MEMORANDUM FOR CLAIMANT - Murdoch University · Team 10 Memorandum for the Claimant iv LIST OF ABBREVIATIONS ... September 2011) Next Fixture Fixture between Panther Shipping Inc

20th Annual International Maritime Law Arbitration Moot

In the matter of an arbitration under the LMAA Terms

UNIVERSITY OF QUEENSLAND

A U S T R A L I A

MEMORANDUM FOR

CLAIMANT

CLAIMANT

Panther Shipping Inc

80 Broad Street, Monrovia

Liberia

v

RESPONDENT

Omega Chartering Limited PO Box 911, Vaduz

Liechtenstein

TEAM 10

COUNSEL

TESSA BOARDMAN | JONATHAN HOHL | MATTHEW SINGER | MIA WILLIAMS

Team 10 Memorandum for the Claimant

ii

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ........................................................................................................................... iv

LIST OF AUTHORITIES ................................................................................................................................. v

A. Articles and books .................................................................................................................................. v

B. Cases ....................................................................................................................................................... v

C. Arbitral awards ..................................................................................................................................... viii

D. Legislation ............................................................................................................................................. ix

E. Other ...................................................................................................................................................... ix

STATEMENT OF FACTS ................................................................................................................................ 1

SUBMISSIONS ON THE HULL CLEANING ............................................................................................... 3

I. THE RESPONDENT BREACHED THE CHARTERPARTY BY FAILING TO PERFORM HULL

CLEANING PRIOR TO REDELIVERY OF THE VESSEL. ................................................................... 3

A. The RESPONDENT was not prevented from carrying out hull cleaning. .................................................. 4

B. There is no requirement for refusal of a cleaning proposal to be reasonable. ......................................... 5

C. Further and in the alternative, refusal of the offer to have the ship cleaned at North Titan was not

unreasonable. ............................................................................................................................................... 6

D. Further and in the alternative, unreasonable refusal would not relieve the RESPONDENT of its

obligation to perform hull cleaning. ............................................................................................................ 7

II. THE SUM OWED BY THE RESPONDENT IS USD96,567.42. ......................................................... 9

SUBMISSIONS ON THE LATE REDELIVERY OF THE VESSEL ........................................................... 9

I. THE RESPONDENT IS LIABLE TO PAY DAMAGES CALCULATED AS THE LOSS OF HIRE

UNDER THE NEXT FIXTURE. ................................................................................................................. 9

A. The orthodox rule in Hadley v Baxendale should be applied in this case. ........................................... 10

B. The loss of the Next Fixture falls within the second limb of the rule in Hadley v Baxendale. .............. 11


iii

II. THE RELEVANT PERIOD OF THE NEXT FIXTURE FOR THE PURPOSE OF

CALCULATING DAMAGES IS FOUR YEARS. .................................................................................... 12

SUBMISSIONS ON THE CARGO DAMAGE ............................................................................................ 13

I. THE RESPONDENT IS NOT ENTITLED TO BE INDEMNIFIED BY THE CLAIMANT

AGAINST THE CARGO CLAIM. ............................................................................................................ 13

A. The Cargo Claim has not been properly settled or compromised and paid. ......................................... 13

B. Further and in the alternative, the RESPONDENT’S action against the CLAIMANT is time-barred. ........ 14

II. ALTERNATIVELY, THE CLAIMANT IS NOT OBLIGED TO INDEMNIFY THE

RESPONDENT AGAINST 100% OF THE CARGO CLAIM. ............................................................... 17

A. The damage to the cargo did not arise out of error or fault in the navigation or management of the

vessel. ........................................................................................................................................................ 17

B. The damage to the cargo did not arise out of unseaworthiness. ............................................................ 19

SUBMISSIONS ON THE OFF-HIRE ISSUE .............................................................................................. 20

I. CLAUSE 17 OF THE NYPE 2015 CANNOT BE RELIED ON AS THE PARTIES HAVE

SPECIFICALLY PROVIDED FOR QUARANTINE UNDER CL 44. .................................................. 21

II. ALTERNATIVELY, THE REQUIREMENTS OF CL 17 ARE NOT SATISFIED. ......................... 22

A. The full working of the Vessel was not prevented. ............................................................................... 22

B. Further and in the alternative, delay was not caused by an off-hire event listed under cl 17. .............. 23

PRAYER FOR RELIEF ................................................................................................................................. 25


iv

LIST OF ABBREVIATIONS

ABBREVIATION TERM

Cargo Claim The claim brought by the Receivers against the RESPONDENT

Champion Champion Chartering Corp

Charterparty Fixture between Panther Shipping Inc and Omega Chartering Ltd concluded on

18 March 2016

CLAIMANT Panther Shipping Inc

Fairwind Fairwind International

Hague Rules International Convention for the Unification of Certain Rules of Law relating

to Bills of Lading (1924)

Hague-Visby Rules Hague Rules as amended by the First Protocol (1968) and Second Protocol

(1979)

ICA Inter-Club New York Produce Exchange Agreement 1996 (as amended

September 2011)

Next Fixture Fixture between Panther Shipping Inc and Champion Chartering Corp

concluded on 15 June 2016

NYPE 2015 New York Produce Exchange 2015 Time Charter Form

Receivers The receivers of the cargo

Record International Maritime Law Arbitration Moot Scenario (v2) released 30

January 2019

RESPONDENT Omega Chartering Limited

Substitute Fixture Fixture between Panther Shipping Inc and Fairwind International concluded

on 4 July 2016

Vessel MV Thanos Quest


v

LIST OF AUTHORITIES

A. Articles and books

Cedric Barclay, ‘Technical Aspects of Unseaworthiness’ [1974] Lloyd’s Maritime & Commercial Law

Quarterly 288

Daniel Greenberg, Jowitt’s Dictionary of English Law (Sweet & Maxwell, 2nd ed, 2010)

Daniel Greenberg, Stroud’s Judicial Dictionary of Words and Phrases (Sweet & Maxwell, 6th ed, 2000)

Harvey McGregor, McGregor on Damages (Sweet & Maxwell, 14th ed, 1980)

Roger White, ‘The Human Factor in Unseaworthiness Claims’ [1996] Lloyd’s Maritime & Commercial

Law Quarterly 221

Terence Coghlin et al, Time Charters (Informa Law, 7th ed, 2014)

The New Oxford Dictionary of English (1st ed, 1998)

The Oxford English Reference Dictionary (2nd ed, 1996)

William Tetley, Marine Cargo Claims (Thomson Carswell, 4th ed, 2008)

B. Cases

A/S Iverans Rederei v KG MS Holstencruiser Seeschiffaiirtsgesellschaft mbH & Co (The

Holstencruiser) [1992] 2 Lloyd’s Rep 378

Agile Holdings Corporation v Essar Shipping Ltd (The Maria) [2018] EWHC 1055 (Comm)

Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602

Aluflet SA v Vinave Empresa de Navegaçao Maritima LDA (The Faial) [2000] 1 Lloyd’s Rep 473

Andre & Cie SA v Orient Shipping (Rotterdam) BV (The Laconian Confidence) [1997] 1 Lloyd’s Rep

139

Arnold v Britton [2015] AC 1619

Belcore Maritime Corporation v Fratelli Moretti Cereali SpA (The Mastro Giorgis) [1983] 2 Lloyd’s

Rep 66

Blackfriars Lighterage & Cartage Co Ltd v R L Hobbs (The Landeer) [1955] 2 Lloyd’s Rep 554

Bosma v Larsen [1966] 1 Lloyd’s Rep 22

Bunge Corp v Tradax Export SA [1981] 1 WLR 711

Caltex Refining Co Pty Ltd v BHP Transport Ltd (The Iron Gippsland) [1994] 1 Lloyd’s Rep 335


vi

Cehave NV v Bremer Handelgesellschaft mbH [1976] QB 44

Chaplin v Hicks [1911] 2 KB 786

Cosco Bulk Carrier Co Ltd v Team-Up Owning Co Ltd (The Saldanha) [2011] 1 Lloyd’s Rep 187

Cottrill v Steyning and Littlehampton Building Society [1966] 1 WLR 753

Court Line Ltd v Dant & Russell Inc (1939) 64 Lloyd’s Rep 212

Cryer v Scott Brothers (Sunbury) Ltd (1988) 55 P&CR 183

D/S A/S Idaho v Peninsular & Oriental Steam Navigation Co Ltd (The Strathnewton) [1983] 1 Lloyd’s

Rep 219

Davies v Taylor [1974] AC 207

Diamond v Campbell-Jones [1961] Ch 22

F C Bradley & Sons Ltd v Federal Steam Navigation Co (1926) 24 Lloyd’s Rep 446

Fairclough Dodd & Jones Ltd v J H Vantol Ltd [1956] 2 Lloyd’s Rep 437

Firma C-Trade SA v Newcastle Protection & Indemnity Association (The Fanti) [1990] 2 Lloyd’s Rep

191

Global Maritime Investments Ltd v STX Pan Ocean Co Ltd [2012] 2 Lloyd’s Rep 354

Gosse Millard Ltd v Canadian Government Merchant Marine Ltd [1928] 1 KB 717

Gosse Millerd Ltd v Canadian Government Merchant Marine Ltd [1929] AC 223

Hadley v Baxendale (1854) 9 Exch 341

Hogarth v Miller, Brother & Co [1891] AC 48

Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd (The Hongkong Fir) [1961] 1 Lloyd’s

Rep 159

Hyundai Merchant Marine Co Ltd v Furness Withy (Australia) Pty (The Doric Pride) [2006] 2 Lloyd’s

Rep 175

International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] 1 All ER 32

Jones v St John’s Oxford College, Oxford (1870) LR 6 QB 115

L French & Co v Leeston Shipping Co [1922] 1 AC 451

Leon Bernstein Co v Wilhelmsen, 232 F 2d 771 (5th Cir, 1956)


vii

Luxor (Eastbourne) Ltd v Cooper [1941] AC 108

M H Progress Lines SA v Orient Shipping Rotterdam BV (The Genius Star I) [2012] 1 Lloyd’s Rep

222

Manifest Shipping & Co Ltd v Uni-Polaris Insurance Co Ltd (The Star Sea) [1997] 1 Lloyd’s Rep 360

Mareva Navigation Co Ltd v Canaria Armadora SA (The Mareva AS) [1977] 1 Lloyd’s Rep 368

McFadden v Blue Star Line [1905] 1 KB 697

Mona Oil Equipment & Supply Co Ltd v Rhodesia Railways Ltd [1949] 2 All ER 1014

Morris-Garner v One Step (Support) Ltd [2018] 2 WLR 1353

Newcastle Protection & Indemnity Association Ltd v Assurance Foreningen Gard Gjensidig (The

Labrador) [1998] 2 Lloyd’s Rep 387

Norris v William Moss & Sons Ltd [1954] 1 WLR 346

Oceanfocus Shipping Ltd v Hyundai Merchant Marine Co Ltd (The Hawk) [1999] 1 Lloyd’s Rep 176

Owners of the Front Ace v Owners of the Vicky I [2008] 2 Lloyd’s Rep 45

Pacific Basin IHX Ltd v Bulkhandling Handymax AS (The Triton Lark) [2012] 1 Lloyd’s Rep 151

Panalpina International Transport Ltd v Densil Underwear Ltd [1981]1 Lloyd’s Rep 187

Papera Traders Co Ltd v Hyundai Merchant Marine Co Ltd (The Eurasian Dream) [2002] 1 Lloyd’s

Rep 719

Petroleum Oil & Gas Corporation of South Africa (Pty) Ltd v FR8 Singapore Pte Ltd (The Eternity)

[2009] 1 Lloyd’s Rep 107

Pimms Ltd v Tallow Chandlers in the City of London [1964] 2 QB 547

Price v Bouch (1986) 53 P&CR 257

Primegates Maritime Co Ltd v The bunkers on board the MV Cargo Explorer [1995] CLD 617 (D)

Re Comptoir Commercial Anversois and Power Son & Co [1920] 1 KB 868

Re Comptoir Commercial Anversois v James Carruthers & Co (1920) 4 Lloyd’s Rep 18

Robertson v French (1903) 4 East 130

Robin Hood Flour Mills Ltd v N M Paterson & Sons Ltd (The Farrandoc) [1967] 2 Lloyd’s Rep 276

Robinson v Harman (1848) 1 Exch 850


viii

Royal Greek Government v Minister of Transport (1948) 82 Lloyd’s Rep 196

Royal Greek Government v Minister of Transport (The Ilissos) [1949] 1 KB 525 (CA)

Santa Martha Baay Scheepvart & Handelscmaatschappij NV v Scanbulk A/S (The Rijn) [1981] 2

Lloyd’s Rep 267

Shanley v Ward (1913) 29 TLR 714

Sidermar SpA v Apollo Corporation (The Apollo) [1978] 1 Lloyd’s Rep 200

Sinochem International Oil (London) Co Ltd v Mobil Sales and Supply Corp [2000] 1 Lloyd’s Rep

339

Sonito Shipping Co Ltd v Sun United Maritime Ltd, 478 F Supp 2d 532 (SD NY, 2007)

Spring Guardian Assurance Plc [1995] 2 AC 296

Standard Oil Co of New York v Clan Line Steamers (The Clan Gordon) [1924] AC 100

Sylvia Shipping Co Ltd v Progress Bulk Carriers Ltd (The Sylvia) [2010] 2 Lloyd’s Rep 81

Team Tours Direct Ltd v Aspire Sport Tours Ltd [2018] EWHC 1541 (QB)

Telfair Shipping Co v Inersea Carriers SA (The Caroline P) [1984] 2 Lloyd’s Rep 466

Tennants (Lancashire) Ltd v C S Wilson & Co Ltd [1917] AC 495

Thames Valley Power Ltd v Total Gas & Power Ltd [2006] 1 Lloyd’s Rep 441

The Ferro [1893] P 38

The Glenochil [1896] P 10

The Makedonia [1962] 1 Lloyd’s Rep 316

The Rodney [1900] P 112

Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) [2008] 2 Lloyd’s Rep 275

Transpacific Discovery SA v Cargill International SA (The Elpa) [2001] 2 Lloyd’s Rep 596

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

Yarm Road Ltd v Hewden Tower Cranes Ltd [2003] EWCA Civ 1127

C. Arbitral awards

London Arbitration 16/02


ix

D. Legislation

Arbitration Act 1996 (UK)

E. Other

Hague Rules as amended by the First Protocol (1968) and Second Protocol (1979)

Inter-Club New York Produce Exchange Agreement 1996 (as amended September 2011)

International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (1924)

Paris MoU Organisation, List of Paris MoU deficiency codes (1 July 2017) Paris MoU on Port State

Control <https://www.parismou.org/list-paris-mou-deficiency-codes>

New York Produce Exchange 2015 Time Charter Form

Paris Memorandum of Understanding on Port State Control

The Baltic and International Maritime Council, Hull Fouling Clause for Time Charter Parties (Special

Circular No 3, 24 June 2013)

Tokyo Memorandum of Understanding on Port State Control in the Asia-Pacific Region


1

STATEMENT OF FACTS

1 On 1 January 2016, the CLAIMANT publicly advertised via its Chatter account that a new vessel was

soon to join its fleet, servicing the medium term time charter market. The CLAIMANT subsequently

took possession of the MV Thanos Quest, and advertised on 1 March 2016 that it was seeking to fix

the Vessel for a period of three to five years.

2 Shortly thereafter, on 18 March 2016, the CLAIMANT and RESPONDENT concluded the Charterparty.

The Respondent chartered the MV Thanos Quest from the CLAIMANT for a period of 50 to 55 days

for a time charter trip from West Coast Port area to Wahanda range. The Vessel was delivered into the

Charterparty on 29 March 2016, and sailed from the loadport on 20 April 2016.

3 On 18 April 2016, a news article was published reporting concern about an outbreak of Ebola virus

in the City of West Coast, including among stevedores at West Coast Port. On 21 April 2016, a second

article was published noting that the number of reported cases of Ebola had increased. City authorities

declared that there were to be no further arrivals or departures from the West Coast Port.

4 The Vessel arrived at the Port of Wahanda on 7 May 2016. Port State Control immediately ordered

the Vessel to remain at anchorage based on concerns that the crew might be carrying the Ebola virus.

On 11 May 2016, Port State Control attended on board and found that several crew members had a

high fever. The Vessel was then quarantined for a minimum period of 28 days. The Vessel was in fact

detained for 50 days, until it was ultimately granted free pratique on 26 June 2016.

5 In the intervening period, the Vessel’s hull was extensively fouled. On 8 June 2016, at which point

the Vessel had been anchored at Wahanda for 32 days, the CLAIMANT requested that the RESPONDENT

confirm arrangements for underwater inspection and cleaning of the Vessel’s hull. However, on the

advice of Wahanda Port Services, the RESPONDENT informed the CLAIMANT that underwater

inspection and cleaning could not be carried out at Wahanda and proposed to pay a lump sum of

USD15,000 in lieu of cleaning. The extent of the fouling not yet having been ascertained by

inspection, the CLAIMANT rejected this offer and proposed to undertake the cleaning itself at the next


2

convenient port. Despite this proposal, on 23 June 2016, the RESPONDENT sought a quotation from

Titan Shipbuilders, which estimated that hull cleaning at North Titan Port would cost USD33,000.

6 During the period of anchorage at Wahanda, the CLAIMANT concluded the Next Fixture with

Champion. Champion was to charter the Vessel for a period of two years, with a two-year extension

available at its option, loading at East Coast range. The Vessel could not proceed to East Coast range

with its hull fouled. Accordingly, on 26 June 2016, the CLAIMANT informed the RESPONDENT that it

would be unable to arrange hull cleaning itself and again requested that the RESPONDENT confirm its

intentions regarding inspection and cleaning. The RESPONDENT proposed to arrange cleaning at North

Titan Port, or alternatively to pay USD20,000.

7 When discharge commenced on 27 June 2016, it was discovered that the cargo of English breakfast

tea had been damaged by water ingress. The water damage was occasioned by an error in ballasting

operations — a crew member had opened the wrong valves and flooded lower hold no. 2 of the Vessel

by mistake.

8 Discharge was completed on 30 June 2016, having been delayed by inclement weather. Consequently,

the Vessel could not be delivered to Champion before the 28 June 2016 cancelling date of the Next

Fixture. Champion proceeded to cancel the Next Fixture.

9 The RESPONDENT redelivered the Vessel on 30 June 2016 without having cleaned the hull. Following

redelivery, the CLAIMANT sailed the Vessel to South Island and arranged hull cleaning at its own time

and expense. Upon the completion of cleaning on 4 July 2016, the CLAIMANT concluded the

Substitute Fixture with Fairwind.

10 On 7 July 2016, the RESPONDENT informed the CLAIMANT that the Receivers had brought a claim for

the damage to the cargo. The Cargo Claim was ultimately made after several time extensions were

granted to the Receivers by the RESPONDENT. The quantum of the claim was eventually agreed to

amount to 2,000mt of cargo at a value of USD50 per kilogram.

11 On 15 October 2018, the CLAIMANT commenced arbitration under the Charterparty seeking damages

for the cost of the hull cleaning and for the loss of the Next Fixture.


3

SUBMISSIONS ON THE HULL CLEANING

I. THE RESPONDENT BREACHED THE CHARTERPARTY BY FAILING TO PERFORM

HULL CLEANING PRIOR TO REDELIVERY OF THE VESSEL.

1 The RESPONDENT was obliged to perform hull cleaning prior to redelivery of the Vessel pursuant to

cl 83 of the Omega Rider. The RESPONDENT breached this obligation, and as a result the CLAIMANT

was required to conduct the cleaning itself at a total cost of USD96,567.42.

2 Cleaning in accordance with cl 83 was to be carried out by the RESPONDENT prior to redelivery as the

preconditions to the operation of the clause were satisfied. The Vessel remained at anchorage at the

Port of Wahanda for a period of 54 days, in satisfaction of cl 83(a).1 The CLAIMANT called for an

inspection in accordance with cl 83(b), by asking the RESPONDENT to confirm arrangements regarding

inspection and, if necessary, cleaning.2 Although a formal inspection was not ordered by either party,3

the Master conducted an inspection for the purpose of cl 83(b) and (c) on 26 June 2016.4 At any rate,

the extent of the hull fouling is not disputed.5 The CLAIMANT called for cleaning on 26 June 2016 in

satisfaction of cl 83(c).6

3 The RESPONDENT was at no point relieved of its obligation to perform hull cleaning in accordance

with cl 83. The RESPONDENT has pleaded that the CLAIMANT’S refusal of its offer to clean at North

Titan was unreasonable and thereby effective to relieve it of its obligation to perform. However, the

only circumstance in which the charterer is not required to clean the vessel before redelivery is if it

is ‘prevented’ from doing so. In this case: (A) the RESPONDENT was not prevented from carrying out

hull cleaning; (B) there is no requirement for refusal of a cleaning proposal to be reasonable; (C)

further and in the alternative, the CLAIMANT’S refusal of the RESPONDENT’S offer to have the hull

1 Record, 25: email from Clark Kent Bulk to Hulk Hulls dated 7 May 2016 (which confirms that the Vessel arrived at

Wahanda on 7 May 2016); Record, 52: Final Hire Statement (which confirms that the Vessel departed from Wahanda

on 30 June 2016). 2 Record, 29: email from Hulk Hulls to Clark Kent Bulk dated 8 June 2016. 3 Procedural Order No 2, [5]. 4 Record, 34: email from Clark Kent Bulk to Omega Chartering dated 26 June 2016. 5 Procedural Order No 2, [5] and attached photographs. 6 Record, 34: email from Clark Kent Bulk to Omega Chartering dated 26 June 2016.


4

cleaned at North Titan was not unreasonable; and (D) further and in the alternative, the RESPONDENT

was not relieved of its obligation to perform hull cleaning even if the CLAIMANT acted unreasonably.

A. The RESPONDENT was not prevented from carrying out hull cleaning.

4 Under cl 83(d), when the charterer is prevented from carrying out cleaning, the parties shall agree a

lump sum payment in lieu. The RESPONDENT purported to engage this clause by its email dated 8 June

2016,7 where it stated that underwater cleaning could not be performed at Wahanda, and proposed to

pay a lump sum of USD15,000. While it is not disputed that underwater cleaning could not be

performed at Wahanda, the RESPONDENT was not thereby prevented from carrying out cleaning, and

was not relieved of its obligation to carry out cleaning prior to redelivery.

5 In ascertaining the meaning of a word in a contract, courts give the word its clear and unambiguous

meaning.8 To prevent means, variously: ‘to make impossible’;9 to ‘keep something from happening

or arising’.10 This interpretation coincides with the meaning given to the word by the courts.

6 In a commercial contract,11 the word ‘prevented’ means that performance has become physically or

legally impossible, and not merely more difficult or unprofitable.12 Clause 83(d) operates to ‘prevent

what otherwise might be a breach from being a breach’.13 If the RESPONDENT is prevented from

carrying out hull cleaning prior to redelivery, and is therefore in breach of its obligation to do so, the

breach is averted and another mechanism for performance is provided (that is, agreement on a lump

sum in lieu of performance). A strict interpretation should be given to the word ‘prevented’ in cl 83,

as a finding that charterers have been prevented from cleaning excuses non-performance under the

7 Record, 29: email from Clark Kent Bulk to Hulk Hulls dated 18 March 2016. 8 Sinochem International Oil (London) Co Ltd v Mobil Sales and Supply Corp [2000] 1 Lloyd’s Rep 339, 346 (Rix J). 9 The Oxford English Reference Dictionary (2nd ed, 1996) ‘prevent’ (def 1). 10 The New Oxford Dictionary of English (1st ed, 1998) ‘prevent’ (def 1). 11 Daniel Greenberg, Stroud’s Judicial Dictionary of Words and Phrases (Sweet & Maxwell, 6th ed, 2000) 2036. 12 See Tennants (Lancashire) Ltd v C S Wilson & Co Ltd [1917] AC 495, 509 (Lord Finlay LC). This formulation has

been widely cited in subsequent decisions. See, eg, Re Comptoir Commercial Anversois v James Carruthers & Co

(1920) 4 Lloyd’s Rep 18, 20 (McCardie J); Re Comptoir Commercial Anversois and Power Son & Co [1920] 1 KB

868, 898 (Scrutton LJ). See also Thames Valley Power Ltd v Total Gas & Power Ltd [2006] 1 Lloyd’s Rep 441, 451

[50] (Christopher Clarke J): ‘the fact that a contract has become expensive to perform, even dramatically more

expensive, is not a ground to relieve a party’. 13 Fairclough Dodd & Jones Ltd v J H Vantol Ltd [1956] 2 Lloyd’s Rep 437, 445 (Lord Somervell).


5

clause. Non-performance under cl 83 can have serious consequences for owners; for example, an

owner may lose a subsequent fixture as a result of the need to clean the vessel after redelivery.

7 In this case, the RESPONDENT’S inability to carry out cleaning at Wahanda did not render it impossible

for the RESPONDENT to fulfil its obligation. There was no physical or legal impediment preventing

the RESPONDENT from sailing the Vessel to South Island, especially given that this was a port within

the Wahanda range,14 within which redelivery was to occur.15 The fact that this may have been less

commercially convenient for the RESPONDENT does not mean that it was prevented, nor does the fact

that the journey from Wahanda to South Island was slightly longer than the journey from Wahanda to

North Titan.16 By failing to proceed to South Island to have the Vessel cleaned, the RESPONDENT

breached cl 83.

B. There is no requirement for refusal of a cleaning proposal to be reasonable.

8 The Charterparty does not provide that refusal of a cleaning proposal must be reasonable. Thus, the

RESPONDENT’S pleading that the CLAIMANT’S ‘unreasonable’ refusal relieved it of its obligation to

perform under cl 83 is necessarily premised on the implication of a term that consent to cleaning must

not be unreasonably withheld. No such term should be implied.

9 The general presumption is that parties have expressed every material term which they intend should

govern their contract,17 and a term will only be implied in a contract if it is one which must necessarily

have been intended.18 In particular, courts are reluctant to imply terms ‘where the parties have entered

into a carefully drafted written contract containing detailed terms agreed between them’.19 It is

evident that the parties specifically turned their minds to the content of their hull cleaning obligations

by including the BIMCO clause, with several amendments.

14 Procedural Order No 2: Map of Wahanda Range. 15 Record, 4: Recap of fixture dated 18 March 2016. 16 According to the RESPONDENT, North Titan Port was half a day’s sailing from Wahanda: Record, 39: email from Clark

Kent Bulk to Hulk Hulls dated 27 June 2016. The Vessel sailed from Wahanda to South Island at 2.25pm on 30 June

2016 and arrived in time to commence hull cleaning at 8.00am on 2 July 2016, so it can be inferred that the journey

from Wahanda to South Island took somewhere between one and two days: Record, 50: Invoice from South Island

Port Agency Co Ltd to Hulk Hulls dated 7 November 2016; Record, 52: Final Hire Statement. 17 Luxor (Eastbourne) Ltd v Cooper [1941] AC 108, 137 (Lord Wright). 18 L French & Co v Leeston Shipping Co [1922] 1 AC 451, 455 (Lord Buckmaster). 19 Jones v St John’s Oxford College, Oxford (1870) LR 6 QB 115, 126 (Lush J).


6

10 ‘There is no general principle of law that, whenever a contract requires the consent of one party to be

obtained by the other, there is an implied term that such consent is not to be unreasonably withheld.’20

In this case, such a term should not be implied because it is not necessary for the business efficacy of

the contract.21 The clause already contains a mechanism to discourage the CLAIMANT from

withholding consent where ‘suitable facilities and equipment’ are available.22 If the CLAIMANT does

so, the speed and consumption warranties are reinstated, exposing the CLAIMANT to liability for

breach of those warranties. It is not for the Tribunal to improve the positions of the parties by re-

writing the contract.23

C. Further and in the alternative, refusal of the offer to have the ship cleaned at North Titan

was not unreasonable.

11 Clause 83(c) requires the RESPONDENT to undertake cleaning ‘in consultation with’ the CLAIMANT.

The purpose of this requirement is to give the CLAIMANT a right to refuse a cleaning proposal made

by the RESPONDENT, as it is the CLAIMANT’S property which undergoes cleaning.24 Indeed, cl

83(c)(iii) contemplates that the CLAIMANT may refuse to permit cleaning. The CLAIMANT validly

exercised that right.25 It is not for the CLAIMANT to prove that refusal was reasonable. Where one

party is claiming that consent has been unreasonably withheld,26 the burden rests upon that party to

establish that the decision to withhold consent was one that no reasonable person could have

reached.27

20 Price v Bouch (1986) 53 P&CR 257, 260 (Millett J), quoted with approval by Slade LJ and Waite J in Cryer v Scott

Brothers (Sunbury) Ltd (1988) 55 P&CR 183, 193, 202. 21 See Cryer v Scott Brothers (Sunbury) Ltd (1988) 55 P&CR 183, 193, 202 (Slade LJ and Waite J); Mona Oil Equipment

& Supply Co Ltd v Rhodesia Railways Ltd [1949] 2 All ER 1014, 1017 (Devlin J). 22 Record, 16: Omega Rider, cl 83(c)(iii). 23 Arnold v Britton [2015] AC 1619, 1628–9 [17]–[20] (Lord Neuberger). 24 The Baltic and International Maritime Council, Hull Fouling Clause for Time Charter Parties (Special Circular No 3,

24 June 2013): ‘[A]s it is the owners’ property that will undergo cleaning and because cleaning can damage the vessel’s

anti-fouling system, the owners must be consulted in respect of the cleaning procedure.’ Resort may be had to the

explanatory notes in construing the clause: see Pacific Basin IHX Ltd v Bulkhandling Handymax AS (The Triton Lark)

[2012] 1 Lloyd’s Rep 151; Global Maritime Investments Ltd v STX Pan Ocean Co Ltd [2012] 2 Lloyd’s Rep 354. 25 Record, 76: Reply and Defence to Counterclaim Submissions [5](1). 26 Record, 72: Defence and Counterclaim Submissions [10](1). 27 See International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] Ch 513, 517 (Balcombe LJ);

Shanley v Ward (1913) 29 TLR 714 (Cozens-Hardy MR); Pimms Ltd v Tallow Chandlers in the City of London [1964]

2 QB 547, 569 (Danckwerts LJ).

https://advance.lexis.com/document/?pdmfid=1000516&crid=85253193-e568-4775-b3b7-e0180f070472&pddocfullpath=%2Fshared%2Fdocument%2Fcases-uk%2Furn%3AcontentItem%3A5RX2-ST81-JCRC-B44N-00000-00&pddocid=urn%3AcontentItem%3A5RX2-ST81-JCRC-B44N-00000-00&pdcontentcomponentid=289949&pdshepid=urn%3AcontentItem%3A5MBP-10G1-FCCX-63FB-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=1yrLk&earg=sr0&prid=9dfb0b4c-779e-4214-b415-32ca26d37e57


7

12 There are many reasons a reasonable person could have decided to withhold consent to have the ship

cleaned at North Titan — for example, the quality of cleaning services at North Titan might not have

been of a high standard. In particular, the quote provided by Titan Shipbuilders did not include

bootoping above water level, whereas the South Island Port Agency offered this service.28 Further, in

relation to underwater flat bottom cleaning, only the removal of barnacles was included in the Titan

Shipbuilders quote. It may have been that the cleaning of the hull coating at North Titan did not

comply with the manufacturer’s guidelines. At any rate, the CLAIMANT was under no legal obligation

to provide reasons for its decision.29

13 It is relevant to note that the RESPONDENT suggested in email correspondence that the CLAIMANT’s

motive for refusing to have the ship cleaned at North Titan, and instead calling for it to be cleaned at

South Island, was to reposition the ship for the CLAIMANT’s ‘commercial advantage’.30 However, the

request to have the ship cleaned at South Island was made before the Substitute Fixture was

concluded.31

D. Further and in the alternative, unreasonable refusal would not relieve the RESPONDENT of

its obligation to perform hull cleaning.

14 If the CLAIMANT’S refusal was unreasonable, this did not relieve the RESPONDENT of its hull cleaning

obligations under cl 83. When construing a commercial contract, there is a general reluctance to find

that one party’s performance is entirely dependent on the performance of the other, such that the first

party may abandon its obligations altogether where the second is in breach by non-performance.32 In

this case, the RESPONDENT was capable of performing — and indeed was required to perform — even

where the CLAIMANT was in breach of the implied obligation not to unreasonably withhold consent.

28 Record, 37: Titan Shipbuilders Quotation; Record, 50: South Island Port Agency Co Ltd Invoice. 29 See Price v Bouch (1986) 53 P&CR 257, 262 (Millett J); International Drilling Fluids Ltd v Louisville Investments

(Uxbridge) Ltd [1986] Ch 513, 520 (Balcombe LJ), citing Pimms Ltd v Tallow Chandlers in the City of London [1964]

2 QB 547, 564 (Danckwerts LJ). 30 Record, 43: email from Clark Kent Bulk to Hulk Hulls dated 30 June 2016. 31 Record, 43: email from Clark Kent Bulk to Omega Chartering dated 29 June 2016; Record, 53: Recap of fixture

between Panther Shipping Inc and Fairwind International dated 4 July 2016. 32 See Cehave NV v Bremer Handelgesellschaft mbH [1976] QB 44, 68 (Roskill LJ); Bunge Corp v Tradax Export SA

[1981] 1 WLR 711, 715–16 (Lord Roskill).


8

Clause 83 contemplates that the charterers will perform, albeit in a different manner, even where the

owners’ consent is unreasonably withheld. Breach must accordingly sound in damages only.

15 There is no circumstance where it is appropriate to abandon performance under cl 83 altogether.

Contingencies drafted into the clause provide comprehensively for circumstances of refusal,

reasonable and unreasonable. First, where — as here — the charterers’ proposal is rejected and an

alternative proposed by the owners, cl 83(c)(iii) contemplates that performance will nonetheless occur

with the vessel’s speed and consumption warranties reinstated in favour of the charterers. If the

rejection is not premised on reasonable grounds, the charterers may claim damages for breach of the

implied obligation, measured as the difference between the cost of cleaning under the owners’

alternative proposal and the charterers’ original proposal. If the owners make no alternative proposal

at all, the charterers may make their own alternative proposal and claim damages in this same amount.

In circumstances where the owners unreasonably close down all viable avenues for performance, the

nature of performance is changed altogether: in accordance with cl 83(d), the charterers are effectively

prevented from conducting cleaning, and may negotiate a lump sum payment to the owners.

16 Accordingly, with cl 83 covering the complete spectrum of possibilities, it was not valid for the

RESPONDENT simply to cease performance. On the facts, it was open to the RESPONDENT to conduct

the hull cleaning at South Island in accordance with the CLAIMANT’S alternative proposal and claim

damages for the greater cost of doing so. The RESPONDENT’S non-performance in the face of this

alternative amounts to an independent breach of cl 83, entitling the CLAIMANT to the damages

hereafter set out. While the RESPONDENT may remain entitled to its own damages for the CLAIMANT’S

breach of the implied obligation, it is apparent that the RESPONDENT has suffered no loss contingent

on this breach. Any damages payable to the RESPONDENT must therefore be nominal only.


9

II. THE SUM OWED BY THE RESPONDENT IS USD96,567.42.

17 The RESPONDENT’S breach of cl 83 entitles the CLAIMANT to damages placing it in the same position

it would have been in had the contract been performed.33 If the contract had been performed, the

RESPONDENT would have sailed the Vessel to another port to have the hull cleaned. Due to the

RESPONDENT’S breach of cl 83, the CLAIMANT instead bore the cost of sailing the Vessel to South

Island and having the hull cleaned. Accordingly, the RESPONDENT is liable to pay damages for the

hull cleaning costs and the cost of the voyage to South Island — a total amount of USD96,567.42.

18 The total amount claimed includes the cost of cleaning,34 vessel disbursements for the period the

Vessel was being cleaned at South Island35 and hire and bunkers for the voyage to South Island and

the period of cleaning.36 These costs plainly arose from the need for cleaning, and would not have

been incurred if the RESPONDENT had complied with its obligation to arrange for cleaning prior to

redelivery under cl 83.

SUBMISSIONS ON THE LATE REDELIVERY OF THE VESSEL

I. THE RESPONDENT IS LIABLE TO PAY DAMAGES CALCULATED AS THE LOSS OF

HIRE UNDER THE NEXT FIXTURE.

19 The RESPONDENT has admitted that it breached the Charterparty by failing to redeliver the Vessel prior

to the expiry of the maximum period of the Charterparty.37 The RESPONDENT is liable to pay damages

for loss arising as a result of that breach, placing the CLAIMANT in the position it would have been in

had the contract been performed.

20 As a direct result of the RESPONDENT’S breach, the CLAIMANT was unable to deliver the Vessel into

the Next Fixture by the expiry of the laycan period on 28 June 2016. The CLAIMANT accordingly

33 Robinson v Harman (1848) 1 Exch 850; Team Tours Direct Ltd v Aspire Sport Tours Ltd [2018] EWHC 1541 (QB),

[60] (Keyser J); Morris-Garner v One Step (Support) Ltd [2018] 2 WLR 1353, 1365 [30] (Lord Reed JSC). 34 Record, 50: Invoice issued by South Island Port Agency Co Ltd to Hulk Hulls. 35 Record, 51: South Island Port Agency Co Ltd Statement of Vessel Disbursements. 36 Record, 52: Final Hire Statement. 37 Record, 68: Defence and Counterclaim Submissions [10](2).


10

seeks damages for the loss of the hire to which it was entitled under the Next Fixture. This loss is not

too remote a consequence of the RESPONDENT’S breach because: (A) the orthodox rule in Hadley v

Baxendale38 should be applied in this case; and (B) the loss falls within the second limb of the rule in

Hadley v Baxendale.

A. The orthodox rule in Hadley v Baxendale should be applied in this case.

21 At first blush, The Achilleas,39 a case on the recovery of damages for a follow-on fixture, appears

decisive. In that case, the House of Lords took varying approaches to the question of remoteness.

Subsequent treatment of The Achilleas has sought to reconcile the ‘assumption of responsibility’

approach taken by Lords Hoffmann and Hope with the orthodox view applying the rule in Hadley v

Baxendale preferred by Lord Rodger and Baroness Hale. The generally accepted synthesis of these

approaches was offered by Hamblen J in The Sylvia,40 where it was proffered that only in ‘unusual’

cases, such as The Achilleas itself, is it necessary to specifically address the issue of assumption of

responsibility.41 Otherwise, where the loss has arisen in the ordinary course of things or out of special

known circumstances, the rule in Hadley v Baxendale is satisfactory to determine whether damage is

too remote. This case is not an unusual case and can be factually distinguished from The Achilleas.

22 For Lords Hoffmann and Hope, the most significant feature requiring the application of an

‘assumption of responsibility’ test was that the loss of the subsequent fixture was completely

unquantifiable.42 In this case, the RESPONDENT had information that would enable it ‘to assess the

extent of any liability’.43 By reason of the Chatter posts published by the CLAIMANT on 1 January

2016 and 1 March 2016,44 the RESPONDENT was aware that the Vessel was to carry bulk cargo on a

medium term time charter basis of between 3 and 5 years. In addition, the key factor leading Lord

38 (1854) 9 Exch 341. 39 Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) [2009] 1 AC 61. 40 Sylvia Shipping Co Ltd v Progress Bulk Carriers Ltd (The Sylvia) [2010] 2 Lloyd’s Rep 81. 41 Ibid 85–6 [40], [48]. 42 The Achilleas [2009] 1 AC 61, 71 [23] (Lord Hoffmann), 74–5 [36] (Lord Hope). 43 Ibid 75 [36] (Lord Hope). 44 Record, 1.


11

Rodger and Baroness Hale to conclude that the loss was too remote — namely, the ‘extremely volatile

market conditions’45 — was absent in this case.

B. The loss of the Next Fixture falls within the second limb of the rule in Hadley v Baxendale.

23 In this case, the RESPONDENT knew that: (i) breach of the contract by late redelivery might lead to the

loss of a follow-on fixture; and (ii) the follow-on fixture would be of a duration of between 3 and 5

years. The RESPONDENT therefore possessed special knowledge of the Next Fixture sufficient to found

a claim for damages under the second limb of the rule in Hadley v Baxendale.

24 As to (i), the RESPONDENT entered into the Charterparty ‘for the purpose of a particular business’: the

charter of a ship owned by the CLAIMANT.46 Thus the RESPONDENT had notice of the nature of the

CLAIMANT’S business, and of ‘its probable bearing on the loss’47 that the CLAIMANT would suffer

following breach.48 However, the fact that the Next Fixture was for a duration of four years rendered

the damage too remote unless ‘it was reasonably within the contemplation of the parties because the

party to be charged had been given information which enabled him to appreciate that this kind of

damage would flow’.49

25 As to (ii), the CLAIMANT’S Chatter posts gave the RESPONDENT knowledge of the special

circumstance of the follow-on fixture which would be lost in the event of breach by late redelivery

— namely, a fixture by which the MV Thanos Quest would carry bulk cargo on a medium term time

charter basis of between three and five years. The Chatter posts were publicly available and widely

read,50 and were the ‘best way’ for the CLAIMANT to reach its worldwide market.51 It may be inferred

that the RESPONDENT chartered the Vessel after becoming aware of its existence through the Chatter

posts, which were addressed to the CLAIMANT’S ‘customers and followers’.52

45 The Achilleas [2009] 1 AC 61, 78 [53]. 46 Diamond v Campbell-Jones [1961] Ch 22, 36–7 (Buckley J). 47 Ibid. 48 The Sylvia [2010] 2 Lloyd’s Rep 81, 88 [61] (Hamblen J). 49 Panalpina International Transport Ltd v Densil Underwear Ltd [1981]1 Lloyd’s Rep 187, 192 (Fay J); see also the

analysis of Diamond v Campbell-Jones [1961] Ch 22 in Cottrill v Steyning and Littlehampton Building Society [1966]

1 WLR 753, 756 (Elwes J). 50 Procedural Order No 2, [3]. 51 Record 1: Chatter post dated 1 January 2016. 52 Ibid.


12

26 Even the loss of particularly lucrative contracts is recoverable if the party in breach knew ‘the

prospect and terms of such contracts’.53 As long as the type or kind of loss was foreseeable the precise

details of the damage need not have been.54 Thus, the loss can ‘reasonably be supposed to have been

in the contemplation of both parties, at the time they made the contract, as the probable result of the

breach of it’.55

II. THE RELEVANT PERIOD OF THE NEXT FIXTURE FOR THE PURPOSE OF

CALCULATING DAMAGES IS FOUR YEARS.

27 The duration of the Next Fixture was two years, with a two-year extension at the charterers’ option.56

The loss of the option under the Next Fixture is properly characterised as a ‘loss of chance’, and

damages should be awarded on this basis.57

28 In assessing damages for loss of chance, where the chance depends on the ‘hypothetical action of a

third party’, the plaintiff will succeed if it can show that ‘there was a real or substantial, rather than a

speculative, chance that the third party would have acted so as to confer the benefit … to the

plaintiff’.58 A ‘substantial chance’ may be less than 50 per cent.59 Assessing whether the chance is

real or substantial depends on all the circumstances of the case, and inferences as to the attitude of

the third party.60

29 The negotiations between Champion and the CLAIMANT led to the inclusion of a two-year option in

the Next Fixture. There is a ‘substantial chance’ that Champion would have exercised its option under

the contract, particularly in light of the apparent trend of the rising market rate. It is not necessary to

prove that Champion would have exercised the option.61

53 Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] 2 KB 528, 543 (Asquith LJ). 54 Panalpina International Transport Ltd v Densil Underwear Ltd [1981]1 Lloyd’s Rep 187, 192 (Fay J). 55 Hadley v Baxendale (1854) 9 Exch 341, 355 (Alderson B). 56 Record, 31: Recap of fixture between Panther Shipping Inc and Champion Chartering Corp dated 15 June 2016. 57 Owners of the Front Ace v Owners of the Vicky I [2008] 2 Lloyd’s Rep 45, 57 [73] (Anthony Clarke MR). 58 Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602, 1611 (Stuart-Smith LJ). 59 Ibid 1612. See also Davies v Taylor [1974] AC 207, 223 (Lord Cross). 60 Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602, 1613 (Stuart-Smith LJ). 61 Spring Guardian Assurance Plc [1995] 2 AC 296, 327 (Lord Lowry), citing Chaplin v Hicks [1911] 2 KB 786 and

Harvey McGregor, McGregor on Damages (Sweet & Maxwell, 14th ed, 1980) 198–202.


13

SUBMISSIONS ON THE CARGO DAMAGE

I. THE RESPONDENT IS NOT ENTITLED TO BE INDEMNIFIED BY THE CLAIMANT

AGAINST THE CARGO CLAIM.

30 Following delivery of severely wet damaged cargo at the Port of Wahanda, a claim has been brought

by the Receivers against the RESPONDENT — the contractual carrier.62 The CLAIMANT accepts the

findings as to the cause and extent of the damage set out in the Preliminary Survey Report,63 and

accepts that the Receivers have brought a valid claim against the RESPONDENT.64

31 However, the CLAIMANT denies that it is obligated to indemnify the RESPONDENT against the Cargo

Claim pursuant to the ICA.65 The pre-conditions to the application of the ICA are not satisfied in this

case. In particular, it is inappropriate to grant an indemnity because: (A) the Cargo Claim has not

been ‘properly settled or compromised and paid’ as required by cl 4(c); and (B) further and in the

alternative, the RESPONDENT failed to give written notification of the Cargo Claim as required by cl

6 and thus the RESPONDENT’S claim for an indemnity is time-barred.

A. The Cargo Claim has not been properly settled or compromised and paid.

32 Clause 4(c) of the ICA states that the Cargo Claim must be ‘properly settled or compromised and

paid’ before the ICA will apply to apportion liability between the parties. The CLAIMANT accepts that

the Receivers have made a valid claim against the RESPONDENT, and that the quantum of the Cargo

Claim has been ascertained.66 However, while it may be taken from these facts that the Cargo Claim

has been appropriately settled, there are no facts which give rise to an inference that the claim has

been paid. The RESPONDENT’S claim for an indemnity in this case is therefore premature: the claim

cannot accrue until this pre-condition is met.67

62 Record, 46: Preliminary Survey Report. 63 Procedural Order No 2 [9]. 64 Ibid [10]. 65 The ICA is incorporated into the Charterparty by reference: Record, 10: Omega Rider, cl 53; NYPE 2015, cl 27. 66 Ibid [10], [11]. 67 See D/S A/S Idaho v Peninsular & Oriental Steam Navigation Co Ltd (The Strathnewton) [1983] 1 Lloyd’s Rep 219,

224 (Kerr LJ); A/S Iverans Rederei v KG MS Holstencruiser Seeschiffaiirtsgesellschaft mbH & Co (The

Holstencruiser) [1992] 2 Lloyd’s Rep 378, 384 (Hobhouse J); Primegates Maritime Co Ltd v The bunkers on board


14

33 The explicit wording of cl 4(c) makes clear that an indemnity pursuant to the ICA is calculated to

reimburse the carrier for liability discharged — not merely incurred.68 This provision of the ICA

cannot be circumvented by a declaration that the RESPONDENT is obliged to indemnify the CLAIMANT,

or by a decree of specific performance requiring that the CLAIMANT pay the RESPONDENT prior to the

latter’s payment to the Receivers or requiring that the CLAIMANT pay the Receivers directly.69 No

equitable remedy will override the clear effect of the parties’ agreement.70 The RESPONDENT was not

required to agree to the terms in the ICA, but having now done so it must be bound by those terms.71

34 Accordingly, the Cargo Claim not yet having been paid in this case, the RESPONDENT is not entitled

to an indemnity from the CLAIMANT against its liability to the Receivers.

B. Further and in the alternative, the RESPONDENT’S action against the CLAIMANT is time-

barred.

35 Clause 6 of the ICA provides that recovery is deemed to be waived and absolutely barred unless

written notification of the Cargo Claim is given to the other party within 24 months of the date of

delivery of the cargo. The clause further specifies that the written notification ‘shall if possible include

details of the contract of carriage, the nature of the claim and the amount claimed’. It is not disputed

that the RESPONDENT informed the CLAIMANT of the Cargo Claim in 2016.72 However, the notice

given by the RESPONDENT lacked the specificity required by cl 6; the CLAIMANT has not been

sufficiently furnished with those details listed in the clause. Accordingly, the RESPONDENT did not

give proper written notification of the Cargo Claim. The prescribed 24-month period having now

elapsed, the RESPONDENT’S action against the CLAIMANT pursuant to the ICA is time-barred.

the MV Cargo Explorer [1995] CLD 617 (D) (Combrink J); Sonito Shipping Co Ltd v Sun United Maritime Ltd, 478

F Supp 2d 532, 540–3 (SD NY, 2007) (Haight J) (‘Sonito’). 68 See Telfair Shipping Co v Inersea Carriers SA (The Caroline P) [1984] 2 Lloyd’s Rep 466; Terence Coghlin et al,

Time Charters (Informa Law, 7th ed, 2014) [20.71]. Cf Bosma v Larsen [1966] 1 Lloyd’s Rep 22, 28 (McNair J). 69 Cf Agile Holdings Corporation v Essar Shipping Ltd (The Maria) [2018] EWHC 1055 (Comm); Firma C-Trade SA v

Newcastle Protection & Indemnity Association (The Fanti) [1990] 2 Lloyd’s Rep 191, 200–2 (Lord Goff). 70 See The Fanti [1990] 2 Lloyd’s Rep 191, 197 (Lord Brandon), 201–2 (Lord Goff); Aluflet SA v Vinave Empresa de

Navegaçao Maritima LDA (The Faial) [2000] 1 Lloyd’s Rep 473, 478 (Rix J). 71 Sonito, 478 F Supp 2d 532, 539, 543 (SD NY, 2007) (Haight J). 72 Procedural Order No 2, [15].


15

36 The cl 6 notice requirement is intended to allow the recipient of the notice to investigate the Cargo

Claim and prepare appropriately to deal with its legal consequences — particularly the possibility of

a subsequent claim by the contractual carrier on the Charterparty.73 This purpose informs the

necessary content of the notice itself. In the context of cl 6, the language ‘shall if possible’ — while

at first blush appearing non-mandatory — should be taken to require that the carrier supply to the

other party as many of the listed details as are known, or could reasonably be ascertained. Under art

III, r 6 of the Hague Rules and Hague-Visby Rules the aggrieved cargo interest has one year to claim

against the contractual carrier. Under the ICA, the carrier has one additional year to give written

notice to the other party to the Charterparty. The clause may therefore anticipate that, after one year

has elapsed and the initial Cargo Claim has been brought, the carrier is then sufficiently informed to

furnish the other side with the details of the Cargo Claim at a functional level of specificity.74 The

standard may be stated precisely as follows: the recipient of the notification is to be informed, to the

fullest extent the circumstances permit, of the case it must ultimately meet.

37 Applying this standard, the RESPONDENT has failed to provide sufficient information within 24

months of the date of delivery of the cargo — which can be inferred to be on or around 30 June 2016,

the date of discharge. In particular, the RESPONDENT has: (i) provided only uncertain suggestions as

to the amount of the Cargo Claim; and (ii) failed altogether to the supply the CLAIMANT with the

details of the contract of carriage beyond the identity of the contractual carrier.

38 As to (i), while the RESPONDENT has informed the CLAIMANT that the Cargo Claim is likely to be

‘substantial’,75 the CLAIMANT’S ability to approximate the quantum accurately has been consistently

undermined by remarks that the Receivers are continuing to ‘assess their options’ and may either

recondition the cargo or sell it in its damaged state.76 Without the ability to estimate the quantum of

73 London Arbitration 16/02. 74 See M H Progress Lines SA v Orient Shipping Rotterdam BV (The Genius Star I) [2012] 1 Lloyd’s Rep 222, 226 [23]

(Teare J). 75 Record, 38: email from Clark Kent Bulk to Hulk Hulls dated 27 June 2016; Record, 58: email from Clark Kent Bulk

to Hulk Hulls dated 23 May 2017. 76 Record, 44: email from Clark Kent Bulk to Hulk Hulls dated 29 June 2016; Record, 46: Preliminary Survey Report.


16

the Cargo Claim, the CLAIMANT cannot be expected to begin effectively allocating resources to

prepare its case. Without adequate information, the CLAIMANT risks making insufficient arrangements

in expectation of a diminished claim, or overvaluing the claim and incurring significant expense as a

result of the misjudgement. The dramatic difference between the quantum suggested in the

Preliminary Survey Report — the loss of a majority of 8,600 mt of tea at USD60–65 per kg77 — and

that ultimately ascertained — 2,000 mt at USD50 per kg78 — highlights the CLAIMANT’s dilemma.

39 As to (ii), the RESPONDENT has failed to go further than identifying itself as the contractual carrier —

a single elementary detail from the contract of carriage. Given that the ICA itself, by cl 4(a), requires

substantially more detailed consideration of the contract of carriage,79 the RESPONDENT’S failure to

provide further information evidently restricts the CLAIMANT’S ability to prepare for the Cargo Claim.

40 It can be appreciated in this case that the RESPONDENT has granted multiple time extensions to the

Receivers80 and has therefore faced unusual difficulty obtaining the complete details of a concluded

Cargo Claim within the time limit contemplated by the ICA. It can also be appreciated that the

CLAIMANT has acceded to these extensions and so could not reasonably have demanded an entirely

comprehensive written notification. However, the details provided by the RESPONDENT fall far short

of the standard advanced by cl 6. Most importantly, it would have been ‘possible’ — and therefore

necessary — for the RESPONDENT to provide further information within the 24 months following

delivery. Particularly in 2017, when the extensions were requested and the RESPONDENT was having

‘detailed discussions’ with the Receivers in relation to the quantum of the claim and the contract of

carriage,81 it would have been appropriate for the RESPONDENT to update the CLAIMANT with relevant

77 Record, 46: Preliminary Survey Report. 78 Procedural Order No 2, [11]. 79 See also Oceanfocus Shipping Ltd v Hyundai Merchant Marine Co Ltd (The Hawk) [1999] 1 Lloyd’s Rep 176;

Transpacific Discovery SA v Cargill International SA (The Elpa) [2001] 2 Lloyd’s Rep 596. 80 Record, 57–8. 81 Record, 58: email from Clark Kent Bulk to Hulk Hulls dated 23 May 2017; Record, 57–8: email from Clark Kent

Bulk to Hulk Hulls dated 23 August 2017; Record, 57: email from Clark Kent Bulk to Hulk Hulls dated 23 November

2017.


17

details of those discussions to allow the CLAIMANT to further its own preparations. The piecemeal

written notification otherwise provided was simply insufficient.

41 Accordingly, the information provided to the CLAIMANT did not amount to proper written notification

of the Cargo Claim as required by cl 6. The prescribed 24-month period having elapsed without

written notification being given, the RESPONDENT’S action against the CLAIMANT pursuant to the ICA

is time-barred.

II. ALTERNATIVELY, THE CLAIMANT IS NOT OBLIGED TO INDEMNIFY THE

RESPONDENT AGAINST 100% OF THE CARGO CLAIM.

42 In the event that the ICA is to apply between the parties to the present dispute, liability is properly

apportioned under cl 8(b). Apportionment requires an investigation of what, on the evidence, is the

true cause of the cargo damage.82 Here, the cause of the damage was an error in the handling of the

cargo. The RESPONDENT’S pleaded contention that the applicable apportionment provision is cl 8(a)

should not be accepted because the damage to the cargo did not arise out of: (A) error or fault in the

navigation or management of the vessel; or (B) unseaworthiness.

A. The damage to the cargo did not arise out of error or fault in the navigation or management

of the vessel.

43 The concept of error or fault in the navigation or management of the vessel imports the same legal

principles as have developed under art IV, r 2(a) of the Hague Rules and Hague-Visby Rules.83 There

is a distinction, long maintained in the authorities considering the art IV, r 2(a) exception, between

want of care of the vessel and want of care of the cargo.84 In the context of the Rules this distinction

separates those cases where the exception applies, exculpating the carrier of the cargo, from those

cases where the carrier is fixed with liability under art III, r 2. In the context of the ICA, the distinction

82 Newcastle Protection & Indemnity Association Ltd v Assurance Foreningen Gard Gjensidig (The Labrador) [1998] 2

Lloyd’s Rep 387, 406 (Colman J). 83 See D/S A/S Idaho v Peninsular and Oriental Steam Navigation Co (The Strawthnewton) [1983] 1 Lloyd’s Rep 219,

223 (Kerr LJ). 84 See Gosse Millerd Ltd v Canadian Government Merchant Marine Ltd [1929] AC 223, 233 (Lord Hailsham LC); The

Glenochil [1896] P 10; The Ferro [1893] P 38; The Rodney [1900] P 112.


18

may similarly separate those cases where liability is apportioned under cl 8(a) from those where it is

apportioned under cl 8(b).

44 Ballasting operations are ordinarily conducted in the management of the vessel as a navigational unit,

not as a cargo carrying unit.85 However, in these circumstances, the case law reveals that a finer

distinction should be drawn. In The Farrandoc,86 a cargo of grain was damaged by water entering the

hold after the vessel’s second engineer opened the wrong valve during ballasting operations. While

the ship was ultimately found to be unseaworthy on other grounds, Noël J observed that the error

would otherwise have been made in the care and custody of the cargo as, after the valve was turned,

no attempt was made by the crew to confirm the safety of the cargo, even though no water was flowing

into the ballast tanks.87 In more recent commentary on fault in ballasting operations, it has been

suggested that to flood a ballast tank continually without thought for the cargo is an error in the

management of the cargo.88

45 The ballasting error occurred while the Vessel was being readied for departure following discharge.89

There is no indication that the crew made efforts to check the condition of the cargo during the

operation. Not only were the holds not checked periodically during ballasting, as good practice

demands, the condition of the holds was neglected to such an extent that the flooding of lower hold

no. 2 — extensive enough to damage the majority of the cargo90 — was not even detected until that

cargo was sought to be discharged.91 This reveals a want of care of cargo even more pronounced than

that noted by Noël J in The Farrandoc, where at least some attempt was made to confirm the flow of

water into the ballast tank.

85 See The Glenochil [1896] P 10; Leon Bernstein Co v Wilhelmsen, 232 F 2d 771 (5th Cir, 1956). 86 Robin Hood Flour Mills Ltd v N M Paterson & Sons Ltd (The Farrandoc) [1967] 2 Lloyd’s Rep 276. 87 Ibid 288. 88 William Tetley, Marine Cargo Claims (Thomson Carswell, 4th ed, 2008) vol 1, 970–1; Cedric Barclay, ‘Technical

Aspects of Unseaworthiness’ [1974] Lloyd’s Maritime & Commercial Law Quarterly 288, 291–2. 89 Record, 46: Preliminary Survey Report. 90 Record, 46: Preliminary Survey Report. 91 Record, 38: email from Clark Kent Bulk to Hulk Hulls dated 27 June 2016.


19

46 Furthermore, it is relevant to consider the precise error causative of the damage. In case law on the

art IV, r 2(a) exception, it has been noted that if the negligent act occasioning the cargo damage is not

negligence towards the ship, but only negligent failure to use the apparatus of the ship for the

protection of the cargo, the exception does not apply.92 The non-return valves are installed for the

protection of the cargo — specifically, to prevent water from entering the hold unintentionally. It

follows that the failure to use the valves properly is a failure in the care of the cargo.

47 Accordingly, the error in this case is appropriately characterised as an error in the management of the

cargo, not in the management of the vessel. Liability must therefore be apportioned equally between

the CLAIMANT and RESPONDENT under cl 8(b) of the ICA, given that cl 8(a) of the NYPE 2015 has

been amended precisely in the manner specified — that is, by the addition of the words ‘and

responsibility’.93 The RESPONDENT’S contention that cl 8(a) of the ICA applies should not be

accepted.

B. The damage to the cargo did not arise out of unseaworthiness.

48 The concept of unseaworthiness as expressed in the ICA is identical in content to the concept of

unseaworthiness under art III, r 1 of the Hague Rules and Hague-Visby Rules.94 Generally, the vessel

‘must have that degree of fitness which an ordinary careful and prudent owner would require’.95 The

Preliminary Survey Report discloses that the ballasting system was entirely in order — the damage

was occasioned by improper use only.96 However, the error in this case did not amount to human

unseaworthiness.

92 See Robin Hood Flour Mills Ltd v N M Paterson & Sons Ltd (The Farrandoc) [1967] 2 Lloyd’s Rep 276, 288 (Noël

J); Gosse Millard Ltd v Canadian Government Merchant Marine Ltd [1928] 1 KB 717, 749 (Greer LJ); Gosse Millerd

Ltd v Canadian Government Merchant Marine Ltd [1929] AC 223, 236 (Viscount Sumner); Petroleum Oil & Gas

Corporation of South Africa (Pty) Ltd v FR8 Singapore Pte Ltd (The Eternity) [2009] 1 Lloyd’s Rep 107, 114 (David

Steel J); Caltex Refining Co Pty Ltd v BHP Transport Ltd (The Iron Gippsland) [1994] 1 Lloyd’s Rep 335, 358

(Carruthers J). 93 Record, 5: Recap of fixture between Panther Shipping Inc and Omega Charting Limited dated 18 March 2016. 94 Terence Coghlin et al, Time Charters (Informa Law, 7th ed, 2014) [20.78]. 95 F C Bradley & Sons Ltd v Federal Steam Navigation Co (1926) 24 Lloyd’s Rep 446, 454 (Scrutton LJ); McFadden v

Blue Star Line [1905] 1 KB 697, 706 (Channell J). 96 Record, 46: Preliminary Survey Report.


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49 A vessel is unseaworthy if manned by an incompetent or inefficient crew.97 While a single act can be

sufficient to evidence incompetence,98 the enquiry considers the overall capability of the crew

assessed with reference to the circumstances more generally.99 Specifically, a conclusion of

unseaworthiness may be premised on a finding that the crew were insufficiently trained or

underqualified, had insufficient knowledge of the workings of the particular vessel, or were adversely

affected by personal characteristics such their habits, temperaments and health.100

50 In this case, there are insufficient facts to give rise to a finding of incompetence. It is known that the

wet damage to the cargo was caused by a crew member opening the wrong valves in the course of

ballasting.101 However the general capability of this crew member cannot otherwise be ascertained.

51 The facts accordingly disclose no more than an isolated error, insufficient to establish

unseaworthiness. The incorrect performance of a task otherwise within the competence of the crew

is not enough, in the absence of further facts, to establish that the seaworthiness of the vessel was

compromised.102 Therefore the Cargo Claim cannot be said to have resulted from unseaworthiness. It

follows that the Cargo Claim does not fall to be apportioned under cl 8(a) of the ICA.

SUBMISSIONS ON THE OFF-HIRE ISSUE

52 The RESPONDENT is not entitled to restitution or damages in the amount of USD375,000 for

overpayment of hire, as the Vessel remained on-hire between 7 May 2016 and 26 June 2016. The

CLAIMANT contends that cl 17 of the NYPE 2015 cannot be relied on in these circumstances as the

97 See Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd (The Hongkong Fir) [1961] 1 Lloyd’s Rep 159, 168

(Salmon J); Standard Oil Co of New York v Clan Line Steamers (The Clan Gordon) [1924] AC 100, 120–1 (Lord

Atkinson). 98 See Manifest Shipping & Co Ltd v Uni-Polaris Insurance Co Ltd (The Star Sea) [1997] 1 Lloyd’s Rep 360, 373–4

(Leggatt LJ); Papera Traders Co Ltd v Hyundai Merchant Marine Co Ltd (The Eurasian Dream) [2002] 1 Lloyd’s

Rep 719. 99 See Roger White, ‘The Human Factor in Unseaworthiness Claims’ [1996] Lloyd’s Maritime & Commercial Law

Quarterly 221, 226–9. 100 See The Makedonia [1962] 1 Lloyd’s Rep 316, 335 (Hewson J). 101 Record, 46: Preliminary Survey Report. 102 See generally Blackfriars Lighterage & Cartage Co Ltd v R L Hobbs (The Landeer) [1955] 2 Lloyd’s Rep 554, 561

(Willmer J); Norris v William Moss & Sons Ltd [1954] 1 WLR 346, 351 (Vaisey J).


21

parties have made specific provision for delay caused by quarantine under cl 44 of the Omega Rider,

or alternatively that the requirements of cl 17 are not satisfied.

I. CLAUSE 17 OF THE NYPE 2015 CANNOT BE RELIED ON AS THE PARTIES HAVE

SPECIFICALLY PROVIDED FOR QUARANTINE UNDER CL 44.

53 Clause 44 provides that any time lost due to delay in quarantine arising from the Master, officers or

crew having communication with an infected area ‘without the written consent of Charterers or their

agents’ will be deducted as off-hire.103 The term ‘quarantine’ denotes ‘[t]he period which persons

coming from a country or ship in which an infectious disease was prevalent [are] obliged to wait

before they [are] permitted to land’.104 On 20 April 2016, the Vessel sailed from West Coast, where

there had been a number of reported cases of Ebola, including among stevedores at the port.105

Accordingly, detention of the Vessel after its arrival at Wahanda on 7 May 2016106 is properly

characterised as ‘quarantine’.

54 Therefore, cl 44 is the appropriate clause to apply in determining whether the Vessel was off-hire

from 7 May 2016 until 26 June 2016, and cl 17 has no application in these circumstances. The parties

have elected to include a specific term which deals with ‘the distribution of contractual responsibility

in the specific context’107 of delay caused by quarantine. The general off-hire clause must ‘give way’

to the specific clause.108

55 In addition, where parties using a standard form contract, such as the NYPE 2015, include additional

specific terms, such as those contained in the Omega Rider, those specific terms ‘are entitled to have

a much greater effect attributed to them’.109 Clause 17 is a ‘general formula adapted equally to …

all … contracting parties upon similar occasions’, whereas cl 44 is ‘the immediate language and terms

103 Record, 9: Omega Rider, cl 44. 104 Daniel Greenberg, Jowitt’s Dictionary of English Law (Sweet & Maxwell, 2nd ed, 2010) vol 2, 1858. 105 Record, 22: article published in the West Coast Daily Echo on 18 April 2016. 106 Record, 25: email from Clark Kent Bulk to Hulk Hull dated 7 July 2016. 107 Yarm Road Ltd v Hewden Tower Cranes Ltd [2003] EWCA Civ 1127, [41] (Laws LJ). 108 Ibid. 109 Robertson v French (1903) 4 East 130, 136 (Lord Ellenborough).


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selected by the parties themselves for the expression of their meaning’.110 Moreover, it is clear from

the fixture recap that the parties intended the terms of the Omega Rider to supersede the standard

form terms of the NYPE 2015.111

56 The RESPONDENT has not pleaded that the Vessel was off-hire under cl 44. In any event, cl 44 is not

satisfied in this case as it requires communication with the infected area to be ‘without the written

consent of Charterers or their agents’. Here, where the ship had been delivered into the Charterparty

and was waiting at West Coast Port subject to the RESPONDENT’S instructions, it cannot be said that

the crew’s communication with the West Coast area occurred without the RESPONDENT’S consent.

II. ALTERNATIVELY, THE REQUIREMENTS OF CL 17 ARE NOT SATISFIED.

57 If cl 17 is to apply in these circumstances, the Vessel was not off-hire pursuant to that clause from 7

May 2016 to 26 June 2016 because: (A) the full working of the Vessel was not prevented; and (B)

further and in the alternative, delay was not caused by an off-hire event stipulated in cl 17.

58 The RESPONDENT bears the burden of showing that an event has occurred that clearly renders the

Vessel off-hire.112 The risk of delay is ‘fundamentally on a time charterer, who remains liable to pay

hire in all circumstances unless the charterer can bring himself within the plain words of an off-hire

provision’.113 Any doubt as to the scope of the off-hire clause is to be resolved in favour of the

CLAIMANT.114 In this case, the RESPONDENT is unable to bring itself within the plain words of cl 17.

A. The full working of the Vessel was not prevented.

59 The words ‘preventing the full working of the vessel’ qualify not only the words ‘any other similar

cause’, but also each event specifically listed in cl 17.115 A vessel is only off-hire where there is ‘some

defect or incapacity of or in the vessel herself which affects her working’.116 Causes which are ‘totally

110 Ibid. 111 Record, 5: Recap of fixture between Panther Shipping Inc and Omega Chartering Limited dated 18 March 2016. 112 Royal Greek Government v Minister of Transport (1948) 82 Lloyd’s Rep 196, 199 (Bucknill LJ). 113 Hyundai Merchant Marine Co Ltd v Furness Withy (Australia) Pty (The Doric Pride) [2006] 2 Lloyd’s Rep 175, 179

(Rix LJ). 114 Cosco Bulk Carrier Co Ltd v Team-Up Owning Co Ltd (The Saldanha) [2011] 1 Lloyd’s Rep 187, 189 (Gross J);

Royal Greek Government v Minister of Transport (The Ilissos) [1949] 1 KB 525, 529 (Bucknill LJ). 115 Mareva Navigation Co Ltd v Canaria Armadora SA (The Mareva AS) [1977] 1 Lloyd’s Rep 368, 382 (Kerr J); Andre

& Cie SA v Orient Shipping (Rotterdam) BV (The Laconian Confidence) [1997] 1 Lloyd’s Rep 139, 141 (Rix J). 116 The Laconian Confidence [1997] 1 Lloyd’s Rep 139, 145 (Rix J).


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extraneous’ are not considered to prevent the full working of the vessel.117 Where a vessel is detained

by port authorities, the question turns on whether the authorities acted reasonably and properly

pursuant to a suspected inefficiency or incapacity of the vessel,118 or whether the interference was

‘something beyond the natural or reasonably foreseeable consequence of some named cause’ in the

off-hire clause (in which case the cause of delay is considered to be totally extraneous).119

60 Detention and quarantine of the Vessel for 50 days was not reasonable and proper, nor a natural or

reasonably foreseeable consequence of any cause listed in cl 17. Notably, cl 17 has not been amended

to extend to ‘any other cause whatsoever’.120 The present case can be distinguished from The Apollo,

where the vessel was held to be off-hire while port authorities inspected and cleaned the ship due to

the suspected infection of crew members with typhus. In that case, the vessel was delayed only for

29.5 hours while the port health authorities carried out ‘careful testing and disinfection’,121 and the

off-hire clause had been amended to include the word ‘whatsoever’.122

61 In this case, the action of Port State Control was a ‘totally extraneous cause’ as it was ‘unconnected

with, because too remote from’ the background circumstance that the Vessel had previously called at

an area where there was an outbreak of Ebola.123

B. Further and in the alternative, delay was not caused by an off-hire event listed under cl 17.

62 The only off-hire event listed in cl 17 that the RESPONDENT could conceivably seek to rely on is

‘detention by Port State control or other competent authority for Vessel deficiencies’. A vessel has a

‘deficiency’ if it is not compliant with the codes124 published under the Paris Memorandum of

117 Belcore Maritime Corporation v Fratelli Moretti Cereali SpA (The Mastro Giorgis) [1983] 2 Lloyd’s Rep 66, 69

(Lloyd J), referring to Court Line Ltd v Dant & Russell Inc (1939) 64 Lloyd’s Rep 212. 118 See Sidermar SpA v Apollo Corporation (The Apollo) [1978] 1 Lloyd’s Rep 200. 119 The Laconian Confidence [1997] 1 Lloyd’s Rep 139, 151 (Rix J). 120 This was the case in The Apollo and The Mastro Giorgis, where the vessels were held to be off-hire due to interference

of authorities. 121 The Apollo [1978] 1 Lloyd’s Rep 200, 205 (Mocatta J). 122 The Laconian Confidence [1997] 1 Lloyd’s Rep 139, 151 (Rix J). Justice Rix suggested that the inclusion of the word

‘whatsoever’ in The Apollo was the factor that facilitated the finding that the vessel was off-hire. 123 The Laconian Confidence [1997] 1 Lloyd’s Rep 139, 151 (Rix J). 124 Paris MoU Organisation, List of Paris MoU deficiency codes (1 July 2017) Paris MoU on Port State Control

<https://www.parismou.org/list-paris-mou-deficiency-codes>.


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Understanding on Port State Control, to which the United Kingdom is a party.125 The codes relate to

matters such as the vessel’s certificates and documentation, equipment and facilities, systems and

procedures, and the living and employment conditions of the crew. None of the codes contemplates

that the mere fact a vessel has previously called at an infected area amounts to a ‘vessel deficiency’.

63 Nor was the detention a ‘similar cause’ within cl 17. The words ‘any other similar cause’ are

interpreted ejusdem generis in accordance with other causes specifically listed in the off-hire clause

and in the context of the Charterparty as a whole.126 The fact that cl 44 does not apply to these

particular facts does not ‘furnish justification for distorting the meaning’ of cl 17.127 Indeed, the fact

that the parties have elected to include a specific clause dealing with quarantine situations indicates

that quarantine was not contemplated to be a ‘similar cause’ under cl 17.

64 Further, the causes listed in cl 17 generally relate to the physical condition or efficiency of the vessel

or its cargo, and the words ‘any other cause’ do not encompass an ‘entirely extraneous cause’ such as

interference by authorities which goes beyond the natural or reasonably foreseeable consequence of

a named cause.128 It is clear that hire will not cease in every circumstance where the full working of

the vessel is prevented.129 In the present case, the off-hire clause has not been amended to refer to

‘any other cause whatsoever’,130 such that it could extend to the interference by Port State Control.131

125 Paris Memorandum of Understanding on Port State Control, 1. The same codes apply under the Tokyo Memorandum

of Understanding on Port State Control in the Asia-Pacific Region, to which Hong Kong is a party. The laws of Bao

Kingdom, where Wahanda is located, closely resemble the laws of Hong Kong: Procedural Order No 2 [1]. 126 Hogarth v Miller, Brother & Co [1891] AC 48, 53 (Lord Halsbury); The Apollo [1978] 1 Lloyd’s Rep 200, 205

(Mocatta J); The Laconian Confidence [1997] 1 Lloyd’s Rep 139, 150 (Rix J). 127 Cosco Bulk Carrier Co Ltd v Team-Up Owing Co Ltd (The Saldanha) [2011] 1 Lloyd’s Rep 187, 194 (Gross J). 128 The Laconian Confidence [1997] 1 Lloyd’s Rep 139, 150 (Rix J). 129 Santa Martha Baay Scheepvart & Handelscmaatschappij NV v Scanbulk A/S (The Rijn) [1981] 2 Lloyd’s Rep 267,

271 (Mustill J). 130 This was the case in The Apollo and The Mastro Giorgis. 131 The Laconian Confidence [1997] 1 Lloyd’s Rep 139, 151 (Rix J).


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PRAYER FOR RELIEF

For the reasons set out above, the CLAIMANT seeks the following orders and declarations:

a. an award of damages for the cost of cleaning the Vessel’s hull in the amount of USD96,567.42;

b. an award of damages for late redelivery of the Vessel, in the amount of USD15,330,000;

c. a declaration that the CLAIMANT is not obliged to indemnify the RESPONDENT against the

Cargo Claim;

d. a declaration that the Vessel remained on-hire from 7 May 2016 to 26 June 2016;

e. an award of interest under s 49 of the Arbitration Act 1996 (UK); and

f. an order for costs.

Documents

MEMORANDUM FOR CLAIMANT - Murdoch University · Team 10 Memorandum for the Claimant iv LIST OF ABBREVIATIONS ... September 2011) Next Fixture Fixture between Panther Shipping Inc