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TEAM NUMBER 03
MEMORANDUM for THE CLAIMANT
16TH INTERNATIONAL MARITIME LAW ARBITRATION MOOT, 2015
WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCES
MEMORANDUM FOR WESTERN TANKERS INC.
IN THE MATTER OF AN ARBITRATION HELD AT MELBOURNE, AUSTRALIA:
ON BEHALF OF:
WESTERN TANKERS INC.
CLAIMANT/OWNER
AGAINST
LDT PTE
RESPONDENT/CHARTERER
TEAM NO. 3
ANKITA PARASAR
SHAILJA AGARWAL
ADYA GARG
GUNCHA DHIMAN
MEMORANDUM for THE CLAIMANT
TEAM NUMBER 03 -Table of Contents-
MEMORANDUM for THE CLAIMANT |ii
TABLE OF CONTENTS
T A B L E O F C O N T E N T S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i i
L I S T O F A B B R E V I A T I O N S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
I N D E X O F A U T H O R I T I E S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v i i
Q U E S T I O N S P R E S E N T E D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x i i i
S T A T E M E N T O F F A C T S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x i v
A R G U M E N T S P R E S E N T E D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. THE ARBITRAL TRIBUNAL HAS THE JURISDICTION TO DETERMINE THE MATTER.
...............................................................................................................................1
A. THE PARTIES INTENDED LONDON TO BE THE ARBITRAL SEAT FOR THEIR PROCEEDINGS.
…………………………………………………………………………………….1
B. EVEN IF THE COURT ACCEPTS THE AMENDMENT, THE ARBITRAL PROCEEDINGS CANNOT
BE ENFORCED ................................................................................................................ 3
II. THE ARBITRAL TRIBUNAL CAN ARBITRATE THE CLAIM OF TORT OF FRAUD. .... 4
A. THE PHRASE “DISPUTES ARISING OUT OF THE CHARTER” CAN BE EXTENDED TO COVER
TORTIOUS CLAIMS. ........................................................................................................ 4
B. THERE IS A CLOSE CONNECTION BETWEEN THE TORT OF FRAUD AND THE C/P
AGREEMENT ................................................................................................................. 5
III. THE RESPONDENTS HAVE COMMITTED THE TORT OF FRAUD ........................... 6
A. RESPONDENTS AND THEIR AGENTS MADE UNTRUE AND DISHONEST REPRESENTATIONS 6
1. Respondents made untrue and dishonest representations .................................. 6
2. ASA2, on behalf of the Respondents, made untrue and dishonest representations 7
a. The representations made by ASA2 were untrue and dishonest ................. 8
TEAM NUMBER 03 -Table of Contents-
MEMORANDUM for THE CLAIMANT |iii
b. ASA2’s representation was ratified by the Respondents so as to be liable for
them………………………… ............ …………………………………………………8
B. THE REPRESENTATIONS WERE MADE WITH THE INTENTION TO BE RELIED UPON .... 10
C. THE REPRESENTATIONS WERE RELIED UPON BY THE CLAIMANTS .......................... 11
D. THE CLAIMANTS SUFFERED DAMAGES DUE TO THE RELIANCE ............................... 11
IV RESPONDENTS HAVE COMMITTED BREACH OF CONTRACT BY FAILING TO PAY THE
HIRE AMOUNT WHICH BECAME DUE ON JULY 03, 2014. ............................................. 12
A. ON THE TERMS OF THE CHARTERPARTY, HIRE BECAME DUE AND OWING TO THE CLAIMANT
ON JULY 03, 2014. ...................................................................................................... 12
B. IN ANY EVENT, THE VESSEL WAS NOT OFF-HIRE FROM JULY 04, 2014. .................. 13
1. The Master did not commit any breach of orders and/or neglect of duty ........ 13
2. Alternatively, there was no loss of time caused to charterers. ......................... 14
3. In arguendo, the Claimants cannot rely on the Off-hire clause as the loss of time was a
result of the Charterers’ fault. ................................................................................. 15
C. THE CHARTERPARTY WAS NOT FRUSTRATED DUE TO ANY REASON WHATSOEVER. 17
V THE CLAIMANTS HAVE NOT BREACHED THE CHARTERPARTY AS THEY PROVIDED A
VESSEL THAT WAS FIT FOR SERVICE, AS IS REQUIRED BY THE CHARTERPARTY. ..... 18
A. THE MASTER WAS NOT INCOMPETENT AS HE FOLLOWED THE INSTRUCTIONS OF THE
RESPONDENTS. ........................................................................................................... 19
B. THE MASTER DID NOT FAIL TO FOLLOW ANTI-PIRACY PRECAUTIONS AS REQUIRED BY THE
CHARTERPARTY AND/OR INDUSTRY PRACTICE RELATING TO WEST AFRICA............... 20
VI. THE CLAIMANTS HAVE NOT BREACHED THEIR DUTY AS A BAILOR. ................. 21
A. PIRACY IS A FORCE MAJEUR EVENT ........................................................................ 21
B. IN ANY CASE, PIRACY IS EXCEPTED UNDER THE HVR .............................................. 21
TEAM NUMBER 03 -Table of Contents-
MEMORANDUM for THE CLAIMANT |iv
1. Piracy was the result of an act, neglect, or default of the master, mariner, pilot, or the
servants of the carrier in the navigation or management of the ship ...................... 22
2. The act of piracy was without any fault of the carriers .................................... 22
P R A Y E R ..................................................................................................................... 23
TEAM NUMBER 03 -List of Abbreviations-
MEMORANDUM for THE CLAIMANT |v
LIST OF ABBREVIATIONS
All ER
Art
Bing NC
BIMCO
BMP4
Ch.
Charter
Charterers
Cl
Claimants
C/P
Edn
ETA
EWCA (Civ)
F.2d
F.3d
Factsheet
FCA
Hague- Visby Rules/ HVR
All England Law Reports
Article
Bingham New Cases
Baltic and International Maritime Council
Best Management Practices for Protection
Against Somali Based Piracy
Law Reports Chancery
Charterparty
LDT PTE
Clause
Western Tankers Inc
Charterparty
Edition
Estimated Time of Arrival
Court of Appeal (Civil Division)
Federal Reporter, 2nd Series
Federal Reporter, 3rd Series
IMLAM Moot Scenario 2015
Federal Court of Appeal
Protocols to the International Convention for
the Unification of Certain Rules of Law
relating to Bills of Lading (Brussels, 25
TEAM NUMBER 03 -List of Abbreviations-
MEMORANDUM for THE CLAIMANT |vi
i.e.
ICSID
KB
Lloyd's Rep
mt
NYPE
Owners
Para
P & I
QBD
Respondents
s
SGCA
SGHCR
ST4
Tul Mar LJ
UKHL
v/l
W.L.R
August 1924
That is
International Centre for Settlement of
Investment Disputes
Law Report King’s Bench Division
Lloyd's Law Reports
metric tonnes
The New York Produce Exchange 1946
Western Tankers Inc.
Paragraph
Protection and Indemnity insurance
Law Reports Queen's Bench Division
LDT Pte
Section
Singapore Court of Appeals
Singapore High Court
Shell Time 4
Tulane Maritime Law Journal
United Kingdom House of Lords
Vessel (“Western Dawn”)
Weekly Law Reports (UK)
TEAM NUMBER 03 -Index of Authorities -
MEMORANDUM for THE CLAIMANT |vii
INDEX OF AUTHORITIES
Treaties and Conventions
Protocols to the International Convention for the Unification of Certain Rules of Law relating
to Bills of Lading (Brussels, 25 August 1924).……………………….23, 24
International Arbitral Awards
In The Treana, SMA 2929 (Arb. at N.Y. 1992) ........................................................... 13
The Dagny Skou, SMA 2416 (Arb. at N.Y. 1987........................................................ 13
The Thekos, SMA 2253 (Arb. at N.Y. 1986). ............................................................. 13
Municipal Cases
Aggeliki Charis Compania Maritima SA v Pagnan SpA (The Angelic Grace) [1995] 1
Lloyd’s Rep 87 ........................................................................................................... 4
Aoetearoa International Ltd v Westpac Banking Corp. [1984] 2 N.Z.L.R. ................... 9
Armagas Ltd v Mudogas S.A. (The Ocean Frost) [1986] AC 717 .............................. 11
Bank Line v Arthur Capel, [1919] AC 435 ................................................................. 18
Bedford Insurance Co. Ltd v Institutio de Resseguros do Brasil [1985] Q.B. 966 ....... 9
Berge Sund, The—Sig Bergesen D.Y. A/S v Mobil Shipping and Transportation Co. [1993] 2
Lloyd’s Rep 453 (C.A.) ..................................................................................... 16, 17
Bird v Brown [1850] 4 Exch. 786 at 798 ....................................................................... 9
Blyth v Birmingham Waterworks [1856] 11 Ex R 781 ............................................... 21
Briess v Woolley [1954] 2 W.L.R. 832 ......................................................................... 9
Brown v Jenkinson; [1957] 2 QB 621 ......................................................................... 11
Burrows v Rhodes [1899] 1 QB 816............................................................................ 12
Canadian Pacific (Bermuda) Ltd v Canadian Transport Co Ltd (The HRMacmillan) [1974] 1
Lloyd’s Rep 31 ......................................................................................................... 16
TEAM NUMBER 03 -Index of Authorities -
MEMORANDUM for THE CLAIMANT |viii
Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] 157 FCR 45.......... 5
Czech v General Steam Co. [1867] L. R. 3 C. P. 14 .................................................... 23
Darlington Futures Ltd v Delco Australia Pty Ltd [1986] 161 CLR 500 ...................... 2
Davis Contractors Ltd. v Fareham U.D.C [1956] 2 All E.R.145 (H.L.). ..................... 18
Derry v Peek [1889] 14 App.Cas. 337 ........................................................................... 7
Deutsche Ost- Afrika- Linie v Legent Maritime (The Marie H) [1998] 2 Lloyd’s Rep 71 17
Dodds v Walker [1980] 1 W.L.R. 1061 ....................................................................... 13
Edgington v Fitzmaurice [1885] 29 Ch.D. 459........................................................ 7, 11
Empressa Exportadora De Azucar(CUBAZUCAR) v Industria Azucarera Nacional SA
(IANSA) (The Playa Larga and Marble Islands) [1983] 2 Lloyd’s Rep 171 ............ 4
Fiona Trust v Primalov [2007] UKHL 40...................................................................... 4
Firth v Staines [1897] 2 QB 70 ...................................................................................... 9
Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways(1996) 39 NSWLR 160 . 5
Freeman v Reed [1863] 4 B. & S. 174 ......................................................................... 13
Geipel v Smith [1872] L.R. 7 Q.B. .............................................................................. 18
Glynn v Margetson & Co. [1893] A. C. 351 ............................................................... 16
Instituto Cubano De Estabilizacion Del Azucar v The Ss Theotokos 155 F. Supp. 945 (1957).
.................................................................................................................................. 10
International Packers London Ltd. V Ocean Steam Ship Co. Ltd. [1955] 2 Lloyd’s Rep 719,
QB. ........................................................................................................................... 21
J.E.B. Fasteners Ltd v Marks Bloom & Co [1983] 1 All E.R. 583 at 589................... 11
Jonathan Parish, Brian Ogden v The Danwood Group Limited, [2015] EWHC 940 .... 6
Kelner v Baxter [1866] LR 2 CP 174 ............................................................................ 9
Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19 ............ 22
TEAM NUMBER 03 -Index of Authorities -
MEMORANDUM for THE CLAIMANT |ix
Kuwait Petroleum Corporation v I & D Oil Carriers Ltd.—The Houda [1994] 2 Lloyd’s Rep
541 (C.A.). ............................................................................................................... 20
Langridge v Levy [1837] 2 M&W 519 ....................................................................... 12
Leolga Compania de Navigacion v John Glynn & Sons Ltd. [1953] 2 Lloyd’s Rep
47…………………………………………………………………………………..17
Lensen Shipping Ltd. v Anglo-Soviet Shipping Co. [1935] 52 Ll.L.Rep 141 ............ 17
Limerick v Coker [1916] 33 T.L.R 103 ....................................................................... 23
Marsh v Joseph [1877] M 123 ....................................................................................... 9
Mclean Bros & Rigg Ltd v Grice [1906] 4 C.L.R. 835 ................................................. 9
Minerva Navigation Inc v Oceana Shipping AG (The Athena) [2013] 2 Lloyd's Rep 673 16
National Carriers Ltd. v Panalpina (Northern) Ltd. [1981] A.C. 675 .......................... 18
Petroships Pte Ltd of Singapore v Petec Trading & Investment Corp of Vietnam (The Petro
Ranger) [2001] 2 Lloyd's Rep 348. .......................................................................... 18
Polhill v Water [1832] 3 B. & ad. 114 ......................................................................... 11
Portsmouth Steamship v Liverpool & Glasgow Salvage Association (1929) 34 Ll.L.Rep 459
.................................................................................................................................. 17
Premium Nafta Products Limited & Ors v Fili Shipping Company Limited & Ors [2007]
UKHL 40 ................................................................................................................... 4
Q.N.S. Paper Co. v Chartwell Shipping Ltd. [1989] 2 S.C.R. 683 .............................. 10
Reardon Smith Line v Australian Wheat Board (The Houston City) [1956] 1 Lloyd’s Rep 1
(P.C.). ....................................................................................................................... 16
Reardon Smith Line v Black Sea and Baltic General Insurance Company [1939] A.C. 562.
.................................................................................................................................. 11
Rijn, The—Santa Martha Baay Scheepvaart & Handelsmaatschappij N.V v Scanbulk A/S
[1981] 2 Lloyd’s Rep 267 (Q.B.). ............................................................................ 17
TEAM NUMBER 03 -Index of Authorities -
MEMORANDUM for THE CLAIMANT |x
Royal Albert Hall Cop. v Winchilsea [1891] 7 T.L.R. 362…………………..………..9
Eastern Construction Co. Ltd v Natiojnal Trust Co. Ltd. [1914] A.C. 197 at 213 ........ 9
Sea Angel, The—Edwinton Commercial Corp. v Tsavliris Russ (Worldwide Salvage &
Towage) Ltd. [2007] 2 Lloyd’s Rep 517 (C.A.). ..................................................... 19
Seven Seas Transportation Ltd v Pacifico Union Marina Corp (The Satya Kailash and The
Oceanic Amity) [1984] 1 Lloyd's Rep 588 .............................................................. 23
Son & Co (Dublin) Ltd v Owners of the Motor Vessel Freshfield (The Lady Gwendolen)
[1965] 3 W.L.R. 91 .................................................................................................. 23
Standard Oil Co. of New York v Clan Line Steamers Ltd. [1924] AC 100 ................ 20
Steel v Slate Line Steamship Co. [1877] 3 App Cas 72 HL ........................................ 21
Suncorp Insurance and Finance v Milano Assecurazioni SpA [1983] 22 Llyod's Rep. 225 9
Super Servant Two, The Lauritzen v Wijsmuller B.V [1990] 1 Lloyd’s Rep 1 .......... 18
Tamplin Steamship Company v Anglo-Mexican Petroleum Products Company [1916] 1 K.B.
485............................................................................................................................ 19
Taylor v Smith [1926] 38 C.L.R. 48 .............................................................................. 9
The Daminanos [1971] 2 ALLER 1301…………………………………….……...….5
Re Polemis and Furness, Withy & Co. Ltd. [1921] 3 KB 560. .................................... 5
TTMI Sarl v Statoil ASA (‘The Sibohelle’) [2011] EWHC 1150 (Comm), ................. 1
Turner v Haji Goolam [1904] A.C. 826 ....................................................................... 23
Valkenburg v The S.S. Henry Denny 295 F.2d 330 .................................................... 10
Waivera Co-operative Dairy Co. Ltd. v Wright, Stephenson & Co. Ltd [1917] N.Z.L.R.
178……………………………………………………………………….………….9
Akel v Turner [1926] G.L.R. 574 (N.Z.) ...................................................................... 9
Wehner v Dene [1905] 2 K.B 92 ................................................................................. 23
TEAM NUMBER 03 -Index of Authorities -
MEMORANDUM for THE CLAIMANT |xi
Western Sealanes Corporation v Unimarine S.A.—The Pythia [1982] 2 Lloyd’s Rep 160
(Q.B.) ....................................................................................................................... 16
Wilson v Tunman and Fretson [1843] 6 M. & G. 236 at 242 ........................................ 9
Woolf v Collins [1948] 1 KB 11.................................................................................... 5
World Fuel Services Corporation v The Ship “Nordems” 2011 FCA 73 .................... 10
World Sport Group (Mauritius) Ltd v MSM Sattelite (Singapore) Pte. Ltd (Civ App. No. 895
of 2014). ..................................................................................................................... 4
Treatises and Commentaries
Adrian Briggs, Agreements on Jurisdiction and Choice of Law, (OUP 2008) pg 81; Michael
J. Mustill, and Stewart C. Boyd, Commercial Arbitration, (2nd edn, Butterworths 2001)
.................................................................................................................................... 4
Alan Redfern and Martin Hunter, Law and Practice of International Commercial Arbitration
(5th edn, OUP 2009) .................................................................................................. 1
Claire Ambrose and Karen Mazwell, London Maritime Arbitration (2nd edn,Sweet &
Maxwell 2002) ........................................................................................................... 1
F M B Reynolds, Bowstead and Reynolds on agency ....................................... 9, 10, 15
Hugh Beale, Chitty on Contracts, vol 2 (13th edn., Sweet & Maxwell 2008) ............. 4
Julian M. Lew , Loukas A. Mistelis , et al., Comparative International Commercial
Arbitration, 414, ¶17-13, (2003)………………………………………………………2
Paul Todd, Maritime Fraud and Piracy (2nd edn, Informa Publishing, 2013) ............ 18
Simon Baughen, Shipping Law (6th edn, Routledge 2015) ........................................ 20
Terence Coghlin, Andrew Baker, Julian Kenny, John Kimball and Tom Belknap, Time
Charters (6th edn, Informa Law 2008) ...................................................................... 2
Terence Coghlin, John D. Kimball, Andrew W. Baker, Thomas H. Belknap, Jr. and Julian
Kenny, Time Charters (7th, Informa law, New York 2014) .................................... 23
TEAM NUMBER 03 -Index of Authorities -
MEMORANDUM for THE CLAIMANT |xii
Terence Coghlin, John D. Kimball, Andrew W. Baker, Thomas H. Belknap, Jr. and Julian
Kenny., Time Charters (7th, Informa law, New York 2014) ................... 7, 13, 14, 16
W V H Rogers, Winfield and Jolowicz on tort (17th, Sweet & Maxwell, London
2006)……… ................................................................................................ 10, 11, 12
Journals and Newspaper Articles
Ahmad Taleb, 'Piracy in West Africa Targets the Region’s Oil Industry' (International Policy
Digest 2014) ............................................................................................................. 19
Arthur L. Corbin, 'Ratification in Agency without Knowledge of Material Facts' [1906] The
Yale Law Journal Company, Inc. 331 ....................................................................... 9
H. Edwin Anderson, ‘"Subject to Details" and C/P Negotiations’ (2001) 26 Tul Mar LJ 61
.................................................................................................................................... 1
Kuwait Petroleum Corporation v I & D Oil Carriers Ltd.—The Houda [1994] 2 Lloyd’s Rep
541 (C.A.) .......................................................................................................... 14, 15
Other International Documents
ICC International Maritime Bureau, ‘Piracy and Armed Robbery against Ships – Report for
the period of 1 January – 30 June 2014 ................................................................... 21
IMO, Best Management Practices for Protection Against Somali Based Piracy, Version 4,
August 2011 .................................................................................................. iv, 21, 22
Restatement of the Law Third, Foreign Relations Law of the United States, (1965).... 9
Shell Time 4 ................................................................................................................... 1
TEAM NUMBER 03 -Questions Presented-
MEMORANDUM for THE CLAIMANT |xiii
QUESTIONS PRESENTED
I. Does the Arbitral Tribunal have the jurisdiction to hear the present dispute?
II. Whether the Tribunal can arbitrate the Tort of Fraud?
III. Whether the Respondents are liable for the Tort of fraud?
IV. Whether the Respondents are liable for the breach of Charterparty due to non-
payment of second instalment of hire?
V. Whether the Claimants are liable for breach of Charterparty as they provided a vessel
not fit for service?
VI. Are the Claimants liable to the Respondents in bailment?
TEAM NUMBER 03 -Statement of Facts -
MEMORANDUM for THE CLAIMANT |xiv
STATEMENT OF FACTS
PARTIES AND CHARTER-PARTY NEGOTIATIONS
The parties Western Tankers Inc (the “Claimants”) agreed to let ‘Western Dawn’ (the
“Vessel”) to LDT Pte (the ‘Charterers’). The negotiations for the same took place. During
those negotiations the Charterers expressed their unwillingness of having London as the seat
of arbitration due to past bad experience.
THE CHARTERPARTY
The Time-Charterparty was an amended Shelltime 4 Pro forma. Piracy clauses were added.
Voyage orders were sent and Bills of lading were also issued.
PERFORMANCE OF THE CHARTERPARTY
Cargo was loaded at the Singapore Port, the starting point of the journey. Bunkers less than
the quantity asked for were provided by the Charterers. On discontent being expressed,
reassurance for alternative bunker supply at Durban or Cape Town was made. However no
bunkers were supplied at either place. On numerous occasions, Claimants had sought
information regarding coordinates of the STS Area as well as the bunker supply. However
adequate response was not received from the Charterers. On June 28, 2014, the v/l was
instructed by the Charterers to proceed to an alternative discharge ‘STS Area 1’ where
discharge of Cargo and bunker supply was promised. On the same day, ASA2 communicated
the Claimants that it had been passed local instruction by the Charterers. The v/l was
instructed to proceed to an alternative discharge area for discharge of cargo and provision of
bunkers through STS with v/l ANTELOPE. The same was informed to the Charterers who
consented to communication with the STS Coordinates. On communication that the second
installment of hire was due, the Charterers sent an off-hire notice due no contact.
TEAM NUMBER 03 -Statement of Facts -
MEMORANDUM for THE CLAIMANT |xv
PIRACY ATTACK
On arrival at the instructed location, the v/l was subjected to a Piracy Attack which lasted for
thirteen days, during which cargo theft and loss took place.
CLAIMS
The claimants commenced arbitration proceedings against the Respondents contending
breach of Charterparty due to refusal to pay second hire. Tort of fraud has been alleged
against the Respondents for fraudulent representations made by them and ASA2 on their
behalf.
TEAM NUMBER 03 -Arguments Presented -
MEMORANDUM for THE CLAIMANT -1-
ARGUMENTS PRESENTED
I. THE ARBITRAL TRIBUNAL HAS THE JURISDICTION TO DETERMINE THE
MATTER.
1. The Claimants submit that the arbitral tribunal has the jurisdiction to settle the disputes
arising under the Charter because: Contrary to the Respondent’s submission, London is the
proper seat and forum for deciding the arbitral proceedings in light of the true intention of the
parties [A] and since the amendment proposed by the Respondent does not specify any seat
of arbitration, it becomes a pathological arbitration clause which cannot be enforced [B].
A. THE PARTIES INTENDED LONDON TO BE THE ARBITRAL SEAT FOR THEIR PROCEEDINGS.
2. It is submitted that an arbitration proceeding is based upon the will and consent of the
parties.1 This means that an arbitral tribunal can initiate an arbitration process only if the
parties intended to give those powers to the tribunal.2 In the present case, this power is
derived from the C/P agreement.3 This agreement was based on the ST4 pro forma which
contained the arbitration clause specifying London as the seat of arbitration.4
3. It is common with respect to Charterparties, that they are concluded by exchanging emails or
faxes, fixing the terms of the subject.5 The Parties often negotiate the terms of the Charter
before finalizing the contract.6 In the present case as well, there were negotiations between
the parties through a broker. It is seen that the parties did bring about certain changes to the
1 Alan Redfern and Martin Hunter, Law and Practice of International Commercial Arbitration (5th, OUP,
Oxford 2009) 19. 2 Claire Ambrose and Karen Mazwell, London Maritime Arbitration (2nd, Sweet & Maxwell, London 2002) 25. 3 Factsheet, pg 5, Fully Fixed Recap. 4 ST4 cl 46. 5 TTMI Sarl v Statoil ASA (‘The Sibohelle’) [2011] EWHC 1150 (Comm), para 27. 6 H. Edwin Anderson, ‘"Subject to Details" and C/P Negotiations’ [2001] 26 Tul Mar LJ 61.
TEAM NUMBER 03 -Arguments Presented -
MEMORANDUM for THE CLAIMANT -2-
ST4.7 Even the Respondents proposed an amendment for not having London Arbitration
during the stage of communications between parties.8
4. The arbitration clause is a contractual clause which has to be construed according to the
natural and ordinary meaning so as to give effect to the intention of the parties. 9 This
intention can be determined by referring to the contract or the circumstances of the case.10 In
the present matter, even though the Respondents communicated their intention to amend the
ST4 provision on arbitration, this was never accepted by the other side. The facts clearly
show that there was no express acceptance. The only thing which could be implied from the
reply to this proposal for amendment is that the parties would send out the final recap very
soon.11 Hence the intention of the parties could have been reflected from the final fixture.
5. The final recap was sent after the Respondents lifted the management subjects.12 In shipping
industry, the term “lifting of subjects” refers to being fixed on the main terms of the
contract.13 This recap brought certain changes to the C/P. However it mentioned nothing
about the arbitration provision. The fact that it was left blank means that the negotiated term
was never accepted and the parties had to abide by the provisions of the ST4.14 Moreover if
the Parties had accepted the Respondent’s correspondence of not having “London
Arbitration”, then they would have made specific changes to the arbitral clause under ST4
like they did with the other clauses.15 Thus there was no acceptance of the amendment.
6. Also mere incorporation of the heading “Law and Litigation” in the fixed recap does not
indicate anything. ST4 specifically provides that headings cannot be used for the purpose of
7 Factsheet, pg 6, Fully Fixed Recap. 8 Factsheet, pg 2: Correspondence on May 23, 2014. 9, Darlington Futures Ltd v Delco Australia Pty Ltd [1986] 161 CLR 500, 510. 10 Julian M. Lew and Loukas A. Mistelis, Comparative International Commercial Arbitration, (Kluwer Law
International, New Delhi 2003) para 13-17. 11 Factsheet, pg 2: Correspondence on May 23, 2014. 12 Factsheet, pg 5: Fully Fixed Recap. 13 Terence Coghlin, Andrew Baker, Julian Kenny, John Kimball and Tom Belknap, Time Charters (6th, Informa
Law, London 2008) 29. 14 ST4 cl 46. 15 Factsheet, pg 6: Fully Fixed Recap.
TEAM NUMBER 03 -Arguments Presented -
MEMORANDUM for THE CLAIMANT -3-
construction but are there only for convenience.16 Thus the heading of “Law and Litigation”
does not reflect anything. Hence it is clear from the facts that there was no valid amendment
of the arbitration provision.
B. EVEN IF THE COURT ACCEPTS THE AMENDMENT, THE ARBITRAL PROCEEDINGS CANNOT
BE ENFORCED
7. It is submitted that if the Tribunal accepts the amendment as valid, it would lead to a
“pathological arbitration” 17 clause which cannot be enforced. It has been widely held that
defective arbitration clauses which do not specify the details of the arbitration process are
mostly void. 18 However the decision of the court on these cases depends upon the extent of
pathology which is created by an arbitration clause. 19 In the present case, the
correspondence 20 which is being relied upon by the Respondents did not specify any
alternative seat of arbitration. There were no specific terms communicated regarding other
terms of the arbitration provision. This leads to a situation of ambiguity where the
interpretation of the clause becomes difficult.
8. A Pathological arbitration clause does not indicate the true intention of the parties regarding
arbitration. 21 This is because even if the Court tries to interpret these clauses with a view to
ensure its effectiveness, it is difficult to determine which arbitral tribunal had the jurisdiction
to determine matters. 22 Thus according to the principle of effective interpretation, arbitration
clauses which are ambiguous should be construed in a reasonable manner. 23 In this case, the
16 ST4 cl 48. 17Frederic Eisemann, ‘La Clause d’arbitragepathologique, Arbitrage Commervial: Essais in Memoriam Eugenio
Minoli’ (1974) 129 in Graig Park and Paulson, International Chamber of Commerce Arbitration, 3rd edn (2000)
12. 18 Palencia Court of Appeal (Audiencia Provincial) on 10 April 2000 (Spain); Madrid Court of Appeal (10th
panel) of 31 May 2005; X. v Y. [2010] 4A_620/2009. 19HKL Group Co. Ltd. v Rizq International Holdings Pte Ltd. [2013] SGHCR 5. 20 Factsheet, pg 2: Correspondence on May 23, 2014. 21X. v Y. [2010] 4A_620/2009. 22X. v Y. [2010] 4A_620/2009 23Star Shipping AS v China National Foreign Trade Transp. Corp. (1993] 2 Lloyd's Rep 445.
TEAM NUMBER 03 -Arguments Presented -
MEMORANDUM for THE CLAIMANT -4-
amendment proposed by the Respondents was vague and thus could not be enforced. Hence
this Tribunal should not accept this amendment.
II. THE ARBITRAL TRIBUNAL CAN ARBITRATE THE CLAIM OF TORT OF FRAUD.
9. It is submitted that the tribunal has the jurisdiction to arbitrate upon the claim of fraud
because: The phrase “disputes arising out of the charter” can be extended to cover tortious
claims. [A] The tortious claim of fraud is closely connected with the C/P agreement. [B]
A. THE PHRASE “DISPUTES ARISING OUT OF THE CHARTER” CAN BE EXTENDED TO COVER
TORTIOUS CLAIMS.
10. The language of an arbitration agreement helps in determining the scope of reference to
arbitration.24 The usage of the phrase “arising out of the charter” reflects the intention of the
parties to give it a wider meaning. This is because of the liberal construction of this phrase is
to include every dispute except the one relating to the existence of the contract.25 The most
important reason behind such interpretation is based on the presumption that a prudent
commercial man would always favour an adjudication mechanism where all his disputes
could be settled. This principle was discussed in the famous Fiona Trust26 case.
11. It reaffirmed the approach of giving a wider interpretation to the arbitral clause which used
the same phrase as “disputes arising under the charter”. Further it clarified how the
distinction between the scope of clauses “arising out of” and arising in connection with” are
redundant. 27 This is because an agreement should always be interpreted with a rational
commercial purpose favouring the presumption stated above.
24 Hugh Beale, Chitty on Contracts, vol 2 (13th , Sweet & Maxwell, London 2008) 25 Adrian Briggs, Agreements on Jurisdiction and Choice of Law, (OUP 2008) pg 81; Michael J. Mustill, and
Stewart C. Boyd, Commercial Arbitration, (2nd, Butterworths, London 2001) 120. 26 Fiona Trust v Primalov [2007] UKHL 40; Premium Nafta Products Limited & Ors v Fili Shipping Company
Limited & Ors [2007] UKHL 40. 27 Premium Nafta Products Limited & Ors v Fili Shipping Company Limited & Ors [2007] UKHL 40; World
Sport Group (Mauritius) Ltd v MSM Sattelite (Singapore) Pte. Ltd (Civ App. No. 895 of 2014).
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12. Further this phrase has been held wide enough to cover tortious claims. 28 It has been
discussed to be as broad as the term “in connection with” thereby including not only
contractual issues but anything which has any connection with the dispute.29 Hence unless
the parties express their clear intention to have different issues adjudicated upon under
different mechanisms, they should not be bifurcated.30 Thus the usage of this phrase reflects
the intention of the parties to submit all disputes to arbitration.
B. THERE IS A CLOSE CONNECTION BETWEEN THE TORT OF FRAUD AND C/P AGREEMENT
13. It is submitted that an arbitral tribunal can arbitrate tortious claims if the arbitration
agreement provides for such a reference and also when the dispute is connected to the
contract. 31 In order to decide upon the claims of tort, it is essential to see whether the claim is
linked to the main contract.32 A tortious claim would be seen as linked to the contract if while
deciding upon the contractual issue, the courts would also have to consider the other.33
14. In the present case, the claim of tort of fraud is closely connected with the contract and can be
said to have arisen out of the agreement. The issue of fraud revolves around the set of
representations made by the Respondent and ASA2 to the Claimant regarding the supply of
bunkers which were never fulfilled. As per the C/P, the Respondents had an obligation to
provide for all the bunkers.34 Hence the representations made by them in this regard were
connected to the Charter Party and were arising out of it.
15. The representation made by ASA2 acting on behalf of the Respondents, regarding bunker
supply was also linked to the contract. This is because the voyage orders did provide for the
28 Aggeliki Charis Compania Maritima SA v Pagnan SpA (The Angelic Grace) [1995] 1 Lloyd’s Rep 87;
Empressa Exportadora De Azucar(CUBAZUCAR) v Industria Azucarera Nacional SA (IANSA) (The Playa
Larga and Marble Islands) [1983] 2 Lloyd’s Rep 171. 29 Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] 157 FCR 45. 30 Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160. 31 Woolf v Collins [1948] 1 KB 11. 32 The Daminanos [1971] 2 ALLER 1301; Re Polemis and Furness, Withy & Co. Ltd. [1921] 3 KB 560. 33 The Paolo de’Alesio [1994] 2 Lloyd’s Rep 366 (QB), Aggeliki Charis Compania Maritima S.A. v Pagnan
S.p.A. (The Angelic Grace) [1994] 1 Lloyds Rep 168; Comandate Marine Corp v Pan Australia Shipping Pty
Ltd [2006] 157 FCR 45; Ethiopian Ouilseeds and Pulses Export Corp v Rio del Mar Foods [1990]1 Lloyd’s
Rep 86. 34 ST4 cl 7; Factsheet, pg 5: Fully Fixed Recap.
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MEMORANDUM for THE CLAIMANT -6-
provision of agency nominated by the Respondent at the load port and the discharge port.35
Thus the representations made to the Claimant by the agents of the Respondent regarding the
availability of bunker supply is connected to the agreement. This is because the
representations were made in light of the fulfilment of an obligation of the Respondent. Thus
there is a nexus between the tort of fraud and the Contract. Hence fraud can be arbitrated by
the Tribunal.
III. THE RESPONDENTS HAVE COMMITTED THE TORT OF FRAUD
16. It is submitted that the Respondents are liable for the tort of fraud as all essentials of fraud
have been fulfilled. First, the Respondents as well as the persons acting on their behalf made
untrue and dishonest representations [A]. Second, they were made with the intention to be
relied upon [B]. Third, the Claimants did rely [C]. Fourth, due to this damage was caused
[D].
A. RESPONDENTS AND THEIR AGENTS MADE UNTRUE AND DISHONEST REPRESENTATIONS
17. It is submitted that the Respondents and ASA2 on their behalf made representations that were
dishonest and untrue on their proper construction.
1. Respondents made untrue and dishonest representations
18. It is submitted that the Respondents made representations that were untrue ‘on their proper
construction’36. A representation made with the knowledge of its falsity or recklessly without
caring about it37 and with a dishonest intention38 is an essential to fraud. Even promises
comprise of a statement in the manifestation of a person’s mind39, so as to make them
fraudulent.
35 Factsheet, pg 13, 25: Voyage Orders. 36 Jonathan Parish, Brian Ogden v The Danwood Group Limited, [2015] EWHC 940. 37 Derry v Peek [1889] 14 App.Cas. 337; Edgington v Fitzmaurice [1885] 29 Ch.D. 459 38 Edgington v Fitzmaurice [1885] 29 Ch.D. 459. 39 Edgington v Fitzmaurice [1885] 29 Ch.D. 459 at 483 per Bowen L.J.; Clydesdale Bank Ltd v Paton [1896]
A.C. 381 at 394 per Lord Herschell.
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19. Here, in lieu of discontent expressed by the Claimants against the short supply of bunkers at
Singapore 40 , the Respondents had assured existence of an ‘alternative bunker supply
available passing Durban or Cape Town’41 and that ‘everything is under control’42. In-spite
of requests43 from the Master, and protest against, ‘not supplying fuel at Durban’44 , no
communication was made by the Respondents till June 28, 2014. Even then instead of
explaining non-supply, the v/l was instructed to proceed to ‘STS Area 1’ for discharge of
cargo and Bunker supply.45
20. The fact that the Respondents did not communicate for twenty-five days and no bunker was
supplied at either places, indicates that everything was not under control. Had the supply
been available, even if the Respondents were not being able to provide bunkers at Durban to
Cape Town, they could have communicated their inability.
21. Further, Charterers are under an absolute obligation46 to provide bunkers under the C/P47, and
for supply of the correct quantity, information provided by the Master is followed.48 Here,
despite requirement of 1500 mt bunkers being explicitly communicated by the Master49, the
Respondents approached the supplier only for 950mt bunkers50. This indicates that they had a
casual and dishonest attitude, right from the beginning towards providing bunkers.
2. ASA2, on behalf of the Respondents, made untrue and dishonest representations
22. It is submitted that, first the representations made by ASA2 were untrue and dishonest (a)
Secondly, these would bind the Respondents as they ratified the representation (b).
40 Factsheet, pg 25: Correspondence on June 3, 2014. 41 Factsheet, pg 26: Correspondence on June 3, 2014. 42 Factsheet, pg 28: Correspondence on June 3, 2014. 43 Factsheet, pg 29: Correspondence on June 08, 2014, 31: Correspondence on June 20, 2014. 44 Factsheet, pg 32: Correspondence on June 25, 2014. 45 Factsheet, pg 33: Correspondence on June 28, 2014. 46 Terence Coghlin, John D. Kimball, Andrew W. Baker, Thomas H. Belknap, Jr. and Julian Kenny., Time
Charters (7th, Informa law, New York 2014) 247. 47 ST4 cl 7; Factsheet, pg 5: Fully Fixed Recap. 48 Terence Coghlin, John D. Kimball, Andrew W. Baker, Thomas H. Belknap, Jr. and Julian Kenny., Time
Charters (7th, Informa law, New York 2014) 248. 49 Factsheet, pg 21: Correspondence on May 27, 2014. 50 Factsheet, pg 24: Correspondence on May 30, 2014.
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MEMORANDUM for THE CLAIMANT -8-
a. The representations made by ASA2 were untrue and dishonest
23. On June 28, 2014, ASA2, on behalf of the Respondents, instructed the v/l to proceed to an
alternative discharge location for discharge of some cargo and supply of 300mt bunkers
through STS with v/l ‘ANTELOPE’.51 On arrival here, the STS v/l had still not arrived.52 In
its absence, neither were any bunkers provided, nor did any discharge of cargo take place.
24. Dishonest intention to conduct any STS at the area can be inferred from the fact that despite
two communications regarding non arrival of ‘ANTELOPE’, and issuing a NOR, ASA2 did
not revert back to the Claimants. On the other hand, an off-hire notice had been sent by the
Respondents ‘due no contact’53, despite the fact that they themselves had instructed the v/l to
proceed to ‘STS Area 1’. This indicates double standards of the Respondents and that they
made dishonest representations.
b. Respondents ratified ASA2’s representation so as to be liable for them
25. It is submitted that the Respondents ratified the representations made by ASA2. An act done
by a party on behalf of another by whom it had no authority to act may be made valid by
ratification. 54 This is applicable for all ‘lawful or unlawful’ 55 acts, including tortious
actions.56
26. Here, the Master had informed the Respondents57, that the v/l was to receive 300mt bunkers
from v/l ANTELOPE before cargo transfer for new OPL discharge. They consented to
‘continue liaise’ with the ‘STS coordinators’.58 Since ratification has a retrospective effect59
51 Factsheet, pg 35: Correspondence on June 28, 2014. 52 Factsheet, pg 40-41: Correspondence on July 04, 2014. 53 Factsheet, pg 41: Correspondence on July 04, 2014. 54 Wilson v Tunman and Fretson [1843] 6 M. & G. 236 at 242; Bird v Brown [1850] 4 Exch. 786 at 798; Firth v
Staines [1897] 2 Q.B. 70; Restatement of the Law Third, The Foreign Relations Law of the United States,
(1965)Chap 4. 55 F M B Reynolds, Bowstead and Reynolds on agency (18th, Sweet & Maxwell, London 2006) 64, 65. 56 F M B Reynolds, Bowstead and Reynolds on agency (18th, Sweet & Maxwell, London 2006) 64, 65. 57 Factsheet, pg 38: Correspondence on July 03, 2014. 58 Factsheet, pg 40: Correspondence on July 04, 2014. 59 F M B Reynolds, Bowstead and Reynolds on agency (18th, Sweet & Maxwell, London 2006) 65.
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and can be implied60, it can be inferred by from these words that the Respondents adopted the
representations as their own. Further, this ratification is valid legally as all the essentials of
Ratification have been met with.
All the essentials of ratification including knowledge of material circumstances have been
met
27. Essentials of ratification include existence61 and competence62 of the person on whose behalf
the act has been done and ‘knowledge of all material circumstances’ in which the act has
been done 63 . While the first one has clearly been satisfied, for the second one, such
knowledge can be considered to have been imputed to the person ratifying, if he chooses to
ratify without ‘further investigation’ despite possessing ‘knowledge of such facts that would
lead a reasonable person to investigate’, 64 and he need not know the collateral
circumstances65.
28. Here, the Respondents, having been told the STS v/l’s name, should have investigated about
the complete facts. While the extent of inquiry differs in each case, such has been made
easier and possible in a timely manner due to the modern technology. 66 For people in
maritime commerce67, disclosure of the name of a v/l is equivalent to disclosure of the
60 Waivera Co-operative Dairy Co. Ltd. v Wright, Stephenson & Co. Ltd [1917] N.Z.L.R. 178; Akel v Turner
[1926] G.L.R. 574 (N.Z.) 61 Kelner v Baxter [1866] LR 2 CP 174. 62 Firth v Staines [1897] 2 QB 70 at 75. 63 Suncorp Insurance and Finance v Milano Assecurazioni SpA [1983] 22 Llyod's Rep. 225; see Arthur L.
Corbin, 'Ratification in Agency without Knowledge of Material Facts' [1906] The Yale Law Journal Company,
Inc. 331. See also Royal Albert Hall Cop. v Winchilsea [1891] 7 T.L.R. 362; Eastern Construction Co. Ltd v
National Trust Co. Ltd. [1914] A.C. 197 at 213; Mclean Bros & Rigg Ltd v Grice [1906] 4 C.L.R. 835; Taylor v
Smith [1926] 38 C.L.R. 48; Bedford Insurance Co. Ltd v Institutio de Resseguros do Brasil [1985] Q.B. 966 at
987; Aoetearoa International Ltd v Westpac Banking Corp. [1984] 2 N.Z.L.R. 34; Restatement, Third, s 4.06. 64 Restatement, Third § 4.06; Briess v Woolley [1954] 2 W.L.R. 832; Marsh v Joseph [1877] M 123;See Arthur
L. Corbin, 'Ratification in Agency without Knowledge of Material Facts' [1906] The Yale Law Journal
Company, Inc. 331. 65 F M B Reynolds, Bowstead and Reynolds on agency (18th, Sweet & Maxwell, London 2006) 75. 66 World Fuel Services Corporation v The Ship “Nordems” 2011 FCA 73 [65]. 67 Valkenburg v The S.S. Henry Denny 295 F.2d 330.
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identity of its owner68 as the party is put into a position of finding out the identity of the
owner by referring to the ‘registers of shipping’.69
29. Further, considering the provisions in the ST4 against discharging cargo at an alternative
location, other than the one specified in the B/L70, a reasonable Charterer on being informed
of deviation of the v/l to an alternative discharge area, would investigate its specific
coordinates, before consenting to it. Such could have been easily ascertained on inquiry from
the Masters.
30. However, in absence of such inquiries by the Respondents, they would be considered to have
been imputed with the knowledge of all material circumstances. And thus, all essentials of
ratification having been met, the representations made by ASA2 would bind the Respondents.
B. THE REPRESENTATIONS WERE MADE WITH THE INTENTION TO BE RELIED UPON
31. Intention that the other party relies upon the statement made is an essential requirement of the
fraud71, irrespective of whether the actual damages were intended to be ensued or not72.
32. The representation that “everything is under control”73 by the Respondents indicates that
they intended reliance upon the previous representation, and hence the same was reassured
again.
33. Bunkers, being an important commodity in shipping 74 , its repeated demand made the
Respondents aware of the fact that the v/l was in urgent need of bunker. This meant that the
Master would comply with the instructions to go to an alternative discharge area if they were
to be provided with bunkers there. Hence, this frequently raised issue was included in the
representations as an allurement with an intention that the Claimants would rely upon it.
68 Q.N.S. Paper Co. v Chartwell Shipping Ltd. [1989] 2 S.C.R. 683. 69 Instituto Cubano De Estabilizacion Del Azucar v The Ss Theotokos [1957] 155 F. SUPP. 945. 70 ST4 cl 13(b). 71 W V H Rogers, Winfield and Jolowicz on tort (17th, Sweet & Maxwell, London 2006) 531. 72 Polhill v Water [1832] 3 B. & ad. 114; Edgington v Fitzmaurice [1885] 29 Ch.D. 459 at 482; Brown v
Jenkinson; [1957] 2 QB 621 as on W V H Rogers, Winfield and Jolowicz on tort (17th, Sweet & Maxwell,
London 2006) 532 73 Factsheet, pg 73: Correspondence on June 03, 2014. 74 Reardon Smith Line v Black Sea and Baltic General Insurance Company [1939] A.C. 562.
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C. THE REPRESENTATIONS WERE RELIED UPON BY THE CLAIMANTS
34. In fraud, while reliance upon the representations is essential,75 reasonability is not expected.76
Hence, neither does it matter if the party acts incautiously and could have verified the truth of
the representations77, nor are the representation required to be the decisive factor78
35. Relying upon the first representation, the v/l was to receive stores from its safety department
at the Durban call for bunkers79. Protest against no supply was made when nearing Durban.80
The respondents were intimated that the v/l was proceeding towards the coordinates
instructed, and would be taking bunkers on arrival, for which ETA was intimated and
confirmation of hose connections and fender supply was sought on multiple days.81 The v/l
did arrive at the instructed co-ordinates and even issued a NOR.82 Thus, it can be concluded
that the representations were relied upon by the Claimants.
D. THE CLAIMANTS SUFFERED DAMAGES DUE TO THE RELIANCE
36. It is submitted that the Claimants were subjected to both financial loss as well as personal
injury due to the reliance. While test of reasonable foreseeability of remoteness is not applied
in fraud,83 some financial loss is necessary84 and may also include ‘personal injury’85.
37. On arrival at the instructed STS Area, the v/l was subjected to a piracy attack.86 Under the
pirate control, the cargo theft, loss, damage to various equipments of the v/l took place, while
some crew members were personally injured.87 Hence it is concluded that damage arose from
75 Armagas Ltd v Mudogas S.A. (The Ocean Frost) [1986] AC 717. 76 Armagas Ltd v Mudogas S.A. (The Ocean Frost) [1986] AC 717 77 W V H Rogers, Winfield and Jolowicz on tort (17th, Sweet & Maxwell, London 2006) 533. 78 J.E.B. Fasteners Ltd v Marks Bloom & Co [1983] 1 All E.R. 583 at 589 per Stephenson. 79 Factsheet, pg 27: Correspondence on June 03, 2014. 80 Factsheet, pg 32: Correspondence on June 25, 2014. 81 Factsheet, pg 35-38: Correspondence on June 28, 2014, June 29, 2014, July 01, 2014, July 02, 2014, July 03,
2014. 82 Factsheet, pg 41: Correspondence on July 04, 2014. 83 W V H Rogers, Winfield and Jolowicz on tort (17th, Sweet & Maxwell, London 2006) 536. 84 W V H Rogers, Winfield and Jolowicz on tort (17th, Sweet & Maxwell, London 2006) 535. 85 Langridge v Levy [1837] 2 M&W 519; Burrows v Rhodes [1899] 1 QB 816 as on W V H Rogers, Winfield
and Jolowicz on tort (17th, Sweet & Maxwell, London 2006) 537. 86 Factsheet, pg 42: Correspondence on July 17, 2014. 87 Factsheet, pg 42: Correspondence on July 17, 2014.
TEAM NUMBER 03 -Arguments Presented -
MEMORANDUM for THE CLAIMANT -12-
the reliance as the v/l suffered financial, and personal injury because of the attack, which
occurred at that exact location it had been instructed to proceed to. As all the required
essentials of the tort of fraud have been met with in this case, the Respondents are liable for
the tort of fraud.
IV. RESPONDENTS HAVE COMMITTED BREACH OF CONTRACT BY FAILING TO PAY THE
HIRE AMOUNT WHICH BECAME DUE ON JULY 03, 2014.
38. It is submitted that, the second instalment of hire was due and owing from the Respondents
on July 03, 2014. The Respondents, contending that the Vessel was off-hire, did not pay the
due amount on July 03, 2014 (close of business). This and the continued refusal to pay the
due amount of hire, amount to breach of the Charterparty. It is submitted that when the
Claimants gave notice of hire to the Respondent, hire was due and owing to them [A];
secondly, that the Respondents cannot claim that the vessel was off-hire [B]; and thirdly, that
there was no such event which frustrated the Charterparty [C].
A. ON THE TERMS OF THE CHARTERPARTY, HIRE BECAME DUE AND OWING TO THE CLAIMANT
ON JULY 03, 2014.
39. As per the Charterparty, the Respondents were to make monthly payment of hire in advance,
per calendar month, to the Claimants.88 On starting from the given date of the first month,
when the corresponding date is reached in the next month, a calendar month is said to be
complete.89 It is submitted that as per the “corresponding day rule”, the second installment of
hire became due on July 03, 2014.
40. Further, the Charterparty allows the Charterers to make deductions for, inter alia, any
amount accruing to an “undisputed and experienced” off-hire period.90 Even without these
amendments made to the provisions of ST4, it is amply clear that reductions cannot be made
88 ST4 cl 9. 89 Freeman v Reed [1863] 4 B. & S. 174; Dodds v Walker [1980] 1 W.L.R. 1061. 90 ST4 cl 21; Factsheet, pg 6: Fully Fixed Recap.
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from the hire payment for an anticipated off-hire period.91 The sanctity of the owner’s right
of hire has been emphasized on umpteen occasions.92 Therefore, the entire hire amount will
be due to the Claimants except for deductions which relate to a period for which hire has
already been paid.
41. Under the Charterparty, the obligation to pay hire in advance for the next month does not
cease even if the Vessel is off-hire on the date that payment becomes due. The payment of
hire clause in the instant matter can easily be distinguished from the one that was discussed
by the courts in The Lutetian.93 The C/P in The Lutetian provided that the “payment of hire
shall cease for the time thereby lost”.94 Firstly, the interpretation given in the case has not
entirely been accepted, and is a debatable reading.95 Secondly, such a reading is not possible
under the Charterparty in this case, since there is no similar suggestion of suspension of
Charterers’ obligation to pay hire under ST4. It is therefore submitted that, hire was due and
owing to the Claimants under the Charterparty, and such an obligation did not cease even if
the Vessel was off-hire on the due date.
B. IN ANY EVENT, THE VESSEL WAS NOT OFF-HIRE FROM JULY 04, 2014.
42. In any event, the Vessel was not off-hire in the given period due to any reason whatsoever. It
is the claim of the Respondents that the Vessel was off-hire from July 04, 2014 due to the
breach of orders and/or neglect of duty on the part of the Master. It is submitted on behalf of
the Claimants that, the requirements for the Vessel to go off-hire under Clause 21 of ST4
have not been met. The Vessel continued to be on hire, on and after July 04, 2014.
1. The Master did not commit any breach of orders and/or neglect of duty
91 Terence Coghlin, John D. Kimball, Andrew W. Baker, Thomas H. Belknap, Jr. and Julian Kenny., Time
Charters (7th, Informa law, New York 2014) 677. 92 The Dagny Skou SMA 2416 (Arb. at N.Y. 1987), In The Treana SMA 2929 (Arb. at N.Y. 1992), The Thekos
SMA 2253 (Arb. at N.Y. 1986). 93 Tradax Export S.A. v Dorada Compania Naviera S.A. [1982] 2 Lloyd’s Rep 140 (Q.B.). 94 Tradax Export S.A. v Dorada Compania Naviera S.A. [1982] 2 Lloyd’s Rep 140 (Q.B.). 95 Terence Coghlin, John D. Kimball, Andrew W. Baker, Thomas H. Belknap, Jr. and Julian Kenny., Time
Charters (7th, Informa law, New York 2014) 282.
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43. When loss of time is caused due to the neglect of the duty by the Master or the crew, the
Vessel goes off-hire from the time that such loss commences.96 It is submitted that, there was
no such neglect or breach by the Master in the instant case.
44. It is an undisputed and established law that in a time Charterparty, the Charterers have the
right to give orders to the Master, and there is a corresponding duty on the Master to act as
per the Charterer’s instructions with regard to the employment of the ship.97 It is submitted
that the Master, at all times, fulfilled this duty. It is admitted that in the voyage instructions,
the Master was instructed to send daily ETA reports to the Respondent and his agents.98
45. The Master, at all times, sent daily ETA reports to the Respondents and/or ASA2, who were
the agents of the Respondents.99 There is no denying that either the Respondents or the agents
had complete information of the location of the ship and the route being taken. It is an
established principle of law that information acquired by the agent within the authority of the
agency100, and which it is his duty to pass on to the principal101, are deemed to be within the
knowledge of the principal.102 The Respondents, therefore, cannot claim lack of contact with
him. In fact, on receiving the co-ordinates of the STS area and the name of the new Receiving
Vessel- ANTELOPE, the Master even contacted the Respondent directly.103 In response to
his e-mail, the Master was asked to continue liaising with the STS coordinator.104 Thus, the
Master acted in accordance with the instructions of the Respondents, and there was no breach
of duty on his part.
2. Alternatively, there was no loss of time caused to charterers.
96 ST4 cl 21(a)(ii); Stargas SpA v Petredec (The Sargasso) [1994] 1 Lloyd's Rep 412, Kuwait Petroleum
Corporation v I & D Oil Carriers Ltd.—The Houda [1994] 2 Lloyd’s Rep 541 (C.A.). 97 ST4 cl 13; Kuwait Petroleum Corporation v I & D Oil Carriers Ltd.—The Houda [1994] 2 Lloyd’s Rep 541
(C.A.); Hill Harmony, The—Whistler International v Kawasaki Kisen Kaisha [2001] 1 Lloyd’s Rep 147 98 Factsheet, pg 13: Voyage Orders. 99 Factsheet, pg 36: Correspondence on June 28, 2014. 100 Taylor v Yorkshire Insurance Co. Ltd. [1913] 2 Ir.R. 1 101 Boursot v Savage [1866] L.R. 2 Eq. 134, Rolland v Hart [1871] L.R. 6 Ch. App. 678. 102 F M B Reynolds, Bowstead and Reynolds on agency (18th, Sweet & Maxwell, London 2006) pg 480. 103 Factsheet, pg 38: Correspondence on July 03, 2014. 104 Factsheet, pg 40: Correspondence on July 04, 2014.
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46. Even if the Master breached his duty, the same cannot be said to validly lead to a loss of time
to the Respondents. The requirement under ST4 for invoking the off-hire clause is not merely
proving an incident that put the Vessel off-hire, but that the incident actually led to a net loss
of time.105 Despite the occurrence of some off-hire event, if the Vessel during the period
provides some service to the Charterers, there is no loss of time during such period.106
47. In the instant matter, the Vessel was in dire need of bunkers as the Vessel did not have
sufficient bunker supply to continue the voyage. The Claimants went to the alternate
discharge location given by ASA2 under the belief that they were to receive supply of
bunkers at the STS location given by the agents. It has been held that a deviation for
bunkering, even if it is for considerations such as convenience or cheapness, is a valid
deviation.107 The real question to be answered is whether or not the deviation was justified in
the business sense.108
48. Taking into account the circumstances of the instant matter, it seems reasonable for the
Master to have deviated from the original route. Even if there was breach of instructions
given by the Respondents, which led to the Vessel going to an alternate location, it was to get
bunkers for the Vessel. Hence, the deviation, and any corresponding delay, was for providing
some service to the Respondents. That being the only event which could have led to delay,
there was no net loss of time
3. In arguendo, the Claimants cannot rely on the Off-hire clause as the loss of time was a
result of the Charterers’ fault.
105 Terence Coghlin, John D. Kimball, Andrew W. Baker, Thomas H. Belknap, Jr. and Julian Kenny., Time
Charters (7th, Informa law, New York 2014) 687; Berge Sund, The—Sig Bergesen D.Y. A/S v Mobil Shipping
and Transportation Co. [1993] 2 Lloyd’s Rep 453 (C.A.); Canadian Pacific (Bermuda) Ltd v Canadian
Transport Co Ltd (The HRMacmillan) [1974] 1 Lloyd’s Rep 31; Minerva Navigation Inc v Oceana Shipping AG
(The Athena) [2013] 2 Lloyd's Rep 673; Western Sealanes Corporation v Unimarine S.A.—The Pythia [1982] 2
Lloyd’s Rep 160 (Q.B.) 106 ST4 cl 21; Terence Coghlin, John D. Kimball, Andrew W. Baker, Thomas H. Belknap, Jr. and Julian
Kenny., Time Charters (7th, Informa law, New York 2014) pg 687. 107 Reardon Smith Line v Australian Wheat Board (The Houston City) [1956] 1 Lloyd’s Rep 1 (P.C.). 108 Glynn v Margetson & Co. [1893] A. C. 351.
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49. It is finally submitted that, in any event, even if there was a loss of time occasioned to the
Respondents, the same was the result of the Respondents’ fault, and they can therefore not be
allowed to rely on the off-hire clause.
50. In certain cases, the Charterparty expressly provides for exclusion of the clause in instances
where the loss of time is caused due to the fault of the Charterers.109 The courts in such cases
have interpreted “charterer’s fault” to mean that there was some kind of a causal connection
between the time lost and an act or omission of the Charterers, irrespective of whether such
act or omission made the charterers morally blameworthy or liable for breach of the
contract.110 Moreover, it was inconsequential that the act or omission of the charterers was
unconscious or negligent.111 Even in cases where the C/P does not make an explicit exclusion
for charterer’s fault, the owners have been allowed an implied indemnity where they were
able to show that the loss of time was the direct cause of the owners following the
instructions of the charterers.112
51. The Master simply has the duty to follow the instructions given by the Charterers “within the
grave limits of obviously grave danger.” 113 There were explicit instructions from the
Respondents to the Master asking him to continue liaise with the STS coordinator. The
Master, accordingly, directed the Vessel to the location given by ASA2, the STS
coordinator.114 Any deviation and any corresponding loss of time, was undeniably a result of
acting as per the instructions of the Respondents.
52. The Respondents cannot take advantage of their own fault to invoke the off-hire clause. It is
thus submitted that, the Vessel was not off-hire.
109 Deutsche Ost- Afrika- Linie v Legent Maritime (The Marie H) [1998] 2 Lloyd’s Rep 71. 110 Berge Sund, The—Sig Bergesen D.Y. A/S v Mobil Shipping and Transportation Co. [1993] 2 Lloyd’s Rep
453 (C.A.). 111 Berge Sund, The—Sig Bergesen D.Y. A/S v Mobil Shipping and Transportation Co. [1993] 2 Lloyd’s Rep
453 (C.A.). 112 Leolga Compania de Navigacion v John Glynn & Sons Ltd. [1953] 2 Lloyd’s Rep 47, Lensen Shipping Ltd. v
Anglo-Soviet Shipping Co. [1935] 52 Ll.L.Rep 141; Rijn, The—Santa Martha Baay Scheepvaart &
Handelsmaatschappij N.V v Scanbulk A/S [1981] 2 Lloyd’s Rep 267 (Q.B.). 113 Portsmouth Steamship v Liverpool & Glasgow Salvage Association (1929) 34 Ll.L.Rep 459, 114 Memorandum for the Claimant, para 25.
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C. THE CHARTERPARTY WAS NOT FRUSTRATED DUE TO ANY REASON WHATSOEVER.
53. It submitted on behalf of the Claimants that the Charterparty was not frustrated, and hence
the obligations of both the parties under the Charterparty continued. Frustration of any
contract takes place when there is a supervening event, which occurs without the default of
either parties, and which was not within the contemplation of the parties at the time the
contract was entered into, thereby changing the nature of the contract so significantly that it
would be unjust to hold that the parties are still bound by the terms of the contract.115 The
same principle of frustration has been accepted in maritime law as well. 116 Thus, a
Charterparty is frustrated only when it would indeed be “monstrous” to hold that the parties
are still to continue performing the Charterparty; for instance, where the goods are of a
perishable nature, or when the market value of the goods is entirely destroyed.117 It is not
sufficient that the performance of the Charterparty had merely become onerous, or more
expensive. Frustration time is longer in time charterparties than in voyage charterparties.118
54. In the instant matter, it is submitted that, as already aforementioned 119 , if there was a
deviation it was a valid one for the purpose of bunkering. 120 Further, even if it were to be
held that there has been a delay due to the Respondent’s fault, it is not sufficient to prove that
the delay was of a considerable period; it must also be proved that the delay caused was such
that there was a radical transformation of the contract.121 Since frustration discharges both
parties of all their obligations under the Charterparty, it is not a concept which can be
invoked lightly.122 Furthermore, the event of a delay being caused due to frustration, being
one which was within the contemplation of the parties, could not have frustrated the
115 National Carriers Ltd. v Panalpina (Northern) Ltd. [1981] A.C. 675; Davis Contractors Ltd. v Fareham
U.D.C [1956] 2 All E.R.145 (H.L.). 116 Petroships Pte Ltd of Singapore v Petec Trading & Investment Corp of Vietnam (The Petro Ranger) [2001] 2
Lloyd's Rep 348. 117 Geipel v Smith [1872] L.R. 7 Q.B. p 410. 118 Paul Todd, Maritime Fraud and Piracy (2nd edn, Informa Publishing, 2013) pg 44. 119 Memorandum for the Claimant, para 47. 120 Memorandum for the Claimant, para 47. 121 Bank Line v Arthur Capel, [1919] AC 435. 122 Super Servant Two, The—Lauritzen (J.) A/S v Wijsmuller B.V [1990] 1 Lloyd’s Rep 1 (C.A.).
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Charterparty.123 The Charterparty could easily have continued124 despite any possible delays
and there was no “radical transformation of the contract.”
55. Moreover, it is also contended that the incident of the piracy attack could not have frustrated
the contract, as that did not result in any “radical transformation of the Charterparty” either.
When the Vessel was found only ten days after the piracy attack, with substantial discharge
of cargo, there was no frustration of the Charterparty.125 The circumstances in the instant case
are very similar, and the Charterparty provided for piracy at length, implying that the event
was also foreseeable. Moreover, the nature of piracy in West Africa, as opposed to Somalia
where the ships are held for several months, is such that they hold the ship hostage only for a
few days.126 Therefore, there was no reason for the parties to have believed, even when the
event of piracy occurred, that the Charterparty was frustrated.127
V. THE CLAIMANT HAS NOT BREACHED THE CHARTERPARTY AS THEY PROVIDED A
VESSEL THAT WAS FIT FOR SERVICE, AS IS REQUIRED BY THE CHARTERPARTY.
56. The Claimants’ duty to provide a Vessel which is seaworthy is an absolute warranty under
ST4. However, when the claim of unseaworthiness pertains to loss of or damage to cargo,
then the incorporation of the HVR reduces the requirement to the exercise of “due diligence”.
It is submitted that the Claimants exercised due diligence to ensure that the Vessel was fit for
service, and that it was inter alia, manned by a competent crew. It is contended that the
Master was not incompetent as he followed the instructions of the Respondents and their
agents [A] and that the Master did not fail to follow anti-piracy precautions [B].
123 Sea Angel, The—Edwinton Commercial Corp. v Tsavliris Russ (Worldwide Salvage & Towage) Ltd. [2007] 2
Lloyd’s Rep 517 (C.A.). 124 Tamplin Steamship Company v Anglo-Mexican Petroleum Products Compan, [1916] 1 K.B. 485. 125 Petroships Pte Ltd of Singapore v Petec Trading & Investment Corp of Vietnam (The Petro Ranger) [2001] 2
Lloyd's Rep 348 126 Ahmad Taleb, 'Piracy in West Africa Targets the Region’s Oil Industry' (International Policy Digest 2014)
<http://www.internationalpolicydigest.org/2014/12/30/piracy-west-africa-targets-regions-oil-industry/>
accessed April 19, 2015. 127 Petroships Pte Ltd of Singapore v Petec Trading & Investment Corp of Vietnam (The Petro Ranger) [2001] 2
Lloyd's Rep 348
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A. THE MASTER WAS NOT INCOMPETENT AS HE FOLLOWED THE INSTRUCTIONS OF THE
RESPONDENTS.
57. The Master directed the Vessel to the alternate discharge location in compliance with the
instructions given by ASA2128, the agents of the Respondents.129 There is a duty on the
Master to follow the instructions of the charterers.130 Sometimes the nature and circumstances
of the order are such that the Master, as a reasonable man, should not instantaneously comply
with them.131 He is instead required to enquire into the legality of the instructions. In the
instant matter, the Master fulfilled this duty. On receiving instructions from the Respondents’
agent that appeared contrary to the instructions given by the Respondents, the Master sent an
e-mail to the Respondents with all the material information. Thereafter, he continued to act in
accordance with the Respondent’s instructions.
58. Moreover, it is submitted that even if it were to be said that the Master acted according to the
instructions given by a third party, the same would amount to negligence and not
incompetence. The difference between the two has often been highlighted.132 Incompetence
of the crew has been defined as a “disabling want of skill” or a “disabling want of
knowledge.”133 The Master is said to be negligent when despite possessing the requisite skill
and knowledge, he is unable to carry out his duty properly.134
59. There is nothing in the facts to support that the Master lacked skill or knowledge required of
a person stationed in his post. He was merely, on an occasion, unable to discharge the
standard of care expected of a reasonable man. Thus, his act of following the instructions of a
128 Factsheet, pg 35 Correspondence on June 28, 2014. 129 Memorandum for the Claimants, para 25. 130 ST4 cl 13; Hill Harmony, The—Whistler International v Kawasaki Kisen Kaisha [2001] 1 Lloyd’s Rep 147. 131 Kuwait Petroleum Corporation v I & D Oil Carriers Ltd.—The Houda [1994] 2 Lloyd’s Rep 541 (C.A.). 132 Simon Baughen, Shipping Law (6th, Routledge, London 2015) 85. 133 Standard Oil Co. of New York v Clan Line Steamers Ltd. [1924] AC 100. 134 Blyth v Birmingham Waterworks [1856] 11 Ex R 781.
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third party, would amount to negligence. Negligence in itself will not result in breach of the
warranty of seaworthiness.135
B. The Master did not fail to follow anti-piracy precautions as required by the
Charterparty and/or industry practice relating to West Africa.
60. While there have been increasing instances of piracy in West Africa, the region, that the
Vessel was in, is not a high risk area for piracy. There has only been one sole incidence of
piracy in the Angola region. 136 Therefore, directing the Vessel, through the alternate
discharge location, did not impose any special obligation on the Master to ensure the safety
of the Vessel, the crew, and the cargo.
61. Furthermore, the facts clearly show that despite not operating in an area that is internationally
recognized as a high piracy risk area, the Master was trying his best to take all precautions
under BMP4.137 One of the best ways to combat a piracy attack is to increase the speed of the
Vessel, as that makes it difficult for the pirates to get onboard the Vessel.138 However, in the
instant case, the Master did not have that option because he was forced to reduce the speed of
the Vessel because of the Respondents’ failure to supply sufficient bunkers. 139 BMP4
mandates that the Master should be vigilant, and must keep watch through radars.140 It is
evident that the Master at all times was keeping a close eye on the radar, and was watchful of
any suspicious movements.141 In light of the fact that not all measures given under BMP4 are
135 Steel v Slate Line Steamship Co. [1877] 3 App Cas 72 HL, International Packers London Ltd. V Ocean
Steam Ship Co. Ltd. [1955] 2 Lloyd’s Rep 719, QB. 136 ICC International Maritime Bureau, ‘Piracy and Armed Robbery against Ships – Report for the period of 1
January – 30 June 2014’ <http://www.allaboutshipping.co.uk/wp-content/uploads/2014/07/2014-Q2-IMB-
Piracy-Report-ABRIDGED.pdf> accessed on 20 April 2015. 137 Factsheet, pg 36: Correspondence on June 29, 2014. 138 IMO, Best Management Practices for Protection Against Somali Based Piracy, Version 4, August 2011, pg 7
(hereinafter ‘BMP 4’). 139 Factsheet, pg 32: Correspondence on June 25, 2014: Correspondence on July 17, 2014. 140 BMP4, pg 23. 141 Factsheet, pg 40: Correspondence on July 4, 2014.
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applicable to all types of vessels 142 , the Master cannot be held incompetent for non-
compliance with one particular measure given under BMP4.
62. Therefore, the Claimants exercised due diligence to ensure that the Vessel was fit for service.
VI. THE CLAIMANTS HAVE NOT BREACHED THEIR DUTY AS A BAILOR.
The Claimants submit that the Claimants can exercise the force majeure defence [A] and
piracy is an exception under the Hague-Visby Rules [B].
A. PIRACY IS A FORCE MAJEURE EVENT
63. Events out of the control of the bailee are a universally accepted common law defence.143
Similarly, it is also an accepted principle that piracy is a force majeure event, out of the
control of either of the parties.144 The cause of the damage to the cargo, in this case, was the
hijacking of the vessel by pirates. Since the event causing damage is out of the control of the
Claimants, they cannot be held liable for the same.
64. Additionally, under common law, piracy is an absolute defence. Therefore, when a Ship-
owner can prove the loss to cargo is caused by pirates, he is absolved from the burden of
arguing his negligence.145 The loss to cargo is clearly a direct result of the piracy attack on the
ship, as is reported by the master146.
B. IN ANY CASE, PIRACY IS EXCEPTED UNDER THE HVR
65. Under English Law, where the bill of lading is signed by the master, the presumption is that it
takes effect as a contract with the employer of the master.147 Moreover, even when the bill of
lading is signed by the time charterer or his agent for and on behalf of the master, the carrier
142 BMP4 pg 1. 143 Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19 144 'Principle No. VI.3 - Force majeure' (Trans-Lex.org ) <http://www.trans-lex.org/944000> accessed April 19,
2015 145 Czech v General Steam Co. [1867] L. R. 3 C. P. 14. 146 Factsheet, pg 42: Correspondence on July 17, 2014. 147 Turner v Haji Goolam [1904] A.C. 826; Wehner v Dene [1905] 2 K.B 92; Limerick v Coker [1916] 33 T.L.R
103; Terence Coghlin, John D. Kimball, Andrew W. Baker, Thomas H. Belknap, Jr. and Julian Kenny, Time
Charters (7th, Informa law, New York 2014) 333.
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may still be the ship-owner because the time charterer generally has an authority to sign the
bill of lading so as to bind the ship-owner.148
1. Piracy was the result of an act, neglect, or default of the master, mariner, pilot, or the
servants of the carrier in the navigation or management of the ship
66. HVR provides that actions that are solely the fault of the master or any other servant of the
owners cannot be held to be the fault of the owner. 149 ‘Actions’ of the master include
navigation150, and other duties. It is submitted that the hijacking of the vessel by pirates was
solely the fault of the Master and the owners played no part in it and thus, cannot be held
liable.
67. The theory of this exception is that in olden times, it was very tough for the Owners to keep
in touch with and track of the master or the vessel.151 The Owners were kept similarly in the
dark about the proceedings off the coast of Luanda because even they weren’t aware of
whom the Master was contacting with. Further, they had no details about what decisions the
master was taking and shouldn’t be held liable for any loss arising from them.
2. The act of piracy was without any fault of the carriers
68. HVR provides the carrier with the exception to liability in cases where the cause of
the damage was without any fault of the carriers.152 The only burden on the carrier is to prove
that the event was not caused by any act of negligence of them, their agents or their servants.
148 Tillmans v Knutsford [1908] A.C 406; Terence Coghlin, John D. Kimball, Andrew W. Baker, Thomas H.
Belknap, Jr. and Julian Kenny, Time Charters (7th, Informa law, New York 2014) 149 Protocols to the International Convention for the Unification of Certain Rules of Law relating to Bills of
Lading (Brussels, 25 August 1924), Art IV 2(a) 150 Seven Seas Transportation Ltd v Pacifico Union Marina Corp (The Satya Kailash and The Oceanic Amity)
[1984] 1 Lloyd's Rep 588 151 Son & Co (Dublin) Ltd v Owners of the Motor Vessel Freshfield (The Lady Gwendolen) [1965] 3 W.L.R. 91 152 HVR, Art IV, Rule 2(q)
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69. It is submitted and has been dealt with in prior submissions that the vessel was
employing ‘anti-piracy’ measures. The Claimants therefore submit that the cause of the loss
to cargo was removed from any attributable negligence of the Claimants.
PRAYER
For the reasons set out above, the Claimants request this Tribunal to: DECLARE that this
Tribunal has jurisdiction to hear the present matter; and ADJUDGE that the Respondents are
liable for the payment of hire, breach of Charterparty and for fraudulent representations; and
AWARD damages suffered by following these fraudulent representations.