (Cavendish Publishing, 3rd ed, 2004).


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exception clause uses the word ‘negligence’ or a synonym for it.99 General words such as ‘not

responsible for damage, however caused’ will normally be construed as excluding liability for

negligence where the Respondent could realistically only have been liable for negligence. 100

105. Per clause 27 of the ST4 CP agreement signed between the parties to this matter, the

word negligence is used and we rely on this clause.

106. As this clause is often construed strongly against shipowners,101 the Claimants in this

matter contend there was no personal negligence for the appointment of the Master as he was

neither drunk nor incompetent.102

107. As clause 27 contains an express exception of negligence of the shipowner’s

servants, full effect will be given to it so even the most culpable recklessness does not render the

Claimant liable. 103

108. As a result, and in spite of this clause being harshly construed against the Claimant,

it is not possible for the Claimant to be held responsible for the negligence of the Master or of

the servants of the ship due to the construction of the term.

B THE MASTER DEVIATED UNDER AGENCY AUTHORISATION AND

THERE IS NO CLAIM TO ANSWER FOR MISDELIVERY OF CARGO

109. Clause 13 (a) of the CP states ‘the master (although appointed by owners) shall be

under the orders and directions of charterers as regards employment of the vessel, agency and

other arrangements’.

99 Canada Steamship Lines v The King [1952] A.C. 192 (p.C.). Also see Travers v Coopers [1915] K.B. 73; Pyman v Hull and Barnsley Co. [1915] 2 K.B. 729; Rutter v Palmer [1922] 2 K.B. 87; Calico Printers’ Association v Barclays Banks (1931) 36 Com.Cas. 197; Alderslade v Hendon Laundry [1945] K.B. 189; Varnish v The Kheti (1949) 82 Li.L.R. 525. 100 Ibid. 101 Price v Union Lighterage Co. [1904] 1 K.B. 412; The Pearlmoor [1904] P 286. 102 City of Lincoln v Smith [1904], Brett L.J. in Chartered Mercantile Bank of India v Netherlands India S.N. Co (1883). 103 Briscoe v Powell (1905) 22 T.L.R. 128. In Marriot v Yeoward [1909] 2 K.B. 987 it was held that even felonious acts by a servant of the shipowner were covered by “any act, neglect, or default, whatsoever” of servants etc.


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110. An agent's authority may be actual, which is expressly or implicitly agreed by the

principal or agent, or apparent by express or implied representation by the principal that the

agent is invested with authority.104

111. It is argued the VO provided by ASA2, coupled with the representation from the

Respondents to ‘liaise with your STS coordinator’105 amount to sanctioned directions from an

Agency and as such the Master is indemnified from any detrimental resulting consequences.

112. A relevant legal question is whether the ‘effective’ cause of the loss was an ‘insured

peril’ or an ‘indemnifying event’.106 It is decided law that this indemnity, expressed in Clause 13

(a), applies when the orders are both contractually valid and also not justified by the contract.107

113. Regards to the indemnity and necessity for loss, it has been articulated that causation

is contextual and a matter of construction;108 the intended scope of loss is not one of

foreseeability, but whether the order was the ‘effective cause’ of the loss and not a ‘mere’, ‘but

for cause as there can be no other causes.109 Similarly worded indemnities have been found to

apply where there is a direct causal link between orders given and resultant consequences.110

114. We assert that as a direct result of VO provided by ASA2 the Master complied to

deviate the ship to the stated destination for the purposes of essential bunkering.

115. The B/L states the Master must deliver the ship to the discharge port or as close as

the ‘vessel may safely get’. The vessel was delivered, under instruction, to a location close to

the stipulated discharge port, within the Luanda OPL limits and owing to the subsequent

emergency encountered by the vessel, the Master therefore delivered the ship as close as safely

possible.

104 Brian Harris ‘Ridley’s Law of the Carriage of Goods by Land Sea and Air’, (Sweet & Maxwell, 8th ed, 2010) 105 Moot problem, page 40. 106 McCarthy v St Paul International Insurance Co Ltd [2007] FCAFC 28; 175 FCR 402 107 The ‘Island Archon’ [1994] 2 Lloyds Rep 227 as approved in Petroleo Brasileiro SA v ENE Kos 1 Ltd [2012] UKSC 17; [2012] 2 AC 164 108 Petroleo Brasileiro SA v ENE Kos 1 Ltd [2012] UKSC 17; [2012] 2 AC 164 109 Chief Justice Allsop, ‘Recent Charterparty Decisions’, (Speech delivered at a lunchtime lecture for MLAANZ and University of Newcastle, 26 June 2013). 110 The ‘Hill Harmony’ [2001] 1 AC 638 at 656


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116. The Master’s obligation of delivery was performed as best as possible under the

emergency circumstances.111

117. Given the very close location of the point of the ship under direction and the

nominated discharge point, it is very likely the piracy would have occurred in any event, as the

ship would have sailed close to the area in sailing to the discharge port.112

118. The ‘liberty’ clause within the B/L entitles the Claimants and Master to deviate as

necessary. There is no specified route which must be taken, only the most usual route and the

Master is under no requirement to take the fastest or most direct route (unless expressly required

which was not contracted for in this instance).113

119. The duties of the Master were discharged in good faith, notwithstanding teh cargo

was delivered to a rogue.114

C THERE WAS NO NEGLIGENCE IN THE NAVIGATION OR

MANAGEMENT OF THE SHIP

120. The exception from the above negligence clause must be addressed. The first is the

negligence in the navigation or in the management of the ship, which is found in the Carriage of

Goods By Sea Act 1971, Article IV, Rule (2)(a).

121. This act holds neither carrier nor vessel responsible for loss or damage arising for

any act, neglect, or default of the Master, or of other servants in the navigation or management

of the ship.

122. In reliance on this finding we argue the choice of the Master to continue to the next

port, as best as he could, without further instruction from the Respondent’s agent could not be

held as negligence as it was judgement in the management or navigation of the ship.

111 Dahl v Nelson, Donkin and Company (1881) 6 App Cas 38; ‘The Eastern City’ [1958] 2 Lloyd’s Rep 127. 112 Palace Shipping Company v Gans Steamship Line [1916] 1 KB 138. 113 ‘The Indian CIty’ [1939] AC 562 114 McKean v McIvor (1870) LR 6 ex 36.


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123. We rely on the findings in Owners of SS. Lord v Newsum,115 which decided the error

of the Master in choosing the route he should pursue was not held as ‘negligence, default or

error in judgement in the management or navigation of the ship’.

124. We rely on the findings that if the cause of the damage is solely or even primarily a

neglect to take reasonable care of the cargo, the ship is liable. But if the cause of the damage is a

neglect to take reasonable care of the ship, or some part of the ship, as distinct from the cargo,

the ship is released from liability.116

125. We argue that if there was negligence, it was a failure to take reasonable care of the

ship, and protect it from piracy. As a result the ship is released from liability.

D THIS EXCEPTION LASTS FOR THE DURATION OF THE POSSESSION

OF THE GOODS IN QUESTIONS

126. In constructing this argument we must consider during which time this exception is

allowed.

127. We therefore rely on the general rule, which states that the exceptions limit the

shipowners liability during the whole time in which he is in possession of the goods as a

carrier.117

128. This was also found to cover negligence during loading and to apply to the whole

time during which the vessel was engaged in performing the contract contained in the charter.118

129. This would effectively mean the Claimant could not be found liable for the entire

passage of the journey, as negligence was found outside of the navigation or management of the

ship.

E THE MASTER AND CREW ARE NOT LIABLE FOR ACTS OF PIRACY ON

THE HIGH SEAS.

115 [1901] 1 K.B. 846. 116 Gosse Millerd v Candaian Govt. Merchant Marine [1929] A.C. 223 (H.lL). 117 Norman v Binnington (1890) 25. Q.B.D. 475 at p. 478; The Carron Park (1890) 15 P.D. 203, per Wright J. In De Clermont v General Steam Navigation Co. (1891) 7 T.L.R. 187 at p.188. 118 The Carron Park (1890) 15 P.D. 203,


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130. The New English Dictionary defines piracy as ‘robbery and depredation on the sea or

navigable rivers, etc., or by descent from the seas upon the coast, by persons not holding a

commission from an established civilised state’.119

131. Sufficient authorities suggest that pirates are a permissible exception under the

Carriage of Goods By Sea Act 1971, under Rule 2 of Article 5, which at (f) considers Acts of

public enemies and at (q) ‘any other cause arising without the actual fault or privity of the

carrier, or without the fault or neglect of the agents or servants of the carrier.’120

132. We argue in line with the precedent, that loss of goods via piracy relieves the

shipowner of the burden to prove the loss was not caused by his negligence.121

133. In the instant case it is clear the loss of the goods was via piracy and therefore the

Claimant, as the shipowner, is not required to prove the loss was not caused by negligence.

PART EIGHT: THE TORT OF CONVERSION WAS NOT COMMITTED

134. The Respondent alleges the Claimant has committed a tort of conversion, also

known as trover. We argue this allegation is rebutted because (A) A common law special lien

has been created through the CP; (B) The Claimant has not undertaken sufficient intentional

conduct to have converted the goods in question; (C) Failure to deliver goods because they have

been lost or destroyed by accident or carelessness is not conversion and; (D) Goods lost or

destroyed cannot be subject to an act of conversion.

A A LIEN HAS BEEN CREATED THROUGH THE CHARTERPARTY

135. When considering what sort of lien has been created under a CP, we must consider

that it will be limited to what is expressly given.122

119 See Republic of Bolivia v Indemnity [1909] I K.B. 784; Re Privacy Hire Gentium [1934] A.C. 586 (P.C.) and Athens Maritime Enterprises Corporation v Hellenic Mutual War Risks Association (Bermuda) Ltd [1982] 2 Llyod’s Rep. 483. 120 City of Baroda (Owners) v Hall Line (1926) 42 T.L.R. 717; Hourani v Harrison (1927) 32 Com.Cas. 305; Potts v Union SS. Co. of New Zealand [1946] N.Z.L.R. 276; Leesh River Tea v British India Steam Navigation Co. [1966] 2 Llyod’s Rep. 193. 121 Czech v General Steam Co. (1867) L.R. 3 C.P. 14.


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136. As a result, a lien must be read subject to the express terms of the charter.123

Therefore we must turn to the terms found in the CP.

137. As per clause 26 of the ST4 CP agreement between the Claimant and Respondent,

the owners have lien upon all cargoes and all freights, sub-freights and demurrage for any

amounts due under the charter.

138. Thus by looking at the lien created, the Claimant has an express lien over all cargo

and freights, and therefore cannot be considered to have converted the cargo whilst waiting for

the payment of freight.

B THE CLAIMANT HAS NOT UNDERTAKEN SUFFICIENT INTENTIONAL

CONDUCT TO HAVE CONVERTED THE GOODS IN QUESTION

139. For the tort of conversion to be made there must be ‘intentional, wrongful

interference of a substantial nature with the Claimant’s possession or right to possession of the

goods.’124

140. The Respondent is claiming the chartererers and/or the receivers named on the BoL

have not taken possession of the goods named on the bill.

141. This does not amount to an intentional, wrongful interference of the goods and there

is no intention by the Claimant to interfere with the natural owners right.

142. The required elements for the tort of conversion cannot be made from these facts.

C GOODS LOST OR DESTROYED CANNOT BE SUBJECT TO AN ACT OF

CONVERSION

143. Under the Torts (Interference with Goods) Act 1977, s 2(2) there can be no action for

conversion of loss or destruction of goods if a bailee allowed the breach of his duty to the bailor

thus the Respondent cannot claim conversion for the goods lost at sea during the pirate attack.

122 See E. Clemens Horst Co v Norfolk etc.& Co. (1906) 11 Comm.Cas. 141 and Red “Superior” v Dewar & Webb [1909] 1 K.B. 998 (C.A.). 123 Canadian Pacific (Bermuda) Ltd v Logan Martime Overseas (The Fort Kipp) [1885] 2 Lloyd’s Rep. 168. 124 Lewis v Averay [1972] 1 QB 198


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144. Bailees are required to take reasonable care of the goods in their keeping and they

can be found liable for loss or destruction unless they can disprove fault.125

145. The Claimant disproves their fault in the matter as they were not provided with

sufficient bunkers to ensure they could take reasonable care of the goods in their keeping.

PART NINE: THE VESSEL WAS SEAWORTHY

146. We contend the Western Dawn, the vessel subject to this CP, was seaworthy as

required under the CP as: (A) All of the obligations of the owner were met; (B) the condition on

redelivery is a matter for the Respondent.

A ALL OF THE OBLIGATIONS OF THE OWNER WERE MET IN REGARD

TO SEAWORTHINESS

147. At common law there is implied in every contract for the carriage of goods by sea a

warranty by the carrier that the vessel is seaworthy , unless this warranty is expressly

excluded.126 That the the vessel is not as safe as other vessels does not amount to a breach of

warranty.127

148. A time charter includes an undertaking of seaworthiness at the beginning of the

time.128 If the Master proceeds on such a voyage without using an opportunity to remedy the

unseaworthy condition of his ship the owner will be liable for his negligence unless protected by

exceptions.129

149. Under the Carriage of Goods by Sea Act 1971 s 3 and CP clause 1 there is an

undertaking the shipowner will, exercise due diligence to make the ship seaworthy.

125 Sutcliffe v CC of West Yorksire [1996] RTR 86 126 Bank of Australasia v Clanline [1916] 1 KB 39 55. 127 Burgess v Wickham (1863) 3 B&S 669 128 Giertsen v Turnbull, 1908 S.C. 1101. 129 Worms v Storety (1855) ii Ex, 427; The Rona (1884) 51 L.T. 28.


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150. To consider what is seaworthy in any given situation, we must consider the relative

nature of the ship,130 the particular voyage she is contracted for,131 the particular stages of that

voyage being different in navigation forms132 and the particular cargo being carried.133

151. One of the tests for seaworthiness is: Would a prudent owner require the defect

should be made good before sending his ship to sea, had he known of it? If he would, the ship

was not seaworthy.134 It is important to note the undertaking does not require absolute perfection

or a guarantee of safe carriage135

152. Based on the facts there is nothing to suggest the ship was not seaworthy at the

outset of the voyage. As a result we contend that all obligations of the owner were executed

regarding the seaworthiness of the Western Dawn.

B THE CONDITION ON REDELIVERY IS A MATTER FOR THE

RESPONDENT

153. Time charters usually provide that the charter will redeliver the vessel in the same

good order and condition (with fair wear and tear excepted) as delivered to them.

154. If, however on redelivery the ship has, due to the charter’s breach of contract been

damaged, he is liable for the damages. He is not liable for hire during the period occupied by the

repairs.136

155. It is noted the words ‘fair wear and tear excluded’ will not necessarily protect the

charter even if the damage to the ship has been caused without negligence.137

130 Burgess v Wickham (1863) 3 B & S. 669 131 Empresa Cubana Importada de Alimentos “Alimport” v Iasmos Shipping Co. S.A. (The Good Friend) [1984] 2 Lloyd’s Rep. 586. 132 Thin v Rochards [1892] 2 Q.B. 141; Daniels v Harris (1874() L.R. 10 C.P. 1; Annen v Woodman (1810) 3 Taunt. 299. 133 Stanton v Richardson (1984) L.R. 9 C.P. 390; Tattersall v National Steamship Co. (884) 12 Q. B.D. 297 134 McFadden v Blue Star Line [1905] 1 K.B. 697 at p 706. 135 Stewart C. Boyd, Andrew S. Burrows and David Foxton, Scrutton on Charterparties and Bills of Lading (Sweet & Maxwell, 20th ed, 1996) 97. 136 Wye SS. Co v Compagnie P.O. [1922] 1 K.B. 617; Black Sea & Danube Shipping Co v Goeland Transport & Trading Co. (1942) L.I.L.R. 192 at p 195. 137 Chellew Navigation Co v Applequist (1933) 38 Com.Cas 218, C.P.R. v Board of Trade (1925) 22 L.I.L.R. 1 (H.L.)


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156. Per previous arguments that the ship was damaged due to the Respondents breach of

contract. The Charterers are therefore liable for damages occasioned to the vessel.

PART TEN: DAMAGES

157. Via the above arguments the Claimant has a right to damages which are (A)

Damages under the law of contract (B) Damages under the law of tort (C) Interest as per the

Arbitration Act 1996. (D) Consideration of limitation of liability.

A DAMAGES UNDER THE LAW OF CONTRACT

158. The usual aim of damages for breach of contract is to put the plaintiff into the

position they would have been in if the contract had been performed.138 The measure of damages

is governed by Hadley v Blaxendale:139 damages are limited to those flowing naturally from the

breach (direct loss) except where the parties had in contemplation extraordinary further

damages.140

159. Where once the test was causation flowing from foreseeable consequences, now it

requires the parties to have mutually contemplated the loss at time of contracting as a probable

financial consequence: ‘The Achilleas’.141

160. Claims for damages are restricted; damage cannot be recovered for a loss that is too

remote.

161. The test for remoteness is that the loss should be such as may fairly and reasonable

be considered arising naturally or as may reasonably be supposed to have been in the

contemplation of both parties at the time they made the contract and a probable result of the

breach of it.142

138 Robinson v Harman (1848) I Exch 850, 855; Monarch SS co v Karishamns [1949] A.C. 196, 220; Czarnikow v Koufos [1969] 1 A.C. 350, 414; Ruxley Electronics & Construction Ltd v Forfyth [1995] 3 W.L.R. 118, 112, 131-132. 139 (1854) 9 Exch 341. 140 Hadley v Blaxendale (1854) 9 Exch 341; Also Victoria Laundry (Windsor) Ltd v Newman Industries Ltd (1949) 2 KB 528. 141 Transfield Shipping Inc v Mercator Shipping Inc [2008] 2 Lloyd’s Rep 275. 142 Hadley v Baxendale (1854) 9 Ex. 341 at p. 354, per AldersonB.


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162. We must take into account that this is a two limbed test: the first limb starts at the

disjunctive ‘or’. The second limb deals with special circumstances, known to both parties at the

time the contract was made without which, knowledge that damage caused would not

reasonably have been considered as fairly and reasonably within contemplation of the parties.143

163. We assert both parties considered piracy in the geographical area in which they were

sailing, as arising naturally in the course of dealings.

164. Given the nature of shipping, it is reasonable to state the parties hold special

knowledge of this area and its piracy threat and therefore the second knowledge portion of the

test is met.

165. On this basis we contend we should be awarded damages to a sufficient amount to

put the Claimant in the position they would have been in had the contract not been performed

and we take this to be a repaired ship and medical expenses of the injured crew to be paid.

166. Exemplary damages cannot be award for breach of contract144 and none are

requested.

a) DUTY TO MITIGATE

167. Per contract law, the Claimant has a duty to mitigate loss and damages will not be

awarded for losses that could have reasonably been avoided.145

168. It should be noted that the duty to mitigate does not oblige the party not in default to

take any action, which would seriously damage his commercial reputation.146

169. We therefore contend that stopping the ship at port, when there was promise of

bunkers at a later stage of the journey, would have seriously damaged the commercial reputation

of the Claimant and there was no obligation to take such action.

B DAMAGES UNDER THE LAW OF TORT

143 Czarnikow v Koufos [1969] 1 A.C. 350, Per Lord Upjohn at pp 421 – 422. 144 Addis v Gramophone Co. Ltd [1909] A.C. 488; Perera v Vandiyar [1953] 1 W.L.R. 672. 145 British Westinghouse Electric v Underground Electric Railways Co. of London Ltd [1912] A.C. 673. 146 James Finlay & Co. v Kwik Hoo Tong [1929] 1 K.B. 400.


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170. We raise a claim for damages under the law of tort as per contract law, the usual

claim for tortious damages is to put the plaintiff into as good a position as they would have been

in had the tort not been committed.147

171. The advantage of this claim is that the level of liability is wider. The test for damages

under tort is simply that the Respondent is liable for any type of damage, which is reasonably

foreseeable as liable to apply even in the most unusual case, unless the risk is so small that a

reasonable person would in the whole circumstances feel justified in neglecting it.148

172. In line with this test, we submit that the Respondent should be liable for damages

done to the ship and crew, as it was reasonably foreseeable that a ship drifting in the area

prescribed by the Respondent would be susceptible to piracy, given the nature and known

history of the area.

173. We also raise the point that exemplary damages can be raised under the law of tort.149

a CONTRIBUTORY NEGLIGENCE

174. We understand that contributory negligence can lead to a reduction of damages for

most torts and if a situation of contributory negligence is found, it shall not defeat the claim, but

the damages recoverable shall be reduced to the extent the courts thinks just and equitable.150

175. We contend that no actions of the Claimant could have been considered contributory

in this matter and therefore this section does not apply.

176. In the alternative we contend any actions considered as contributory were of a minor

nature.

C INTEREST AS PER THE ARBITRATION ACT 1996

147 Livingstone v Raywards Coal Co. (1880) 5 App. Cas. 25 at p. 39; Shearman v Folland [1950] 2 K.B. 43 at p. 49; British Transport Commission v Gourley [1956] A.C. 185 at p. 187; Banques Bruxelles Lambert S.A. v Eagles Star Insurance Co. Ltd [1995] Q.B. 375, ay pp, 401 – 403. 148 Overseas Tankship (U.K.) v Morts Dock & Engineering Co. (The Wagon Mound) [1961] A.C. 388 149 Rookes v Barnard [1964] A.C. 1129; AB v South West Water Services Ltd [1993] Q.B. 507. 150 Law Reform (Contributory Negligence) Act 1945, s 1.


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177. Per s49 of the Arbitration Act 1996, we contend that interest should be awarded for

damages arising out of this situation and simple or compound interest should be awarded from

the date of decision until payment, at a rate and with such rests as the Tribunal considers meets

justice.

D CONSIDERATION OF LIMITATION OF LIABILITY

178. Per s185 of the Merchant Shipping Act 1995, the Convention on Limitation of

Liability for Maritime Claims 1976 ‘Convention’151 has force in the United Kingdom.

179. Per Art 1 of the Convention, shipowners may limit their liability in accordance with

Art 2 unless it is proved the loss resulted from a personal act or omission, committed with intent

to cause loss, or done recklessly with knowledge that loss was a likely result.152

180. The vessel has a gross tonnage of 59,315153 and in applying the formula, we calculate

the limit of liability of a shipowner for personal injury is 41,987,600 SDR.154

181. We calculate the limit of liability of a shipowner for property claims as 21,993,800

SDR.155

-PRAYER FOR RELIEF-

For the reasons set out above, the Claimant requests this Tribunal to:

DECLARE that this Tribunal has jurisdiction to hear the merits of the Claimant’s claims;

FIND that the Respondent is liable for breach of contract and/or the tort of fraud;

AWARD damages to the Claimant and interest on the amounts claimed.

151 Entry into force 13 May 2004 152 Convention on Limitation of Liability for Maritime Claims 1976, Art 4 153 Moot problem, page 48 154 Convention on Limitation of Liability for Maritime Claims 1976, Art 8 155 Ibid. Note amendments to the 1996 protocol enter into force as of 8 June 2015 which therefore will not retrospectively apply to this case.

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CLAIMANT’S MEMORANDA OF ARGUMENT - Murdoch University · part seven: there was no negligence by the master or crew page 31 a. the construction of the negligence exceptions does