THE TWENTIETH ANNUAL INTERNATIONAL MARITIME LAW ...€¦ · Maritime and Port Authority Of...

THE TWENTIETH ANNUAL INTERNATIONAL MARITIME LAW ARBITRATION MOOT

Memorandum for Claimant

On Behalf of:

Panther Shipping, Inc.

80 Broad Street, Monrovia, Liberia

(CLAIMANT)

Against:

Omega Chartering Limited

P.O. Box 911, Vaduz, Liechtenstein

(RESPONDENT)

RIZKY BAYUPUTRA – RAFI YUSZAR – ANGGARDHA ANINDITO

TEAM NO. 12

Team 12 Claimant’s Memorandum

ii

MEMORANDUM FOR CLAIMANT

TEAM NO. 12


iii

TABLE OF CONTENTS

LIST OF AUTHORITIES ....................................................................................................................................... v

LIST OF ABBREVIATIONS ................................................................................................................................... x

SUMMARY OF FACTS ......................................................................................................................................... 1

ARGUMENTS FOR CLAIMANT ............................................................................................................................ 2

SUBMISSIONS ON CLAIMS .................................................................................................................................. 2

ARGUMENTS ON THE MERITS OF THE CLAIM .................................................................................................. 2

I. RESPONDENT IS LIABLE FOR ALL LOSSES ARISING FROM MISSING THE NEXT

FIXTURE.......................................................................................................................................................... 2

A. Charter period of ‘about 50-55 days without guarantee’ was not an honest estimate ................. 3

B. Respondent had assumed responsibility for the Loss of Next Fixture ......................................... 4

(i) Respondent had knowledge to contemplate the extent of the loss ............................................ 4

(ii) Respondent understood that late redelivery would place Claimant into poor market

conditions .................................................................................................................................................. 5

C. Claimant’s actions of concluding the Next Fixture during quarantine was reasonable ............. 6

D. There was a substantial chance for Champion to extend the duration of the Charterparty ..... 7

II. RESPONDENT IS LIABLE FOR ALL COSTS IN CONNECTION WITH HCO .......................... 9

A. Respondent’s obligations for HCO had arisen pursuant to Clause 83 of the Rider Clauses ..... 9

B. Claimant had legitimate interest to continue the Charterparty and perform HCO at South

Island ........................................................................................................................................................... 11

(i) Accepting the redelivery and claiming damages would not be an adequate remedy ............ 11

(ii) Claimant’s intentions were not perverse ................................................................................... 12

C. Respondent cannot rely on lump sum offers to indemnify them from HCO Costs .................. 13

(i) Clause 83(d) of the Rider Clauses was amended ...................................................................... 13

(ii) Alternatively, Clause 83(d) of the Rider Clauses’ lump sum provision is too uncertain to be

enforced ................................................................................................................................................... 14

III. RESPONDENT IS LIABLE FOR COMPOUND INTEREST ....................................................... 14

SUBMISSIONS ON COUNTERCLAIMS ................................................................................................................ 15

ARGUMENTS ON THE ADMISSIBILITY OF THE COUNTERCLAIM .................................................................... 15

IV. RESPONDENT’S COUNTERCLAIM IS TIME-BARRED .......................................................... 15

A. Respondent’s notifications did not fulfil the requirement for claims’ notification under

Clause 6 of the ICA .................................................................................................................................... 15

B. Respondent’s notification did not fulfil its commercial purpose ................................................ 16

ARGUMENTS ON THE MERITS OF THE COUNTERCLAIM ................................................................................ 17

V. CLAIMANT IS NOT LIABLE FOR CARGO DAMAGE ................................................................ 17

A. Cargo damage falls outside of the scope of Clause 8(a) of the ICA ............................................ 18

B. Ballasting operations do not fall within Clause 8(b) of the ICA ................................................. 19


iv

C. Respondent’s actions had caused the Cargo damage per Clause 8(d) of the ICA .................... 20

VI. THE VESSEL SHALL REMAIN ON HIRE THROUGHOUT THE DETENTION .................. 20

A. The delay for 51 days does not amount to an off-hire event pursuant to Clause 17 of NYPE15

21

(i) The Vessel was not prevented from full working ..................................................................... 21

(ii) Even if the Vessel was prevented from full working, the cause preventing the full working

does not fall under Clause 17 of NYPE15 ............................................................................................ 22

B. In any event, Respondent had assented to the risk of the Vessel being detained ...................... 24

PRAYERS FOR RELIEF ............................................................................................................................. 25


v

LIST OF AUTHORITIES

A. Articles and Books

Jie Liu "Chartering policies in the dry bulk market" (2001). World Maritime University Dissertations. 202.

Rathore KS, Keshari R, Rathore A, Chauhan D. A Review on Ebola Virus Disease. PharmaTutor. 2014;

2(10): 17–22.

Rothstein, Mark A. At Law: Ebola, Quarantine, and the Law. The Hastings Center Report 45, No. 1 (2015):

5-6.

B. Cases

Actis Co. Ltd. v The Sanko Steamship Co. Ltd. (“The Aquacharm”) [1982] 1 Lloyd’s Rep 7.

Albion Water Ltd v Dwr Cymru Cyfyngedid [2013] 3 WLUK 785.

Allied Maples Group Ltd v Simmons & Simmons [1996] C.L.C. 153.

Anderson v Anderson [1895] 1 QB 749.

Andre & Cie S.A. v Orient Shipping (Rotterdam) B.V. (“The Laconian Confidence”) [1997] 1 Lloyd’s Rep

139.

Associated British Ports v Tata Steel UK Limited [2017] EWHC 694 (Ch).

Attica Sea Carriers Corporation v Ferrostaal Poseidon Bulk Reederei G.m.b.H. (“The Puerto Buitrago”)

(C.A.) [1976] 1 Lloyd's Rep. 250.

Baird v Hastings [2015] 5 WLUK 107.

Belcore Maritime Corporation v F.Lli. Moretti Cereali S.P.A. (“The Mastro Giorgis”) [1983] 2 Lloyd’s

Rep 66.

Blue Sky One Ltd v Mahan Air [2009] EWHC 3314 (Comm).

Bremer Handelsgessellschaft mbH v Continental Grain [1983] 1 Lloyd’s Rep 269.

Bright v Barnsley District General Hospital NHS Trust [2004] 11 WLUK 781.

British Movietonenews Ltd v London and District Cinemas [1952] AC 166.

Bulfracht (Cyprus) Ltd v Boneset Shipping Co. Ltd (“The Pamphilos”) [2002] 2 Lloyd’s Rep 681.

Bulfracht (Cyprus) Ltd. v Boneset Shipping Co. Ltd. (“The Pamphilos”) [2002] 2 Lloyd's Rep. 681.

C. Czarnikow, Ltd. v Koufos (“The Heron II”) [1967] 2 Lloyd's Rep. 457.


vi

C.A. Venezolana De Navegacion v Bank Line “(The Roachbank)” 2 Lloyd’s Rep 498.

Cable & Wireless plc v IBM United Kingdom Ltd [2002] 1 All E.R. (Comm) 1041.

Ceylon v Chandris [1965] 2 Lloyd's Rep. 204.

Chandris v Isbrandtsen-Moller Co Inc [1949/50] 83 Lloyd’s Rep 385.

Clea Shipping Corporation vBulk Oil International Ltd. (“The Alaskan Trader”) (No. 2) [1983] 2

Cobelfret Bulk Carriers NV v Swissmarine Services SA [2010] 1 Lloyd's Rep. 317.

Compagnie Noga D’importation Et D’exportation SA v Abacha & Ors [2003] EWCA Civ 1100.

Continental Pacific Shipping Ltd. v Deemand Shipping Co. Ltd. (“The Lendoudis Evangelos II”) [1997] 1

Lloyd’s Rep 404.

Davies v Taylor [1974] AC 207.

Electrical Wholesalers Ltd v Alcatel Submarine Networks Ltd [1999] 2 Lloyd’s Rep 423.

Emirates Trading Agency v Prime Mineral Exports Private Ltd [2014] 2 Lloyd’s Law Reports 457.

Exportadora Valle de Colina SA v AP Moller-Maersk A/S [2010] EWHC 3224 (Comm).

Five Oceans Salvage Consultants Ltd v Perla Navigation Ltd [2013] EWHC 4055 (Comm).

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

Gator Shipping Corporation v Trans-Asiatic Oil Ltd. S.A. And Occidental Shipping Establishment (“The

Odenfeld)” [1978] 2 Lloyd's Rep. 357

Gosse Millerd, Ltd., And Another vCanadian Government Merchant Marine, Ltd. (“The Canadian

Highlander”) [1927] 28 Ll. L Rep 88.

Hadley v Baxendale (1854) EWHC J 70.

Hall v Wright [1859] 11 WLUK 133.

Hans Peter Moller and Others v Jecks [1865] 144 E.R. 815.

Hayden v Maidstone and Turnbridge Wells NHS Trust [2016] EWHC 3276.

Hayes v South East Coast Ambulance Service [2015] EWHC 18.

Hyundai Merchant Marine Co Ltd v Furness Withy (Australia) Pty (The Doric Pride) [2005] EWHC 945

(Comm).

Imperator I Maritime Co v Bunge SA (The Coral Seas) [2016] EWHC 1506.


vii

ING Bank NV v Ros Roca SA [2011] EWCA Civ 353.

Intense Investments Ltd v Development Ventures Ltd [2006] EWHC 1586 (TCC).

IPSOS S.A. v Dentsu Aegis Network Limited (formerly Aegis Group plc) [2015] EWHC 1171 (Comm).

Isabella Shipowner Sa v Shagang Shipping Co Ltd “(The Aquafaith)” [2012] 2 Lloyd’s Rep 61.

Japy Freres and Co. v Sutherland & Co. (C.A.) [1921] 6 Lloyd's Rep. 381.

Kuwait Oil Tanker Co SAK & Anor. v Qabazard [2002] EWCA Civ 34.

Laminates Acquisitions v BTR Australia Limited [2004] 1 All ER (Comm) 737.

Losinjska Plovidba Brodarstovo Dd v Valfracht Maritime Co. Ltd. And Another (“The Lipa”) [2009] 2

Lloyd's Rep 17.

Lyle Shipping Co. v Cardiff Corporation [1899] 5 Com. Cas. 87.

Man Nutzfahrzeuge AG v Freightliner Ltd [2007] EWCA Civ 910.

Mareva Navigation Co. Ltd. v Canaria Armadora S.A. (“The Mareva A.S.”) [1977] 1 Lloyd's Rep. 368.

Marsden v Barclays Bank plc [2016] 2 Lloyd’s Rep 420.

McDonald v Dennys Lascelles Ltd [1933] 48 CLR 457; Johnson v Agnew [1980] AC 367.

Metal Market OOO v Vitorio Shipping Co Ltd [2013] 2 Lloyd’s Rep 541.

Minerva Navigation Inc v Oceana Shipping Ag (“The Athena”) [2013] 2 Lloyd’s Rep 673.

MSC Mediterranean Shipping Co SA v Cottonex Anstalt [2016] 2 Lloyd’s Rep 494.

Nippon Yusen Kaisha Ltd. v Scindia Steam Navigation Co. Ltd. (“The Jalagouri”) [2000] 1 Lloyd's Rep.

515.

Ocean Marine Navigation Limited v Koch Carbon Inc. (“The Dynamic”) [2003] 2 Lloyd’s Rep 693.

Papera Traders Co. Ltd. And Others v Hyundai Merchant Marine Co. Ltd. And Another (Eurasian Dream)

(No. 2) [2002] 1 Lloyd's Rep. 719.

Patience (George) v Mackenzie, [1912] S.C. (J.) 7.

Petroleum Oil and Gas Corporation Of South Africa (Pty) Ltd v Fr8 Singapore Pte Ltd, The [2008] EWHC

2480 (Comm).

Rijn, The [1981] 2 Lloyd’s Rep 267 (Q.B.).

Robin Hood Flour Mills, Ltd. v N. M. Paterson & Sons, Ltd. (The Farrandoc) [1967] 1 Lloyd's Rep. 232.


viii

Rock Advertising Limited v MWB Business Exchange Centres Limited [2018] UKSC 24.

ROK Plc (in administration) v S Harrison Group Ltd [2011] EWHC (Comm).

Royal Greek Government v Minister of Transport (“The Illissos”) [1949] 1 KB 7 (Court of Appeal).

Royal Greek Government v Minister of Transport (The Ann Stathatos) [1949] 83 Ll L Rep 228.

Scott v United States [2018] EWHC 2021 (Admin).

Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v Inland Revenue Commissioners and another [2008]

Bus. L.R. 49.

Sempra Metals Ltd v Inland Revenue [2007] UKHL 4.

Sidermar S.p.A. vApollo Corporation (“The Apollo”) [1978] 1 Lloyd’s Rep 200.

Slack v Cumbria CC [2009] EWCA Civ 293.

Spiro v Lintern [1973] 1 WLR 1002.

Summit Navigation Ltd v Generali Romania Asiguarare Reasiguarare SA [2014] EWHC 398 (Comm).

Supershield Ltd v Siemens Building Technologies FE Ltd [2010] 1 Lloyd’s Rep 349.

Sylvia Shipping Co Ltd v Progress Bulk Carriers Ltd (“The Sylvia”) 2 Lloyd’s Rep 81.

TCB Ltd v Gray [1986] Ch 621.

Transfield Shipping Inc v Mercator Shipping Inc (“The Achilleas”) [2008] 2 Lloyd’s Rep 275.

Transgrain Shipping (Singapore) Pte Ltd v Yangtze Navigation (Hong Kong) Co Ltd (“Mv Yangtze Xing

Hua”) 1 Lloyd's Rep. 330.

Transpetrol Maritime Services Ltd v SJB (Marine Energy) BV [2012] 1 Lloyd's Rep 564.

Triad Shipping Co. v Stellar Chartering & Brokerage Inc. (“The Island Archon”) [1994] 2 Lloyd's Rep.

227.

Victoria Laundry v Newman Industries, Ltd. [1949] 2 K.B. 528.

Washington, The [1976] 2 Lloyd's Rep 453.

Whistler International Ltd. v Kawasaki Kisen Kaisha Ltd. (“The Hill Harmony”) [2001] 1 Lloyd's Rep.

147.

C. Statutes and Regulations

Arbitration Act 1996 (United Kingdom).


ix

IMO Resolution A.1052(27) on Procedures for Port State Control, 2011.

Maritime and Port Authority Of Singapore – Port Marine Circular No. 11 of 2014.

Panama Canal Advisory to Shipping No. A-22-2014 dated September 23, 2014 regarding Measures for the

Prevention and Protection against Ebola Virus Disease (EVD).

United States Coast Guard Sector New Orleans – Marine Safety Information Bulletin No. 1317 ‘Vessel

Reporting Requirements from Countries Posing a Serious Ebola Threat’ dated 10 October 2014.

Prevention and Control of Disease Regulation Cap. 599, section 7, L.N. 203 of 2008 (Hong Kong).

D. Other

New York Produce Exchange 2015 Time Charterparty Form.

Inter-Club New York Produce Exchange Agreement/Inter-Club Agreement per September 2011.

Re: South American P&I Club Circular 01/14 – Ebola – South American Countries.


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LIST OF ABBREVIATIONS

Abbreviation Term

A.C. Law Reports Appeal Cases

Admin Administrative Court

All E.R. All England Law Reports

C.A. English Court of Appeals

Cargo 8,600mt of loose-leaf English tea carried by the

Vessel

Charterparty The time charterparty between Claimant and

Respondent

Claimant Panther Shipping Inc., Panther Shipping, Inc., 80

Broad Street, Monrovia, Liberia

Comm Commercial Court

EWCA England and Wales Court of Appeals

EWHC England and Wales High Court

Fixture Recap End of negotiations between Claimant and

Respondent which signifies the conclusion of the

Charterparty

HCO Hull cleaning operations

ICA Inter-Club Agreement as amended September 2011

IMO International Maritime Organisation

KB King’s Bench

Ll. L. Rep. Lloyd’s Law Report

Lloyd’s Rep Lloyd’s Law Report

Master Captain Rogers, Master of the M/V Thanos Quest

Moot Problem International Maritime Law Arbitration Moot 2019

Moot Scenario (V3) Released 25 March 2019

NYPE15 New York Produce Exchange 2015 Time

Charterparty Form

Preliminary Report Report by Mekon Surveyors published on 7 July

2016


xi

QB Queen’s Bench Division

Receivers Hawkeye Import & Export Pty, Wahanda, Bao

Kingdom

Respondent Omega Chartering Limited, P.O. Box 911, Vaduz,

Liechtenstein

Rider Clauses Omega Rider Clauses as negotiated between

Claimant and Respondent in the Fixture Recap

S.C. Scottish Council

UKHL United Kingdom House of Lords

UKSC United Kingdom Supreme Court

Vessel M/V Thanos Quest

W.L.R. Western Law Reports

WPS Wahanda Port Services


1

SUMMARY OF FACTS

1. On 18 March 2016, Panther Shipping, Inc. (“Claimant”), owners of the M/V THANOS QUEST

(“Vessel”) entered into a time charterparty with Omega Chartering Ltd. (“Respondent”)

(collectively, the “Parties”) for the delivery of 8,600mt of tea (“Cargo”) from West Coast,

Challaland (“West Coast”) to Wahanda, Bao Kingdom (“Wahanda”) for a period of ‘about 50-

55 days without guarantee’ on an amended NYPE15 Form with Rider Clauses (“Charterparty”).

The Vessel was delivered on 29 March 2016 at West Coast.

2. On 18 April 2016, 100 cases of Ebola virus disease (“Ebola”) were discovered in West Coast.

Nevertheless, Respondent persisted on continuing the shipment of the Cargo and the Vessel

departed on 20 April 2016. The Vessel arrived at Wahanda on 7 May 2016 where she was detained

by Wahanda Port Services (“WPS”) for fear of Ebola. During the detention, the Vessel’s hull

began to foul with marine growth. When the Vessel’s hull is fouled, Respondent is obliged to

perform hull cleaning operations (“HCO”).

3. On 15 June 2016, Claimant entered into a time charter with Champion Chartering Corp.

(“Champion”) for a period of two years plus a further two years on Champion’s option with a

delivery window of 22-28 June 2016 (“Next Fixture”). The Next Fixture is a medium-term

charter, something Claimant have been insistently looking for.

4. The Vessel was released from detention on 26 June 2016, where she proceeded to unload the

Cargo. On 27 June 2016 it was revealed that after Respondent ordered ballasting, Cargo Hold No.

2 was flooded, causing damage to the Cargo. As the Vessel was still performing discharge

operations up to 30 June 2016, Respondent did not redeliver the Vessel to Claimant. This caused

Claimant to miss the Next Fixture.

5. Respondent redelivered the Vessel on 30 June 2016 with the hull severely fouled. Claimant opted

to clean the hull at South Island at a price of USD96,567.42, however, Respondent refused to pay.

On 4 July 2016, Claimant entered into another charter with Fairwind International BVI


2

(“Fairwind”) with a delivery window of 4-6 July 2016 for a period of ‘about 50-55 days’

(“Replacement Fixture”).

6. Respondent’s actions, which have led to the loss of Next Fixture and the unpaid costs in relation

to HCO, has led Claimant to initiate arbitration proceedings on 16 October 2018.

ARGUMENTS FOR CLAIMANT

SUBMISSIONS ON CLAIMS

ARGUMENTS ON THE MERITS OF THE CLAIM

I. RESPONDENT IS LIABLE FOR ALL LOSSES ARISING FROM MISSING THE NEXT

FIXTURE

7. Claimant had entered into a single-trip time charterparty with a period of ‘50-55 days without

guarantee’ with Respondent for the shipment of Cargo1 from West Coast to Wahanda on 18 March

2016.2 The Vessel was delivered on 28 March 2016 at West Coast.3 In the course of the

Charterparty, on 15 June 2019, Claimant entered into the Next Fixture,4 which had a delivery

window of 22-28 June 2016.5 However, Respondent failed to redeliver the Vessel during the

delivery window. As a result, Champion cancelled the Next Fixture.6

8. In their Defence Submissions, Respondent admitted that they had breached obligations of late

redelivery though are not liable for the losses arising out of it.7 However, Claimant asserts that

Respondent shall remain fully liable for the entire loss of the Next Fixture, as (A) Charter period

of ‘about 50-55 days without guarantee’ was not an honest estimate, (B) Respondent had assumed

responsibility for the loss of the Next Fixture, (C) Claimant’s actions of concluding the Next

1 Moot Problem, pp. 46-47. 2 Moot Problem, pp. 2-5. 3 Ibid. 4 Moot Problem, pp. 30-33. 5 Moot Problem, pp. 30-33. 6 Moot Problem, p. 40. 7 Moot Problem, p. 72.


3

Fixture during quarantine was reasonable, and (D) There was a substantial chance for Champion

to extend the duration of the Charterparty.

A. Charter period of ‘about 50-55 days without guarantee’ was not an honest estimate

9. Respondent may argue that the charter period of ‘50-55 days without guarantee’ exempts

Respondent from liability for the late redelivery of the Vessel. In Lendoudis Evangelos II,8 even

if the charter period was followed by ‘without guarantee,’ charterers are still obliged to provide

an honest estimate at the time of conclusion.9 However, if an event inhibits the performance of an

obligation and the parties did not terminate the contract, the said obligations will be adjusted as to

give the contract commercial sense.10

10. In the present dispute, Respondent’s decision to continue the voyage after the Ebola outbreak had

made the previous estimate of ‘about 50-55 days without guarantee’ commercially insensible and

thus obliges Respondent to provide a new charter period in light of the circumstances surrounding

the Charterparty.11 Respondent as a commercial man12 must have known that sailing from an

Ebola-affected port would prolong the Charterparty significantly as the Vessel would be detained

by port authorities.13 Claimant, as shipowners, will rely on Respondent’s original estimate to plan

future fixtures. Consequently, as Respondent did not provide a charter period in light of the new

circumstances of the Charterparty, the ‘about 50-55 days without guarantee’ charter period was

not an honest estimate and therefore Respondent should be liable for any losses arising out of late

redelivery.

8 The Lendoudis Evangelos II [1997] 1 Lloyd’s Rep. 404. 9 Japy Freres and Co. v Sutherland & Co. (C.A.) [1921] 6 Lloyd's Rep. 381; The Lendoudis Evangelos II [1997] 1 Lloyd’s

Rep 404; The Lipa [2001] 2 Lloyd's Rep 17; Transpetrol Maritime Services Ltd v SJB (Marine Energy) BV [2012] 1

Lloyd's Rep 564. 10 Hall v Wright [1859] 11 WLUK 133; British Movietonenews Ltd v London and District Cinemas [1952] AC 166; Bremer

Handelsgessellschaft mbH v Continental Grain [1983] 1 Lloyd’s Rep 269. 11 The Lendoudis Evangelos II [1997] 1 Lloyd’s Rep. 404. 12 The Achilleas [2008] 2 Lloyd's Rep 275; Sylvia Shipping Co Ltd v Progress. Bulk Carriers Ltd (The Sylvia) [2010] 2

Lloyds Rep 81; Supershield Ltd v Siemens Building Technologies FE Ltd [2010] 1 Lloyd’s Rep 349. 13 Singapore: 60 days (Maritime And Port Authority Of Singapore – Port Marine Circular No. 11 of 2014); Argentina: 30

days, Brazil: 21 days, Uruguay: 21 days (Re: South American P&I Club Circular 01/14 – Ebola - South American

Countries).


4

B. Respondent had assumed responsibility for the Loss of Next Fixture

11. A charterer cannot be liable for losses that are too remote unless they had assumed responsibility

of it.14 For a charterer to assume responsibility of a missed fixture after late redelivery, they must

have, at the conclusion of the contract, enough knowledge to contemplate the extent of the loss or

the understanding that redelivering late would put the vessel into poor market conditions.15

12. In the present dispute, Respondent had assumed responsibility for the entire price of the Next

Fixture as (i) Respondent had knowledge to contemplate the extent of the loss of missing the Next

Fixture and (ii) Respondent understood that late redelivery would cause extraordinary loss for

Claimant given the poor market conditions.

(i) Respondent had knowledge to contemplate the extent of the loss

13. Claimant submits that there is sufficient information for Respondent to know the extent of the loss

arising out of missing the Next Fixture. On 1 March 2018, Claimant’s Chatter post stated that

Claimant is ‘looking to fix for 3-5 years’,16 that being a medium-term charter.17

14. In The Achilleas,18 the assessment of whether a charterer is liable for a missed fixture is determined

based on the knowledge of the charterer at the time of conclusion so long as the charterer could

contemplate the extent of the loss.19 As long as the charterer could predict the extent of the loss at

the time of the conclusion of the Charterparty, the Charterer is deemed to have assumed

responsibility. As such, the knowledge of the charterer would lead to the charterer knowing that

there is a possibility of a subsequent fixture and the extent of the loss of missing the subsequent

fixture.20

14 Hadley v Baxendale (1854) EWHC J 70; Victoria Laundry v Newman Industries, Ltd. [1949] 2 K.B. 528; The Heron II

[1967] 2 Lloyd’s Rep 555; The Achilleas [2008] 2 Lloyd’s Rep 275; The Sylvia [2010] 2 Lloyds. Rep 81; Supershield Ltd

v Siemens Building Technologies FE Ltd [2010] 1 Lloyd’s Rep 349. 15 The Achilleas [2008] 2 Lloyd's Rep 275; The Sylvia [2010] 2 Lloyds Rep 81; Supershield Ltd v Siemens Building

Technologies FE Ltd [2010] 1 Lloyd’s Rep 349. 16 Moot Problem, p. 1. 17 Jie Liu (2001) Chartering policies in the dry bulk market, World Maritime University, pp. 33-35. 18 The Achilleas [2008] 2 Lloyd’s Rep 275. 19 Victoria Laundry v Newman Industries, Ltd. [1949] 2 K.B. 528; Heron II [1967] 2 Lloyd’s Rep 555; The Achilleas

[2008] 2 Lloyd’s Rep 275. 20 Ibid.


5

15. In the present dispute, there are three reasons why Respondent’s knowledge was sufficient to know

the extent of the loss of missing the Next Fixture and therefore knew the possibility of the Next

Fixture. Firstly, Respondent, as a charterer, knew the market rate of hire.21 Thus, Respondent could

contemplate the extent of loss of missing a medium-term charter. Secondly, time charters are of

standard form terms, which means that the terms of one charterparty to another would not differ

drastically, especially with the popular usage of the NYPE form.22 Thirdly, Respondent

understood, through Chatter, that Claimant was looking for a medium-term charter since 1 March

2016,23 and therefore knew that Claimant would conclude a medium-term charter had there been

an opportunity to do so.

16. Under the three reasons above, Respondent had sufficient information to know the possibility of

a subsequent fixture and therefore knew the extent of loss of missing the Next Fixture.

Conclusively, Respondent had assumed responsibility for missing the Next Fixture and

accordingly Respondent shall be held liable for the loss arising out of missing the Next Fixture.

(ii) Respondent understood that late redelivery would place Claimant into poor market

conditions

17. Respondent may argue that as a result of their late redelivery, Respondent would only be liable for

the difference between the rate of hire of the current charter and the market rate of hire.24 However,

in The Achilleas,25 it was held that if charterers knew, at the time of conclusion, that late redelivery

would put shipowners into a poor market position, then charterers are liable for the entire contract

price of any fixture missed due to the late redelivery.26

21 The Achilleas [2008] 2 Lloyd's Rep 275; The Sylvia [2010] 2 Lloyds Rep 81. 22 Soyer, B. and Tettenborn, A. (2017). Charterparties: Law, Practice and Emerging Legal Issues. 1st ed. London: Informa

Law from Routledge, p. 67. 23 Moot Problem, p. 1. 24 The Achilleas [2008] 2 Lloyd’s Rep 275. 25 Ibid. 26 Ibid.


6

18. In the present dispute, an Ebola outbreak occurred in West Coast on 18 April 2016.27 Nevertheless,

on 20 April 2016, Respondent persisted on sailing to Wahanda,28 causing the Charterparty to be

varied by operation of law29 and therefore considered as a newly-concluded Charterparty.30

Consequently, there is a risk of detention of the Vessel, leading to the late redelivery of the

Vessel.31 As such, Respondent must have understood that late redelivery would lead Claimant to

miss an extraordinary opportunity as any employment would be difficult to find for Claimant.

19. Charterers are less inclined to charter vessels who have gone to Ebola-affected ports as major

world ports, such as Panama Canal32 and New Orleans, 33 both being major world trading hubs,

would detain vessels even if the vessels had already obtained clearance from other ports. Having

unhindered access to major world ports are essential to time charters as it is required for any time

charter to be performed with utmost despatch. As the Vessel lacks unhindered access to major

world ports, potential charterers are less inclined to charter the Vessel. Therefore, Respondent’s

late redelivery rendered the market for the Vessel’s services poor.

20. In conclusion, Respondent’s late redelivery led Claimant to miss the Next Fixture and therefore

exposed Claimant to poor market conditions. Accordingly, Respondent shall be held liable for the

entire contract price of the Next Fixture.

C. Claimant’s actions of concluding the Next Fixture during quarantine was reasonable

21. Respondent may argue that they are not liable for the losses arising out of missing the Next Fixture

as Claimant caused the loss by concluding the Next Fixture under detention. However, Claimant

27 Moot Problem, p. 22. 28 Moot Problem, p. 81. 29 See, supra, ¶9-10. 30 McDonald v Dennys Lascelles Ltd [1933] 48 CLR 457; Johnson v Agnew [1980] AC 367; Compagnie Noga

D’importation Et D’exportation SA v Abacha & Ors [2003] EWCA Civ 1100; Slack v Cumbria CC.

[2009] EWCA Civ 293; See, supra, ¶8-9. 31 Maritime and Port Authority of Singapore – Port Marine Circular No. 11 of 2014: Vessels having called at Ebola ports

in last 60 days will be detained; South American P&I Club Circular 01/14: Argentina, Brazil, Uruguay will detain ships

coming from Ebola ports; Panama Canal Advisory to Shipping No. A-22-2014: Vessels who had called at Ebola ports in

last 10 ports of call shall be detained. 32 Panama Canal: Advisory to Shipping No. A-22-2014 dated September 23, 2014 regarding Measures for the Prevention

and Protection against Ebola Virus Disease (EVD). 33 United States Coast Guard Sector New Orleans – Marine Safety Information Bulletin No. 1317 ‘Vessel Reporting

Requirements from Countries Posing a Serious Ebola Threat’ dated 10 October 2014.


7

may still recover losses as the conduct of concluding the next fixture was reasonable.34 Deciding

whether a conduct is reasonable depends on each specific circumstance taking into account the

profitability of the shipowner.35

22. Taking into account the circumstances of the present dispute, it can be concluded that Claimant’s

actions in concluding the Next Fixture is reasonable. Firstly, Claimant has been looking for a

charter lasting 3-5 years for months.36 At the time, the Next Fixture was the only opportunity to

secure long-term employment, instead of going on consecutive spot-market charters.37 Secondly,

when concluding the Next Fixture, Claimant had already taken into account that the detention

would end soon. Claimant, as a reasonable businessman in the maritime industry, understood that

Ebola quarantines generally do not exceed 21-30 days,38 especially since the present quarantine

was merely based on a suspicion against two crew members with a common fever and not the

whole crew.39 Thirdly, had they not concluded the Next Fixture, it would be difficult to secure

another medium-term charter as the occurrence of Ebola affected the Vessel’s marketability.40

23. Conclusively, Claimant’s conclusion of the Next Fixture was done reasonably regardless of the

conclusion being done during the Vessel’s detention.

D. There was a substantial chance for Champion to extend the duration of the Charterparty

24. The duration of the Next Fixture is two years extendable for another two years based on a further

negotiation between Champion and Claimant.41 If a third party’s action denied someone the

opportunity to negotiate, that person may claim for the whole profits lost if they could prove that

there was a substantial chance for the negotiation to succeed.42 A substantial chance exists if the

34 Hans Peter Moller and Others v Jecks [1865] 144 E.R. 815; Lyle Shipping Co. v Cardiff Corporation [1899] 5 Com.

Cas. 87; MSC Mediterranean Shipping Co SA v Cottonex Anstalt [2016] 2 Lloyd’s Rep 494. 35 Lyle Shipping Co. v Cardiff Corporation [1900] 5 Com. Cas 87; Metal Market OOO v Vitorio Shipping Co Ltd [2013]

2 Lloyd’s Rep 541. 36 Moot Problem, p. 1. 37 Moot Problem, p. 1, 30. 38 Rathore KS, Keshari R, Rathore A, Chauhan D. A Review on Ebola Virus Disease. PharmaTutor. 2014;2(10):17–22;

Rothstein, Mark A. At Law: Ebola, Quarantine, and the Law. The Hastings Center Report 45, no. 1 (2015): 5-6. 39 Moot problem, p. 24. 40 See, supra, ¶13-16. 41 Moot Problem, p. 32. 42 Allied Maples Group Ltd v Simmons & Simmons [1996] C.L.C. 153; Albion Water Ltd v Dwr Cymru Cyfyngedid [2013]

3 WLUK 785; Baird v Hastings [2015] 5 WLUK 107.


8

circumstances of the negotiation and the attitude of the opposing party were favourable to that

person.43

25. In the present dispute, a substantial chance existed for Champion to extend for another two years.

Firstly, it would have been advantageous for Champion to extend the Next Fixture because a

medium-term charter’s purpose is to escape market volatility and to gain as much profit as

possible.44 Champion had the opportunity to enjoy a fixed rate of USD10,500 per day45 without

being subject to market volatility.46 Further, Champion could enjoy the use of a new Ice-class IA

vessel, which means that it would be less likely for her to have faulty equipment.47 Secondly, the

attitude of Champion was favourable to Claimant, showing that there was a substantial chance of

them extending the Next Fixture. This is evident from Champion willing to conclude the Next

Fixture while the Vessel was still in quarantine and having called recently at an Ebola-affected

port.48

26. Since the Next Fixture was highly-profitable for Champion and Champion’s attitude was

favourable, there exists a substantial chance for the Next Fixture to be extended to four years.

Accordingly, Respondent is liable for the full potential four years of the Next Fixture.49

27. In conclusion, Respondent is liable for the whole loss of the Next Fixture. Respondent had failed

to give an honest estimate of the charter period of ‘about 50-55 days without guarantee’ provided

in the Fixture recap, and therefore Respondent is liable for the losses incurred of missing the Next

Fixture.50 Respondent is also liable for general business profits as they could have reasonably

contemplated the Vessel’s marketability after sailing from Ebola-affected Wahanda51 or at least

43 Davies v Taylor [1974] AC 207; Bright v Barnsley District General Hospital NHS Trust [2004] 11 WLUK 781; Hayes

v South East Coast Ambulance Service [2015] EWHC 18 (QB); Hayden v Maidstone and Turnbridge Wells NHS Trust

[2016] EWHC 3276 (QB). 44 Jie Liu (2001) Chartering policies in the dry bulk market, World Maritime University, pp. 33-35. 45 Moot Problem, p. 32. 46 See fn. 40. 47 Moot Problem, p. 1. 48 Moot Problem, p. 30. 49 Davies v Taylor [1974] AC 207. 50 See supra, ¶8-11. 51 See supra, ¶14-19.


9

would have known a medium-term fixture would take place pursuant to the Chatter account.52

Claimant’s conclusion of the Next Fixture even during quarantine does not render the losses

unrecoverable, as it was made within good reason.53 In addition, Respondent is liable for the full

loss of four years’ worth of profit with the extension of the Next Fixture having a substantial

chance.54 Under these reasons, Respondent is liable through and through for the loss of general

business profits incurred as a result of late redelivery causing Claimant to miss the Next Fixture.

II. RESPONDENT IS LIABLE FOR ALL COSTS IN CONNECTION WITH HCO

28. On 30 June 2016, Respondent redelivered the Vessel to Claimant with her hull severely fouled,55

as evidenced by pictures provided by the Master.56 Pursuant to Clause 83 of the Rider Clauses,

after the Vessel stayed idly in port for over 30 days in non-tropical waters, the Parties shall arrange

a survey to check whether the hull had been fouled. If the hull is proven to be fouled, then

Respondent is obliged to perform HCO.57 If the hull was fouled and Respondent is prevented to

clean the hull, the Parties are to agree on a lump sum amount pursuant to the needs of HCO.58

29. Claimant submits that Respondent had breached their obligations of HCO and is liable for all costs

in relation to HCO because (A) Respondent’s obligations for HCO had arisen pursuant to Clause

83 of the Rider Clauses, (B) Claimant had legitimate interest to continue the Charterparty and

perform HCO at South Island, and (C) in any event, Respondent’s lump sum offers do not rescind

their obligations for HCO.

A. Respondent’s obligations for HCO had arisen pursuant to Clause 83 of the Rider Clauses

30. Clause 83(a) to (c) of the Rider Clauses stipulates that if, under Respondent’s orders, the Vessel

stays idle in port for over 30 days, then Respondent is obliged to perform HCO.59 Respondent may

52 See supra, ¶20-24. 53 See supra, ¶25-27. 54 See supra, ¶28-31. 55 Moot Problem, p. 42. 56 Moot Problem, p. 29. 57 Clause 83 of the Rider Clauses. 58 Clause 83 of the Rider Clauses. 59 Clause 83 of the Rider Clauses.


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argue that they did not order the prolonged stay.60 Although the long stay that led to fouling61 was

caused by detention and not express orders to stay for purposes of trading, Respondent remains

obliged to clean. This is because Respondent had accepted the risk of detention and quarantine as

result of them coming from Ebola-affected West Coast.62

31. Charterers are to bear the risk resulting from their orders.63 In the present dispute, Respondent,

upon ordering the Vessel to sail to Wahanda,64 understood that they would eventually end up in

detention. Multitudes of P&I clubs and governments had given notices and circulars since the 2014

Ebola Crisis that vessels previously calling Ebola-affected ports will be detained and

quarantined.65 Respondent must have known this and therefore had accepted the risk of being

detained and anything in result of it. Since Respondent’s orders had resulted in hull fouling,

Respondent’s obligations for HCO had arisen.

32. Respondent may argue that since the Charterparty is a single-trip time charter, Claimant had

accepted the risk of being detained as shipowners are to have assented to the risk of any ports

specified in the Charterparty.66 In the present dispute, although the Charterparty is a single-trip

time charter,67 Claimant had not accepted the risk of detention at the time of the conclusion of this

Charterparty on 18 March 2016 because the Ebola outbreak had not taken place in West Coast and

thus Respondent may not deny that HCO obligations had arisen.

33. Conclusively, as Respondent decided to keep sailing from West Coast after an Ebola outbreak,

Respondent had accepted risk of being detained which would lead to hull fouling. Consequently,

60 The Pamphilos [2002] 2 Lloyd's Rep. 681; See also Royal Greek Government v Minister of Transport (The Ann

Stathatos) [1949] 83 Ll L Rep 228; The Rijn [1981] 2 Lloyd’s Rep 267 (Q.B.); The Island Archon [1994] 2 Lloyd’s Rep

227. 61 Moot Problem, p. 34. 62 Hyundai Merchant Marine Co Ltd v Furness Withy (Australia) Pty (The Doric Pride) [2005] EWHC 945 (Comm). 63 The Island Archon [1994] 2 Lloyd’s Rep 227; The Pamphilos [2002] 2 Lloyd's Rep. 681; Transgrain Shipping

(Singapore) Pte Ltd v Yangtze Navigation (Hong Kong) Ltd [2017] EWCA Civ 2107. 64 Moot Problem, p. 81. 65 Maritime And Port Authority Of Singapore – Port Marine Circular No. 11 of 2014: Vessels having called at Ebola ports

in last 60 days will be detained; South American P&I Club Circular 01/14: Argentina, Brazil, Uruguay will detain ships

coming from Ebola ports; Panama Canal Advisory to Shipping No. A-22-2014: Vessels who had called at Ebola ports in

last 10 ports of call shall be detained. 66 Hyundai Merchant Marine Co Ltd v Furness Withy (Australia) Pty (The Doric Pride) [2005] EWHC 945 (Comm). 67 Moot Problem, pp. 2-4.


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Respondent’s orders to sail to Wahanda under Ebola conditions fulfils ‘charterers’ orders’ under

Clause 83(a).68 This, and over 30 days’ idle stay in berth,69 leads to the conclusion that Respondent

is in fact obliged to perform HCO.

B. Claimant had legitimate interest to continue the Charterparty and perform HCO at

South Island

34. If a vessel is prematurely redelivered by a charterer before all obligations had been exercised, a

shipowner may refuse the redelivery and keep the charter alive until all or those obligations are

exercised.70 In other words, a shipowner may refuse a premature redelivery if they had legitimate

interest to continue the contract.71

35. In the present dispute, when the Vessel was redelivered on 30 June 2016, Claimant opted to

continue the Charterparty pursuant to the immediate needs of HCO, an obligation Respondent

failed to perform as they redelivered the Vessel without any consideration of the hull being

fouled.72 Accordingly, Claimant is entitled for all costs in relation to HCO as Claimant had

legitimate interest to refuse redelivery and keeping the Charterparty alive as (i) accepting the

redelivery and claiming damages would not be an adequate remedy and (ii) Claimant’s intentions

were not perverse.73

(i) Accepting the redelivery and claiming damages would not be an adequate remedy

36. In cases of premature redelivery, accepting the redelivery and claiming damages would not be an

adequate remedy if the redelivering party had terminated obligations that must be exercised

immediately or otherwise cause injury to the other party.74 In the Aquafaith,75 damages were not

an adequate remedy when a charterer redelivered a vessel prematurely and the court held that

68 Clause 83 of the Rider Clauses. 69 In fact, over 51 days from 7 May to 26 June 2016. 70 The Puerto Buitrago [1976] 1 Lloyd’s Rep 250; The Odenfeld [1978] 2 Lloyd’s Rep 357; The Alaskan Trader (No 2)

[1983] 2 Lloyd’s Rep 645; The Dynamic [2003] 2 Lloyd’s Rep 693; The Aquafaith [2012] 2 Lloyd’s Rep 61. 71 Ibid. 72 Moot Problem, pp. 43-45. 73 The Puerto Buitrago [1976] 1 Lloyd’s Rep 250; The Odenfeld [1978] 2 Lloyd’s Rep 357; The Alaskan Trader (No 2)

[1983] 2 Lloyd’s Rep 645; The Dynamic [2003] 2 Lloyd’s Rep 693; The Aquafaith [2012] 2 Lloyd’s Rep 61. 74 White & Carter v McGregor [1962] A.C. 413; Reichman v Beveridge [2006] EWCA Civ 1659; The Aquafaith [2012] 2

Lloyd’s Rep 61. 75 The Aquafaith [2012] 2 Lloyd’s Rep 61.

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shipowners were entitled to all hire unpaid as shipowners were redelivered into a difficult market

and could not find a substitute fixture.

37. In the present dispute, HCO needed to be exercised immediately in cooperation with Respondent.76

If HCO was not done immediately, Claimant would fail to meet speed and consumption warranties

for future charterers or even cause the hull to be permanently fouled. 77 If speed and consumption

warranties were not met, the Vessel could be declared off-hire in the course of future

charterparties.78

(ii) Claimant’s intentions were not perverse

38. In the Aquafaith,79 a shipowner holding charterers to the contract for not paying the remaining 91

days of hire was not decided as ‘perverse’, because hire is an express and central obligation for

charterers in time charters.80 In the present dispute, the Parties, evidenced by their incorporation

of Clause 83 of the Rider Clauses within the Charterparty, also saw hull fouling as an inherent

threat to ordinary trading, and therefore a central obligation.81 Marine hull fouling is known to

cause vessels to consume much more fuel in order to reach speeds required in a time charter.82 If

such speed and consumption warranties were not fulfilled, shipowners would be held liable and

the vessel declared off-hire.83 Accordingly, Claimant’s intentions were merely to provide a

seaworthy vessel in service for subsequent shipping operations present in the Replacement

Fixture.84

39. Under the standards provided in (i) and (ii), Claimant had legitimate interest to keep the

Charterparty alive and is entitled to all costs in relation to HCO at South Island pursuant to

Claimant’s Final Hire Statement.85

76 Clause 83 of the Rider Clauses. 77 Moot Problem, p. 44 78 The Pamphilos [2002] 2 Lloyd’s Rep 681; Imperator I Maritime Co v Bunge SA (The Coral Seas) [2016] EWHC 1506. 79 The Aquafaith [2012] 2 Lloyd’s Rep 61. 80 Tankexpress v Compagnie Financière Belge des Pétroles (1948) 82 Lloyd’s Rep. 43. 81 Clause 83 of the Rider Clauses. 82 The Pamphilos [2002] 2 Lloyd’s Rep 681; Imperator I Maritime Co v Bunge SA (The Coral Seas) [2016] EWHC

1506. 83 The Pamphilos [2002] 2 Lloyd’s Rep 681. 84 Moot Problem, pp. 30-31. 85 Moot Problem, p. 53.


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C. Respondent cannot rely on lump sum offers to indemnify them from HCO Costs

40. Clause 83(d) of the Rider Clauses stipulates that if Respondent was prevented to clean, then the

Parties are to agree on a lump sum. Respondent stated that their lump sum offers were justified

and therefore they were no longer liable for HCO cost. However, Respondent cannot assert that

their lump sum offers were sufficient as to rescind their obligations of HCO, as (i) Respondent

was not prevented from performing HCO and (ii) alternatively, Clause 83(d) of the Rider Clauses’

lump sum provision is too uncertain to be enforced.

(i) Clause 83(d) of the Rider Clauses was amended

41. On 9 June 2016, both Parties had agreed to vary Clause 83(d) of the Rider Clauses as it was

impossible to perform HCO in Wahanda.86 If there was no specific mechanism to vary a contract,

then it may be varied through any means of acceptance.87 In the present dispute, such conditions

had been met by the Parties through e-mail correspondence.88 Claimant offered to clean at the next

convenient port and Respondent agreed so, stating that they would pay against the original

invoice.89 As a result, the amended terms gave an effect that Claimant would be the party arranging

HCO at the next convenient port and Respondent was the party to pay against any expenses as a

result of it.90

42. Additionally, Respondent is barred from saying otherwise. If a party had agreed to relinquish a

right under a contract, they are barred from demanding that same right in the future.91 Since

Respondent had agreed for all HCO arrangements to be done by Claimant and pay pursuant to

those arrangements, Respondent cannot assert that Claimant’s actions were non-contractual. Aside

from that, Respondent’s lump sums should be well disregarded due to them no longer having the

right to offer them.

86 Moot Problem, pp. 30-31. 87 Rock Advertising Limited v MWB Business Exchange Centres Limited [2018] UKSC 24; Scott v United States [2018]

EWHC 2021 (Admin). 88 Moot Problem, pp. 34-35. 89 Moot Problem, pp. 30-31. 90 Moot Problem, pp. 30-31. 91TCB Ltd v Gray [1986] Ch 621; Spiro v Lintern [1973] 1 WLR 1002; Intense Investments Ltd v Development Ventures

Ltd [2006] EWHC 1586 (TCC); ING Bank NV v Ros Roca SA [2011] EWCA Civ 353.

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43. To conclude, the Parties’ negotiations have come into the effect that the terms of Clause 83(d) had

been amended so that Claimant shall arrange all HCO actions and Respondent to pay any costs

incurred. Consequently, Respondent shall be liable for the entire costs of and in connection with

HCO in South Island.

(ii) Alternatively, Clause 83(d) of the Rider Clauses’ lump sum provision is too uncertain to be

enforced

44. Clause 83(d) of the Rider Clauses has a purpose to settle disagreements for HCO.92 In Associated

British Ports v Tata Steel UK Limited,93 it was established that settlement agreements may only

be enforceable if there was a clear mechanism on how disagreements would be settled. Without a

clear mechanism, neither party could enforce the clause and render the clause or sub-clause void.94

45. In the present dispute, Clause 83(d) of the Rider Clauses merely regulates the obligation of the

Parties to agree on a lump sum if Respondent was prevented to clean.95 It does not regulate how

lump sums are to be offered, on what basis, and what should happen if the Parties cannot come to

agreement. This shows the insufficiency of the mechanism if the Parties had come to disagreement,

as was evidenced by both Parties unable to come to agreement on the lump sum.96

46. Consequently, as Clause 83(d) of the Rider Clauses is unenforceable, Respondent is liable for all

costs in connection with HCO pursuant to Claimant's final hire statements after the Vessel had

been cleaned at South Island.

III. RESPONDENT IS LIABLE FOR COMPOUND INTEREST

47. Pursuant to Section 49(2) of the Arbitration Act 1996, the Tribunal has the authority to award

simple or compound interest in the absence of an agreement. With the non-existence of such

agreement, Respondent requests this Tribunal to readily grant compound interest on the whole part

92 Clause 83 of the Rider Clauses. 93 Associated British Ports v Tata Steel UK Limited [2017] 2 Lloyd's Rep. 11. 94 Cable & Wireless plc v IBM United Kingdom Ltd [2002] 1 All E.R. (Comm) 1041; Emirates Trading Agency v Prime

Mineral Exports Private Ltd [2014] 2 Lloyd’s Law Reports 457; Associated British Ports v Tata Steel UK Limited [2017]

EWHC 694 (Ch). 95 Clause 83 of the Rider Clauses. 96 Moot Problem, p. 42.


15

of damages claimed above. In Man Nutzfahrzeuge AG v Freightliner Ltd,97 it is common for

arbitrators to award compound interest in the exercise of their powers under Section 49(3) of the

Arbitration Act 1996, as simple interest does not fully compensate the injured party for the loss it

suffered. It is also noted that compound interest is not restricted to non-payment of a debt, but also

may be granted upon losses caused by late payment of debt.98 For the reasons mentioned above,

pursuant to Section 49(3) of the Arbitration Act 1996, Respondent shall bear compound interest

to be paid in respect to the whole part of the claimed damages.

SUBMISSIONS ON COUNTERCLAIMS

ARGUMENTS ON THE ADMISSIBILITY OF THE COUNTERCLAIM

IV. RESPONDENT’S COUNTERCLAIM IS TIME-BARRED

48. The Charterparty incorporates the Inter-Club Agreement (“ICA”) by virtue of Clause 53 of the

Rider Clauses and Clause 27 of the NYPE15 Form. Clause 6 of the ICA provides that cargo claims

cannot be brought 24 months after the date of the delivery unless a proper notification had been

sent.99 Although Respondent attempted to give a notification on 27 June and 7 July 2016, Claimant

submits that Respondent is still time-barred as (A) Respondent did not fulfil the requirement under

Clause 6 of the ICA and (B) The notification did not fulfil its commercial purpose.

A. Respondent’s notifications did not fulfil the requirement for claims’ notification under

Clause 6 of the ICA

49. For a notification to be considered proper, they must comply with the requirements laid out in the

relevant claims’ notification clause.100 Clause 6 of the ICA,101 which governs time-bars, stipulates

97 Man Nutzfahrzeuge AG v Freightliner Ltd [2007] EWCA Civ 910; Sempra Metals Ltd v Inland Revenue [2007] UKHL

4; Marsden v Barclays Bank plc [2016] 2 Lloyd’s Rep 420. 98 Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v Inland Revenue Commissioners and another [2008] Bus. L.R.

49. 99 Clause 6 of the ICA provides, “Recovery under this Agreement by an Owner or Charterer shall be deemed to be waived

and absolutely barred unless written notification of the Cargo Claim has been given to the other party to the charterparty

within 24 months of the date of delivery of the cargo or the date the cargo should have been delivered, […] Such

notification shall if possible include details of the contract of carriage, the nature of the claim and the amount claimed.” 100 Forrest v Glasser [2006] 2 Lloyd’s Law Rep 392. 101 Clause 6 of the ICA.


16

that “[…] such notification shall if possible include details of the contract of carriage, the nature

of the claim and the amount claimed.” The word “shall if possible” in the clause entails that

Respondent is to provide all information available to them.102

50. In the present dispute, Respondent only provided the cause of the damage to Cargo and the total

amount of Cargo on board,103 therefore Respondent failed to provide the elements required within

Clause 6 of the ICA.104 Firstly, as the holder of bill of lading, that being the contract of carriage,

Respondent did not provide the details of the bill of lading.105 Secondly, Respondent failed to

provide an estimation of the amount claimed, despite having the knowledge of the possible

amount, during the discussions with the Receivers.106Thirdly, Respondent did not specify the

nature of the claim, which is the basis of the claim pursuant to the Charterparty.107 Conclusively,

Respondent’s notification is improper and therefore Respondent is barred from submitting any

Cargo claim.

B. Respondent’s notification did not fulfil its commercial purpose

51. Respondent may argue that the notification given on 27 June and 7 July 2016 had fulfilled the

commercial purpose.108 However, Respondent’s notification was not sufficient to fulfil the

commercial purpose of a claims’ notification pursuant to the claims’ notification clause that

requires the notification to specify certain matters. Such claims’ notification must both be

sufficiently informative and sufficiently certain that a claim has been made and not a possibility

of a claim may arise, so that the receiver of that notification could to take necessary action to

respond to the claim. 109

102 ROK Plc (in administration) v S Harrison Group Ltd [2011] EWHC (Comm). 103 Moot Problem, p. 46. 104 Clause 6 of the ICA. 105 Moot Problem, p. 49. 106 Moot Problem, p. 57. 107 Laminates Acquisitions v BTR Australia Limited [2004] 1 All ER (Comm) 737 108 Moot Problem, p. 47. 109 Electrical Wholesalers Ltd v Alcatel Submarine Networks Ltd [1999] 2 Lloyd’s Rep 423; IPSOS S.A. v Dentsu Aegis

Network Limited (formerly Aegis Group plc) [2015] EWHC 1171 (Comm); Laminates Acquisitions v BTR Australia

Limited [2004] 1 All ER (Comm) 737; Forrest v Glasser [2006] EWCA Civ 1086.


17

52. In the present dispute, Respondent notification was neither sufficiently informative nor certain for

two reasons. Firstly, the preliminary report attached on the notification dated 7 July 2016 is not

sufficiently informative as it did not contain the amount of the Cargo claim.110 As a result,

Claimant could not take the necessary actions in response to the claim. These necessary actions

include preparing a settlement for Respondent, which would require the exact amount of the Cargo

claim. Secondly, the cargo claim is not certain as it informed that Receiver had not yet made a

claim. 111 Further, there is a substantial possibility of reconditioning the Cargo or selling it in a

damaged condition, 112 as the price of tea in Bao Kingdom was on the rise.113 It would not be wise

for Claimant commercial activity to try and prepare for a claim that might not arise.114

53. Conclusively, under these two reasons, the notification Respondent provided was neither

informative enough as it did not contain the amount claimed nor certain enough that a claim has

been made as the chance to recondition the Cargo or reselling them in a damaged condition exist.

Therefore, Respondent had not made a proper claim’s notification as the notification di not enable

Claimant to take necessary action to respond to the claim and thus Respondent is barred from

claiming Cargo damage.

ARGUMENTS ON THE MERITS OF THE COUNTERCLAIM

V. CLAIMANT IS NOT LIABLE FOR CARGO DAMAGE

54. Respondent’s e-mail on 27 June115 and 7 July 2016116 provided that the Cargo was damaged

because the Vessel’s crew had mistakenly pumped seawater into Cargo Hold No. 2 during

ballasting. Respondent may argue that Claimant should be fully liable or alternatively should be

liable for half of the Cargo damage under the ICA.117 However, Claimant is not liable for the

Cargo damage since (A) Cargo damage falls outside of the scope of Clause 8(a) of the ICA (B)

110 Moot Problem, p. 48. 111 Moot Problem, p. 45. 112 Moot Problem, p. 48. 113 Moot Problem, p. 23. 114 Electrical Wholesalers Ltd v Alcatel Submarine Networks Ltd [1999] 2 Lloyd’s Rep 423. 115 Moot Problem, p. 38. 116 Moot Problem, p. 46. 117 Moot Problem, p. 74.


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the ballasting operation does not fall within the scope of Clause8(b) of the ICA, and (C)

Respondent’s actions had caused the loss per Clause 8(d) of the ICA.

A. Cargo damage falls outside of the scope of Clause 8(a) of the ICA

55. Under Clause 8(a) of the ICA,118 Claimant would be fully liable for cargo damage if the damage

was caused by error in the management of the vessel. However, in the present dispute the damage

was not caused by errors in management of the vessel, but due to the crew’s mishandling of the

ballasting system, which does not constitute error in management of the vessel.

56. There are two types of management aboard a vessel.119 First is the management of cargo, which

encompasses any equipment in relation to the care of cargo. Second is management of the vessel,

which encompasses any equipment in relation to general vessel operations.120 In The Eternity,121

it was held that to determine whether a piece of equipment that could serve dual functions of both

management of cargo and management of vessel, it must be assessed by the primary function of

such equipment.

57. In the present dispute, the ballasting operation which led to Cargo damage falls outside errors in

management of the Vessel pursuant to Clause 8(a) of the ICA since the cause of Cargo damage

was an error in the operation of the Vessel’s valve system, which in turn had caused ballast water

to flood Cargo Hold No. 2.122 Although the primary purpose of ballasting is to stabilise the Vessel

on voyages, the Vessel’s interconnected internal valves allows floodable holds for ballasting

purpose which could be used to prevent cargo damage.123 When performing ballasting operations,

the valves are also used to protect the Cargo by channelling away the seawater from loaded Cargo

118 Clause 8 of the ICA. 119 The Canadian Highlander [1927] 28 Ll. L Rep 88; Ceylon v Chandris [1965] 2 Lloyd's Rep. 204; The Washington

[1976] 2 Lloyd's Rep; Exportadora Valle de Colina SA v AP Moller-Maersk A/S [2010] EWHC 3224 (Comm). 120 Ibid. 121 The Petroleum Oil and Gas Corporation Of South Africa (Pty) Ltd v Fr8 Singapore Pte Ltd (The "Eternity") [2008]

EWHC 2480 (Comm); applied in Cobelfret Bulk Carriers NV v Swissmarine Services SA (The Lowlands Orchid) [2010]

1 Lloyd's Rep. 317. 122 Moot Problem, p. 46. 123 See Clause 64 of the Rider Clauses.


19

holds.124 Since ballasting was done when the Cargo had yet been discharged, then the primary use

of the valves was to prevent seawater from entering Cargo Hold No. 2 and thus protecting the

cargo from any direct damage. Therefore, errors in ballasting is considered as an error in

management of the cargo and not the vessel.

58. Conclusively, the cause of the damaged Cargo is not an error in management of the Vessel.

Therefore, the cause falls outside.

B. Ballasting operations do not fall within Clause 8(b) of the ICA

59. Clause 8(b) of the ICA regulates damages arising out the handling of cargo.125 Although the action

of ballasting is not mentioned in Clause 8(b) of the ICA, Respondent may argue that it falls under

‘other handling of cargo’ as the ballasting system was integrated with the cargo holds and

accordingly should be considered as part of ‘other handling of cargo.’126 Where a clause lists

specific terms and then refers to them in general, the general statement only applies certain terms

within the context of the preceding terms (ejusdem generis).127

60. The preceding terms within Clause 8(b) of the ICA are ‘loading, stowage, lashing, discharge,

storage’ of which all these are aspects of cargo handling strictly for Respondent to perform.128

Accordingly, with the existence of the phrase ‘other handling of cargo,’ Clause 8(b) of the ICA

refers only under handling of cargo that are under charterers’ responsibility. As such, this clause

does not encompass ballasting, as ballasting is Claimant’s responsibility to perform pursuant to

Clause 64 of the Rider Clauses.129 Conclusively, as Cargo damage was caused by ballasting related

124 Robin Hood Flour Mills, Ltd. v N. M. Paterson & Sons, Ltd. (The Farrandoc) [1967] 1 Lloyd's Rep. 232; Papera

Traders Co. Ltd. And Others v Hyundai Merchant Marine Co. Ltd. And Another (Eurasian Dream) (No. 2) [2002] 1

Lloyd's Rep. 719. 125 Clause 8(b) of the ICA stipulates that “Claims in fact arising out of the loading, stowage, lashing, discharge, storage

or other handling of cargo: 100% Charterers unless the words "and responsibility" are added in clause 8 or there is a

similar amendment making the Master responsible for cargo handling in which case: 50% Charterers 50% Owners”. 126 Clause 8 of the ICA. 127 Anderson v Anderson [1895] 1 QB 749; Patience (George) v Mackenzie, [1912] S.C. (J.) 7; Chandris v Isbrandtsen-

Moller Co Inc [1949/50] 83 Lloyd’s Rep 385. 128 Clause 8(a) of NYPE15: “Charterers shall perform all cargo handling, including but not limited to loading, stowing,

trimming, lashing, securing, dunnaging, unlashing, discharging, and tallying,”. 129 Clause 64 of the Rider Clauses.


20

operations and not under any cause mentioned in Clause 8(b) of the ICA, Respondent cannot claim

under Clause 8(b) of the ICA.

C. Respondent’s actions had caused the Cargo damage per Clause 8(d) of the ICA

61. Clause 8(d) of the ICA stipulates that a party shall be fully liable for any cargo damages as a result

of that party’s ‘act or neglect.’130 Respondent may argue that the crew’s action of opening the

wrong valve had caused the loss and Claimant should be held liable as the crew was acting on

behalf of Claimant. However, in Transgrain Shipping v Yangtze Navigation,131 it was held that

charterers’ orders are considered an ‘act’ under Clause 8(d) of the ICA and the charterer is

considered to have accepted the risks in result of their orders.

62. In the present dispute, the ballasting ordered by Respondent, which led to Cargo damage, was

done in preparation of the Vessel’s departure to berth.132 Pursuant Clause 8(a) of NYPE15, the

Master is at all times to follow Respondent’s orders, including orders on when to ballast.133 As

Respondent ordered the ballasting operation before the Cargo had been discharged, Respondent

understood that there is a risk of flooding the Cargo. Accordingly, Respondent had accepted the

risk of any mistake during ballasting.

63. Conclusively, Respondent’s actions had caused Cargo damage and as a result, Respondent is fully

liable for all losses incurred pursuant to Clause 8(d) of the ICA.

VI. THE VESSEL SHALL REMAIN ON HIRE THROUGHOUT THE DETENTION

64. Upon the arrival of the Vessel at Wahanda, she was held at anchorage due to WPS’ suspicion that

the crew may be carrying Ebola.134 As a result, the Vessel was detained for 51 days as WPS found

that a number of crew members had fever.135 Despite the occurrence of a detention, the Vessel

shall remain on hire as (A) the delay for 51 days does not amount to an off-hire event pursuant to

130 Clause 8 of the ICA. 131 The Yangtze Xing Hua [2018] 1 Lloyd's Rep. 330. 132 Moot Problem, p. 46. 133 The Hill Harmony [2001] 1 Lloyd's Rep. 147. 134 Moot Problem, p. 25. 135 Moot Problem, p. 24.


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Clause 17 of NYPE15 and (B) In any event, Respondent had assented to the risk of the Vessel

being detained.

A. The delay for 51 days does not amount to an off-hire event pursuant to Clause 17 of NYPE15

65. Upon the arrival of the Vessel in Wahanda, she was detained for 51 days by WPS due to suspicion

that the Vessel was carrying Ebola.136 Clause 17 of NYPE15 stipulates that in order to deduce the

Vessel off-hire, the Vessel must be prevented from full working and the cause falls under Clause

17 of NYPE15.137 Respondent may argue that the Vessel is off-hire pursuant Clause 17 of

NYPE15.138 However, Claimant submits otherwise as (i) the Vessel was not prevented from full

working and (ii) even if the Vessel was prevented from full working, the cause preventing the full

working does not fall under Clause 17 of NYPE15.

(i) The Vessel was not prevented from full working

66. In order to deduce a vessel as off-hire, she must be prevented from full working.139 ‘Prevented

from full working’ means the inability to perform the service required from the Vessel.140 In The

Aquacharm,141 it was held that if a detained vessel was still able to perform what was required of

her under the charterparty then she is not prevented from full working.

67. In the present dispute, even though the Vessel was detained the Vessel was not prevented from

full working. What was required by Respondent was to discharge the Cargo at Wahanda.142 During

the detention, Respondent could have ordered a transhipment in order to discharge the Cargo at

Wahanda. Firstly, the Vessel was equipped with two cranes which would enable transhipment.143

136 Moot Problem, pp. 24-25. 137 Clause 17 of NYPE15. 138 The Mareva AS [1977] 1 Lloyd’s Rep 368; The Apollo [1978] 1 Lloyd’s Rep 200; The Aquacharm [1982] 1 Lloyd’s

Rep 7; The Mastro Giorgis [1983] 2 Lloyd’s Rep 66; The Roachbank [1987] 2 Lloyd’s Rep 498; The Laconian Confidence

[1997] 1 Lloyd’s Rep 139; The Athena [2013] 2 Lloyd’s Rep 673. 139 Royal Greek Government v Minister of Transport (The Illissos) [1949] 1 KB 7 (Court of Appeal); The Apollo [1978] 1

Lloyd’s Rep 200; The Aquacharm [1982] 1 Lloyd’s Rep 7; The Mastro Giorgis [1983] 2 Lloyd’s Rep 66; The Roachbank

[1987] 2 Lloyd’s Rep 498; The Laconian Confidence [1997] 1 Lloyd’s Rep 139; The Athena [2013] 2 Lloyd’s Rep 673. 140 The Aquacharm [1982] 1 Lloyd’s Rep 7. 141 Ibid. 142 Moot Problem, pp. 2-4. 143 Moot Problem, p. 3.


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Secondly, WPS did not restrict the performance of transhipment.144 Conclusively, the Vessel was

not prevented from full working and accordingly the Vessel shall be on hire throughout the

detention period.

(ii) Even if the Vessel was prevented from full working, the cause preventing the full working

does not fall under Clause 17 of NYPE15

68. Assuming but not conceding that the Vessel was prevented from full working, the foregoing cause

does not fall under Clause 17 of NYPE15 as (a) the detention does not fall under ‘detention by

Port State control for Vessel deficiencies’ and (b) alternatively, the detention by WPS does not

fall under ‘any other similar cause preventing the full working of the Vessel.’

(a) The detention does not fall under ‘detention by Port State control for Vessel deficiencies’

69. ‘Detention by Port State control for Vessel deficiencies,’ is a cause of off-hire in Clause 17 of

NYPE15. Since Wahanda applies Hong Kong law,145 Respondent may argue that the Hong Kong

Regulations146 would impose detentions to vessels lacking free pratique. However, Claimant

submits that Section 3.1 of IMO Resolution A.1052(27) (“IMO Resolution”), in force by Hong

Kong’s IMO membership,147 provides the guidelines applicable in Wahanda for identifying a

deficient vessel.148 The causes in Section 3.1 of IMO Resolution, inter alia, include insufficiency

of operational proficiency, or unfamiliarity of essential operational procedures by the crew; and

insufficiency of manning or certification of seafarers. Neither of these include the absence of free

pratique as a deficiency.

70. In the present dispute, although the Vessel did not have free pratique upon the arrival in Wahanda,

the absence of free pratique is not considered a deficiency.149 Additionally, the detention was not

initially caused by the absence of free pratique, but a suspicion of Ebola, which is not included in

144 Section 52 of Prevention and Control of Disease Regulation Cap. 599, section 7, L.N. 203 of 2008; Wahanda applies

Hong Kong laws, see Moot Problem, p. 81. 145 Moot Problem, p. 81. 146 Section 51 of Prevention and Control of Disease Regulation Cap. 599, section 7, L.N. 203 of 2008. 147 List of Member States and Associate Members of IMO

<http://www.imo.org/en/About/Membership/Pages/MemberStates.aspx> accessed on 27 April 2019 148 Moot Problem, p. 81. 149 Section 3.1 of IMO Resolution A.1052(27).

http://www.imo.org/en/About/Membership/Pages/MemberStates.aspx


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IMO Resolution A.1052(27). Conclusively, with the detention not a result of Vessel deficiencies,

the Vessel shall be on hire throughout.

(b) Alternatively, the detention by WPS does not fall under ‘any other similar cause preventing

the full working of the Vessel’

71. If the phrase ‘by any other similar cause’ is present, then the ejusdem generis150 rule applies in

accordance with mentioned causes in Clause 17 of NYPE15.151 Accordingly, a Vessel cannot be

held off-hire if the cause of off-hire was an extraneous cause, unless the Parties specifically agreed

to include extraneous causes as a cause of off-hire.152 An extraneous cause is any cause preventing

the vessel from full working that does not originate from the inner-workings of the vessel itself.153

72. In The Laconian Confidence,154 detention by port authorities was held as an extraneous cause.

Even though The Laconian Confidence was prevented from full working, she was on hire as the

detention by port authorities was not ‘of the same kind’ with the named causes. As such, a cause

not mentioned in Clause 17 of NYPE15 can lead to an off-hire event if the foregoing cause is ‘of

the same kind’ with the mentioned causes.

73. In the present dispute, Respondent may argue that Clause 17 of NYPE15 shall include extraneous

causes by seeing the phrase ‘detention by Port State control […] for Vessel deficiencies.’ However,

vessel deficiencies only encompass the deficiencies of inner-workings of the Vessel such as a

defect hull, machinery, and seafarer competency certification.155 The cause preventing the full

working of the Vessel is a suspected Ebola infection among the crew which is an extraneous cause

that is not related to the inner-workings of the Vessel.156 Accordingly, as the events do not fall

150 See supra, ¶59. 151 The Roachbank [1987] 2 Lloyd’s Rep 498; Terence Coghlin, et. al., Time Charters 7th edition (2014), page 450 ¶25.37. 152 The Apollo [1978] 1 Lloyd’s Rep 200; The Aquacharm [1982] 1 Lloyd’s Rep 7; The Mastro Giorgis [1983] 2 Lloyd’s

Rep 66; The Roachbank [1987] 2 Lloyd’s Rep 498; The Laconian Confidence [1997] 1 Lloyd’s Rep 139; The Jalagouri

[2003] 1 Lloyd’s Rep 515; The Athena [2013] 2 Lloyd’s Rep 673. 153 Ibid. 154 The Laconian Confidence [1997] 1 Lloyd’s Rep 139. 155 Section 3.1 of IMO Resolution A.1052(27); Additionally, see supra, ¶80. 156 The Apollo [1978] 1 Lloyd’s Rep 200; The Laconian Confidence [1997] 1 Lloyd’s Rep 139.


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under ‘any other similar cause preventing the Vessel from full working,’ the Vessel shall be on-

hire throughout.

B. In any event, Respondent had assented to the risk of the Vessel being detained

74. Respondent may argue that Claimant had assented to the risk of detention in Wahanda as the

Charterparty is a single-trip time charter. 157 However, a party cannot be held liable for risks they

had not assented to.158 In this regard, Claimant submits that Claimant could only assent to risks

that were known to them at the time of conclusion.159

75. In the present dispute, the risk of detentions as a result of Ebola had only taken place after the

initial Charterparty was concluded. 160 As such, Claimant could not have assented to the risk of

detentions for Ebola. Even though there is an Ebola outbreak in West Coast, Respondent persisted

in sailing from West Coast to Wahanda161, which leads to the Vessel being detained in

Wahanda.162 Respondent, as a commercial man, understood that sailing from an Ebola-affected

port, would expose the risk of Vessel being detained.163 Accordingly, Respondent had assented to

the risks of the Vessel being detained.

76. Additionally, Respondent may argue that the Vessel shall be off-hire as Claimant could have

refused the voyage from West Coast to Wahanda to avoid state sanctions,164 pursuant to Clause

46 of NYPE15.165 However, Claimant submits that the Vessel shall remain on hire. Claimant did

not refuse the voyage from West Coast to Wahanda as Respondent has assented to the risks of the

Vessel being detained.

157 Hyundai Merchant Marine Co Ltd v Furness Withy (Australia) Pty (The Doric Pride) [2005] EWHC 945 (Comm). 158 The Island Archon [1994] 2 Lloyd’s Rep 227; The Pamphilos [2002] 2 Lloyd's Rep. 681; Hyundai Merchant Marine

Co Ltd v Furness Withy (Australia) Pty (The Doric Pride) [2005] EWHC 945 (Comm); Transgrain Shipping (Singapore)

Pte Ltd v Yangtze Navigation (Hong Kong) Ltd [2017] EWCA Civ 2107. 159 The Island Archon [1994] 2 Lloyd’s Rep 227; The Pamphilos [2002] 2 Lloyd's Rep. 681; Transgrain Shipping

(Singapore) Pte Ltd v Yangtze Navigation (Hong Kong) Ltd [2017] EWCA Civ 2107. 160 Moot Problem, p. 2, 22. 161 Moot Problem, p. 81. 162 Moot Problem, pp. 24-25. 163 These ports will detain vessels who have called ports in these countries in the last number of days: Singapore: 60 days

(Maritime And Port Authority Of Singapore – Port Marine Circular No. 11 of 2014); Argentina: 30 days, Brazil: 21 days,

Uruguay: 21 days (Re: South American P&I Club Circular 01/14 – Ebola - South American Countries). 164 Kuwait Oil Tanker Co SAK & Anor. v Qabazard [2002] EWCA Civ 34; Blue Sky One Ltd v Mahan Air [2009] EWHC

3314 (Comm); Five Oceans Salvage Consultants Ltd v Perla Navigation Ltd [2013] EWHC 4055 (Comm); Summit

Navigation Ltd v Generali Romania Asiguarare Reasiguarare SA [2014] EWHC 398 (Comm). 165 Clause 46 of NYPE15.


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77. Conclusively, as Claimant had not assented to the risk of being detained as a result of a suspected

Ebola infection, the Vessel shall not be deduced as off-hire.

PRAYERS FOR RELIEF

For reasons submitted above, Claimant respectfully requests this Tribunal to:

ADJUDGE that Respondent is liable to Claimant for:

(1) All costs in connection with HCO at USD96,567.42 or alternatively, limited to USD33,000;

(2) Damages for late re-delivery and missing the Next Fixture at USD15,330,000.00 (loss of hire

under the Next Fixture, calculated as 4 years at USD10,500 per day).

Further

DECLARE that Respondent’s cause of action for cargo claims are extinguished by time-bar;

Further

ADJUDGE that Claimant is not liable to the Respondent for:

(1) Funds that were paid in hire during time in detention between 7 May 2016 and 26 May 2016 at

USD350,000; and

(2) All Cargo lost as a result of the flooding of Cargo Hold No. 2 as awarded in a further award in

damages.

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