Maritime Law

2nd NUALS National Moot on Maritime Law, 2015

IN THE HONBLE HIGH COURT OF SCINDIA, REPUBLIC OF SPARTA

ADMIRALTY JURISDICTION

SUIT NO . ___ / 2013

ZEUS & CO .

(PLAINTIFF)

V.

YA MAVLAYA

(DEFENDANT)

WITH

SUIT NO . ___ / 2013

NAND APARAJITHA & INDIAN GRACE

(PLAINTIFF)

V.

ALIAKMON

(DEFENDANT)

WITH

SUIT NO . ___ / 2013

XIANG SHIP BUILDING YARD

(PLAINTIFF)

V.

ALIAKMON

(DEFENDANT)

MEMORIAL FOR THE PLAINTIFFS

2nd NUALS National Moot on Maritime Law, 2015 -Table of Contents-

Memorandum On Behalf Of Plaintiffs Page ii

TABLE OF CONTENTS

List Of Abbreviations .................................................................................................................. iv

Index Of Authorities .................................................................................................................... vi

Statement of Jurisdiction ............................................................................................................ ix

Statement Of Facts ........................................................................................................................ x

Issues Raised ................................................................................................................................ xii

Summary of Arguments ............................................................................................................ xiii

Arguments Advanced ................................................................................................................... 1

1. BLUE STAR LINES IS LIABLE TO PAY DAMAGES FOR THE LOSS OF GOODS

OF ZEUS & CO. ......................................................................................................................... 1

1.1. It is the duty of the shipowner not to load dangerous goods on his vessel. .................. 1

1.2. Blue Star Lines is strictly Liable for carrying dangerous cargo on vessel. .................. 1

1.3. Ship-owner had the full opportunity of observing dangerous nature of goods while

they were being loaded. ........................................................................................................... 2

1.4. Ignorance can be no excuse for putting on board without noticing the dangerous

goods ...................................................................................................................................... 2

1.5. shipper is liable for loss of any goods on amount of detention of vessel if the

detention has occurred due to the carriage of dangerous goods on its holds. .......................... 3

1.6. Blue Star Lines failed to go to a safe port as a port of refuge. ..................................... 4

1.7. Port of Madiba was politically unsafe port. .................................................................. 4

2. THERE WAS BREACH OF CHARTER PARTY TERMS BY BLUE STAR LINES

AND ZEUS & CO. IS NOT LIABLE TO PAY DEMURRAGE AND DEAD FREIGHT. ...... 4

2.1. The said date was clearly mentioned as the latest arrival of ship by Blue Star Lines. . 4

2nd NUALS National Moot on Maritime Law, 2015 -Table of Contents-

Memorandum On Behalf Of Plaintiffs Page iii

2.2. Zeus & Co is not liable to pay demurrage .................................................................... 5

2.3. Rule of mutatis mutandis applies to the present case ................................................... 7

2.4. The clause or so near thereto as she can safely get does not abstains shipowners

from any liability of delayed arrival. ....................................................................................... 7

2.5. The laytime did not start when the vessel reached Petra .............................................. 8

2.6. Zeus & Co. is not liable to pay any deadfreight. .......................................................... 8

2.7. Zeus and Co. substituted the empty holds to minimize damages. ................................ 9

3. XIANG SHIPBUILDING COMPANY IS THE OWNER OF THE VESSEL

ALIAKMON AND BLUE STAR LINES IS LIABLE TO PAY OUTSTANDING

CONSTRUCTION CHARGES. ................................................................................................. 9

3.1. The vessel was not ascertained under 16 and 17 of sale of Goods act at the time of

payment of first Installment. .................................................................................................... 9

3.2. No property passed on the payment of 1st installment. ............................................... 10

3.3. If a different intention appears, 18 applies. ............................................................. 10

3.4. It was a sea trial and not the final delivery. ................................................................ 11

3.5. Blue Star was liable to return the ship back to the shipyard ....................................... 12

4. NAND APARAJITHA AND INDIAN GRACE ARE LIABLE TO RECEIVE SALVAGE

ASSISTANCE RENDERED TO ALIAKMON. ...................................................................... 12

4.1. Definition of Marine Peril .......................................................................................... 13

4.2. Voluntary service rendered when not required as an existing duty or from a special

contract. ................................................................................................................................. 13

4.3. Success in whole or in part, or contribution to the success of the operation. ............. 14

Prayer ........................................................................................................................................... 15

2nd NUALS National Moot on Maritime Law, 2015 -List of Abbreviations-

Memorandum On Behalf Of Plaintiffs Page iv

LIST OF ABBREVIATIONS

&

&-and

-Section

-Paragraph

A

A.C.-Appeal Cases

A.C.C. - Accusative Court Cases

A.I.R-All India Reporter

All E.R. -All England Reporter

Anr.-Another

C

C.A. - Court Appeal

Co.-Company

Co-op.-Cooperation

CPC- Code of Civil Procedure

E

E.L. &B.L.-Ellis & Blackburn's Queen's

Bench Reports (England)

Ed.-Edition

H

H.L.-House Lords

Hon'ble-Honorable

I

I.T.R.-International Trade Reporter

Inc.-Incorpration

K

K.B. -King's Bench

L

Ltd.-Limited

LR- Llyod's Reporter

L.M.L.N. -Llyod's Maritime Law Newsletter

M

M/s.-Messers

O

Ors.-Others

P

p.-Page no

Pvt.-Private

2nd NUALS National Moot on Maritime Law, 2015 -List of Abbreviations-

Memorandum On Behalf Of Plaintiffs Page v

Q

Q.B. - Queen's Bench

Q.B.D. - Queen's Bench Division

R

Rep.-Reporter

S

S.C.-Supreme Court

T

T.L.R. - Times Law Report

V

v.-Versus

W

WLR- Weekly Law Reports

2nd NUALS National Moot on Maritime Law, 2015 -Index of Authorities-

Memorial On Behalf Of Plaintiffs Page vi

INDEX OF AUTHORITIES

Cases

Acatos v. Burns, (1878) 3 Ex. D 282 .............................................................................................. 2

Atkins international HA v Islamic republic of Iran shipping lines 1987 2 Lloyds rep 37 ............ 4

Atlantic Oil Carriers v. British Petroleum Co., (1957) 2 Lloyds Rep 55 ...................................... 3

Barker v. MAndrew, (1865) 18 CB Ns 759 .................................................................................. 1

Borrowman v Drayton, (1876) 2 Ex. D 15 ..................................................................................... 9

Brass v. Maitland 1856 6 E. & B. 470 ............................................................................................ 2

Brass v. Maitland, (1856) 6 E. & B. 470 ........................................................................................ 3

Brown v. Johnson, 10 M. & W. 331 ............................................................................................... 7

Cf. Monroe Bros v. Ryan, (1935) 2 KB 28 ..................................................................................... 1

Chandris v Isbrandtsen-Moller Co Inc, (1951) 1 K.B. 240 ............................................................ 4

Evera Sa Commercial v North Shipping Co Ltd, (1956) 2 Llyods Rep 367 ................................. 5

Goods v Isaacs, (1892) 2 QB 555 ................................................................................................... 6

Leonis Co. v Rank, (1908) 1 KB 499 ............................................................................................. 6

Markakis v. S/S Volendam, (1995) 486 F. Supp. 508 .................................................................. 14

McDougall v. Aeromarine of Emsworth Ltd., (1958) 3 All E.R. 431 .......................................... 10

Mitchell v. Steel , (1916) 2 KB 610 ................................................................................................ 3

Nielsen v Wait, (1885) 16 QBD 67 ................................................................................................ 7

Norden Steamship Co v. Dempsey, (1876) 1 CPD 654 .................................................................. 7

North River Freighter v President of India, (1956) 1 QB 333 ........................................................ 6

Ogden v. Graham 1861 1 B & S 773 .............................................................................................. 4

Oldenfrodd v Tradax Export, (1974) AC 479 ................................................................................. 7


Memorial On Behalf Of Plaintiffs Page vii

Owners of S.S. Melanie Appellants v Owners of S.S. San Onofre Respondents, (1925) A.C 246

................................................................................................................................................... 14

Sabestian v. De Vizcaya, (1920) 1 KB 332 .................................................................................... 4

Samuel Sanday & Co. v Keighley Maxted & Co., (1922) 27 Com Cas 296 .................................. 5

TA Shipping Ltd v Comet Shipping Ltd (The Agamemnon), (1998) C.L.C. 106 ....................... 8

Tapscott v Balfour, (1872) LR 8 CP 46 .......................................................................................... 6

Tharsis Sulphur and Copper Company Limited v Morel Brothers & Co and others [1891] 2 QB

647 ............................................................................................................................................... 7

The Neptune, (1824) 1 Hagg. 227 .............................................................................................. 13

The Altus, (1985) Lloyds rep. 423 ................................................................................................ 9

The Felix, (1868) LR 2 A&E 273 ................................................................................................... 7

The Mexico 1, (1990) 1 Lloyds Rep 507....................................................................................... 9

Underwood Ltd v Burgh Castle Brick and Cement Syndicate, (1922) 1 KB. 343. ...................... 11

Vanderspar v. Duncan, (1871) 8 T.L.R. 30 ................................................................................ 2, 3

Watson v Borner, (1900) 5 Com Cas. 377 ...................................................................................... 6

Statutes

16, Sale of Goods Act, 1979 ...................................................................................................... 10

17(2), Sale of Goods Act, 1979 ................................................................................................. 10

17, Sale of Goods Act, 1979 ...................................................................................................... 10

18 Rule 2, Sale of Goods Act, 1979........................................................................................... 11

61(5), Sale of Goods Act, 1979 ................................................................................................. 11

Other Authorities

Glossary of Terms, United States Coast Guard ............................................................................ 12


Memorial On Behalf Of Plaintiffs Page viii

London Arbitraion 10/83 LMLN 193 ............................................................................................. 5

London Arbitration 17/82 (L.M.L.N. 76) ....................................................................................... 9

Lush. 518....................................................................................................................................... 15

Nunley, 863 F.2d at 1200. ............................................................................................................. 13

Treatises

Reeder, Brice on Maritime Law of Salvage, (4th

ed. 2003) ......................................................... 14

Stephen Girvin, Carriage Of Goods By Sea, (2011) ................................................................... 5, 8

Thomas Edward Scrutton and Stewart C Boyd, Scrutton on charterparties and bills of

lading,(21st ed., 2008) ................................................................................................................. 2

2nd NUALS National Moot on Maritime Law, 2015 -Statement of Jurisdiction-

Memorial On Behalf Of Plaintiffs Page ix

STATEMENT OF JURISDICTION

THE HONBLE HIGH COURT HAS ADMIRALTY JURISDICTION TO TRY THE INSTANT MATTER UNDER

RULE 928 OF RULES FOR REGULATING THE PROCEDURE AND PRACTICE IN CASES BROUGHT BEFORE

THE HIGH COURT UNDER THE COLONIAL COURTS OF ADMIRALTY ACT, 1890.

RULE 928:

Institution of Suits - A suit shall be commenced by a plaint signed and verified according to the

provisions of the Code of Civil Procedure, 1908.

According to 26 of CPC:

Every suit shall be instituted by the presentation of a plaint or in such other manner as may be

prescribed.

2nd NUALS National Moot on Maritime Law, 2015 -Statement of Facts-

Memorial On Behalf Of Plaintiffs Page x

STATEMENT OF FACTS

I.

On 1st October, 2011, Xiang Shipbuilding Yard contracted with Blue Star Lines to construct a

bulk carrier vessel according to Norwegian Ship owner's Association Form where contract

provided for absolute transfer of vessel on payment of first installment. Risk was not to pass until

delivery and any defective workmanship or material found within 12 months was to be made

good by Xiang Shipbuilding Yard.

II.

In August, 2013, Blue Star Lines entered into a charterparty agreement with Zeus & Co. from

Republic of Aaron for chartering out their bulk carrier YA MAVLAYA for transportation of

10,000 MT of coal from Port of Minsk to Shangze in Republic of Aaron. The captains and

officers of the vessel were appointed by Blue Star Lines but were paid by Zeus & Co. The

charterparty provided that Blue Star Lines will make available YA MAVLAYA at Port of

Minsk or so there near to safely as she can get on or before 1st Sept. 2013.

III.

Since 'YA MAVLAYA' missed the tide, it reached Petra on 29th August, 2013, 30 miles down

the river, which was the usual place of waiting for ships plying to Minsk. By the time ' YA

MAVLAYA' berthed at Minsk and cargo made available was loaded, lay time agreed to in

charter party expired. Zeus and Co. loaded only 8000 MT coal out of contracted 10,000 MT

upon which claims of dead fright and demurrage were raised by Blue Star Lines. On account of

an empty hold, captain of 'YA MAVYALA' was instructed by Zeus and Co to proceed to nearby

Port of Kripsto and take in charge of ammunition comprising shells and cartridges.

2nd NUALS National Moot on Maritime Law, 2015 -Statement of Facts-

Memorial On Behalf Of Plaintiffs Page xi

IV.

While passing through Gulf of Aruba, 'YA MAVLAYA' got into rough weather and captain

sought port of refuge in nearest port of Madiba in Republic of Catonia which had long standing

boundary disputes with Republic of Aaron and three wars were already fought amongst them.

While anchored, captain of 'YA MAVLAYA' was instructed to facilitate inspections of goods

and not leave the port. Apprehending seizure of arms, Captain proceeded full throttle to the high

seas and was finally caught in hot pursuit resulting in arrest of crew and seizure of goods.

V.

Xiang Shipbuilding Yard proceeded to complete the ship and accordingly, the ship was

christened 'ALIAKMON' with a certificate of registry obtained from a flag of convenience. On

1st of September, 2013, Engineers from Blue Star Lines boarded the ship for a trial. While on

trial run, the vessel developed mechanical problems. The construction was wanting with serious

design and mechanical defects.

VI.

Having developed mechanical problems, 'ALIAKMON' was in distress as it started taking in

water. 'NAND APARAJITHA', a vessel in vicinity, came to its rescue and towed it to safety. On

entering territorial waters of Republic of Sparta and apprehending her own safety, 'NAND

APARJITHA' abandoned 'ALIAKMON' and sailed away and finally 'ALIAKMON' was towed

into port of NEVA by 'INDIAN GRACE'.

2nd NUALS National Moot on Maritime Law, 2015 -Issues Raised-

Memorial On Behalf Of Plaintiffs Page xii

ISSUES RAISED

1. Whether Zeus & Co. is liable to claim damages from Blue Star Lines for loss of goods and

ammunition?

2. Whether there was a breach of charterparty terms by Blue Star Lines and is Zeus & Co.

liable to pay demurrage and deadfreight charges?

3. Whether the ownership of vessel has passed on to Blue Star Lines?

4. Whether NAND APARAJITHA and INDIAN GRACE are liable for salvage remuneration

from Blue Star Lines?

2nd NUALS National Moot on Maritime Law, 2015 -Summary of Arguments-

Memorial On Behalf Of Plaintiffs Page xiii

SUMMARY OF ARGUMENTS

1. Blue star lines is liable to pay damages for the loss of goods of Zeus & Co.

Firstly, The Plaintiffs humbly submit that Blue Star Lines is liable to pay damages to Zeus & Co

for loss of the goods as the loss was directly related to the actions of Blue Star Lines. Also, the

damages suffered by Zeus & Co are on the account of consequences of actions of the defendants

to carry contraband goods liable for seizure on the vessel.

Secondly, It is submitted before the honorable court that Blue Star lines while loading the

ammunition had the full opportunity to check the dangerous nature of goods. Also, Blue Star

Lines failed to take a safe port as a port of refuge when the vessel was entrapped in the storm.

2. There was breach of charter party terms by Blue star lines and Zeus & Co. is not liable

to pay demurrage and dead freight.

Firstly, It is submitted to the honorable court that Blue Star Lines has breached the charter party

terms by not providing the vessel at the scheduled date at the port of loading. It is contended on

the behalf of Zeus & Co that it was shipowners duty to reach the said loading port of Minsk on

1st Sept which they have failed to do thus breaching the said terms of charter party.

Secondly, It is submitted to the court that Zeus & Co. is not liable to pay any deadfreight to Blue

Star Lines as they have loaded the amount of cargo as stipulated in the charter party agreement.

It is clear from the terms of contract that No minimum tonnage has been established.

3. Xiang Shipbuilding Company is the Owner of the Vessel ALIAKMON and Blue Star

Lines is liable to pay outstanding construction charges.

It is submitted that Property in contract for sale of ascertained goods transfers when the parties

intend it to be transferred which is to be determined by the terms of contract. The contractual

agreement in this case specifically provided for transfer of property on payment of first

2nd NUALS National Moot on Maritime Law, 2015 -Summary of Arguments-

Memorial On Behalf Of Plaintiffs Page xiv

instalment. Also, both design and mechanical defects come under the scope of 'Builders

Warranty' for which he is liable in case of bad workmanship.

4. Nand Aparajitha and Indian grace are liable to receive salvage assistance rendered to

ALIAKMON.

NAND APARAJIHA and INDIAN GRACE provided salvage assistance to aliakmon when

she was in distress and helped her get to safety, thus salvaging the ship. Hence, they are entitled

to remuneration.

2nd NUALS National Moot on Maritime Law, 2015 -Arguments Advanced-

Memorial On Behalf Of Plaintiffs Page 1

ARGUMENTS ADVANCED

1. BLUE STAR LINES IS LIABLE TO PAY DAMAGES FOR THE LOSS OF GOODS

OF ZEUS & CO.

It is humbly submitted to the court that Blue Star Lines is liable to pay damages for the loss of

goods of Zeus & Co. as it was the duty of Blue Star Lines not to load any dangerous cargo on the

vessel.

1.1. IT IS THE DUTY OF THE SHIPOWNER NOT TO LOAD DANGEROUS GOODS ON HIS

VESSEL.

It is submitted that Blue Star lines is liable to pay damages for loss of cargo and ammunition as

loss occurred to Zeus & Company as a direct consequence of the action of Blue Star Lines.

It is also submitted that under the common law1 doctrines, it is the in nominate term in the

charter party agreements that the shipper will not carry goods of dangerous nature which can

cause harm to either vessel or cargo loaded on the vessel.2

The cargo was seized on the account of contraband good on the vessel. It is contended that Blue

Star Lines is liable to pay damages for the seizure of cargo as it was their responsibility not to

load any dangerous cargo on their vessel.

1.2. BLUE STAR LINES IS STRICTLY LIABLE FOR CARRYING DANGEROUS CARGO ON

VESSEL.

It is pleaded that Blue star lines are strictly liable3 for the loss of cargo of Zeus & Co. as they

carried contraband goods on the vessel which was the sole reason of the seizure of vessel and

1 Barker v. MAndrew, (1865) 18 CB Ns 759.

2 Cf. Monroe Bros v. Ryan, (1935) 2 KB 28.

3 Brass v. Maitland 1856 6 E. & B. 470



cargo by Republic of Catonia. The shipowner had no obligation to carry goods of such a nature

which can consequently cause damage to either vessel or the cargo loaded on the vessel. Also, it

was the implied warranty by the shipowner not to carry any goods which can be dangerous in

ordinary course of action.4 It is further submitted that shipowner was in the full knowledge of the

ammunition loaded on the vessel and hence can be held strictly liable for the loss of cargo of

Zeus & co.5

1.3. SHIP-OWNER HAD THE FULL OPPORTUNITY OF OBSERVING DANGEROUS NATURE

OF GOODS WHILE THEY WERE BEING LOADED.

It is submitted before the honorable court that Blue Star lines while loading the ammunition had

the full opportunity to check the dangerous nature of goods. In Vanderspar v. Duncan, it was

held that ammunition qualifies under the definition of legally dangerous goods.6 The goods here

loaded were clearly under the ambit of legally dangerous goods as decided by the House of

Lords in the case of Vanderspar v. Duncan.7

1.4. IGNORANCE CAN BE NO EXCUSE FOR PUTTING ON BOARD WITHOUT NOTICING

THE DANGEROUS GOODS

Although, the shipper may claim that they had no knowledge of the cargo loaded on their vessel

but it is the implied duty if the shipowner of not to load anything on the vessel without

inspection.8 Furthermore in the words of Lord Campbell CJ

4 Thomas Edward Scrutton and Stewart C Boyd ,Scrutton on charterparties and bills of

lading,(21st ed., 2008)

5 Acatos v. Burns, (1878) 3 Ex. D 282

6 Vanderspar v. Duncan, (1871) 8 T.L.R. 30.

7 Ibid.

8 Brass v. Maitland, (1856) 6 E. & B. 470.



Ignorance can be no excuse for putting on board without notice the dangerous goods9

Thus, it is said that it was the duty of the shipowner to inspect whatever cargo they are carrying

before starting the voyage.

1.5. SHIPPER IS LIABLE FOR LOSS OF ANY GOODS ON AMOUNT OF DETENTION OF

VESSEL IF THE DETENTION HAS OCCURRED DUE TO THE CARRIAGE OF DANGEROUS

GOODS ON ITS HOLDS.

Further, it is submitted that reasonable risk were foreseeable while shipment of ammunition

which the carries should have reasonably observed.10

Also, in the case of Mitchell v. Steel,11

it

was held that the shipper is liable for loss of any goods on amount of detention of vessel if the

detention has occurred due to the carriage of dangerous goods on its holds. The ratio of case can

be similarly applied in the present case also which clearly makes Blue Star Lines liable.

Although, the goods in this case were not physically dangerous but they do qualify under the

ambit of the term legally dangerous.12

It is also said that although the goods didnt cause any

physical harm to the vessel, but the seizure of vessel was directly related to the cargo loaded on

the vessel. Thus it can be held that these goods were analogous to the shipment of dangerous

cargo which might cause the destruction of the ship.13

It is also humbly submitted that carriage of

dangerous goods on the holds of a chartered vessel is considered as a breach of fundamental

9 Ibid.

10 Atlantic Oil Carriers v. British Petroleum Co., (1957) 2 Lloyds Rep 55.

11 Mitchell v. Steel , (1916) 2 KB 610.

12 Vanderspar v. Duncan, (1871) 8 T.L.R. 30.

13 Sabestian v. De Vizcaya, (1920) 1 KB 332.



terms of a charter party agreement.14

Hence, it can be said that Blue Star Lines is liable to pay for

the cargo lost on account of their negligence.

1.6. BLUE STAR LINES FAILED TO GO TO A SAFE PORT AS A PORT OF REFUGE.

Blue Star Lines failed to take a safe port as a port of refuge when the vessel was entrapped in the

storm. It is well established that the captain is required to only go to or nominate the ports which

are safe for both cargo and vessel.15

It is also contended that risk of unsafely factor here either it

should fall on charterer or shipowner is immaterial.

1.7. PORT OF MADIBA WAS POLITICALLY UNSAFE PORT.

Furthermore, it is said that the Port of Madiba which was chosen as the port of refuge in the

current case was a politically unsafe port.16

It is also contended that on account of past wars

between the Republic of Aaron and Catonia, there was sufficient apprehension of a hostile

seizure on account of the presence of contraband goods on the vessel which the ship-owner had

failed to recognize thus making him liable for the loss of goods.

2. THERE WAS BREACH OF CHARTER PARTY TERMS BY BLUE STAR LINES

AND ZEUS & CO. IS NOT LIABLE TO PAY DEMURRAGE AND DEAD FREIGHT.

It is submitted to the honorable court that Blue Star Lines has breached the charter party terms by

not providing the vessel at the scheduled date at the port of loading. It is contended on the behalf

of Zeus & Co that it was shipowners duty to reach the said loading port of Minsk on 1st Sept

which they have failed to do thus breaching the said terms of charter party.

1.1. THE SAID DATE WAS CLEARLY MENTIONED AS THE LATEST ARRIVAL OF SHIP BY BLUE

STAR LINES.

14

Chandris v Isbrandtsen-Moller Co Inc, (1951) 1 K.B. 240.

15 Atkins international HA v Islamic republic of Iran shipping lines 1987 2 Lloyds rep 37

16 Ogden v. Graham 1861 1 B & S 773.



It is submitted before the honorable court that any charterer in a charter party agreement requires

the arrival of vessel to be ascertained with some degree of accuracy which was 1st September in

the present case but the shipowner has failed to provide the vessel on the said date which clearly

amounts to breach of charter party terms.17

Further, these words mean that in the light of the fact known to the owner at the time of the

making of the contract, the expected date was decided on account of the expectations based on

reasonable grounds.18

Thus, the Blue Star Lines in the present case cannot absolve from liability

on account of any inability that may construe while making the preliminary voyage to the

loading port as the Expected ready to load date clearly takes in account all the risk involved.19

This also clearly signifies that Blue Star lines cannot claim the grounds of force majeure to

abstain from liability for non performance of contract.20

2.1. ZEUS & CO IS NOT LIABLE TO PAY DEMURRAGE

Firstly, It is contended that Zeus & Co is not liable to pay any demurrage to Blue star Lines as

the delay was caused by Blue Star Lines only in delivering the ship to the port within the said

time. The main issue to be debated here is from when does the lay time starts and when the said

vessel does becomes the arrived ship. To argue this, it is submitted that one must distinguish

between the places where the ship becomes the arrived ship and the place where it is the duty of

17

Evera Sa Commercial v North Shipping Co Ltd, (1956) 2 Llyods Rep 367.

18 Samuel Sanday & Co. v Keighley Maxted & Co., (1922) 27 Com Cas 296.

19 London Arbitraion 10/83 LMLN 193.

20 Stephen Girvin, Carriage Of Goods By Sea, (2011).



the charterer to load the cargo.21

Further, if the charterer has to proceed to a specified and actual

loading port, then the ship becomes an arrived ship when it gets to the named port.22

Although, when the charterer is bound to load the cargo on vessel when the vessel gets to the

said port23

and mere arrival at the port cannot commence laytime. Also, the ship must have

served a proper notice of readiness before arriving to the said port.24

In the said case also, the

vessel didnt become an arrived ship when it reached the said spot of Petra. It is contended that

ship only became and arrived ship when it cleared the tide and reached the said Port of Minsk as

agreed in the Charter Party. Hence, it can be claimed that laytime only started when the vessel

reached the said port of Minsk and not Petra.

Secondly, it is submitted that the charterer proceeded to the said port of the Minks well before

the vessel arrived and was ready to load the cargo as soon as the vessel arrived. In the case of

Tapscott v Balfour,25

it was held that the charterer is to proceed at the said port as named under

the charter party agreement and the ship will, in the absence of any custom of the port regulating

the matter of arrival will only be an arrived ship when it reaches the said port and not any other

spot.26

Moreover, the charterer is not bound to load any cargo into the vessel before she reaches

the agreed point27

and not merely in the area of the said port.28

21

Leonis Co. v Rank, (1908) 1 KB 499.

22 North River Freighter v President of India, (1956) 1 QB 333.

23 Watson v Borner, (1900) 5 Com Cas. 377.

24 Goods v Isaacs, (1892) 2 QB 555.

25 Tapscott v Balfour, (1872) LR 8 CP 46.

26 Tharsis Sulphur and Copper Company Limited v Morel Brothers & Co and others [1891] 2 QB

647.

27 The Felix, (1868) LR 2 A&E 273.

28 Norden Steamship Co v. Dempsey, (1876) 1 CPD 654.



2.2. RULE OF MUTATIS MUTANDIS APPLIES TO THE PRESENT CASE.

It is also contended that the rule of mutatis mutandis as defined in the case of Brown v

Johnson29

also applied in the present case, i.e. the charterer is to proceed to the specific port only

and not any other spot even in the port limits.

It is humbly submitted to this court that for laytime to begin and ship to become an arrived ship,

it is also the burden on the shipowner to prove that the vessel is at the immediate and effective

disposal of the charterer.30

The shipowners here have clearly failed to discharge this burden of

proof and it is thus claimed that ship was not at all at the immediate and effective disposal of the

petitioners when it reached Petra. Furthermore, the said spot was around 17 miles from the port

and it was impossible for the charterers to carry 10000 MT of coal. Also, even the vessel is

within the port in its business sense, it is contended that loading of cargo is impossible unless and

until the vessel reaches the agreed Port only and not any other place.31

2.3. THE CLAUSE OR SO NEAR THERETO AS SHE CAN SAFELY GET DOES NOT

ABSTAINS SHIPOWNERS FROM ANY LIABILITY OF DELAYED ARRIVAL.

It is also contended on the behalf of petitioners that the clause or so near thereto as she can

safely get does not abstains shipowners from any liability of delayed arrival. It is further

claimed that the Notice of Arrival given to agents of my client was invalid. In TA Shipping Ltd v

Comet Shipping Ltd (The Agamemnon)32

it was held that he notice of arrival given before the

vessel arrived at port was not a valid notice because the vessel had not reached a point as close

to the loading berth as she might be permitted to approach.

29

Brown v. Johnson, 10 M. & W. 331.

30 Oldenfrodd v Tradax Export, (1974) AC 479.

31 Nielsen v Wait, (1885) 16 QBD 67.

32 TA Shipping Ltd v Comet Shipping Ltd (The Agamemnon), (1998) C.L.C. 106.



Furthermore, at the time the notice was given, the owners had not complied with the terms of the

charterparty for the giving of notice. It was not a valid notice and could not operate to commence

laytime. It is also contended that missing of tide cannot be argued as a valid condition for giving

notice of readiness. Also, the notice of readiness stands invalid as it was not given on account of

port congestion or any other obstacle.

2.4. THE LAYTIME DID NOT START WHEN THE VESSEL REACHED PETRA

It is argued that laytime did not commence when the vessel reached the Petra but only on the

commencement of loading which nullifies the claim for demurrages. There was no valid

distinction between a notice which was untrue and a nullity and one which was potentially valid

or inchoate because it was true in that the vessel was at the point specified in the notice, but

premature because the point specified in the notice was not the place stipulated in the charter for

giving notice.33

It is also contended that a notice of readiness, given at a time when the vessel had not arrived at

the place required under the charterparty, did not become valid automatically when the vessel

became an arrived ship.34

Hence, it is humbly pleaded to this court that Zeus & Co. is not

liable to pay any demurrage as laytime never commenced at Petra.

2.5. ZEUS & CO. IS NOT LIABLE TO PAY ANY DEADFREIGHT.

It is submitted to the court that Zeus & Co. is not liable to pay any deadfreight to Blue Star Lines

as they have loaded the amount of cargo as stipulated in the charter party agreement. It is clear

from the terms of contract that No minimum tonnage has been established. Thus, it can be

33

Stephen Girvin, Carriage Of Goods By Sea, (2011).

34 The Mexico 1, (1990) 1 Lloyds Rep 507.



contended on behalf of charterer that they can load cargo anywhere from 0 MT to 10000 MT.35

It

is also submitted that lack of Full and complete cargo clause abstains charterers liability and

thus they are not liable to pay any deadfreight charges. Further, the clause doesnt apply here and

the charterer has no obligation to load full cargo either by weight or volume.36

2.6. ZEUS AND CO. SUBSTITUTED THE EMPTY HOLDS TO MINIMIZE DAMAGES.

It is contended on the part of Zeus & Co. that although it had not loaded 10000MT of coal but it

loaded Ammunition on the empty holds of the vessel thus minimizing the damages.37

It is also

said that Zeus & Co. successfully filled the empty spaces thus cannot be held liable as shipowner

occurred on losses on account of whole capacity of vessel being put to use. Hence, it is pleaded

that Zeus & Co is not liable to pay any deadfreight charges on account of the above arguments

forwarded.

3. XIANG SHIPBUILDING COMPANY IS THE OWNER OF THE VESSEL

ALIAKMON AND BLUE STAR LINES IS LIABLE TO PAY OUTSTANDING

CONSTRUCTION CHARGES.

It is humbly pleaded that ownership of the vessel ALIAKMON has not passed to Blue Star Lines

under The Sale of Goods Act and further, Blue Star Lines is liable to pay outstanding

construction charges.

3.1. THE VESSEL WAS NOT ASCERTAINED UNDER 16 AND 17 OF SALE OF GOODS ACT AT

THE TIME OF PAYMENT OF FIRST INSTALLMENT.

It is said that under 16 and 17 of the Sale of Goods Act, the vessel was not ascertained even

after the payment of first installment. Section 16 of Sale of Goods Act, 1979, provides that where

35

London Arbitration 17/82 (L.M.L.N. 76).

36 The Altus, (1985) Lloyds rep. 423.

37 Borrowman v Drayton, (1876) 2 Ex. D 15.



there is a contract for sale of unascertained goods, no property in them is transferred until and

unless the goods are ascertained.38

Section 17 provides that property is transferred in case of sale

of ascertained goods when it is intended by the parties.39

The intention of the parties is

determined from terms of contract, circumstances of the case and the conduct of the parties.40

In

case a different intention appear, then rules under Section 18 can be referred to. In McDougall

v. Aeromarine of Emsworth Ltd. where the contract provided that the ship was to be transferred

on payment of first installment along with all the machinery, it was held that no property was

transferred since construction of vessel had not commenced.41

3.2. NO PROPERTY PASSED ON THE PAYMENT OF 1ST INSTALLMENT.

In the present case, the contract provided for transfer of ship along with all machinery and

equipment on payment of first installment. Since, at the time of payment of first installment,

no construction had taken place till that time which is established by the fact that orders for

engine and materials were given only after payment of first installment. Therefore, no property

passed to the defendants on payment of first installment. It is also submitted by the plaintiffs that

no such installment has been paid by the defendant and the amount of construction remains

outstanding.

3.3. IF A DIFFERENT INTENTION APPEARS, 18 APPLIES.

It is pleaded that according to Rule 2 of Section 18, "Where there is a contract for the sale of

specific goods and the seller is bound to do something to the goods for the purpose of putting

them into a deliverable state, the property does not pass until the thing is done and the buyer has

38

16, Sale of Goods Act, 1979.

39 17, Sale of Goods Act, 1979.

40 17(2), Sale of Goods Act, 1979.

41 McDougall v. Aeromarine of Emsworth Ltd., (1958) 3 All E.R. 431.



notice that it has been done."42

Goods are in a deliverable state when they are in a state that the

buyer would be bound by the contract to take delivery of them.43

The seller is bound to put the

goods in a deliverable goods that means from actual state they are in a state where they have to

be delivered by the terms of the contract.44

It is therefore contended that a deliverable state here would be a ship that has been constructed

and ready for delivery which was not the case. Hence, it is argued that the title was not

transferred and the ownership still lies with the plaintiffs.

Then the plaintiffs would not be liable to pay for any damages for breach of contract.

It is submitted by the plaintiffs that on 1st September, 2013, the sea trials were being conducted

which is an interim stage between completion of construction of ship and its subsequent

acceptance by the buyer.

3.4. IT WAS A SEA TRIAL AND NOT THE FINAL DELIVERY.

It is argued that this was only the sea trial and not the final delivery of vessel thus nullifying the

claim to Blue Star for ownership of the vessel. Basically, Sea trial is a term referring to a serious

of rigorous, underway tests where the ship is floated out of its construction hangar or a dry dock

to the sea by the initial crew which consists of yard workers and its crew who are in command of

vessel at that point of time.45

The ship is sailed in waters for purpose of testing the equipment,

machinery like ship's hull and its design.

42

18 Rule 2, Sale of Goods Act, 1979.

43 61(5), Sale of Goods Act, 1979.

44 Underwood Ltd v. Burgh Castle Brick and Cement Syndicate, (1922) 1 KB. 343.

45 Glossary of Terms, United States Coast Guard, available at

http://www.uscg.mil/acquisition/programs/glossary.asp, last seen on 12/02/2015

http://www.uscg.mil/acquisition/programs/glossary.asp



Trials typically have three phases of dock trials (also called machinery trials), builder trials and

acceptance trials. Builder Trials, which include comprehensive tests of ship's equipment and

machinery like speed, endurance and maneuvering tests, are usually done by the builder and the

ship is readied for acceptance trials by the Buyer.46

Acceptance trials are similar in scope to builder trials except for the fact that it is done in due

presence of the buyers so that the buyers ensure the ship meets all design specifications

according to the contractual requirements.47

According to the outcome of acceptance trials, it is

decided whether the ship is suitable for final delivery or not since any discrepancies noted must

be corrected before the delivery of the ship.

3.5. BLUE STAR WAS LIABLE TO RETURN THE SHIP BACK TO THE SHIPYARD

It is contended by the plaintiffs that on 1st September, 2013, the ship was on a trial run along the

coast of Republic of Aaron which was being conducted in due presence of engineers from Blue

Star Lines. Often during testing, problems arise in case of which the ship is brought back to the

shipyard to address the concerns. In the present case, after the ship developed technical problems

and started taking in water, it should have been brought back to the shipyard where the problems

could have been rectified. Instead, the ship was taken to Republic of Sparta and Blue Star Lines

sued for breach of contract. Therefore, in no way are the Plaintiffs liable for breach of contract.

4. NAND APARAJITHA AND INDIAN GRACE ARE LIABLE TO RECEIVE

SALVAGE ASSISTANCE RENDERED TO ALIAKMON.

It is contended that NAND APARAJITHA and INDIAN GRACE are liable to receive salvage

assistance rendered to ALIAKMON. A successful salvage claim requires three proofs: (1)

46

Ibid.

47 Ibid.



marine peril; (2) voluntary service rendered when not required as an existing duty or from a

special contract48

; and (3) success in whole or in part, or contribution to the success of the

operation.49

4.1. DEFINITION OF MARINE PERIL

The Marine Insurance Act 1906 c. 41 defines maritime perils as: Maritime perils means the

perils consequent on, or incidental to, the navigation of the sea, that is to say, perils of the seas,

fire, war perils, pirates, rovers, thieves, captures, seizures, restraints, and detainments of princes

and peoples, jettisons, barratry, and any other perils, either of the like kind or which may be

designated by the policy.

To determine whether there is a marine peril, it is to be seen whether the ship is in a position that

might expose her to possible loss or destruction.50

At the time that assistance was rendered to

ALIAKMON, she was in distress, and had started taking in water. Therefore, it was facing

marine peril.

4.2. VOLUNTARY SERVICE RENDERED WHEN NOT REQUIRED AS AN EXISTING DUTY

OR FROM A SPECIAL CONTRACT.

Voluntary Service here means that the salver shouldnt have acted under a legal duty to act.

Therefore, the salver shouldnt be bound by a contract or be under any other obligation to assist.

When a person acts as a volunteer and saves goods from destruction or loss he earns a right to

salvage.51

There was no contract for salvage assistance between NAND APARAJITHA or

48

The Neptune, (1824) 1 Hagg. 227

49 Nunley, 863 F.2d at 1200.

50 Markakis v. S/S Volendam, (1995) 486 F. Supp. 508

51 Reeder, Brice on Maritime Law of Salvage, (4

th ed. 2003)



INDIAN GRACE and ALIAKMON. Also, NAND APARAJITHA or INDIAN GRACE was not

under a legal obligation52

to assist ALIAKMON when in peril.

4.3. SUCCESS IN WHOLE OR IN PART, OR CONTRIBUTION TO THE SUCCESS OF THE

OPERATION.

It is submitted on part of petitioners that VISCOUNT CAVE L.C. held in Owners of S.S.

Melanie Appellants; v Owners of S.S. San Onofre Respondents,53

that to earn a reward for

salvage, the vessel which provided assistance must have done so to some purpose, meaning

that the vessel should have been salved and the former vessel must have contributed to that

result. Sir John Coleridge delivered the judgment of the Privy Council in The Atlas,54

that there

could be no salvage award if the vessel was not salved, but he also added that where a salvage

is finally effected, those who meritoriously contribute to that result are entitled to a share of the

reward, although the part they took, standing by itself, would not in fact have produced it.

INDIAN GRACE towed ALIAKMON to safety from the territorial waters of Republic of Sparta

to the port of Neva when she was in peril. This assistance constitutes salvage assistance and thus

makes INDIAN GRACE eligible to claim salvage remuneration.

NAND APARAJITHA provided assistance to ALIAKMON when she was in distress and towed

her to the territorial waters of the Republic of Sparta. This towage resulted in ALIAKMON being

rescued by INDIAN GRACE and thus being saved from destruction and sinking. Thus, even

though NAND APARAJITHA did not achieve complete success, she directly contributed to the

success, and therefore she is liable to claim salvage remuneration.

52

Such as Coastal guards or Rescue ships.

53Owners of S.S. Melanie Appellants v Owners of S.S. San Onofre Respondents, (1925) A.C 246

54 Lush. 518

2nd NUALS National Moot on Maritime Law, 2015 -Prayer-


PRAYER

Wherefore in the light of arguments advanced, authorities cited and facts mentioned, the

Honorable Court may be pleased to adjudicate by way of order or Decree that:

(1) That the Defendant shall be made liable to compensate for the damages of goods.

(2) That the Plaintiffs shall not be made liable to pay demurrage and deadfreight charges.

(3) That the ownership of vessel has passed on to the Plaintiffs.

(4) That Defendant shall be made liable to pay for salvage remuneration charges.

(5) Any Other relief that the Honorable Court may be pleased to grant in the interests of justice,

equity and good conscience.

For which act of kindness, the Plaintiffs shall as duty bound, ever pray.

Sd/-

(COUNSELS FOR THE PLAINTIFFS)

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Maritime Law