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SEVENTEENTH ANNUAL INTERNATIONAL MARTIME LAW ARBITRATION MOOT COMPETITION 2017 IN THE MATTER OF AN ARBITRATION HELD IN SINGAPORE CLAIMANT RESPONDENT FURNACE TRADING PTE LTD INFERNO RESOURCES SDN BHD MEMORANDUM FOR THE CLAIMANT TEAM NO. 4 DANIEL GAZZARD ZOE KALIMERIS DONNÉ OOSTHUIZEN DOMENICO ROMEO

SEVENTEENTH ANNUAL INTERNATIONAL MARTIME LAW ARBITRATION ... · SEVENTEENTH ANNUAL INTERNATIONAL MARTIME LAW ARBITRATION MOOT COMPETITION 2017 ... Prudential Assurances Co Ltd v Ayres

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SEVENTEENTH ANNUAL INTERNATIONAL MARTIME LAW

ARBITRATION MOOT COMPETITION 2017

IN THE MATTER OF AN ARBITRATION HELD IN SINGAPORE

CLAIMANT RESPONDENT

FURNACE TRADING PTE LTD INFERNO RESOURCES SDN BHD

MEMORANDUM FOR THE CLAIMANT

TEAM NO. 4

DANIEL GAZZARD

ZOE KALIMERIS

DONNÉ OOSTHUIZEN

DOMENICO ROMEO

i

TABLE OF CONTENTS

Part One: Jurisdiction ............................................................................................................. 2

I. The Tribunal Has the Power to Rule on Its Own Jurisdiction…………………….2

II. The International Arbitration Act Applies to this Arbitration……………………2

III. Singaporean Law Governs the Arbitration Agreement………………………….3

IV. The Arbitration Agreement is Valid……………………………………………..3

A. The Fixture Recap Validly Modified the Coal Orevoy………………………….4

B. An Agreement May Be in Electronic Form……………………………………..5

C. A Signature is Not Necessary…………………………………………………...5

V. This Tribunal Has the Power to Make Interim Orders for the Sale of Property...5

A. Scope of The Dispute Is Determined by Reference to the Submission to

Arbitration…………………………………………………………………………….6

B. The Cargo is Subject Matter of the Dispute……………………………………..6

(i) The Issues Giving Rise to the Sale of the Cargo were Directly Linked to the

Primary Dispute……………………………………………………………………….7

(ii) RESPONDENT was Aware of all Issues……………………………………………8

VI. It Is Necessary and Just For the Cargo to Be Sold Pendente Lite……………….8

Part Three: Liability in Contract ......................................................................................... 11

I. Respondent breached the Voyage Charterparty………………………………..11

A. RESPONDENT Breached Clause 19 of the Voyage Charterparty…………….….11

(i) The Freight was Due on 9 October 2016………………………………………11

(ii) The Freight was Payable by 14 October 2016…………………………………12

B. Respondent Breached Clause 16 of the Charterparty………………………….12

(i) The RESPONDENT Did Not Nominate a Discharge Port Within the Specified

Time…………………………………………………………………………………12

ii

(ii) In any event, Busan Was Not a Valid Port Nomination………………………..13

C. CLAIMANT was Entitled to Treat the Contract as Discharged………………….14

(i) Respondent’s Conduct Amounted to a Repudiation of the Contract…………..15

(ii) Respondent’s conduct amounted to a renunciation…………………………….18

(iii) Respondent’s Repudiation and/or renunciation was Accepted by Claimant…..19

Part Three: Valid Exercise of Lien ....................................................................................... 21

II. Claimant Has a Valid and Enforceable Contractual Lien Over the Cargo……..21

A. The Terms of the Voyage Charterparty Were Validly Incorporated Through the

B/L…………………………………………………………………………………...21

B. The Shipper was Bound by the Voyage Charterparty………………………….23

(i) The Shipper intended to be bound by the Voyage Charterparty/………………23

(ii) The terms of the Voyage Charterparty were reasonably ascertainable to the

Shipper………………………………………………………………………………24

C. RESPONDENT Failed to Pay Freight in Accordance the Voyage Charterparty…25

D. CLAIMANT Gave Sufficient Notice to RESPONDENT of the Exercise of a Lien...25

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

iii

INDEX OF ABBREVIATIONS

Furnace Trading Pte Ltd CLAIMANT

Inferno Resources Sdn Bhd RESPONDENT

Idoncare Berjaya Utama Pty Ltd Shippers

IMLAM Consignorist GmbH Shipowners

M.V. Tardy Tessa Vessel

The Voyage Charter fixed on an amended

BIMCO standard Coal and Ore Charterparty

and evidenced in an email dated 1 September

2016

Voyage Charterparty

BIMCO standard Coal and Ore Charterparty Coal Oravoy

Email dated 1 September 2016 which

amended the Coal Oravoy

Fixture Recap

International Arbitration Act (Cap 143A,

2002 Rev Ed)

IAA

Singapore Chamber of Maritime Arbitration

Rules

SCMA Rules

UNICITRAL Model Law on International

Commercial Arbitration

Model Law

Bill of Lading B/L

The Charterparty between CLAIMANT and

the Shipowner

The Time Charterparty

84,000 MT of Molloo Australian Steam coal

The Cargo

Tan Xiao Ming

The Master

Eric Yan

The Broker

The 2017 International Martitime Law

Arbitration Law Moot

Moot problem

CLAIMANT and RESPONDENT

The parties

Gordon Grill

CLAIMANT’S Representative

Peter Girvin

The Shipowner’s Representative

Clause 29 of the Fixture Recap

Arbitration Clause

iv

LIST OF AUTHORITIES

CASES AND ARBITRAL AWARDS

‘The Federal Bulker’ [1989] 1 Lloyd’s rep 103

‘The Kostas K’ [1985] 1 Lloyd’s Rep 231

‘The Trade Resolve’ [1990] 2 SLR 129

Alliance Concrete Singapore Pte Ltd v Comfort Resources Pte Ltd [2009] 4 SLR (R) 602

Alliance Concrete Singapore Pte Ltd v Sato Kogyo (S) Pte Ltd [2014] 3 SLR 857

Amelia Shipping Inc v State Enterprise for Pulp and Paper Industries [1991] SGHC 36

American Cyanamid Co v Ethicon Ltd [1975] AC 396

Astrata (Singapore) Pte Ltd v Tridex Technologies Pte Ltd [2011] 1 SLR 449

Banco do Brasil S.A. v. "Alexandros G. Tsavliris" (The) [1987] CarswellNat 252

Bangladesh Chemical Industries v Tex-Dilan Shipping Co (The S.L.S Everest) [1981] 2 Lloyd’s Rep. 389

Bentsen v Taylor [1983] 2 QB 274

Bradford v Williams (1872) LR 7 Ex 259

Brostrom & Son v Dreyfus & Co (1932) 44 Ll L Rep 136

Bunge Corporation New York v Tradax export SA, Panama [1989] 1 WLR 711

Caresse Navigation Ltd v Zurich Assurances Maroc and Others (‘The Channel Ranger’) [2014] 1 Lloyd’s

Rep 337

Challenger Technologies Ltd v Courts (Singapore) Pte Ltd [2015] SGHC 218

Citicorp Investment Bank v Wee Ah Kee [1997] 2 SLR 759 8

Colonial Bank v European Grain and Shipping Co Ltd (‘The Dominique’) [1989] 1 Lloyds Rep 431

Compania Naviera General SA v Kerametal Ltd (‘The Lorna I’) [1983] 1 Lloyds Rep 373

Concordia Agritrading Pte Ltd v Cornelder hoogewerft (Singapore) Pte Ltd [1999] 3 SLR(R) 618

D’amico Shipping Italia Spa v Endalfa DMCC & ANOR [2016] EWC 2223 (Comm)

Decro-Wall International SA v Practitioners in Marketing Ltd [1971] 1 WLR 361

Dry Bulk Handy Holding Inc. and another v. Fayette International Holdings and another (‘Bulk Chile’)

[2013] EWCA Civ 184

Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847; [1915] UKHL 1

Econ Piling Pte Ltd v. NCC International AB [2007] SGHC 17

Fercometal S.A.R.L v Mediterrean Shipping Co SA [1989] AC 788

FirstLink Investments Corp Ltd v. GT Payment Pte Ltd and others [2014] SGHCR 12

Five Ocean Corporation v Cingler Ship Pte Ltd [2015] SLR 1159

Force India Formula One Team Ltd v Areolab SRL [2013] EWCA Civ 780

Franklin Lumber Ltd. v. "Essington II" (The) 2005 FC 95

Freight Connect (S) Pte Ltd v Paragon Shipping Pte Ltd [2015] 5 SLR 178

Front Carriers Ltd v Atlantic & Orient Shipping Corp [2006] 3 SLR (R) 854

Gard Marine & Energy Ltd v China National Chartering Co Ltd (The Ocean Victory) [2015] EWCA Civ

16; [2015] 1 Lloyd’s Rep 381

Glencore Grain BV v The Ship Lancelot V [2015] NZHC 2052

Gullischen v Stewart (1884) 13 Q.B.D. 317

Hain SS Co v Tate & Lyle (1936) 41 Com Cas 350

Hamilton v Mackie (1889) 5 T.L.R. 677

Heskell v Continental Express (1950) 83 L1.L.R. 438

Heyman v Darwins Ltd [1942] 72 LL.L.Rep 65

Hingston v Wendt (1876) 1 QBD 367

Homburg Houtimport B.V. v Agrosin Private Ltd and Others (“The Starsin”) [2003] 1 Lloyd’s Rep 571

Hong Kong Fir Shipping Co Ltd v Kawasaki Kisan Kaisha Co [1962] 2 QB 26

v

Hyundai Shipbuilding and Heavy Industries Co v Pournaras [1978] 2 Lloyds Rep 502

Indian Company v Pakistani Bank, Award, ICC Case No. 1512, 1971 in Yearbook 1976, Vol. I,

128

Indian Oil Corporation v. Vanol Inc [1992] 2 Lloyd's Rep 563

Insigma Technology Co Ltd v Alstom Technology Ltd [2009] 3 SLR(R) 936

International Research Corp PLC v Lufthansa Systems Asia Pacific Pte ltd [2014] 1 SLR 130

Jiangsu Overseas Group Co, Ltd v. Concord Energy Pte Ltd and another matter [2016] SGHC 153

Johnson v Agnew [1980] AC 367

K/S A/S Seateam v Iraq National Oil Co (The Sevonia Team) [1983] 2 Lloyds Rep. 640

Karin Vatis Vagres Compania Maritime SA v Nissho-Iwai America Corp (‘The Karin Vatis’) [1988] 2 Lloyds

Rep 330

Kirchner v Venus (1859) 12 Moo PC 361

Kodros Shipping Corpn v Empresa Cubana de Fletes (No 2) (The Evia (No 2)) [1983] 1 AC 736; [1982]

Lloyd's Rep 307

L Schuler AG v Wickham Machine Tools Ltd [1974] AC 235

L&M Concrete Specialist Pte Ltd v United Eng Contractors Pte Ltd [2000] 2 SLR(R) 852

Larsen Oil and Gas Pte Ltd v Petropod Ltd [2011] 3 SLR 414

Leeds Shipping Co Ltd v Societe Francaise Bunge (The Eastern City) [1958] 2 Lloyd’s Rep 127

MacAndrew v Chapel (1866) LR 1 CP 643

Maldives Airport Co Ltd v GMR Male International Airport Pte Ltd [2013] 2 SLR 449

Man Financial (S) Pte Ltd v Wong Bark Chuan David [2008] 1 SLR (R) 663

Metall Market 000 v Vitorio Shipping Co Ltd (‘the Lehmann Timber’) [2013] 2 Lloyds Rep 541

National Navigation Co v Endesa Generacion SA (The Wadi Sudr) [2009] EWHC 196 (Comm).

NCC International AB v Alliance Concrete Singapore Pte Ltd [2008] SGCA 5

NCC International AB v Alliance Concrete Singapore Pte Ltd [2008] SLR 5563

Ocean Projects Inc v Ultratech Pte Ltd [1994] 2 SLR (R) 245

P.T. Tri-M.G. Intra Asia Airlines (Indonesia) v. Norse Air Charter Limited (Mauritius) [2009] SGHC 13

Pacific Molasses & United Molasses Trading Co v Entre Rios Compania Naviera (The San Nicolas) [1976]

1 Lloyd’s Rep. 8

Palace Shipping Co Ltd v Gans Steamship Line [1916] 1 KB 138

Photo Production Ltd v Securicor Transport Ltd [1980] 1 Lloyds Rep 545; [1980] AC 827

Pirelli Cables v United Thai [2000] 1 Lloyd’s Rep 663

Porteus v Watney (1878) 3 Q.B.D 534

Prudential Assurances Co Ltd v Ayres [2008] EWCA Civ 52

PT ASuransi jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR(R) 597

PT Prima International Development v Kempinski Hotels SA [2012] 4 SLR 98

RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd [2007] 4 SLR (R) 413

Re Beloff Michael Jacob QC [2014] SLR 424

Reinante Transoceanic Navegacion SA v President of India (The Apiliotis) [1985] 1 Lloyd’s Rep 255

Ross T Smyth & Co v T D Bailey, Son & Co [1940] 3 ALL ER 60

Rudhra Minerals Pte Ltd v MRI Trading Pte Ltd (formerly known as CWT Integrated Services Pte Ltd)

[2013] 4 SLR 1023

San International Pte Ltd v Keppel Engineering Pte Ltd [1998] 3 SLR(R) 447

Sato Kogyo (S) Pte Ltd [2014] 3 SLR 857

Serraino v Campbell [1891] 1 Q.B. 283

Sewell v Burdick (1884) 10 App.Cas. 74

Singapore Press Holdings Ltd v Brown Noel Trading Ptd Ltd [1994] 3 SLR(R) 114

SK Shipping (S) Pte Ltd v Petroexport Ltd (‘The Pro Victor’) [2010] 2 Lloyds Rep 158

SK Shipping (S) Pte Ltd v Petroexport Ltd [2009] EWHC 2974 (Comm)

Sports Connection Pte Ltd v Deuter Sports GmbH [2009] 3 SLR (R) 883

vi

Star-Trans Far East Pte ltd v Norske- Tech Ltd [1996] 2 SLR(R) 196

Stella Jones v Hawknet [2002] F.C.A. 315

Sui Southern Gas Co Ltd v Habibullah Coastal Power Co (Pte) Ltd [2010] 3 SLR 1

Suisse Atlantique Société d’Armement SA v NV Rotterdamsche Kolen Centrale [1967] 1 AC 361

Sulamerica Cia Nacional De Seguros S.A. & Ors v Enesa Engenharia SA & Ors [2012] EWCA Civ 638

Taddy & Co v Sterious & Co [1904] 1 Ch 354

Tagart, Beaton & Co v James Fisher & Sons [1903] 1 KB 391

Tan Soo Leng David v Lim Thian Chai Charles [1998] 1 SLR(R) 880

The ‘Epsilon Rosa’ [2002] 2 Lloyd’s Rep 81

The “Channel Ranger” [2015] 1 Lloyd’s Rep 256

The “Star Quest” and other matters [2016] SGHC 1304

The Annefield [1971] 168

The Athenian Zoe (No 2) [1985] 1 HKC 367

The Chrysovalandou Dyo [1981] 1 Lloyd’s Rep 159

The Lucille [1984] 1 Lloyd’s Rep 244

The Mary Lou [1981] 2 Lloyd’s Rep 272

The Merak [1965] 223

The Mihalio Xilas [1978] 2 Lloyd’s Rep 186

The Myrto [1977] 2 Lloyd's Rep 243

The Phonizen [1966] 1 Lloyd’s Rep. 150

The Rainbow Spring [2002] SGHC 255

The Saga Cob [1991] 2 Lloyd’s Rep 398

The SLS Everest [1981] 2 Lloyd’s Rep 389

The Starsin [2003] 1 Lloyd’s Rep 571

The STX Mumbai and Another Matter [2015] 5 SLR 1

The Varenna [1984] QB 599

Thomas v Portsea [1912] A.C. 1 HL

Tjong Very Sumito v Antig Investments [2009] 4 SLR(R) 732

Tradigrain SA v King Diamond Marine Ltd (The Spiros C)

Turner v Haji Goolam [1904] AC 826

Universal Cargo Carriers Corp v Citati [1957] 2 Lloyds Rep 72

Vitol SA v Norelf Ltd [1996] AC 800

Western Bulk Shipowning v Carbofer Maritime Trading (The Western Moscow) [2012] EWHC 1224

STATUTES AND CONVENTIONS

International Arbitration Act (Cap 143A, 2002 Rev Ed)

UNCITRAL Model Law on International Commercial Arbitration

Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958)

BOOKS

Andrew Phang and Goh Yihan, Contract Law in Singapore, Kluwer Law International, 2012.

Andrew Phang, Contract Law in Singapore (Academy Publishing, 2012)

Beale, HG, Chitty on Contracts (Sweet and Maxwell, 32nd ed, 2012)

David Joseph and Lim Wei Lee, Singapore International Arbitration: Law and practice (LexisNexis, 2014

Emmanuel Gaillard and John Savage (eds), Fouchard Gaillard Goldman on International Commercial

Arbitration, (Kluwer Law International, 1999)

Gary Born, International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014)

J W Carter, Carters Breach of Contract (Hart Publishing, 2012)

vii

John F Wilson, Carriage of Goods by Sea, Pearson Education 2001 4th ed.

Julian Lew et al., Comparative International Commercial Arbitration (Kluwer Law International, 2003)

Julien Cook et al, Voyage Charters (Informer Law, 3rd ed, 2007)

Lord Collins of Mapesbury et al (eds), Dicey, Morris & Collins on the Conflict of Laws (Sweet & Maxwell,

15th ed, 2016)

Nigel Blackaby, Constantine Partasides et al, Redfern and Hunter on International Arbitration (Oxford

University Press, 6th ed, 2015)

Scrutton on Charterparties, (18th ed. (1974))

Simon Boughen, Shipping Law (Rutledge, 2015).

Sir Bernard Edar et al., Scrutton on Charterparties and Bills of Lading, (Thompson Reuters (professional

UK Ltd), 2015)

Sir Bernard Eder et al, Scrutton on Charterparties and Bills of Lading (Thomson Reuters (Professional UK

Ltd), 24th ed, 2015)

Treitel, Carver on Bills of Lading

JOURNAL ARTICLES

D. Rhidian Thomas, ‘Admirality Sales Pendente Lite’ (1998) 17 Civil Justice Quarterly 409

Rhidian Thomas, ‘The Safe Port Promise of Charterers from the Perspective of the English Common Law’

(2006) 18 Singapore Academy of Law Journal 597

OTHER AUTHORITIES

Introductory Recitals to UN General Assembly Resolution 40/72 (1985).

Oxford English Dictionary

Sandra Lielbarde, The Incorporation of a Charterparty Arbitration Clause in the Bill Of Lading: Binding

Effect of Contract Without Consent (Masters Thesis, Lund University, 2010)

SCMA Rules 3rd Edition (October 2015).

Singapore Parliamentary Debates, Official Report (31 October 1994) vol 63, col 627 (Assoc Prof Ho Peng

Kee, Parliamentary Secretary to the Minister for Law)

UNICITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral

Awards (New York, 1958) 2016 Ed, UN Doc (September 2016)

UNICITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral

Awards (New York, 1958) 2016 Ed, UN Doc (September 2016)

1

STATEMENT OF MATERIAL FACTS

THE TIME CHARTERPARTY

1. On 15 February 2016, Furnace Trading Pte Ltd (‘CLAIMANT’) contracted with Imlam Consignorist

GmbH (‘the Shipowner’) to hire the M.V. Tardy Tessa (‘the Vessel’) for a period of two (2) years

pursuant to a time charterparty (‘the Time Charterparty’). The Time Charterparty included a clause

granting CLAIMANT the liberty to sub-let the Vessel.

THE VOYAGE CHARTERPARTY

2. On 1 September 2016, a Voyage Charterparty was entered into between CLAIMANT and Inferno

Resources Sdn Bhd (‘RESPONDENT’) for the transport of 80,000 MT MOLOO Australian Steam Coal

(‘the Cargo’) from Newcastle, Australia, to a discharge port to be nominated (‘the Voyage

Charterparty’). The Voyage Charterparty was fixed on an amended BIMCO Standard Coal and Ore

Charterparty as evidenced in an email dated 1 September 2016 (‘the Fixture Recap’).

3. RESPONDENT, in turn, sub-chartered the Vessel to Idoncare Berjaya Utama Pty Ltd (‘the Shipper’)

in accordance with Clause 4 of the Voyage Charterparty.

CLAIMANTS’ NOTICE OF LIEN OVER CARGO

4. In an email dated 20 October 2016, CLAIMANT contacted RESPONDENT regarding its failure to

pay freight and its consistent delay in nominating a legitimate discharge port. RESPONDENT

notified CLAIMANT that they were unable to pay freight on the basis that they had not received

freight from the Shipper. CLAIMANT subsequently exercised its lien over the Cargo for sub-

freight under the Voyage Charterparty. However, RESPONDENT still neglected to nominate a

discharge port.

THE NOTICE OF TERMINATION

5. On 21 October 2016 RESPONDENT nominated Ningbo as the discharge port. RESPONDENT stated that

it was unable to make payment of freight at that time; however, promised to do so after the delivery

and discharge of the Cargo at Ningbo. CLAIMANT sent its notice of termination of the Voyage

Charterparty to RESPONDENT on 22 October 2016.

2

THE ARBITRAL PROCEEDINGS

6. On 25 November 2016, CLAIMANT referred the matter to arbitration in accordance with Clause 29

of the Voyage Charterparty. CLAIMANT contends that RESPONDENT is in breach of the Voyage

Charterparty due to its failure to pay freight and its failure to nominate a legitimate discharge port

on time. CLAIMANT seeks US$771,120.48 in freight, and liberty to sell the Cargo pendente lite.

These proceedings have been consolidated for the Tribunal’s reference.

PART ONE: JURISDICTION

I. THE TRIBUNAL HAS THE POWER TO RULE ON ITS OWN JURISDICTION

1. An arbitral tribunal has the power to rule on its own jurisdiction, due to the kompetenz-kompetenz

doctrine.1 There is no evidence that gives rise to a challenge of the competence of this Tribunal.

II. THE INTERNATIONAL ARBITRATION ACT APPLIES TO THIS ARBITRATION

2. The International Arbitration Act2 (‘IAA’) will apply to arbitrations where, at the conclusion of the

arbitration agreement, at least one of the parties had its place of business in any State other than

Singapore.3 CLAIMANT’S business address is in Singapore; however, RESPONDENT’S business address

is in Malaysia. This is evident from the initial notice of arbitration4 and the terms of the Voyage

Charterparty.5 As such, the IAA will apply to this case.

2. Section 3 of the IAA gives force of law to the UNCITRAL Model Law on International Commercial

Arbitration 1985 (‘the Model Law’). The Model Law was designed to harmonise international

arbitration legislation globally, in order to promote predictability and efficiency in international trade

law.6 It was also drafted so that it could easily be inserted as domestic legislation to all nations that

1 International Arbitration Act (Cap 143A, 2002 Rev Ed) s 3; Art 16 UNCITRAL Model Law on International Commercial

Arbitration GA Res 2205 (XXI), UN GAOR, 40th sess, 112th plen mtg, UN Doc A/40/17 (21 June 1985); r 20 (a) SCMA

Rules 3rd Edition (October 2015). 2 (Cap 143A, 2002 Rev Ed) 3 International Arbitration Act (Cap 143a, Rev ed 2002) Singapore, s 5(2)(a). 4 Moot problem, 82. 5 Ibid, 20.. 6 ‘Introductory Recitals’ GA Res 40/72 (XXI), UN GAOR, 40th sess, 112th plen mtg, UN Doc A/40/17 (21 June 1985).

3

have ratified the convention.7

3. Singapore has only given legislative effect to Article 17J of the 2006 Model Law Amendments,8

through section 12A of the IAA.9 As such, bar section 12A, the scope of the IAA is limited to the

provisions of the Model Law that were in effect as of 1985.

III. SINGAPOREAN LAW GOVERNS THE ARBITRATION AGREEMENT

3. The law applicable to an arbitration agreement (the lex arbitri) may be determined by express reference

within an arbitration agreement itself.10

4. CLAIMANT submits that Clause 26 of the Coal Orevoy, titled ‘DISPUTE RESOLUTION’ as amended

by Clause 29 of the Fixture Recap (‘the Arbitration Agreement’), is a written term of the Voyage

Charterparty and represents an agreement to arbitrate between CLAIMANT and RESPONDENT.11

5. The Arbitration Agreement provides for ‘Singapore law and arbitration’,12 and CLAIMANT submits that

this constitutes an express nomination of Singaporean law as the lex arbitri.

6. Further, the Arbitration Agreement provides for arbitration in accordance with the Singapore Chamber

of Maritime Arbitration Rules (‘SCMA Rules’).13

7. In any event, CLAIMANT submits that Singapore law is the also the law with the closest connection to

the dispute, and should be the lex arbitri for that reason.

IV. THE ARBITRATION AGREEMENT IS VALID

8. The IAA governs international arbitration agreements that are subject to Singaporean law.14 Under the

7 Ibid. 8 UNCITRAL Model law on International Commercial Arbitratioin 1985 with Amendments as Adopted in 2006. 9 In relation to court-ordered interim measures. 10 Sulamerica Cia Nacional De Seguros S.A. & Ors v Enesa Engenharia SA & Ors [2012] EWCA Civ 638, [25](Moore-

Bick LJ); Indian Company v Pakistani Bank, Award, ICC Case No. 1512, 1971 in Yearbook 1976, Vol. I,

128; Art 35(1) UNCITRAL Model Law on International Commercial Arbitration; Nigel Blackaby, Constantine Partasides

et al, Redfern and Hunter on International Arbitration (Oxford University Press, 6th ed, 2015) 186-187; Lord Collins of

Mapesbury et al (eds), Dicey, Morris & Collins on the Conflict of Laws (Sweet & Maxwell, 15th ed, 2016) 836, [16-017]. 11 Moot problem, 23. 12 Ibid 23. 13 Moot problem, 23; SCMA Rules 3rd Edition, r 22; Gary Born, International Commercial Arbitration (Kluwer Law

International, 2nd ed, 2014) 2427; Julian Lew et al., Comparative International Commercial Arbitration (Kluwer Law

International, 2003) 586-587 [23-8]-[23-9]. 14 International Arbitration Act (Cap 143A, 2002 Rev Ed).

4

IAA, once an arbitration agreement is shown to exist, it is presumed to be valid unless proven

otherwise.15

9. CLAIMANT submits that the Arbitration Agreement is found in Clause 29 of the Fixture Recap, which

is a written term of the Voyage Charterparty. Therefore, it should be presumed to be valid.

10. CLAIMANT submits that there are no issues that should affect this presumption including, but not limited

to A) the Fixture Recap validly modified the Coal Orevoy; B) an arbitration agreement may be in

electronic form and; C) that a signature is not necessary.

A. The Fixture Recap Validly Modified the Coal Orevoy

11. It is common practice in international trade for parties to use standard form agreements produced by

professional bodies.16 These standard form agreements may then be modified or extended by agreement

of the parties. When a standard form agreement is modified by parties, greater weight should attach to

the terms that the parties have specifically chosen to include.17

12. CLAIMANT submits that the Fixture Recap found in the email sent from All’s Good Brokerage Pte Ltd

(‘the Broker’) to the CLAIMANT on 1 September 2016 validly modified the Coal Orevoy, including its

dispute resolution provision found in Clause 26.

13. Further, the Fixture Recap is referred to as being ‘clean’.18 In chartering ‘fixed clean’ is an expression

used to indicate a concluded fixture.19 In this email, the Broker also asked for confirmation of the final

nature of the Fixture Recap,20 which CLAIMANT then confirmed.21

14. Therefore, the valid dispute resolution clause will be Clause 26 of the Core Orevoy as modified by

Clause 29 of the Fixture Recap.

15 International Arbitration Act (Cap 143A, 2002 Rev Ed) s 6(2); FirstLink Investments Corp Ltd v. GT Payment Pte Ltd

and others [2014] SGHCR 12, [7] (Shaun Leong Li Shiong AR). 16 UNICITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards

(New York, 1958) 2016 Ed, UN Doc (September 2016); Emmanuel Gaillard and John Savage (eds), Fouchard Gaillard

Goldman on International Commercial Arbitration, (Kluwer Law International, 1999) 271 [491]. 17 Homburg Houtimport B.V. v Agrosin Private Ltd and Others (“The Starsin”) [2003] 1 Lloyd’s Rep 571, 577 [11] (Lord

Bingham); Indian Oil Corporation v. Vanol Inc [1992] 2 Lloyd's Rep 563 (Webster J) referred to in P.T. Tri-M.G. Intra

Asia Airlines (Indonesia) v. Norse Air Charter Limited (Mauritius) [2009] SGHC 13, [30] (Darius Chan AR).

18 The Rainbow Spring [2002] SGHC 255, [24] (Ang JC).

19 Ibid.

20 Moot problem, 20. 21 Ibid 20.

5

B. An Agreement May Be in Electronic Form

15. Under the IAA arbitration agreements in the form of electronic communication will satisfy the writing

requirement.22 Email is considered to be a form of ‘Electronic communication’.23

16. CLAIMANT submits that the Arbitration Agreement was communicated by email from All’s Good the

Broker as agents for the RESPONDENT on 1 September 2016.24 Therefore, the Arbitration agreement

satisfies the writing requirement.

C. A Signature is Not Necessary

17. Though an arbitration agreement must be in written form in order to be considered valid,25 there is no

formal requirement for the agreement to be signed by both parties.26 Provided that the terms of the

agreement are readily ascertainable, the agreement will be enforceable.27 In particular, there is no need

for a charterparty to be reduced to a single written document and signed to be valid.28

18. CLAIMANT submits that the terms of the arbitration agreement found in Clause 29 of the Coal Orevoy

are readily ascertainable as they clearly specify the location, the governing law and the procedural rules

of the arbitration.29 Therefore, despite the lack of signature on the Fixture Recap, the Arbitration

Agreement remains valid.

V. THIS TRIBUNAL HAS THE POWER TO MAKE INTERIM ORDERS FOR THE SALE OF PROPERTY

22 International Arbitration Act (Cap 143A, 2002 Rev Ed) s 2A(5); Julian Lew et al, Comparative International

Commercial Arbitration (Kluwer Law International, 2003) 131 [7-10]. 23 Ibid s 2A(10). 24 Moot problem, 20. 25 International Arbitration Act (Cap 143A, 2002 Rev Ed) s 2A(3); Art 2 Convention on the Recognition and Enforcement

of Foreign Arbitral Awards (New York, 1958); Julian Lew et al, Comparative International Commercial Arbitration

(Kluwer Law International, 2003) 130 [7-27]. 26 Lidgett v. Williams (1845) 4 Hare 456 cited by The “Epsilon Rosa” [2002] 2 Lloyd’s Rep 81, 86 [27] (Steel J); Sandra

Lielbarde, The Incorporation of a Charterparty Arbitration Clause in the Bill Of Lading: Binding Effect of Contract

Without Consent (Masters Thesis, Lund University, 2010) 18; Julian Lew et al, Comparative International Commercial

Arbitration (Kluwer Law International, 2003) 138 [7-7]. 27 Freight Connect (S) Pte Ltd v Paragon Shipping Pte Ltd [2015] 5 SLR 178, 188 [22] (Menon CJ , Chao JA and Chan

SJ); Sandra Lielbarde, The Incorporation of a Charterparty Arbitration Clause in the Bill Of Lading: Binding Effect of

Contract Without Consent (Masters Thesis, Lund University, 2010) 18. 28 Freight Connect (S) Pte Ltd v Paragon Shipping Pte Ltd [2015] 5 SLR 178, 188 [22] (Menon CJ , Chao JA and Chan

SJ); Lidgett v. Williams (1845) 4 Hare 456, cited with approval in The ‘Epsilon Rosa’ [2002] 2 Lloyd’s Rep 81, [27]

(Steel J); Gary Born, International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014) 801. 29 Moot problem, 25.

6

19. CLAIMANT argues that the Tribunal has the power to order sale of the Cargo because (A) the IAA may

grant the sale of cargo in relation to subject matter of the dispute and (B) the Cargo is subject matter

of the dispute.

20. Under section 12(1)(d) of the IAA, an arbitral tribunal is granted power to order the preservation,

interim custody or sale of any property which is or forms part of the subject matter of the dispute.30

21. The arbitration agreement is merely an agreement between the parties to submit their disputes to

arbitration.31

A. Scope of The Dispute Is Determined by Reference to the Submission to Arbitration

22. The arbitration agreement is merely an agreement between the parties to submit their disputes to

arbitration.32

23. The arbitration agreement is merely an agreement between the parties to submit their disputes to

arbitration.33 The scope of the subject matter of the dispute is determined by reference to the parties’

submission to arbitration,34which is comprised of the notice of arbitration and the response to it.35

B. The Cargo is Subject Matter of the Dispute

4. The scope of the subject matter of the dispute is determined by reference to the parties’ submission to

arbitration,36 which is comprised of the notice of arbitration and the response to it.37

5. Determining the scope of the subject matter is designed to ensure the other party is able to raise a

reasonable defence against any claims raised.38 In determining whether or not the tribunal would

exceed the scope of its power by granting the pendente lite sale of the cargo, the court must determine

30 UNCITRAL Model Law (1985), Art 17. 31 PT Prima International Development v Kempinski Hotels SA [2012] 4 SLR 98 at [32], citing PT Asuransi jasa Indonesia

(Persero) v Dexia Bank SA [2007] 1 SLR(R) 597 [37]. 32 PT Prima International Development v Kempinski Hotels SA [2012] 4 SLR 98 at [32], citing PT Asuransi jasa Indonesia

(Persero) v Dexia Bank SA [2007] 1 SLR(R) 597 [37]. 33 PT Prima International Development v Kempinski Hotels SA [2012] 4 SLR 98 at [32], citing PT ASuransi jasa

Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR(R) 597 at [37]. 34 PT Prima International Development v Kempinski at [32]. 35 PT Prima International Development v Kempinski at [39]. 36 PT Prima International Development v Kempinski SA [2012] 4 SLR 98 [32]. 37 PT Prima International Development v Kempinski SA [2012] 4 SLR 98 [39]. 38 PT ASuransi jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR(R) 597 [37].

7

the matters which were explicitly stated within the scope of submission to the arbitral tribunal.39

(i) The Issues Giving Rise to the Sale of the Cargo were Directly Linked to the Primary

Dispute

6. One of the fundamental purposes of the IAA is to encourage international arbitration in Singapore, by

implementing a predictable legislative framework in which parties’ can efficiently resolve their

disputes.40 As such, courts and tribunals should interpret the submission to arbitration generously when

defining the scope of the dispute.41 A narrow interpretation would unduly fetter the tribunal’s discretion

in ordering interim measures, and thus undermine one of the primary goals of the IAA.42

7. In the case of Bocotra Construction Pte Ltd v AG (‘Bocotra’),43 the court adopted a narrow

interpretation of the submission to arbitration. Bocotra involved a contractual dispute, whereby Bocotra

were contracted to complete works for the Singapore Public Works Department (‘SPWD’), and

Bocotra furnished a performance guarantee for the works. Due to administration errors by SPWD,

works were delayed, and Bocotra commenced arbitration against SPWD for damages for delay. SPWD

gave notice to Bocotra calling on the performance guarantee, however the tribunal granted an interim

measure restraining SPWD from calling on the performance guarantee. Subsequently, the Court of

Appeal held that the disputes relating to the proper construction of the guarantee were peripheral to the

primary reference to arbitration, and refused to enforce the injunction on the basis the arbitrator had

exceeded the scope of their power provided by the terms of the submission to arbitration.44

8. The circumstances of this case can easily be distinguished from Bocotra. CLAIMANT makes explicit

reference to the right to exercise a lien, and the issues giving rise to a claim for freight owing under the

section ‘BRIEF STATEMENT OF THE NATURE AND CIRCUMSTANCES OF THE DISPUTE.’45

39 Sui Southern Gas Co Ltd v Habibullah Coastal Power Co (Pte) Ltd [2010] 3 SLR 1 at [10]-[11] citing PT Asuransi

Jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR(R) 597(Chan Sek Keong CJ) 40 Report of the Sub-Committee on Review of Arbitration Laws 1993. 41 Tjong very Sumito v Antig Investments Pte ltd [2009] 4 SLR(R) 732 (Phang Boon Leong JA); Insigma Technology Co

Ltd v Alstom Technology Ltd [2009] 3 SLR(R) 936 (Phang Boon Leong JA) at [948-950]; Larsen Oil and Gas Pte Ltd v

Petropod Ltd [2011] 3 SLR 414 (Chan Sek Keong CJ). 42 Larsen oil and Gas Pte Ltd v Petropod ltd [2011] 3 SLR 414 at [421-423]. 43 [1995] 2 SLR(R) 282. 44 Bocotra Construction Pte Ltd v AG [1995] 2 SLR(R) 282 at [19] 45 Moot problem, 78.

8

CLAIMANT submits that the CLAIMANT’s right to claim unpaid freight, combined with their right to

exercise a lien, directly give rise to a consideration of whether the Cargo should be sold in order to

recompense CLAIMANT for unpaid freight.

(ii) RESPONDENT was Aware of all Issues

9. In any case, Singaporean courts have held that any fact or dispute arising after the submission to

arbitration, of which all parties are aware, need not be explicitly pleaded.46 CLAIMANT submits that

RESPONDENT had constructive knowledge of all issues contended by CLAIMANT, including the dire

condition of the Cargo and crew aboard of the Vessel. RESPONDENT received several emails from

CLAIMANT stressing the urgency that RESPONDENT declare a discharge port.47 Further, the fact that the

Vessel has been at sea for upwards of 6 months suggest RESPONDENT should have been aware of the

conditions aboard the vessel.

10. CLAIMANT submits that the Cargo is subject matter of the dispute.

VI. IT IS NECESSARY AND JUST FOR THE CARGO TO BE SOLD PENDENTE LITE

A. Necessary

2. In Maldives Airport Co Ltd v GMR Male International Airport Pte Ltd, the Singapore Court of Appeal

found that an interim order granting the sale of an asset would be ‘necessary’ if without the order the

asset sought to be preserved would be lost.48

3. In considering whether an order is necessary, it must be more than ‘desirable’, ‘recommended’ or

‘appropriate’ for the tribunal to make that order.49

4. In the current circumstances the Cargo is sub-bituminous50 and there are clear signs of the Cargo

overheating, with the risk of self-ignition/explosion.51 Undoubtedly, if the Cargo is to ignite its value

46PT Prima International Development v Kempinski Hotels SA [2012] 4 SLR 98 at [32], citing PT Asuransi jasa

Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR(R) 597 [62] (Phang Boon Leong JA) 47 Moot problem, 54, 60, 62. 48 Maldives Airport Co Ltd v GMR Male International Airport Pte Ltd [2013] 2 SLR 449, 465 [44] (Menon CJ, Phang JA

and Woo J); Five Ocean Corporation v Cingler Ship Pte Ltd [2015] SLR 1159, 1180 [60] (Ang J). 49 Gary Born, International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014) 2468. See further, Re Beloff

Michael Jacob QC [2014] SLR 424, 447 [62] (Menon CJ, Chao JA and Phang JA). 50 Moot problem 99. 51 Ibid 37.

9

would be diminished.

5. Furthermore, according to the expert report, the value of coal in the Chinese market has undergone a

steady decline.52 Whilst the Australian market prices have increased, this does not mean that the coal

in question also rose in value.53 Potential buyers are typically informed of the distressed nature of the

Cargo and are likely to bid lower prices which reflect this.54

6. Hence, in light of the circumstances, a sale is ‘necessary’ for the preservation of the Cargo and, the

safety of the crew on board the vessel.

B. Balance of Respective Interests

7. A fair balance of the respective interests is used in deciding whether a sale is necessary.55

8. In undergoing a ‘fair’ balance of the respective interests, the Tribunal is essentially considering whether

the sale is ‘just’.56

(i) CLAIMANT’S Interests

9. In the recent decision of Five Ocean Corporation v Cingler Ship Pte Ltd,57 the Singapore Court of

Appeal ordered a judicial sale of the cargo pursuant to s 12A of the IAA in order to preserve the value

of the cargo on board the vessel in aid of arbitration. There, Ang J found that the factors which indicated

‘urgency and necessity’ justifying a sale included: that the crew had been on board for 4 months and

were falling ill; there was a lack of fresh food, water and medical supplies; and overheating of the cargo

and risk that the coal cargo would self-ignite.58 An analogous situation exists in the present case.

10. In the present case, there is clear evidence that the Cargo is at a high risk of being damaged or lost.59

There is a lack of fresh food, water and medical supplies (in particular insulin supplies of the first

officer).60 Serious hygiene issues.61 Clear signs of the Cargo overheating, with the risk of self-

52 Ibid 100. 53 Ibid 100. 54 Ibid 101-102. 55 Five Ocean Corporation v Cingler Ship Pte Ltd [2015] SLR 1159, 1181 [63] (Ang J). 56 According to the Oxford English Dictionary, ‘fair’ means ‘just’. 57 [2015] SGHC 311; [2015] SLR 1159. 58 Five Ocean Corporation v Cingler Ship Pte Ltd [2015] SLR 1159,1179 [56] (Ang J). 59 Moot problem, 37. 60 Ibid. 61 Ibid.

10

ignition/explosion.62 On masse crew resignations and bad weather conditions in the terms of monsoon,

Force 9 Beaufort Scale winds.63 Further, as of 21 October 2016 additional costs were outstanding,64

and the cargo was losing value.

(ii) Balance of Interests

11. In terms of the interests of RESPONDENT, the ability to pay damages is an important consideration.65

12. In Five Ocean Corporation v Cingler Ship Pte Ltd,66 the court found the balance of convenience

favoured the plaintiff and the pendente lite sale of the cargo aboard the vessel as it was evident the

defendant did not have the ability to pay the damages owed for freight and demurrage.67

13. Here, RESPONDENT expressed that they did not have an ability to pay freight until they were paid by

the Shipper. Furthermore, RESPONDENT stated they would pay freight at the discharge port which

suggests that their ability to pay was linked to the Cargo sale.68

14. When a tribunal is asked to order the sale of property, the tribunal should make a commercially

reasonable decision without going into the inquiry of the merits of the parties’ claims in order to

minimise the resulting loss.69 The intention of the IAA is to preserve the property which forms the

subject matter of the dispute, where they are likely to deteriorate.70 The interim measures established

in s 12(1) of the IAA are remedies which are aimed at ‘assisting in the just and proper conduct of

arbitration, or in the preservation of property which is the subject matter of the arbitration’.71

15. Additionally, the RESPONDENT would not be able to pay freight until such a sale was exercised.

Furthermore, a pendente lite sale would allow the crew of the vessel to return home and receive the

62 Ibid. 63 Ibid. 64 Ibid, 67. 65 Maldives Airports Co Ltd v GMR Male International Airport Pte Ltd [2013] 2 SLR 449 at [63] (Menon CJ) 66 [2015] SGHC 311. 67 Five Ocean Corporation v Cingler Ship Pte Ltd [2015] SLR 1159, 1181, [63] (Ang J). 68 Moot problem, 68. 69 Gary Born, International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014) 2498. 70 Five Ocean Corporation v Cingler Ship Pte Ltd [2015] SGHC 311; [2015] SLR 1159, 1179, [54] (Ang J). 71 NCC International AB v Alliance Concrete Singapore Pte Ltd [2008] SLR 5563, 573 [28] (Phang JA and Rajah JA)

agreeing with Front Carriers Ltd v Atlantic & Orient Shipping Corp [2006] 3 SLR (R) 854, 862 [15] (Ang J).

11

necessary medical supplies, food and water.72

16. CLAIMANT argues that a sale would be in the best interests of all the parties concerned, since any further

delay would result in increased costs which would eat into the sale proceeds of the Cargo.

17. Therefore, the Tribunal should exercise its discretionary power under Section 12 (i)(d) of the IAA and

approve CLAIMANT’s application for the appraisement and sale of the Cargo pendente lite.

PART THREE: LIABILITY IN CONTRACT

I. RESPONDENT BREACHED THE VOYAGE CHARTERPARTY

18. CLAIMANT argues that RESPONDENT is liable for breaching the Voyage Charterparty because: (A)

RESPONDENT failed to pay freight under Clause 19; and (B) RESPONDENT failed to nominate a

legitimate discharge port on time under Clause 16. Further CLAIMANT argues that: (C) the contract was

lawfully terminated as a result of RESPONDENT’s contractual breaches.

A. RESPONDENT Breached Clause 19 of the Voyage Charterparty

19. CLAIMANT argues that RESPONDENT failed to pay freight because: (i) freight was due on 9 October

2016; and (ii) freight was payable by 14 October 2016

(i) The Freight was Due on 9 October 2016

20. Parties to a charterparty may freely determine the time at which freight under the contract becomes

payable. For example, parties may expressly agree that either whole or part of the freight will be

payable prior to the delivery of goods, such as upon the loading of the cargo or signing of the B/L, or

before the discharge operation has commenced.73

21. Clause 19 of the Voyage Charterparty provides that 100% of the freight was to be paid within five

banking days after completion of loading and signing/releasing of the B/L and receipt of CLAIMANT’s

72 See Glencore Grain BV v The Ship Lancelot V [2015] NZHC 2052, [64] (Wylie J) whereby the New Zealand High

Court found that a ‘prompt sale would enable the remaining crew to return home, and bring an end to their currently

uncertain positions’. 73 Karin Vatis Vagres Compania Maritime SA v Nissho-Iwai America Corp (‘The Karin Vatis’) [1988] 2 Lloyds Rep 330,

332 (Lloyd J); Colonial Bank v European Grain and Shipping Co Ltd (‘The Dominique’) [1989] 1 Lloyds Rep 431, 436

(Lord Brandon); Sir Bernard Edar et al., Scrutton on Charterparties and Bills of Lading, (Thompson Reuters (professional

UK Ltd), 2015) 406, [16.005].

12

freight invoice, but in any case before breaking bulk.74

22. The phrase ‘before breaking bulk’ is defined as the point in time before discharge operations have

commenced.75

23. The loading commenced on 2 October 201676 and was then completed on 4 October 2016.77 The B/L

were also signed/released on 4 October 2016.78

24. CLAIMANT subsequently issued an invoice to RESPONDENT for the freight, five (5) banking days after

4 October 2016, on 9 October 2016.79

25. Accordingly, this Tribunal should find that the freight was due on 9 October 2016.

(ii) The Freight was Payable by 14 October 2016

26. CLAIMANT argues that due to the operation of clause 19 of the Charterparty, freight was payable, not

only before the discharge operation had commenced, but at a specific point in time agreed to by the

parties, that is, on 14 October 2016.80 RESPONDENT did not pay freight at this time.81 There was also

no indication by RESPONDENT that payment would be made forthwith.82

27. Accordingly, RESPONDENT breached Clause 19 of the Voyage Charterparty and CLAIMANT is entitled

to damages.

B. Respondent Breached Clause 16 of the Charterparty

28. CLAIMANT argues that RESPONDENT breached Clause 16 of the Voyage Charterparty because: (i) it did

not nominate a discharge port within the specified time and, in any event, (ii) Busan was not a valid

port nomination; and, (iii) Busan was not a safe port for the vessel to discharge.

(i) The RESPONDENT Did Not Nominate a Discharge Port Within the Specified Time

29. Clause 16 of the Charterparty imposes an obligation on RESPONDENT to nominate a discharge port

74 Moot problem, 22.

75 D’amico Shipping Italia Spa v Endalfa DMCC & ANOR [2016] EWC 2223 (Comm) where the court noted that there

is a clear temporal difference between ‘before breaking bulk’ and ‘on breaking bulk.’ 76 Moot problem, 50. 77 Ibid 47. 78 Ibid 41. 79 Ibid 49. 80 Ibid 54. 81 Ibid. 82 Ibid 56, 62.

13

‘when the vessel passes Singapore for bunkering’. This is equivalent to a charterer’s common law duty

to nominate a discharge port.83

30. Despite the fact that Clause 16 does not specify a date by which nomination is due, a date can be readily

calculated from the facts of the case. As per the Vessel’s itinerary sent by CLAIMANT, the vessel arrived

at Singapore at 15:15 LT on 10 October 2016.84 The estimated time of departure (‘the ETD’) was 00:02

LT 11 October 2016.85 The CLAIMANT submits that the time between arrival and departure should be

considered the time of ‘pass[ing] Singapore’ for the purposes of Clause 16. Nomination of a port was

required, therefore, prior to the Vessel’s departure on 11 October 2016.

31. RESPONDENT failed to nominate a discharge port by this time, thereby breaching Clause 16.

(ii) In any event, Busan Was Not a Valid Port Nomination

32. Clause 16 of the Voyage Charterparty provided a list of ports in China to which the Cargo may have

been delivered. Clause 16 provides that the RESPONDENT may nominate any of the listed ports.86

33. On 16 October 2016, after failing to nominate a legitimate port within the time required, RESPONDENT

nominated Busan as the preferred discharge port.87 According to RESPONDENT this was due to

‘congestion at the Chinese ports’.88 However, Busan was not one of the discharge ports listed under

clause 16.89 The discharge ports listed in Clause 16 are all located in China,90 whereas Busan is located

in South Korea.

34. As such, the RESPONDENT’s nomination of Busan was invalid.

(iii) Further, Busan posed a War Risk to the Vessel

35. On 17 October 2016, CLAIMANT again rejected the nomination of Busan as discharge port due to the

zombie threat occurring at the time of nomination. Clamant submits that this threat constituted a war

83 ‘The Kostas K’ [1985] 1 Lloyd’s Rep 231; Sir Edar et al, [13.008], above at 77. 84 Moot problem, 50. 85 Ibid. 86 Ibid 22. 87 Ibid 57. 88 Ibid. 89 Ibid 21. 90 Ibid.

14

risk under the Voyage Charterparty.91

36. According to Clause 18 of the Voyage Charterparty, the master and or the owners of the cargo may

refuse to perform their obligations under the charterparty if ‘in the reasonable judgement of the Master

and/or the Owners, performance of the Charter Party, or any part of it, may expose, or is likely to

expose, the Vessel, her cargo, crew or other persons on board the Vessel to War Risks’.92

37. The term ‘owner’ in Clause 18 of the Voyage Charterparty is broadly defined to include the disponent

owner of the vessel.93 In the present case, CLAIMANT is the disponent owner of the Vessel94 and,

therefore, may rely on Clause 18.

38. A ‘war risk’ is defined as including any ‘civil commotion…by any…body’.95 The CLAIMANT submits

that the zombie threat to Busan constituted a civil commotion by a particular body for the purposes of

Clause 18.

39. Although these events were merely rumours at the time CLAIMANT rejected RESPONDENT’S port

nomination,96 it was still a ‘reasonable judgement’ of the CLAIMANT that discharge at Busan may

expose the Vessel to a war risk.97

40. Accordingly, this Tribunal should find that Busan was a War Risk.

C. CLAIMANT was Entitled to Treat the Contract as Discharged

41. In light of RESPONDENT’S breaches as outlined above, CLAIMANT elected to terminate the Voyage

Charterparty and claim sub-freight and damages for detention vide its notice of termination dated 22

October 2016. Under Singapore law, Courts have recognised that an innocent party does not have an

automatic right to terminate a contract where there has been a breach.98 The Singapore Court of Appeal

91 Ibid 30. 92 Ibid 30. 93 Ibid. 94 Ibid, 21. 95 Ibid 30. 96 Ibid 58. 97 Ibid 30. 98 RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd [2007] 4 SLR (R) 413, 444 (Phang JA); Andrew Phang, Contract Law

in Singapore (Academy Publishing, 2012) 1173 [17.007].

15

in RDC Concrete99 set out the four situations that will entitle an innocent party to elect to treat a contract

as discharged on the grounds of the defaulting parties breach.100

42. CLAIMANT argues that its common law right of termination was validly exercised in the present case

because: (i) the RESPONDENT’S conduct amounted to a repudiation of the contract; (ii) the

RESPONDENT’S conduct amounted to a renunciation; and (iii) the RESPONDENT’S REPUDIATION and/or

renunciation was accepted by CLAIMANT on 22 October 2016.

(i) Respondent’s Conduct Amounted to a Repudiation of the Contract

43. CLAIMANT argues that RESPONDENT’S inability to perform its contractual obligations amounted to a

repudiatory breach of the Charterparty and therefore entitled them to accept that repudiatory breach as

termination of the contract on 22 October 2016 and claim damages.

44. A breach of a condition or a serious breach of an intermediate term goes to the root of the contract and

entitles the innocent party to elect to treat the contract as discharged.101 This well-known principle of

contract law is exemplified in Situation 3(B) of RDC Concrete (which embodies what is commonly

referred to as the ‘Hong Kong Fir approach’).102

45. As stated by Justice Phang in RDC Concrete, unlike situation 3(A) the main focus here is not on the

nature of the term itself - whether it’s a condition or a warranty - but on the actual consequences and

events resulting from the breach.103

46. It was in the case of Hong Kong Fir Shipping Co Ltd v Kawasaki Kisan Kaisha Co,104 where Diplock

99 RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd [2007] 4 SLR (R) 413. 100 RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd [2007] 4 SLR 413, 445, 446 (Phang JA); Approved in Man Financial

(S) Pte Ltd v Wong Bark Chuan David [2008] 1 SLR (R) 663, 720 (Phang JA); see also, Alliance Concrete Singapore Pte

Ltd v Comfort Resources Pte Ltd [2009] 4 SLR (R) 602, 613; Sports Connection Pte Ltd v Deuter Sports GmbH [2009] 3

SLR (R) 883, 898, 899; Alliance Concrete Singapore Pte Ltd v Sato Kogyo (S) Pte Ltd [2014] SGCA 35; The STX Mumbai

and Another Matter [2015] 5 SLR 1, 32 (Andrew Phang JA); Andrew Phang, Contract Law in Singapore (Academy

Publishing, 2012). 101 RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd [2007] 4 SLR 413 [105]; Hong Kong Fir Shipping Co Ltd v Kawasaki

Kisan Kaisha Ltd 2 QB 26, 66 (Diplock LJ); Bunge Corporation New York v Tradax export SA, Panama [1989] 1 WLR

711 (Lord Wilberforce); Decro-Wall International SA v Practitioners in Marketing Ltd [1971] 1 WLR 361, 380 (Buckley

LJ); Suisse Atlantique Société d’Armement SA v NV Rotterdamsche Kolen Centrale [1967] 1 AC 361 (Lord Upjohn); see

also H G Beale, Chitty on Contracts (Sweet & Maxwell, Vol 1, 2012) 917 [12-019]-[12-020]. 102 RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd [2007] 4 SLR 413, 447 (Phang J). 103 RDC Concrete at [107]; Hong Kong Fir Shipping Co Ltd v Kawasaki Kisan Kaisha Co [1962] 2 QB 26. 104 [1962] 2 QB 26 (Diplock LJ).

16

LJ laid down the principle for determining what will amount to a fundamental breach giving the

innocent party the right to terminate. There, he said that:

‘… [n]on-compliance with a contractual term will lead to a fundamental breach if it deprives the

innocent party of substantially the whole benefit of the contract which it was intended that he should

obtain from the contract, which depends on the circumstances that occurred as a result of the breach’.105

47. Thus, as observed by the Court in the Singapore decision of Sports Connection106, the analytical

approach in determining whether a fundamental breach occurred comprises two steps. First, identify

what constituted the benefit the parties intended the innocent party to derive. Second, examine the

actual consequences of the breach that occurred at the time the innocent party terminated the

contract.107

48. In the present case, the contract was for the delivery of the Cargo from Newcastle to a nominated

discharge port in China in exchange for the payment of freight.108 The parties obligations here reflect

what is the main purpose of a Voyage Charterparty in the shipping industry, that is, to transport the

cargo in exchange for the payment of freight.109

49. CLAIMANT fulfilled its obligations under the contract insofar that it supplied the vessel and completed

loading as promised. All that remained was for the RESPONDENT to nominate a legitimate discharge

port and pay freight in accordance with the terms of the Voyage Charterparty.110 CLAIMANT submits

that had RESPONDENT done so the contract would have continued on foot.

50. CLAIMANT made repeated requests for freight to be paid,111 and made plain its intention to terminate

the Voyage Charterparty if RESPONDENT failed to remit freight no later than 20 October 2016.112

105 Hong Kong Fir Shipping [1962] 2 QB 26, 66 (Diplock LJ) (Citing Glaholm v Hays (1841) 2 Man & G 257; Bradford

v Williams (1872) LR 7 Ex 259, 261 (Martin B). 106 Sports Connection Pte Ltd v Deuter Sports GmbH [2009] 3 SLR (R) 883 107 Sports Connection, 916 Phang JA); see Also, Aero-Gate Pte Ltd v Engine Marine Engineering Pte Ltd [2013] 4 SLR

409, 430 (Coomaraswamy J). 108 Moot problem, 21. 109 MacAndrew v Chapel (1866) LR 1 CP 643, 648 (Willes J); Metall Market 000 v Vitorio Shipping Co Ltd (‘the Lehmann

Timber’) [2013] 2 Lloyds Rep 541, 571 (Sir Rix LJ); Julien Cook et al, Voyage Charters (Informer Law, 3rd ed, 2007)

[1.1]; Simon Boughen, Shipping Law (Rutledge, 2015). 110 Moot problem, 21. 111 Ibid, 51, 54, 56, 62. 112 Ibid 63, 64.

17

RESPONDENT knew that CLAIMANT would elect to bring the contract to an end if it did not comply with

CLAIMANT’S demand.113 Instead of paying freight on 20 October 2016 and avoiding a termination of

the contract, RESPONDENT chose to ignore this demand and insisted that freight be payable after the

delivery of the Cargo at the discharge port.114 This request was clearly not within the contemplation of

Clause 19 of the Voyage Charterparty.115

51. CLAIMANT argues that a fundamental breach had occurred that went to the root of the contract and

denied CLAIMANT of the substantial benefit to which the parties intended that it would receive. This is

for two reasons. First, RESPONDENT’S breach of the contract prevented CLAIMANT from receiving the

payment of freight and thereby making a profit under the Voyage Charterparty – the very thing

contracted for.116 Second, it jeopardised any opportunity for CLAIMANT to re-charter the Vessel in a

timely manner, since the Vessel was hired from the shipowner for a period of two (2) years pursuant

to Clause 1 of the Time Charterparty.117

52. CLAIMANT submits that it was no better off on 22 October 2016 than when it entered into the Voyage

Charterparty with RESPONDENT on 1 September 2016.118 Further, CLAIMANT submits that not only was

it denied of a substantial benefit of the contract, but the Tribunal should find that it was in fact deprived

of all of the benefit that it expected to receive under the contract.

53. RESPONDENT’S failure to pay freight as and when it fell due;119 its failure to comply with CLAIMANT’S

email on 18 October 2016;and its proven inability to pay before breaking bulk,120 individually or

collectively is sufficient to amount to a repudiation of the Voyage Charterparty.

54. Accordingly, RESPONDENT’S breaches went to the root of the contract and CLAIMANT was entitled to

elect to treat the contract as discharged.121 As a result, the Tribunal should therefore find CLAIMANT’S

113 Ibid. 114 Ibid, 67, 68. 115 Ibid 22. 116 Ibid 22. 117 Ibid 2. 118 Sports Connection, 916 (Phang JA). 119 Moot problem 22, 54. 120 Ibid 68. 121 RDC Concrete, 444 (Andrew Phang JA).

18

common law right of termination was validly exercised on 22 October 2016 when the notice of

termination was sent to RESPONDENT.122

(ii) Respondent’s conduct amounted to a renunciation

55. An innocent party may elect to treat a contract as discharged ‘where one party, by words or conduct,

simply renounces the contract in as much as it conveys to the other party that it will not perform its

contractual obligations at all’.123 Short of any express refusal to perform, the issue of whether one party

has renounced the contract is determined objectively in light of the surrounding circumstances.124

56. RESPONDENT’S email on 21 October 2016125 may not amount to an express (or absolute) refusal to

perform the Voyage Charterparty. However, it was an indication that RESPONDENT would not be able

to discharge their obligations under the contract; or that it would be unable to perform the Charterparty

in some material respect – namely, paying freight before breaking bulk.

57. Further, the fact that no date or time for when such payment would be made was specified in the email

on 21 October 2016, save that it was to take place after the cargo was delivered,126 is an expression of

doubt as to their will or ability to perform the chartered voyage. This may reasonably be inferred to be

an indication of their absolute inability to pay freight to CLAIMANT and perform the Voyage

Charterparty. In other words, RESPONDENT’S conduct created a semblance of refusal to pay that

amounted to a renunciation of the contract.

58. Throughout the course of the contract RESPONDENT had demonstrated a propensity not to pay freight

to CLAIMANT under the Voyage Charterparty. When CLAIMANT requested that the balance of freight

owing under the Charterparty be paid Respondent insisted CLAIMANT to be patient, which was

communicated to CLAIMANT on two separate occasions. Further, CLAIMANT submits that there was no

122 Moot problem, 70. 123 RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd [2007] 4 SLR 413; San International Pte ltd [1998] 3 SLR (R) 447,

459 (Karthigesu JA); Andrew Phang, Above n 101 at [611] 124 San International Pte Ltd v Keppel Engineering Pte Ltd [1998] 3 SLR(R) 447; Alliance Concrete Singapore Pte Ltd v

Sato Kogyo (S) Pte Ltd [2014] 3 SLR 857, [59]; Andrew Phang, Contract Law in Singapore (Academy Publishing, 2012);

see also, SK Shipping (S) Pte Ltd v Petroexport Ltd [2009] EWHC 2974 (Comm).

125 Moot problem 67, 68. 126 Ibid 69.

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realistic expectation that freight would be made after the delivery of the Cargo at the discharge port.127

59. CLAIMANT argues that the words and conduct of RESPONDENT are sufficient to enable a reasonable

person in the position of CLAIMANT to conclude that there was no prospect of RESPONDENT making

payment of freight to CLAIMANT.128 As such, this demonstrates that RESPONDENT was unwilling,

because it was unable to comply with the terms of the Voyage Charterparty.

60. Therefore, RESPONDENT’S conduct in failing to pay freight amounted to a renunciation and a right to

elect to treat the contract as discharged arose under Situation (2) of RDC Concrete.

61. At the Heart of the doctrine of repudiation is the notion that there must be an absence of readiness or

willingness to perform the contract. CLAIMANT submits that RESPONDENT’S conduct, when taken as a

whole, demonstrates a clear absence of readiness or willingness to perform the Charterparty.

RESPONDENT may contend that it remained ‘ready and willing’ to perform and still ‘promised to pay’

– albeit after the Cargo had been discharged.129 However, CLAIMANT argues that such a declaration

cannot be construed as a positive step dispelling the inference that RESPONDENT would not perform its

contractual obligations.130

62. The consistent failure to pay freight culminating in the email on 21 October 2016,131 is a clear

manifestation of an absence of readiness or willingness to perform the Charterparty. As such,

CLAIMANT submits that the tribunal should reject the claim put by RESPONDENT IN ITS EMAIL DATED 22

OCTOBER 2016 that they had at all relevant times ‘always remained’ ready and willing to perform the

Charterparty.132

(iii) Respondent’s Repudiation and/or renunciation was Accepted by Claimant

63. A repudiatory breach of a contract by one party entitles the innocent party to choose between

127 Moot problem, 67. 128 San International Pte Ltd v Keppel Engineering Pte Ltd [1998] 3 SLR(R) 447; Econ Piling Pte Ltd v. NCC

International AB [2007] SGHC 17; see also, Universal Cargo Carriers Corp v Citati [1957] 2 Lloyds Rep 72 (Devlin J);

SK shipping (S) Pte Ltd v Petroexport Ltd (‘The Pro Victor’) [2010] 2 Lloyds Rep 158, 173 (Flaux J). 129 Moot problem 69. 130 J W Carter, Carters Breach of Contract (Hart Publishing, 2012) 371. 131 Moot problem, 67, 69. 132 Moot problem, 69.

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acceptance of the breach thereby treating the contract as discharged, and affirmation of the contract

thereby waving any right to terminate.133 As stated by the Court of Appeal in Alliance Concrete

Singapore Pte Ltd v Comfort Resources Pte Ltd,134 if there is no legal justification for terminating the

contract, then the ‘innocent party’ will have itself committed a repudiatory breach and will therefore

be liable to pay damages.135 However, as discussed above, RESPONDENT’s conduct amounts to a

repudiation of the Voyage Charterparty and goes to the root of the contract.136

64. CLAIMANT’s email on 22 October 2016137 constitutes a valid acceptance of RESPONDENT’s

repudiation of the contract, clearly and unequivocally bringing the contract to an end.138

65. Such acceptance, brought about by the innocent party, had the effect of terminating the contract,

discharging the parties from any further performance of the contract, leaving obligations and

liabilities already accrued unaffected.139 In other words, CLAIMANT submits that it had, and still has,

an entitlement to freight under Clause 19 which survived the termination of the contract.140

66. Accordingly, the Voyage Charterparty was lawfully terminated on 22 October 2016. It follows that

RESPONDENT’S counterclaim for wrongful termination must fail.

133 Bentsen v Taylor [1983] 2 QB 274, 279; Fercometal S.A.R.L v Mediterrean Shipping Co SA [1989] AC 788, 799-801;

Photo Production Pty Ltd v Securicor Transport [1980] AC 827, 551; Tan Soo Leng David v Lim Thian Chai Charles

[1998] 1 SLR(R) 880, [28] (Warren L.H. Khoo J); HG Beale, Above n 102, [24-002]; Andrew Phang, Contract Law in

Singapore (Acadamy Publishing, 2012) 633 [1347]. 134 [2009] 4 SLR (R) 602. 135 Ibid, 613 (Phang JA). 136 See paragraph [43]-[45] above. 137 Moot problem 68. 138 Photo Production v Securicor Transport [1980] AC 827; [1980] 1 Lloyd’s Rep 545, 550 (Wilberforce L); Force India

Formula One Team Ltd v Areolab SRL [2013] EWCA Civ 780; [2013] RPC 36, [37].; Vitol SA v Norelf Ltd [1996] Ac

800, 810-811. 139 Heyman v Darwins Ltd [1942] 72 LL.L.Rep 65, 89 (Lord Porter); Photo Production Ltd v Securicor Transport Ltd

[1980] 1 Lloyds Rep 545, 551 (Lord Wilberforce); Hyundai Shipbuilding and Heavy Industries Co v Pournaras [1978]

2 Lloyds Rep 502, 508 (Roskill LJ) ; Moschi v Lep Air Services Ltd [1972] AC 331, 350 (Diplock LJ); Johnson v

Agnew [1980] AC 367, 396 ; see also, Beale, above n 102, 1693-1694 [12-002]. 140 Ibid.

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PART THREE: VALID EXERCISE OF LIEN

II. CLAIMANT HAS A VALID AND ENFORCEABLE CONTRACTUAL LIEN OVER THE CARGO

67. Clause 19, the (‘Lien Clause’) of the Coal Orevoy, which forms part of the Voyage Charterparty gives

CLAIMANT a right to exercise a lien over the Cargo for freight, deadfreight, demurrage and general

average contribution due to them under the Voyage Charterparty.

68. CLAIMANT submits that they are entitled to exercise a lien over the Cargo for sub-freight and detention

because: (A) The terms of the Voyage Charterparty were validly incorporated through the B/L; (B)

the Shipper was bound by the terms of the Voyage Charterparty; (C) RESPONDENT’S failure to pay

freight entitles CLAIMANT to exercise a contractual lien and; (D) CLAIMANT gave sufficient notice to

RESPONDENT regarding the exercise of a lien over the Cargo.

A. The Terms of the Voyage Charterparty Were Validly Incorporated Through the B/L

69. A B/L is strong evidence of the terms of a contract.141 An incorporation clause in a B/L will bind a

party where the incorporating words are specific and sufficiently clear.142

70. Where the B/L uses wide words of incorporation, for example ‘all the terms provisions and

exceptions’ the words will be sufficient in incorporating all the terms of the charterparty which make

sense in the context of the B/L.143

71. CLAIMANT submits that the wording of Clause 1 on page 2 of the B/L the (‘Incorporation Clause’) is

both specific, sufficiently clear and wide enough to incorporate the terms of the charterparty because

141 Per Lord Bramwell in Sewell v Burdick (1884) 10 App.Cas. 74 at 105; The Ardennes [1951] 1 K.B. 55; Heskell v

Continental Express (1950) 83 L1.L.R. 438 at 449, 455; Pyrene v Scindia Navigation [1954] 2 Q.B. 402 [419] and

[424]. 142 Star-Trans Far East Pte ltd v Norske- Tech Ltd [1996] 2 SLR(R) 196, 206 [33] (Karthigesu JA); Concordia

Agritrading Pte Ltd v Cornelder hoogewerft (Singapore) Pte Ltd [1999] 3 SLR(R) 618, 624 [15] (Teong Qwee JC);

L&M Concrete Specialist Pte Ltd v United Eng Contractors Pte Ltd [2000] 2 SLR(R) 852, 856 [10] (Choo Han Teck

JC); ‘The Federal Bulker’ [1989] 1 Lloyd’s rep 103, 105 (Hobhouse J). 143 Hamilton v Mackie (1889) 5 T.L.R. 677; Thomas v Portsea [1912] A.C. 1 HL per Lords Gorrell and Robson at 10

and 11; The Merak [1965] 223 per Sellers LJ at 250; The Annefield [1971] 168; Porteus v Watney (1878) 3 Q.B.D 534

at 542; Gullischen v Stewart (1884) 13 Q.B.D. 317; Serraino v Campbell [1891] 1 Q.B. 283 at 289; The Phonizen

[1966] 1 Lloyd’s Rep. 150.

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it clearly states that ‘all terms and conditions, liberties, and exceptions of the Charter Party are

herewith incorporated’.144

72. Where the incorporating clause does not identify which charterparty it seeks to incorporate the court

will assume that the B/L is referring to the charterparty under which the goods are being carried.145

73. There are two possible charterparties the Incorporation Clause may have been referring to.146 The

Time Charterparty, concluded between the Shipowner and CLAIMANT,147 or the Voyage Charterparty,

concluded between CLAIMANT and RESPONDENT.148 However, the Cargo is being carried under the

Voyage Charterparty and therefore it is assumed that the Incorporation Clause is referring to the

Voyage Charterparty.149

74. Further, when a B/L uses the word ‘freight’, it could in fact only be referring to a voyage charterparty

and not to a time charterparty because ‘freight’ is an expression normally used in a voyage

charterparty and not a time charterparty.150

75. CLAIMANT submits that the word ‘freight’ was used in the B/L under special instructions: ‘Freight

payable as per charterparty’. In this case, the B/L could only possibly have been referring to the

Voyage Charterparty when incorporating the terms of a charterparty.

76. CLAIMANT argues that both the Voyage Charterparty and the B/L specifically refer to the shipment

of the Cargo. The Time Charterparty was for the purpose of hiring the Vessel to CLAIMANT and makes

no reference to the Cargo.

77. Therefore, the Incorporation Clause in the B/L could only possibly be referring to the Voyage

Charterparty when it incorporated all the terms and conditions of ‘the Charter Party’.

144 Moot problem, 42. 145 At any rate if it is the voyage charter: approved in K/S A/S Seateam v Iraq National Oil Co (The Sevonia Team)

[1983] 2 Lloyds Rep. 640 at 644; National Navigation Co v Endesa Generacion SA (The Wadi Sudr) [2009] EWHC 196

(Comm). 146 Moot problem, 42. 147 Ibid 1. 148 Ibid 24. 149 Ibid 42. 150 The SLS Everest [1981] 2 Lloyd’s Rep 389, 392 (Lord Denning MR).

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78. The B/L sought to incorporate the terms and conditions of a charterparty dated as overleaf, but failed

to specify a date.151 It is not uncommon that a B/L will provide for incorporation of a charterparty

which is to be identified by a date, however parties omit to specify the date of the charterparty. The

omission does not negative the incorporation.152

B. The Shipper was Bound by the Voyage Charterparty

79. A party cannot be burdened by obligations of a contract to which they are not partied.153 Generally,

a party cannot exercise a lien over cargo belonging to a party that has not entered into a contract with

them.154 An exception, however, is where a lien clause found in a charterparty is incorporated through

a clause in the B/L, which is then issued to the third-party shipper, thereby binding them to that

Charterparty.155

80. While the Voyage Charterparty was between CLAIMANT and RESPONDENT, CLAIMANT contends that

the Shipper was bound by the Voyage Charterparty because: i) the Shipper intended to be bound by

the Voyage Charterparty and; ii) the terms of the Voyage Charterparty were reasonably ascertainable

to the Shipper.

(i) The Shipper intended to be bound by the Voyage Charterparty

81. In The Epsilon Rosa, the English Court of Appeal held that for an incorporation clause to incorporate

terms of a charterparty, the reference to the terms of that charterparty in the B/L must be156 so that

from reading the clause, the holder of the B/L would be aware of the contractual obligations to which

they are to be bound.157

151 Ibid. 152 Pacific Molasses & United Molasses Trading Co v Entre Rios Compania Naviera (The San Nicolas) [1976] 1

Lloyd’s Rep. 8; see also, Bangladesh Chemical Industries v Tex-Dilan Shipping Co (The S.L.S Everest) [1981] 2

Lloyd’s Rep. 389. 153 Prudential Assurances Co Ltd v Ayres [2008] EWCA Civ 52 [42]. Taddy & Co v Sterious & Co [1904] 1 Ch 354;

Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847. 154 Turner v Haji Goolam [1904] AC 826, 837. 155 The Chrysovalandou Dyo [1981] 1 Lloyd’s Rep 159, 165 (Mocatta J).

157 The Epsilon Rosa [2002] 2 Lloyd’s Rep 202, 515 [27] (Tuckey LJ); Caresse Navigation Ltd v Zurich Assurances

Maroc and Others (‘The Channel Ranger’) [2014] 1 Lloyd’s Rep 337, 260 [9] (Lord Dyson); The “Star Quest” and

other matters [2016] SGHC, 1304 [64] (Chong J).

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82. The terms of a charterparty may be incorporated through a B/L provided it is the intention of the

parties to be bound by those terms. 158

83. CLAIMANT submits that on the facts it is clear that the Shipper intended to be bound by the Voyage

Charterparty. The Voyage Charterparty was for the purpose of shipping coal. The Shipper did in fact

ship coal, as evidenced by the B/L for the receipt of coal, which is held by the Shipper.

84. Therefore, it was the intention of the Shipper to be bound by the terms of the Voyage Charterparty.

(ii) The terms of the Voyage Charterparty were reasonably ascertainable to the Shipper

85. In The Starsin, Lord Bingham expressly acknowledged that a ‘transferee of a bill of lading would

recognise the need to consult the detailed conditions on the reverse of the bill’.159

86. The case of Pirelli Cables v United Thai held that were a holder of the B/L knows that there are

further terms by which they are bound, but do not know the content of those terms they should ask

for and obtain that information. In failing to do so, the holder of the B/L will be bound by the clause,

despite being unaware of its contents.160

87. CLAIMANT argues that the Shipper was issued the B/L and therefore had knowledge of the

Incorporation Clause seeking to incorporate all terms of the charterparty. The Shipper was aware that

further terms of a charterparty existed but were potentially unaware of the content of those terms. In

failing to ask for or obtain such knowledge they should still be bound by the terms.

88. Accordingly, the Shipper cannot deny the existence of the terms of the Voyage Charterparty simply

because it ‘failed to inform itself of the terms to which it agreed to have its goods shipped.’161

Consequently, by failing to inform itself of the content of the Incorporation Clause, the Shipper must

be taken to have accepted the terms of the Voyage Charterparty and therefore bound by those terms.

158 ‘The Trade Resolve’ [1990] 2 SLR 129, 66; Star-Trans Far East Pte ltd v Norske- Tech Ltd [1996] 2 SLR(R) 196;

Concordia Agritrading Pte Ltd v Cornelder hoogewerft (Singapore) Pte Ltd [1999] 3 SLR(R) 618; L&M Concrete

Specialist Pte Ltd v United Eng Contractors Pte Ltd [2000] 2 SLR(R) 852; International Research Corp PLC v

Lufthansa Systems Asia Pacific Pte ltd [2014] 1 SLR 130. 159 The Starsin [2003] 1 Lloyd’s Rep. 571, 578, [15]. 160 Pirelli Cables v United Thai [2000] 1 Lloyd’s Rep 663, 669. 161 Stella Jones v Hawknet [2002] F.C.A. 315 [19].

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C. RESPONDENT Failed to Pay Freight in Accordance the Voyage Charterparty

89. Clause 19 of the Voyage Charterparty gives CLAIMANT a right to exercise a lien over the Cargo for

freight due to them under the charterparty.162 As discussed above in paragraphs [46]-[54],

RESPONDENT failed to pay freight when it became due and payable.163 Failure to pay freight entitled

CLAIMANT to exercise a lien over the Cargo in accordance with the terms of the Voyage

Charterparty.164

D. CLAIMANT Gave Sufficient Notice to RESPONDENT of the Exercise of a Lien

90. A lien will be considered valid if sufficient notice is given to the party against whom the lien is

exercised.165 No particular form of words is required for conveying this information.166

91. CLAIMANT issued a warning to RESPONDENT that a lien would be exercised by email on 19 October

2016167 and then issued a formal ‘NOTICE OF LIEN’ via email on 20 October 2016.168

92. Hence, CLAIMANT submits that sufficient notice to exercise the lien was given to RESPONDENT.

93. Therefore CLAIMANT submits that it has a valid and enforceable lien over the Cargo.

PRAYER FOR RELIEF

For the reasons set out above, CLAIMANT requests that the Tribunal:

a) Declare that it has jurisdiction to hear the CLAIMANT’S pleading for the sale of the Cargo pendente

lite and pleading for demurrage;

b) Find that the Charterers exercised a valid lien over the Cargo;

c) Order the sale of the Cargo pendente lite;

d) Award damages to CLAIMANT and interest on amounts claimed; and

e) Award further or other relief as the Tribunal considers fit.

162 Moot problem, 31. 163 Refer to moot submission Part III. 164 Moot problem, 31. 165 Tagart, Beaton & Co v James Fisher & Sons [1903] 1 KB 391. 166 The Bulk Chile [2013] 1 All ER (Comm) 177 [51]; Dry Bulk Handy Holding Inc. and another v. Fayette

International Holdings and another (‘Bulk Chile’) [2013] EWCA Civ 184. 167 Moot problem, 62. 168 Ibid 65.