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THE 20TH ANNUAL INTERNATIONAL

MARITIME LAW ARBITRATION MOOT 2019

Memorandum for the Respondents

NALSAR UNIVERSITY OF LAW, HYDERABAD

ON BEHALF OF: AGAINST

Omega Chartering Company Panther Shipping Inc.

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

RESPONDENT CLAIMANT

TEAM 25

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

Team 25 Memorial for Respondent

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 strictly enforceable ......................... 3

B. The Appointment of Capt. Eric Masterson is valid ......................................... 3

C. The CLAIMANT Has Waived off their Right to Object to Masterson’s Appointment

4

D. Mary Walker should not become the Sole Arbitrator in this dispute ............... 5

II. That the Vessel was off hire for the mentioned period ................................................ 6

A. That the full working of MV THANOS has been prevented ............................... 6

B. That such full working has been prevented because of one of the reasons mentioned

in the off-hire clause .................................................................................................... 8

C. Full Working of the Vessel has been prevented due to deficiency or default of the

officers or ratings ........................................................................................................ 9

D. That the Actual delay has been caused due to the Off-Hire Event ................ 10

E. Such a delay was not caused by RESPONDENT’S fault ....................................... 10

F. That the action of the PSC was a reasonable action .......................................... 11

III. Re-delivering the vessel without a cleaned bottom did not amount to a breach of

the charterparty ........................................................................................................................ 13


3

A. The RESPONDENT was prevented from cleaning the Vessel at Wahanda ....... 13

B. The RESPONDENT Act of Providing a 1-Day Re-Delivery notice is protected by

Annexure 1 BIMCO Clause ...................................................................................... 14

C. That the CLAIMANT did not reach an agreement on the lumpsum amount as

specified in C/P Cl. 83 ............................................................................................... 14

D. The CLAIMANT is estopped by virtue of their mail dated 9th June 2016 ........ 16

E. The RESPONDENT is not under an obligation to pay the claimant the costs of hull

cleaning ..................................................................................................................... 16

F. That the re-delivery of the vessel was not late since it is protected by the ‘without

guarantee’ provision in the time charter trip ............................................................ 19

IV. The CLAIMANT is liable to indemnify the RESPONDENT for cargo damage .............. 19

A. The Bill of Lading has been incorporated ...................................................... 20

B. There was Insufficient information in the notification of the cargo claim .... 21

C. The CLAIMANT shall indemnify RESPONDENT according to Cl. 8(a) of ICA . 23

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


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 Honourable

HVR Protocol to Amend the International Convention for the Unification of

Certain Rules of Law Relating to Bills of Lading (Hague-Visby Rules)

(Brussels 1968)

ICA Inter-Club Agreement

Lloyd’s Rep. Lloyd’s Law Report

Ltd. Limited

Moot Scenario International Maritime Law Arbitration Moot, 2019


ii

MT Metric Tonnes

NYPE New York Produce Exchange Form

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 .......................................................................... 32

A/S Rendal v Arcos Ltd [1937] 58 Lloyd’s Law Report 287 ......................................................... 33

Action Aviation Inc. v. Bottigliere di Navigazione S.p.A.- “The Kitsa” [2005] 1 Lloyd’s Rep. 43229

Alfred C Toepfer Schiffahrtsgesellschaft mbH v. Tossa Marine Co. Ltd. – “The Derby” [1985] 2

Lloyd’s Rep. 325, 333 ................................................................................................................... 35

Andre & Cie v. Orient Shipping Rotterdam- “The Laconian Confidence” [1997] 1 Lloyd’s Rep. 139

....................................................................................................................................................... 17

Arab Maritime Petroleum Transport Co. v. Luxor Trading Panama and Geogas Enterprise Geneva

– “The Al Bida” [1987] 1 Lloyd’s Rep. 142 .................................................................................. 27

Belcore Maritime Corporation v. F.LLI. Moretti Cereali S.p.A– “The Mastro Giorgis” [1983] 2

Lloyd’s Rep. 66 ............................................................................................................................. 17

Bremer HandelgesellschaftmbH v RaffeisenHauptgenossenschafteG [1982] 1 Lloyd’s Rep. 43433

CF Vigers Brothers Ltd. v. Montague L Meyer Ltd. [1938] 11 L1 Lloyd’s Rep. 35 ..................... 16

Cosco Bulk Carrier Co Ltd v. Team Up Owning Co Ltd.- “The Saldanha” [2011] 1 Lloyd’s Rep.

187 ................................................................................................................................................. 18

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

Apollonius” [1978] 1 Lloyd’s Rep. 53 .......................................................................................... 27

Court line Ltd v AKT Gotaverken– “The Halcyon the Great” [1984] 1 Lloyd’s Rep .................. 33

Dahlen v. Gulf Crews, [2002] AMC 566 ....................................................................................... 37

Dunlop S.S. Co. v. Tweedie Trading Co., 162 F. 490,493 (S.D.N.Y. 1908) ................................. 20

Exercise Shipping Co. Ltd. v. Bay Maritime Lines Ltd. – “The Fantasy” [1991] 2 Lloyd’s Rep. 391

....................................................................................................................................................... 37

Forrest v. Glasser [2006] 2 Lloyd’s Rep. 392 ............................................................................... 33

Framlington Court [1934] AMC 272 ............................................................................................ 35


iv

Gow v. Gans Steamship Line (C.C.A.) 174 Fed. 215 .................................................................... 20

Hadley v. Baxendale [1854] EWHC J70 ....................................................................................... 30

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

Rep. 571 ................................................................................................................................... 32, 36

International Packers London Ltd. v. Ocean Steam Ship Company Ltd. – “The Hector” [1998] 2

Lloyd’s Rep. 287 ........................................................................................................................... 32

M.H. Progress Lines SA v. Orient Shipping Rotterdam BV and other-” The Genius Star” 1 [2012] 1

Lloyd’s Rep. 222 ........................................................................................................................... 33

Macieo Shipping Ltd. v. Clipper Shipping Lines Ltd. – “The Clipper Sao Luis” [2000] 1 Lloyd’s

Rep. 645 ......................................................................................................................................... 17

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

11 ................................................................................................................................................... 30

Minerva Navigation INC v. Oceania Shipping AG - The “Athena” [2013] EWCA Civ 1723 ..... 21

MSC Mediterranean Shipping Co. SA v. Alianca Bay Shipping Co. – “The Argonaut” [1985] 2

Lloyd’s Rep. 216 ........................................................................................................................... 37

National Shipping Co. of Saudi Arabia v. BP Oil Supply Company- “The Abqaiq” [2012] 1 Lloyd’s

Rep. 18 ........................................................................................................................................... 34

Newcastle Protection and Indemnity Association Ltd. v. Assurance Forningen Gard Gjensidig –

“The Labrador” [1998] 2 Lloyd’s Rep. 387 ................................................................................. 31

NYK Bulkship (Atlantic) NV v. Cargill International SA- The “Global Santosh” [2016] UKSC 2021

Owners of Cargo Lately Laden on Board the Makedonia v. Owners of the Makedonia – “The

Makedonia” [1962] 1 Lloyd’s Law Report 316 ............................................................................ 36

Pagnan S.p.A. v. Tradex Ocean Transportation S.A. [1987] 2 Lloyd’s Rep. 342 (CA) ............... 25

Pan Cargo Shipping Corp v. United States 234 F Supp. 623.629 (SDNY 1964) ......................... 18

Royal Greek Government v. Minister of Transport 1949 L.I.L. Rep. 228 .................................... 20

Seaboard Offshore Ltd. v. Secretary of State for Transport- “The Safe Carrier” [1994] 1 WLR 541

....................................................................................................................................................... 36


v

Sempra Metals Ltd v Inland Revenue Commissioners [2007] UKHL 34, [2008] 1 AC 561 ........ 37

Slyvia Shipping Co. Ltd. v. Progress Bulk Carriers Ltd- “The Slyvia” [2010] 2 Lloyd’s Rep. 8130

The A B Marintrans v. Comet Shipping Co. Ltd. – “The Shinjitsu Maru No. 5” [1985] 1 Lloyd’s

Rep. 568 ......................................................................................................................................... 36

The Island Territory v. Solitron Devices Inc. [1973] 356 F Supp 1(USDC, SDNY) .................... 15

The Lendoudis Evangelos II, 75 [1997] 1 Lloyd’s Rep. 404 ........................................................ 30

The Lipa [2001] 2 Lloyd’s Rep. 17 ............................................................................................... 30

The Orient Horizon, SMA 1709 (Arb. At NY 1982) .................................................................... 21

The Sidermar S.A. v. Apollo Corporation – “The Apollo” [1978] 1 Lloyd’s Rep. 200 .......... 18, 21

The Sig Bergesen D.Y. A/S v. Mobil Shipping and Transportation Co. – “The Berge Sund” [1993] 2

Lloyd’s Rep.453 (C.A.) ................................................................................................................. 17

The Transfield Shipping v. Mercator Shipping- “The Achilleas” [2007] 1 Lloyd’s Rep. 432 ..... 29

Transpacific Discovery S.A. v. Cargill International S.A. – “The Elpa” [2001] 2 Lloyd’s Rep. 596

................................................................................................................................................. 31, 34

TS Lines Ltd v Delphis NV Delphis NV v. Ulrike F Kai Freese GMBH & Co KG– “The TS

Singapore” [2009] 2 Lloyd’s Rep. 54 ........................................................................................... 17

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

....................................................................................................................................................... 37

STATUTES

§ 10, LMAA (2017) ....................................................................................................................... 16

§ 16, UNCITRAL Model Law on International Commercial Arbitration 1985 ............................ 14

§ 17 Arbitration Act, 1996 ............................................................................................................. 16

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

§ 73(1), Arbitration Act, 1996 ................................................................................................. 14, 15

§49(3)(a) of Arbitration Act, 1996 ................................................................................................ 38

Limitation Act 1980 ....................................................................................................................... 34


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OTHER AUTHORITIES

Annexure 1, BIMCO Redelivery clause for Time Charter Parties, BIMCO ................................. 25

Appendix 2, Guidelines for the Detention of Ships, A 27/Res. 1052, IMO A. 1052(27) Procedures

for Port State Control ..................................................................................................................... 20

Article III, Rule 1(a), Hague-Visby Rules, 1968 ........................................................................... 35

Cl. 15, NYPE Form 2015 .............................................................................................................. 28

Cl. 17, NYPE Form 2015 .............................................................................................................. 19

Cl. 54 NYPE Form, 2015 ........................................................................................................ 13, 16

Cl. 6, ICA, NYPE Agreement, 1996 ............................................................................................. 33

BOOKS

CLARE AMBROSE, KAREN MAXWELL, MICHAEL COLLETT, LONDON MARITIME ARBITRATION 51

(Informa Publications, 4ed, 2018) ........................................................................................... 13, 37

KIM LEVISON, INTERPRETATION OF CONTRACTS 12 (Sweet & Maxwell, 5ed, 1989) .................... 22

MICHAEL J. MUSTIL AND STREWART C. BOYD, COMMERCIAL ARBITRATION (1999), 205 ............ 33

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

HUNTER ON INTERNATIONAL ARBITRATION 85 (Oxford University Press, 5ed, 2014) ............ 13, 15

PROFESSOR YVONNE BAATZ, MARITIME LAW 139 (3ed 2014) ...................................................... 27

ROBERT MERKIN, ARBITRATION LAW, 440 (Informa Professional, 2004) ..................................... 16

SIR GUENTER TREITEL, F.M.B. REYNOLDS, CARVER ON BILLS OF LADING 45 (Sweet & Maxwell,

2001) .............................................................................................................................................. 35

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

KENNY, TIME CHARTERS 367 (Informa Law, 7th ed., 2014) .................................................... 32, 37

THE NYPE OFF-HIRE CLAUSE AND THIRD PARTYINTERVENTION: CAN AN EFFICIENT

VESSEL BE PLACED OFF-HIRE? Vol. 33, No.2, April 2002, Journal of Maritime Law &

Commerce, 137 .............................................................................................................................. 20

WOODS HOLE OCEANOGRAPHIC INSTITUTION, MARINE FOULING AND ITS PREVENTION 3-5 (Bureau

of Ships, Navy Department) (1952) ............................................................................................... 24


vii

INTERNET SOURCES

Alberto Giubilini, Thomas Douglas, Hannah Maslen, Julian Savulescu, Quarantine, isolation and

the duty of easy rescue in public health, US National Library of Medicine National Institutes of

Health, (Apr. 28, 2019, 12:33AM), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6001516/ . 23

CDC, Emerging Infectious Diseases, Centre for Disease Prevention and Control, (Apr. 24, 2019,

10:25 PM) https://www.cdc.gov/vhf/ebola/about.html ................................................................. 20

CDC, Notes on the Interim U.S. Guidance for Monitoring and Movements of Persons with

Potential Ebola Virus Exposure, Centre for Disease Prevention and Control, (Apr. 28, 2019,

12:35AM), https://www.cdc.gov/vhf/ebola/exposure/monitoring-and-movement-of-persons-with-

exposure.html ................................................................................................................................. 23

Cl. 12 (2) (b) MERCHANT SHIPPING (SEAFARERS) (HEALTH AND SAFETY: GENERAL DUTIES)

REGULATIONS (Apr. 28, 2019, 12:26AM),

https://www.elegislation.gov.hk/hk/cap478C%21en.assist.pdf?FROMCAPINDEX=Y .............. 23

Stephen Grainger, Getting to the bottom of it, Maritime Risk International, June 2003, (Apr. 24,

2019, 02:252 AM), https://www.i-

law.com/ilaw/doc/view.htm?queryString=rijn&sort=date&sort=date&searchType=advancedsearch

&se=37&id=7660&searched=true ................................................................................................. 26

The Prevention of the Spread of Infectious Diseases Regulations (Cap. 141B) (the Regulations),

(Apr. 28, 2019, 12:26AM), https://www.elegislation.gov.hk/hk/cap141B!en .............................. 23

Trans-Lex Principle, (Apr. 28, 2019, 01:23AM), https://www.trans-lex.org/970012/_/waiver-of-

right-to-object/ ......................................................................................................................... 15, 16

WHO Updates Blueprint List of Priority Diseases, World Health Organization, (Apr. 28, 2019,

12:25AM), https://globalbiodefense.com/2018/02/12/who-updates-blueprint-list-of-priority-

diseases/ ......................................................................................................................................... 22

WHO, Emergencies preparedness, response, World Health Organization,

https://www.who.int/csr/sars/archive/2003_05_17/en/. ................................................................ 23


viii

ARBITRAL AWARDS

London Arbitration 10/00 .............................................................................................................. 26




ARTICLES

Yashar Nasirian, Revisions in the concept of commencement of laytime and demmurage- laytime

and demurrage clauses in international sale contracts, Free pratique and Quarantine, 31, Lund

University ...................................................................................................................................... 18


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 from West

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

The Vessel was delivered at West Coast Port on 29th March 2016. The loading of 8,600 metric tonnes

of English Breakfast Tea in 1kg jute bags packed in 1,720 5mt big bags of cargo was completed by

20th April 2016. The Vessel sailed from West Coast Port. Meanwhile on 18th April 2016 there was a

notification issued in the newspapers of West Coast, USA 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 from the place.

The Vessel sailed to Wahanda (Bao Kingdom) where it reached on 7th of May 2016. On this day, the

Vessel was detained by the Port authorities at Wahanda, for suspicion of crew members being

potential carriers of the Ebola virus. On 11th of May 2016, when the Port authorities boarded the

Vessel and undertook health inspection of the crewmen, they found multiple crew members

exhibiting symptoms of Ebola such as ‘high fever’. Accordingly, the Vessel was issued a quarantine

order for a minimum of 28 days. This detention led to the Vessel being held at anchorage and unable

to proceed to berth.

The Vessel stayed idle around the Port of Wahanda until it was issued a free pratique on 26th of June

2016. As the Vessel stayed idle for a period exceeding 30 days, its bottom got fouled and required

cleaning. However, such cleaning services were unavailable at the Wahanda port due to the muddy

water, charges and restrictions imposed by the government of Wahanda which disallowed such

underwater cleaning services. It was alternatively suggested by the RESPONDENT that they would


2

arrange for cleaning at North Titan Port, if the CLAIMANT decided to subsequently travel there, else

offered to pay a final lump sum amount of USD 30,000.

Around the time of discharge, it was discovered that CLAIMANT had entered into another fixture

whose delivery was due on 28th June 2016 which could not be completed as the Vessel was re-

delivered to CLAIMANT only on 30th June 2016. 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 RESPONDENT 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 charter party contract.

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

cargo was severely damaged due to the crew member opening the wrong valve, during the loading

operations at West Coast Port, Challaland. Having discovered that a substantial damage had been

caused to the cargo, the RESPONDENT informed the same to the CLAIMANT through an email i.e. a

notice of claim on the 7th July 2016 along with an attached Preliminary Survey Report. As the cargo

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

RESPONDENT asked for extension twice from the CLAIMANT through the mail dated 23rd May and 23rd

August 2017 which was duly accepted.

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

their arbitrator and served a notice of the same to the RESPONDENTS who thereafter appointed Capt.

Eric Masterson. Subsequent to this appointment, Ms. Mary along with Capt. Eric constituted a

Tribunal before which this matter is to be adjudicated. Claims and Counterclaims were brought forth

by both the parties and the the liabilities are to be determined.


3

ARGUMENTS ADVANCED

Argument 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 STRICTLY ENFORCEABLE

1. The agreement to arbitrate is a foundational stone of international arbitration.1 Cl. 80 of the

C/P which is the Arbitration clause, states that any dispute arising between the Owners and the

Charterers ‘shall be referred to three persons in London’ and the governing law for the same is to be

the English law.2 Intention of the parties can be reflected through the terms of the C/P itself since it

is a specifically negotiated agreement.3 The inclusion of ‘shall’ in the clause makes the composition

of a tribunal of three persons a mandatory requirement. In addition, the NYPE form, which is a set

of norms governing time charter parties, also incorporates reference being to three arbitrators.4 Thus,

upon strict construction, the tribunal ought to comprise of three arbitrators.

B. THE APPOINTMENT OF CAPT. ERIC MASTERSON IS VALID

2. Capt. Eric Masterson’s appointment should not be questioned because there was a valid notice

of his appointment sent to the parties concerned. The First Directions mail dated 30th October 2018

by Mary Walker confirmed the constitution of the tribunal through the words, ‘My co-arbitrator and

I have been appointed.’5 Mary Walker was given a copy of the C/P in her appointment email dated

15th October 2018.6 Thus, she was aware of the details of both the parties to the dispute. On 30th

October, when Ms. Walker sent the First Directions mail, she carbon copied Capt. Eric.7 This can be

1 NIGEL BLACKABY, CONSTANTINE PARTASIDES, ALAN REDFERN, AND MARTIN HUNTER, REDFERN & HUNTER ON INTERNATIONAL ARBITRATION 85 (Oxford University Press, 5ed, 2014). 2 Moot Scenario, 15. 3 CLARE AMBROSE, KAREN MAXWELL, MICHAEL COLLETT, LONDON MARITIME ARBITRATION 51 (Informa Publications, 4ed, 2018). 4 Cl. 54 NYPE Form, 2015. 5 Moot Scenario, 63. 6 Moot Scenario, 59. 7 Moot Scenario, 63.


4

possible only when the RESPONDENT itself sent the notice of appointment of their arbitrator to Ms.

Walker herself. She could not have under any circumstances, known about Capt. Eric’s appointment

unless she was so informed by them. Capt. Eric was never given any details about either the C/P or

Ms. Walker’s appointment as an arbitrator. Thus, the only possible communication of Capt. Eric’s

appointment as the 2nd arbitrator and his details, was known through a valid notice from the

RESPONDENT to Ms. Walker and/or the CLAIMANT.

3. Capt. Eric’s appointment was done within the specified period of 14 days from the notification

of appointment of Mary Walker, as per Cl. 54 of the NYPE Form.8 The Tribunal was validly

constituted within this stipulated time period of 14 days. The information regarding Mrs. Walker’s

appointment was conveyed to the RESPONDENT on the 16th of October 2018.9 Capt. Eric’s

appointment was confirmed on the 26th of October 2018.10 As has been proved above, the notice of

Capt. Eric’s appointment had been given to the parties before the First Directions mail. The Tribunal

was constituted on the 30th of October 2018 as per the First Directions mail.11 Thus, the RESPONDENT

having duly followed the procedure, the tribunal has been validly constituted and should not be

questioned.

C. THE CLAIMANT HAS WAIVED OFF THEIR RIGHT TO OBJECT TO MASTERSON’S

APPOINTMENT

4. The RESPONDENT contends that CLAIMANT is deemed to have waived off their right to object

to the appointment of Capt. Eric.12 An objection to an appointment must be notified as soon as

possible after it is known to the party, otherwise it risks losing their right to object.13 When a party

either does not do so, or does not do so within the time allowed by the arbitration agreement, it may

not object later to the Tribunal’s substantive jurisdiction.14 In common law jurisdictions, the concept

of waiver is established, and it intends that the parties to the arbitration should not “lie in ambush”

8 Id. 9 Moot Scenario, 61. 10 Moot Scenario, 62. 11 Moot Scenario, 63. 12 § 73(1), Arbitration Act, 1996; § 16, UNCITRAL Model Law on International Commercial Arbitration 1985. 13 Id. 14 § 73(1), Arbitration Act, 1996.


5

with an objection to await the decision of the tribunal.15 A party who has knowledge that any non-

mandatory provision of the applicable arbitration law or any requirement under the arbitration

agreement has not been complied with, must raise an objection without undue delay before it

proceeds with the arbitration. When an objection is raised at a later stage, the procedure is regarded

as inconsistent with previous behaviour. In such a situation, the party’s knowledge of non-compliance

can thus be regarded as a waiver of their right to object.16 In the present case, On 30th October 2018,

the notice of constitution of the Tribunal was given to both the parties.17 In addition, there were

exchange of claims and counterclaims on 9th November18 and 17th December19 respectively.

Moreover, the solicitors of both the parties met with both the arbitrators on 7th March 2019.20 In none

of the above three meetings, was there any question about Capt. Eric’s invalid appointment. They are

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

under § 31(1) of the Arbitration Act.21

5. Therefore, it is submitted that the CLAIMANT should have objected to the appointment of Capt.

Eric as soon as the Tribunal was formed on the 30th of October 2018 or even on multiple other

occasions when they had the opportunity to raise such an objection.22 This delayed action on part of

the CLAIMANT eventually led to their right to object being waived off.

D. MARY WALKER SHOULD NOT BECOME THE SOLE ARBITRATOR IN THIS DISPUTE

6. The language used in the C/P clause is a mandatory language, therefore three persons shall

be appointed as arbitrators. If Mary Walker is allowed to be appointed as the sole arbitrator in this

15 NIGEL BLACKABY, CONSTANTINE PARTASIDES, ALAN REDFERN, AND MARTIN HUNTER, REDFERN & HUNTER ON INTERNATIONAL ARBITRATION 285 (Oxford University Press, 5ed, 2014); The Island Territory v. Solitron Devices Inc. [1973] 356 F Supp 1(USDC, SDNY). 16 Trans-Lex Principle, (Apr. 28, 2019, 01:23AM), https://www.trans-lex.org/970012/_/waiver-of-right-to-object/. 17 Moot Scenario, 63. 18 Moot Scenario, 69. 19 Moot Scenario, 74. 20 Moot Scenario, 78. 21 § 31(1), Arbitration Act, 1996. 22 Moot Scenario, 62.


6

dispute, then this would be a clear violation of consent of parties which is an essential feature of

arbitration.23

7. In the mail dated 16th October 2018, the claimants gave the notice of appointment of Mary

Walker and stated, “in order to limit the cost of arbitration we invite you to accept Mary Walker as

the sole Arbitrator.”24 This mail cannot be construed as a notice because the CLAIMANT merely made

an offer to the RESPONDENT saying that in order to decrease the cost of arbitration they should allow

Ms. Walker to be the sole arbitrator. Accordingly, upon the strict interpretation of Cl. 80 of the C/P

and due to the invitation based nature of the mail, Ms. Walker cannot be the sole arbitrator in this

case.

ARGUMENTS ON MERITS OF THE CLAIM

II. THAT THE VESSEL WAS OFF HIRE FOR THE MENTIONED PERIOD

8. MV THANOS was detained at the anchorage after the arrival at the port of Wahanda on the 7th

of May 2016.25 The PSC suspected the crew of carrying Ebola Virus.26 Such detention unduly

delayed the performance of the charter service. The RESPONDENT contended the whole period of

detention from 7th May 2016 to 26th June 2016 to be off-hire.27

9. The Vessel is said to go off-hire on the conditions: That there was prevention of full working

of the Vessel [a], full working of the Vessel has been prevented due to one of the reasons mentioned

in the off-hire clause [b] The delay has been actually caused due to prevention of full working of the

Vessel [c]. In the current case, all the three conditions have been fulfilled to give rise to an off-hire

event.

A. THAT THE FULL WORKING OF MV THANOS HAS BEEN PREVENTED

23 NIGEL BLACKABY, CONSTANTINE PARTASIDES, ALAN REDFERN, AND MARTIN HUNTER, REDFERN & HUNTER ON INTERNATIONAL ARBITRATION 86 (Oxford University Press, 5ed, 2014). 24 Moot Scenario, 61. 25 Moot Scenario, 25. 26 Moot Scenario, 24. 27 Moot Scenario, 74.


7

10. MV THANOS was unable to perform the next operation required of her by the RESPONDENT,

which was to proceed to berth. Instead she was held at anchorage due to a quarantine order by the

PSC.28 Such a detention was not in the ordinary course of action. Full working of the Vessel is

prevented if it is unable to perform the next operation that the Charter service required of her.29 If the

next operation required of the Vessel is to sail at the discharge port and she is unable to do so, then

the Vessel is prevented from ‘full working’.30 Thus, this resulted in hindrance to the Vessel to proceed

to berth.31

11. The working of a Vessel may also be prevented because of third party interference.32 In

Laconian Confidence,33 it was held that, “the qualifying phrase ‘preventing the full working of the

Vessel’ does not require the Vessel to be inefficient in herself. A Vessel’s working may be prevented

by legal as well as physical means, and by outside as well as internal causes.”34 Here, the Vessel

was not granted free pratique by the PSC to proceed to berth. Pratique is a license for the master of a

Vessel to traffic in the ports of a given country, upon the lifting of quarantine or production of a clean

bill of health.35 Thus, the free pratique which was quintessential for the Vessel to proceed to berth at

the port of Wahanda was denied by the PSC.36 Therefore, the inability of the Vessel and its crewmen

to avail free pratique at the port of call, which is Wahanda, prevented the full working of the Vessel.37

12. The detention of the Vessel by the PSC is an external cause which was directed at MV

THANOS. Where the cause although ‘external’, is directed at or relates to a specific Vessel, it has to

be distinguished from cases of ‘external obstructions or impediments’ affecting shipping generally.38

In the former, the full working of the Vessel is prevented but it is not the same in the latter. In the

28 Moot Scenario, 24. 29 The Sig Bergesen D.Y. A/S v. Mobil Shipping and Transportation Co. – “The Berge Sund” [1993] 2 Lloyd’s Rep.453 (C.A.). 30 TS Lines Ltd v Delphis NV Delphis NV v. Ulrike F Kai Freese GMBH & Co KG– “The TS Singapore” [2009] 2 Lloyd’s Rep. 54; The Sig Bergesen D.Y. A/S v. Mobil Shipping and Transportation Co.- “The Berge Sund” [1993] 2 Lloyd’s Rep. 453. 31 Macieo Shipping Ltd. v. Clipper Shipping Lines Ltd. – “The Clipper Sao Luis” [2000] 1 Lloyd’s Rep. 645. 32 Belcore Maritime Corporation v. F.LLI. Moretti Cereali S.p.A– “The Mastro Giorgis” [1983] 2 Lloyd’s Rep. 66. 33 Andre & Cie v. Orient Shipping Rotterdam- “The Laconian Confidence” [1997] 1 Lloyd’s Rep. 139. 34 Id. 35Yashar Nasirian, Revisions in the concept of commencement of laytime and demmurage- laytime and demurrage clauses in international sale contracts, Free pratique and Quarantine, 31, Lund University; Pan Cargo Shipping Corp v. United States 234 F Supp. 623.629 (SDNY 1964). 36 Moot Scenario, 24, 81. 37 Moot Scenario, 9, Cl. 46. 38 Cosco Bulk Carrier Co Ltd v. Team Up Owning Co Ltd.- “The Saldanha” [2011] 1 Lloyd’s Rep. 187.


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present case, the Vessel was carrying sick crewmen suspected of being carriers of Ebola virus that

resulted in a specific action of quarantine by the PSC. The crew members are considered to be a part

of that Vessel.39 Therefore, the external cause that prevented the full working of the Vessel was

related to the particular Vessel in question which was carrying the ill crewmen suspected of Ebola

virus. Hence, the full working of the Vessel has been prevented.

13. Further, the CLAIMANT has a duty to provide the Vessel with an able crew to work her and to

perform the next operation required by the RESPONDENT. In the present scenario, the obtaining of

free pratique was no mere formality owing to the illness of the crew members who were reasonably

suspected of Ebola virus because of symptoms like ‘high fever’.40 There was a reasonable cause for

the PSC to conduct a careful inspection on board and subsequently declare quarantine of the Vessel

before the free pratique was issued.41 This led to a delay of the Charter service of around 50 days.

The Vessel had to comply with all safety and health regulations as mandated by Cl. 46 of the C/P.42

Since MV THANOS failed to comply with such a mandate, it was detained by the PSC which denied

issuance of free pratique to the Vessel. Therefore, the action of the PSC prevented the full working

of the Vessel.43

B. THAT SUCH FULL WORKING HAS BEEN PREVENTED BECAUSE OF ONE OF THE REASONS

MENTIONED IN THE OFF-HIRE CLAUSE

14. The Vessel was detained because many crewmen had high fever. High fever, being one of the

symptoms of Ebola, the Vessel was suspected of carrying the virus. As a result, the PSC suspected

the Vessel of spreading Ebola because of which it was quarantined.

15. Clause 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 PSC or their competent authority for

Vessel deficiencies… or by any other similar clause preventing the full working of the Vessel, the

39 The Sidermar S.A. v. Apollo Corporation – “The Apollo” [1978] 1 Lloyd’s Rep. 200. 40 Moot Scenario, 24. 41 Id. 42 Moot Scenario, 9, Cl. 46. 43 Moot Scenario, 9, Cl. 44.


9

payment of hire and overtime, if any, shall cease for the time thereby lost.’44 The RESPONDENT

submits that there was a deficiency of ‘officers or ratings’ (i) The detention by the PSC for Vessel

deficiencies (ii) Thus, the payment of hire should cease for the time thus lost.

C. FULL WORKING OF THE VESSEL HAS BEEN PREVENTED DUE TO DEFICIENCY OR DEFAULT

OF THE OFFICERS OR RATINGS

16. The whole crew had become disqualified from participating in the further prosecution of the

voyage. It is because they were suspected of being exposed to Ebola virus at the West Coast Port.

Subsequently, the entire crew was disqualified from working the Vessel at Wahanda port. Ebola

being a contagious disease, mere exposure to the virus or contact with an ill person is enough to make

someone a potential carrier of the disease.45 These crew members who were exposed to the virus

cease to be part of the Vessel’s ‘company beyond detention’ because they were no longer able to

provide their services as part of the Vessel to the RESPONDENT.46

17. The C/P requires the CLAIMANT to provide ‘the full complement of crew’. If the cause of loss

of time is deficiency of men, then the amount of hire shall not be payable, during the detention

period.47 If some crew members are ill, with some contagious disease, on board the Vessel, then it

exposes other crewmen also to the same disease. This disqualifies the whole crew onboard the Vessel.

It can be thus inferred that there is a constructive deficiency of “officers or ratings” in the Vessel.

This can be counted as an off-hire event. Therefore, the RESPONDENT submits that they are entitled

to a deduction of hire during the period the Vessel was detained at quarantine as a result of the illness

and infection of the crew.

a. Full working of the Vessel has been prevented due to ‘detention by PSC for Vessel

deficiencies’

44 Cl. 17, NYPE Form 2015. 45CDC, Emerging Infectious Diseases, Centre for Disease Prevention and Control, (Apr. 24, 2019, 10:25 PM) https://www.cdc.gov/vhf/ebola/about.html. 46Gow v. Gans Steamship Line (C.C.A.) 174 Fed. 215; John Weale, THE NYPE OFF-HIRE CLAUSE AND THIRD PARTYINTERVENTION: CAN AN EFFICIENT VESSEL BE PLACED OFF-HIRE? Vol. 33, No.2, April 2002, Journal of Maritime Law & Commerce, 137. 47Royal Greek Government v. Minister of Transport 1949 L.I.L. Rep. 228; Dunlop S.S. Co. v. Tweedie Trading Co., 162 F. 490,493 (S.D.N.Y. 1908).


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18. The CLAIMANT failed to maintain health and safety standards on the Vessel which is evident

from the fact that one or more crewman had high fever. As a result, the PSC quarantined the Vessel

to safeguard Wahanda port from the threat of Ebola virus. Cl. 1.2.11 of the Appendix 2 of IMO

Procedures for PSC,48 stipulates that ‘the inability to provide safe and healthy conditions on board

by ship or crew will come under detainable deficiencies.’ Detainable deficiencies are those

deficiencies in the Vessel which are sufficiently serious to justify detention by the PSC. Under Cl.

17 of NYPE 2015, ‘detention by PSC for Vessel deficiencies’ gives rise to an off-hire event.

Therefore, the quarantine of Vessel because of presence of Ebola threat on board will be an off-hire

event under the above-mentioned clause.

D. THAT THE ACTUAL DELAY HAS BEEN CAUSED DUE TO THE OFF-HIRE EVENT

19. The Vessel is off-hire when there is a loss of time for service required by the RESPONDENT

[1] that loss of time was due to the prevention of full working of the Vessel by an event mentioned

in the clause [2].49 “Loss of time” means interruption or delay in the performance of the service

immediately required.50 The RESPONDENT immediately required the Vessel to proceed to berth to

discharge the cargo. The PSC detained the Vessel from 7th May 2016 to 11th May 2016 to arrange for

the inspection of crewmen. Subsequently, the PSC quarantined the Vessel as it found some crewmen

with high fever. Overall, this resulted in the delay of 50 days to the Vessel to proceed to berth. The

Vessel was unable to start the next operation required by the RESPONDENT until free pratique was

issued. This delay wouldn’t have taken place in the first place, had the Vessel been able to show a

valid clean bill of health and procured free pratique from the PSC.51 The Vessel was not granted free

pratique due to ill crewmen on board. Therefore, there is an actual delay of 50 days to the Vessel due

to an off-hire event.

E. SUCH A DELAY WAS NOT CAUSED BY RESPONDENT’S FAULT

48Appendix 2, Guidelines for the Detention of Ships, A 27/Res. 1052, IMO A. 1052(27) Procedures for Port State Control. 49 Minerva Navigation INC v. Oceania Shipping AG - The “Athena” [2013] EWCA Civ 1723. 50 NYK Bulkship (Atlantic) NV v. Cargill International SA- The “Global Santosh” [2016] UKSC 20. 51The Sidermar S.A. v. Apollo Corporation – “The Apollo” [1978] 1 Lloyd’s Rep. 200.


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20. If the RESPONDENT was not at fault in the given circumstances, then it will be unreasonable

to expect them to pay hire for the period of detention during which they were deprived of the use of

the Vessel.52 Cl.44 of the Omega Rider Clauses53 stipulates that, ‘it is necessary for the Master,

Officers or crewmen to take the written consent of the RESPONDENT before having communication

with any shore or infected area.’ If any delay is caused by quarantine because the Vessel/crew came

in contact with an infected area, then the Vessel will be off-hire.

21. Intention can be gauged from the written provisions of the contract itself and unless there is

an ambiguity, the Courts will interpret only the literal meaning of the terminology used.54 The clauses

of the C/P ought to be construed in its literal sense, since it is a contract which is drafted by the

express consent of both the parties involved.55 The scope for interpretation of the term ‘written

consent’ should not be expanded since it is clear and unambiguous.

22. In the present case, Master, officers or crewmen of the Vessel had never taken the written

consent of the RESPONDENT before coming in contact with the West Coast Port which had an outbreak

of Ebola. They had not even taken the written consent of the RESPONDENT before boarding the Vessel.

This would be a fault on the CLAIMANT’S side.

F. THAT THE ACTION OF THE PSC WAS A REASONABLE ACTION

23. Given the graveness of the disease and the security reasons associated with it, the Vessel was

detained at anchorage for a long duration of time. The action of the PSC to detain the Vessel due to

the illness of crewmen was a reasonable action.

a. The Health Authorities at Wahanda were statutorily authorized to give quarantine

orders

52 The Orient Horizon, SMA 1709 (Arb. At NY 1982). 53 Moot Scenario, 9, Cl. 47. 54 KIM LEVISON, INTERPRETATION OF CONTRACTS 12 (Sweet & Maxwell, 5ed, 1989). 55 KIM LEVISON, INTERPRETATION OF CONTRACTS 12 (Sweet & Maxwell, 5ed, 1989).


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24. The purpose and aim of a quarantine order are to ensure that proper measures are taken to

investigate, eliminate or minimise the spread ashore of an infectious disease,56 on board the Vessel.

A quarantine order was issued because the authorities had a suspicion that an infectious disease

(Ebola) was present on board.57 It can be reasonably assumed that the whole ship including all its

crewmen were potential carriers, since many of them exhibited symptoms like ‘high fever’.58

25. “…conditions on board the ship are clearly hazardous to the health or safety of persons on

board the ship, the Authority…, may detain the ship until measures are taken to rectify those

conditions…”59 The detection of illness of the crewmembers was prima facie hazardous to the health

and safety of the persons on board the Vessel. Thus, the PSC’s indefinite detention of the Vessel until

rectification of such conditions stands justified and reasonable.

b. Quarantine orders are justified for contagious diseases which have the potential of

becoming a GLOBAL threat

26. Quarantine might be mandated for people who have been exposed to a disease and when

treatment for such a disease is not available.60 One reason in favor of quarantine and isolation is that

they can be very effective in protecting or restoring public health.61

27. When infectious diseases threaten public health, national and human security, quarantine or

isolation may be justified if it can be expected that they would be effective in preventing or containing

the contagions. This was a reasonable expectation of the Port Authorities when they issued the

detention order.62 Hence, quarantine and isolation are not only effective and justified in protecting or

restoring public health, but also, they can contribute to protecting human and national security.

56 WHO Updates Blueprint List of Priority Diseases, World Health Organization, (Apr. 28, 2019, 12:25AM), https://globalbiodefense.com/2018/02/12/who-updates-blueprint-list-of-priority-diseases/. 57 The Prevention of the Spread of Infectious Diseases Regulations (Cap. 141B) (the Regulations), (Apr. 28, 2019, 12:26AM), https://www.elegislation.gov.hk/hk/cap141B!en. 58 Moot Scenario, 24. 59 Cl. 12 (2) (b) MERCHANT SHIPPING (SEAFARERS) (HEALTH AND SAFETY: GENERAL DUTIES) REGULATIONS (Apr. 28, 2019, 12:26AM), https://www.elegislation.gov.hk/hk/cap478C%21en.assist.pdf?FROMCAPINDEX=Y. 60 CDC, Notes on the Interim U.S. Guidance for Monitoring and Movements of Persons with Potential Ebola Virus Exposure, Centre for Disease Prevention and Control, (Apr. 28, 2019, 12:35AM), https://www.cdc.gov/vhf/ebola/exposure/monitoring-and-movement-of-persons-with-exposure.html. 61 WHO, Emergencies preparedness, response, World Health Organization, https://www.who.int/csr/sars/archive/2003_05_17/en/. 62 Alberto Giubilini, Thomas Douglas, Hannah Maslen, Julian Savulescu, Quarantine, isolation and the duty of easy rescue in public health, US National Library of Medicine National Institutes of Health, (Apr. 28, 2019, 12:33AM), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6001516/.


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28. The action of the PSC of indefinite detention is reasonable not only because it aids in

protection of public health but also because it is a preventive measure from the disease spreading in

Bao Kingdom.

III. RE-DELIVERING THE VESSEL WITHOUT A CLEANED BOTTOM DID NOT

AMOUNT TO A BREACH OF THE CHARTERPARTY

29. The RESPONDENT’S act of re-delivering the Vessel without cleaning its bottom did not amount

to a breach of the Charterparty because: The RESPONDENT was ‘prevented’ from cleaning the Vessel

at Wahanda [A] Their act of re-delivering the Vessel with a 1-day re-delivery notice is protected by

Annexure 1 BIMCO Clause [B] The CLAIMANT failed to reach an agreement on the lumpsum amount

prior or latest on re-delivery [C] The CLAIMANT is estopped by virtue of the mail dated 9th June 2016

[D].

A. THE RESPONDENT WAS PREVENTED FROM CLEANING THE VESSEL AT WAHANDA

30. The RESPONDENT was willing to undertake the cleaning process. However, the then existing

events at the said Port ‘prevented’ them from undertaking the same at Wahanda,

31. Murky, low-visibility water or dirty, dark muddy water63 is a reason for not conducting the

cleaning operations of fouled hull bottoms.64 The water at Wahanda was muddy and the anchorage

was facing current complexities along with other issues.65 There were no cleaning services available

at the Wahanda Port particularly due to the ‘rare circumstances’ at the Port which did not exist in

the past. Wahanda Port Services denied availability of any services that offer hull cleaning operations.

They themselves suggested that such an activity be undertaken at another Port.66 In addition, such

cleaning services were also prohibited by the Government of Bao Kingdom.67

63 Moot Scenario, 26. 64 WOODS HOLE OCEANOGRAPHIC INSTITUTION, MARINE FOULING AND ITS PREVENTION 3-5 (Bureau of Ships, Navy Department) (1952). 65 Moot Scenario, 26. 66 Id. 67 Moot Scenario, 28.


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32. Thus, the RESPONDENT was ‘prevented’ from cleaning the ship, not due to orders of the

Claimant but due to the circumstances at the Wahanda Port, which couldn’t have been reasonably

anticipated.

B. THE RESPONDENT ACT OF PROVIDING A 1-DAY RE-DELIVERY NOTICE IS PROTECTED BY

ANNEXURE 1 BIMCO CLAUSE

33. The RESPONDENT shall give the CLAIMANT the following notices of the Vessel’s redelivery,

unless otherwise agreed: Minimum 30 followed by 20, 15, 10, 7, 5 and 3-days’ approximate notice

and 2 days’ definite notice of redelivery. All notices shall be consistent with the above agreed spread

of notices ‘except for circumstances beyond the Charterer’s control’.68

34. The Vessel having been detained for an unspecified period by the PSC, the period of release

was thus uncertain and couldn’t have been anticipated. The RESPONDENT, accordingly cannot be

reasonably expected to have known the day of release from detention, or the day when the re-delivery

of the Vessel would become feasible. Thus, the RESPONDENT’S act of not issuing an approximate

days’ notice within the above agreed spread of notice periods, falls within the exception of

‘circumstances beyond Charterer’s control’, since they themselves could not have known the

estimated date of re-delivery post completion of discharge of the cargo.

C. THAT THE CLAIMANT DID NOT REACH AN AGREEMENT ON THE LUMPSUM AMOUNT AS

SPECIFIED IN C/P CL. 83

35. The Rider Cl. 83, sub-clause (d) provides that if cleaning is not possible before redelivery,

the parties will agree on a lump sum payment in full and final settlement of the ‘Owner’s costs and

expenses’ related to the cleaning of the Vessel, either prior or latest on re-delivery.69

36. It is evident from the facts of the present case, that the same requirement was not satisfied.

The CLAIMANT abstained from agreeing on any lumpsum amount without conducting an inspection

68 Annexure 1, BIMCO Redelivery clause for Time Charter Parties, BIMCO. 69 Pagnan S.p.A. v. Tradex Ocean Transportation S.A. [1987] 2 Lloyd’s Rep. 342 (CA), at 350 (Bingham LJ).


15

of the fouled bottom.70 The CLAIMANT never acknowledged their proposal despite repeated

increments in the amount. Neither did they initiate any steps to negotiate on the requisite lumpsum

amount.71

37. The proposed lumpsum amount was not inadequate either since the final amount offered to

the CLAIMANT was 30,000USD. This amount was sufficient to cover the cleaning costs had the

cleaning taken place at the North Titan Port.

38. Moreover, the CLAIMANT undertook no steps to conduct any inspection and thus, neither

agreed on the lumpsum nor took any steps to agree on the same. Thus, they delayed the process of

determining the hull cleaning cost. Where the conduct of the CLAIMANT constitutes a willful failure

to investigate and remedy any hull fouling, this may in some circumstances amount to a separate

breach by the CLAIMANT.72

39. In the mail dated 9th June 2016, the CLAIMANT themselves proposed to arrange for inspection

and cleaning of the Vessel at the next convenient Port to which they subsequently retracted.73 This is

an evidence of an intentional delay on their part to determine the extent of hull damage and

subsequently the costs to be incurred in cleaning the bottom.

40. Despite there being no disagreement on the extent of hull fouling, the CLAIMANT alleged that

the ‘Charterer’s offer is not generous’. The intention of the RESPONDENT in proposing the lumpsum

was to reimburse only for the costs and expenses incurred by the CLAIMANT in cleaning the fouled

hull. Its purpose was not to unduly profit the CLAIMANT by proposing a ‘generous amount’.

41. In addition, the RESPONDENT in the usual course of business can only be liable for the normal

characteristics of the port whether they were known to them or not.74 The fouling of the hull, in the

present scenario was a ‘fortuitous’ event.75 This is because the fouling of the hull was on account of

70 Moot Scenario, 28. 71 Id at 29. 72 London Arbitration 10/00; Stephen Grainger, Getting to the bottom of it, Maritime Risk International, June 2003, (Apr. 24, 2019, 02:252 AM), https://www.i-law.com/ilaw/doc/view.htm?queryString=rijn&sort=date&sort=date&searchType=advancedsearch&se=37&id=7660&searched=true. 73 Moot Scenario, 28. 74 PROFESSOR YVONNE BAATZ, MARITIME LAW 139 (3ed 2014). 75 Cosmos Bulk Transport Inc. v. China National Foreign Trade Transportation Corporation- “The Apollonius” [1978] 1 Lloyd’s Rep. 53.


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both unexpected delay at the Port due to indefinite quarantine by the PSC,76 as well as due to

unexpected circumstances at the stated Port. These unexpected circumstances at the Port include

muddy water with current, charge and other complexities.77

42. Even if it is theoretically foreseeable as possibly occurring at a port, it is not sufficient to turn

“a rare event in the history of the port” into a normal characteristic of the port. Significant factors

such as the actual evidence relating to the past history of the port, the frequency (if any) of the event,

the degree of foreseeability of the critical combination should be considered.78 Accordingly, it cannot

be said that muddy water with other complexities at Wahanda was a normal characteristic of the Port.

There were cleaning services available at the Port in the past and they have closed only recently.79

This shows that such an occurrence at Wahanda was ‘a rare event in the history of the Port’. Thus,

the RESPONDENT could not have anticipated their liable for such rare occurrences which were

unexpected and not in the usual course of events.

D. THE CLAIMANT IS ESTOPPED BY VIRTUE OF THEIR MAIL DATED 9TH JUNE 2016

43. There should be an estoppel, either by convention or by promissory estoppel because both the

parties proceeded on the basis that the CLAIMANT,80 would undertake the inspection and cleaning

operation at the next convenient Port.81

44. The CLAIMANT’S subsequent conduct of retracting on those words would enforce the doctrine

of Estoppel. The RESPONDENT acted in accordance with the proposal and thus consented to pay

against the original invoice of the cleaning costs undertaken by the CLAIMANT.

E. THE RESPONDENT IS NOT UNDER AN OBLIGATION TO PAY THE CLAIMANT THE COSTS OF

HULL CLEANING

76 Moot Scenario, 24. 77 Id at 26, 28. 78 Arab Maritime Petroleum Transport Co. v. Luxor Trading Panama and Geogas Enterprise Geneva – “The Al Bida” [1987] 1 Lloyd’s Rep. 142. 79 Moot Scenario, 26. 80 London Arbitration 19/18. 81 Moot Scenario, 28.


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45. The RESPONDENT ought not to be held liable for the payment of the voyage amount of the

Vessel’s travel from Wahanda to South Island. Since the subsequent costs associated with cleaning

and undertaking the voyage to the South Island Port were a direct result of ‘detention by PSC’.82 The

indefinite detention order by the PSC resulted in idling of MV THANOS for over 30 days which led to

fouling of the hull’s bottom. Accordingly, the payment of hire for such an event, should cease to

operate. In addition, the bunkers used by the Vessel during this off-hire period and the cost of

replacing the same shall be for the CLAIMANT’S account and therefore deducted from hire. Moreover,

even for the time lost on account of underwater cleaning or repair, the payment of hire will cease for

the said time.83

46. In addition, the Vessel’s voyage to South Island port was contrary to the RESPONDENT’S

orders or directions, since such a journey was undertaken after completion of the C/P itself. For the

completion of such a non-contractual action, the hire ought to be suspended from the time of this

deviation until she’s repositioned from where another voyage can commence.

a. The Respondent will reimburse only the hull cleaning expenses as would’ve been

charged, had they undertaken the voyage to North Titan Port instead

47. Since there had been no agreement on the lumpsum amount and the RESPONDENT had also

been prevented from cleaning the Vessel at Wahanda, they were absolved of their liability to clean

the Vessel. Accordingly, even if the RESPONDENT is asked to pay, they cannot be charged higher than

the expenses they would’ve been charged for, had the cleaning taken place at the North Titan Port

itself.

48. It is evident from the photographs, the bootop area of the Vessel had not been damaged.84

The South Island Port cleaning authorities charged an additional 13,000USD for cleaning the bootop

of the Vessel.85 In the present case, it was an unreasonable expense since there was no evident damage

82 Cl. 15, NYPE Form 2015. 83 Id. 84 Moot Scenario, 84. 85 Moot Scenario, 50.


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to that portion of the Vessel. Accordingly, the RESPONDENT cannot be held liable for extraordinary

expenses merely because the CLAIMANT undertook a voyage to the South Island Port.

b. The CLAIMANT’S claim for compensation on account of non-performance of the

subsequent fixture does not hold valid

49. The CLAIMANT despite being aware of the occurrence of hull fouling due to the prolonged

stay of the Vessel at Wahanda, entered into a subsequent C/P without informing the RESPONDENT

about the same in advance.86 In such circumstances, the CLAIMANT bears the direct responsibility

arising from a breach or non-fulfillment of mandate of subsequently contracted C/P.87

50. The RESPONDENT could not have reasonably assumed that the CLAIMANT would enter into a

subsequent Chartering Party Contract while the Vessel was still quarantined at Wahanda. In light of

the situation prevalent at the Wahanda Port, it was not foreseeable that the CLAIMANT, without surety

of a free pratique being issued on a particular date, enter into a subsequent C/P.

51. It is customary that the CLAIMANT enters in subsequent C/P contracts only when an

approximate notice of redelivery has previously been issued.88 In the present case, the CLAIMANT

proceeded with signing another C/P contract despite not being previously notified by the

RESPONDENT of an approximate date of redelivery. The RESPONDENT was informed about this

contract only at a subsequent date.89 Thus, the CLAIMANT acted against the generally accepted norms

and principles of C/P contracts.

52. Even if the type of loss through the loss of the subsequent fixture is foreseeable, the

RESPONDENT could not have reasonably understood that they were assuming responsibility for the

risk of loss on the follow-on fixture. They had no control or knowledge as to its terms, duration or

rate.90

86 Action Aviation Inc. v. Bottigliere di Navigazione S.p.A.- “The Kitsa” [2005] 1 Lloyd’s Rep. 432. 87 London Arbitration 18/14. 88 The Transfield Shipping v. Mercator Shipping- “The Achilleas” [2007] 1 Lloyd’s Rep. 432. 89 Moot Scenario, 34. 90 Slyvia Shipping Co. Ltd. v. Progress Bulk Carriers Ltd- “The Slyvia” [2010] 2 Lloyd’s Rep. 81.


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53. Effect has to be given to the parties’ intentions as to their risk exposure.91Anticipated profits

from a lost fixture will not generally be recoverable unless at the time of contracting a Respondent

had detailed knowledge of an Claimant’ next fixture and in this case, losses could be recoverable as

special knowledge and/or be considered an assumed contractual risk.92 The RESPONDENT cannot be

expected to repay the anticipated profits from the lost fixture because they did not possess any

detailed knowledge of the subsequent fixture or any special knowledge of the assumed contractual

risk.

F. THAT THE RE-DELIVERY OF THE VESSEL WAS NOT LATE SINCE IT IS PROTECTED BY THE

‘WITHOUT GUARANTEE’ PROVISION IN THE TIME CHARTER TRIP

54. Where a TCT stipulated a “duration about 70-80 days without guarantee”, the CHARTERER

was only under an obligation to make the estimate of the duration of the trip in good faith and not on

a reasonable basis. The trip took over 103 days.93 The Tribunal found that, as the OWNER had alleged,

the CHARTERER made the estimate negligently, but it was never alleged that the CHARTERER did not

have a genuine belief in the estimate and therefore they were not liable.94

55. Likewise, in the present fact scenario, the extension of the stipulated time period of 50-55

days ‘without guarantee’ would not make the RESPONDENT liable for the delay in re-delivery of the

Vessel thus caused. This is primarily because they estimated the completion of the trip within the

stated time in good faith and that fact has not been disputed.

Arguments on Merits of the Counterclaim

IV. THE CLAIMANT IS LIABLE TO INDEMNIFY THE RESPONDENT FOR CARGO

DAMAGE

91 Hadley v. Baxendale [1854] EWHC J70. 92 Maestro Bulk Ltd. v. Cosco Bulk Carrier Co. Ltd- “The Great Creation” [2015] Lloyd’s Rep. Plus 11. 93 The Lipa [2001] 2 Lloyd’s Rep. 17, Andrew Smith J., 21. 94 The Lendoudis Evangelos II, 75 [1997] 1 Lloyd’s Rep. 404.


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56. The CLAIMANT is liable to indemnify the RESPONDENT to the tune of USD 1,00,000 for the

damaged English Breakfast Tea because: (A) The B/L has been incorporated in the C/P therefore

ICA will be applicable (B) The nature and effect of the information provided in the notice to the

claimant is sufficient to be constituted as a valid cargo claim for the purposes of Cl. 6 of the ICA (C)

CLAIMANT did not exercise due diligence to make Vessel seaworthy.

A. THE B/L HAS BEEN INCORPORATED

57. B/L explicitly mentioned details that included the name of the carrier, Merchant, Vessel’s

name, place and date of fixture of C/P, loading and discharging port.95 In the Elpa,96 it was held that

B/L that fails to confirm with the mate’s receipts is not unauthorized and should not be regarded as

unauthorized for the purposes of the agreement.

58. The only requirement is that (a) the cargo claim must be under the bill and (b) it must contain

HVR or the equivalent.97 Both of these requirements have been fulfilled and hence the B/L is

authorized. Irrespective of the manner in which the claim is brought by the Receivers; ICA is

applicable only when there is a true cause of evidence of cargo damage.98

59. In the instant case, the RESPONDENT being the contractual carriers paid the Receivers

damages which amounted to 2000 metric tonnes of cargo at US$ 50 per kg.99 The terms of the identity

of the carrier clause were overridden by the clear identification of Omega Chartering Ltd. as the

contracting party on the front portion of the bill.100 Since the identity of the carrier is mentioned on

the front of the B/L clearly and unambiguously, it will override the contrary pre-printed terms and

conditions written on the reverse side of B/L.101 It was held in The Hector,102 “The front of the B/L

mentioned that the time CHARTERERS were the contractual carriers. This was unambiguous and thus,

overrode the prima facie rule that bills signed by or on behalf of the Master are Owner’s bills.”

95 Moot Scenario, 47. 96 Transpacific Discovery S.A. v. Cargill International S.A. – “The Elpa” [2001] 2 Lloyd’s Rep. 596. 97 Id. 98Newcastle Protection and Indemnity Association Ltd. v. Assurance Forningen Gard Gjensidig – “The Labrador” [1998] 2 Lloyd’s Rep. 387. 99 Moot Scenario, 82. 100Homburg Houtimport B.V. v. Agrosin Private Ltd. and Others - “The Starsin” [2003] 1 Lloyd’s Rep. 571. 101 Id. 102International Packers London Ltd. v. Ocean Steam Ship Company Ltd. – “The Hector” [1998] 2 Lloyd’s Rep. 287.


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However, in the present case, CLAIMANT being the actual carrier is contractually obliged to

indemnify the RESPONDENT under the C/P as the B/L has been duly authorized in accordance with

Clause 4(a)(1) of ICA.103

a. That the HVR are applicable for cargo claim

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

the local laws104 and Challaland resembles the laws of USA.105 It is known from the Clause

paramount that the US COGSA Rules incorporates the HVR. As US COGSA rules are applicable in

this case, hence HVR will also be applicable.106

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

61. Since HVR are applicable in the particular case, there must be a valid cargo claim made within

24 months of the date of delivery of the cargo or the date the cargo should have been delivered, in

order to invoke Cl. 6 of the ICA.107 The claim so made under this clause must be a sufficient written

notification to constitute a valid cargo claim.108

62. The notice of claim as required by Cl. 6 of ICA should give the recipient sufficient

information as to the claim which he has to face.109 Even though the notice itself may not identify the

claim, it will continue to be a good notice if it is clear from the context in which it is given that it

intended to refer to a particular dispute.110 In the particular instance, the RESPONDENT on the 7th of

July 2016, through their mail had provided the CLAIMANT ‘sufficient’ information in the Mekon

Survey Report. They had provided the cause of cargo damage, the possible extent of damage to the

cargo and the anticipated amount for which the CLAIMANT would be liable. Such a liability as per

103A/S Iverans Rederei v. KG MS Holtencruiser Seeschiffahrtsgesellschaft m.b.H. & Co. and Others– “The Holtencruiser” [1992] 2 Lloyd’s Rep. 378. 104 Moot Scenario, 4. 105 Moot Scenario, 81. 106 TERENCE COGHLIN, JOHN D. KIMBALL, ANDREW W. BAKER, THOMAS H. BEDLKNAP, JULIAN KENNY, TIME CHARTERS 367 (Informa Law, 7th ed., 2014). 107 M.H. Progress Lines SA v. Orient Shipping Rotterdam BV and other-” The Genius Star” 1 [2012] 1 Lloyd’s Rep. 222. 108 Cl. 6, ICA, NYPE Agreement, 1996 (as amended 1 September 2011). 109 MICHAEL J. MUSTIL AND STREWART C. BOYD, COMMERCIAL ARBITRATION (1999), 205. 110Court line Ltd v AKT Gotaverken– “The Halcyon the Great” [1984] 1 Lloyd’s Rep. 283; Bremer HandelgesellschaftmbH v RaffeisenHauptgenossenschafteG [1982] 1 Lloyd’s Rep. 434.


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the Report would be a substantial one.111 As the amount was still in the process of ascertainment, it

would have been impossible for the RESPONDENT to provide the exact amount of the cargo damage.

The Survey Report highlighted that they would have to incur a substantial amount, as the market

price of this particular grade of tea, was between US$60 and US$65 per kilo.112 At the time, the

notice was given it is not necessary for the claim to be fully quantified or particularized.113

63. The RESPONDENT submits that a contractual limitation clause does not mean a precisely

formulated claim with full details.114 It must be such a notice as will enable the party to whom it is

given to take steps to meet the claim by preparing and obtaining appropriate evidence for that

purpose.115 One therefore has to consider the nature of the claim in writing, addressed on behalf of

the RESPONDENT to the CLAIMANT so far as a claim for an indemnity is concerned. Therefore, relying

on the same principle of law, the RESPONDENT seems to have fulfilled their duty by notifying the

CLAIMANT as to the possible claim.

a. The Cargo Claim had not been settled under the B/L

64. Cl. 6 of ICA states that the written notification of the cargo claim shall if possible, include

details of the contract of carriage which includes the B/L. It is also contended that the RESPONDENT

shall be discharged from all liability in respect of any claim which CLAIMANT may have made under

the C/P unless a claim in writing has been presented by the Receivers to RESPONDENT, together with

all supporting documentation substantiating each and every constituent part of the claim, within the

completion of discharge of the cargo carried.116 It is only when the RESPONDENT got the entire details

that they furbished it to the CLAIMANT which was during the course of arbitration.117

65. The ICA sets out the relevant notice obligation and time bar for providing such notice. The

time bar for commencing such proceeding under the Limitation Act 1980 is the same as that

111 Moot Scenario, 46. 112 Id. 113Court line Ltd v AKT Gotaverken– “The Halcyon the Great” [1984] 1 Lloyd’s Rep. 283; Bremer HandelgesellschaftmbH v Raffeisen HauptgenossenschafteG [1982] 1 Lloyd’s Rep. 434. 114 Forrest v. Glasser [2006] 2 Lloyd’s Rep. 392. 115 A/S Rendal v Arcos Ltd [1937] 58 Lloyd’s Law Report 287. 116 National Shipping Co. of Saudi Arabia v. BP Oil Supply Company- “The Abqaiq” [2012] 1 Lloyd’s Rep. 18. 117 Moot Scenario, 81.


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mentioned under the English law.118 And this is calculated as when the underlying cargo claim is

properly settled and paid.119 It is therefore argued that as the claim had not been settled with the

Receivers in the first place, providing B/L would have not served any purpose.

C. THE CLAIMANT SHALL INDEMNIFY RESPONDENT IN ACCORDANCE WITH CL. 8(A) OF ICA

66. That the claim arising out of unseaworthiness will continue to be subjected to 1984 ICA even

if the B/L is antedated or not been caused in accordance with the mate’s receipt.120

a. The Ship was not seaworthy in accordance with the HVR

67. Article III, rule 1 of the HVR imposes a duty on a 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.121 MV THANOS was delivered to the RESPONDENT on March 29, 2016.122 The RESPONDENT

contend that the CLAIMANT breached their obligation to exercise due diligence before and at the

commencement of the voyage. The HVR apply to a CoC from the time at which the cargo is loaded

onto a Vessel.123

68. The CLAIMANT failed to ensure that the Master and the crew were competent to deal with

ballasting operation which ensures the stability of MV THANOS. As for a ship to be seaworthy, its

crew and Master should be competent and sufficient for the purpose of any voyage.124 The

undertaking of seaworthiness is not only limited to the physical state of the Vessel, but it also extends

to the competency of her Master and crewmen, and the adequacy of her equipment and stores.125 In

Farrandoc, the plaintiff argued that the defendant did not exercise “due diligence” in order to make

ship seaworthy as the crew of the ship was incompetent and shipowner did not enquire in detail into

the incompetency of the crew. In the instant case, since the Vessel started its operation on 1st March

118 Limitation Act 1980, Chp. 58. 119 London Arbitration 32/04. 120 Transpacific Discovery S.A. v. Cargill International S.A. – “The Elpa” [2001] 2 Lloyd’s Rep. 596. 121 Article III, Rule 1(a), Hague-Visby Rules, 1968. 122 Moot Scenario, 66. 123SIR GUENTER TREITEL, F.M.B. REYNOLDS, CARVER ON BILLS OF LADING 45 (Sweet & Maxwell, 2001). 124Alfred C Toepfer Schiffahrtsgesellschaft mbH v. Tossa Marine Co. Ltd. – “The Derby” [1985] 2 Lloyd’s Rep. 325, 333. 125Framlington Court [1934] AMC 272.


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2016,126 it can be reasonably construed that CLAIMANT did not inquire into the competency of the

crew in such a short span of time. Moreover, according to Mekon Surveyor’s report, only the

ballasting system was in order. Even if the CLAIMANT would have made enquiry of the crew, a proper

enquiry would entail questioning the crew, interviewing him, asking why he left his previous job.127

In fact, a crew can be technically incompetent even if it has performed adequately for years.128

69. The Vessel was new which started its operation only from the 1st March 2016, the C/P in

question was in all possibility only the second C/P as the crew was discharging goods at West Coast

which was supposed to be completed on 18th March 2016. The crew did not have enough time to get

familiar with the Vessel which made them specifically incompetent even if they were not generally

incompetent.129 Cl. 64 of C/P explicitly mentions that MV THANOS is capable of ballasting number 4

hold.130 Such specification should have been made familiar to the crew and the Master. Since it was

not communicated as required, the damage to the cargo occurred due to improper usage of the

ballasting system.131 Hence, the Vessel was incompetent, and the CLAIMANT failed to exercise due

diligence to make the Vessel seaworthy. Therefore, they are liable to indemnify the RESPONDENT

100% cargo claim according to clause 8(a) of the C/P.

b. Alternatively, the CLAIMANT shall indemnify the RESPONDENT under Cl. 8(b) of the ICA

70. The addition of the word “and responsibility” prima facie transfers the liability for loading to

the CLAIMANT.132 Cl. 64 of the C/P explicitly casts a duty on the Master at his discretion to conduct

all ballasting/deballasting operations having due regard to stability and seaworthiness of the

Vessel.133 Moreover, CLAIMANT guarantees that the Vessel will always be maintained in safe

condition during ballasting operation.134 The Master being an agent of the CLAIMANT will hold them

126 Moot Scenario, 1. 127Owners of Cargo Lately Laden on Board the Makedonia v. Owners of the Makedonia – “The Makedonia” [1962] 1 Lloyd’s Law Report 316. 128Homburg Houtimport B.V. v. Agrosin Private Ltd. and Others - “The Starsin” [2003] 1 Lloyd’s Rep. 571. 129Roger White, The Human Factor in Unseaworthiness Claims, 225-226; Seaboard Offshore Ltd. v. Secretary of State for Transport- “The Safe Carrier” [1994] 1 WLR 541. 130 Moot Scenario, 13. 131 Moot Scenario, 46. 132The A B Marintrans v. Comet Shipping Co. Ltd. – “The Shinjitsu Maru No. 5” [1985] 1 Lloyd’s Rep. 568. 133 Moot Scenario, 12. 134 Id.


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vicariously liable for all cargo operation whether or not falling “within the master’s province”.135

The Mekon Survey Report mentions that the cause of the damage was negligence of the crewman in

opening the wrong valve,136 and the phrase “at Charterer’s risk” will not normally be effective to

transfer responsibility away from the CLAIMANT in a case where they or their crew are negligent.137

The RESPONDENT’S obligation to load, stow and discharge is that of reasonable care, the RESPONDENT

does not need to supervise loading and unloading or to warn of open and obvious conditions.138

Hence, this shows the causative unseaworthiness which therefore entitles the RESPONDENT to 50%

contribution of the damage.139

135MSC Mediterranean Shipping Co. SA v. Alianca Bay Shipping Co. – “The Argonaut” [1985] 2 Lloyd’s Rep. 216. 136 Moot Scenario, 46. 137Exercise Shipping Co. Ltd. v. Bay Maritime Lines Ltd. – “The Fantasy” [1991] 2 Lloyd’s Rep. 391. 138Dahlen v. Gulf Crews, [2002] AMC 566. 139TERENCE COGHLIN, JOHN D. KIMBALL, ANDREW W. BAKER, THOMAS H. BEDLKNAP, JULIAN KENNY, TIME CHARTERS 377 (Informa Law, 7th ed., 2014).


x

REQUEST FOR RELIEF

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

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

b. declaration that the Vessel was off-hire during the period of 7th May to 26th June (II);

c. declaration that RESPONDENT is not responsible for the breach of the charter party. Even if

found liable, then the liability would be limited to the extent of USD30,000 (III);

d. an award of 100% indemnification of cargo claim and if found liable then also 50%

indemnification (IV);

e. an award for interest @5% compounded on the sums decided pursuant to § 49(3) (b) of

Arbitration Award;

f. any other relief as the Tribunal deems fit.