1

THE 20TH ANNUAL INTERNATIONAL

MARITIME LAW ARBITRATION MOOT 2019

Memorandum for the Claimant

NALSAR UNIVERSITY OF LAW, HYDERABAD

ON BEHALF OF: AGAINST

Panther Shipping Inc Omega Chartering Company

80 Broad Street, Monrovia,Liberia P.O. Box 911, Vaduz, Liechtenstein

CLAIMANT RESPONDENT

TEAM 25

Dhanishta Mittal | Prakshal Jain | Satyam Goyal | Roshni Mulchandani | Sagar Kumar

Team 25 Memorial for the Claimant

TABLE OF CONTENTS

LIST OF ABBREVIATIONS .................................................................................................. i

INDEX OF AUTHORITIES .................................................................................................. iii

SUMMARY OF FACTS ......................................................................................................... 1

ARGUMENTS ADVANCED ................................................................................................. 3

I. The Tribunal has the Jurisdiction to Adjudicate the Matter and Provide any Award

to the Parties ............................................................................................................................... 3

A. The Arbitration agreement in the C/P is valid ................................................. 3

B. The Tribunal is competent to rule on its own Jurisdiction ............................... 3

C. The intention of both the parties was to refer this dispute to arbitration ......... 3

D. The RESPONDENT’S right to object to the appointment of Mr. Masterson has been

waived off .................................................................................................................... 4

E. The CLAIMANT does not wish to delay the process of Arbitration ...................... 5

F. Ms. Mary Walker should be the sole arbitrator to adjudicate the matter at hand 5

II. That the Vessel was not Off-Hire for the mentioned period ....................................... 6

A. The full working of the Vessel has not been prevented ................................... 6

B. The RESPONDENT has not been prevented from using the Vessel due to any of the

reasons mention in the off-hire clause ......................................................................... 7

C. The delay has not been caused due to the illness of the crewmen ................... 8

III. The fouling of the vessel’s bottom was because of respondent’s order to sail to

wahanda ..................................................................................................................................... 12

A. The heavy fouling of the Vessel’s bottom was a consequence of the RESPONDENT’S

decision to allow sail to Wahanda ............................................................................. 12

ii

B. The CLAIMANT is Absolved of the Liability because of the principle of ‘implied

indemnity’ .................................................................................................................. 13

C. That the RESPONDENT breached their contractual obligation to re-deliver the ship 14

D. The CLAIMANT Has A Right To be Reimbursed for the Amount Paid in Relation to

Cleaning .................................................................................................................... 16

IV. The CLAIMANT is not liable to indemnify the Respondent for Cargo Damage ......... 18

A. There was Insufficient Information in the Notification of the Cargo Claim . 19

B. The Bill of Lading has not been Incorporated in the C/P .............................. 20

C. CLAIMANT should not indemnify the RESPONDENT According to Cl. 8(A) of ICA 22

REQUEST FOR RELIEF ....................................................................................................... x

Team 25 Memorial for the Claimant

i

LIST OF ABBREVIATIONS

& And

§ Section

A.I.R. All India Report

B/L Bill of Lading

BIMCO Baltic and International Maritime Council

C/P Charter party

Capt. Captain

Cargo The 2,000 metric tonnes of English breakfast tea bags

Cl. Clause

CLAIMANT Panther Shipping Inc.

Co. Company

CoC Contract of Carriage

CV Curriculum Vitae

Ed. Edition

EWHC High Court of England & Wales

Hon’ble Honorable

HVR (Hague-Visby Rules- Brussels 1968)

ICA Inter-Club Agreement

Lloyd’s Rep. Lloyd’s Law Report

Ltd. Limited

Moot Scenario International Maritime Law and Arbitration Moot, 2019

MT Metric Tonnes

NYPE New York Produce Exchange Form

ii

P. Page

Parties CLAIMANT & RESPONDENT

PSC Port State Control At Wahanda

Pvt. Private

Rep. Report

RESPONDENT Omega Chartering Company

S.C.R. Supreme Court Rules

TCT Time Charter Trip

UNCITRAL United Nations Commission on International Trade Law

US COGSA United States Carriage of Goods by Sea Act, 1936.

USD United States Dollars

Vessel MV Thanos Quest

Virus Ebola Virus

iii

INDEX OF AUTHORITIES

CASES

A/S Iverans Rederei v. KG MS Holtencruiser Seeschiffahrtsgesellschaft m.b.H. & Co. and Others –

“The Holtencruiser” [1992] 2 Lloyd’s Rep. 378 ...................................................................... 29

A/S Rendal v Arcos Ltd [1937] 58 Lloyd’s Law Report 287, 293 ................................................. 27

Action Aviation Inc. v. Bottigliere di Navigazione S.p.A.- “The Kitsa” [2005] 1 Lloyd’s Rep. 432

.............................................................................................................................................. 20, 21

Andre & Cie S.A. v. Orient Shipping (Rotterdam) B.V. – “The Laconian Confidence” [1997] 1

Lloyd’s Rep.139 .................................................................................................................... 13,18

Board of Trade v. Temperley [1927] 27 L.I.L. Rep. 230 ............................................................... 16

Brostrom v. Dreyfus, (1932) 44 L.l.L.Rep. 136 ............................................................................. 17

Bulfracht (Cyprus) Ltd. v. Boneset Shipping Co. Ltd.- “The Pamphilos” [2002] 2 Lloyd’s Rep. 681,

690-1 .......................................................................................................................................... 22

Bulgaris v La Plata Cereal Co SA [1947] 80 Lloyd’s Law Report 455 ........................................ 27

C.A. Venezolana De Navegacion v. Bank Line – “The Roach bank” [1987] 2 Lloyd’s Rep. 498 13

Cathiship S.A. v. Allanson Ltd. [1998] 2 Lloyd’s Rep. 511 .......................................................... 27

Channel Island Ferries Ltd. v. Cenargo Navigation Ltd.- “The Rozel” [1994] 2 Lloyd’s Rep. 261

(Q.B.) ......................................................................................................................................... 25

Clyde Commercial S.S. Co. v West India S.S. Co, 169 F. 275 (2d Cir. 1909) .......................... 15,19

Cosmos Bulk Transport Inc. v. China National Foreign Trade Transportation Corporation- “The

Apollonius” [1978] 1 Lloyd’s Rep. 53 ....................................................................................... 21

CPC Group Ltd. v. Qatari Diar Real Estate Investment Company [2012] EWHC 1535 ............. 25

Dunlop S.S. Co. v. Tweedie Trading Co., 162 F. 490,493 (S.D.N.Y. 1908) ................................. 15

Eridania S.p.A. and Others v. Rudolf A. Oetker and Others – “The Fjord Wind” [1999] 1 Lloyd’s

Rep. 307 ..................................................................................................................................... 31

Finmoon Ltd. and Another v. Baltic Reefers Management Ltd. and Others, (2012) EWHC 920

(Comm) ...................................................................................................................................... 28

iv

Hall v. Paul (1914) 19 Com. Cas. 384 .......................................................................................... 17

Harbour Assurance Co (UK) Ltd. v. Kansa General International Insurance Co. Ltd. [1993] 1

Lloyd’s Law Reports 455 ............................................................................................................. 9

Heinrich C. Horn v. Cia De Navegacion Fruco S.A. and J.R. Atkins – “The Heinz Horn” [1970] 1

Lloyd’s Rep. 191 ........................................................................................................................ 13

Hogarth v. Miller [1891] A.C. 48 (H.L.) ....................................................................................... 14

Homburg Houtimport B.V. v. Agrosin Private Ltd. and Others - “The Starsin” [2003] 1 Lloyd’s Rep.

571 .............................................................................................................................................. 31

Hongkong Fir Shipping Company, Ltd. v. Kawaski Kisen Kaisha, Ltd. – “The Hong Kong Fir”

[1961] 2 Lloyd’s Rep. 478 ......................................................................................................... 30

Hyundai Merchant Marine Co Ltd v. Furness Withy (Australia) Pty – “The Doric Pride” [2006] 2

Lloyd’s Rep. 175 ........................................................................................................................ 13

Hyundai Merchant Marine Co. Ltd. v. Karander Maritime Inc.- “The Niizuru” [1996] 2 Lloyd’s Rep.

66, 73 .......................................................................................................................................... 23

IMT Shipping and Chartering GmbH v. Chansung Shipping Co. Ltd.- “The Zenovia” [2009] EWHC

739 (Comm) ............................................................................................................................... 23

Ipsos S.A. v. Dentsu Aegis Network Limited [2015] EWCH 1171 (Comm) .................................. 27

K/S Penta Shipping A/S v. Ethiopian Shipping Lines Corporation- “The Saga Cob” [1992] 2 Lloyd’s

Rep. 545 ..................................................................................................................................... 17

Laminates Acquisitions v. BTR Australia Limited [2004] 1 All ER (Comm) 737 ........................ 27

Limerick v. Stott (1920) 5 Ll.L.Rep. 190 ....................................................................................... 17

Maestro Bulk Ltd. v. Cosco Bulk Carrier- “The Great Creation” [2015] Llyod’s Rep. Plus 11 . 23

Mareva Navigation Co. ltd. v. Canaria Armadora S.A. – “The Mareva A.S.” [1977] 1 Lloyd’s Rep.

368 .............................................................................................................................................. 14

Mcfadden v. Blue Line Star [1905] 1 K.B. 697 ............................................................................. 31

MFM Restaurants [2010] SGCA 36, 90-91 .................................................................................. 26

Minerva Navigation Inc v. Oceana Shipping AG – “The Athena” [2013] EWCA Civ 1723 ....... 15

v

Nichimen Company v. M/V Farland, 462 F.2d 319 ....................................................................... 32

Northern Shipping Co. v. Deutsche Seereederei G.m.b.H. and Others – “The Kapitan Sakharov”

[2000] 2 Lloyd’s Rep. 255 ......................................................................................................... 31

Northern Steamship Co. Ltd v Earn Line Steamship Co., 175 F. 529 (1910) ............................... 15

Ocean Glory Naviers S.A. v. A/S P.V. Christensen – “The Ioanna” [1985] 2 Lloyd’s Rep. 164 . 13

Oceanfocus Shipping Limited v. Hyundai Merchant Marine Company Ltd.-“ The Hawk” [1999] 1

Lloyd’s Rep. 176 ........................................................................................................................ 29

Ogden v. Graham (1861) 1 B. & S. 773 ........................................................................................ 17

Palace Shipping v. Gans Line [1961] 1 K.B. 138 ......................................................................... 17

Partenreederei M/S Heidberg v. Grosvenor Grain & Feed Co. Ltd.– “The Heidberg” [1994] 2

Lloyd’s Rep. 287 ........................................................................................................................ 29

Rederi Unda v. Burdon [1937] 57 Lloyd’s Law Report 95 ........................................................... 31

Republic of Nicaragua v. Standard Fruit Co. 937 F.2d 469 (9th Cir., 1991) ............................... 10

Riverstone Meat Co. Pty Ltd. v. Lancashire Shipping Co. Ltd. – “The MuncasterCastle” [1961] 1

Lloyd’s Rep. 57 .......................................................................................................................... 32

Ruxley Electronics and Construction Ltd v. Forsyth [1996] AC 344 ............................................ 25

Santa Martha Baay Scheepvaart & Handelsmaatschappiji N.V. v. Scanbulk A/S- The Rijn [1981] 2

Llyod’s Rep. 267 (Q.B.) ............................................................................................................. 19

Sealace Shipping Co. v. Oceanvoice Ltd.- “The Alecos M” [1991] 1 Lloyd’s Rep. 120 (C.A.) .. 25

Sempra Metals Ltd v Inland Revenue Commissioners [2007] UKHL 34, [2008] 1 AC 561 ........ 33

Senate Electrical Wholesalers Limited v. Alcatel Submarine Networks Ltd. [1999] 2 Lloyd’s Rep.

423 .............................................................................................................................................. 27

Sig. Bergesen D.Y. & CO. and Others v. Mobil Shipping and Transportation Co.-“The Berge Sund”

[1993] 2 Lloyd’s Rep. 453 ............................................................................................... 13,14,21

The Archimidis [2007] 2 Lloyd’s Rep. 101 ................................................................................... 17

The Carib Eve, SMA 2749 (Arb. at N.Y. 1991) ............................................................................ 33

The Grand, SMA 2548 (Arb. at N.Y. 1989) .................................................................................. 20

vi

The Milly Gregos, SMA 2190 (Arb. at N.Y. 1986) ....................................................................... 20

The Mykali II, SMA 2240 (Arb. at N.Y. 1986) ............................................................................. 20

The Prometheus, SMA 1154 (Arb. at N.Y. 1977) ......................................................................... 24

The Robertina SMA 1151 (Arb at N.Y 1977) ......................................................................... 32, 33

The Saga Cob [1992] 2 Llyod’s Rep. 545 (C.A.) .......................................................................... 17

The Sidermar S.A. v. Apollo Corporation – “The Apollo” [1978] 1 Lloyd’s Rep. 200 ................ 17

The Transfield Shipping v. Mercator Shipping- Achilleas [2007] 1 Lloyd’s Rep. 432 ................. 25

Tillsmann and Co. v. S.S. Knutsford [1908] 2 K.B. 385 ................................................................ 29

Triad Shipping Co. v. Stellar Chartering & Brokerage Inc.- “The Island Archon” [1994] 2 Lloyd’s

Rep. 227 (CA), 236-7 (Evans LJ), 237 (Mann LJ), 237-9 (Nicholls V-C) ................................ 20

Visa International Ltd v. Continental Resources (USA), (2) S.C.C. 55 (2009) ........................ 9, 10

Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 (HL)

.................................................................................................................................................... 33

STATUTES

§ 16, UNCITRAL Model Law on International Commercial Arbitration 1985 ...................... 13, 15

§ 30(1), Arbitration Act, 1996 ....................................................................................................... 13

§ 31(1), Arbitration Act, 1996 ....................................................................................................... 15

§ 33(1) (b), Arbitration Act, 1996 ................................................................................................. 16

§ 5 & 6, Arbitration Act, 1996 ....................................................................................................... 13

§ 73(1), Arbitration Act, 1996 ....................................................................................................... 15

§49(3)(a) of Arbitration Act, 1996 ................................................................................................ 37

BOOKS

BRYAN A. GARNER, BLACK’S LAW DICTIONARY, 368 (10ed, Thomas Reuters, 2014) ........... 20, 24

vii

C.C.A. VOSKUIL, J.A. WADE, HAGUE-ZAGREB: ON THE LAW OF INTERNATIONAL TRADE: CARRIAGE

OF GOODS BY SEA, MARITIME COLLISIONS, MARITIME OIL POLLUTION AND COMMERCIAL

ARBITRATION, 260 (Sijthoff & Noordhoff International Publishers BV, 1980) ........................ 14

CLARE AMBROSE, KAREN MAXWELL, MICHAEL COLLETT, LONDON MARITIME ARBITRATION 328-331

(Informa Publications, 4ed, 2018) ........................................................................................ 37, 38

GARY B. BORN, GARY BORN INTERNATIONAL COMMERCIAL ARBITRATION, 852 (2nd Ed, 2014) 14

Implied consent, BRYAN A. GARNER, BLACK’S LAW DICTIONARY, 368 (10ed, Thomas Reuters, 2014)

............................................................................................................................................... 20,24

Informed consent, BRYAN A. GARNER, BLACK’S LAW DICTIONARY, 368 (10ed, Thomas Reuters,

2014) .................................................................................................................................... 20, 24

LORD MUSTILL AND STEWART C BOYD QC, COMMERCIAL ARBITRATION (1989), 205 ........... 31, 32

NIGEL BLACKABY, CONSTANTINE PARTASIDES, ALAN REDFERN & MARTIN HUNTER, REDFERN &

HUNTER ON INTERNATIONAL ARBITRATION, 186 (Oxford University Press, 5ed, 2014) ........... 14

TERENCE COGHLIN, JOHN D. KIMBALL, ANDREW W. BAKER, THOMAS H. BEDLKNAP, JULIAN KENNY,

TIME CHARTERS 162 (Informa Law, 7th ed., 2014) .................................................................... 34

TERENCE COGHLIN, JOHN D. KIMBALL, ANDREW W. BAKER, THOMAS H. BEDLKNAP, JULIAN KENNY,

TIME CHARTERS 369 (Informa Law, 7th ed., 2014) .................................................................... 34

TERENCE COGHLIN, JOHN D. KIMBALL, ANDREW W. BAKER, THOMAS H. BEDLKNAP, JULIAN KENNY,

TIME CHARTERS 380 (Informa Law, 7th ed., 2014) .................................................................... 36

TERRENCE COGHLIN, JULIAN KENNY, TIME CHARTERS, 88 (7 ed. 2014) .................................. 24,28

OTHER AUTHORITIES

§ 4 (a) (1), ICA, NYPE Agreement 1996 (as amended 1 September 2011) .................................. 35

Article 23, Chapter IV Quarantine Treatment, Administrative Measures for Entry and Exit Inspection

and Quarantine on Ships of International Sails, 2002 ................................................................ 23

Article III, Rule 1(a) Hague-Visby Rules ...................................................................................... 36

Cl. 30(a), NYPE Form 2015; Cl. 30 NYPE 2015, Explanatory Notes, p. 19 ................................ 27

viii

Cl. 30(c), NYPE Form 2015 .......................................................................................................... 27

Cl. 31, NYPE Form 2015 .............................................................................................................. 34

Cl. 33, NYPE Form 2015 .............................................................................................................. 35

Cl. 54, NYPE Form, 2015 ............................................................................................................. 17

Cl. 56-57, NYPE 2015 ................................................................................................................... 28

Cl. 6, ICA, NYPE Agreement 1996 (as amended 1 September 2011) .......................................... 32

Clause 8(b), ICA, NYPE Agreement 1996 (as amended 1 September 2011) ............................... 37

ARBITRATION AWARDS

London Arbitration 16/17………………………………………………………………………..28

London Arbitration 24/05 .............................................................................................................. 30

London Arbitration 25/17 .............................................................................................................. 30

ARTICLES

Rhidian Thomas, “Time Charterparty Hire: Issues Relating To Contractual Remedies For Default

And Off-Hire Clauses” in Rhidian Thomas (Ed.), Legal Issues Relating to Time Charterparties,

(2008) London. Chapter 7, 7.71 p. 135 ...................................................................................... 21

SENTHIL SABAPATHY, “THE ACHILLEAS: STRUGGLING TO STAY AFLOAT”, Singapore Journal of Legal

Studies, (Dec. 2013) 391 ............................................................................................................ 32

VICTOR GOLDBERG, THE ACHILLEAS: FORSAKING FORESEEABILITY, Current Legal Problems, (Vol.

66, 2013), 122-123 ..................................................................................................................... 31

INTERNET

Dr. Theodora Nikaki, Professor Baris Soyer, Enhancing standardization and legal certainty through

standard C/P contracts: The NYPE 2015 Experience, Oxford Informa Law (Routledge) 2018,

(Apr. 28, 2019, 11:43PM), https://cronfa.swan.ac.uk/Record/cronfa37776 ............................. 29.

ix

HULL FOULING- CHARTERPARTY ISSUES, Lloyd’s Maritime and Commercial Law Quarterly,

(2006), https://www.i-law.com/ilaw/doc/view.htm?id=130496 ................................................ 25

WHO, Ebola virus disease, World Health Organisation, (Apr. 24, 2019, 11:08 PM)

https://www.who.int/news-room/fact-sheets/detail/ebola-virus-disease ............................. 24, 26

WHO, Frequently asked questions on Ebola virus disease, WORLD HEALTH ORGANIZATION, (Apr.

28, 2019, 11:37PM), https://www.who.int/csr/disease/ebola/faq-ebola/en/ .............................. 24

Team 25 Memorial for the Claimant

1

SUMMARY OF FACTS

The CLAIMANT (“Shipowners”) is Panther Shipping Inc., a Liberian Company. The RESPONDENT

(“Charterers”) is Omega Chartering Limited, a European Company. HULK HULLS is the manager of

the CLAIMANT. CLARK KENT AND SONS is the broker of the parties. The communication between the

parties’ flow through the broker.

Through a TCT (the “Charterparty”) dated 18.03.2016, the CLAIMANT chartered MV THANOS QUEST (the

“Vessel”) to the RESPONDENT for a time charter trip of about 50-55 days ‘without guarantee’ from West

Coast to Wahanda for delivery of cargo comprising of English Breakfast Tea.

The Vessel was delivered at West Coast Port on the 29th March 2016. The loading of 8,600 mt of English

Breakfast Tea in 1kg jute bags packed in 1,720 5mt big bags of cargo was completed by the 20th April

2016. The Vessel sailed for Wahanda on the same day. Meanwhile on 18th April 2016, there was news

published in West Coast Daily Echo, stating that there has been an Ebola outbreak in the region due to

which restrictions were to be imposed on the international trade and travel in and out of the place. Despite

this news, the RESPONDENT allowed the sail of the Vessel on 20th April 2016.

The Vessel reached Wahanda on the 7th May 2016 where it was detained by the Port authorities for

suspicion of crew members being potential carriers of the Ebola virus although only the cook and motorman

may have had cold, but no one had fever. The Vessel was issued a quarantine order for a minimum of 28

days.

The quarantine order resulted in the Vessel staying idle at Wahanda for a period exceeding 30 days due to

which its bottom got fouled and had to be cleaned. However, no cleaning services could be arranged on

that Port by the RESPONDENT. The RESPONDENT agreed to paying against the original invoice for Claimant

undertaking the cleaning at the next convenient Port. Subsequently, they proposed a final lumpsum amount

of USD 30,000.

The CLAIMANT during the performance of this C/P entered into another fixture with a party whose delivery

was due on 28th June 2016 which could not be completed as the Vessel was re-delivered to the CLAIMANT

with an uncleaned bottom only on 30th June 2016.

2

Finally, the CLAIMANT undertook a voyage to South Island Port where they got the Vessel’s Hull cleaned

at a total cost of USD 41,000. Thereafter they claim from the RESPONDENTS a sum of USD 41,000 for

cleaning, USD 55,567.42 for the journey to South Island and USD 15,330,000 for losing the 2nd C/P

contract.

The Vessel was issued free pratique on 26th June 2016. Upon the discharge of cargo, it was found that the

cargo was severely damaged due to water ingress. Having discovered that a substantial damage had been

caused to the cargo, the RESPONDENT informed the CLAIMANT of the damage, through an email on 7th July

2016. They also attached a Mekon Survey Report through which they indicated that a substantial amount

would incur after it is assessed by the Receivers and hence the CLAIMANT would be liable for the same. As

the cargo damage had not been quantified and was in the process of ascertainment by the Receivers, the

CLAIMANT gave extension twice to the RESPONDENT through the mail dated 23rd May and 23rd August

2017.

To resolve the dispute at hand through arbitration, the CLAIMANT appointed Ms. Mary Walker as their

arbitrator and gave a notice of the same to the RESPONDENT. The RESPONDENT communicated with Mr.

Masterson about the same and appointed him as their arbitrator. Subsequently, Ms. Mary along with Mr.

Masterson constituted a tribunal before which this matter is to be adjudicate. Claims and Counterclaims

were brought forth by both the parties and the liabilities are to be determined by the Hon’ble Tribunal.

3

ARGUMENTS ADVANCED

Arguments on Jurisdiction

I. THE TRIBUNAL HAS THE JURISDICTION TO ADJUDICATE THE MATTER

AND PROVIDE ANY AWARD TO THE PARTIES

A. THE ARBITRATION AGREEMENT IN THE C/P IS VALID

1. Cl. 80 of the C/P1 which is the arbitration clause states that any ‘dispute arising between the

Owners and the Charterers should be referred to three persons in London.’ The governing law for

the same is English law.2 The CLAIMANT submits that the Arbitration Cl. satisfies the requirement

imposed by § 5 & 6 of the Arbitration Act 1996.3 Therefore, it is a valid arbitration agreement.

B. THE TRIBUNAL IS COMPETENT TO RULE ON ITS OWN JURISDICTION

2. According to the principle of Kompetenz-kompetenz,4 the Tribunal is competent to rule on its

own substantive jurisdiction in accordance with § 30(1) Arbitration 1996 Act.5 The Tribunal can thus

rule on the interpretation of this arbitration agreement that is written in the C/P.6

C. THE INTENTION OF BOTH THE PARTIES WAS TO REFER THIS DISPUTE TO ARBITRATION

3. The intention of the parties is one of the requisites in arbitration agreements.7 It is submitted

that the parties had the required intention to refer the dispute to arbitration. When the parties enter

into an arbitration agreement, there would be no doubt as to their intention to arbitrate.8 The fact that

they incorporated Cl. 80 in their C/P,9 wherein they agreed to resolve their disputes through

1 Moot Scenario, 15, Cl. 80. 2 Moot Scenario, 15, Cl. 80. 3 § 5 and 6, Arbitration Act, 1996. 4 § 16, UNCITRAL Model Law on International Commercial Arbitration 1985; GARY B. BORN, GARY BORN INTERNATIONAL COMMERCIAL ARBITRATION, 852 (2nd Ed, 2014). 5 § 30(1), Arbitration Act, 1996. 6 Visa International Ltd v. Continental Resources (USA), (2) S.C.C. 55 (2009). 7 Harbour Assurance Co (UK) Ltd. v. Kansa General International Insurance Co. Ltd. [1993] 1 Lloyd’s Law Reports 455. 8 NIGEL BLACKABY, CONSTANTINE PARTASIDES, ALAN REDFERN & MARTIN HUNTER, REDFERN & HUNTER ON INTERNATIONAL ARBITRATION, 186 (Oxford University Press, 5ed, 2014). 9 Moot Scenario, 15, Cl. 80.

4

arbitration shows that the parties had a clear intention to arbitrate on the issues that would arise

during the performance of the C/P.

4. The intention of the parties is the directing force in International Commercial Arbitration and

thus, it ought to be protected.10 Even the most minimal indications of the party’s intention to arbitrate

must be given full effect, especially in International Arbitrations.11 In Visa International Limited v.

Continental Resources, it was held that the intention of the parties to arbitrate can be derived from

the circumstances.12 Therefore, when the RESPONDENT mailed Mr. Masterson on 26th October 2018

that “our next step would be to appoint an arbitrator”,13 it can be derived from the mail that the

RESPONDENT wanted to appoint an arbitrator and therefore had the clear intention to arbitrate.

5. The RESPONDENT might contend that the requisite procedure was not followed, therefore the

tribunal does not have jurisdiction to adjudicate this matter. The RESPONDENT despite knowing that

the procedure had not been duly followed, nonetheless sent out claims and counter claims,14 for the

Arbitration process which clearly shows their intention to arbitrate.

6. Despite the RESPONDENT not following a requisite procedure of arbitration, the parties

established their clear intention, which was to arbitrate. Thus, the Tribunal will have the jurisdiction

to adjudicate the matter because intention, which is an imperative principal of Arbitration was present

in this case.

D. THE RESPONDENT’S RIGHT TO OBJECT TO THE APPOINTMENT OF MR. MASTERSON

MASTERSON HAS BEEN WAIVED OFF

7. The CLAIMANT contends that the RESPONDENT is now deemed to have waived off their right

to object to the appointment of their own arbitrator.15 An objection must be brought to notice as soon

as possible after it is known to the party, otherwise the party risks losing the right to object.16 When

10 C.C.A. VOSKUIL, J.A. WADE, HAGUE-ZAGREB: ON THE LAW OF INTERNATIONAL TRADE: CARRIAGE OF GOODS BY SEA, MARITIME COLLISIONS, MARITIME OIL POLLUTION AND COMMERCIAL ARBITRATION, 260 (Sijthoff & Noordhoff International Publishers BV, 1980). 11 Republic of Nicaragua v. Standard Fruit Co. 937 F.2d 469 (9th Cir., 1991). 12 Visa International Ltd v. Continental Resources (USA), (2) S.C.C. 55 (2009). 13 Moot Scenario, 62. 14 Moot Scenario, 70. 15 § 73(1), Arbitration Act, 1996; § 16, UNCITRAL Model Law on International Commercial Arbitration 1985. 16 Id.

5

a party does not do so, or does not do so within the time allowed by the arbitration agreement, he

may not object later to the tribunal’s substantive jurisdiction.17 It is thus, contended that they are

deemed to have waived off their right to object to the substantive jurisdiction of the tribunal under §

31(1) of the Arbitration Act.18

E. THE CLAIMANT DOES NOT WISH TO DELAY THE PROCESS OF ARBITRATION

8. The intention of the CLAIMANT is to ensure that the process of arbitration is initiated and

executed without any delay in the proceedings. The CLAIMANT does not raise any questions on the

composition and competency of the present Tribunal. They wish to initiate and participate in the

arbitration proceedings without any delay. Despite their right to object being waived off, if the other

party, raises questions on the appointment of Mr. Masterson and requests for constitution of a new

Tribunal, it will violate the due process of law that ought to be followed. The CLAIMANT made it clear

to the RESPONDENT, through a valid notice, that they intended to save unnecessary ‘costs involved by

proposing to appoint Ms. Walker as the sole arbitrator.’19 Having said so, the demand for re-

constitution of the tribunal would only lead to increased costs, expenses and time involved in the

process of arbitration. This would also defeat Cl. 33(1) (b) of Arbitration Act 1996, which aims at

‘adopt procedure suitable to the circumstances of the particular case, avoiding unnecessary delay

or expense..”20 Accordingly, if there is a question regarding appointment of Mr. Masterson, there

should not be constitution of a new Tribunal, rather, Ms. Walker should be re-instated as the sole

arbitrator for this dispute.

F. MS. MARY WALKER SHOULD BE THE SOLE ARBITRATOR TO ADJUDICATE THE MATTER

AT HAND

9. In the mail dated 16th October 2018, the Claimant gave the notice to the Respondent to appoint

Mary Walker as the sole arbitrator in order to save costs and time involved in the arbitration

17 § 73(1), Arbitration Act, 1996. 18 § 31(1), Arbitration Act, 1996. 19 Moot Scenario, 61. 20 § 33(1) (b), Arbitration Act, 1996.

6

procedure. The Claimant agreed to the present constitution of the Tribunal to avoid unnecessary delay

and expenses. But if the Respondent tries to question the jurisdiction and competency of Mr.

Masterson, then the new Tribunal will not be of 3 members as mandated by C/P Cl. 80.21 Instead,

Ms. Walker will be appointed as the sole arbitrator in accordance with Cl. 54 of NYPE22 as the notice

to the Respondent clearly showed their intention to appoint her as sole arbitrator to save the costs

involved. It is thus submitted that if the RESPONDENT now contends that they had not duly appointed

Mr. Masterson as their arbitrator, Ms. Mary should become the sole arbitrator to adjudge the present

dispute.

ARGUMENTS ON MERITS OF THE CLAIM

II. THAT THE VESSEL WAS NOT OFF-HIRE FOR THE MENTIONED PERIOD

10. The CLAIMANT submits that the RESPONDENT remains responsible for all costs of delay unless

they can bring themselves clearly within the off-hire clause.23 For the Vessel to be off-hire, three

conditions need to be satisfied. Full working of the Vessel must have been prevented [a], the

preventive cause must fall within those causes set out in off-hire clause [b] as a result of the

prevention of full working of the Vessel, the RESPONDENT suffered a loss of time [c].24 In the present

case, none of the three conditions have been fulfilled to arise an off-hire event.

A. THE FULL WORKING OF THE VESSEL HAS NOT BEEN PREVENTED

11. Full working of the Vessel is prevented only if the Vessel is unable to perform the next

operation that the C/P required of her.25 The ability of the Vessel to perform these operations should

be evaluated on the grounds of efficiency of the crew and the Vessel herself. Till the time these are

efficient, hire is payable continuously.26 The facts of the present case do not show that the inefficiency

of the crew or Vessel was the reason for her not being able to perform the next operation required of

21 Moot Scenario, 15, Cl. 80 22 Cl. 54, NYPE Form, 2015. 23 Moot Scenario, 74. 24 Hyundai Merchant Marine Co Ltd v. Furness Withy (Australia) Pty – “The Doric Pride” [2006] 2 Lloyd’s Rep. 175; Heinrich C. Horn v. Cia De Navegacion Fruco S.A. and J.R. Atkins – “The Heinz Horn” [1970] 1 Lloyd’s Rep. 191. 25 Ocean Glory Naviers S.A. v. A/S P.V. Christensen – “The Ioanna” [1985] 2 Lloyd’s Rep. 164. 26 Sig. Bergesen D.Y. & CO. and Others v. Mobil Shipping and Transportation Co.-“The Berge Sund” [1993] 2 Lloyd’s Rep. 453.

7

her. The RESPONDENT wanted the next operation to be to proceed to berth. The Vessel was ready and

fit to perform every task demanded of her by the RESPONDENT. It was only because of the action of

the PSC that the Vessel was not able to proceed to berth. This is an ‘extraneous’ cause which is not

associated with the internal efficiency of the Vessel.27

12. There is a difference between prevention of full working of the Vessel and the Charterers

being prevented from using the Vessel.28 In the instance of prevention of full working of the Vessel,

she must be insufficient to effectively carry out the activities for which it is designed and designated.

However, prevention of RESPONDENT from utilizing the Vessel, in the present case, was on account

of an authority’s decision, which was beyond the control of the CLAIMANT and the crew. The Vessel

herself was efficient in performing her duties. She was rather prohibited from performing her

functions because of a quarantine order by the PSC at Wahanda. The qualifying condition ‘preventing

the full working of the Vessel’ is not met if ‘the Vessel by herself remains fully efficient in all

respects’.29 Therefore, the full working of the Vessel has not been prevented.

13. The actual requirement of the Vessel is more important than what the RESPONDENT wishes

the next operation of the Vessel to be.30 If the Vessel is able to perform that operation, then there is

no prevention of the full working of the Vessel.31 At Wahanda Port, the next operation required of

her was not to proceed to berth which is merely the will of the RESPONDENT. After detention by the

PSC, what was actually required of the Vessel was to remain at anchorage. The Vessel was thus able

to do the same for the whole period of detention. Hence, there is no prevention of the full working of

the Vessel.

B. THE RESPONDENT HAS NOT BEEN PREVENTED FROM USING THE VESSEL DUE TO ANY OF

THE REASONS MENTION IN THE OFF-HIRE CLAUSE

27 C.A. Venezolana De Navegacion v. Bank Line – “The Roach bank” [1987] 2 Lloyd’s Rep. 498. 28 Andre & Cie S.A. v. Orient Shipping (Rotterdam) B.V. – “The Laconian Confidence” [1997] 1 Lloyd’s Rep.139. 29 Mareva Navigation Co. ltd. v. Canaria Armadora S.A. – “The Mareva A.S.” [1977] 1 Lloyd’s Rep. 368. 30 Hogarth v. Miller [1891] A.C. 48 (H.L.). 31 Sig. Bergesen D.Y. & CO. and Others v. Mobil Shipping and Transportation Co.-The “Berge Sund” [1993] 2 Lloyd’s Rep. 453.

8

14. The PSC had detained the Vessel as it had travelled from a Port where there had been an

outbreak of Ebola. Cl. 17 of the NYPE 2015 states that ‘In the event of loss of time from deficiency

and/or default and/or strike of officers or ratings…or detention by Port State Control or their

competent authority for Vessel deficiencies… or by any other similar clause preventing the full

working of the Vessel, the payment of hire and overtime, if any, shall cease for the time thereby lost.’

The CLAIMANT submits that the Vessel will not go off-hire as the action of the PSC will not come

within any of the reasons mentioned in the off-hire clause which resulted in prevention of the full

working of the Vessel.

15. The Vessel cannot go off hire in this case as there is no deficiency of officers or ratings [i]

there is no default by officers or ratings [ii] there is no detention by PSC for Vessel deficiencies [iii].

C. THE DELAY HAS NOT BEEN CAUSED DUE TO THE ILLNESS OF THE CREWMEN

16. The Vessel is off-hire on two conditions: when there is a loss of time for service required by

the RESPONDENT [i] that loss of period was due to the prevention of full working of the Vessel by an

event mentioned in the clause [ii].32 In the present case, there was no loss of time of service required

by the RESPONDENT. The service required by them after the detention by PSC was to remain at

anchorage. Even if there was a loss of time for service to proceed to berth for discharge, it was not

because of the illness of the crewmen. It was simply because the Vessel came from the West Coast

Port where the outbreak of Ebola had occurred during the performance of the C/P.33 This was the

major reason for the detention of the Vessel at Wahanda port by the PSC on 7th May 2016 and

subsequently a quarantine on 11th May 2016. There were no symptoms of Ebola exhibited by the

crewmen. The CLAIMANT agreed that a motorman and a cook may have a cold which is not in itself

a disease. Merely for this, the PSC should not have quarantined the entire Vessel. It was because the

Vessel arrived from a Port where there was an outbreak that the Vessel was detained for such a long

period.34

32 Minerva Navigation Inc v. Oceana Shipping AG – “The Athena” [2013] EWCA Civ 1723. 33 Clyde Commercial Steamship Co. v. West India Steamship Co. 61 169 F.275 (2nd Cir). 34 Dunlop S.S. Co. v. Tweedie Trading Co., 162 F. 490,493 (S.D.N.Y. 1908); Northern Steamship Co. Ltd v Earn Line Steamship Co., 175 F. 529 (1910); Moot Scenario, 26.

9

17. Even if the PSC found some crewmen with ‘high fever’ as claimed by the RESPONDENT in

their mail dated 11th of July 2016, which subsequently led to the quarantine of the Vessel, the

predominant reason for quarantine continued to remain the same. The reason being that the Vessel

came from the West Coast Port affected by Ebola. This made PSC unreasonably suspicious that the

Vessel is a potential carrier of the Ebola Virus. Here, the illness of crew and quarantine arise

independently of one another.35 The detention was by the RESPONDENT’S employment of the Vessel

from West Coast Port to Wahanda Port. It was not because of the illness of the crew.36 Therefore, the

Vessel cannot go off-hire for the delay caused by the detention of the Vessel by PSC.

a. The delay was caused because of the Respondent’s fault

18. If the RESPONDENT’s breach of an express or implied term of the contract causes loss of time,

then they are not entitled to the cessation of hire for the period of time thus lost.37 There was no

negligence on the part of the CLAIMANT as the Vessel was detained due to crewmen being suspected

of carrying Ebola virus. The West Coast Port, where they were potentially exposed to the Virus, was

the inception port. At that Port, the outbreak of Ebola was well within the knowledge of the

RESPONDENT before the commencement of the voyage. Such news of the outbreak was reported in

the newspapers which are public records.38 The RESPONDENT has been in the business of shipping

for years together.39 They thus ought to have known about the outbreak, through a constructive notice

of the same.

19. Consequently, their act of allowing the Vessel to nonetheless set sail from West Coast Port

shows both implied and informed consent40 on their part. The RESPONDENT is presumed to have been

aware of the possible consequences that the Vessel could be quarantined at the subsequent port for

being a potential carrier of the Ebola Virus.

35 Clyde Commercial Steamship Co. v. West India Steamship Co. 61 169 F.275 (2nd Cir). 36 Rhidian Thomas, “Time Charterparty Hire: Issues Relating To Contractual Remedies For Default And Off-Hire Clauses” in Rhidian Thomas (Ed.), Legal Issues Relating to Time Charterparties, (2008) London. Chapter 7, 7.71 p. 135. 37 Board of Trade v. Temperley [1927] 27 L.I.L. Rep. 230. 38 Moot Scenario, 81. 39 Moot Scenario, 1. 40 Implied consent, BRYAN A. GARNER, BLACK’S LAW DICTIONARY, 368 (10ed, Thomas Reuters, 2014); Informed consent BRYAN A. GARNER, BLACK’S LAW DICTIONARY, 368 (10ed, Thomas Reuters, 2014).

10

20. The necessity of a ‘written consent’ is for applicable those instances when the Vessel after

sailing, subsequently establishes any form of communication with a shore or any other infected area.

The need for such a written communication cannot be traced for an event when the Vessel itself sets

sail from an infected port since. In such circumstances, the RESPONDENT is fully aware of the

exposure of the crewmen to the contagious disease.41

b. The Respondent ordered the Vessel to an Unsafe Port

21. The test to establish whether or not a port is safe for a particular journey ought to be whether

a reasonably careful Charterer, would on the facts known, have concluded that the Port was

prospectively unsafe.42 As per the facts of the case, the RESPONDENT having knowledge of the Ebola

outbreak at West Coast Port ought to have reasonably concluded that the Vessel’s travel to any Port

from such an infected Port would be prospectively unsafe for the Vessel. This is because it can be

inferred from customary practices that ships traveling from an infected port will be quarantined by

the Port authorities for inspection,43 before being issued a free pratique for berthing and unloading.

22. The Court laid down, “The test of whether a port is safe in the physical sense or in the political

sense is whether it is safe for the particular ship to enter and load or unload in the port in question.”44

As far as its marine characteristics are concerned, even if Wahanda was a safe port, had the Vessel

proceeded there, she would have been liable to confiscation or detention on medical grounds. It was

held that, “on the construction of a C/P, the Respondents are bound to name a port which, at the time

they name it, is in such a condition that the master can safely take his ship into it: but, if a certain

port be in such a state that, although the ship can readily enough, so far as natural causes are

concerned, sail into it, yet, by reason of political or other causes, she cannot enter it without being

confiscated by the Government of the place, that is not a safe port within the meaning of the C/P.”45

41 Moot Scenario, 9 Cl. 44. 42 K/S Penta Shipping A/S v. Ethiopian Shipping Lines Corporation- “The Saga Cob” [1992] 2 Lloyd’s Rep. 545. 43 The Sidermar S.A. v. Apollo Corporation – “The Apollo” [1978] 1 Lloyd’s Rep. 200. 44 Brostrom v. Dreyfus, (1932) 44 L.l.L.Rep. 136; Hall v. Paul (1914) 19 Com. Cas. 384; The Archimidis [2007] 2 Lloyd’s Rep. 101; Limerick v. Stott (1920) 5 Ll.L.Rep. 190. 45 Ogden v. Graham (1861) 1 B. & S. 773; Palace Shipping v. Gans Line [1961] 1 K.B. 138; The Saga Cob [1992] 2 Llyod’s Rep. 545 (C.A.).

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Here, on the probability of the Vessel being confiscated on grounds of ‘other causes’, which refer to

medical issues, would entail the port not being a safe port within the meaning of the C/P.

23. The delay of the Vessel even for a short time can make the port an unsafe one. The Vessel

will not be working any longer for that stipulated time period. Thus, the Wahanda Port was an unsafe

one for the particular Vessel in question since the delay caused her functioning to come to a halt.

c. The action of the PSC was unreasonable

24. The CLAIMANT contends that none of the crewmembers had ‘high fever’. Instead only one of

the motormen and the cook may have cold but no fever.46 The West Coast Port Authorities had

introduced curfew timings and mobilized resources to ensure that the spread of the virus at that Port

was contained. If the Vessel was nonetheless allowed to sail from West Coast Port despite such

restrictive measures, it shows that in all probability the Vessel at that time was not a carrier of the

Virus.47

25. ‘A person on board having a quarantinable infectious disease shall be placed in isolation.

The quarantinable epidemic suspect shall be kept for check-up detention or on-site clinical check-up

not exceeding the incubation period of such quarantinable infectious disease.’48 In the present case,

the PSC ordered quarantine for the entire Vessel and not merely the suspected crewmembers. In

addition, such check-up detention exceeded the incubation period of Ebola which is 2-21 days.49 The

quarantine order was given by the PSC only on the 11th of May 2016 which itself had exceeded the

incubation period.

26. Since the Vessel set sail from West Coast Port on the 20th of April 2016 and the quarantine

order was issued only on the 11th of May 2016, the period between the exposure to the virus and its

detection (2-21 days) had already been extinguished. Thus, the delay to the Vessel of about 50 days

had not arisen from the illness of the crewmen but from the unreasonable action ordered by the PSC.50

46 Moot Scenario, 24. 47 Moot Scenario, 22. 48Article 23, Chapter IV Quarantine Treatment, Administrative Measures for Entry and Exit Inspection and Quarantine on Ships of International Sails, 2002. 49 WHO, Ebola virus disease, WORLD HEALTH ORGANIZATION, (Apr. 28, 2019, 11:36PM) https://www.who.int/news-room/fact-sheets/detail/ebola-virus-disease; WHO, Frequently asked questions on Ebola virus disease, WORLD HEALTH ORGANIZATION, (Apr. 28, 2019, 11:37PM), https://www.who.int/csr/disease/ebola/faq-ebola/en/. 50 André & Cie S.A. v. Orient Shipping (Rotterdam) B.V.- “The Laconian Confidence” [1997] 1 Llyod’s Rep. 139.

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III. THE FOULING OF THE VESSEL’S BOTTOM WAS BECAUSE OF

RESPONDENT’S ORDER TO SAIL TO WAHANDA

27. The RESPONDENT is responsible for the fouling of the hull’s bottom because; Heavy fouling

of the Vessel’s bottom was a consequence of the RESPONDENT’S order, [a] The CLAIMANT is absolved

of their liability because of the principle of ‘implied indemnity’ [b].

A. THE HEAVY FOULING OF THE VESSEL’S BOTTOM WAS A CONSEQUENCE OF THE

RESPONDENT’S DECISION TO ALLOW SAIL TO WAHANDA

28. The RESPONDENT should be held liable for their orders, that subsequently result in excessive

marine growth, resulting in fouling of the Vessel’s bottom.51 A claim could be advanced if the

unexpected marine growth had accrued at a Port to which the RESPONDENT had ordered the Vessel

to proceed under the C/P.52

29. The RESPONDENT had constructive notice of the outbreak of Ebola at West Coast Port,

through newspapers which are public records.53 Despite having knowledge of the Ebola outbreak,

they allowed the Vessel to sail from the West Coast Port.54 Thus, they had given both their implied

and informed consent to the possible and foreseeable consequences at the Port of its destination.55

30. The RESPONDENT should have reasonably anticipated a quarantine/detention order by the PSC

particularly for a Vessel which has travelled from an infectious port.56 Ebola, being a recent disease

has no recognized scientific or medical treatment so far. Indefinite quarantine of such a Vessel or its

crew who have been exposed to such an infection can be reasonably anticipated.57

51 Santa Martha Baay Scheepvaart & Handelsmaatschappiji N.V. v. Scanbulk A/S- The Rijn [1981] 2 Lloyd’s Rep. 267 (Q.B.). 52 HULL FOULING- CHARTERPARTY ISSUES, Lloyd’s Maritime and Commercial Law Quarterly, (2006), https://www.i-law.com/ilaw/doc/view.htm?id=130496. 53 Moot Scenario, 81. 54 Id. 55 Implied consent, BRYAN A. GARNER, BLACK’S LAW DICTIONARY, 368 (10ed, Thomas Reuters, 2014); Informed consent BRYAN A. GARNER, BLACK’S LAW DICTIONARY, 368 (10ed, Thomas Reuters, 2014). 56 Clyde Commercial S.S. Co. v West India S.S. Co, 169 F. 275 (2d Cir. 1909). 57 WHO, Ebola virus disease, World Health Organisation, (Apr. 24, 2019, 11:08 PM) https://www.who.int/news-room/fact-sheets/detail/ebola-virus-disease.

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31. If the fouling of the Vessel’s bottom is caused during the charter period, it has been held to

be the CHARTERER’S responsibility.58 The CHARTERERS, in previous cases, have been held liable for

the cost of removing barnacles from the ship’s hull.59 Tribunals also have, in similar circumstances,

held that bottom and propeller fouling during the ship’s prolonged stay at a port “was a natural and

foreseeable consequence of the Vessel’s complying with their Charterer’s orders.”.60

32. Thus, the prolonged delay of the Vessel at Wahanda, which caused the fouling of the Vessel,

resulted from the RESPONDENT’S orders for which they should be held responsible.

B. THE CLAIMANT IS ABSOLVED OF THE LIABILITY BECAUSE OF THE PRINCIPLE OF

‘IMPLIED INDEMNITY’

33. The CLAIMANT had introduced the amended BIMCO Hull fouling clause in the C/P. This was

done to ensure that in case of an extended stay at a port, the liability for cleaning the Vessel’s bottom

shifts onto the Respondents.

34. The CLAIMANT is thus, not to be held liable for cleaning expenses in the present case. This is

because such an expense had arisen from a risk that the CLAIMANT had not agreed to run.61 The

CLAIMANT had expressly exonerated from their liability of cleaning by introducing Cl. 83 in the

C/P.62 They would have been under an obligation to clean the Vessel’s bottom if the time spent in

the waters at a port was usual and expected for that particular port.63 De-fouling costs are treated as

ordinary expenses of trading a ship under a time charter. When the Vessel’s stay in warm waters was

longer than what the parties had envisaged when concluding the contract, then, the RESPONDENT is

expected to indemnify the CLAIMANT for the costs of removing any marine growth from the Vessel’s

bottom.

35. In the instance of unusual or unexpected fouling, which lies outside the scope of the risks

which OWNERS had agreed to bear, the shipowner would be entitled to the benefit of an ‘implied

58 TERRENCE COGHLIN, JULIAN KENNY, TIME CHARTERS, 88 (7 ed. 2014). 59 The Grand, SMA 2548 (Arb. at N.Y. 1989). 60 The Mykali II, SMA 2240 (Arb. at N.Y. 1986), The Milly Gregos, SMA 2190 (Arb. at N.Y. 1986). 61 Triad Shipping Co. v. Stellar Chartering & Brokerage Inc.- “The Island Archon” [1994] 2 Lloyd’s Rep. 227 (CA), 236-7 (Evans LJ), 237 (Mann LJ), 237-9 (Nicholls V-C). 62 Moot Scenario, 16, Cl. 83. 63 Action Aviation Inc. v. Bottigliere di Navigazione S.p.A.- “The Kitsa” [2005] 1 Lloyd’s Rep. 432.

14

indemnity’. However, such a defence would not be applicable if the shipowner had contractually

assumed the risk of fouling.64

36. In the present case, the fouling of the hull’s bottom was outside the scope of the risks assumed

by the CLAIMANT.65 They only consented to include ‘ordinary wear and tear’, for a time period

within 25 days of the Vessel staying idle, thereby excluding fortuitous events for which the

RESPONDENT is to be held liable.66

C. THAT THE RESPONDENT BREACHED THEIR CONTRACTUAL OBLIGATION TO RE-DELIVER

THE SHIP

37. The RESPONDENT breached their contractual obligation to re-deliver the ship with a cleaned

bottom; They breached the C/P Cl. 83 by re-delivering the Vessel without cleaning its hull [a] The

RESPONDENT did not provide the requisite re-delivery notices beforehand to the CLAIMANT [b].

a. The Respondent breached the C/P Cl. 83 when they re-delivered the ship with a fouled

bottom

38. The RESPONDENT’s act of re-delivering the Vessel with a fouled hull after almost 50 days of

staying idle, in a muddy water port with current and other complexities, stands in clear violation of

Cl. 83 of the Omega Rider Clauses.67

39. This is because under the BIMCO Hull Fouling Clause for Time Charter parties shifts the

risk, cost, expenses and time lost due to hull cleaning from the OWNER to the CHARTERER, when,

following an employment order, the Vessel sits in a port or at anchorage off a port located in tropical

waters or temperate waters for a period exceeding the agreed period,68 (of 25 days in tropical zones

64 Supra, n. 64, Aikens J., 439. 65 Action Aviation Inc. v. Bottigliere di Navigazione S.p.A.- “The Kitsa” [2005] 1 Lloyd’s Rep. 432. 66 Cosmos Bulk Transport Inc. v. China National Foreign Trade Transportation Corporation- “The Apollonius” [1978] 1 Lloyd’s Rep. 53; The Sig Bergesen D.Y. A/S v. Mobil Shipping and Transportation Co.- “The Burge Sund” [1993] 2 Lloyd’s Rep. 453 (C.A.); Action Aviation Inc. v. Bottigliere di Navigazione S.p.A.- “The Kitsa” [2005] 1 Lloyd’s Rep. 432. 67 Moot Scenario, 16, Cl. 83. 68 Cl. 30(c), NYPE Form 2015.

15

and 30 days in other zones),69 and subsequent inspection of the Vessel requested by either party

demonstrates the need for underwater cleaning.70

40. Accordingly, upon a literal reading and interpretation of Cl. 83 of the C/P,71 it explicitly shifts

the onus of cleaning a fouled bottom on the RESPONDENT, especially when the stipulated time period

in the C/P clause has been exceeded.72 The RESPONDENT thus has been allocated the responsibility

of de-fouling the Vessel before she is returned to the CLAIMANT.

41. The RESPONDENT’S subsequent conduct of re-delivering the ship without cleaning its fouled

bottom is tantamount to them being benefitted from their own failure.73 This is on account of their

denial to pay the ‘adequate’ lumpsum amount74 as well as absolving themselves of the obligation to

clean the Vessel, by seeking to place the Vessel off-hire. Ultimately it was the CLAIMANT who

discharged the RESPONDENT’S obligation to clean the bottom. Thus, they cannot be allowed to enjoy

the ‘dual benefit’ of their own misconduct. Thus, the CLAIMANT submits that the RESPONDENT ought

to have re-delivered the Vessel with its bottom cleaned.

b. The Respondent did not oblige with the mandate of providing the requisite re-delivery

notices beforehand to the Claimant

42. The RESPONDENT was under an obligation to serve a series of notices of the expected time

and port of redelivery. This duty is in relation to the redelivery of the ship under the NYPE form.75

43. The RESPONDENT never issued any approximate days’ notice and re-delivered the ship merely

by giving a 1-day definite re-delivery notice.76 The general practice involves, “Charterers to give

Owners not less than 20/15/10/7 approximate days’ notice of Vessel’s expected date of re-delivery

and 5/3/2/1 day’s definite notice.”77

69 Supra, n. 67. 70 Cl. 30(a), NYPE Form 2015; Cl. 30 NYPE 2015, Explanatory Notes, p. 19. 71 Moot Scenario, 16, Cl. 83. 72 Bulfracht (Cyprus) Ltd. v. Boneset Shipping Co. Ltd.- “The Pamphilos” [2002] 2 Lloyd’s Rep. 681, 690-1. 73 London Arbitration 16/17. 74 Moot Scenario, 75 Cl. 56-57, NYPE 2015. 76 Moot Scenario, 44. 77 Maestro Bulk Ltd. v. Cosco Bulk Carrier- “The Great Creation” [2015] Llyod’s Rep. Plus 11; IMT Shipping and Chartering GmbH v. Chansung Shipping Co. Ltd.- “The Zenovia” [2009] EWHC 739 (Comm).

16

44. The RESPONDENT thus, stands in clear breach of their contractual obligation of providing a

longer definite notice of re-delivery preceded by an approximate days’ notice, in order to keep the

CLAIMANT informed of the expected date of re-delivery.78

45. In case the RESPONDENT fails to give the requisite notice of redelivery at all or fail to give the

required number of days’ notice, they commit a breach of the C/P on the date that the ship is

redelivered, consisting in having failed to serve notice of redelivery the necessary number of days

previously.79 It is submitted that the proper measure of damages should be damages that put the

CLAIMANT in a position in which they would have been, if notice as required by the C/P, had been

given, the requisite number of days prior to redelivery.80 The RESPONDENT thus did not keep the

CLAIMANT informed by issuing regular notices of re-delivery.

D. THE CLAIMANT HAS A RIGHT TO BE REIMBURSED FOR THE AMOUNT PAID IN RELATION

TO CLEANING

46. The CLAIMANT is entitled to reimbursement of the underwater cleaning costs from the

RESPONDENT under Cl. 83 of the C/P which that they would indemnify the CLAIMANT in respect of

the consequences of complying with their orders as to the employment of the Vessel.81

47. The CLAIMANT undertook a voyage to the South Island Port in order to clean the Vessel, since

the Vessel was re-delivered to them with its bottom uncleaned. Accordingly, the CLAIMANT seeks

compensation in the form of USD 41,000 for the cleaning expenses, USD 55,567.42 for the voyage

to South Island Port and USD 15,330,000 on account of loss borne by non-performance of the

subsequent fixture.82 The CLAIMANT contends that the RESPONDENT should be held liable for the

established cost of deferred repairs since the Vessel was not redelivered in ‘good order and condition’

as required by C/P.83

78 Dr. Theodora Nikaki, Professor Baris Soyer, Enhancing standardization and legal certainty through standard C/P contracts: The NYPE 2015 Experience, Oxford Informa Law (Routledge) 2018, (Apr. 28, 2019, 11:43PM), https://cronfa.swan.ac.uk/Record/cronfa37776. 79 Hyundai Merchant Marine Co. Ltd. v. Karander Maritime Inc.- “The Niizuru” [1996] 2 Lloyd’s Rep. 66, 73. 80 TERRENCE COGHLIN, JULIAN KENNY, TIME CHARTERS, 88 (7ed. 2014). 81 London Arbitration 24/05. 82 Moot Scenario, 69. 83 The Prometheus, SMA 1154 (Arb. at N.Y. 1977).

17

48. The RESPONDENT re-delivered the Vessel with a fouled hull, which stood in clear violation of

the C/P clause.84 The CLAIMANT’s remedy, therefore, will lie in claiming damages. The Hon’ble

Tribunal should thereby declare that the damages flowing from such a breach should include the costs

of hull cleaning and the CLAIMANT’s losses relating to the loss of performance, until they had a

reasonable opportunity to rectify the situation by carrying out such a cleaning activity.85

49. Such damages will generally be assessed by reference to the reduction in the value of the

Vessel consequent upon its redelivery in such an uncleaned condition. The CLAIMANT wishes to

claim the “cost of cure”, which refers to the cost involved in the process of reparations. They can do

so only on the basis that they not only intend to repair the ship but that such a course of action is

commercially reasonable in the circumstances.86

50. In a commercial context, a plaintiff will not recover damages on a ‘cost of cure’ basis if that

cost is disproportionate to the financial consequences of the deficiency.87 To satisfy the

‘commercially reasonable’ doctrine, the concerned party, on the facts of the particular case, is

required to take all reasonable steps in so far as they were commercially prudent.88

51. Commercially reasonable, in the given fact situation, includes the cost incurred by the

CLAIMANT in undertaking the underwater hull cleaning of the Vessel at the South Island Port. The

CLAIMANT act of cleaning the Vessel’s bottom at South Island port was a reasonable step that ensured

commercial prudence on their part. The CLAIMANT thus seeks to be reimbursed for the cleaning costs

in addition to the amount spent in reaching the Port. The re-delivery of the Vessel with a fouled

bottom resulted in the CLAIMANT’S loss of the subsequent C/P. Thus, the cost demanded by the

CLAIMANT is not financially disproportionate to the losses incurred by them due to re-delivery of a

deficient Vessel.

84 Moot Scenario, 16, Cl. 83. 85 London Arbitration 25/17; Moot Scenario, 69. 86 Ruxley Electronics and Construction Ltd v. Forsyth [1996] AC 344; Sealace Shipping Co. v. Oceanvoice Ltd.- “The Alecos M” [1991] 1 Lloyd’s Rep. 120 (C.A.); Channel Island Ferries Ltd. v. Cenargo Navigation Ltd.- “The Rozel” [1994] 2 Lloyd’s Rep. 261 (Q.B.). 87 Sealace Shipping Co. v. Oceanvoice Ltd.- “The Alecos M” [1991] 1 Lloyd’s Rep. 120 (C.A.). 88 CPC Group Ltd. v. Qatari Diar Real Estate Investment Company [2012] EWHC 1535.

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52. The loss of the follow-on fixture was one which was an “not unlikely” consequence of the

RESPONDENT’s failure to return the Vessel on time.89 The RESPONDENT should have known that the

CLAIMANT might have lined up their next fixture and that, a late re-delivery might result in the

cancellation of the next C/P.90 It is contended that the CLAIMANT’S claim was not ‘too remote’ or

unforeseeable. Late re-delivery that resulted in the Vessel missing the cancellation date of the next

fixture was not unusual or unanticipated. It was something within the contemplation of the parties as

not an unlikely result of the breach.91 It is ‘illogical’ to expect losses to immediately stop after the

breaches ceased.92

53. The CLAIMANT never ‘prevented’ the RESPONDENT from undertaking the cleaning activity.

The RESPONDENT themselves averted the cleaning operations by re-delivering the Vessel with an

uncleaned bottom. The mail dated 29th of July 2016 clearly states that the CLAIMANT never prevented

the RESPONDENT from cleaning. They merely wished to re-deliver the Vessel without cleaning or

inspection ‘simply to suit their convenience’.93

54. The CLAIMANT refused to accept the RESPONDENT’s proposal of a lumpsum amount primarily

because the proposed amount of USD 30,000 was inadequate. Such a proposed lumpsum was neither

sufficient to cover the cleaning costs, as the cost incurred for cleaning at South Island Port was

41,000USD nor could it cover the expenses incurred to undertake a voyage to South Island Port.

ARGUMENTS ON THE MERITS OF THE COUNTERCLAIMS

IV. THE CLAIMANT IS NOT LIABLE TO INDEMNIFY THE RESPONDENT FOR

CARGO DAMAGE

55. The CLAIMANT is not liable to pay the RESPONDENT USD 100,000 for the damaged English

Breakfast Tea: There was insufficient information in the notification of the cargo claim [A] The B/L

89 The Transfield Shipping v. Mercator Shipping- Achilleas [2007] 1 Lloyd’s Rep. 432. 90 VICTOR GOLDBERG, THE ACHILLEAS: FORSAKING FORESEEABILITY, Current Legal Problems, (Vol. 66, 2013), 122-123. 91 SENTHIL SABAPATHY, “THE ACHILLEAS: STRUGGLING TO STAY AFLOAT”, Singapore Journal of Legal Studies, (Dec. 2013) 391. 92 MFM Restaurants [2010] SGCA 36, 90-91. 93 Moot Scenario, 43.

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has not been incorporated in the C/P [B] The CLAIMANT is not liable to pay according to Cl. 8(a) of

the Inter-Club Agreement [C].

A. THERE WAS INSUFFICIENT INFORMATION IN THE NOTIFICATION OF THE CARGO CLAIM

56. The CLAIMANT contends that the mail dated 07th of July 2016, has insufficient details of cargo

claim, as required by Cl. 6 of the ICA. The Cl. states that, ‘such notification shall if possible, include

details of the contract of carriage, the nature of the claim and the amount claimed.’94 If only few

details are given, the RESPONDENT runs the risk of the notice being held as insufficient. Such a claim,

or a part of it will become time-barred.95 The B/L found in pages 47-4996 was not attached with the

mail dated 07th of July 2016. The CLAIMANT thereby contends that they were not provided with

sufficient details regarding the CoC which makes the notice insufficient in its details.

57. The notice must specify ‘the matter which gives rise to a claim’. This means the underlying

facts, events, and circumstances, which constitute the factual basis on which the claim is posited. The

notice must also specify ‘the nature of the claim’.97 It is established in the Ipsos case,98 that there is

a need to provide as much information as possible in relation to the underlying cargo claim. The

cargo claim notices, such as those under the ICA, are given in writing, are clear and unambiguous as

a matter of best practice.

58. It must not refer to intimation of a future claim that is set to arise but must refer to a ‘definite

claim that has actually arisen’.99 The nature of the claim must not be such that it signifies that a claim

may be made in the future.100 It must not be a way of reserving rights to be put forward, to make a

claim later which is not sufficiently clear in itself.101 In the present case, the RESPONDENT through

Mekon Surveyor’s report as furbished along with the mail dated 7th of July 2016, has tried to notify

94 Cl. 6, ICA, NYPE Agreement 1996 (as amended 1 September 2011). 95 LORD MUSTILL AND STEWART C BOYD QC, COMMERCIAL ARBITRATION (1989), 205. 96 Moot Scenario, 47-49. 97 Laminates Acquisitions v. BTR Australia Limited [2004] 1 All ER (Comm) 737. 98 Ipsos S.A. v. Dentsu Aegis Network Limited [2015] EWCH 1171 (Comm). 99 Cathiship S.A. v. Allanson Ltd. [1998] 2 Lloyd’s Rep. 511; Laminates Acquisitions v. BTR Australian Limited (2004) 1 All ER (Comm) 737; Senate Electrical Wholesalers Limited v. Alcatel Submarine Networks Ltd. [1999] 2 Lloyd’s Rep. 423. 100 LORD MUSTILL AND STEWART C BOYD QC, COMMERCIAL ARBITRATION (1989), 205. 101 A/S Rendal v Arcos Ltd [1937] 58 Lloyd’s Law Report 287, 293; Bulgaris v La Plata Cereal Co SA [1947] 80 Lloyd’s Law Report 455.

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the CLAIMANT that they would be liable for a substantial amount once the quantum of damage is

determined by the Receivers.102 The mail dated 7th of July 2016 cannot be construed as a ‘Notice of

claim’ but a mere reserving of rights as against the CLAIMANT that a claim will arise in the future.

59. The RESPONDENT had repeatedly asked for time extension from the CLAIMANT since they had

been in the process of ascertaining the amount of cargo claim with the Receivers. Hence, they contend

that it would have been impossible for them to intimate the exact amount of claim. In light of the

same, the CLAIMANT had granted them an extension twice for three months each i.e. in response to

mail dated 23rd May 2017 and mail dated 23rd August 2017.103 The RESPONDENT, however seeks to

establish that the notice of claim was irregular in its details because there was a delay made on the

part of Receivers to notify the quantum of damage. This would not be a tenable claim on the simple

fact that the ‘Receivers had made a valid cargo claim within the time extensions granted to them by

the Respondent.’104 Hence, the onus lies on the RESPONDENT to have notified the same to the

CLAIMANT by furbishing all the details and particularities immediately and not during the course of

this arbitration.105

60. It is thus submitted that as the mail dated 07th of July 2016 did not contain sufficient

information, it cannot be construed as a valid notice. Thus, the RESPONDENT has waived off the right

to recover the amount of cargo damage from the CLAIMANT under Cl. 6 of the ICA.

B. THE BILL OF LADING HAS NOT BEEN INCORPORATED IN THE C/P

61. The CLAIMANT contends that the B/L has not been incorporated in the C/P: The B/L is not

‘authorized’ as mandated by NYPE [a] The RESPONDENT cannot claim under Cl. 4(a) (1) ICA [b].

a. The B/L has not been ‘authorized’ according to Cl. 31 of the NYPE 2015 form

102 Moot scenario, 45, 46. 103 Moot Scenario, 58, 57. 104 Moot Scenario, 82. 105 Id.

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62. Neither the Master nor the RESPONDENT acting on behalf of Master with his prior written

consent has signed the B/L.106 B/L is the evidence of Contract of Carriage.107 B/L should be

authorized by a valid signature, to make the CLAIMANT responsible to the RESPONDENT. The ICA

requires a “contract of carriage, whatever its form” for settling cargo claims.108 In the present case,

there was absence of signature of either party on the B/L even when there was an implied consent to

sign it. This proves that the B/L was not the evidence of CoC.109 B/L was never provided to the

CLAIMANT as it was neither signed by the Master nor was it attached to Mekon Survey Report mail

sent to the CLAIMANT.110 Even the RESPONDENT admits that the details of CoC were only provided

to the CLAIMANT during the course of arbitration.111

63. No reasonable conclusion about the condition of the goods loaded can be drawn if the B/L is

not authorized.112 Neither can a causal connection between the goods damaged and the specification

of goods mentioned in the B/L be confirmed.113 In addition, the specifications of the cargo was not

mentioned in B/L in depth as otherwise generally practiced. The condition of the cargo thus was not

known before loading it from West Coast Port, Challaland. In Hawk, it was established that ICA can

only be applied when causal relation can be established.114

b. The RESPONDENT cannot ask for cargo claim under Clause 4(a)(1) of the ICA

64. According to § 4(a)(1) of the ICA, the apportionment shall be applied to cargo claims only

when they have been duly authorized under the C/P.115 If this precondition is not met, the party that

has settled the Cargo claim will have no claim under this Agreement.116 Since, the authorization of

B/L has not been established, the RESPONDENTS cannot ask for cargo claims.

106 Moot Scenario, 47. 107Finmoon Ltd. and Another v. Baltic Reefers Management Ltd. and Others, (2012) EWHC 920 (Comm). 108A/S Iverans Rederei v. KG MS Holtencruiser Seeschiffahrtsgesellschaft m.b.H. & Co. and Others – “The Holtencruiser” [1992] 2 Lloyd’s Rep. 378. 109 Cl. 31, NYPE Form 2015; Partenreederei M/S Heidberg v. Grosvenor Grain & Feed Co. Ltd.– “The Heidberg” [1994] 2 Lloyd’s Rep. 287. 110 Moot Scenario, 81. 111 Id. 112A/S Iverans Rederei v. KG MS Holtencruiser Seeschiffahrtsgesellschaft m.b.H. & Co. and Others – “The Holtencruiser” [1992] 2 Lloyd’s Rep. 378. 113 Tillsmann and Co. v. S.S. Knutsford [1908] 2 K.B. 385. 114 Oceanfocus Shipping Limited v. Hyundai Merchant Marine Company Ltd.-“ The Hawk” [1999] 1 Lloyd’s Rep. 176. 115 § 4 (a) (1), ICA, NYPE Agreement 1996 (as amended 1 September 2011). 116 TERENCE COGHLIN, JOHN D. KIMBALL, ANDREW W. BAKER, THOMAS H. BEDLKNAP, JULIAN KENNY, TIME CHARTERS 369 (Informa Law, 7th ed., 2014).

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C. CLAIMANT SHOULD NOT INDEMNIFY THE RESPONDENT ACCORDING TO CLAUSE 8(A) OF

ICA

65. The CLAIMANT contends that they should not indemnify the RESPONDENT in accordance with

Cl. 8(A) of ICA: The Vessel was seaworthy as mandated by the Hague Visby Rules [a] The

CLAIMANT exercised due diligence [b] The damage occurred when the crew acted as RESPONDENT’S

agents [c].

a. The Vessel was seaworthy in accordance with the Hague Visby Rules

66. The C/P mentions that the loading operations are to be carried out strictly in accordance with

the local laws117and Challaland resembles the laws of the USA.118 The US COGSA Rules are

applicable which have been incorporated as Clause paramount in accordance with Cl. 33 of NYPE

form 2015.119 In addition, Cl.2 of the B/L itself mandates that HVR will apply.120 Hence, HVR will

apply.121 Article III, rule 1 imposes a duty on the carrier to exercise due diligence before and at the

beginning of the voyage to make the Vessel seaworthy and to properly man, equip and supply the

vessel.122

67. Vessel MV THANOS’S paperwork was completed on 1st January 2016.123 CLAIMANT was in

the shipping business for years which is evident from the fact when they used the phrase “another

tween decker to join our fleet of bulk cargo vessels”.124 The obligation of the CLAIMANT to provide

a Vessel fitted for services, if not expressly given in the contract, can be implied from the Time

Charter Party.125 Cl. 68 of C/P impliedly warrants seaworthiness. It says that, “Vessel shall have a

full and efficient complement of Master, Officers and crew…who shall be trained to operate the

117 Moot Scenario, 4. 118 Moot Scenario, 81. 119 Cl. 33, NYPE Form 2015. 120 Moot Scenario, 48. 121 TERENCE COGHLIN, JOHN D. KIMBALL, ANDREW W. BAKER, THOMAS H. BEDLKNAP, JULIAN KENNY, TIME CHARTERS 162 (Informa Law, 7th ed., 2014). 122 Article III, Rule 1(a) Hague-Visby Rules. 123 Moot Scenario, 1. 124 Id. 125 Hongkong Fir Shipping Company, Ltd. v. Kawaski Kisen Kaisha, Ltd. – “The Hong Kong Fir” [1961] 2 Lloyd’s Rep. 478.

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Vessel and her equipment competently and safely”.126 CLAIMANT would have taken all reasonable

measures to make MV THANOS seaworthy as they were in this business for many years. In addition,

according to Mekon Surveyor’s Report, Vessel’s ballasting system was in order.127 Since, the

paperwork was concluded on 1st of January 2016 itself, it shows that they knew they would be in

need of crew for the new Vessel. Thus, they would have taken reasonable precautions in hiring the

crew in accordance with Cl. 68 of C/P.128 Hence, the Vessel was made fit in every way possible for

the said voyage.129

b. The CLAIMANT exercised due diligence in making the Vessel seaworthy

68. The test of determining due diligence is of an objective nature which says, “a Vessel must

have that degree of fitness which an ordinarily careful and prudent owner would require his Vessel

to have …. having regard to all the probable circumstances”.130 The lack of such ‘due diligence’

would amount to negligence.131 In practice, the ‘want of due diligence’ may be determined by

reference to the nature of the Vessel, the Owner’s knowledge at the time, or compliance with any

applicable regulations.132 As the paper work of MV THANOS was completed on 1st January 2016, it

can be reasonably inferred that they would have made efforts to hire crew and Master for the ship.

They would have in all probability, checked their certificates in accordance with Cl. 68 of the C/P.

A shipowner exercising due diligence can make certain assumptions as it is unreasonable for the

shipowner to investigate each and every crew member in detail.133

c. The damage occurred when the crew was acting as RESPONDENT’S servant

69. The effect of the phrase “before and at the beginning of the voyage” under § 3(1) of Hague

rules have been constructed to correspond with the time starting when the Vessel is under the ‘orbit’

of the contractual carrier to the phase when the loading begins or until the Vessel starts on her

126 Moot Scenario, 13. 127 Moot Scenario, 46. 128 Moot Scenario, 13. 129Rederi Unda v. Burdon [1937] 57 Lloyd’s Law Report 95. 130 Mcfadden v. Blue Line Star [1905] 1 K.B. 697. 131Eridania S.p.A. and Others v. Rudolf A. Oetker and Others – “The Fjord Wind” [1999] 1 Lloyd’s Rep. 307. 132 Northern Shipping Co. v. Deutsche Seereederei G.m.b.H. and Others – “The Kapitan Sakharov” [2000] 2 Lloyd’s Rep. 255. 133 Homburg Houtimport B.V. v. Agrosin Private Ltd. and Others - “The Starsin” [2003] 1 Lloyd’s Rep. 571.

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voyage.134 The English Law is of the view that the Master’s active participation will ipso facto make

the CLAIMANT liable.135 In such situations, it can be said that the Master wears two hats or performs

dual agency.136

70. As soon as the Vessel got delivered, it came under the ‘orbit’ of the RESPONDENT who was

then supervising the cargo operation when this damage occurred. The damage was done to the cargo

during the ballasting operation while the cargo was being loaded at West Port.137 This loading

operation was to be carried out under the supervision of the Master.138

71. The Master and crew while they carry out RESPONDENT’S responsibility to load, stow and

discharge act as RESPONDENT’S servants.139 Both the Master and the crew members become the

RESPONDENTS’ “borrowed servants” when the RESPONDENT used them to discharge the

responsibilities assumed by the RESPONDENT under Cl. 8.140 The Captain is the servant of the

CLAIMANT with respect to the Vessel’s safety and stability. (S)he becomes the servant of the

RESPONDENT with respect to the utilization of the Vessel’s available capacity. The risk of being

unable to load a particular quantity of cargo because of improper stowage or trimming must be borne

by the RESPONDENT because the Master now becomes the ‘borrowed servant’ of them.141 In the Carib

Eve, it was held that pursuant to Cl. 8 of the NYPE, the RESPONDENT was responsible for loading,

stowing etc. and to the extent that the crew and the Master participated in such activities they did so

as the borrowed servants of the RESPONDENT.142

72. Thus, while loading the jute bags comprising of English breakfast tea, the crew was working

to utilize MV THANOS’S available holding capacity.143 Even if the damage occurred due to the wrong

opening of a valve, it was done while the crew was carrying out ballasting operation by working

134Riverstone Meat Co. Pty Ltd. v. Lancashire Shipping Co. Ltd. – “The MuncasterCastle” [1961] 1 Lloyd’s Rep. 57. 135 TERENCE COGHLIN, JOHN D. KIMBALL, ANDREW W. BAKER, THOMAS H. BEDLKNAP, JULIAN KENNY, TIME CHARTERS 380 (Informa Law, 7th ed., 2014). 136Nichimen Company v. M/V Farland, 462 F.2d 319. 137 Moot Scenario, 46. 138 Clause 8(b), ICA, NYPE Agreement 1996 (as amended 1 September 2011). 139 TERENCE COGHLIN, JOHN D. KIMBALL, ANDREW W. BAKER, THOMAS H. BEDLKNAP, JULIAN KENNY, TIME CHARTERS 380 (Informa Law, 7th ed., 2014). 140 Id. 141The Robertina SMA 1151 (Arb at N.Y 1977). 142 The Carib Eve, SMA 2749 (Arb. at N.Y. 1991). 143The Robertina SMA 1151 (Arb at N.Y 1977).

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under the RESPONDENT.144 Therefore, the CLAIMANT cannot be held liable for the act done by the

crew during the loading operations.

144The Carib Eve, SMA 2749 (Arb. at N.Y. 1991).

Team 25 Memorial for the Claimant

x

REQUEST FOR RELIEF

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

a. a declaration that the Tribunal has the jurisdiction to adjudicate the matter at hand (I);

b. a declaration that the Vessel was not off-hire for the period of 7th May to 26th June (II);

c. a declaration that the RESPONDENT is responsible for the breach of the C/P and is thus liable

to the sum of USD 15,426,567.42 (III);

d. Declare that CLAIMANT is not liable to indemnify RESPONDENT for the cargo claim (IV);

e. an award for interest @5% compounded on the sums decided above;

f. any other relief as the tribunal deems fit.