1 6T H

I N T E R N A T I O N A L M A R I T I M E L A W A R B I T R A T I O N M O O T , 2 0 1 5

U N I V E R S I T A S G A D J A H M A D A

TEAM NO. 9

MEMORANDUM FOR CLAIMANT

ON BEHALF OF AGAINST

WESTERN TANKERS INC. LESS DEPENDABLE TRADERS PTE

CLAIMANT RESPONDENT

COUNSEL

ALBERTUS ALDIO PRIMADI AGUNG ROSA MAHESWARI HEZA RAMANDA

JOHANNA DEVI KEVIN CARLOS RAISSA YURIZZAHRA

TABLE OF CONTENTS

TABLE OF CONTENTS ...................................................................................................................... I

LIST OF ABBREVIATIONS ............................................................................................................... III

INDEX OF AUTHORITIES ................................................................................................................ IV

QUESTIONS PRESENTED ................................................................................................................ IX

STATEMENT OF FACTS ................................................................................................................... 1

ARGUMENTS ................................................................................................................................... 3

JURISDICTION ................................................................................................................................. 3

I. THE PRESENT DISPUTE SHALL BE SETTLED WITHIN THE LONDON TRIBUNAL AND IN

ACCORDANCE WITH ENGLISH LAW .......................................................................................... 3

A. LONDON TRIBUNAL AND ENGLISH LAW HAS BEEN CONSENTED BY THE PARTIES .............. 3

B. THE PARTIES NEVER INTENDED TO ARBITRATE IN SINGAPORE, PRECLUDING THIS DISPUTE

TO BE SETTLED WITHIN SINGAPORE TRIBUNAL .............................................................................. 5

II. THE TRIBUNAL IS COMPETENT TO HEAR CLAIM RELATING TO TORT OF FRAUD ....... 5

MERITS ........................................................................................................................................... 7

III. ASA2 IS AN AGENT OF RESPONDENT. ............................................................................ 7

A. RESPONDENT HAS APPARENTLY AUTHORIZED ASA2 TO ACT AS ITS AGENT .................... 8

B. RESPONDENT‟S CONDUCT AMOUNTED TO RATIFICATION ................................................ 10

IV. RESPONDENT IS LIABLE FOR THE DETRIMENT SUFFERED BY CLAIMANT ................. 11

A. RESPONDENT‟S ACTIONS HAVE MET THE ELEMENTS OF FRAUD ...................................... 11

i. Respondent has made dishonest representation ......................................................... 11

ii. The falserepresentation was made with the intention that Claimant will rely on it ... 12

iii. The reliance upon the representation was justifiable ................................................. 13

B. FURTHER, RESPONDENT HAS BREACHED THE CHARTERPARTY TO PROVIDE FULL BUNKER

14

C. CLAIMANT REJECTS RESPONDENT‟S ALLEGATION THAT THE VESSEL WAS UNSEAWORTHY

15

i. The Master followed a legitimate order ..................................................................... 16

TEAM NO.9 MEMORANDUM for CLAIMANT

ii

ii. The Master has taken precautionary action to prevent piracy ...................................... 17

V. RESPONDENT HAS BREACHED THEIR DUTY TO PAY THE HIRE OF THE VESSEL ........... 18

A. FRUSTRATION OF THE CHARTERPARTY BY RESPONDENT WAS INVALID ........................... 18

i. There were not any unforeseen frustrating event that occurred on and before 4th

July

2014.................................................................................................................................... 19

ii. The frustrating event happened by the control of Respondent ................................... 20

B. FRUSTRATION OF THE CHARTERPARTY DID NOT DISCHARGE RESPONDENT OBLIGATION TO

PAY THE HIRE OF THE VESSEL. ....................................................................................................... 21

C. RESPONDENT CANNOT EXCLUDE ITS LIABILITY TO PAY THE HIRE OF THE VESSEL BASED ON

OFF-HIRE CLAUSE ........................................................................................................................... 22

i. The Vessel is in full working condition when Respondent invalidly placed the Vessel

as off-hire ........................................................................................................................... 22

ii. Master has not exercised breach of order .................................................................. 23

iii. The Master did not neglect its duty ............................................................................ 24

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

TEAM NO.9 MEMORANDUM for CLAIMANT

iii

LIST OF ABBREVIATIONS

§ Section

¶/¶¶ Paragraph/Paragraphs

Art Article

Angola Ltd Angola Limited

ASA Atlantic Services Agency, Captain William

ASA2 Captain Anya

Claimant a Western Tankers Inc.

Case File IMLAM Moot Problem 2015w

et al And others

Lloyd‟s Rep. Lloyd‟s Law Reports.

mt Metric Tonnes

Master Captain Stellios

OPL Original Port of Loading

p./pp. Page/pages

Respondent Less Dependable Traders PTE

Rome Convention 1980 Rome Convention on the Law Applicable to Contractual Obligation

Shelltime 4 Shelltime 4 as issued December 1984 amended December 2003

STS Ship to Ship

Vessel Western Tankers

TEAM NO.9 MEMORANDUM for CLAIMANT

iv

INDEX OF AUTHORITIES

Cases ..................................................................................................................... Referred in page

AA (Nigeria) v. Secretary of State for the Home Department [2010] EWCA Civ 773 ............... 11

Actis Co. Ltd. v. The Sanko Steamship Co. Ltd. ('The Aquacharm') [1982] 1 Lloyd's Rep. 7 ...... 15

Aggeliki Charis Compania Maritima SA v. Pagnan SpA („The Angelic Grace‟) [1995] 1 Lloyd's

Rep 87 ......................................................................................................................................... 7

Armagas Ltd v. Mundogas SA [1986] AC 717 ........................................................................... 7, 9

Armstrong v. Strain (1952) 1 K.B. 232 ......................................................................................... 11

Astro Vencedor Compania Naviera SA of Panama v. Mabanaft GmbH („The Damianos‟) [1971]

2 QB 588 ..................................................................................................................................... 7

Ashville Investments Ltd v. Elmer Contractors Ltd [1989] QB 488 .............................................. 6

Avon Insurance plc v. Awire Fraser ltd [2000] Llyod‟s Rep IR 535 ........................................... 12

Bank Line Ltd v. Arthur Capel& Co [1919] A.C. 435 ................................................. 19,20, 21, 22

Banque Keyser SAA v. Skandia (UK) Ltd [1990] 1 QB 665 ......................................................... 12

Bradley (FC) v. Ford [1897] AC 156 ............................................................................................. 9

Bradley (FC) &Son Ltd v. Federal Steam Navigation Co. Ltd (1926) 24 Ll.oyd's Rep. 446 ....... 17

Branwhite v. Worcester Works Finance Ltd [1969] 1 AC .............................................................. 8

Chandler v. Webster [1903] 1 KB 493 ......................................................................................... 21

Cheikh Boutros Selim El-Khoury and Others v. Ceylon Shipping Lines Ltd ('The

Madeleine')[1967] 2 Lloyd‟s Rep. 224 ..................................................................................... 15

Chimimport plc v. D'Alesio [1994] 2 Lloyd's Rep. 366 .................................................................. 6

Ciampa and Ors v. British India SN Co [1915] 2 KB 774 ........................................................... 15

CompaniaNaviera General SA v. Kerametal Ltd.('The Lorna I') [1983] 1 Llyod‟s Rep. 373 .... 19,

21, 22

Cricklewood Property and Investments Trust Ltd v. Leighton‟s Investment Trust Ltd [1945] A.C.

221 ............................................................................................................................................. 19

Criterion Properties plc v. Stratford UK Properties LLC [2004] 1 WLR 1846............................. 9

Dadourian v. Simms [2009] EWCA Civ 169................................................................................ 13

Davis Contractor Ltd v. Fareham U.D.C. [1956] A.C. 696 ......................................................... 20

Decro-Wall International S.A. v. Practitioners in Marketing Ltd (1971) [1971] 1 WLR 361,

[1971] 2 All ER 216 .................................................................................................................. 14

TEAM NO.9 MEMORANDUM for CLAIMANT

v

Demand Shipping Co. Ltd. v. Ministry of Food Government of the People‟s Republic of

Bangladesh and Another ('The LendoudisEvangelos II') [2001] 2 Lloyd's Rep. 304 ............... 17

Denmark Production Ltd. v. Boscobel Productions Ltd. [1969] 1 QB 699 .................................. 19

Denny Mott & Dickson Ltd v. James B Fraser & Co Ltd [1944] AC 265 .................................... 21

Derry v. Peek (1889) 14 App Cas 337 .......................................................................................... 11

Doran v. Thompson Ltd. [1978] I.R. ............................................................................................... 9

Eco 3 Capital Ltd v. Ludsin Overseas Ltd[2013] EWCA Civ413 ................................................ 11

Edwinton Commercial Corporation and Global Tradeways Ltd v. Tsavliris Russ Ltd

(“Worldwide Salvage and Towage”) (The Sea Angel) [2007] EWCH 1713 ................ 19, 21, 22

Electrosteel v. Scan-Trans [2003] 1 Lloyd‟s Rep 190 .................................................................... 3

Empresa Exportadora De Azucar v. Industria Azucarera Nacional SA („The Playa Larga and

Marble Islands‟) [1983] 2 Lloyd's Rep. 171 .............................................................................. 7

Eridania S.P.A. And Others v. Rudolf A. OetkerAnd Others, (The Fjord Wind), [2000] 2 Lloyd's

Rep. 191 .................................................................................................................................... 15

Ethiopian Oilseeds & Pulses Export Corporation v. Rio del Mar Foods Inc [1990] 1 Lloyd's

Rep. 86 ........................................................................................................................................ 7

Excomm Ltd v. Ahmed Abdul-Qawi Bamaodah („The St Raphael‟) [1985] 1 Lloyd‟s Rep. 403 ... 4

FibrosaSpolkaAkcyjna v. Fairbairn Lawson Combe Barbour Ltd. [1943] AC 32 ........... 19, 21, 22

Fiona Trust & Holding Corporation &ors v. Yuri Privalov & ors[2007] EWCA Civ 20 ............. 6

Freeman & Lockyer v. Backhurst Park Properties Ltd. (1964) 1 All ER ...................................... 8

Garnac Grain Co Inc v. H.M.F. Faure & Fairclough Ltd [1968] AC ........................................... 8

Goldsmith v. Rodger [1962] 2 Lloyd‟s Rep 249 ........................................................................... 11

H.E Daniel Ltd v. Carmel Exporters & Importers Ltd [1953] 2 Lloyd‟s Rep. 103 ........................ 6

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

Lloyds Rep 81 ............................................................................................................................. 6

Harrison & Crossfield Ltd v. London and North-Western Railway Co [1917] 2 KB 755 ........... 10

HBC Hamburg Bulk Carriers GMBH & Co KG v. Tangshan Haixing Shipping Co Ltd ('The Fu

Ning Hai') [2006] EWHC 3250 ................................................................................................ 22

Heyman v. Darwins Ltd [1942 ] AC 356 ........................................................................................ 6

Hirji Mulji v. Cheong Yue SS Co ('The Singaporean') [1926] A.C. 497 .......................... 18, 21, 22

Hyam Jewellers Limited v. M. Cheeseman [2001] EWCA Civ 1818 ........................................... 14

TEAM NO.9 MEMORANDUM for CLAIMANT

vi

J. Lauritzen A.S. v. Wijsmuller B.V(The Super Servant Two) [1990] 1 Lloyd‟s Rep.1 ... 19, 20, 21,

22

Jakobsson v. Offshore Nautical Sails [2002] UR ........................................................................... 8

JEB Fasteners v. Marks Bloom & Co [1983] 1 All ER 583 ......................................................... 13

JK Fruit and Vegetable Catering Limited v. Harbour Lights Hotel Limited (1987-88) JLR 72 .... 8

JosephConstantine S.S Line Ltd v. Imperial Smelting Corp Ltd ('The Kingswood') [1942] A.C 18,

20

Koenigsblatt v. Sweet [1923] Ch. 314 ........................................................................................... 10

Leeds Shipping Co Ltd v.SocieteFrancaise Bunge [1958] 2 Lloyd‟s Rep 127 ............................. 16

Leesh River Tea Co v. British India Steam Navigation Co ('The Chyebasa') [1966] 2 Lloyd‟s

Rep. 193 .................................................................................................................................... 17

Leni Gas and Oil Investments Ltd et al v. Malta Oil Pty Ltd et al [2014] EWHC 893 .......... 11, 12

Lensen Shipping Ltd. v. Anglo-Soviet Shipping Co., Ltd. [1935] 52 LI.L.Rep. 341 ..................... 24

Manifest Shipping Company Limited v. Uni-Polaris Shipping Company Limited and Others

[2001] UKHL1 .......................................................................................................................... 15

Mareva Navigation v. CanariaArmadora SA ('The Mareva AS') [1977] 1 Lloyd‟s Rep. 368 ..... 22

Maritime National Fish Ltd v. Ocean Trawlers Ltd [1935] A.C. 524 .......................................... 20

Midwest Shipping Co. v. D. I. Henry ('The Anastasia') [1971] 1 Lloyd‟s Rep. 375 .................... 16

Modern Building (Wales) Ltd v. Limmer and Trinidad Co Ltd [1975] 1 WLR 1281 (CA) ........... 3

National Carriers Ltd. v. Panalpina (Northern) Ltd. [1981] AC 675 .............................. 19, 21, 22

Nocton v. Lord Ashburton [1914] AC 932........................................................................................

Ocean Tramp Tankers Corporation v. V/O Sovfracht ('The Euginia') [1964] 2 QB 226 ............. 19

Overseas Union Insurance Ltd v. AA Mutual International Insurance Co Ltd [1988] 2 Lloyd's

Rep 63 ......................................................................................................................................... 6

Paal Wilson & Co A/S v. Partenreederei Hannah Blumenthal ('The Hannah Blumenthal') [1983]

1 All ER 34 .......................................................................................................................... 19, 20

Papera Traders Co. Ltd. et al v. Hyundai Merchant Marine Co. Ltd. et al ('The Eurasian

Dream') [2002] EWHC 118 ................................................................................................ 15,16

Peter Cassidy Seed Co. Ltd. v. Osuustukkuk-Auppa Ltd. [1957] 1 WLR 273 .............................. 19

Pickering v. Barclay [1648] 82 ER 587 ....................................................................................... 15

TEAM NO.9 MEMORANDUM for CLAIMANT

vii

Pine Top Insurance Co Ltd v. Unione Italiana Anglo Saxon Reinsurance Co Ltd [1987] 1

Lloyd‟s Rep 476 .......................................................................................................................... 3

Pioneer Shipping Ltd. v. B.T.P. Tioxide Ltd. ('The Nema') [1982] AC 724 ..................... 19, 21, 22

Premium Nafta Products Limited et al v. Fili Shipping Company Limited et al [2007] UKHL 40 6

RaiffeisenZentralbankOsterreich AG v.The Royal Bank of Scotland PLC [2010] EWHC 1392 . 13

Santa Martha BaayScheepvaart and Handelsmaatscheppij NV v. Scanbulk A/S ('The Rijn')

[1981] 2 Lloyd‟s Rep. 26 .......................................................................................................... 23

Standard Chartered Bank v. Pakistan National Shipping Corp. (No.2) [2000] 1 Llyod‟s Rep ... 12

Standard Oil v. The Clan Line Steamers [1924] AC 100 ............................................................. 15

Storer v. Manchester City Council 1 W.L.R. 1403 [1974] ............................................................. 3

Suncorp Insurance & Finance v. Milano Assicurazioni SpA [1993] 2 Lloyd‟s Rep 225 ......... 9, 10

The Catholic Child Welfare Society & Ors v. Various Claimants & The Institute of the Brothers

of the Christian Schools & Ors [2012] UKSC 56 ....................................................................... 8

The Makedonia [1962] 1 Lloyd‟s Rep. 316 .................................................................................. 16

Treasury Holdings et al v. NAMA [2012] IEHC ............................................................................. 9

UBS AG (London Branch) & Anor v. Kommunale Wasserwerke Leipzig GMBH [2014] EWHC . 8

Ulysses Compania Naviera SA v. Huntingdon Petroleum Services Ltd („The Ermoupolis‟) [1990]

1 Lloyd's Rep. 160 ....................................................................................................................... 7

Walton Harvey Ltd. v. Walker &Homfrays Ltd. [1931] 1 Ch 274 ................................................ 19

Yona International Limited v. La Reunion Francaise SA [1996] 2 Lloyd's Rep 84 ..................... 10

Books

Abbott, John H. A Treatise of the Law Relative to Merchant Ships and Seamen (1829) ............. 15

Anson, Reynell. Principles of the English Law of Contract and of Agency in Its Relation to

Contract (4th

Ed; 1887) ............................................................................................................. 12

Bowstead, William et al.Bowstead & Reynolds on Agency (16th

Ed; 1995) ................................. 10

Carter, JW. The Construction of Commercial Contracts (2013) ................................................ 4, 5

Beale, Hugh. Chitty on Contracts (31st Ed; 2012) .................................................................... 9, 10

Curtis, Simon. The Law of Shipbuilding Contracts (2014) ............................................................ 6

Flemming, John G. The Law of Torts (9th

Ed; 1998) ....................................................................... 8

TEAM NO.9 MEMORANDUM for CLAIMANT

viii

Joseph, David. Jurisdiction and Arbitration Agreements and Their Enforcement (2nd

Ed; 1991) . 4

Michael, Mustill et al. Commercial Arbitration (2001) ................................................................. 6

Pendleton, John H. Maritime Security: Actions Needed to Assess and Update Plan and Enhance

(2010) ........................................................................................................................................ 17

Rubino-Sammartano, Mauro. International Arbitration: Law and Practice (2nd

Ed; 2001) .......... 4

Salmond, John William. Salmon on the Law of Torts (21st

Ed; 1996) ............................................ 8

Sparka, Felix. Jurisdiction and Arbitration Clauses in Maritime Transport Documents ............... 6

Terence, Coghlin et.al. Time Charter (6th

Ed; 2008) .................................................................. 3, 4

Tusiani, Michael D. The Petroleum Shipping Industry : Operations and Practices (1996) .......... 5

Weigand, Frank-Bernd. Practitioner‟s Handbook on International Commercial Arbitration (2nd

Ed; 2010) ..................................................................................................................................... 3

Worden Jr, Peter, Vessel Seaworthiness: The Rights of Passengers and the Responsibilities of

Captains and Management (2006) ............................................................................................ 17

Rules

English Arbitration Act 1996 .......................................................................................................... 3

Miscellaneous

Best Management Practices for Protection against Somali Based Piracy 4 (2011) ................ 17, 18

ICC International Maritime Bureau. Piracy and Armed Robbery Against Ship Report for the

Period 1 January – 30 June 2014(2014) ................................................................................... 19

The Maritime Safety Committee Resolution MSC.324(89) ......................................................... 17

International Maritime Organization MSC.1/Circ.1339 ............................................................... 17

U.N. Security Council (UNSC). Report of the Secretary-General Pursuant to Security Council

Resolution 1897 (2009), S/2010/556, 27 October 2010 ............................................................ 17

TEAM NO.9 MEMORANDUM for CLAIMANT

ix

QUESTIONS PRESENTED

1. WHETHER LONDON IS THE PROPER SEAT FOR THE PRESENT ARBITRATION PROCEEDING

2. WHETHER ENGLISH LAW IS THE GOVERNING LAW IN THE PRESENT DISPUTE

3. WHETHER THIS TRIBUNAL HAS THE JURISDICTION TO HEAR DISPUTE RELATED TO FRAUD

4. WHETHER ASA2 WAS VALIDLY ACTING ON BEHALF OF RESPONDENT

5. WHETHER RESPONDENT IS LIABLE FOR THE DAMAGES OF THE VESSEL

6. WHETHER RESPONDENT HAS BREACHED ITS DUTY TO PAY THE HIRE OF THE VESSEL

TEAM NO.9 MEMORANDUM for CLAIMANT

1

STATEMENT OF FACTS

THE PARTIES

1. Less Dispensable Traders PTE (“Respondent”) agreed to enter a contract with Western

Tankers Inc (“Claimant”) through IMWB (“Shipbroker”) for the shipping of 30,960 mt jet and

72,190 mt gasoil carried by Western Dawn (“Vessel”).

2. The Vessel was time-chartered under the amended Shelltime 4 with rider clauses. The

voyage shall conclude three months period from Singapore to OPL Luanda, West Africa

(“WAF”), with re-delivery in the Mediterranean Area starting from 4th

June 2014.

3. On 30th

May 2014, Respondent sent a Voyage Orders to Captain Stellios (“Master”).The

Voyage Orders concluded e.g, incident reporting, daily eta updates, and noon reports.

4. The Bills of Lading were issued on 8th

June 2014 and the Vessel began its voyage.

SEAT OF ARBITRATION

5. On 23rd

May 2014, Respondent gave a vague statement that it was not keen on London

Arbitration. This statement, however, was disclosed to the shipbroker but Respondent never

disclosed it to Claimant. On 26th

May 2014, the date when the fixture recap was given,

Respondent also failed to notify Claimant regarding its reluctance in having London Arbitration.

RESPONDENT‟S FALSE REPRESENTATION

6. On 4th

June 2014, Respondent failed to give the full bunker for the Vessel in the Port of

Loading as requested by the Master. At the moment the voyage begun, the Master consistently

demanded the supply of bunkers to Respondent. While the Atlantic Services Agency (“ASA”)

kept silent toward this request, Respondent promised to provide such bunkers in Durban, Cape

Town, and at the discharge location. Those promises, however, were never fulfilled.

TEAM NO.9 MEMORANDUM for CLAIMANT

2

ALLEGED AGENT

7. On 28th

June 2014, Captain Anya (“ASA2”) declared itself as the STS Coordinator

following by nominating the place for the discharge as well as the supply bunkers. The Master,

then, left no choice but to follow his instruction. On 3rd

July 2014, Respondent encouraged the

Master to keep cooperating with Claimant‟s STS Coordinator.

PIRACY OCCURRENCE

8. Claimant was well-aware that the voyage will include WAF Area, which is known for its

piracy threat. Claimant then requested Ops and Safety Department to upgrade the Vessel‟s safety

equipment. The Master has also complied with BMP4 in order to prevent any piracy occurrence.

9. However, after following the instruction from Respondent‟s agent, the Vessel was

missing from 4th

July to 17th

July. When the vessel was released on 17th

July 2014, it was

discovered that the Vessel was hijacked by the pirates at the location nominated by Respondent‟s

agent. Alongside with the crew, the Vessel was severely damaged and the Cargo was

substantially lost.

PAYMENT OF THE VESSEL

10. The Vessel was chartered for three months period and shall be paid by monthly basis.

The Vessel began its hiring phase on 4th

June 2014. Claimant rightfully request for the payment

on 3rd

July 2014 as the payment is due. Respondent blatantly refused to pay and on 4th

July

placed the Vessel as off-hire.

TEAM NO.9 MEMORANDUM for CLAIMANT

3

ARGUMENTS

JURISDICTION

I. THE PRESENT DISPUTE SHALL BE SETTLED WITHIN THE LONDON TRIBUNAL AND IN

ACCORDANCE WITH ENGLISH LAW

11. Claimant asserts that an arbitral tribunal‟s authority to resolve a dispute shall be derived

upon the Arbitration Agreement which reflects the parties‟ consent1 and intention.

2 Here,

Claimant submits that London Tribunal has the jurisdiction to settle the present dispute in

accordance with English law since London Tribunal and English Law has been consented by the

Parties [A], and the Parties never intended to arbitrate in Singapore, precluding this dispute to be

settled within Singapore tribunal [B].

A. London Tribunal and English Law has been Consented by the Parties

12. Respondent argued that Parties did not intend to arbitrate in London.3

However,

considering that it is impossible to find an intention by reading someone‟s mind, an intention

must be found in the concluded contract.4 Therefore, when a contract that contains an arbitration

clause has been concluded, the parties are presumed to have evidenced an intention as to the law

and seat appointed by the arbitration clause.5

13. The expression of “arbitration in London” in the Charterparty6 describes the choice of

seat of arbitration.7 Even if Respondent claimed to actually intend to arbitrate in Singapore,

8

1 English Arbitration Act 1996, Art.1(b) 2 Rubino-Sammartano, Mauro. International Arbitration: Law and Practice (2nd Ed; 2001)p. 34; Weigand, Frank-

Bernd. Practitioner‟s Handbook on International Commercial Arbitration (2nd Ed; 2010)¶ 1.172 3 Case File, p.66 4 Storer v. Manchester City Council 1 W.L.R. 1403 [1974] ¶ 1408 (Lord Denning); Terence,Coghlin et.al. Time

Charter (6th Ed; 2008)¶ 1.8;Electrosteel v. Scan-Trans [2003] 1 Lloyd‟s Rep 190 (Gross J.) 5 Modern Building Ltd v. Limmer and Trinidad Co Ltd [1975] 1 WLR 1281 (CA); Pine Top Insurance Ltd v. Unione

Italiana Anglo Saxon Reinsurance Ltd [1987] 1 Lloyd‟s Rep 476; Weigand, Frank-Bernd. Practitioner‟s Handbook

on International Commercial Arbitration (2nd Ed; 2010) ¶ 5.28-29 6 Shelltime 4, Cl. 46 (b) 7 ABB Lummus Global Ltd v. Keppel Fels Ltd [1999] 2 Lloyd‟s Rep. 24 (Clarke J); Shagang South-Asia (Hong Kong)

Trading Co Ltd v. Daewoo Logistics [2015] EWHC 194 (Hamblen J)

TEAM NO.9 MEMORANDUM for CLAIMANT

4

Claimant cannot look into the actual intent in Respondent‟s mind. Therefore, their intention shall

be found in the Arbitration Agreement concluded in Shelltime4 as standard form of Charterparty,

which appoints London Arbitration and in accordance with English law.9 Thus, this shall reflect

the Parties‟ intention as to the seat and law applicable in the Arbitration Agreement.

14. Respondent may argue that they were not aware of the Arbitration Agreement because it

was not expressly stated in the Fixture Recap.10

To the contrary, when an arbitration agreement

has been concluded in the charterparty and it is incorporated by fixture recap, all the terms

including the arbitration agreement is binding11

regardless the unawarenessof one party towards

the existence of arbitration agreement.12

15. Likewise in this case, as the Fixture Recap incorporates Shelltime4 as Charterparty,13

then it also incorporates the Arbitration Agreement in the Charterparty regardless of

Respondent‟s unawareness of the seat and law applicable in the Arbitration Agreement. Thus,

the Arbitration Agreement is binding to both parties.

16. Furthermore, Respondent has agreed on the provided Charterparty. When party lifts

subjects, it means they agree on the terms in the charterparty which makes the charterparty

binding.14

On 23rd

May 2014, Respondent received an e-mail from the Shipbroker indicating

their due date to agree on the terms and conditions of the Charterparty was until 26th

May 2014.15

Therefore, when the “Charterers have lifted their management subjects [...] now pleased to

8 Case File, p.66 9S helltime4, Clause 46 (a)(b) 10 Case File, p.5 11 Sabah Flour and Feedmills Sdn Bhd v. Comfez [1988] 2 Lloyd‟s Rep. 18; Joseph, David. Jurisdiction and

Arbitration Agreements and Their Enforcement (2nd Ed;1991) p. 155 12 Excomm Ltd v. Ahmed Abdul-Qawi Bamaodah („The St Raphael‟) [1985] 1 Lloyd‟s Rep. 403; Joseph,David.

Jurisdiction and Arbitration Agreements and Their Enforcement (2ndEd.1991) p.154; Carter, JW. The Construction

of Commercial Contracts (2013)¶9-35 13 Case File, p.5; Shelltime4, Clause 46 (a)(b) 14 Terence,Coghlin et.al. Time Charter (6th Ed; 2008)¶ 1.11 15 Case File, pp. 2-4;Terence, Coghlinet.al. Time Charter (6th Ed;2008)¶ 1.11

TEAM NO.9 MEMORANDUM for CLAIMANT

5

include fully fixed recap”16

, it shall affirm Respondent‟s agreement on the terms in the

Charterparty.

B. The Parties Never Intended to Arbitrate In Singapore, Precluding This dispute To

Be Settled Within Singapore Tribunal

17. Having asserted that Parties intended to arbitrate in London, Claimant further submits

that Parties never intended to arbitrate in Singapore, precluding this dispute to be settled within

Singapore tribunal. When one party declares an intention, their statement shall be negotiated

with the other party to reach consensus.17

18. When one party has special request on a certain issue, it is critical to negotiate with the

other party to be concluded up into fixture recap.18

Respondent, on 23rd

May 2014 contacted the

shipbroker indicating its reluctance to have the seat of arbitration in London.19

As a request,

Respondent‟s rejection of seat requires discussion with the other party.20

In the present case,

however, Respondent‟s rejection was never even notified to Claimant, precluding evidence on

Respondent‟s rejection to arbitrate in London.

19. Since London Tribunal and English Law has been consented by the Parties, and the

Parties never intended to arbitrate in Singapore, Claimant therefore submits that London

Tribunal has the jurisdiction to settle the present dispute in accordance with English law.

II. THE TRIBUNAL IS COMPETENT TO HEAR CLAIM RELATING TO TORT OF FRAUD

20. Within the present proceeding, Claimant‟ submission, among others is that Respondent

has committed tort of fraud. Objection then raised by Respondent stating that claim relating to

16 Case File, p.5; Procedural Order 2, ¶ 20 17 Carter, JW. The Construction of Commercial Contracts (2013)¶¶ 9-21 18 Tusiani, Michael D. The Petroleum Shipping Industry : Operations and Practices (1996)p. 4 19 Case File, p. 2 20„ Contract Negotiation‟ Black‟s Law Dictionary, available at: http://thelawdictionary.org/contract-negotiation

TEAM NO.9 MEMORANDUM for CLAIMANT

6

tort of fraud is not admissible in this arbitration.21

Despite Respondent‟s objection, it is

Claimant‟s contention that claims related to tort of fraud falls within the jurisdiction of this

arbitration. Here, Claimant submits that the word “arises out of this charter”22

encompasses wide

claims including tortious claim.

21. In order to determine what kind of claims parties are intended to submit to arbitration,

the Tribunal shall look upon the terms of the Arbitration Agreement chosen by the parties as it

reflects their intention.23

The wording shall make it clear if a party wishes to exclude arbitration

jurisdiction from certain claims as stated, as affirmed by Longmore LJ, that “If any businessman

did want to exclude [disputes], it would be comparatively simple to say so”.24

However, there is

no limitation of arbitration jurisdiction can be found within the Arbitration Agreement, nor did

Respondent give any request to exclude tort of fraud claim to be submitted to Arbitration.

22. Further, the scope of Arbitration Agreement depends on its construction.25

Here, the

scope of “arises out of this charter” - in its true construction - has a very wide range26

and covers

“[…] every dispute except a dispute as to whether there was ever a contract at all".27

It shows,

as held by Evans J, that if parties chose such wording, they have intention to refer to wide classes

of disputes.28

The claims regarding fraud, accordingly, have been acknowledged as being

21 Case File, p. 67 22 Shelltime 4, line 777 23 Premium Nafta Products Limited et al v. Fili Shipping Company Limited et al [2007] UKHL 40 ¶¶ 5-7; Ashville

Investments Ltd v. Elmer Contractors Ltd [1989] QB 488 p. 517(f); Curtis, Simon. The Law of Shipbuilding

Contracts (2014) p. 237 24 Fiona Trust & Holding Corporation &ors v. Yuri Privalov & ors[2007] EWCA Civ 20¶ 17 25 Sparka, Felix. Jurisdiction and Arbitration Clauses in Maritime Transport Documents. p. 78 26 Fiona Trust & Holding Corporation &ors v. Yuri Privalov & ors[2007] EWCA Civ 20 ¶ 18; Chimimport plc v.

D'Alesio [1994] 2 Lloyd's Rep. 366; Harbour Assurance Co (Uk) Ltd v. Kansa General International Insurance Co

Ltd [1993] 1 Lloyds Rep 81 p. 95 (Steyn J); Overseas Union Insurance Ltd v. AA Mutual International Insurance

Co Ltd [1988] 2 Lloyd's Rep 63¶ 67; Heyman v. Darwins Ltd [1942 ] AC 356¶ 399 27 H.E Daniel Ltd v. Carmel Exporters & Importers Ltd [1953] 2 Lloyd‟s Rep. 103; Michael, Mustillet al.

Commercial Arbitration (2001) p. 120 28 Overseas Union Insurance Ltd v. AA Mutual International Insurance Co Ltd [1988] 2 Lloyd's Rep 63¶ 67

TEAM NO.9 MEMORANDUM for CLAIMANT

7

included in the claims under the scope of “arises out of this charter” dispute, and thus fall within

the ambit of arbitration jurisdiction.29

23. Here, Shelltime4 which specifically use the word “arises out of this charter”30

has been

incorporated, Claimant and Respondent then are presumed to accept arbitration jurisdiction in

regard with all claims „arising out of‟ or „in connection‟31

with the Charterparty, including

tortious claim.32

Accordingly, Tribunal should come into the conclusion that the wording of the

Arbitration Agreement is broad enough to encompass tortious claim.

MERITS

III. ASA2 IS AN AGENT OF RESPONDENT.

24. ASA2, representing Respondent, altered the original place of discharge by nominating

certain coordinates to the Master.33

In addition to giving untrue statement that they would

provide supply of bunkers in the given location,34

the Vessel has been compromised by the local

pirates and suffered substantial damages and loss of the Cargo.35

Respondent, however, declined

its liabilities over the loss and damagesclaiming that ASA2 “is not, and has never been, the

agent of [Respondent]”

25. A principal shall be held liable towards any damages caused by its agent within its scope

of authority.36

Here, Claimant submits that the damages of the Vessel and the loss of the Cargo

29 Aggeliki Charis Compania Maritima SA v. Pagnan SpA („The Angelic Grace‟) [1995] 1 Lloyd's Rep 87; Ulysses

Compania Naviera SA v. Huntingdon Petroleum Services Ltd („The Ermoupolis‟) [1990] 1 Lloyd's Rep. 160; Astro

Vencedor Compania Naviera SA of Panama v. Mabanaft GmbH („The Damianos‟) [1971] 2 QB 588 30Shelltime 4, line 777 31 Ethiopian Oilseeds & Pulses Export Corporation v. Rio del Mar Foods Inc [1990] 1 Lloyd's Rep. 86 32 Empresa Exportadora De Azucar v. Industria Azucarera Nacional SA („The Playa Larga and Marble Islands‟)

[1983] 2 Lloyd's Rep. 171 33 Case File, p. 35 34 Case File, p. 34 35 Case File, p. 42 36 Morris v. C.W Martin & Ltd [1966] 1 QB 716 (Diplock LJ); Dubai Alumunium Co Ltd v. Salaam [2003] 2 A.C

366 ¶ 23 (Lord Nicholls); Graham v. Commercial Bodyworks Ltd [2015] EWCA Civ 47 ¶ 8 (LJ Longmore);

TEAM NO.9 MEMORANDUM for CLAIMANT

8

shall be attributable to Respondent since ASA2 has obtained apparent authorization by

Respondent to acting on its behalf [A], or alternatively, due to its ratification to ASA2‟s

unauthorized conduct [B].

A. Respondent Has Apparently Authorized ASA2 to Act as Its Agent

26. ASA2 is a valid agent of Respondent due to the authorization given by Respondent. An

agency relationship will exist if the principal has granted actual37

or apparent38

authorization to

the agent to act on their behalf. Admittedly, even though there is no express agreement that

allows ASA2 to act on behalf of Respondent, the appearance of Respondent‟s conduct leads to

the impression of Claimant that ASA2 has been appointed as an agent of Respondent.

27. Under Freeman & Lockyer v. Buckhurst,39

apparent authorization requires the principal‟s

representation to the third party that the agent had authority to act on the principal‟s behalf, and

that the third party relied on that representation, leads to the inducement from its original

position. Claimant submits that the agency relationship between ASA2 and Respondent have

been validly constituted due to the fulfillment of those universally recognized requirements of

apparent authority.40

Armagas Ltd v. Mundogas S.A. (“The Ocean Frost”) [1986] AC 717; Salmond, John William. Salmon on the Law of

Torts (21stEd; 1996) at 443; Flemming, John G. The Law of Torts(9thEd; 1998) p. 427; The Catholic Child Welfare

Society &Ors v. Various Claimants & The Institute of the Brothers of the Christian Schools &Ors [2012] UKSC 56

¶19 (Lord Phillips) 37 Garnac Grain Co Inc v. H.M.F. Faure & Fairclough Ltd [1968] AC 1130 ¶ 1137 (Lord Reid); UBS AG (London

Branch) & Anor v. Kommunale Wasserwerke Leipzig [2014] EWHC 3615 ¶ 594 (Lord Males) 38 Branwhite v. Worcester Works Finance Ltd [1969] 1 AC¶ 587; Freeman & Lockyer v. Backhurst Park Properties

Ltd. [1964] CA (Diplock LJ); D.H. Bester. The Scope of an Agent‟s Power of Representation (1972) 89 SALJ 49, 50;

G. H. L. Fridman. The Law of Agency (7th Ed; 1996), p. 121. 39 Freeman & Lockyer v. Backhurst Park Properties Ltd. [1964] 1 All ER 630 ¶ 646 (Diplock LJ) 40 Freeman & Lockyer v. Backhurst Park Properties Ltd. [1964] 1 All ER 630 ¶ 646 (Diplock LJ); JK Fruit and

Vegetable Catering Limited v. Harbour Lights Hotel Limited [1988] JLR 72; Jakobsson v. Offshore Nautical Sails

[2003] JCA 029 (Southwell JA); Evans v. James [1999] EWCA Civ 1759 ¶ 27 (Lord Chadwick); Computer 2000

Distribution Ltd and others v. ICM Computer Solutions Plc [2004] EWCA Civ 1634 ; CRJ Services Ltd v. Lanstar

Ltd (“T/A CSG Lanstar”) [2011] EWHC 972 ¶ 24 (Justice Akenhead)

TEAM NO.9 MEMORANDUM for CLAIMANT

9

28. Firstly, Respondent has made representation in which it confirmed that ASA2 is its agent.

On its correspondence with the Master, ASA2 stated that “[Respondent] have passed control of

your [Vessel] to our good agency […], we are your STS coordinator”,41

Subsequently, in its

attempt to clarify such information, the Master confirmed its current status to Respondent, in

which Respondent replied “please continue to liaise with your STS coordinator”.42

Should

ASA2 is not an agent of Respondent, clarification or objection might be raised by Respondent in

that time.43

However, Respondent stands silently and says nothing to dissuade Claimant from

believing that ASA2 has the authority to bind the Respondent. Thus, Respondent is precluded to

denying the facts that he has previously admitted and confirmed, which is ASA2 is the

Claimant‟s STS coordinator – agent of Respondent.44

29. Secondly, such representation successfully persuaded Claimant to alter from its original

positions. If the third party did not believe that the agent had authority despite the appearance of

its authority or should have known the lack of authority of the alleged agent, there can be no

apparent authority.45

Here, there is no way the Master was able to be suspicious towards ASA2‟s

statement as ASA2 was answering the outstanding questions repeatedly raised by the Master

concerning the supply of bunker which both ASA and Respondent never answered to.46

Thus,

when ASA2 finally informed the location of the re-bunker, the Master relied on that statement

with all of its honest belief.

41 Case File, p. 35 42 Case File, p. 40 43 Beale, Hugh. Chitty on Contracts (31st Ed; 2012) ¶ 6-052; The Sibotre [1976] 1 Lloyd's Rep 293 ¶ 320-321: 44 Doran v. Thompson Ltd. [1978] I.R. 223 ¶ 230 (Griffin J.); Treasury Holdings et al v. National Asset Management

Agency [2012] IEHC¶ 157 (Finlay J.) 45 Bloomenthal v. Ford [1897] AC 156; Armagas Ltd v. Mundogas SA(„The Ocean Frost‟) [1986] AC 717¶ 778

(Lord Keith); Criterion Properties v. Stratford UK Properties [2004] 1 WLR 1846 (Lord Scott); Suncorp Insurance

and Finance v. Milano Assicurazioni SpA [1995] 2 Lloyd's Rep 225 p. 234 (Waller J). 46 Case File, pp. 30-34

TEAM NO.9 MEMORANDUM for CLAIMANT

10

30. Having submitted that ASA2 has been granted apparent authority to act on Respondent‟s

behalf, it is Claimant‟s contention that ASA 2 is a valid representative of Respondent.

B. Respondent’s Conduct Amounted to Ratification

31. Even if ASA2 was acting without any authorization, Respondent still shall be held liable

due to its ratification to ASA2‟s illegitimate action. Where an unauthorized act is done by an

agent in the name of another person, that person may, by ratifying it, make as valid and effectual

as it had been done with his authority.47

Here, Claimant submits that Respondent‟s silence

constitutes as ratification towards ASA2‟s unauthorized action.

32. The silence or inactivity of the principal construes as an approval of his agent‟s

unauthorized actions when the third party reasonably expects the principal to object if he does

not consent.48

As affirmed in Yona International Case,49

“ratification can no doubt be inferred

without difficulty from silence or inactivity” in cases where the principal fails to disown the third

party from relying on such unauthorized act.50

33. Respondent‟s failure to dissuade Claimant from relying on ASA2‟s statement amounts to

ratification. Under The Sibotre, the principal shall be held liable when the principal knew, or

should have known the statement delivered by its agent is false, and says nothing to correct such

statement.51

34. On 3rd

July 2014, the Master confirmed to Respondent its arrival on the new OPL

Discharge, and is waiting for the vessel Antelope for the supply of bunker in the amount of 300

47 Izodia v. RBS International [2006] JRC 111 ¶ 93; SEB Trygg Holding Aktiebolag v. Manches [2005] EWHC 35

(Gloster J.); Koenigsblatt v. Sweet [1923] Ch. 314¶ 325 48 Harrison & Crossfield Ltd v. London and North-Western Railway Co [1917] 2 KB 755 (Rowlatt J.); Suncorp v.

Milano [1993] 2 Lloyd's Rep. 225¶ 234-235 (Waller J) 49 Yona International Ltd v. La Reunion Francaise SA [1996] 2 Lloyd's Rep 84 (Moore-Bick J) 50 Suncorp Insurance & Finance v. Milano Assicurazioni SpA [1993] 2 Lloyd‟s Rep 225¶ 241 (Waller J); Bowstead,

William et al. Bowstead & Reynolds on Agency(16thEd. 1995) ¶ 2-075. 51 Beale, Hugh. Chitty on Contracts (31st Ed; 2012) ¶ 6-052; The Sibotre [1976] 1 Lloyd's Rep 293 ¶¶ 320-321:

TEAM NO.9 MEMORANDUM for CLAIMANT

11

mt.52

nThose statements, however, are statements that have not been disclosed by Respondent

before. Should Respondent have no intention either to ratify or accept the illegitimate action of

ASA2 at that time, clarification or objection may easily be brought by Respondent. Thus, the

absence of objection by Respondent shall construe as ratification toward ASA2‟s unauthorized

action.

IV. RESPONDENT IS LIABLE FOR THE DETRIMENT SUFFERED BY CLAIMANT

35. Respondent directed the Vessel to an alternative discharge place with a false

representation to have the supply of bunker and the discharge of 72.000 mt gasoil, which resulted

to severe damages toward the Vessel. Claimant then contends that Respondent is liable for such

damage since Respondent has committed the tort of fraud [A], and Respondent has also breached

their obligation under the Charterparty [B], and in any event, Claimant shall be exempted from

any liability sought by Respondent[C].

A. Respondent’s Actions Have Met the Elements of Fraud

36. Tort of fraud refers to an action by one party involving the disclosure of false

representation [i] with an intention to be relied by another party [ii]. Subsequently, the justifiable

reliance [iii] leads to the damages suffered by the induced party.53

Here, Claimant contends that

Respondent‟s instruction to do re-bunker and discharge have met the prerequisite of tort of fraud.

i. Respondent has made dishonest representation

37. It has been acknowledged that one of the elements of tort of fraud is the existence of false

representation.54

To establish false representation, it is pertinent to prove the actual dishonesty55

52 Case File, p. 38 53 Eco 3 Capital Ltd v. Ludsin Overseas Ltd [2013] EWCA Civ 413¶ 77; Armstrong v. Strain (1952) 1 KB. 232;

Nocton v. Lord Ashburton [1914] AC 932 p.978; Derry v. Peek (1889) 14 App Cas 337 p.374 54 Leni Gas and Oil Investments Ltd et al v. Malta Oil Pty Ltd et al [2014]EWHC 893¶ 4 (Males J); AIC Limited v.

Inchcape Testing Services (UK) Limited („The Kriti Palm‟) [2006] EWCA Civ 1601¶ 251 (Rix LJ)

TEAM NO.9 MEMORANDUM for CLAIMANT

12

within its false and misleading representation.56

Thus, if a party knows that a representation is

false, but still, he discloses such representation, such action shall be deemed as constituting false

representation.57

38. In the present case, Claimant has reminded Respondent continuously that the bunkers

were not enough and Claimant had asked for re-bunker.58

Respondent, however, did not provide

the bunker at Durban even when it has agreed to do so.59

Further, Respondent conveyed another

dishonest representation by stating that it would do re-bunker and discharge at STS Area 1,60

but

the STS Vessel i.e Antelope never came.61

39. The case file did not indicate that Respondent has bought more fuel for the purpose of re-

bunker, instead it only pointed out that the only payment that Respondent made is for the

incomplete bunker in Singapore.62

Such indication proves that Respondent knew that it was not

able to provide any further supply of bunkers, yet it still disclosed such representation. Thus, it is

submitted that Respondent has constituted false representation.

ii. The falser presentation was made with the intention that Claimant will rely on it

40. In determining whether tort of fraud has taken place, tribunal shall take into account the

intention at the time the representation was made.63

As held in Leni Gas and Oil v. Malta Oil

55 AA (Nigeria) v. Secretary of State for the Home Department [2010] EWCA Civ 773 ¶¶ 66-75 (Rix LJ); AIC

Limited v. Inchcape Testing Services Limited („The Kriti Palm‟)[2006] EWCA Civ 1601¶ 254 (Rix LJ) 56 Goldsmith v. Rodger [1962] 2 Lloyd‟s Rep 249 57 Avon Insurance plc v. Awire Fraser ltd [2000] Llyod‟s Rep IR 535¶ 17 (Rix J) 58 Case File, pp. 25,28,31 59 Case File, p. 26 60 Case File, pp. 34, p.35 61 Case File, p. 41 62 Case File, p. 24 63 Standard Chartered Bank v. Pakistan National Shipping Corp. [2000] 1 Llyod‟s Rep 218 ¶ 27 (Evans LJ); Banque

Keyser SAA v. Skandia (UK) Ltd [1990] 1 QB 665, 790 A-C; RaffeisenZentralbankOsterreich AG v. Royal Bank of

Scotland Plc [2010] EWHC 1392 ¶¶ 220-226 (Christopher Clarke J); Anson, Reynell. Principles of the English Law

of Contract and of Agency in Its Relation to Contract (4th Ed; 1887) p. 203

TEAM NO.9 MEMORANDUM for CLAIMANT

13

there should be an intention from the deceiver that the other party will make reliance towards the

representation.64

41. Without the supply of bunker, the Vessel can only go as far to discharge are.65

Respondent, thus, was well aware that the need for the re-bunker is essential for the continuance

of the voyage.66

Moreover, Respondent was in the position to know that the Master would follow

such instruction given in order to obtain re-bunker, as the Master also has desperately asked for

re-bunker.67

Thus, when Respondent finally gave the coordinate for the re-bunker – which in fact

led the Vessel to dangerous place - Respondent intended to have the Master to follow that

representation in order to obtain the supply of bunkers.

iii. The reliance upon the representation was justifiable

42. Should a false representation was disclosed, then claimant must have proved that their

reliance was justifiable.68

It is also paramount to show that claimant has no allegation that the

representation may be untrue, which leads to its pure belief when claimant relied on such

representation.69

43. Here, when Respondent answered the consistent and demanding calls by Claimant to

fulfill its obligation to supply the fuel,70

the Master followed that representation with good

faith.71

Respondent has also stated that “Next bunker supply [is] now on arrival”72

, which leads

to the pure belief of the Master to follow such instruction. Further, the right of Respondent to

64 Leni Gas and Oil Investments Ltd et al v. Malta Oil Pty Ltd et al [2014] EWHC 893 ¶ 14 (Males J) 65 Case File, p. 25 66 Case File, pp. 24, 25 67 Case File, pp. 24, 28, 31, 32 68 Raiffeisen Zentralbank Osterreich AG v. The Royal Bank of Scotland PLC [2010] EWHC 1392 ¶ 153(Christopher

Clarke J); Dadourian v. Simms [2009] EWCA Civ 169 ¶ 99 (Arden LJ); JEB Fasteners v. Marks Bloom &

Co [1983] 1 All ER 583(Stephenson LJ) 69 Dadourian v. Simms [2009] EWCA Civ 169 ¶ 100 (Arden LJ) 70 Case File, pp.25, 28, 31 71 Case File, p.35 72 Case File, p. 34

TEAM NO.9 MEMORANDUM for CLAIMANT

14

commence the STS has been well-regulated in the Charterparty.73

Thus, when Respondent

ordered Master to do STS operation in STS Area 1, the Master was not in the position to have

any prejudice whatsoever that such representation was false.

44. Further, the priority of Master at that time was to do re-bunker since without re-bunker it

would be unlikely for the Vessel to continue the voyage. Hence as the instruction concerning the

place for re-bunker and STS is direct respond to the question repeatedly raised by Master and as

the location has been confirmed by Respondent themselves,74

the Master find no necessity to

object to such instruction. Thus, having submitted that the reliance upon Respondent‟s direction

was justifiable, Claimant contends that Respondent‟s action has constituted tort of fraud.

B. Further, Respondent Has Breached the Charterparty to Provide Full Bunker

45. Claimant further submits that Respondent, aside from committing tort of fraud, has also

disregarded its obligation under Charterparty. It has been understood that “each party to an

agreement is entitled to performance of the contract according to its terms in every particular

[…]”,75

and a party shall be held liable if it fails to do their obligations under the agreement.76

46. Within the present case, Respondent is under the obligation to supply bunker of the

Vessel,77

specifically full bunker.78

However, Respondent did not supply the full quantity of

bunker as needed by the Vessel.79

Furthermore, regardless numerous demands from the Master

to do re-bunker, Respondent had never provided any additional bunker.80

Hence, Respondent has

breached its duty by not supplying a proper amount of bunker.

73 Case File, p.10 74 Case File, p.40 75 Decro-Wall International S.A. v. Practitioners in Marketing Ltd [1971] All ER 216 (Buckley LJ) 76 Hyam Jewellers Limited v. M. Cheeseman [2001] EWCA Civ 1818 ¶ 58 (Potter LJ) 77 Shelltime 4 Clause 15, line 287-295; Case File, p. 5 78 Case File, p. 14 79 Case File, p. 25 80 Case File, pp. 25, 28, 31

TEAM NO.9 MEMORANDUM for CLAIMANT

15

47. Additionally, Claimant submits that Respondent has breached BIMCO STS Clause. The

compliance of BIMCO STS Clause will ensure the safety of the vessel, as it requires Respondent

to direct Claimant to a safe place in order to perform the STS.81

However, Respondent gave a

coordinate for STS 1 in an area well known with its high risk of piracy,82

whereas it is a common

understanding that safe refers to places sheltered from perils of the sea, and among other things,

piracy is known as one.83

Nevertheless, Master then followed the instruction given by

Respondent, which resulted to a hijacked by pirates from 4th

-17th

July 2014.

48. Consequently, Respondent‟s action has resulted to damages toward the Vessel. The crews

have been badly injured and the Vessel suffers significant damages; inter alia, navigation

equipment, bridge equipment, main-deck hose crane.84

Thus, Respondent shall be deemed liable

for the mentioned damages as it is at fault for the tort of fraud, and the breach of Charterparty.

C. Claimant Rejects Respondent’s Allegation that the Vessel was Unseaworthy

49. Respondent argued that Claimant is under liability for providing an unfit vessel for

voyage.85

Claimant, however, rejects such claim and further contends that there is no liability

shall be imposed to Claimant because the vessel is seaworthy as required by Charterparty.

50. In order to satisfy the requirements of seaworthy, not only the vessel must be physically

fit86

and possess complete document,87

but the owner is also obliged to provide competent master

81 Case File, p. 10 82 Case File, pp. 35, 46; International Maritime Organization (IMO) MSC. 4/Circ177. Report on Acts of Piracy and

Armed Robbery Against Ships, 2011. 83Pickering v. Barclay (1648) 82 ER 587 p. 254;Abbott, John Het al.A Treatise of the Law Relative to Merchant

Ships and Seamen (1829) p.255 84 Case File, p.42, 62 85 Case File, p.69 86 Papera Traders Ltd. et al v. Hyundai Merchant Marine Ltd et al(„The Eurasian Dream‟) [2002] EWHC 118¶ 128

(Cresswell J); Eridania S.P.A. et al v. Rudolf A. Oetker et al („The Fjord Wind‟) [2000] 2 Lloyd's Rep. 191, p. 197

(Clarke LJ); Actis Co. Ltd. v. The Sanko Steamship Co. Ltd („The Aquacharm‟) [1982] 1 Lloyd's Rep. 7, p.11 (Lord

Denning) 87 Cheikh Boutros Selim El-Khoury et al v. Ceylon Shipping Lines Ltd („The Madeleine‟) [1967] 2 Lloyd‟s Rep. 224

p. 241 (Roskill J); Ciampa and Ors v. British India SN Co [1915] 2 KB 774

TEAM NO.9 MEMORANDUM for CLAIMANT

16

and its crew.88

Here, in contrast with Respondent‟s accusation, Claimant submits that the Master

is competent as he followed instruction given by Respondent [i] and has taken precautionary

action to prevent piracy [ii].

i. The Master followed a legitimate order

51. As held in The Makedonia, the incompetency of master can be derived upon his

negligence or fault when he did not perform his job properly.89

Within the present case,

Respondent argued that the Master is incompetent as he did not perform his job properly by

complying with illegitimate party i.e ASA2. As a matter of fact, that was not the case because the

Master was in the understanding that ASA2 - as having submitted before - is an agent of

Respondent. Claimant, then, asserts that the Master has actually proved his competency by

obediently followed instruction given on 28th

June 2014 to go to STS Area 1.90

52. Admittedly, it has been acknowledged that the Master shall act reasonably upon receipt

order.91

Master too, however, has a right to “[…] exercise his own judgment as to what he should

do”.92

Claimant submits that the Master has acted reasonably when he chose to comply with

Respondent‟s instruction since in his judgment there is no reason for Master to object to

instruction a quo. Such action is indeed evidence that the Master was promptly exercising his

obligation to follow Respondent‟s instruction to do operation other than those named in Bill of

Lading.93

Thus, the compliance toward such instruction cannot render the Master as incompetent

as he merely did his obligation; on the contrary, the Master will be incompetent if he did not

exercise the instruction. 88 Papera Traders Ltd.et al v. Hyundai Merchant Marine Ltd et al(„The Eurasian Dream‟) [2002] EWHC 118 ¶ 129

(Cresswell J); Manifest Shipping Ltd v. Uni-Polaris Shipping Company Ltd et al [2001] UKHL1, ¶¶ 32-33 (Lord

Hobhouse of Wood); Standard Oil v. The Clan Line Steamers [1924] AC 100¶¶ 120-121 (Lord Atkinson) 89 The Makedonia [1962] 1 Lloyd‟s Rep. 316 p. 335 (Hewson J) 90 Case File, p.35 91 Midwest Shipping Co. v. D. I. Henry („The Anastasia‟) [1971] 1 Lloyd‟s Rep. 375 p.379 (Donaldson J) 92 Leeds Shipping Co Ltd v.Societe Francaise Bunge [1958] 2 Lloyd‟s Rep 127 (Sellers J) 93 Shelltime 4 Cl. 13(b), line 235-241

TEAM NO.9 MEMORANDUM for CLAIMANT

17

ii. The Master has taken precautionary action to prevent piracy

53. It is Claimant‟s contention that the Master is competent as he had complied with BMP4

as the preventive measure in encountering the piracy. As held in The Chyebassa, as long as

reasonable care had been taken to prevent unauthorized entity to enter the vessel, then the owner

is entitled to be exempted from any liabilities.94

Reasonable care refers to due diligence in which

it is relative,95

it subjects to the state of knowledge96

and the standards of the industry.97

54. In this regard, the Master has acted based on its obligation under Charterparty98

and the

prevailing standard of industry,99

by way of complying with BMP4.100

Respondent, however,

argued that the absence of several equipments such as coiled razor wire, fixing clips, hand-held

flashlight shall be deemed as a failure in complying with BMP4. On the contrary, Claimant

submits that the Tribunal shall consider the essential element in BMP4 i.e Ship Protection

Measure in determining the Master‟s competence with BMP4.101

55. Within the present case, neither fixing clips, nor hand-held flashlight are included as

items needed in Ship Protection Measure required by BMP4.102

Notwithstanding the

classification of razor wire as one of the physical barriers measure, there are other alternative

physical barriers that owners can use, as they are allowed to adjust BMP4 with its capability and

94 Leesh River Tea Co v. British India Steam Navigation Co („The Chyebasa‟) [1966] 2 Lloyd‟s Rep. 193, (Sellers LJ) 95 Worden Jr, Peter. Vessel Seaworthiness: The Rights of Passengers and the Responsibilities of Captains and

Management( 2006) p. 13 96Bradley (FC) &Son Ltd v. Federal Steam Navigation Co. Ltd (1926) 24 Lloyd Rep. 446 p.448 (Bankes LJ), pp.

454-455 (Scrutton LJ) 97 Demand Shipping Co. Ltd. v. Ministry of Food Government of the People‟s Republic of Bangladesh et al(„The

Lendoudis Evangelos II), [2001] 2 Lloyd's Rep. 304, p. 306 (Cresswell J) 98 Case File, p.16 99 U.N. Security Council (UNSC), Report of the Secretary-General Pursuant to Security Council Resolution 1897

(2009), S/2010/556, 27 October 2010; The Maritime Safety Committee Resolution MSC.324(89); International

Maritime Organization MSC.1/Circ.1339; Best Management Practices for Protection against Somali Based Piracy 4

(2011); Pendleton,John H.Maritime Security: Actions Needed to Assess and Update Plan and Enhance, (2010)p. 13 100 Case File, p. 36 101 Best Management Practices for Protection against Somali Based Piracy 4(2011), p. v 102 Best Management Practices for Protection against Somali Based Piracy 4 (2011), pp. 23-40

TEAM NO.9 MEMORANDUM for CLAIMANT

18

predicted circumstances.103

Here, Claimant has cooperated with Ops and Safety Departments in

upgrading the system and equipment in order to prevent the piracy,104

and the Master has further

confirmed that regardless the absence of some items, he is “doing best to comply with BMP4”.105

Therefore, Claimant is exempted from any liability occurs thereof as the sufficient measure has

been taken.106

V. RESPONDENT HAS BREACHED THEIR DUTY TO PAY THE HIRE OF THE VESSEL

56. Respondent contends that its refusal to pay the hire of the Vessel was justifiable due to its

furstation of the Charterparty and the placement of the Vessel as off-hire. On the contrary,

Claimant submits that Respondent shal be held liable for not paying the hire of the Vessel since

Respondent‟s frustation of the Charterparty was invalid [A]. Even if frustration is valid, it did not

discharge Respondent obligation to pay the hire of the Vessel [B]. Furthermore, Respondent

cannot exempt its duty to pay the hire of the Vessel based on off-hire clause [C].

A. Frustration of the Charterparty by Respondent was Invalid

57. Respondent refused to pay the hire of the Vessel because it erroneously believed that the

Charterparty has been frustrated which relieved Respondent from the obligation to pay the hire

of the Vessel. On contrary to Respondent‟s belief, on 4th

July 2014,107

Claimant submits that

Respondent has invalidly frustrated the Charterparty.

58. Frustration terminates the contract,108

and automatically discharges the parties from their

further contractual obligations.109

In the present case, Respondent never disclose any grounds as

103 Best Management Practices for Protection against Somali Based Piracy 4 ( 2011) p.23, pp.28-29 104 Case File, p.22 105 Case File, p.36 106 Marguet, Bernard, La piraterie maritime, (DMF 1999, 99), p. 104 as quoted in Tetley, William, Marine Cargo

Claims, (Volume I, 4th Edition, Thomson Carswell, 2008), p. 1091 107 Case File, p. 41 108 Joseph Constantine Steamship Line, Ltd v. Imperial Smelting Corporation, Ltd („The Kingswood‟) [1942] A.C.

154¶ 169-170 (Viscount Maugham)

TEAM NO.9 MEMORANDUM for CLAIMANT

19

to why it frustrated the Charterparty, thus, Respondent cannot frustate the Charterparty seeing

that there were not any unforeseen frustating event that occured [i] and even if there was any, it

caused by Respondent‟s control [ii].

i. There were not any unforeseen frustrating event that occurred on and before 4th

July

2014

59. Respondent contends it has validly frustated the Charterparty on the same date110

as when

the Respondent did not receive any contact111

hence it lead Claimant to the assumption that the

Charterparty has been frustrated in the event of missing of the Vessel. However, Claimant

submits that missing of the Vessel cannot be construed as a valid ground to frustrate the

Charteparty.

60. Frustration of a charterparty requires the occurrence of an unforeseen event,112

in which it

can be construed as an event, which is entirely beyond what was contemplated by the parties

when they entered into the agreement.113

Frustration is, however, invalid if such event is

unforeseen by the parties, but foreseeable in the view of reasonable person.114

109 Bank Line Ltd. v. Arthur Chapel & Co [1919] AC 435 459 (Lord Summer); HirjiMulji v. Cheong Yue SS Co („The

Singaporean‟) [1926] A.C. 497¶ 505 (Lord Summer); Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour

Ltd. [1943] AC 32 (Lord Atkin); National Carriers Ltd. v. Panalpina („Northern‟) Ltd. [1981] AC 675¶ 700 (Lord

Radcliffe); Pioneer Shipping Ltd. v. B.T.P. Tioxide Ltd. („The Nema‟) [1982] AC 724 ¶ 752; Compania Naviera

General SA v. Kerametal Ltd.(„The Lorna I‟) [1983] 1 Llyod‟s Rep. 373¶ 375 (Sir John Donaldson); J. Lauritzen A.S.

v. Wijsmuller B.V („The Super Servant Two‟) [1990] 1 Lloyd‟s Rep.1 (Bingham LJ); Edwinton Commercial

Corporation and Global Tradeways Ltd v. Tsavliris Russ Ltd („The Sea Angel‟) [2007] EWCH 1713 (Rix LJ) 110 Case File, p. 68 111 Case File, p. 41 112 Walton Harvey Ltd. v. Walker & Homfrays Ltd. [1931] 1 Ch 274; Peter Cassidy Seed Co. Ltd. v. Osuustukkuk-

Auppa Ltd. [1957] 1 WLR 273; Denmark Production Ltd. v. Boscobel Productions Ltd. [1969] 1 QB 699 (Salmon

LJ); Ocean Tramp Tankers Corporation v. V/O Sovfracht („The Euginia‟) [1964] 2 QB 226; Paal Wilson & Co A/S v.

Partenreederei Hannah Blumenthal („The Hannah Blumenthal‟) [1983] 1 All ER 34¶ 43-44 (Lord Brandon) 113 Cricklewood Property and Investments Trust Ltd v. Leighton‟s Investment Trust Ltd [1945] A.C. 221¶ 228 114 Edwinton Commercial Corporation and Global Tradeways Ltd v. Tsavliris Russ (Worlwide Salvage and Towage)

Ltd („The Sea Angel‟) [2007] EWCH 1713 (Rix LJ)

TEAM NO.9 MEMORANDUM for CLAIMANT

20

61. In this case, it should have been foreseen by Respondent that the missing of the Vessel

might occur if Respondent wish to order the Vessel into an area with piracy threats.115

Here, the

area that the Respondent ordered the Vessel into was in fact an area with high-risk piracy

threats,116

and Respondent itself acknowledged such fact.117

Therefore, the event of missing of

the Vessel cannot frustrate the Charterparty since it was foreseen by Respondent.

ii. The frustrating event happened by the control of Respondent

62. Furthermore, it has been acknowledged that frustration could not arise from the fault or

negligence of the contracting parties.118

As seen in The Super Servant Two,119

Lord Rix LJ held

that the charterparty was invalidly frustrated because the frustrating event was caused by

respondent‟s negligence. Similar to this case, Respondent then cannot frustrate the Charterparty

on the ground of missing of the Vessel for it was occurred by Respondent‟s own fault, since it

would relieve Respondent from their liability to compensate Claimant‟s loss.120

63. Claimant submits that it was Respondent negligence to order the Vessel to an alternative

discharge location,121

regardless to the fact that it was located an area filled with piracy

threats.122

Furthermore, the Charterparty has clearly stipulated that Respondent can only order

the Vessel to a safe place.123

However, Respondent neglected such stipulation and persistently

ordered the Vessel into an unsafe area with high-piracy threats. Therefore, the missing of the 115 ICC International Maritime Bureau, Piracy and Armed Robbery Against Ship Report for the Period 1 January –

30thJune 2014, July 2014. 116 Case File, p. 46 117 Case File, p. 22 118 Bank Line Ltd v. Arthur Capel & Co [1919] A.C. 435 ¶ 452 (Lord Finlay LC); Maritime National Fish Ltd v.

Ocean Trawlers Ltd [1935] A.C. 524 (Lord Wright); Joseph Constantine S.S Line Ltd v. Imperial Smelting Corp Ltd

(The Kingswood) [1942] A.C¶ 192-193 (Lord Wright); Davis Contractor Ltd v. Fareham U.D.C. [1956] A.C. 696¶

729 (Lord Radcliffe); Paal Wilson & Co A/S v. Partenreederei Hannah Blumenthal („The Hannah Blumenthal‟)

[1983] 1 All ER 34¶ 44 (Lord Brandon) 119 J. Lauritzen A.S. v. Wijsmuller B.V („The Super Servant Two‟) [1990] 1 Lloyd‟s Rep.1 (Rix LJ) 120 Bank Line Ltd v. Arthur Capel & Co [1919] AC 435 at 432 (Lord Sumner); Sudbrook Trading Estate Ltd v.

Eggleton [1983] 1 AC 444 at 497 121 Case File, p. 35 122 Case File, p. 46 123 Shelltime 4 Clause 4(c), line 125-126

TEAM NO.9 MEMORANDUM for CLAIMANT

21

Vessel cannot be construed as a valid ground to frustrate the Charterparty owing to the fact that

derived from Respondent negligence.

B. Frustration of the Charterparty did not Discharge Respondent Obligation to Pay the

Hire of the Vessel.

64. Alternatively, Respondent still has the obligation to pay the hire of the Vessel even if it

has validly frustrated the Charterparty since the obligation was due before Respondent frustrated

the Charterparty.

65. Frustration only discharge parties‟ obligation arising after the contract is frustrated124

and

any other obligations occurred before the frustration will remain in force.125

As can be seen in

The Chandler case,126

the hirer remained liable to pay the hire since it was due before the

contract frustration. In the present case, Claimant and Respondent agreed to enter into a

Charterparty with a period of 3 months and to be paid every 30 days.127

On 8th

June 2014,

Claimant has clearly informed Respondent that the vessel was on-hire from 4th

June 2014, which

was the first period of hire,128

therefore the second period of hire shall fall 30 days later, by no

later than 3rd

July 2014 which was before Respondent frustrated the Charterparty. Thus,

Respondent‟s obligation to pay the hire of the Vessel was due on 3rd

July 2014129

which is clearly

before the frustration of Charterparty occurred.130

124 Bank Line Ltd. v. Arthur Chapel & Co [1919] AC 435 459 (Lord Summer); Hirji Mulji v. Cheong Yue SS Co (The

Singaporean) [1926] A.C. 497 at 505 (Lord Summer); FibrosaSpolkaAkcyjna v. Fairbairn Lawson Combe Barbour

Ltd. [1943] AC 32 (Lord Atkin); National Carriers Ltd. v. Panalpina (Northern) Ltd. [1981] AC 675 at 700 (Lord

Radcliffe); Pioneer Shipping Ltd. v. B.T.P. Tioxide Ltd. („The Nema‟) [1982] AC 724 at 752; Compania Naviera

General SA v. Kerametal Ltd.(„The Lorna I‟) [1983] 1 Llyod‟s Rep. 373 at 375 (Sir John Donaldson); J. Lauritzen

A.S. v. Wijsmuller B.V („The Super Servant Two‟) [1990] 1 Lloyd‟s Rep.1 (Bingham LJ); Edwinton Commercial

Corporation and Global Tradeways Ltd v. Tsavliris Russ Ltd (The Sea Angel) [2007] EWCH 1713 (Rix LJ) 125 Denny Mott & Dickson Ltd v. James B Fraser & Co Ltd [1944] AC 265¶ 274(Lord Macmillan) 126 Chandler v. Webster [1903] 1 KB 493 127 Shelltime4 Clause 9, line 185 128 Case File, p.29 129 Case File, p. 41 130 Case File, p. 68

TEAM NO.9 MEMORANDUM for CLAIMANT

22

66. Accordingly, even if the Tribunal finds that the frustration of Charterparty was valid,

Respondent still has the obligation to pay the hire of the Vessel since frustration only discharges

Respondent‟s obligation arising after the contract is frustrated.131

C. Respondent Cannot Exclude Its Liability to Pay the Hire of the Vessel Based on Off-

hire Clause

67. Respondent contends that even if the Charterparty‟s frustation was invalid, it still not in

the obligation to pay the hire since the Vessel has validly placed as off-hire for breach of order or

neglect of duty by the Master in which it caused the voyage to be delayed. However, Claimant

submits that Respondent is not exempted from their duty to pay the hire of the Vessel because

the Vessel was in full working condition [i] and the Master has neither exercised breach of order

[ii] nor neglect his duty [iii].

i. The Vessel is in full working condition when Respondent invalidly placed the Vessel as

off-hire

68. On 4th

July 2014, Respondent placed the Vessel as off-hire.132

In placing the Vessel as off-

hire, Respondent has the obligation to proof that the full working condition of the Vessel has

been prevented.133

A vessel can be considered as full working if she “[…] able to render to the

charterer order […]”134

131 Bank Line Ltd. v. Arthur Chapel & Co [1919] AC 435 459 (Lord Summer); HirjiMulji v. Cheong Yue SS Co („The

Singaporean‟) [1926] A.C. 497¶ 505 (Lord Summer); Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour

Ltd. [1943] AC 32 (Lord Atkin); National Carriers Ltd. v. Panalpina (Northern) Ltd. [1981] AC 675¶ 700 (Lord

Radcliffe); Pioneer Shipping Ltd. v. B.T.P. Tioxide Ltd. („The Nema‟) [1982] AC 724¶ 752; CompaniaNaviera

General SA v. Kerametal Ltd.(„The Lorna I‟) [1983] 1 Llyod‟s Rep. 373¶ 375 (Sir John Donaldson); J. Lauritzen A.S.

v. Wijsmuller B.V („The Super Servant Two‟) [1990] 1 Lloyd‟s Rep.1 (Bingham LJ); Edwinton Commercial

Corporation and Global Tradeways Ltd v. Tsavliris Russ Ltd („The Sea Angel‟) [2007] EWCH 1713 (Rix LJ) 132 Case File, p. 41 133 HBC Hamburg Bulk Carriers GMBH & Co KG v. Tangshan Haixing Shipping Co Ltd („The Fu NingHai‟) [2006]

EWHC 3250 134 Mareva Navigation v. CanariaArmadora SA („The Mareva AS‟) [1977] 1 Lloyd‟s Rep. 368 at 382 (Kerr J)

TEAM NO.9 MEMORANDUM for CLAIMANT

23

69. In the present case, Respondent‟s order was for the Vessel to perform STS Operation for

the discharge of the Cargo.135

It is clear from the Master‟s e-mail that the Vessel has rendered

Respondent‟s order, which stated that she has arrived at the nominated STS Operation

location.136

70. Alternatively, if Respondent argues that the full working condition of the Vessel was

prevented by piracy attacks. Claimant submits that Respondent still cannot place the Vessel as

off-hire. In the Charterparty, it was clear that events relating to piracy would not affect the

Respondent obligation to pay the hire of the Vessel.137

Further, Respondent did not know the

event of piracy until 17th

July 2014, which was after Respondent invalidly placed the Vessel as

off-hire.

71. Therefore, since the Vessel was in full working condition when Respondent placed the

Vessel as off-hire. Claimant submits that such action was invalid and Respondent still has to pay

the hire of the Vessel.

ii. Master has not exercised breach of order

72. Respondent argued that the voyage has been delayed due to Master‟s breach of order and

thus construed as valid ground to place the Vessel.138

However, Claimant submits that Master

has not breached and always complied with Respondent‟s order.

73. In was held in The Rijn that a vessel cannot be placed as off-hire if the delay was caused

by Charterer‟s order.139

In the present case, Respondent ordered the Master to go an alternative

135Case File, p. 35 136 Case File, p. 38 137 Case File, p. 12 138 Case File, p.68 139 Santa Martha Baay Scheepvaart and Handelsmaatscheppij NV v. Scanbulk A/S (The Rijn) [1981] 2 Lloyd‟s Rep.

267 ¶ 271

TEAM NO.9 MEMORANDUM for CLAIMANT

24

discharge location140

and the Master has complied and rendered Respondent‟s order,141

thus any

time loss which arises from Respondent‟s order cannot be construed as a valid ground to place

the Vessel as off-hire.

74. Alternatively, Respondent cannot invoke the off-hire clause if Respondent itself

contributes towards the delay by breaching the Charterparty.142

The Charterparty grants

Respondent the right to order the Vessel only to a safe location.143

However in this case,

Respondent has ordered the Vessel to an unsafe location which has led to the missing of the

Vessel.144

Therefore, Respondent cannot place the Vessel as off-hire seeing that it has breach the

Charterparty.

iii. The Master did not neglect its duty

75. Respondent further argued that the Vessel was off-hire for neglect of duty by the Master,

on the contrary Claimant submits that Master has duly exercised his duty in the Charterparty.

76. The Charterparty requires the Master to keep the voyage‟s log,145

and Master has fulfilled

such duty by sending Respondent daily noon report throughout his voyage.146

It was admitted by

Claimant that the Master did not keep and provide Respondent the voyage‟s log on 4th

July 2014,

however it was caused by Respondent‟s negligence to order the Vessel into an unsafe location,

which lead to the missing of the Vessel.147

Therefore, Claimant submits that Master has fully

performed his duty as required by the Charterparty and Respondent has invalidly placed the

Vessel as off-hire

140 Case File, p. 35 141 Case File, p. 35 142 Lensen Shipping Ltd. v. Anglo-Soviet Shipping Co., Ltd. [1935] 52 LI.L.Rep. 341 143 Shelltime 4 Clause 4(c), line 125-128 144 Case File, p. 42 145 Shelltime 4 Cl 3(a), line 220-221; Case File, p. 15 146 Case File, pp. 30-37 147 Case File, p. 35

TEAM NO.9 MEMORANDUM for CLAIMANT

25

PRAYER FOR RELIEF

77. In light of the aforementioned submissions, Claimant respectfully requests this Tribunal to

declare that:

a. It has jurisdiction to hear the present dispute;

b. London is the proper seat for the arbitration, thus English Law is the governing law;

c. Respondent is liable for the breaches of charter party and the tort of fraud as submitted

above;

d. Claimant is entitled to receive compensation for the damages arising from Respondent‟s

breaches along with its interest; and

e. Respondent is entitled for the payment of any cost related to these arbitration proceedings

RESPECTFULLY SUBMITTED ON 22ND

APRIL 2015,

ALBERTUSALDIOPRIMADI

AGUNG ROSA MAHESWARI

JOHANNA DEVI

RAISSAYURIZZAHRA

KEVIN CARLOS

HEZARAMANDA

COUNSEL FOR THE WESTERN TANKERS INC

[contact information]