ninteenth international maritime law arbitration …€¦ · kidston and others v. the empire...
TRANSCRIPT
NINTEENTH INTERNATIONAL MARITIME LAW ARBITRATION MOOT
2018
MEMORANDUM FOR CLAIMANT
\
UNIVERSITAS AIRLANGGA
TEAM 10
CERULEAN BEANS AND AROMAS LTD
(CLAIMANT)
V.
DYNAMIC SHIPPING LLC
(RESPONDENT)
COUNSEL FOR CLAIMANT
AULY NAHDYAN MAFAZA
BIMA DANUBRATA ADHIJOSO
INDARWATI ATIKA SHANTI
REGINE WIRANATA
SHOFY SUMA NISRINA
i
TABLE OF CONTENTS
ABBREVIATIONS ................................................................................................................. iv
LIST OF AUTHORITIES ....................................................................................................... v
STATEMENT OF FACTS ...................................................................................................... 1
I. THE TRIBUNAL POSSESS JURISDICTION OVER CLAIMANT’S CLAIMS FOR
DAMAGES ............................................................................................................................... 3
A. THIS TRIBUNAL HAS JURISDICTION OVER THE PRESENT DISPUTE .................................... 3
1. The Tribunal is the chosen forum of the dispute resolution by the parties .................... 3
2. The Tribunal has the power to determine its own jurisdiction ........................................ 3
B. THE CLAIMS OF CLAIMANT ARE ARBITRABLE BY THE TRIBUNAL ..................................... 4
1. The Tribunal has the power to award damages on the cargo ......................................... 4
a. The claim on damages arose out of the Charterparty .................................................... 4
b. The claim does not involve a technical matter within the ambit of the Charterparty .... 5
i. The issue of deviation does not involve a technical matter ..................................... 5
ii. The issue of the Cargo’s storage at the Port does not involve a technical matter .. 6
2. The Tribunal has the power to declare the maritime lien on the Madam Dragonfly ..... 6
a. The claim on damages arose out of the Charterparty .................................................... 6
b. The claim does not involve an action beyond the jurisdiction of the Tribunal .............. 7
C. THE TRIBUNAL HAS THE POWER TO APPLY THE LAWS GOVERNING THE CLAIMS OF
CLAIMANT ................................................................................................................................. 7
1. The Tribunal can apply the laws of New South Wales to the dispute on damages ........ 8
2. The Tribunal can apply the laws of the United Kingdom to the dispute on the maritime
lien over the Madam Dragonfly ............................................................................................ 8
ii
II. RESPONDENT IS LIABLE TO CLAIMANT FOR DAMAGE COMPRISING
ACCOUNTS OF THE DAMAGED CARGO, REPLACEMENT COFFEE PAYMENT,
AND SETTLEMENT PAYMENT ......................................................................................... 9
A. RESPONDENT IS RESPONSIBLE FOR THE DAMAGES TO THE CARGO............................... 9
1. Respondent is responsible for the deviation causing damages to the cargo ................... 9
a. The cargo’s damage was the indirect result of Respondent’s deviation ........................ 9
b. Respondent does not benefit from protection under force majeure.............................. 10
2. In any event, Respondent breached its duty to keep the cargo safe until its delivery ... 11
B. CLAIMANT IS ENTITLED TO COMPENSATION FOR THE DAMAGES INCURRED ............... 12
1. Respondent is liable for the entire value of the damaged Cargo ................................... 12
b. Respondent does not benefit from the limitation of ...................................................... 13
2. Respondent is liable for indirect damages for the losses incurred by Claimant ........... 13
a. The damages were foreseeable at the time of the making of the contract .................... 13
b. The damages were incurred reasonably ....................................................................... 14
III. CLAIMANT HOLDS A MARITIME EQUITABLE LIEN OVER THE MADAM
DRAGONFLY ........................................................................................................................ 15
A. THERE EXIST A MARITIME LIEN FOR WAGES OVER THE MADAM DRAGONFLY ............. 15
B. CLAIMANT IS ENTITLED TO A SUBROGATION OF THE MARITIME LIEN THROUGH ITS
PAYMENT TO THE WAGES ACCOUNT ..................................................................................... 15
1. Claimant had paid the wages of the crew by virtue of payment to the account ............ 16
2. The payment was made on credit of the vessel ............................................................... 16
IV. CLAIMANT IS NOT LIABLE TO RESPONDENT FOR AMOUNTS OWING
UNDER THE CHARTERPARTY FOR FREIGHT, AGENCY FEES, COST OF
REPAIRS, DEMURRAGE, AND USE OF ELECTRONIC ACCESS SYSTEMS ......... 18
iii
A. CLAIMANT HAS NO OBLIGATION TO PAY RESPONDENT ANY AMOUNTS DUE TO THE
LIEN IT HAS OVER THE MADAM DRAGONFLY .......................................................................... 18
B. CLAIMANT IS NOT LIABLE FOR AGENCY FEES AT THE PORT OF SPECTRE .................. 18
1. The agency fees were not particular charges ................................................................. 18
2. In any event, Respondent’s fault bars its claim of particular charges .......................... 19
C. CLAIMANT IS NOT LIABLE FOR DEMURRAGE ............................................................... 20
1. Demurrage did not accrue at all during the discharge of the Cargo ............................ 20
2. In any event, the claim for demurrage is obstructed by Respondent’s negligence ....... 21
D. CLAIMANT IS NOT LIABLE FOR THE USE OF THE ELECTRONIC ACCESS SYSTEMS AT
THE PORT OF DILLAMOND ...................................................................................................... 21
1. The purchase of the electronic access systems was not necessary ................................ 21
2. In any event, it was incurred due to Respondent’s fault ................................................ 22
REQUEST FOR RELIEF ..................................................................................................... 23
iv
ABBREVIATIONS
Claimant Cerulean Beans and Aromas Ltd.
Respondent Dynamic Shipping LLC
Charterparty The Voyage Charterparty
Master Edward Hillster
LMAA London Maritime Arbitrators Association
Act The UK Arbitration Act of 1996
Cargo Speciality Grade Green Coffee
Parties Claimant and Respondent
Vessel Madam Dragonfly
Tribunal Present Arbitral Tribunal
v
LIST OF AUTHORITIES
Legislations
Arbitration Act 1996 (UK) 3, 4, 8
The London Maritime Arbitrators Association Terms 2017 3
The Hague Visby Rules 13
UK Merchant Shipping Act 1995 15
The York-Antwerp Rules 18
Australia Carriage of Goods by Sea Act 19
Cases
Christopher Brown Ltd v Genossenschaft Oesterreichischer Waldbesitzer
Holzwirtschaftsbetriebe Registrierte GmbH [1954] 1 QB 8, 12-3 (Devlin J)
3
Engineering Company v Engineering Company (Final Award) (1999) XXIV
Yearbook Commercial Arbitration 80
3
The Ioanna [1978] 1 Lloyd‟s Rep 238 (CA) 4
Verity Shipping SA v NV Norexa [2008] 1 Lloyd‟s Rep 652 (QBD) 4
Heyman v Darwins Ltd [1942] AC 356 4
Mackender v Feldia [1967] 2QB 590 4
The Playa Larga [1983] 2 Lloyds Rep 171 4
Antonis P Lemos [1985] AC 711 4
Ashville Investments Ltd v Elmer Contractors Ltd [1989] QB 488 4
Fillite (Runcorn) v AquaLift (1989) 26 Const LR 66 4
Harbour Assurance Co (UK) Ltd v Kansa General International Insurance 4
vi
[1993] QB 701
The Angelic Grace [1995] 1 Lloyds Rep 87 4
Cape Flattery Ltd v Titan Maritime, LLC (The Cape Flattery), 607 F. Supp. 2d.
1179
4
White Rosebay Shipping SA v Hong Kong Chain Glory Shipping Ltd [2013]
EWHC 1355 (Comm) (23 May 2013)
4
Jones v Sherwood Computer Services Ltd [1992] 1 WLR 277 5
Norwich Union Life Insurance Society v P&O Property Holdings [1993] EGLR
164
5
Leduc v. Ward (1779) 1 Doug. 284 5
Morrison v. Shaw Savill [1916] 2 K.B. 783, 797 5
Baulderstone Hornibrook Engineering Pty Ltd v Kayah Holdings Pty Ltd (1997)
14 BCL 277
6
L Brown & Sons Limited v Crosby Homes (North West) Limited, [2005] EWHC
3503
6
Fulham Football Club (1987) Ltd v. Sir David Ichards and The Football
Association Premier League Ltd [2010] EWHC 3111
7
Bankers Trust International v. Todd Shipyards Corp, The Halcyon Isle [1981]
AC 221, [1980] 3 All ER 197, [1980] 3 WLR 400, [1980] 2 Lloyd's Rep 325,
124 Sol Jo 479
7
Daniel Harmer v William Errington Bell and Others ("In Rem Jurisdiction of
English Admiralty Courts") 13 E.R. 884 (1851)
7
Republic of India v. India Steamship Co. Ltd (The Indian Grace) (No. 2) [1998]
1Lloyd's Rep. 1. 4NJJ
7
Monmouthshire County Council v. Costelloe & Kemple Ltd (1965) 5 BLR 83 8
vii
Leduc v. Ward (1888) 20 Q.B.D. 475, 481 9
Glynn v. Margetson [1893] A.C. 351, 354 9
Clayton v. Simmonds [1741] 9
Hadley v. Baxendale (1854) 8 Ex 341 9
Davis v. Garrett (1830) 6 Bing. 716, 725 9
Reardon Smith v. Black Sea Insurance [1939] A.C. 562 9
Phelps, James & Co v. Hill [1891] 1 QB 605 CA 10
Brightman & Co v. Bunge y Born [1924] 2 K.B. 619 10
Holcim (Singapore) Pte Ltd v. Precise Development Pte Ltd [2011] 2 SLR 106
at [66]
11
Chartered Bank v. British India, S.N. Co. (1909) A.A. 369, 375 11
Mondial Shipping and Chartering BV v. Astarte Shipping Ltd [1995] CLC 1011 12
Notara v. Henderson (1872) LR 7 QB 225 12
Robinson v. Harman (1848) 1 Ex Rep 850 13
Victoria Laundry (Windosr) LD. v. Newman Industries LD 13
Slater v. Hoyle & Smith Ltd [1920] 2 KB 11 (CA) 17 14
Louis Dreyfus Trading Ltd v. Reliance Trading Ltd [2004] 2 Lloyd‟s Rep 243 14
KG Bominflot Bunkergesellschaft fur Mineralole mbH & Co v. Petroplus
Marketing AG [2012] EWHC 3009 (Comm)
14
Williams Bros v. Ed T Agius Ltd [1914] AC 510, 523 14
Harmer v. Bell (The “Bold Buccleugh”) [1851] EngR 985 7, 15
Ships “Hako Endeavour”, “Hako Excel”, “Hako Esteem” and “Hako
Fortress” v. Programmed Total Marine Services Pty Ltd [2013] FCAFC 21 (26
February 2013)
15, 17
viii
Clay v. Snelgrave (1700) 1 Ld Raym 576 15
The Tolten, “The Two Ellens” LR 4 PC 15
Commandate Marine Corporation v. Pan Australia Shipping Pty Ltd 15
The “Albion” 1 Asp MLC 401 15
The “Tagus” [1903] P 15
Bofinger v. Kingsway Group Limited [2009] HCA 44 16
Yonge v. Reynell [1852] EngR 655 16
O’Day v. Commercial Bank of Australia Ltd [1933] HCA 37 16
Friend v. Brooker [2009] HCA 21 16
Barclays Bank Ltd v. Quistclose Investments Ltd [1970] AC 567 16
Conservative & Unionist Central Office v Burrell [1982] 1 WLR 522 16
Walsh v Lonsdale [1882] Ch D 9 16
The “Petone” [1917] P 198 16
The Andalina (1886) 12 P.D. 1 18
The Leo (1862) Lush 444 18
Birkley v. Presgrave (1801) 1 East 220, 228-229 (Lawrence J) 18
Kidston and Others v. The Empire Marine Insurance Company (1867) LR 1 CP
535
18
Eisenerz GmbH v. Federal Commerce and Navigation Co Ltd (“The Oak Hill”)
[1970] 2 Lloyd‟s Rep 332, affirmed [1975] 1 Lloyd‟s Rep 105
19
Svendsen v. Wallace Bros (1884) 13 QBD 69, 87–88, 19
Goulandris Bros v. Goldman & Sons [1958] 1 QB 74 19
Guinomar of Conakry v. Samsung Fire & Marine Insurance Co. Ltd (“The 19
ix
Kamsar Voyager”) [2002] 2 Lloyd‟s Rep 57
Rey Banano del Pacifico CA & Ors v Transportes Navieros Ecuatorianos &
Anor, Court of Appeal - Commercial Court, February 24, 2000, [2000] EWHC
215 (Comm)
19
The Isla Fernandina [2000] 2 Lloyd‟s Rep 15 19
The Dias [1978] 1 Lloyd‟s Rep 325 20
Cawthron v. Trickett (1864) 15 CB (NS) 74 20
William Alexander v. Akt. Hansa [1920] A.C. 88 20
E.L. Oldendorff & Co GmbH v Tradax Export SA (The Johanna Oldendorff)
[1973] 3 All ER 148
20
TA Shipping Ltd v. Comet Shipping Ltd (The Agamemnon) [1998] 1 Lloyd‟s
Rep 675
20
Blue Anchor Line Ltd. v. Alfred C. Toepfer International (The Union
Amsterdam) [1982] 2 Lloyd‟s Rep. 432
21
Hammond v. Bussey (1880) 20 QBD 79 21
Hoenig v. Isaacs (1952) 2 All ER 176 22
A-G (UK) v Times Newspaper Ltd (No 2) [1990] 1 AC 109, 286 22
Book
Chitty on Contracts: General Principles 18
1
STATEMENT OF FACTS
1. On 18 July 2017, Cerulean Beans and Aromas Ltd (“Claimant”), a coffee supplier based in
Cerulean, entered into an agreement with Coffees of the World Ltd to supply 1,000 bags of
rare, high-quality, speciality grade green coffee (“the Cargo”) by 29 July 2017 for a coffee
festival in Dillamond.
2. On or around 22 July 2017, Claimant entered into a voyage charter party (“Charterparty”)
with Dynamic Shipping LLC (“Respondent”) for the urgent shipment of the coffee from
Cerulean to Dillamond on board the Madam Dragonfly (“the Vessel”). During the conclusion
of the Charterparty, Claimant stressed that the Cargo should arrive at Dillamond by 7 pm on
28 July, and that the containers used for the voyage were to be entirely waterproof.
Respondent claimed that the sealant it used provided waterproof protection for up to five
days.
3. A side agreement was made and conducted as a prerequisite to the voyage. Claimant was to
pay the crew‟s wages in the amount of USD 100,000 to a separate account specifically made
by Respondent for that purpose, as the crew would not sail otherwise.
4. On 24 July 2017, the Cargo was loaded onto the Vessel, and a corresponding dock receipt
was released. The Vessel began its voyage to Cerulean the same day, with expected arrival at
5 pm on 28 July 2017.
5. At 2.32 pm on 26 July 2017, Claimant was informed of a solar flare that had disabled the
Vessel‟s navigational and communication systems for 17 hours, and that the Vessel
subsequently deviated to the port of Spectre to which it had hardcopy maps.
6. On 27 July 2017, Claimant demanded assurance that the vessel would arrive at Dillamond by
7 pm on 28 July. The same day, the Vessel continued its voyage.
7. At 4.58 pm on 28 July 2017, Respondent informed Claimant that there was a massive storm
about to hit Dillamond preventing the Vessel from proceeding past its location then.
2
8. At 11.45 pm the same day, Claimant seeks news from Respondent on the whereabouts of the
vessel after having its staff waits since 4.30 pm the same day. Respondent did not respond.
9. At 8.58 am on 29 July 2017, Respondent notified Claimant that the vessel was waiting for a
berth at the place instructed by the port, around 100 nautical miles from Dillamond. At 4.28
pm, Respondent again notified Claimant that the vessel was due to berth in 30 minutes, and
that delivery of the cargo would be approximately 2 hours later. Along with the notification,
Respondent sent a barcode to retrieve the cargo from the container port in the event that
Claimant was unable to do it before midnight the same day. At 8.42 pm, the cargo had
become available for collection.
10. At 12 am on 30 July 2017, Respondent left the cargo at the port‟s shipping containers. Later
findings showed that somewhere from 4.30 am the same day, 3 of the 4 containers used were
damaged due to the sealant breaking and rainfall.
11. At 1.17 pm on 31 July 2017, Claimant retrieved the containers and found it in damaged
condition. Claimant was forced to purchase an urgent supply of specialty grade coffee valued
USD 9,450,000, and pay settlement money in the value of USD 5,000,000 under the contract
with Coffees of the World Ltd. On 1 August 2017, Claimant demanded the damages it
incurred, totaling USD 30,200,000 from Claimant by 7 August 2017.
12. On 7 August 2017, Respondent sent notice of the alleged late payment for its performance of
the Charterparty. The next day, Claimant refused the invoice, and stated that its non-payment
was justified owing to its legal deal under the side agreement.
13. On 11 August 2017, Claimant referred the dispute to arbitration pursuant to Clause 27(a) of
the Charterparty. The Tribunal was then properly constituted under the terms of the
Charterparty.
3
ARGUMENT ON JURISDICTION
I. THE TRIBUNAL POSSESS JURISDICTION OVER CLAIMANT’S CLAIMS
FOR DAMAGES
A. THIS TRIBUNAL HAS JURISDICTION OVER THE PRESENT DISPUTE
1. The Tribunal is the chosen forum of the dispute resolution by the parties
14. Parties to a dispute have the autonomy to choose the arbitration regime to govern their
dispute resolution.1 As stated in the Points of Claim and Counterclaim, the dispute existing
between Claimant and Respondent pertain to the performance of the Voyage Charterparty
dated 22 July 2017.2 Clause 27. Arbitration of said Charterparty contains the choice of the
Parties to resolve such disputes in arbitration in London, subject to the arbitration rules of the
LMAA.3 Hence, in the present case, the Tribunal does have in personam jurisdiction over the
Parties.
2. The Tribunal has the power to determine its own jurisdiction
15. Term 6(a) of the LMAA Terms governing these proceedings provides that absent any
agreement to the contrary, the Parties agree that the law applicable to the arbitration
agreement is English.4 As the Parties are silent on the procedural law of the arbitration,
5 the
1 Arbitration Act 1996 (UK) c 23, s 30; Christopher Brown Ltd v Genossenschaft
Oesterreichischer Waldbesitzer Holzwirtschaftsbetriebe Registrierte GmbH [1954] 1 QB
8, 12-3 (Devlin J); Engineering Company v Engineering Company (Final Award) (1999)
XXIV Yearbook Commercial Arbitration 80, 83; Gary B Born, International Commercial
Arbitration (Kluwer Law International, 2nd ed, 2014) vol I, 1050-1; Nigel Blackaby and
others, Redfern & Hunter on International Arbitration (5th edn, Oxford University Press
2009) para 5.99. 2 Moot Scenario (15 December 2017), at 37.
3 Ibid, Clause 27(a).
4 The London Maritime Arbitrators Association Terms 2017, Term 6(a).
5 Moot Scenario (15 December 2017), at 12, Clause 27(a).
4
UK Arbitration Act of 1996 (“the Act”) applies.6 Section 30(1) of the Act affirms the
principle of Kompetenz-Kompetenz - that is, that the Tribunal can rule on its own
jurisdiction.7 As such, the mere assertion by Respondent that this Tribunal possesses no
jurisdiction over the submitted claims does not, in itself, constitute a bar to jurisdiction.
B. THE CLAIMS OF CLAIMANT ARE ARBITRABLE BY THE TRIBUNAL
1. The Tribunal has the power to award damages on the cargo
a. The claim on damages arose out of the Charterparty
16. The operative phrase in Clause 27(a) is “any disputes arising out of or in connection with this
contract”. The use of the words “arising out of” covers a wide set of disputes concerning the
contract, including on its performance and consequences flowing therefrom.8
17. In this instance, the damages claimed by Claimant are concerned with the damage inflicted
on the cargo by Respondent‟s negligence during its performance of the Charterparty.9
Consequently, it is a claim that falls under the heading of disputes arising out of the
Charterparty.
6 The Ioanna [1978] 1 Lloyd‟s Rep 238 (CA); Verity Shipping SA v NV Norexa [2008] 1
Lloyd‟s Rep 652 (QBD). 7 Arbitration Act 1996 (UK) c 23, s 30 (1).
8 See, e.g., Heyman v Darwins Ltd [1942] AC 356; Mackender v Feldia [1967] 2QB 590;
The Evje [1975] AC 797; The Playa Larga [1983] 2 Lloyds Rep 171; Antonis P Lemos
[1985] AC 711; Ashville Investments Ltd v Elmer Contractors Ltd [1989] QB 488; Fillite
(Runcorn) v AquaLift (1989) 26 Const LR 66; Harbour Assurance Co (UK) Ltd v Kansa
General International Insurance [1993] QB 701; The Angelic Grace [1995] 1 Lloyds Rep
87; Cape Flattery Ltd v Titan Maritime, LLC (The Cape Flattery), 607 F. Supp. 2d. 1179
at 924. 9 White Rosebay Shipping SA v Hong Kong Chain Glory Shipping Ltd [2013] EWHC 1355
(Comm) (23 May 2013); Ignacio Arroyo, Yearbook Maritime Law 1984 (Business Media,
2013).
5
b. The claim does not involve a technical matter within the ambit of the
Charterparty
18. Clause 27. Arbitration concluded between Claimant and Respondent specifies that disputes as
to technical matters to be referred to expert determination by an independent Master Mariner
prior to its institution to arbitration.10
19. The Master Mariner‟s role is confined to the narrow technical issues stipulated in the
contract,11
which in this case matters surrounding the technical aspects of the performance of
the Charterparty which can reasonably be considered to be within his expert technical
knowledge.12
20. In this instance, neither of the issues on damages: (i) Respondent‟s deviation, or (ii) the
cargo‟s storage at Dillamond, involve technical matters.
i. The issue of deviation does not involve a technical matter
21. While it is true that a question requiring factual determination should foremost be submitted
to an expert13
- i.e., a technical matter under the Charterparty, the issue of deviation in this
case does not fall within that ambit. The only circumstances under which the issue would be a
technical matter would be if it pertains solely to the vessel‟s route,14
that is, whether the
vessel did take the most direct route to its port of destination.15
10
Moot Scenario (15 December 2017), at 12, Clause 27(d). 11
Jones v Sherwood Computer Services Ltd [1992] 1 WLR 277. 12
Moot Scenario (15 December 2017), at 12, Clause 27(g). 13
Norwich Union Life Insurance Society v P&O Property Holdings [1993] EGLR 164. 14
Moot Scenario (15 December 2017), at 12, Clause 27(g). 15
See, e.g., Leduc v. Ward (1779) 1 Doug. 284; Morrison v. Shaw Savill [1916] 2 K.B. 783,
797.
6
22. The vessel having deviated from the most direct route is a fact acknowledged by both
Parties,16
and as such is not the issue raised. Instead, the issue raised is whether, given the
factual circumstances of the case, Respondent should be held liable for the damages caused
by that deviation. That is a question of legal determination,17
and falls entirely within the
scope of the Tribunal‟s jurisdiction.18
ii. The issue of the Cargo’s storage at the Port does not involve a
technical matter
23. Technical matters are those that fall exclusively within the expert technical knowledge of a
Master Mariner.19
The „storage‟ that would be included in the scope of those matters20
would
solely pertain to onboard storage,21
and not the storage after the cargo‟s discharge. In this
case, as Claimant‟s claim focuses solely on the latter issue, it does not fall within the scope of
technical matters enumerated in the Charterparty.
2. The Tribunal has the power to declare the maritime lien on the Madam
Dragonfly
a. The claim on damages arose out of the Charterparty
24. Disputes arising out of a side agreement to the main contract fall in the scope of disputes in
connection with said contract.22
Here, the dispute concerning the maritime lien arose out of a
side agreement with respect to the payment of the crew, which was a prerequisite to the
16
Moot Scenario (15 December 2017), at 18. 17
Baulderstone Hornibrook Engineering Pty Ltd v Kayah Holdings Pty Ltd (1997) 14 BCL
277. 18
Moot Scenario (15 December 2017), at 12, Clause 27(a). 19
Ibid, Clause 27(g). 20
Ibid. 21
See, e.g., Ibid, Clause 1, 8(e), (f), 29. 22
L Brown & Sons Limited v Crosby Homes (North West) Limited, [2005] EWHC 3503.
7
commencement of the main contract of voyage.23
As a consequence, it should be regarded as
a dispute that is in connection with the Charterparty.
b. The claim does not involve an action beyond the jurisdiction of the
Tribunal
25. The Tribunal‟s lack of power to order an arrest of the vessel as a consequence of a maritime
lien does not bar it from examining the subject-matter of the lien, given that it pertains to an
in personam issue.24
26. First, Claimant‟s claim of equitable subrogation of a maritime lien, although giving rise to a
right to an arrest in rem,25
stems from a claim in personam with regards to the non-
performance of an obligation.26
27. Second, the claim of a maritime lien should be accepted as lying not only against the vessel,
but also the party having an interest in said vessel,27
Respondent in this case. Consequently, it
is a matter that is arbitrable by the Tribunal.
C. THE TRIBUNAL HAS THE POWER TO APPLY THE LAWS GOVERNING THE CLAIMS
OF CLAIMANT
28. Article 46 of the Act, which governs the substantive law of the dispute,28
grants the Tribunal
jurisdiction to apply (a) the substantive laws of New South Wales to the dispute on damages,
23
Moot Scenario (15 December 2017), at 1. 24
Fulham Football Club (1987) Ltd v. Sir David Ichards and The Football Association
Premier League Ltd [2010] EWHC 3111. 25
Bankers Trust International v. Todd Shipyards Corp, The Halcyon Isle [1981] AC 221,
[1980] 3 All ER 197, [1980] 3 WLR 400, [1980] 2 Lloyd's Rep 325, 124 Sol Jo 479;
Daniel Harmer v William Errington Bell and Others ("In Rem Jurisdiction of English
Admiralty Courts") 13 E.R. 884 (1851). 26
Ibid. 27
Republic of India v. India Steamship Co. Ltd (The Indian Grace) (No. 2) [1998] 1Lloyd's
Rep. 1. 4NJJ Gaskell, C Debattista, & RJ Swatton. Chorley & Giles' Shipping Law 7 (8th
ed., Pearson Education Ltd. 1987).
8
and (b) the substantive laws of the UK to the dispute on the maritime lien over the Madam
Dragonfly.
1. The Tribunal can apply the laws of New South Wales to the dispute on
damages
29. Article 46(1)(a) provides that the Tribunal shall decide the dispute in accordance with the law
chosen by the parties as applicable to the substance of the dispute.29
The dispute between the
Parties concerning the damages in respect of the cargo, having existed out of the performance
of the Charterparty,30
is governed under Clause 26. Law, which provides for New South
Wales law to be applied. Consequently, this Tribunal has the power to apply such laws to said
dispute.
2. The Tribunal can apply the laws of the United Kingdom to the dispute on
the maritime lien over the Madam Dragonfly
30. Having involved a different claim,31
the dispute on the maritime lien should be regarded as a
separate dispute.32
As a consequence, the Tribunal has the power to apply Article 46(3),
where to the extent that there is no explicit choice of law, the Tribunal can apply the law
determined by the conflict of laws rules that is applicable to the case.33
31. In the present case, as the maritime lien incurs the liability of Respondent in personam as
established supra, the Tribunal can apply the law of Respondent‟s place of business. Thus,
the laws of Cerulean, which incorporates the laws of the UK, applies with respect to the
maritime lien.
28
Arbitration Act 1996 (UK) c 46. 29
Ibid, c 46 (1) (a). 30
Moot Scenario (15 December 2017), at 12, Clause 28. 31
Moot Scenario (15 December 2017), at 38. 32
Monmouthshire County Council v. Costelloe & Kemple Ltd (1965) 5 BLR 83. 33
Arbitration Act 1996 (UK) c 46 (3).
9
ARGUMENT ON MERITS
II. RESPONDENT IS LIABLE TO CLAIMANT FOR DAMAGE COMPRISING
ACCOUNTS OF THE DAMAGED CARGO, REPLACEMENT COFFEE
PAYMENT, AND SETTLEMENT PAYMENT
A. RESPONDENT IS RESPONSIBLE FOR THE DAMAGES TO THE CARGO
1. Respondent is responsible for the deviation causing damages to the cargo
32. A Carrier must take the direct or usual route to reach the port of discharge;34
else it would be
liable for damages for deviation.35
In this case, Respondent is responsible for the effects of its
deviation, a) which had been the indirect result of its deviation, and b) for which it was not
entitled to protection under force majeure.
a. The cargo’s damage was the indirect result of Respondent’s deviation
33. A Carrier is liable for indirect losses if the damages are reasonably foreseeable as the result of
a breach of contract at the time.36
Deviation being a breach of contract,37
what remains to be
established is whether Respondent should have foreseen the possibility of the cargo being
damaged as a consequence, given the facts of the case at hand.
34. The facts of the case are: First, the waterproof sealant lasted up to five days,38
and would
have definitively expired had the vessel arrived on July 29.
34
Leduc v. Ward (1888) 20 Q.B.D. 475, 481. 35
Glynn v. Margetson [1893] A.C. 351, 354; Clayton v. Simmonds [1741]; UCL Journal of
Law and Jurisprudence, p. 116. 36
Hadley v. Baxendale (1854) 8 Ex 341. 37
Davis v. Garrett (1830) 6 Bing. 716, 725; Reardon Smith v. Black Sea Insurance [1939]
A.C. 562. 38
Moot Scenario (15 December 2017), at 14.
10
35. Second, the deviation had cost the Madam Dragonfly 17 hours of its voyage,39
which was
expected to end at 5 PM on July 28.40
This means the vessel should have foreseeably arrived
on July 29 even without the storm,41
at which point the sealant would have expired.
36. Third, the Expert Opinion provided conclusive proof that the cargo was damaged due to the
sealants‟ prolonged use,42
which should have been foreseeable by Respondent given the
circumstances of the case. As a consequence, it is liable for the damages caused, even
indirectly, by its deviation.
b. Respondent does not benefit from protection under force majeure
37. The only circumstances in which Respondent would not be liable would be by a contractual
exclusion under the force majeure clause.43
However, that does not apply because
Respondent‟s fault is at play for the deviation causing the damages to the cargo,44
not the
force majeure events it alleged.45
38. Force majeure exempts non-performance of an obligation solely when it directly causes the
inability in question.46
Respondent is under the obligation to demonstrate the causal effect of
the force majeure towards its inability to perform its obligation,47
and it had taken reasonable
39
Ibid, at 17. 40
Ibid, at 15. 41
See Ibid, at 19-22. The storm lasted until 8 pm, causing only a 4-hour delay until the vessel
arrived at the waiting place of the port at 7 am. This means that had the storm not
occurred, the vessel still would have arrived at its berth approximately 3 am on 29 July if
there had been no queue. 42
Ibid, at 43. 43
Davis v. Garrett (1830) 6 Bing. 716, 725 per Tindal C.J. 44
Phelps, James & Co v. Hill [1891] 1 QB 605 CA. 45
Moot Scenario (15 December 2017), at 40. 46
McKendrick, E. Force Majeure and Frustration of Contract (Lloyd‟s of London Press, 2nd
ed, 1995). 47
Brightman & Co v. Bunge y Born [1924] 2 K.B. 619.
11
steps to mitigate its effects.48
In the present case, Respondent cannot assert such grounds as
the deviation itself was not the direct effect of the solar flares, nor was it non-mitigable.
39. Respondent‟s deviation, although made following the solar flares, was not a direct
consequence thereof. Rather, it was caused by the lack of hard copy maps for the voyage to
the Port of Dillamond, and instead only ones for the Port of Spectre.49
Even with its
awareness of the potential occurrence of the flares during the two-week period after 18 July,50
Respondent failed to take any mitigating steps to prevent its impact on the voyage.
Consequently, Respondent cannot benefit from protecting under the force majeure.
2. In any event, Respondent breached its duty to keep the cargo safe until its
delivery
40. Even if the deviation was to be held too remote as the cause of damage, Respondent is
nonetheless liable for neglecting their duty of care. A carrier‟s duty of care remains until the
right and true delivery of the cargo,51
which occurs when it is placed under the absolute
dominion and control of the consignees.52
41. As a consequence, the cargo could only be said to be under the control of Claimant when the
electronic access system, which gave Claimant access to the offloaded cargo,53
took effect. In
spite of it being sent on 29 July,54
the electronic access system did not take effect until 30
48
Holcim (Singapore) Pte Ltd v. Precise Development Pte Ltd [2011] 2 SLR 106 at [66]. 49
Moot Scenario (15 December 2017), at 19. 50
Ibid, at 35. 51
Henderson v. Merrett Syndicates [1995] 2 A.C. 145. 52
Chartered Bank v. British India, S.N. Co. (1909) A.A. 369, 375. 53
Moot Scenario (15 December 2017), at 23. 54
Ibid, at 22.
12
July 2017, which was a Sunday and not a working day.55
As such, the delivery of the cargo
could only be said to occur on 31 July, which was the next working day.56
42. Respondent‟s duty of care, in this case, comes with the obligation to keep the containers
carrying the cargo entirely waterproof.57
As such, from the time of the cargo‟s discharge and
until it is received by Claimant, Respondent was under the duty to take measures to avoid
water damage to the cargo from any preventable cause.58
On the contrary, even in spite of its
awareness that the sealant expired on 29 July,59
and the existence of pouring rain at the Port
of Dillamond on that date,60
Respondent elected to leave the cargo exposed at the Port‟s
shipping containers.61
B. CLAIMANT IS ENTITLED TO COMPENSATION FOR THE DAMAGES INCURRED
1. Respondent is liable for the entire value of the damaged Cargo
a. Respondent is liable for direct damages for the Cargo
43. The foremost liability is that for direct damages, which arise naturally from the breach of
contract.62
Here, the actions of Respondent as explained supra were the primary reason
behind the damage inflicted on the cargo sometime in the 24 hours from 4.30 a.m. on 30
July,63
a period of time when the cargo supposed to be still under its duty of care. Hence,
Respondent as the party who was negligent to perform its duty to deliver the cargo until it
was safely received hereto still had the liability to put Claimant in the same financial position
55
Ibid, at 24. 56
Mondial Shipping and Chartering BV v. Astarte Shipping Ltd [1995] CLC 1011. 57
Moot Scenario (15 December 2017), at 2. 58
Notara v. Henderson (1872) LR 7 QB 225, Court of Exchequer Chamber. 59
Moot Scenario (15 December 2017), at 14. 60
Ibid, at 36. 61
Procedural Order 2, at 18. 62
Hadley v. Baxendale (1854) 9 Exch 341. 63
Moot Scenario (15 December 2017), at 43.
13
as if the contract had been performed.64
Thus, Respondent is liable to the direct damages
upon the damaged cargo in the sum of USD 15,750,000.65
b. Respondent does not benefit from the limitation of
44. The Hague Visby Rules stipulated that neither the carrier nor the ship shall be entitled to the
benefit of the limitation of liability if it is proved that the damage resulted from an act or
omission of the carrier done with the knowledge that its action will lead to loss.66
45. In this case, that omission occurred when Respondent negligently left the cargo unprotected
at the shipping containers on July 29.67
When it did so, Respondent could not have been
unaware of the sealant‟s expiry on July 29,68
and the existence of pouring rain at the Port of
Dillamond on that date.69
Its choice to leave the cargo regardless means that it had assumed
this risk, and should be held liable for it - consequently, it cannot benefit from the limitation
of liability clause.
2. Respondent is liable for indirect damages for the losses incurred by
Claimant
a. The damages were foreseeable at the time of the making of the contract
46. Indirect damages are recoverable should they have been in the contemplation of both parties
at the time entering into the contract as the probable result of the breach of it.70
Here,
64
Robinson v. Harman (1848) 1 Ex Rep 850 at 855. 65
Moot Scenario (15 December 2017), at 27. 66
The Hague Visby Rules, Article 4 (5) (e); Article 4bis (4). 67
Procedural Order 2, at 18. 68
Moot Scenario (15 December 2017), at 14. 69
Ibid, at 36. 70
Victoria Laundry (Windosr) LD. v. Newman Industries LD. ; Hadley v. Baxendale (1854) 8
Ex 341.
14
Claimant claims two forms of indirect damages, comprising USD 9,450,000 for Replacement
Coffee Payment and USD 5,000,000 on account of the Settlement Payment.71
47. Both of these were entirely foreseeable given the circumstances in which the Charterparty
was concluded. Claimant had clearly stated that the coffee, a rare, high-quality, speciality
grade, is at high risk for moisture damages.72
Additionally, Claimant mentioned that the
shipment was for purposes of a separate contract with Coffees of the World Ltd.73
Given
these facts, Respondent should have been aware that should the coffee be damaged in its care,
Claimant would be liable for any resulting losses
b. The damages were incurred reasonably
48. The party suffering losses should be expected to act prudently in the given circumstances.74
Both the damages incurred by Claimant are reflections of that act.
49. First, on account of the Replacement Coffee Payment, purchasing a replacement for damaged
goods used within a subcontract is generally accepted as a lawful mitigation in the event of
non-delivery.75
50. Second, on account of the Settlement Payment, Claimant avoided potential convoluted
litigation by its client,76
which was only possible entirely due to Respondent‟s failure to
deliver the cargo. Consequently, Claimant had acted fully reasonably, and should be
compensated for the losses it incurred.
71
Moot Scenario (15 December 2017), at 38. 72
Ibid, at 2. 73
Ibid. 74
Slater v. Hoyle & Smith Ltd [1920] 2 KB 11 (CA) 17; Louis Dreyfus Trading Ltd v.
Reliance Trading Ltd [2004] 2 Lloyd‟s Rep 243 at 21-22. 75
KG Bominflot Bunkergesellschaft fur Mineralole GmbH & Co v. Petroplus Marketing AG
[2012] EWHC 3009 (Comm); Williams Bros v. Ed T Agius Ltd [1914] AC 510, 523 76
Moot Scenario (15 December 2017), at 29.
15
III. CLAIMANT HOLDS A MARITIME EQUITABLE LIEN OVER THE MADAM
DRAGONFLY
A. THERE EXIST A MARITIME LIEN FOR WAGES OVER THE MADAM DRAGONFLY
51. The laws of the UK govern the maritime lien on the Madam Dragonfly in rem,77
which as of
the date of these proceedings remains in Dillamond.78
Said laws recognize maritime lien for
unpaid crew wages both in admiralty79
and in statute.80
In this case, the crew of the Madam
Dragonfly has not been paid for their wages by Respondent,81
creating a maritime lien that
adheres to the vessel until the time that it is extinguished.82
B. CLAIMANT IS ENTITLED TO A SUBROGATION OF THE MARITIME LIEN THROUGH
ITS PAYMENT TO THE WAGES ACCOUNT
52. A maritime lien, in its true construction, is an action against the vessel,83
even though it
involves the fault of its owner in personam. As such, payment on behalf of the vessel to the
privileged creditor - the crew, in the case for a claim for wages,84
would by virtue of equity
transfer their rights to the payer.85
In this case, Claimant is entitled to a subrogation of the
maritime lien as: (1) Claimant had paid the wages of the crew, and (2) It had been made on
behalf of the vessel
77
Harmer v. Bell (The “Bold Buccleugh”) [1851] EngR 985; (1851) 7 Moo PC 267 at 284-
285 [1851] EngR 985; (13 ER 884 at 890-891). 78
Moot Scenario (15 December 2017), at 36, 45. 79
Ships “Hako Endeavour”, “Hako Excel”, “Hako Esteem” and “Hako Fortress” v.
Programmed Total Marine Services Pty Ltd [2013] FCAFC 21 (26 February 2013), at 94,
citing Holt LCJ in Clay v. Snelgrave (1700) 1 Ld Raym 576 at 578 80
UK Merchant Shipping Act 1995, s. 39(1). 81
Moot Scenario (15 December 2017), at 36. 82
The Tolten, “The Two Ellens” LR 4 PC, at 169. 83
Commandate Marine Corporation v. Pan Australia Shipping Pty Ltd; Ships “Hako
Endeavour”, “Hako Excel”, “Hako Esteem” and “Hako Fortress” v. Programmed Total
Marine Services Pty Ltd [2013] FCAFC 21 (26 February 2013). 84
The “Albion” 1 Asp MLC 401. 85
The “Tagus” [1903] P at 54; The “Albion” 1 Asp MLC 401
16
1. Claimant had paid the wages of the crew by virtue of payment to the
account
53. The first prerequisite for equitable subrogation is that Claimant had satisfied the debt owed to
the crew for their wages.86
In this case, as a side agreement to the Charterparty, Claimant had
agreed to pay USD 100,000 in wages to the crew as security.87
This effectively created a trust
relationship, wherein in the event of Respondent‟s personal default, Respondent as trustee
should transfer the funds to the crew as beneficiary.88
54. As a consequence, when Respondent failed to pay the crew, Claimant‟s funds effectively
constituted payment to the crew.89
The fact that Respondent has not transferred said funds to
the crew90
does not alter this notion. Equity regards as done that which ought to be done91
- in
this case, having paid the funds as trustor, equity regards Claimant has having paid off the
crew.
2. The payment was made on credit of the vessel
55. The second prerequisite for equitable subrogation is that the payment was done on behalf of
the vessel, as opposed to being a voluntary action.92
In this case, Claimant did not on their
own accord pay off the crew, but did so out of a contractual requirement to conduct the
Charterparty.93
That requirement was made with the basis that the crew would consequently
86
Bofinger v. Kingsway Group Limited [2009] HCA 44; (2009) 239 CLR 269 at 280-281;
Yonge v. Reynell [1852] EngR 655; (1852) 9 Hare 809 at 818-819; O’Day v. Commercial
Bank of Australia Ltd [1933] HCA 37; (1933) 50 CLR 200 at 223; Friend v. Brooker
[2009] HCA 21; (2009) 239 CLR 129 at 153. 87
Moot Scenario (15 December 2017), at 1. 88
Barclays Bank Ltd v. Quistclose Investments Ltd [1970] AC 567; Conservative & Unionist
Central Office v Burrell [1982] 1 WLR 522. 89
Ibid. 90
Moot Scenario (15 December 2017), at 36. 91
Walsh v Lonsdale [1882] Ch D 9, at 14-15. 92
The “Petone” [1917] P 198. 93
Moot Scenario (15 December 2017), at 1.
17
be willing to sail,94
and not exercise their right to seize the ship. As a consequence of the
above, Claimant possesses the right to enforce the crew‟s rights and remedies against the
ship,95
and of subrogation of the maritime lien against the ship.
94
Ibid. 95
Ships “Hako Endeavour”, “Hako Excel”, “Hako Esteem” and “Hako Fortress” v.
Programmed Total Marine Services Pty Ltd [2013] FCAFC 21 (26 February 2013), at 101.
18
IV. CLAIMANT IS NOT LIABLE TO RESPONDENT FOR AMOUNTS OWING
UNDER THE CHARTERPARTY FOR FREIGHT, AGENCY FEES, COST OF
REPAIRS, DEMURRAGE, AND USE OF ELECTRONIC ACCESS SYSTEMS
A. CLAIMANT HAS NO OBLIGATION TO PAY RESPONDENT ANY AMOUNTS DUE TO
THE LIEN IT HAS OVER THE MADAM DRAGONFLY
56. A maritime lien grants the holder not only lien over the vessel, but also the freight earned.96
As Claimant in effect holds a lien over the freight it owes to Respondent, it has no obligation
to pay Respondent until a declaration otherwise by the Tribunal, or until Respondent pays the
value of the lien to Claimant.
B. CLAIMANT IS NOT LIABLE FOR AGENCY FEES AT THE PORT OF SPECTRE
57. Clause 23. Charges are silent on whether Claimant or Respondent should be responsible for
fees incurred at an intermediate port.97
In that absence, Claimant‟s liability would be invoked
in the case of a particular charge.98
However, Claimant is not liable for such fees as: (1) the
agency fees were not particular charges, and (2) in any event, Respondent‟s fault bars its
claim thereof.
1. The agency fees were not particular charges
58. A particular charge is one that is incurred for saving or preserving the cargo.99
Parallel with
the instance of a general average loss,100
for the agency fees to be claimed as a particular
96
The Andalina (1886) 12 P.D. 1 at 3; The Leo (1862) Lush 444 at 447. 97
Moot Scenario (15 December 2017), at 11, Clause 23. 98
Chitty on Contracts: General Principles at 29-133; Birkley v. Presgrave (1801) 1 East 220,
228-229 (Lawrence J). 99
Kidston and Others v. The Empire Marine Insurance Company (1867) LR 1 CP 535;
(1867) LR 2 CP 357; Benecke on Marine Insurance, 472, Lond. 1824. 100
The York-Antwerp Rules, Rule A.
19
charge, it requires: First, an establishment of direct and unbroken causation,101
and Second,
that the loss be inevitable.102
Such principles contradict the facts of the present case.
59. First, agency fees are costs additional to that incurred by way of mere deviation to a port,103
and as such is not the direct result of the deviation.
60. Second, the agency fees would have been avoidable had the vessel‟s systems been up to date,
under which circumstances it would have come back after four hours,104
not necessitating any
handling of the vessel and cargo.
2. In any event, Respondent’s fault bars its claim of particular charges
61. The existence of fault bars any claim to losses by the ship-owner.105
Such fault is especially
pertinent in the case of unseaworthiness of the vessel,106
which includes the failure to equip it
with adequate charts and navigational aids.107
In the present case, the Madam Dragonfly
would not have deviated had it had maps to the Port of Dillamond, which Respondent had
failed to provide.108
As such, any expenses incurred as a consequence, including agency fees
at the Port of Spectre, cannot be claimed as a particular charge.
101
Australian Coastal Shipping Commission v. Green [1971] 1 QB 456, CA. 102
Eisenerz GmbH v. Federal Commerce and Navigation Co Ltd (“The Oak Hill”) [1970] 2
Lloyd‟s Rep 332, affirmed [1975] 1 Lloyd‟s Rep 105. 103
Svendsen v. Wallace Bros (1884) 13 QBD 69, 87–88, per Bowen LJ . 104
Moot Scenario (15 December 2017), at 35. 105
Goulandris Bros v. Goldman & Sons [1958] 1 QB 74; Hamilton v. Mendez, 2 Burrow,
1198 as cited from D. Akenhead and Sons, on the Sandhill, The Ships Owner’s Manual
(7th Ed, 1795, Maritime Law). 106
Australia Carriage of Goods by Sea Act, Article 4.1; Guinomar of Conakry v. Samsung
Fire & Marine Insurance Co. Ltd (“The Kamsar Voyager”) [2002] 2 Lloyd‟s Rep 57. 107
Rey Banano del Pacifico CA & Ors v Transportes Navieros Ecuatorianos & Anor, Court
of Appeal - Commercial Court, February 24, 2000, [2000] EWHC 215 (Comm); The Isla
Fernandina [2000] 2 Lloyd‟s Rep 15. 108
Moot Scenario (15 December 2017), at 19.
20
C. CLAIMANT IS NOT LIABLE FOR DEMURRAGE
62. Demurrage arises when a vessel is detained by a charterer beyond the agreed laytime.109
As
Charterer, Claimant is not liable for demurrage as (1) demurrage did not accrue at all during
the discharge of the cargo, and in any event, (2) the claim for demurrage is obstructed by
Respondent‟s negligence.
1. Demurrage did not accrue at all during the discharge of the Cargo
63. Although Respondent did wait until midnight for the collection of the cargo,110
this does not
mean that the vessel was detained during the entire period it claims. The detention of a vessel
occurs when the cargo remains in its carriage and has yet to be unloaded.111
Demurrage
would only begin accruing if this period of detention occurs beyond laytime,112
which
pursuant to Clause 8. Loading and Discharging, lasts 12 hours after the vessel‟s arrival at the
discharge port.113
64. To qualify as an arrived vessel, there are two prerequisites: first, that the vessel had reached
the place where vessels wait for a berth, and second, that it was made available to
Claimant.114
Although the vessel may have arrived at the waiting place at 7 am,115
it was not
until 8.58 am that Respondent sent notification of the vessel‟s arrival,116
thereby making it at
Claimant‟s effective disposal.117
This means demurrage would have begun accruing at 8.58
109
The Dias [1978] 1 Lloyd‟s Rep 325; John Schofield, Laytime and Demurrage, (CRC
Press, Dec 22, 2015), para 6.24. 110
Moot Scenario (15 December 2017), at 22. 111
Cawthron v. Trickett (1864) 15 CB (NS) 74. 112
William Alexander v. Akt. Hansa [1920] A.C. 88, at p. 94. 113
Moot Scenario (15 December 2017), at 6, Clause 8(c)(ii). 114
E.L. Oldendorff & Co GmbH v Tradax Export SA (The Johanna Oldendorff) [1973] 3 All
ER 148. 115
Moot Scenario (15 December 2017), at 20. 116
Ibid. 117
TA Shipping Ltd v. Comet Shipping Ltd (The Agamemnon) [1998] 1 Lloyd‟s Rep 675.
21
pm.118
On the other hand, the cargo was discharged by 8.42 pm,119
before the lapse of the
laytime. Hence, no demurrage is recoverable by Claimant.
2. In any event, the claim for demurrage is obstructed by Respondent’s
negligence
65. Demurrage is a claim inherently based on the detention of the vessel by the charterer,120
and
is not a remedy available to the shipowner if the grounding of the vessel is caused by his own
negligence.121
In the present case, any detention was solely by way of Respondent‟s fault.
Respondent made an unnecessary deviation to the Port of Spectre owing to its faulty
systems122
and lack of hardcopy maps.123
Without such deviation, it would have reached the
Port of Dillamond prior to the storm,124
where Claimant‟s crew had readily awaited the
delivery of the cargo.125
As such, Respondent is not entitled to claim demurrage.
D. CLAIMANT IS NOT LIABLE FOR THE USE OF THE ELECTRONIC ACCESS SYSTEMS
AT THE PORT OF DILLAMOND
1. The purchase of the electronic access systems was not necessary
66. Any costs that are not necessarily incurred by a party constitute a loss, the responsibility for
which lies on the party in default.126
In the present case, at the time of its purchase, the
electronic access system had been entirely unnecessary. The purchase was made before the
vessel arrived, and before Respondent had ensured that Claimant would not take delivery of
118
Moot Scenario (15 Desember 2017), at 20. 119
Ibid, at 24. 120
William Alexander v. Akt. Hansa [1920] A.C. 88, at p. 94. 121
Blue Anchor Line Ltd. V. Alfred C. Toepfer International (The Union Amsterdam) [1982]
2 Lloyd‟s Rep. 432 at p. 436. 122
Moot Scenario (15 December 2017), at 20. 123
Ibid, at 18. 124
Ibid, at 20-22. 125
Ibid, at 19-20. 126
Hammond v. Bussey (1880) 20 QBD 79.
22
the goods in time.127
Even though Claimant had later used the access,128
it does not constitute
acquiescence to the act,129
as Claimant had been unaware that it should shoulder the costs.130
2. In any event, it was incurred due to Respondent’s fault
67. Equity dictates that no party should be permitted to profit from their own wrongdoing.131
In
this case, Respondent cannot escape a cost it incurred due to its own fault. Given the
circumstances of the case, had Respondent delivered the cargo in time, Claimant‟s crew
would have readily waited to receive it.132
The storage costs incurred were entirely avoidable
if not for Respondent‟s unjustified delay. As such, it was a cost which must be borne by
Respondent, and cannot be imposed upon Claimant.
127
Moot Scenario (15 December 2017), at 22. 128
Ibid, at 24. 129
Hoenig v. Isaacs (1952) 2 All ER 176. 130
Moot Scenario (15 December 2017), at 33. 131
A-G (UK) v Times Newspaper Ltd (No 2) [1990] 1 AC 109, 286. 132
Moot Scenario (15 December 2017), at 20-21.
23
REQUEST FOR RELIEF
For the foregoing reasons, Claimant respectfully requests the Tribunal to adjudge and
declare that:
I. The Tribunal has jurisdiction over Claimant‟s claim for damages;
II. Respondent is liable to the Claimant for damages comprising accounts of the
damaged Cargo, Replacement Coffee Payment, and Settlement Payment;
III. Claimant holds a maritime equitable lien over the Madam Dragonfly
IV. Claimant is not liable to Respondent for amounts owing under the Charterparty
for freight, agency fees, cost of repairs, agency fees, demurrage, and use of
electronic access systems.