NINTEENTH INTERNATIONAL MARITIME LAW ARBITRATION … · 2020. 9. 13. · ninteenth international maritime law arbitration moot 2018 memorandum for respondent \ universitas airlangga

$Page 1: NINTEENTH INTERNATIONAL MARITIME LAW ARBITRATION … · 2020. 9. 13. · ninteenth international maritime law arbitration moot 2018 memorandum for respondent \ universitas airlangga$
NINTEENTH INTERNATIONAL MARITIME LAW ARBITRATION MOOT

2018

MEMORANDUM FOR RESPONDENT

\

UNIVERSITAS AIRLANGGA

TEAM 10

CERULEAN BEANS AND AROMAS LTD

(CLAIMANT)

V.

DYNAMIC SHIPPING LLC

(RESPONDENT)

COUNSEL FOR RESPONDENT

AULY NAHDYAN MAFAZA

BIMA DANUBRATA ADHIJOSO

INDARWATI ATIKA SHANTI

REGINE WIRANATA

SHOFY SUMA NISRINA

i

TABLE OF CONTENTS

ABBREVIATIONS ................................................................................................................. iv

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

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

I. THE TRIBUNAL POSSESS NO JURISDICTION OVER CLAIMANT’S CLAIMS

FOR DAMAGES ...................................................................................................................... 3

A. THIS TRIBUNAL HAS JURISDICTION OVER THE PRESENT DISPUTE .................................... 3

1. The Tribunal is the chosen forum of the dispute resolution by the parties .................... 3

2. The Tribunal has the power to determine its own jurisdiction ........................................ 3

B. THE DAMAGES CLAIMED BY CLAIMANT ARE ARBITRABLE BY THE TRIBUNAL ................. 4

1. Establishing the cause of damages to the Cargo is a technical matter ........................... 4

2. Even if the Expert Evidence was admissible to establish the cause of damages,

establishing Respondent’s fault in delivery is a technical matter ....................................... 5

C. THE TRIBUNAL DOES NOT HAVE THE POWER TO GRANT THE MARITIME LIEN OVER THE

MADAM DRAGONFLY .................................................................................................................. 5

1. The Tribunal has no power to grant the maritime lien as a right in rem ....................... 6

2. In any event, a consideration of the maritime lien specifically invokes the crew who

are third parties to the proceedings ...................................................................................... 6

D. THE TRIBUNAL HAS THE POWER TO GRANT RESPONDENT’S CLAIM FOR DAMAGES........ 7

II. RESPONDENT IS NOT LIABLE TO CLAIMANT FOR DAMAGE

COMPRISING ACCOUNTS OF THE DAMAGED CARGO, REPLACEMENT

COFFEE PAYMENT, AND SETTLEMENT PAYMENT .................................................. 8

A. RESPONDENT IS NOT RESPONSIBLE FOR THE DAMAGES TO THE CARGO ...................... 8

1. The damage to the Cargo was not incurred due to Respondent’s fault .......................... 8

ii

2. In any event, Respondent is exempt from liability for any damages to the Cargo ......... 9

a. The deviation made by the Madam Dragonfly was justified under the liberty clause ... 9

b. The storm hindering the delivery of the Cargo was an event of force majeure ............. 9

B. IN ANY EVENT, RESPONDENT’S LIABILITY IS LIMITED UNDER THE CHARTERPARTY .. 10

1. Respondent is entitled to protection under the limitation of liability clause under the

Hague-Visby Rules .............................................................................................................. 10

a. Respondent is entitled to protection under the limitation of liability clause ................ 10

i. The value of the goods were never declared in any sea carriage document ......... 10

ii. Respondent has neither intentionally nor recklessly caused damage to the cargo

11

b. The liability of Respondent is capped at USD 148.251.6 ............................................. 11

2. Respondent is not liable for indirect damages for the losses incurred by Claimant..... 12

III. CLAIMANT DOES NOT HOLD A MARITIME EQUITABLE LIEN OVER

THE MADAM DRAGONFLY ............................................................................................. 14

A. CLAIMANT’S CONTRACTUAL POSITION DOES NOT ENTITLE THEM TO ANY CLAIM

BELONGING TO THE CREW ...................................................................................................... 14

1. Claimant has not assumed the position of a surety ........................................................ 14

2. Claimant’s payment to the account did not constitute payment to the crew ................. 15

B. IN ANY EVENT, THE MARITIME LIEN FOR THE CREWS WAGE CANNOT BE TRANSFERRED

TO CLAIMANT .......................................................................................................................... 15

1. The maritime lien is a right that cannot be transferred in equity ................................. 15

2. The Tribunal does not have the jurisdiction to order a subrogation of the maritime

lien ........................................................................................................................................ 16

iii

IV. CLAIMANT IS LIABLE TO RESPONDENT FOR AMOUNTS OWING

UNDER THE CHARTERPARTY FOR FREIGHT, AGENCY FEES, COST OF

REPAIRS, DEMURRAGE, AND USE OF ELECTRONIC ACCESS SYSTEMTS ...... 17

A. CLAIMANT’S FAILURE TO PAY ANY OF THE AMOUNTS DUE TO IT IS A BREACH OF THE

CHARTERPARTY ...................................................................................................................... 17

B. CLAIMANT IS LIABLE FOR AGENCY FEES AT THE PORT OF SPECTRE .......................... 17

1. The deviation to the Port of Spectre was a justified act to save the Cargo ................... 17

2. The agency fees incurred at the port constitute particular charges .............................. 18

C. CLAIMANT IS LIABLE FOR DEMURRAGE ....................................................................... 19

1. The vessel was detained 5 hours beyond laytime ........................................................... 19

2. The claim to demurrage is not exempted under contractual exceptions or fault ......... 20

D. CLAIMANT IS LIABLE FOR THE USE OF THE ELECTRONIC ACCESS SYSTEMS AT THE

PORT OF DILLAMOND .............................................................................................................. 20

1. The purchase of the electronic access systems was a reasonable step .......................... 20

2. Claimant is liable for the lost incurred ........................................................................... 21

REQUEST FOR RELIEF ..................................................................................................... 22

iv

ABBREVIATIONS

Claimant Cerulean Beans and Aromas Ltd.

Respondent Dynamic Shipping LLC

Charterparty The Voyage Charterparty

Master Edward Hillster

LMAA London Maritime Arbitrators Association

Act The UK Arbitration Act of 1996

Cargo Speciality Grade Green Coffee

Parties Claimant and Respondent

Vessel Madam Dragonfly

Tribunal Present Arbitral Tribunal

v

LIST OF AUTHORITIES

Legislation

Arbitration Act 1996 (UK) 3, 4

The London Maritime Arbitrators Association Terms 2017 3

Australia Sea-Carriage Documents Act 1997 11

The Hague-Visby Rules 11, 12

Cases

Christopher Brown Ltd v Genossenschaft Oesterreichischer Waldbesitzer

Holzwirtschaftsbetriebe Registrierte GmbH [1954] 1 QB 8, 12-3 (Devlin J)

3

Engineering Company v Engineering Company (Final Award) (1999) XXIV

Yearbook Commercial Arbitration 80, 83

3

The Ioanna [1978] 1 Lloyd’s Rep 238 (CA) 3

Verity Shipping SA v NV Norexa [2008] 1 Lloyd’s Rep 652 (QBD) 3

Fiona Trust and Holding Corp v Privalov [2007] UKHL 40, [2007] 4 All ER 951

[5] (Lord Hoffmann).

4

Norwich Union Life Insurance Society v P&O Property Holdings [1993] EGLR

164.

4

Golden Ocean Group Ltd v. Humpuss etc [2013] EWHC 1240 (Comm) 5

The Bold Buccleugh [1851] 13 Eng. Rep. 884. 6

Programmed Total Marine Services Pty Ltd v. The Ship “Hako Fortress” (01 6

vi

August 2012) - [2012] FCA 805 (01 August 2012) (McKerracher J) - 293 ALR 139

Comandate Marine Corporation v. Pan Australia Shipping Pty Ltd (The

“Commandate”). [2007] Lloyd's Rep. Plus 53.

6

The Gamma, 81 L. T. Rep. 379 6

The Rena K [1979] QB 377 6

Bankers Trust International Ltd v. Todd Shipyards Corporation (“The Halcyon

Isle”) [1981] AC 221

6

Davis v. Rea (1680) Finch 441 6

Thomson v. Noel (1738) Hardw 304 6

Robertson v. Hatton (1857) 26 LJ Ex 293 6

Heyman v Darwins Ltd [1942] AC 356 7

Mackender v Feldia [1967] 2QB 590 7

The Evje [1975] AC 797 7

The Playa Larga [1983] 2 Lloyds Rep 171 7

Antonis P Lemos [1985] AC 711 7

Ashville Investments Ltd v Elmer Contractors Ltd [1989] QB 488 7

Fillite (Runcorn) v AquaLift (1989) 26 Const LR 66 7

Harbour Assurance Co (UK) Ltd v Kansa General International Insurance [1993]

QB 701

7

vii

The Angelic Grace [1995] 1 Lloyds Rep 87 7

Cape Flattery Ltd v Titan Maritime, LLC (The Cape Flattery), 607 F. Supp. 2d.

1179 at 924

7

Dakin v. Oxley (1864) 15 C.B. (N.S.) 646 7

Buckle v. Knoop (1867) L.R. 2 Exch. 125, 333. 7

Hadley v. Baxendale 8

Hadley v. Baxendale (1854) 9 Exch. 341, 354. 8, 12

Indemnity Insurance Co. v. Excel Cleaning Service, (1954) 2 D.L.R. 721 (S.C.C.). 9

Gatliffe v. Bourne (1838) 4 Bing. N.C. 314, (1841) 3 M. & G. 643, (1844) 7 M. &

G. 850, 11 Cl. & F. 45

9

Keane v. Australian Steamships (1929) 41 C.L.R. 484 9

Automatic Tube Co. v. Adelaide SS. (The Beltana) (1967) 1 Lloyd’s Rep. 531

(Supreme Ct. of Western Australia).

9

Phelps, James & Co v. Hill [1891] QB 605 9

Hamilton, Fraser & Co v Pandorf & Co [1887] 12 App Cas 518 at 524 per Lord

Halsbury LC, 530 per Lord Herschell; cf 528 per Lord FitzGerald.

10

Shipping Corporation of India Ltd v Gamlen Chemical Co A/Asia Pty Ltd [1980]

HCA 51

10

Great China Metal Industries Co Ltd v Malaysian International Shipping

Corporation Berhad [1998] HCA 65

10

viii

Nugent v. Michael Gross Aviation [2000] 2 Lloyd’s Rep. 222 11

Victoria Laundry (Windsor) LD. v. Newman Industries LD. 12

KG Bominflot Bunkergesellschaft fur Mineralole mbH & Co v. Petroplus

Marketing AG [2012] EWHC 3009 (Comm)

13

Williams Bros v. Ed T Agius Ltd [1914] AC 510, 523. 13

Yonge v. Reynell [1852] EngR 655; (1852) 9 Hare 809 at 818-819. 14

Craythorne v. Swinburne (1807) 14 Ves Jr 160 14

Duncan Fox & Co v. North & South Wales Bank (1880) 6 App Cas 1, 13 14, 15,

21

Bofinger v. Kingsway Group Limited [2009] HCA 44 14

O’Day v. Commercial Bank of Australia Ltd [1933] HCA 37 14

Friend v. Brooker [2009] HCA 21 14

Orion Finance Ltd v J D Williams and Company Ltd CA (Bailii, [1995] EWCA

Civ)

14

Burnand v. Rodocanachi Sons & Co (1882) 7 App Cas 333, 339 14

Castellain v. Preston (1883) 11 QBD 380 14

Orakpo v. Manson Investments Ltd [1978] AC 95, 105. 15

Lidderdale’s Executors v. Robinson’s Executor, 12 Wheat. 54, 6 L. Ed 740 (1827) 15

O’Neill v. IRC [1998] STC (SCD) 110. 15

ix

Anonymous [1748] EngR 178 16

Hilland v. The Money Arising from the Sale of the “Royale Charlotte” [1768]

EngR 9

16

Wilkins v. Carmichael (1779) 1 Doug 101 at 104-105. 16

Pacific Maritime (Asia) Ltd v. Holystone Overseas Ltd [2008] 1 Lloyd’s Rep 371. 16

Sheels v. Davies (1814) 4 Camp. 119 17

Dakin v. Oxley (1864) 15 C.B. (N.S.) 646. 17

BP Oil International Ltd v. Target Shipping Ltd (Target) [2013] EWCA Civ 196. 17

Kidston and Others v. The Empire Marine Insurance Company (1867) LR 1 CP

535

17

Svendsen v.Wallace Bros (1884) 13 QBD 69. 17

Kish v. Taylor [1912] A.C. 604. 18

Monarch v. Karlshamns [1949] A.C. 18

Australian Coastal Shipping Commission v. Green [1971] 1 QB 456, CA. 18

Eisenerz GmbH v. Federal Commerce and Navigation Co Ltd (“The Oak Hill”)

[1970] 2 Lloyd’s Rep 332, affirmed [1975] 1 Lloyd’s Rep 105.

18

Atwood v. Sellar (1880) 5 QBD 286 (CA) 18

Svendsen v.Wallace Bros (1884) 13 QBD 69. 17, 18

E.L. Oldendorff & Co GmbH v. Tradax Export SA (The Johanna Oldendorff) 19

x

[1973] 3 All ER 148.

William Alexander v. Akt. Hansa [1920] A.C. 88, at p. 94. 20

Ropner Shipping Co. Ltd. v Cleeves Western Valleys Anthracite Collieries Ltd.,

(1927) 27 Ll.L.Rep. 317.

20

MSC Mediterranean Shipping Company S.A. v. Cottonex Anstalt [2015] EWHC

283 (Comm).

20

Stolt Tankers Inc. v. Landmark Chemicals S.A. (The Stolt Spur) [2002] 1 Lloyd’s

Rep. 786.

20

Leeds SS. Co. v. Duncan Fox (1932) 37 Com. Cas. 213. 21

Books

Gary B Born, International Commercial Arbitration (Kluwer Law International,

2nd ed, 2014) vol I

3

Nigel Blackaby and others, Redfern & Hunter on International Arbitration (5th edn,

Oxford University Press 2009)

3

Tenterden’s Law of Merchant Ships (11th ed), edited by Justice Shee 16

John Schofield, Laytime and Demurrage, (CRC Press, Dec 22, 2015) 19

1

STATEMENT OF FACTS

1. On or around 22 July 2017, Claimant entered into a voyage charter party (“Charterparty”)

with Dynamic Shipping LLC (“Respondent”) for an urgent shipment of 1,000 bags of rare,

high-quality, speciality grade green coffee (“the Cargo”) from Cerulean to Dillamond on

board the Madam Dragonfly (“the Vessel”). Claimant stated that the Cargo should arrive at

Dillamond by 7 pm on 28 July, and that the containers used for the voyage were to be entirely

waterproof. Respondent assured Claimant that the sealant it used provided waterproof

protection for up to five days.

2. A side agreement was made and conducted as a prerequisite to the voyage. Claimant was to

pay the crew’s wages in the amount of USD 100,000 to a separate account specifically made

by Respondent for that purpose, as the crew would not sail otherwise.

3. On 24 July 2017, the Cargo was loaded onto the Vessel, and a corresponding dock receipt

was released. The Vessel began its voyage to Cerulean the same day, with expected arrival at

5 pm on 28 July 2017.

4. At or around 9.30 pm on July 25, a solar flare disabled the vessel’s navigational and

communication systems. The vessel, which had only hardcopy maps to the port of Spectre,

deviated to the port.

5. At 2.32 pm on 26 July 2017, Claimant was informed of the solar flare and subsequent

deviation. On 27 July 2017, Claimant demanded assurance that the vessel would arrive at

Dillamond by 7 pm on 28 July. The same day, the Vessel continued its voyage.

6. At 4.58 pm on 28 July 2017, Respondent informed Claimant that there was a massive storm

about to hit Dillamond preventing the Vessel from proceeding past its location, detected only

30 minutes prior.

2

7. At 7 am on 29 July 2017, the vessel arrived at the waiting place for the port around 100

nautical miles from Dillamond, where it awaited instructions. At 8.58 am, after receiving

contact from the captain, Respondent notified Claimant of the Vessel’s whereabouts.

8. At 4.28 pm, Respondent again notified Claimant that the vessel was due to berth in 30

minutes, and that delivery of the cargo would be approximately 2 hours later. Along with the

notification, Respondent sent a barcode to retrieve the cargo from the port’s shipping

containers in the event that Claimant was unable to do it before midnight the same day. At

8.42 pm, Respondent notified Claimant of the Vessel’s arrival.

9. At 12 am on 30 July 2017, after a lack of reply from Claimant, Respondent left the cargo at

the port containers. Later findings showed that somewhere from 4.30 am the same day, 3 of

the 4 containers used were damaged due to the sealant breaking and unprecedented rainfall.

10. At 1.17 pm on 31 July 2017, Claimant informed Respondent that it had retrieved the

containers following significant congestion.

11. On 1 August 2017, sent a sudden demand for damages it incurred following the cargo’s

damage, which it alleged as Respondent’s fault, totaling USD 30,200,000.

12. On 7 August 2017, Respondent sent notice of the late payment for its performance of the

Charterparty. The next day, Claimant refused the invoice and its obligations to pay under the

Charterparty.

13. On 11 August 2017, Claimant referred the dispute to arbitration pursuant to Clause 27(a) of

the Charterparty. The Tribunal was then properly constituted under the terms of the

Charterparty.

3

ARGUMENT ON JURISDICTION

I. THE TRIBUNAL POSSESS NO JURISDICTION OVER CLAIMANT’S CLAIMS

FOR DAMAGES

A. THIS TRIBUNAL HAS JURISDICTION OVER THE PRESENT DISPUTE

1. The Tribunal is the chosen forum of the dispute resolution by the parties

14. Parties to a dispute have the autonomy to choose the arbitration regime to govern their

dispute resolution.1 As stated in the Points of Claim and Counterclaim, the dispute existing

between Claimant and Respondent pertain to the performance of the Voyage Charterparty

dated 22 July 2017.2 Clause 27. Arbitration of said Charterparty contains the choice of the

Parties to resolve such a dispute in arbitration in London, subject to the Arbitration Rules of

the LMAA.3 Hence, in the present case, the Tribunal indeed has in personam jurisdiction

over the parties.

2. The Tribunal has the power to determine its own jurisdiction

15. Term 6(a) of the LMAA Terms, which governs these proceedings, provides that absent any

agreement to the contrary, the Parties agree that the law applicable to the arbitration

agreement is English.4 As the Parties are silent on the procedural law of the arbitration,

5 the

UK Arbitration Act of 1996 (“the Act”) applies.6 Section 30(1) of the Act affirms the

1 Arbitration Act 1996 (UK) c 23, s 30; Christopher Brown Ltd v Genossenschaft

Oesterreichischer Waldbesitzer Holzwirtschaftsbetriebe Registrierte GmbH [1954] 1 QB

8, 12-3 (Devlin J); Engineering Company v Engineering Company (Final Award) (1999)

XXIV Yearbook Commercial Arbitration 80, 83; Gary B Born, International Commercial

Arbitration (Kluwer Law International, 2nd ed, 2014) vol I, 1050-1; Nigel Blackaby and

others, Redfern & Hunter on International Arbitration (5th edn, Oxford University Press

2009) para 5.99. 2 Moot Scenario (15 December 2017), at 37.

3 Ibid, at 12, Clause 27(a).

4 The London Maritime Arbitrators Association Terms 2017, Term 6(a).

5 Moot Scenario (15 December 2017), at 12, Clause 27(a).

6 The Ioanna [1978] 1 Lloyd’s Rep 238 (CA); Verity Shipping SA v NV Norexa [2008] 1

Lloyd’s Rep 652 (QBD).

4

principle of Kompetenz-Kompetenz - that is, that the Tribunal can rule on its own

jurisdiction.7 As such, the submissions of Claimant that certain disputes are arbitrable require

further examination by this Tribunal.

B. THE DAMAGES CLAIMED BY CLAIMANT ARE ARBITRABLE BY THE TRIBUNAL

16. Arbitration is a creature of consent, making the intention of the parties of utmost importance.8

As stated under Clause 27(d) of the Charterparty, the Parties intend that any technical matters

- i.e., those relating to the technical aspects of the performance of the Charterparty, should

foremost be referred to a Master Mariner.9

17. That has not been done in this case on the issue of damages to the Cargo, (1) in establishing

the cause of the damage, and (2) in establishing Respondent’s fault on said damage.

1. Establishing the cause of damages to the Cargo is a technical matter

18. The dispute existing prior to the institution of proceedings, as was present in the Points of

Claims and Reply, was on when and how the Cargo was damaged.10

At the outset, this

requires that the Parties refer to a Master Mariner whether the Cargo’s damage occurred

owing to its storage on board the vessel. This was not done. The sole evidence that the

Cargo’s damage occurred after the voyage was done by a Tribunal-appointed Expert, which

had overstepped the procedural sequence regulated in the Charterparty.11

As a consequence,

the evidence should not be admitted, and the Tribunal should reject jurisdiction.

7 Arbitration Act 1996 (UK) c 23, s 30.

8 Fiona Trust and Holding Corp v Privalov [2007] UKHL 40, [2007] 4 All ER 951 [5] (Lord

Hoffmann). 9 Moot Scenario (15 December 2017), at 12, Clause 27(d).

10 Ibid, at 37-42.

11 Norwich Union Life Insurance Society v P&O Property Holdings [1993] EGLR 164.

5

2. Even if the Expert Evidence was admissible to establish the cause of

damages, establishing Respondent’s fault in delivery is a technical matter

19. Claimant’s claim for damages pertains to the late delivery of the Cargo,12

which was caused

by the deviation of the Madam Dragonfly to the Port of Spectre.13

However, the issue could

not be considered without first touching on two technical matters: the necessity of the

deviation, and the condition of the vessel’s equipment.

20. First, the dispute on delivery inevitably enters into a discussion as to whether the deviation

done by the vessel was justified - id est, as to whether force majeure gave the vessel liberty to

deviate under the Charterparty. That discussion enters into the issue of the vessel’s route,

expressly enumerated in Clause 27(d) of the Charterparty as a technical matter.

21. Second, if Claimant purported to assert that the deviation was the fault of Respondent that

enters into a discussion as to whether the navigational equipment was adequate. That matter

relates to the technical aspect of the performance of the Charterparty, having been a matter

which requires the expert technical knowledge of a Master Mariner.

C. THE TRIBUNAL DOES NOT HAVE THE POWER TO GRANT THE MARITIME LIEN

OVER THE MADAM DRAGONFLY

22. Arbitration binds only parties to an agreement.14

The Tribunal’s jurisdiction in this case,

therefore, is confined only to in personam disputes between the Parties. In this case, the

Tribunal has no power to grant the maritime lien, as: (1) it involves a right in rem, and in any

event, (2) a consideration thereof specifically involves the crew who are third parties.

12

Moot Scenario (15 December 2017), at 38. 13

Ibid, at 17-18. 14

See, e.g., Golden Ocean Group Ltd v. Humpuss etc [2013] EWHC 1240 (Comm).

6

1. The Tribunal has no power to grant the maritime lien as a right in rem

23. Maritime liens are inherently a right in rem.15

It is a specific right brought against a vessel,16

and should be distinguished from a contractual claim in personam.17

Being bound by their in

personam jurisdiction, an arbitral tribunal has no jurisdiction to hear a claim of maritime

lien18

- if any, that claim should be heard by the court of admiralty where the vessel is

located.19

Consequently, the issue of maritime lien over the Madam Dragonfly does not fall to

be decided by the Tribunal.

2. In any event, a consideration of the maritime lien specifically invokes the

crew who are third parties to the proceedings

24. The Tribunal does not have the power to make awards binding to third parties to the

arbitration.20

This is relevant in this case, as the maritime lien that Claimant asserts did not

arise out of Respondent’s personal liability to Claimant, but to the crew for the payment of

wages.21

25. A consideration of whether this right was subrogated from the crew, particularly when they

have not been paid,22

inevitably involves their interest. With the crew not having been party

or intervener to the present arbitration, this Tribunal has no power to declare the maritime

lien over the Madam Dragonfly.

15

The Bold Buccleugh [1851] 13 Eng. Rep. 884. 16

See, e.g., Programmed Total Marine Services Pty Ltd v. The Ship “Hako Fortress” (01

August 2012) - [2012] FCA 805 (01 August 2012) (McKerracher J) - 293 ALR 139;

Comandate Marine Corporation v. Pan Australia Shipping Pty Ltd (The “Commandate”).

[2007] Lloyd's Rep. Plus 53. 17

The Gamma, 81 L. T. Rep. 379; 8 Asp. Mar. Law Cas. 585 ; (1899) P. 285. 18

The Rena K [1979] QB 377. 19

See, e.g., Bankers Trust International Ltd v. Todd Shipyards Corporation (“The Halcyon

Isle”) [1981] AC 221. 20

Davis v. Rea (1680) Finch 441; Thomson v. Noel (1738) Hardw 304; Ex parte Skeete

(1839) 2 Will Woll & H 49; Robertson v. Hatton (1857) 26 LJ Ex 293. 21


Ibid, at 26.

7

D. THE TRIBUNAL HAS THE POWER TO GRANT RESPONDENT’S CLAIM FOR DAMAGES

26. The operative phrase in Clause 27(a) states that “any disputes arising out of or in connection

with this contract”. The use of the words “arising out of” covers a wide set of disputes

concerning the contract and in particular its performance.23

Here, Respondent’s claims on

damages pertain to the non-payment by Claimant of any of the amounts due to it under the

Charterparty,24

which fell due on August 1.25

Being a question of law and facts on the

performance of the Charterparty,26

it falls under the scope of disputes to be determined by the

Tribunal.

23

See, e.g., Heyman v Darwins Ltd [1942] AC 356; Mackender v Feldia [1967] 2QB 590;

The Evje [1975] AC 797; The Playa Larga [1983] 2 Lloyds Rep 171; Antonis P Lemos

[1985] AC 711; Ashville Investments Ltd v Elmer Contractors Ltd [1989] QB 488; Fillite

(Runcorn) v AquaLift (1989) 26 Const LR 66; Harbour Assurance Co (UK) Ltd v Kansa

General International Insurance [1993] QB 701; The Angelic Grace [1995] 1 Lloyds Rep

87; Cape Flattery Ltd v Titan Maritime, LLC (The Cape Flattery), 607 F. Supp. 2d. 1179

at 924 24

Moot Scenario (15 December 2017), at 41-42. 25

Ibid, at 32. 26

See, e.g., Dakin v. Oxley (1864) 15 C.B. (N.S.) 646; Buckle v. Knoop (1867) L.R. 2 Exch.

125, 333.

8

ARGUMENT ON MERITS

II. RESPONDENT IS NOT LIABLE TO CLAIMANT FOR DAMAGE

COMPRISING ACCOUNTS OF THE DAMAGED CARGO, REPLACEMENT

COFFEE PAYMENT, AND SETTLEMENT PAYMENT

A. RESPONDENT IS NOT RESPONSIBLE FOR THE DAMAGES TO THE CARGO

1. The damage to the Cargo was not incurred due to Respondent’s fault

27. Recoverable damages are those that arise as consequences of a wrong.27

In this case,

Respondent can in no way be liable for damage inflicted not by its own wrong, but

Claimant’s negligence.

28. Foremost, the damage was not caused by the deviation. The deviation having no direct

connection with the damage, Respondent would only be liable for losses if the damages are

reasonably foreseeable as the result of the deviation at the time.28

Although the Madam

Dragonfly’s deviation did cost the voyage several hours, the delay caused was not due to the

deviation per se, but the subsequent storm,29

which was only picked up by the crew some 30

minutes before it occurred.30

That could not have been foreseen at the time of the deviation,

and cannot be held to be a consequence thereof.

29. Rather, the direct cause of damage on the cargo was the expiry of the sealant and

unprecedented rainfall,31

which occurred after the cargo was no longer in the Respondent’s

custody. The water damage had occurred after 4.30 am on July 30,32

after the delivery of the

27

Hadley v. Baxendale (1854) 9 Exch. 341, 354. 28

Ibid. 29


Ibid, at 19. 31

Ibid, at 43. 32

Ibid, at 43.

9

cargo, as opposed to while it was still in Respondent’s custody.33

Although Respondent did

not physically hand over the cargo to Claimant,34

a notice of readiness to deliver, which gives

Claimant reasonable opportunity to take possession thereof, can suffice to establish that

delivery had been affected.35

That notice had been sent at 8.42 pm on July 29.36

2. In any event, Respondent is exempt from liability for any damages to the

Cargo

a. The deviation made by the Madam Dragonfly was justified under the

liberty clause

30. Clause 17. Force Majeure gives the vessel the liberty to deviate if necessary to save

property.37

In this case, the Madam Dragonfly deviated from her planned route to Spectre

port after its navigational and communication systems stopped working,38

which could place

both the vessel and cargo in peril given uncertain weather circumstances. Thus, the deviation

made by the Madam Dragonfly was justified39

and Respondent shall not be held liable in any

way howsoever for such deviation.40

b. The storm hindering the delivery of the Cargo was an event of force

majeure

33

Indemnity Insurance Co. v. Excel Cleaning Service, (1954) 2 D.L.R. 721 (S.C.C.). 34


Gatliffe v. Bourne (1838) 4 Bing. N.C. 314, (1841) 3 M. & G. 643, (1844) 7 M. & G. 850,

11 Cl. & F. 45; Keane v. Australian Steamships (1929) 41 C.L.R. 484; Automatic Tube

Co. v. Adelaide SS. (The Beltana) (1967) 1 Lloyd’s Rep. 531 (Supreme Ct. of Western

Australia). 36


Ibid, at 9. 38

Procedural Order 2, p. 2. 39

Phelps, James & Co v. Hill [1891] QB 605. 40

Ibid.

10

31. Force majeure exempts liability for the nonperformance of an obligation41

when the

stipulated event could not be foreseen42

or guarded against.43

In this case, the storm hindering

the delivery of the cargo was force majeure event - it was only detected 30 minutes before it

hit,44

and Respondent could have done nothing to prevent its effects. Therefore, Respondent

should not be liable for its effects, including the late delivery of the cargo.

B. IN ANY EVENT, RESPONDENT’S LIABILITY IS LIMITED UNDER THE

CHARTERPARTY

1. Respondent is entitled to protection under the limitation of liability clause

under the Hague-Visby Rules

a. Respondent is entitled to protection under the limitation of liability

clause

32. Article 4(5) of the Hague-Visby Rules limits the liability of Respondent for any damage to

the cargo by virtue of Clause 28. Law of the Charterparty,45

as (i) the value of the goods was

never declared in any sea carriage document, and (ii) Respondent has neither intentionally

nor recklessly caused damage to the cargo.

i. The value of the goods were never declared in any sea carriage

document

33. The prerequisite for limitation of liability is a fulfillment of Article IV rule 5(a) of the Hague-

Visby Rules, which is for the cargo to have never had its value declared in any sea carriage

41

Ibid. 42

[1887] 12 App Cas 503 at 509 per Lord Herschell, 514 per Lord Bramwell, 517 per Lord

Macnaghten; Hamilton, Fraser & Co v Pandorf & Co [1887] 12 App Cas 518 at 524 per

Lord Halsbury LC, 530 per Lord Herschell; cf 528 per Lord FitzGerald. 43

Shipping Corporation of India Ltd v Gamlen Chemical Co A/Asia Pty Ltd [1980] HCA 51;

(1980) 147 CLR 142 at 166; Great China Metal Industries Co Ltd v Malaysian

International Shipping Corporation Berhad [1998] HCA 65; 196 CLR 161; 158 ALR 1;

72 ALJR 1592 at 58. 44


Ibid, at 12, Clause 28.

11

document.46

Here, the only sea carriage document is the dock receipt,47

which fulfills the

requirements as a sea waybill.48

However, nowhere does it mention the value of the cargo,49

leaving it undeclared under the Rules.

ii. Respondent has neither intentionally nor recklessly caused

damage to the cargo

34. The exception to an entitlement to limitation of liability, stipulated under Article IV rule 5(e)

of the Rules, is for the Carrier to have caused the damage with intent, or recklessly and with

knowledge that the damage would probably result.50

Foremost, the burden of proof to

demonstrate either of the above lies on Claimant,51

which has not been evidenced in any

manner in this case.

35. First, on the issue of intent, there is no tangible evidence that Respondent intended to cause

damage to the cargo. If any, Respondent only showed surprise when the cargo was found to

be damaged.52

36. Second, on the issue of recklessness, Respondent could not have foreseen that the cargo was

going to be damaged at the time of its discharge. The rain that had occurred, in the words of

the Expert, had been unprecedented.53

b. The liability of Respondent is capped at USD 148.251.6

37. Based on such conditions, neither the carrier nor the ship shall in any event be or become

liable for any loss or damage to or in connection with the goods in an amount exceeding

46

The Hague-Visby Rules, Art. IV r. 5 (a). 47


Australia Sea-Carriage Documents Act 1997 No. 92, S.5. 49


The Hague-Visby Rules, Art. IV r. 5 (e). 51

Nugent v. Michael Gross Aviation [2000] 2 Lloyd’s Rep. 222. 52


Ibid, at 43.

12

666.67 Special Drawing Rights (SDR) per package or unit or 2 SDR per kilogram of gross

weight of the goods lost or damaged, whichever is the higher.54

Calculations are based on the

International Monetary Fund’s SDR Exchange Rate per 1 August 2017 (per the date of the

claim for breach of the Charterparty issued by Claimant), that is, 1 SDR = USD 1.411920.

38. First, using the package rule, the dock receipt mentions 4 containers in the box containing the

number of packages,55

only one of which was usable.56

Multiplying 3 containers by the factor

of [666.67 x USD 1.411920], the calculation caps the liability of Respondent to USD 3,763.2

39. Second, using the gross weight rule, the damaged coffee was 75% of the 70,000 kg cargo.57

Multiplying 52,500 kg by the factor [2 x USD 1.411920], the calculation caps the liability of

Respondent to USD 148,251.6. The latter being higher, Respondent is only liable for at most

USD 148,251.6, not the USD 30,200,000 claimed by Claimant.

2. Respondent is not liable for indirect damages for the losses incurred by

Claimant

40. Indirect damages are recoverable should they have been in the contemplation of both parties

at the time entering into the contract as the probable result of the breach of it58

- that is, they

should not be too remote.59

Claimant claims two forms of indirect damages, comprising USD

9,450,000 for Replacement Coffee Payment and USD 5,000,000 on account of the Settlement

Payment.60

Although the former may be compensable as indirect damages,61

quad non, in any

event the latter is too remote to be regarded as one.

54

The Hague-Visby Rules, Art. IV (5). 55


Ibid, at 25. 57


Hadley v. Baxendale 156 Eng. Rep. 59

Victoria Laundry (Windsor) LD. v. Newman Industries LD. 60

Moot Scenario (15 December 2017), at 38

13

41. The contract was made with the knowledge that Claimant had a subcontract with Coffees of

the World Ltd.62

However, nowhere did Claimant mention the threat of legal action that

Coffees of the World had against it,63

which was the underlying reason for the Settlement

Payment.64

Further, Respondent cannot state that a voluntary action to enter into settlement,

not being a natural consequence of the breach under ordinary circumstances,65

can be claimed

as indirect damages. Consequently, it does not fall to be borne by Respondent.

61

KG Bominflot Bunkergesellschaft fur Mineralole mbH & Co v. Petroplus Marketing AG

[2012] EWHC 3009 (Comm); Williams Bros v. Ed T Agius Ltd [1914] AC 510, 523. 62


Ibid, at 1. 64

Ibid, at 29. 65

Hadley v. Baxendale 156 Eng. Rep.

14

III. CLAIMANT DOES NOT HOLD A MARITIME EQUITABLE LIEN OVER THE

MADAM DRAGONFLY

A. CLAIMANT’S CONTRACTUAL POSITION DOES NOT ENTITLE THEM TO ANY

CLAIM BELONGING TO THE CREW

42. A right to equitable subrogation of the crew’s rights against Respondent could occur if

Claimant was indemnified a surety for Respondent’s debts.66

However, that right arises only:

(1) if Claimant’s contractual position with regards to Respondent and the crew was as a

surety,67

and (2) if the debt owed to the crew was paid.68

However, no subrogation occurred

for any of the crew’s rights, as neither of these prerequisites was met.

1. Claimant has not assumed the position of a surety

43. The legal classification of an agreement depends on the expressed intent of the two parties.69

The agreement to have Claimant pay into the wages account, in spite of being made for the

benefit of the crew, was made between Claimant and Respondent.70

In light of the relevant

terms, such request was essentially one of debt, as opposed to a suretyship.

44. A suretyship places a third party in the position of the debtor in the event of a default.71

If this

were the case, the crew would be in a position to turn to Claimant personally for the default

in the payment of wages by Respondent.72

The crew had no such right. If any, the only

66

Yonge v. Reynell [1852] EngR 655; (1852) 9 Hare 809 at 818-819. 67

Craythorne v. Swinburne (1807) 14 Ves Jr 160; Duncan Fox & Co v. North & South Wales

Bank (1880) 6 App Cas 1, 13; Andrews and Millett, Law of Guarantees (6th ed, 2011),

para. 11-017. 68

Bofinger v. Kingsway Group Limited [2009] HCA 44; (2009) 239 CLR 269 at 280-281;

Yonge v. Reynell [1852] EngR 655; (1852) 9 Hare 809 at 818-819; O’Day v. Commercial

Bank of Australia Ltd [1933] HCA 37; (1933) 50 CLR 200 at 223; Friend v. Brooker

[2009] HCA 21; (2009) 239 CLR 129 at 153. 69

Orion Finance Ltd v J D Williams and Company Ltd CA (Bailii, [1995] EWCA Civ). 70


Yonge v. Reynell [1852] EngR 655; (1852) 9 Hare 809. 72

Burnand v. Rodocanachi Sons & Co (1882) 7 App Cas 333, 339; Castellain v. Preston

(1883) 11 QBD 380, at 386-387, 393-394, 397.

15

remedy available to them in the event of default was to secure funds in the account set up by

Respondent as their principal debtor.73

How and from whom these funds are acquired are of

no relevance to the ultimate liability of Respondent.74

If any legal relationship to Claimant

exists, it is one of indebtedness by Respondent.

2. Claimant’s payment to the account did not constitute payment to the crew

45. Subrogation in the scope of a suretyship relationship, at any rate, could only occur if the

obligation of Respondent towards the crew was discharged.75

In the first place, however,

payment to the account never constituted payment to the crew. The account’s purpose to hold

wages76

does not indicate that the crews are its beneficial owners. An establishment of

beneficial ownership requires power over the account.77

As evidenced by the ability of

Respondent to appropriate the funds without action by the crew,78

the crew did not have this

required power. As a consequence, unless and until the wages are paid from the account,

which they have not,79

the crew cannot be held to have received payment.

B. IN ANY EVENT, THE MARITIME LIEN FOR THE CREWS WAGE CANNOT BE

TRANSFERRED TO CLAIMANT

1. The maritime lien is a right that cannot be transferred in equity

46. A maritime lien for wages, which possesses the nature of a privilege,80

is a personal right.81

A

payment by a third party of the wages does not transfer the privilege,82

but instead

73

Moot Scenario (15 December 2017), at 1, 36. 74

Orakpo v. Manson Investments Ltd [1978] AC 95, 105. 75

Lidderdale’s Executors v. Robinson’s Executor, 12 Wheat. 54, 6 L. Ed 740 (1827);

Duncan, Fox & Co. v. North and South Wales Bank, 6 App. Cas. 1 (H.L. 1880). 76

Procedural Order 2, at 21. 77

O’Neill v. IRC [1998] STC (SCD) 110. 78


Ibid. 80

The “Two Ellens” LR 4 PC at 169. 81

Anonymous [1748] EngR 178; (1696) Fort. 230 (92 ER 830). 82

The “Petone” [1917] P 198.

16

extinguishes the maritime lien.83

Consequently, if the transfer of funds was held to be

payment to the crew, the maritime lien ceased to be in existence, and could not subsequently

be revived for the benefit of Claimant.84

2. The Tribunal does not have the jurisdiction to order a subrogation of the

maritime lien

47. The sanction of a court, in practice, could give rise to the quasi-subrogation of a maritime

lien.85

However, the consequence of this order is a right in rem,86

whereas this Tribunal’s

powers are limited to orders in personam.87

Moreover, as the crew are not parties to these

proceedings,88

no order of payment could be made against them as third parties.89

As a

consequence, an order to subrogate the maritime lien falls beyond the scope of the present

proceedings.

83

Anyonymous [1748] EngR 178; (1696) Fort. 230 (92 ER 830); Hilland v. The Money

Arising from the Sale of the “Royale Charlotte” [1768] EngR 9; (1768) Burrell 76;

Wilkins v. Carmichael (1779) 1 Doug 101 at 104-105. 84

Tenterden’s Law of Merchant Ships (11th ed) Edited by Justice Shee, at 626-627. 85

The “William Safford” [1860] EngR 606; (1860) Lush 69 at 71 [1860] EngR 606; (167 ER

37 at 38); The “Cornelia Henrietta” (1866) LR 1 A & E 51 at 52; The “Fair Haven”

(1866) LR 1 A & E 67. 86

Ibid. 87

Pacific Maritime (Asia) Ltd v. Holystone Overseas Ltd [2008] 1 Lloyd’s Rep 371. 88


Pacific Maritime (Asia) Ltd v. Holystone Overseas Ltd [2008] 1 Lloyd’s Rep 371.

17

IV. CLAIMANT IS LIABLE TO RESPONDENT FOR AMOUNTS OWING UNDER

THE CHARTERPARTY FOR FREIGHT, AGENCY FEES, COST OF

REPAIRS, DEMURRAGE, AND USE OF ELECTRONIC ACCESS SYSTEMTS

A. CLAIMANT’S FAILURE TO PAY ANY OF THE AMOUNTS DUE TO IT IS A BREACH

OF THE CHARTERPARTY

48. Clause 22. Freight provides that amounts due under the Charterparty invoice should be paid

within two banking days of the delivery of the cargo.90

This obligation is absolute and not

prone to any set-off, even in the face of a claim for damages.91

As such, even with the

existence of a dispute concerning damages to the cargo between the Parties, Claimant’s

failure to pay the amounts due to it is a breach of the Charterparty.

B. CLAIMANT IS LIABLE FOR AGENCY FEES AT THE PORT OF SPECTRE

49. Clause 23. Charges are silent on whether Claimant or Respondent should be responsible for

fees incurred at an intermediate port.92

In that absence, such responsibility lies on the party in

whose interest such charges are incurred.93

As the deviation to the Port of Spectre was an act

to save the cargo, Claimant is liable for particular charges incurred therein, specifically

agency fees.

1. The deviation to the Port of Spectre was a justified act to save the Cargo

50. A particular charge stems from an act intended to save or preserve the cargo.94

That

expenditure includes those incurred when a vessel puts into a port of refuge,95

as had

happened in this case. The reason for the vessel’s deviation to the Port of Spectre was

90

Moot Scenario (15 December 2017), at 11, Clause 22. 91

Sheels v. Davies (1814) 4 Camp. 119; (1815) 6 Taunt. 65; Dakin v. Oxley (1864) 15 C.B.

(N.S.) 646. 92

Ibid, at 11, Clause 23. 93

BP Oil International Ltd v. Target Shipping Ltd (Target) [2013] EWCA Civ 196. 94

Kidston and Others v. The Empire Marine Insurance Company (1867) LR 1 CP 535;

(1867) LR 2 CP 357; Benecke on Marine Insurance, 472, Lond. 1824. 95

Svendsen v.Wallace Bros (1884) 13 QBD 69.

18

because the solar flares had disabled the vessel’s navigational system.96

Those circumstances

posed significant risk to the cargo, as without the systems, significant weather risks would be

undetectable.97

51. Even if the costs were incurred because the vessel’s systems were outdated, quad non, it does

not erase the fact that the deviation was justified at the time.98

The only circumstances in

which any form of unseaworthiness would bar this claim would be if Respondent was aware

of the need to deviate during the voyage for repairs,99

which could not have been the case

given that the solar flares were an event of force majeure.100

Consequently, the deviation is

admissible as an act to save the cargo.

2. The agency fees incurred at the port constitute particular charges

52. Parallel to general average losses, particular charges are those which are: First, the result of

direct and unbroken causation by the act to save the cargo,101

and Second, inevitable in the

circumstances of the case.102

53. In this case, the agency fees incurred at the Port of Spectre fall within the ambit of this

provision. First, authorities are on accord that expenses incurred in handling cargo are direct

consequences of resort to a port of refuge.103

Second, the fees were inevitable, given that the

vessel required a systems inspection,104

requiring the cargo be handled during that period of

96


See Ibid, where the functioning radars were responsible for detecting the oncoming storm 98

Kish v. Taylor [1912] A.C. 604. 99

Monarch v. Karlshamns [1949] A.C. 100

See Moot Scenario (15 December 2017), at 9, Clause 17, where unforeseen weather

events are included as events of force majeure. 101

Australian Coastal Shipping Commission v. Green [1971] 1 QB 456, CA. 102

Eisenerz GmbH v. Federal Commerce and Navigation Co Ltd (“The Oak Hill”) [1970] 2

Lloyd’s Rep 332, affirmed [1975] 1 Lloyd’s Rep 105. 103

Atwood v. Sellar (1880) 5 QBD 286 (CA); Svendsen v.Wallace Bros (1884) 13 QBD 69. 104

Moot Scenario (15 December 2017), at 19.

19

time. Consequently, the agency fees did constitute particular charges for purposes of the

voyage.

C. CLAIMANT IS LIABLE FOR DEMURRAGE

1. The vessel was detained 5 hours beyond laytime

54. Demurrage arises when a vessel is detained by a charterer beyond the agreed laytime.105

The

Charterparty being a port charter,106

that laytime commenced on the Madam Dragonfly’s

arrival at the port - when it could not berth, when it reached the usual waiting place.107

In this

case, that occurred at 7 am on July 29.108

That laytime, in Clause 8. Loading and Discharging,

lasts 12 hours after the vessel’s arrival at the discharge port,109

meaning it lapsed at 7 pm the

same day.

55. Pursuant to Box 24 of the Charterparty, the demurrage rate for the vessel is USD 20,000 an

hour. After its arrival, the Madam Dragonfly and its crew waited until midnight for Claimant

to take delivery of the cargo.110

From the lapse of the laytime to the time that it left the port, 5

hours had passed, meaning that demurrage did accrue to the amount of USD 100,000 claimed

by Respondent.

105

John Schofield, Laytime and Demurrage, (CRC Press, Dec 22, 2015), para 6.24. 106


E.L. Oldendorff & Co GmbH v. Tradax Export SA (The Johanna Oldendorff) [1973] 3 All

ER 148. 108


Ibid, at 6, Clause 8(e)(ii). 110

Ibid, at 22.

20

2. The claim to demurrage is not exempted under contractual exceptions or

fault

56. The claim to demurrage can only be barred in two events: First, an exception in the

charterparty, or Second, the fault of the shipowner or his agents.111

Neither of those are true

in the claim of demurrage in this case.

57. First, the Charterparty only provides for interruption to demurrage in the event of time

occupied in shifting ports or berths, or changing positions and delays or hindrance in cargo

handling by reasons of force majeure.112

None of them occurred in the relevant period

counted as demurrage.

58. Second, Respondent is not to blame for the detention of the vessel. Foremost, Respondent had

not caused undue delay on the discharge of the cargo.113

Further, the choice to wait until

midnight is in conformity with Respondent’s duty to wait a reasonable period of time prior to

landing the goods.114

Consequently, exceptions to the rule of the accrual of demurrage do not

apply.

D. CLAIMANT IS LIABLE FOR THE USE OF THE ELECTRONIC ACCESS SYSTEMS AT

THE PORT OF DILLAMOND

1. The purchase of the electronic access systems was a reasonable step

59. Although Respondent has no duty to mitigate accruing demurrage,115

it does have the duty to

take reasonable steps so as not to have its vessel detained unnecessarily.116

Taking into

111

William Alexander v. Akt. Hansa [1920] A.C. 88, at p. 94. 112

Moot Scenario (15 December 2017), at 6, Clause 8 (e). 113

Ropner Shipping Co. Ltd. v Cleeves Western Valleys Anthracite Collieries Ltd., (1927) 27

Ll.L.Rep. 317. 114


MSC Mediterranean Shipping Company S.A. v. Cottonex Anstalt [2015] EWHC 283

(Comm). 116

Stolt Tankers Inc. v. Landmark Chemicals S.A. (The Stolt Spur) [2002] 1 Lloyd’s Rep.

786.

21

account the lack of replies from Claimant during the period of the vessel’s arrival,117

it would

be unreasonable for Respondent to have to wait indefinitely - Claimant’s reply, in fact, was

not sent until two days later.118

Consequently, the purchase of the electronic access system

was entirely reasonable.

2. Claimant is liable for the lost incurred

60. Costs that are incurred by an effort to minimize the detention of the vessel are for the

charterer’s account, since the charterer would continue to amass demurrage otherwise.119

In

this case, the purchase of the electronic access system allowed Respondent to leave the cargo

safely at the port,120

as opposed to burdening Claimant with mounting costs. Having been

made in Claimant’s interest, the costs for the electronic access system should hence be borne

by Claimant.

117


Ibid. 119

Leeds SS. Co. v. Duncan Fox (1932) 37 Com. Cas. 213. 120

Moot Scenario (15 December 2017), at 22.

22

REQUEST FOR RELIEF

For the foregoing reasons, Respondent respectfully requests the Tribunal to adjudge

and declare that:

I. The Tribunal possesses no jurisdiction over Claimant’s claim for damages;

II. Respondent is not liable to the Claimant for damages comprising accounts of

the damaged Cargo, Replacement Coffee Payment, and Settlement Payment;

III. Claimant did not hold a maritime equitable lien over the Madam Dragonfly

IV. Claimant is liable to Respondent for amounts owing under the Charterparty for

freight, agency fees, cost of repairs, agency fees, demurrage, and use of

electronic access systems.