UNIVERSITAS GADJAH MADA - Murdoch · PDF fileCheikh Boutros Selim El-Khoury et al v Ceylon...

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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

UNIVERSITAS GADJAH MADA

TEAM NO. 9

MEMORANDUM FOR RESPONDENT

ON BEHALF OF AGAINST

LESS DEPENDABLE TRADERS PTE WESTERN TANKERS INC

RESPONDENT CLAIMANT

COUNSEL

ALDIO PRIMADI AGUNG ROSA MAHESWARI HEZA RAMANDA

JOHANNA DEVI KEVIN CARLOS RAISSA YURIZZAHRA

TEAM NO. 9 MEMORANDUM for RESPONDENT

i

TABLE OF CONTENTS

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

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

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

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

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

ACCORDANCE WITH SINGAPOREAN LAW ................................................................................. 3

A. THE SEAT AND APPLICABLE LAW IN THE ARBITRATION CLAUSE WAS MADE WITHOUT

PARTIES‘ MUTUAL CONSENT ........................................................................................................... 3

B. SINGAPORE SHALL BE THE SEAT OF ARBITRATION SINCE IT SATISFIES THE RELEVANT

FACTORS IN DECIDING THE SEAT OF ARBITRATION ......................................................................... 5

C. THE CONTRACT OF CARRIAGE IS MOST CLOSELY CONNECTED WITH SINGAPORE INSTEAD

OF UNITED KINGDOM, WHICH DETERMINES WHICH LAW TO APPLY ............................................... 6

II. THE TRIBUNAL IS INCOMPETENT TO HEAR CLAIM RELATING TO TORT OF FRAUD .... 7

A. THE LANGUAGE OF THE ARBITRATION AGREEMENTS PROHIBITS THE TRIBUNAL TO

ADJUDICATE TORTIOUS CLAIM. ....................................................................................................... 7

B. THE NEXUS BETWEEN THE TORTIOUS CLAIM AND CONTRACTUAL CLAIM IS DISTANTLY

CONNECTED. .................................................................................................................................... 8

MERITS ........................................................................................................................................... 9

III. ASA2 IS NOT AN AGENT OF RESPONDENT. .................................................................... 9

A. ASA2 HAS NO AUTHORITY TO ACT ON BEHALF OF RESPONDENT ................................... 10

a. ASA2 has no actual authority ..................................................................................... 10

b. ASA2 has no apparent authority ................................................................................. 11

B. ADDITIONALLY, RESPONDENT‘S CONDUCT DOES NOT AMOUNT TO RATIFICATION ........ 12

IV. RESPONDENT IS NOT LIABLE FOR THE DETRIMENT SUFFERED BY CLAIMANT ........ 14

A. RESPONDENT IS NOT LIABLE FOR THE DAMAGES OF THE VESSEL SINCE THE ELEMENTS OF

TORT OF FRAUD HAVE NOT BEEN SATISFIED. ............................................................................... 14

B. CLAIMANT IS AT FAULT FOR PROVIDING AN UNSEAWORTHYVESSEL ............................... 16

i. The Vessel was unseaworthy due to the incompetency of The Master ....................... 17

ii. The failure of Master to comply with anti-piracy precaution..................................... 18

V. RESPONDENT’S REFUSAL IN PAYING THE HIRE OF THE VESSEL IS JUSTIFIABLE ....... 20


ii

A. THERE WAS NO HIRE DUE ON 3 JULY 2014 ..................................................................... 20

B. THE CHARTERPARTY WAS FRUSTRATED BY NO LATER THAN 4 JULY 2014 .................... 21

i. Valid frustrating event has been occurred ................................................................. 21

ii. Consequently, frustration exempts Respondent obligation ........................................ 23

C. THE VESSEL WAS OFF-HIRE FROM 4TH

JULY 2014 ........................................................... 24

i. Master has exercised breach of order ........................................................................ 24

ii. Master has exercised neglect of duty .......................................................................... 24

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


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


iv

INDEX OF AUTHORITIES

Cases ……………………………………………………………………………Referred in page

AA (Nigeria) v. Secretary of State for the Home Department [2010] EWCA Civ 773 ................ 15

Actis Ltd. v. The Sanko Steamship Ltd („TheAquacharm‟) [1982] 1 Lloyd's Rep. 7…..……...…17

Aggeliki Charis Compania Maritima SA v. Pagnan SpA ('The Angelic Grace‟) [1994] 1 Lloyd‘s

Rep. 168, [1995] 1 Lloyd‘s Rep 87……………………………………………….......................8,9

Alfred C Toepfer Schiffahrtsgesellschaft GmbH v. Tossa Marine Co Ltd ('The Derby') [1985] 2

Lloyd‘s Rep 325 ........................................................................................................................ 16

Armagas Ltd v. Mundogas ('The Ocean Frost') [1985] UKHL 11, [1986] AC 717 .................. 9,12

Asghar and Ors v. Legal Services Commission [2004] unreported ................................................ 8

Ashville Investments Ltd v. Elmer Contractors Ltd [1989] QB ..................................................... 7

Avon Insurance plc v. Awire Fraser ltd [2000] Llyod‘s Rep IR 535 ........................................... 16

Bank Line Ltd. v. Arthur Chapel & Co [1919] AC 435 ................................................................ 23

Beattie v. Lord Ebury [1872] LR 7 Ch App 777 ........................................................................... 15

Blane Steamships v. Minister of Transport [1951] 2 K.B. 965 ..................................................... 21

Branwhite v. Worcester Works Finance Ltd [1969] 1 AC ............................................................ 10

Bulk Ship Union SA v. Clipper Bulk Shipping Ltd ('The Pearl C') [2012] 2 Lloyd‘s Rep. 533 ... 24

Capital Trust Investment v. Radio Design [2002] YCA ................................................................. 8

Cheikh Boutros Selim El-Khoury et al v Ceylon Shipping Lines Ltd („The Madeleine‟) [1967] 2

Lloyd‘s Rep. 224………………………………………………………………………………...17

Ciampa and Ors v. British India SN Co [1915] 2 KB 774……………………………………....17

Civil Service Co-operative Society of Victoria Ltd v. Blyth [1914] 17 CLR 601 ......................... 15

Compagnie d‟Armement Maritime v. Campagnie Tunisienne de Navigation [1971] A.C. 572 ..... 6

CompaniaNaviera General SA v. Kerametal Ltd.('The Lorna I') [1983] 1 Llyod‘s Rep. 373 ..... 23

Cramaso LLP v. Ogilvie-Grant, Earl of Seafield and Others [2014] UKSC 9 .............................. 9

Davis Contractor Ltd v. Fareham U.D.C. [1956] A.C. 696 ................................................... 22, 23

De Bussche v. Alt [1878] 8 Ch D 286 ........................................................................................... 13

Denmark Production Ltd. v. Boscobel Productions Ltd. [1969] 1 QB 699 .................................. 22

Denny Mott & Dickson v. James B. Fraser & Co Ltd [1944] A.C. 154 ....................................... 21

http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/1985/11.html


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Dermajaya Properties Sdn Bhd v. Premium Properties Sdn Bhd [2002] 1 SLR(R) 492 ............... 6

Dodds v. Walker [1981] 1 WLR 1027 .......................................................................................... 21

Edgington v. Fitzmaurice [1885] 29 Ch D 459 ............................................................................. 15

Edwinton Commercial Corporation and Global Tradeways Ltd v. Tsavliris Russ Ltd ('The Sea

Angel') [2007] EWCH 1713 ................................................................................................. 22,23

El Nasharty v. J Sainsbury Plc [2004] 1 All ER (Comm.) ............................................................. 8

Eridania S.P.A. et al v. Rudolf A. Oetker et al („The Fjord Wind‟) [2000] 2 Lloyd's Rep. 191...17

ET Plus SA v. Welter [2006] 1 Lloyd‘s Rep. 251 ........................................................................... 8

F.C. Bradley & Sons Ltd v. Federal Steam Navigation Co. [1926] 24 Ll.L.Rep 446 ............. 17,19

FibrosaSpolkaAkcyjna v. Fairbairn Lawson Combe Barbour Ltd. [1943] AC 32 ....................... 23

Fiona Trust & Holding Corporation &ors v. Yuri Privalov&ors.[2007] EWCA Civ 20 .............. 8

First Energy (UK) Ltd v. Hungarian International Bank Ltd [1993] 2 Lloyd‘s Rep 194 ............ 12

Freeman & Lockyer v. Buckhurst Park Properties Ltd [1964] 2 QB 480, 1 All ER ......... 10,11,12

Garnac Grain Co Inc v. H.M.F. Faure & Fairclough Ltd [1968] AC1130 ................................. 10

Globe Master Management Ltd. v. Boulos Gad Ltd [2002] ......................................................... 22

Goldsmith v. Rodger [1962] 2 Lloyd‘s Rep 249 ........................................................................... 16

Hely-Hutchinson v. Brayhead Ltd [1968] 1 QB 549 .................................................................... 12

HirjiMulji v. Cheong Yue SS Co ('The Singaporean') [1926] A.C. 497 ....................................... 21

Holland v. Lampen-Wolfe [2000] 1 WLR 1573.............................................................................. 8

Hongkong Fir Shipping Co. Ltd. v Kawasaki Kisen Kaisha Ltd., [1961] EWCA Civ 7, [1962] 2

QB 26 ................................................................................................................................... 16,18

Hyundai Merchant Marine Co Ltd v. American Bulk Transport Ltd („The Pacific Champ‟) [2013]

EWHC 470 .................................................................................................................................. 3

ING RE (UK) Limited v. R & V Versicherung AG [2006] EWHC 1544 ...................................... 13

Intercontainer Interfrigo SC (ICF) v. Balkenende Oosthuizen BV [2009] EUECJ C-133/08_O ... 7

Izodia v. RBS International [2006] JRC 111 ........................................................................... 12,13

J. Lauritzen A.S. v. Wijsmuller B.V (The Super Servant Two) [1990] 1 Lloyd‘s Rep.1 .......... 21,23

Joseph Constantine S.S Line Ltd v. Imperial Smelting Corp Ltd ('The Kingswood') [1942] AC

154 ....................................................................................................................................... 21, 23

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

Rep. 147 .................................................................................................................................... 24


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Kleinwort Benson Ltd. v. Malaysia Mining Corp., [1989] 1 All E.R. 785 ................................... 15

Kuwait Petroleum Corporation v. I & D Oil Carriers Ltd ('The Houda')[1994] 2 Lloyd‘s Rep.

541 ............................................................................................................................................ .17

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

193 ............................................................................................................................................. 18

Leni Gas and Oil Investments Ltd and another v. Malta Oil Pty Ltd and another [2014] EWHC

893 ............................................................................................................................................. 15

Lewis v. Read [1845] 13 M & W 834 ........................................................................................... 13

Maritime National Fish Ltd v. Ocean Trawlers Ltd [1935] A.C. 524 .................................... 21, 23

McFadden v. Blue Star Line [1905] 1 K.B. 697 ........................................................................... 17

Midwest Shipping Co. v D. I. Henry ('The Anastasia')[1971] 1 Lloyd‘s Rep. 375 ................ 17, 18

National Carriers Ltd. v. Panalpina (Northern) Ltd. [1981] AC 675 .......................................... 23

Ocean Tramp Tankers Corporation v. V/O Sovfracht ('The Euginia') [1964] 2 QB 226.........….22

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

1 All ER 34 .......................................................................................................................... 22, 23

Papera Traders Ltd. et al v. Hyundai Merchant Marine et al('The Eurasian Dream') [2002]

EWHC 118 ............................................................................................................................... 18

Paragon Shipping Pte Ltd v. Freight Connect (S) Pte Ltd [2014] SGHC 165 ............................... 5

Peter Cassidy Seed Co. Ltd. v. Osuustukkuk-Auppa Ltd. [1957] 1 WLR 273…………………..22

Pioneer Shipping Ltd. v. B.T.P. Tioxide Ltd. ('The Nema') [1982] AC 724 ................................. 23

Premium Nafta Products Limited and others v. Fili Shipping Company Limited and others

[2007] UKHL 40 ......................................................................................................................... 7

Rama Corp. Ltd v. Proved Tin and General Investments Ltd [1952] 2 QB 147 .......................... 12

Rose & Frank Co v. JR Crompton & Bros Ltd [1924] UKHL 2 .................................................... 3

Sean Lindsay v. Jared O‟Loughnane [2010] EWHC 529 (QB) ................................................... 14

SEB Trygg Holding Aktiebolag v. Manches & Ors [2005] EWHC 35 .................................... 12,13

Standard Oil v. The Clan Line Steamers [1924] AC 100 ............................................................. 17

Sulamerica v. Enesa [2012] EWCA Civ 638 .................................................................................. 6

Targe Towing Ltd v. Marine Blast Ltd [2004] 1 Lloyd‘s Rep 721 ............................................... 10

The Orinoco Star [2014] SGHCR 19 ............................................................................................. 5

The Makedonia [1962] 1 Lloyd‘s Rep. 316 .................................................................................. 17


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The Playa Larga [1983] 2 Lloyd Rep. 171 ..................................................................................... 8

TW Thomas & Co. v. Portsea Steamship Company [1912] A.C. 1 ................................................ 4

UBS AG & Anor v. Kommunale Wasserwerke Leipzig GMBH [2014] EWHC 3615................... 10

Wales v. Wadham [1977] 1 W.L.R. 199 ....................................................................................... 15

Walton Harvey Ltd. v. Walker &Homfrays Ltd. [1931] 1 Ch 274; ............................................... 22

Wealands v. CLC Contractors [1999] 2 Lloyd‘s Rep. 739 ............................................................ 8

Yasuda Fire & Marine Insurance Co of Europe Ltd v. Marine Insurance Underwriting Agency

Ltd [1995] QB 174 .................................................................................................................... 10

Books

Anson, William. Knowlton, Jerome.Principles of the English Law of Contract and of Agency in

Its Relation to Contract (4th

Ed; 1887) ...................................................................................... 15

Bowstead, William et al.Bowstead and Reynolds on Agency (1st Supplement to the 19

th Ed;

2012).......................................................................................................................................... 13

Campbell, Dennis. International Agency and Distribution Law (2nd

Ed; 2011) .......................... 10

Carter, JW. The Construction of Commercial Contracts (2013) .................................................... 3

Coghlin, Terrence et al.Time Charters (6th

Ed; 2008),(7th

Ed; 2014) ........................................ 4,22

Curtis, Simon.The Law of Shipbuilding Contracts (2014) ............................................................. 7

Bester, D.H. The Scope of an Agent‟s Power of Representation (1972) 89 SALJ 49, 50 ....... 10,12

Fouchard, Philippe et al. Fouchard, Gillard, Goldman on International Commercial Arbitration

(1999) ...................................................................................................................................... 3, 6

G. H. L. Fridman.The Law of Agency (7th

Ed;1996) ..................................................................... 12

Harris, Bruce et al. The Arbitration Act 1996: A Commentary-Wiley-Blackwell (2007) ............... 8

Hodgkinson, Sandra L. Current Trends in Global Piracy: Can Somalia‟s Successes Help Combat

Piracy in the Gulf of Guinea and Elsewhere? (Case Western Reserve Journal of International

Law, Vol. 46, 2013) .................................................................................................................. 19

Beale, Hugh. Chitty on Contracts 31st

ed: Volume 1 (General Principle) with 2nd

Supplement

(2014). ....................................................................................................................................... 22

Cooke, Julian et al.Voyage Charters (4th

Ed;2014). ....................................................................... 7

Munday, Roderick. Agency: Law and Principles (1st Ed; 2010) .................................................. 10

Pollock, Frederic.Principles of Contract at Law and in Equity (7th

Ed;1906) ............................. 15


viii

Redfern, Alan et al. Law and Practice of International Commercial Arbitration (4th

Ed; 2004) .. 3

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

Ed; 2001) .......... 3

Stuhmcke, Anita, Essential Tort Law, (2nd

Ed; 2001) .................................................................. 17

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

(2nd

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

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

Captains and Managements (2006) .......................................................................................... 18

Rules

English Arbitration Act 1996 .......................................................................................................... 5

English Fraud Act 2006 ................................................................................................................ 16

Rome Convention 1980 .............................................................................................................. 6, 7

Singapore International Arbitration Act ......................................................................................... 5

UNCITRAL Model Law on International Commercial Arbitration ............................................... 5

UNCITRAL Notes on Organizing Arbitral Proceedings ................................................................ 5

Miscellaneous

BBC Chartering Terms……………………………………………………………………….…21

Best Management Practices for Protection against Somali Based Piracy (Version 4,

2011)…………………………………………………………………………………………19, 20

Cost of Living Comparison Between Singapore and London<http://www.numbeo.com/;

http://www.expatistan.com/> ...................................................................................................... 6

Elton & Sons Chartering Definitions<http://www.eltonandsons.com/definitions.html>, ............ 21

International Maritime Organization (IMO) MSC.1/Circ.1339 ................................................... 19

International Maritime Organization (IMO) MSC.4/Circ.177, Reports on Acts of Piracy and

Armed Robbery Against Ships, 2011 ......................................................................................... 19

Is a Promise to Perform Some Future Act a Statement of Fact?.(University of Pennsylvania Law

Review and American Law Register, Vol. 57, No. 5, Volume 48 New Series, 1909) ............. 15

New York Convention Countries<http://www.newyorkconvention.org/contracting-states/list-of-

contracting-states> ...................................................................................................................... 6

SC Line Chartering Definitions <http://www.scline.com/esp/chartering/chartering_c-

e.html>…...……………………………………………………………………………………21


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Statutory Instrument 1994 No. 1900<http://www.secola.org/db/1_01/ums_gb2.pdf> .................. 6

The Maritime Safety Committee Resolution MSC.324(89)………………………………...…..19

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

Resolution 1897 (2009), S/2010/556, 27 October 2010 ............................................................ 19


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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 THE 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


1

STATEMENT OF FACTS

THE PARTIES

1. Less Dependable 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, with

re-delivery in the Mediterranean Area.

3. On 30th

May 2014, Respondent sent a Voyage Orders for the Master of the Vessel -

Captain Stellios (―Master‖). The Voyage Orders concluded i.e, incident reporting, daily eta

updates, noon reports, and master‘s obligation to ignore any voyage-related instruction by third

party and to immediately refer such instruction to Charterer for handling.

4. 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 clear statement that it was not keen on London

Arbitration due to the inconveniency during the Respondent‘s recent dispute settlement.

ALLEGED AGENT

6. The Charterparty appoints Atlantic Services Agency (―ASA‖) as the disports agent in

Luanda. On 28th

June 2014, however, the Master blatantly followed instruction from unknown

party – Captain Anya (―ASA2‖) - and never confirmed it to Respondent.

RESPONDENT‘S REPRESENTATION

7. Respondent is willing to provide the supply bunkers as requested by the Master. It was

Respondent‘s true intention to provide the full supply of bunkers in STS Area 1, however, since


2

there was an alternative bunker supply passing around Durban or Cape Town, Respondent

notified the Master of its existence.

8. On 28th

June 2014, Respondent advised the Master to proceed to STS Area 1 for the

discharge and the re-bunker. The Master confirmed its arrival will be on 4th

July 2014. On 4th

of

July, however, the Master arrived at the location that has not ever been nominated by the

Charterers before.

UNSEAWORTHINESS OF THE VESSEL

9. On 27th

May 2014, 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. On 3rd

June 2014, the Ops and Safety Department

requires several equipment in order to reinforce the equipment of the Vessel, those equipments

however, never arrived to the Vessel.

10. As the result of following illegitimate instruction and lacking of proper equipment, the

Vessel was hijacked by the pirates and missing from 4th

July 2014 until 17th

July 2014.

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

PAYMENT OF THE VESSEL

11. The Charterparty does not stipulate the exact due date for the payment of the Vessel. On

3rd

July 2014, Claimant requested the second payment of the Vessel. Respondent reject such

request since the deadline for the payment shall fall on 4th

July 2014.

12. On 4th

July 2014, Respondent placed the Vessel off-hire due to the breach of order and/or

neglect of duty of the Master.


3

ARGUMENT

JURISDICTION

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

ACCORDANCE WITH SINGAPOREAN LAW

13. It is Respondent submission that an arbitrator‘s authority to resolve a dispute shall be

based on Parties‘ consent.1 In this case, the London Arbitration Agreement shall not apply since

it was made without the Parties‘ mutual consent [A]. Therefore, Singapore shall be the seat of

arbitration since it satisfies the relevant factors in deciding the seat of arbitration [B], and the

Contract of Carriage is most closely connected with Singapore instead of England, which

determines which law to apply [C].

A. The Seat and Applicable Law In The Arbitration Clause Was Made Without

Parties’ Mutual Consent

14. The London Arbitration Agreement is concluded in Shelltime4 as standard form of

Charterparty.2 However, Respondent submits that the selection of the seat and applicable law in

the arbitration agreement shall be based on parties‘ mutual consent,3 in which the common

intention of parties is paramount.4 The true intention of parties shall always prevail over what the

contract stipulates.5 When parties fail to reach mutual consent, the seat and law applicable

designated in the standard form of Charterparty shall not apply.6

1 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 2 Case File, p. 5; Shelltime 4, Cl. 46 3 Redfern, Alan et al.Law and Practice of International Commercial Arbitration (4th Ed; 2004) ¶ 16.1 4 Weigand, Frank-Bernd.Practitioner‟s Handbook on International Commercial Arbitration (2nd Ed; 2010)¶ 1.172;

Rose & Frank Co v. JR Crompton & Bros Ltd [1924] UKHL 2 (Atkin LJ); Carter, JW. The Construction of

Commercial Contracts (2013)¶ 9-25 5 Fouchard, Philippe et al. Fouchard, Gillard, Goldman on International Commercial Arbitration (1999)¶ 477 6 Hyundai Merchant Marine Co Ltd v. American Bulk Transport Ltd („The Pacific Champ‟) [2013] EWHC 470

(Eder J)

http://www.bailii.org/uk/cases/UKHL/1924/2.html

http://www.bailii.org/uk/cases/UKHL/1924/2.html


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15. In the present case, Respondent submits that the Parties never intended to have arbitration

in London and in accordance with English law. Respondent had made clear statement that

Respondent is ―not keen on London arbitration‖.7 This indicates Respondent‘s unequivocal

intention not to arbitrate in London, precluding an intention between both Parties to arbitrate in

London.

16. Additionally, Respondent never consented to London Arbitration Agreement through

lifting the subjects of the fixture recap. The expression of ―Charterers have lifted their

management subjects [...] now pleased to include fully fixed recap‖ on the Fixture Recap‘s

subject8 merely infers Respondent‘s consent on the terms in regard with rate and delivery,

9 which

does not include Respondent‘s consent towards the seat and law in the Arbitration Agreement.10

Thus, since London arbitration and English law are not mutually intended by the Parties, the seat

and applicable law in the Arbitration Agreement shall not apply in this dispute.

17. Alternatively, Respondent submits that the expression “All disputes arising out of this

charter shall be referred to Arbitration in London [...]‖11

in the Arbitration Agreement does not

amount to the choice of London as juridical seat of arbitration.12

In the case of Braes of Doune v

Alfred McAlpine,13

Akenhead J decided that even the express reference to Glasgow to be the

place of arbitration did not amount to a choice of Glasgow as the juridical seat of

the arbitration, but only of the place where hearings would physically take place. Likewise, the

7 Case File, p. 2 8 Case File, p. 5;Procedural Order 2, ¶ 20 9 Case File, p. 2; Coghlin, Terrence et al. Time Charters(6th Ed; 2008), ¶ 1.11 10 TW Thomas & Co. v. Portsea Steamship Company [1912] A.C. 1 (Lord Loreburn) 11 Shelltime4, Clause 46(b) 12Enercon GmbH Wobben Properties GmbH v Enercon (India) Ltd [2012] EWHC 689 (Comm) (MrEdey QC);

Coghlin, Terrence et al. Time Charters(6th Ed; 2008) ¶38.198-201 13Braes of Doune v. Alfred McAlpine [2008] 1 Lloyd's Rep.608 (Akenhead J)


5

expression ―Arbitration in London‖ shall only appoint London to be the place where the

arbitration is to be heard. Therefore, there is absence of the choice of seat of arbitration.

B. Singapore Shall be the Seat of Arbitration since It Satisfies the Relevant Factors in

Deciding the Seat of Arbitration

18. Having submitted that London cannot be the seat of arbitration, there is an absence of

designated seat of arbitration. Consequently, Respondent submits that the Tribunal shall

determine the place of arbitration ―having regard to all relevant circumstances.‖14

The

‗UNCITRAL Notes on Organizing Arbitral Proceeding‘ sets out five relevant circumstances to

determine the seat of arbitration,15

and Respondent submits that Singapore has satisifed all of the

requirements.

19. First, in regard with the suitability of the law on arbitral procedure of the place of

arbitration, Respondent submits that Singapore International Arbitration Act which governs

international arbitration in Singapore, is derived upon the UNCITRAL Model Law on

International Commercial Arbitration.16

Furthermore, Singapore specifically has Singapore

Chamber of Maritime Arbitration as a forum to resolve maritime disputes and Singapore‘s

competence in resolving maritime disputes can be proven by numerous maritime cases that have

been solved in Singapore.17

20. Second, there is bilateral treaty to enforce the arbitral awards between Singapore and

United Kingdom. Respondent contends that Singapore International Arbitration Act gives force

14 English Arbitration Act 1996, Art.3 ; UNCITRAL Model Law on International Commercial Arbitration as

incorporated into Singapore International Arbitration Act, Art.20. 15 UNCITRAL Notes on Organizing Arbitral Proceedings, Arts. 21, 22 16 Singapore International Arbitration Act, Art.3. 17The Orinoco Star [2014] SGHCR 19; Paragon Shipping Pte Ltd v. Freight Connect (S) Pte Ltd [2014] SGHC 165

http://www.commonlii.org/cgi-bin/sinosrch.cgi?query=Turtle%20Bay&mask_path=+&method=title&meta=/commonlii


6

to 1958 New York Convention,18

which enables the enforcement of the arbitral awards to

Claimant in United Kingdom.

21. Third, Singapore is a convenient place for arbitration considering its close proximity with

the witnesses such as the Master of the Vessel19

and the bunker provide company.20

Furthermore,

Singapore satisfies the fourth factor concerning availability and cost of support services needed

as Singapore arbitration, as well as the accommodations are less costly compared to London.21

Finally, Singapore satisfies the fifth factor because the Bill of Lading which evinces the Contract

of Carriage is issued in Singapore and not carried on board.22

This proves the proximity of

evidence with Singapore. Having submitted that Singapore satisfies the five factors, Respondent

therefore contends that Singapore shall be decided to be the seat of arbitration. When Singapore

is the place of arbitration, Singaporean law shall apply.23

C. The Contract of Carriage is Most Closely Connected With Singapore Instead of

United Kingdom, Which Determines Which Law to Apply

22. Alternatively, Singaporean Law shall nevertheless apply since it has close connection

with the Contract of Carriage as set out under the Rome Convention 1980.24

Rome Convention

1980 has been given the force of law in the United Kingdom by Contracts (Applicable Law) Act

1990,25

and also applies to non-contracting states such as Singapore.26

In contract of carriage

18 New York Convention Countries, available at http://www.newyorkconvention.org/contracting-states/list-of-

contracting-states, 16 April 2015 19 Case File, pp. 20, 24, 25, 28 20 Case File, pp. 21, 23 21 Cost of Living Comparison Between Singapore and London, available at http://www.numbeo.com;

http://www.expatistan.com, 16 April 2015 22 Case File, pp. 7, 43-44 23 Dermajaya Properties SdnBhd v. Premium Properties SdnBhd [2002] 1 SLR(R) 492 ¶ 54; Fouchard, Philippe et

al. Fouchard, Gillard, Goldman on International Commercial Arbitration (1999)¶429 24 Rome Convention 1980, Art. 4(1); Compagnied‟Armement Maritime v.CampagnieTunisienne de Navigation

[1971] AC 572, ¶ 609 (Lord Diplock); Sulamerica v. Enesa [2012] EWCA Civ 638 (Moore-Bick, LJ) 25 Statutory Instrument 1994 No. 1900, available at http://www.secola.org/db/1_01/ums_gb2.pdf, 13 March 2015 26 Rome Convention 1980, Art.2


7

case, the Convention provides that the country of carrier, place of loading/discharge, or

consignor, shall be presumed to be the country that thecontract of carriage is most closely

connected with.27

This provision only applies if the country of carrier is the same as the place of

loading or discharge, or the country of consignor.28

23. In this case, Respondent contends that the Contract of Carriage has closest connection

with Singapore considering Respondent‘s status as both the consignor and carrier which

domiciles in Singapore, as well as the place of loading is in Singapore.29

This is more than

enough to strongly indicate that Singapore is the country which has the closest connection with

the Contract of Carriage. Thus, Singaporean law shall be the governing law of the Charterparty.

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

24. Within the present proceeding, Claimant‘ submission, among others is that Respondent

has committed tort of fraud. Respondent challenges the admissibility of the present claim since

the narrow language of the Arbitration Agreement precludes the consideration of tortious claim

[A] and the tortious claim is lack of connection with the contractual claim [B].

A. The Language of the Arbitration Agreements Prohibits the Tribunal to Adjudicate

Tortious Claim.

25. 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.30

While it is true that under the landmark case Fiona Trust v. Privalov,

the wording ―arising out of‖ is sufficient to evince Parties‘ intention to encompass fraud claim

27 Rome Convention 1980, Art 4(4); Cooke, Julian et.al.Voyage Charters (4th Ed; 2014) ¶1.39-1.46 28 IntercontainerInterfrigo SC (ICF) v. BalkenendeOosthuizen BV [2009] EUECJ C-133/08_O ¶54 29 Case File, pp.43, 44 30 Premium Nafta Products Limited and others v. Fili Shipping Company Limited and others [2007] UKHL40 ¶¶ 5-7

(Lord Hoffmann); Ashville Investments Ltd v. Elmer Contractors Ltd [1989] QB 488 p. 517(f) (Bingham LJ);

Curtis, Simon. The Law of Shipbuilding Contracts (2014) p. 237


8

within the ambit of arbitration agreement,31

it does not necessarily means tortious claim can also

be heard by virtue of such language.

26. English Court recognizes the arbitral tribunal‘s authority to adjudicate tortious claim

should the arbitration agreement is wide enough to encompass tortious claim.32

By contrast to

the language of ―arising out of‖, the expressions of ―dispute concerning alleged breaches of the

Contract‖,33

―in relation to‖,34

or ―any potential disputes‖35

has been regarded as sufficient to

include tortious claim into the coverage of the arbitration agreement. Further, as a claim which

arises independently from the course of its performance, tortious claim cannot be considered as

a claim arising out of the charterparty.36

B. The Nexus between the Tortious Claim and Contractual Claim is Distantly

Connected

27. Further, there is no connection between the tortious and a contractual claim at the

present case. Under the Playa Larga, an arbitral tribunal shall have the jurisdiction to decide the

tort claim if the resolution of a contractual issue is necessary for a decision on the tortious

claimor the contractual and tortious dispute are closely knitted together on the facts.37

28. Here, the settlements of the contractual matter will neither solved the issue nor possess

relevancy to the tortious claim due to the differences of the conflicting party and the subject

matter of the claims. The resolution of the contractual issue involves determining whether the

Respondent – as one of the contracting Parties – have breached its charterparty regarding the

31Fiona Trust & Holding Corporation &ors v. Yuri Privalov&ors.[2007] EWCA Civ 20¶ 17 (Longmore LJ) 32 Harris, Bruce. et al. The Arbitration Act 1996; A Commentary-Wiley-Blackwell (2007) pp. 67 - 68 33Asghar and Orsv. Legal Services Commission [2004] unreported( Lightman J); Harris, Bruce. et al. The

Arbitration Act 1996: A Commentary-Wiley-Blackwell (2007) p. 68 34El Nashartyv. J Sainsbury Plc[2004] 1 All ER 728 35 ET Plus SA v. Welter [2006] 1 Lloyd‘s Rep. 251 36 Holland v.Lampen-Wolfe [2000] 1 WLR 1573¶ 1588 (Lord Millet) 37The Playa Larga [1983] 2 Lloyd Rep. 171 ¶¶ 182—183; AggelikiCharisCompaniaMaritima SA

v.PagnanSpA(„TheAngelic Grace‟) [1994] 1 Lloyd‘s Rep. 168; Wealands v. CLC Contractors [1999] 2 Lloyd‘s Rep.

739; Capital Trust Investment v. Radio Design [2002] YCA p. 557



9

payment of the vessel and the supply of bunkers.38

By contrast, the main question in the tortious

claim is that whether ASA2 have disclosed false misrepresentation to Claimant. 39

29. Hence, even if Respondent has been proven liable towards it alleged breach of the

payment of the vessel, the question whether or not ASA2 has falsely misrepresented to

Claimant will remain unsolved. This is due to the lack of relevancy and nexus between the

claims.40

Thus, the Tribunal shall have no right to exercise its power over the present case due

to the matter that is outside the coverage of the Arbitration Agreement.

MERITS

III. ASA2 IS NOT AN AGENT OF RESPONDENT

30. It is Claimant‘s argument that Respondent shall be held liable over the loss and damages

as the result of the ASA2‘s false representation to the Master.41

Claimant further argued that the

liability of ASA2 shall be imposed to Respondent since it alleged that ASA2 is an agent of

Respondent. 42

31. Admittedly, a principal shall be held liable towards any damages caused by its agent

within its scope of authority.43

However, Respondent submits that ASA 2 is not, and has never

been an agent of Respondent since ASA2 has no authority to act on behalf of Respondent [A],

and Respondent‘s conduct does not amount to subsequent ratification [B]. Consequently, the loss

and damages shall not be attributed to Respondent.

38 Statement of Claim, ¶ 15,18 39 Statement of Claim, ¶ 9,17 40 Svenska Petroleum Exploration AB v. Lithuania &Anor [2005] EWHC 2437 ¶ 50 (Gloster J.);

EmpresaExportadora De Azucar v. IndustriaAzucareraNacional SA [1983] 2 Lloyd‘s Rep 171;

AggelikiCharisCompaniaMaritima SA v.PagnanSpA („The Angelic Grace‟) [1995] 1 Lloyd‘s Rep 87. 41 Case File, p. 63 42 Case File, p. 43 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); Armagas Ltd v. Mundogas S.A. („The Ocean Frost‟) [1986] AC 717;

Cramaso LLP v. Ogilvie-Grant, Earl of Seafield and Others [2014] UKSC 9 ¶ 27 (Lord Reed); 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)



10

A. ASA2 Has No Authority to Act on Behalf of RESPONDENT

32. ASA2 is not an agent of Respondent. An agency relationship will be created if the

principal has granted authorization to the agent actually,44

or apparently.45

Here, Respondent

declares its irresponsibility towards any damages caused by ASA2 since Respondent has not

mandated any actual [a], or apparent [b] authorization to ASA2 to act on its behalf.

a. ASA2 has no actual authority

33. Actual authority may take form in express authority,46

or implied authority.47

When the

principal has given the agent authority by means of words of writing, the agent will be regarded

as having express authority.48

While implied authority requires course of dealing between the

principal and the agent in which it would be reasonable for the other to infer from their conduct

that they have consented to an agency relationship.49

Respondent, however, submits that ASA2

possessed neither implied nor express authority to act on Respondent‘s behalf.

34. Firstly, nowhere in the Charterparty contains any provision which grants ASA2 express

authority for being Respondent‘s agent. Instead, the Charterparty gave express authority only to

ASA for being the disports agent, as it stipulates ―Disports Agents – Atlantic Services Agency –

Pic William – [email protected]‖.50

ASA2, by contrast, was having

44 Garnac Grain Co Inc v. H.M.F. Faure &Fairclough Ltd [1968] AC 1130 ¶ 1137; UBS AG &Anor

v.KommunaleWasserwerke Leipzig GMBH [2014] EWHC 3615 ¶ 594 45 Branwhitev.Worcester Works Finance Ltd [1969] 1 AC¶ 587; Freeman &Lockyer v. Backhurst Park

Properties [1964] 1 All ER; Bester, D.H.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. 46 Hely-Hutchinson v. Brayhead Ltd [1968] 1 QB 549; Freeman &Lockyer v Backhurst Park Properties [1964] 2 QB

480 ¶ 502-3 47 Ibid 48 Munday, Roderick. Agency: Law and Principles. p. 41; Yasuda Fire & Marine Insurance Co of Europe Ltd v.

Marine Insurance Underwriting Agency Ltd [1995] QB 174¶ 185; Garnac Grain CoInc v. HMF Faure &Fairclough

Ltd [1968] AC1130¶ 1137 49 Munday, Roderick. Agency: Law and Principles.p. 41; Campbell, Dennis.International Agency and Distribution

Law (2nd Ed; 2011);Targe Towing Ltd v. Marine Blast Ltd [2004] 1 Lloyd‘s Rep 721 50 Case File, p. 15


11

‗[email protected]‘ and nickname ‗Captain Anya‘ as its identity.51

Thus, the

Tribunal shall have no difficulty to find that ASA2 is not an agent of Respondent since the

Charterparty did not mandate express authority to ASA2.

35. Secondly, Respondent, at no point before, or during the voyage indicated to Claimant in

any manner that ASA2 had authority in directing the Vessel. Implied authority requires inference

of Claimant from the conduct between the principal and the agentwhich could reasonably cause

the Claimant to believe that ASA2 was authorized to act on their behalf. However, on the

provided voyage correspondences, Respondent never made a contact with ASA2. Hence, there is

no way Claimant could assume ASA2 has implied authority since there are no conduct from

Respondent and ASA2 that could be inferred at the first place.

b. ASA2 has no apparent authority

36. In addition to the fact that ASA2 has no apparent authority, Respondent further submits

that ASA2 is also lacking of apparent authority to act on Respondent‘s behalf. Under Freeman &

Lockyer v. Buckhurst,52

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. Here, RESPONDENT

submits that there are no agency relationship between ASA2 and Respondent since the

requirements of apparent authority a quo have not been met

37. There is no representation by Respondent which would lead Claimant to believe that

ASA2 is an agent of Respondent. The essential feature in apparent authority is the principal‘s

51 Case File, p. 35 52 Freeman & Lockyer v. Backhurst Park Properties [1964] 2 QB 480¶ 646


12

statement to the third party to the effect that the alleged agent has the authority to act for him

although the agent, in fact, does not have such authority.53

38. Instead, the representation which affirms ASA2 is Respondent‘s agent is coming from

ASA2 itself. An authority shall not be held as apparent should the advance representation was

not disclosed by the principal, since an agent has no power to make its own apparent authority.54

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‖.55

This statement was

solely made by ASA2, neither with any justification of its truth nor confirmation from

Respondent. Thus, since the required representation of Respondent is nowhere to be found in the

present case, ASA2 is lack of apparent authority.

B. Additionally, RESPONDENT’s Conduct Does Not Amount to Ratification

39. Where an unauthorized act is done by an agent in the name of another person, that person

may, by ratifying it, make it as valid and effectual as it had been done with his authority.56

Claimant may argue that even if ASA2 was acting without any authorization, Respondent is

bound upon ASA2‘s act by virtue of ratification given by Respondent. The argument, however,

fails as Respondent did not give any form of ratification towards ASA2‘s illegitimate action.

40. In order for a principal to ratify an unauthorized act, the principal should possess the

requisite relevant knowledge in which the act was done. Such full knowledge may be obtained

53 Bester, D.H.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. 12; Rama Corp. Ltd v. Proved Tin and General Investments Ltd [1952] 2 QB 147¶ 149–

50; Freeman &Lockyerv.Buckhurst Park PropertiesLtd [1964] 2 QB 480¶ 503–4; Hely-Hutchinson v. Brayhead Ltd

[1968] 1 QB 549. 54 Armagas Ltd v. Mundogas(„The Ocean Frost‟) [1985] UKHL 11 (Lord Keith J.); First Energy (UK) Ltd v.

Hungarian International Bank Ltd [1993] 2 Lloyd‘s Rep 194 (Evans LJ) 55 Case File, p. 35 56 Izodia v. RBS International [2006] JRC 111 ¶ 93; SEB Trygg Holding Aktiebolag v.Manches&Ors [2005] EWHC

35


13

by knowing the information regarding material circumstances of the action.57

However, let alone

full knowledge when the act was done, Respondent was not in the position to ratify any

unauthorized action of ASA2, as Respondent barely knew ASA2 identity. In the words of

INGRV v. ―[i]f a principal knows the essentials of what happened as between the agent and the

third party, [it is] sufficient knowledge for the purposes of ratification of the agent‟s conduct‖.58

41. The awareness of ASA2 identity was essential as it will enable Respondent to dissuade

Claimant from believing that ASA2 has the authority to act on Respondent‘s behalf. Under the

Voyage Order, the Master is also in the obligation to inform the Charterer should he receive any

instruction from the third party.59

The Master, however, as the only party who is aware of the

true identity of ASA2, never disclosed such identity to Respondent while it has numerous

opportunities to said so.60

42. This also leads to the grounds as to why Respondent‘s statement in which it stated

―Please continue to liaise with your STS coordinator‖61

does not amount to the ratification

towards ASA2‘s illegitimate action. At the time such statement was made, Respondent was

simply trying to encourage the association between ASA and Claimant in order to properly

discharge the Cargo as Respondent was in the understanding that Claimant was being directed by

ASA – the true agent of Respondent. It was never within the knowledge of Respondent that

ASA2 was controlling the Vessel. Thus, the lack of knowledge of Respondent shall leads to

Respondent‘s inability to ratify unauthorized action of ASA2.

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

35; Lewis v. Read [1845] 13 M & W 834; De Bussche v. Alt [1878] 8 Ch D 286 at 313; Bowstead, William et

al.Bowstead and Reynolds on Agency (1st Supplement to the 19th Ed; 2012),¶2-068 58 ING RE (UK) Limited v. R & V Versicherung AG [2006] EWHC 1544¶ 153 59 Case File, p. 13 60 Case File, pp. 35 – 41. 61 Case File, p. 40


14

IV. RESPONDENT IS NOT LIABLE FOR THE DETRIMENT SUFFERED BY CLAIMANT

43. Claimant directed the Vessel to alternative discharge place following the instruction

given by illegitimate party which resulted to severe damages toward the Vessel and substantial

loss of the Cargo. To the contrary to Claimant‘s erroneous argument, it is Respondent‘s

contention that Respondent is not accountable for any detriment of the Vessel [A], Instead,

Claimant is at fault for providing an unseaworthy Vessel that consequently has resulted to the

loss of Respondent [B].

A. Respondent is not Liable for the Damages of the Vessel since the Elements of Tort of

Fraud Have Not Been Satisfied.

44. Albeit Claimant‘s wild accusation that Respondent is responsible for the detriment of the

Vessel, Respondent contends that no liability shall be imposed toward Respondent because there

is no tort of fraud had taken place. Respondent submits the existence of tort of fraud is nowhere

to be found in the present case since - in regard with the supply of bunker – therewere no

statements of fact disclosed by Respondent [i], and should the disclosure of statements of facts

have taken place, such statements were true at the time it was made [ii].

i. Respondent has never disclosed any statements of facts

45. Respondent submits that Respondent did not commit any tort of fraud because there was

no representation containing statement of facts at the first place. In determining whether tort of

fraud has taken place, tribunal should look upon the existence of statements of facts within the

disclosed representation.62

Thus, in the absence of statement of facts, the action cannot be

regarded as false representation. In order to be regarded as statement of facts, the representation

requires a specific existing facts or a past event.

62 Sean Lindsay v. Jared O‟Loughnane[2010] EWHC 529 (QB), ¶ 86 (Flaux J)


15

46. However, within the present case, Respondent contends that Respondent‘s

representations are not statements of facts; instead it is a promise to perform something in the

future. Representation to perform something in the future, as seen in Beattie v. Ebury, is not the

same with disclosure of statement of facts, hence cannot be either true or false.63

Further, the

substantial part of such promise is the intention of the representee.64

47. Here, Respondent answered the demanding calls of the Master with a promise to supply

an alternative bunker in Durban, followed by nominating STS Area 1 as the location for future

re-bunker. The collaboration of Respondent‘s aforementioned initiative to provide the re-bunker

reflects neither an existing fact nor past event, but shall evince Respondent‘s true and honest

intention to provide re-bunker. Regardless the promised action could not be done; as long as real

intention has been shown it will not amount to fraud.65

ii. All of the Respondent‟s representations were made in honest belief

48. If the Tribunal finds that representation containing statements of facts have been

disclosed, Respondent submits that representation a quo were true at the time it was made. It has

been acknowledged that one of the elements of tort of fraud is the false representation.66

To

establish false representation, it is pertinent to prove the actual dishonesty67

within its false and

63 Kleinwort Benson Ltd. v. Malaysia Mining Corp [1989] 1 All E.R. 785; Wales v. Wadham [1977] 1 W.L.R. 199

(Tudor Evans J); Civil Service Co-operative Society of Victoria Ltd v. Blyth [1914] 17 CLR 601; Beattie v. Lord

Ebury [1872] LR 7 Ch App 777 p. 804 (Mellish LJ) 64 Anson, Reynell. Knowlton, Jerome.Principles of the English Law of Contract and of Agency in Its Relation to

Contract (4th Ed; 1887) p. 203; Edgington v. Fitzmaurice [1885] 29 Ch D 459 p. 481 (Cotton LJ) 65 Is a Promise to Perform Some Future Act a Statement of Fact? (University of Pennsylvania Law Review and

American Law Register, Vol. 57, No. 5, Volume 48 New Series, 1909), pp. 325-327; Pollock, Frederic. Principles of

Contract at Law and in Equity, (7th Ed: 1906) p.689 66 Leni Gas and Oil Investments Ltd and another v. Malta Oil Pty Ltd and another [2014] EWHC 893¶ 4(Males J);

AIC Limited v. Inchcape Testing Services Ltd („The Kriti Palm‟) [2006] EWCA Civ 1601¶ 251 (Rix LJ) 67 AA (Nigeria) v. Secretary of State for the Home Department [2010] EWCA Civ 773¶¶ 66-75 (Rix LJ); AIC

Limited v. Inchcape Testing Services (UK) Limited („The Kriti Palm‟)[2006] EWCA Civ 1601, ¶¶ 254, 256 (Rix LJ)


16

misleading statement.68

Dishonesty is not limited to the expression, but can also be implied by

the actions conducted.69

49. If a party knows that a representation is false, but still, he discloses such representation,

such action shall be deemed as constituting false representation.70

In this regard, all the

representation disclosed by Respondent was true and was made with its all honest belief. None of

the statements disclosed by Respondent are based on dishonest mind because at the time

Respondent made decision to make such representation, Respondent has no belief or knowledge

that it was false.

50. Within the present case, after giving advice not to do re-bunker in Durban, Respondent

has made representation to the Master that additional bunker is available at STS Area 1. On 28rd

June, Respondent has also clearly stated that ―Next bunker supply [is] now on arrival”,71

which

indicated that such bunker indeed exist in the STS Area 1 and the representations made by

Respondent are true. Claimant, however, cannot expect to obtain the re-bunker since the Master

itself fails to direct the Vessel into the original nominated STS location.72

Hence, Respondent

asserts that Respondent has never disclosed any false representation as erroneously claimed by

Claimant.

B. Claimant is at Fault for Providing an UnseaworthyVessel

51. Respondent submits that Claimant has breached the clause required by Charterparty to

provide a seaworthy Vessel. The concept of seaworthiness refers to condition of the vessel where

she must be fitted for voyage.73

Thus, in order to satisfy the requirements of seaworthy, not only

68 Goldsmith v. Rodger [1962] 2 Lloyd‘s Rep 249 69 English Fraud Act 2006, § 2 70 Avon Insurance plc v. Awire Fraser ltd [2000] Llyod‘s Rep IR 535, ¶ 17 (Rix J) 71 Case File, p.34 72 Case File, p.35 73 Alfred C ToepferSchiffahrtsgesellschaft GmbH v. Tossa Marine Co Ltd („The Derby‟) [1985] 2 Lloyd‘s Rep 325

p.331 (Kerr LJ); Hongkong Fir Shipping Ltd. v. Kawasaki Kisen Kaisha Ltd [1961] EWCA Civ 7 (Upjohn LJ);


17

the vessel must be physically fit74

and possess complete document,75

but the owner is also

obliged to provide competent master and its crew.76

52. Within this case it is also clear that Claimant is under obligation to provide a fit Vessel77

along with trained and competent personnel.78

However, it has been shown during voyage that

the Master was incompetent as he followed instruction given by unidentified party [i], and failed

to comply with anti-piracy precautions [ii].

i. The Vessel was unseaworthy due to the incompetency of the Master

53. The incompetency of the Master can be derived upon his negligence or fault when he did

not perform his job properly.79

Here, the Master has failed to carry out its duty to ignore any

instruction coming from the third party80

and to suspend the order when ―[…] the Master

considers that the operations are, or may become, unsafe, […]‖.81

54. Respondent submits that the Master has shown the opposite of what a man of reasonable

prudence would have acted in these circumstances.82

It has been affirmed that there are some

circumstances which ―[…] require a great deal of thought and consideration before reasonable

master would comply with them.‖,83

especially when receiving order from illegitimate party.84

[1962] 2 Q.B. 26; F.C. Bradley & Sons Ltd v. Federal Steam Navigation Co. [1926] 24 Lloyd Rep 446 p.

454(Scrutton LJ); McFadden v. Blue Star Line [1905] 1 K.B. 697 p.607(Channell J); 74 Papera Traders Ltd. et al v. Hyundai Merchant Marine 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 Ltd. v. The Sanko Steamship Ltd („The Aquacharm‟) [1982] 1 Lloyd's Rep. 7 p.11 (Griffiths LJ) 75 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 (Rowlatt J) 76 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 Ltd et al [2001] UKHL 1¶¶ 32-33 (Lord Hobhouse of

Wood); Standard Oil v. The Clan Line Steamers [1924] AC 100 p. 120-121 (Lord Atkinson) 77 Shelltime 4, clause 1, line 10-12 78 Shelltime 4, clause 2, line 46-55 79 The Makedonia [1962] 1 Lloyd‘s Rep. 316 p. 335 (Hewson J) 80 Case File, p.13 81 Case File, p.11 82Kuwait Petroleum Corporation v. I & D Oil Carriers Ltd(„The Houda‟)[ 1994] 2 Lloyd‘s Rep 541 p. 549;

Stuhmcke, Anita. Essential Tort Law (2nd Ed., 2001) p. 35 83 Midwest Shipping Co. v D. I. Henry („The Anastasia‟) [1971] 1 Lloyd‘s Rep. 375 p.379 (Donaldson J)


18

Further, it is also clearly stated under Voyage Order that the Master is under obligation to

disregard the instructions received from third party.85

55. The master shall be a qualified person by virtue of long training and experience,86

thus

master is expected to act reasonably upon receipt of orders.87

Mr Justice Donaldson then also

asserts that the master is unfitted if he acts upon any received order without any further

consideration.88

The Master in this case, likewise, upon receiving instruction from unidentified

party, he did not exercise his right to object upon the given instruction. The Master - who should

have been aware for the circumstances and the risk - went directly to area instructed to him

without any further consideration. In conclusion, the ignorance of the Master has shown that he

was unfit and unqualified to command the Vessel, and thus render the Vessel provided by

Claimant as unseaworthy.

ii. The failure of Master to comply with anti-piracy precaution

56. Respondent submits that Claimant is liable for providing unfit vessel since Master failed

in complying with BMP4 as the preventive measure against piracy. As seen in The Chyebassa,

the owner is entitled to be exempted from any liabilities, if reasonable care had been taken to

prevent unauthorized entity to entry the vessel.89

Claimant, however, did not take any reasonable

care and thus shall not be immune from any liabilities occurred.

57. Reasonable care refers to due diligence in which it is relative,90

it subjects to the state of

knowledge and the standards of the industry.91

As a matter of fact, it has been acknowledged that

84 Midwest Shipping Co. v. D. I. Henry („The Anastasia‟) [1971] 1 Lloyd‘s Rep. 375 p.379 (Donaldson J) 85 Case File, p.13 86Papera Traders Ltd. et al v. Hyundai Merchant Marine et al („The Eurasian Dream‟) [2002] EWHC 118¶ 129

(Cresswell J); Hongkong Fir Shipping v. KawasakiKisen Kaisha Ltd [1962] 2 QB 26 p. 34 87 Midwest Shipping Co. v. D. I. Henry („The Anastasia‟) [1971] 1 Lloyd‘s Rep. 375 p.379 (Donaldson J) 88 Midwest Shipping Co. v. D. I. Henry („The Anastasia‟) [1971] 1 Lloyd‘s Rep. 375 p.379 (Donaldson J) 89 Leesh River Tea Co v. British India Steam Navigation Co („The Chyebasa‟) [1966] 2 Lloyd‘s Rep. 193 p. 200 90 Peter B. Vessel Seaworthiness: The Rights of Passengers and The Responsibilities of Captains and Managements,

(2006) p. 13


19

the prevailing standard to prevent piracy is the measure under BMP4,92

and the Charterparty also

regulated the same under ST4 pro-forma piracy clause.93

Within the present case, the Master,

however, did not properly comply with BMP4 since he failed to deploy physical protective

measures as required, and thus had jeopardized the Vessel and its crew.

58. After receiving instruction from ASA2 Vessel then en route to STS Area which is well-

known by its high piracy threat.94

Here, it has been agreed by both party when Vessel has to

gothrough such area, she has to comply with BMP4.95

Despite the Master‘s statement that they

are ―[…] doing best to comply with BMP4 […]‖,96

Respondent submits such statement shall not

be considered as threshold to determine whether they have fulfilled the duty a quo. In order to

constitute as properly complying with BMP4, several equipment needs to be installed in the

Vessel.97

59. As seen in ‗Ship Protection Measure‘ section under BMP4, vessel needs to equip physical

barriers to prevent pirates to gain access to vessel.98

Here, Claimant has failed to provide razor

wire as physical barriers.99

Should an owner is incapable to provide all the basic protection as

required by BMP4, they are allowed to make alteration, and/or provide additional equipment

91Papera Traders Ltd et al v. Hyundai Merchant Marine Ltd et al(„The Eurasian Dream‟) [2002] EWHC 118¶ 127

(Cresswell J); F.C. Bradley & Sons Ltd v. Federal Steam Navigation Co. [1926] 24 Ll.L.Rep 446 p.448(Bankes LJ),

pp. 454-455 (Scrutton LJ) 92 Hodgkinson, Sandra L. Current Trends in Global Piracy: Can Somalia‟s Successes Help Combat Piracy in the

Gulf of Guinea and Elsewhere? (Case Western Reserve Journal of International Law, Vol. 46, 2013) p.152; 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 (IMO) MSC.1/Circ.1339 j.o Best Management Practices for Protection against Somali Based Piracy

(Version 4, 2011). 93 Case File, p.16 94 Case File, pp.36, 46; International Maritime Organization (IMO) MSC.4/Circ.177, Reports on Acts of Piracy and

Armed Robbery Against Ships, 2011 95 Case File, pp. 8, 11 96 Case File, p. 36 97 Best Management Practices for Protection against Somali Based Piracy (Version 4, 2011), p. 23 98 Best Management Practices for Protection against Somali Based Piracy (Version 4, 2011), pp. 27-30 99 Case File, p. 36


20

and/or manpower in order to reduce the risk of piracy attack.100

However, in the present case

there is no indication that Claimant has provided any alteration to the vessel in regard with

physical barriers. Furthermore, the assessment made by with Ops and Safety Departments came

into result that the vessel needs some other items i.e fixing clips, and hand-held flash light

including its battery.101

At the end of the day, however, none of those items were delivered to the

Vessel, which leads to the inability of the Vessel to develop its physical protective measures.102

60. The lack of protection as result of Claimant‘s ignorance not to provide the equipment, has

resulted to the hijacked by piracy. Claimant then has failed to prove that they have complied with

BMP4, hence shall be held liable for breaching the Charterparty.

V. RESPONDENT’S REFUSAL IN PAYING THE HIRE OF THE VESSEL IS JUSTIFIABLE

61. Claimant has wrongfully requested Respondent to pay the second period hire of the

Vessel on 3rd

July 2014 and subsequently contended that Respondent has breached its duty to

pay the hire of the Vessel. However, contrary to Claimant contention, Respondent has not

breached its duty regarding the payment of the Vessel seeing that the payment was not due on 3rd

July 2014 [A], and Respondent has validly frustrated the Charterparty [B]. Even if the frustration was

invalid, the Vessel was off-hire from 4th July 2014 [C].

A. There Was No Hire Due on 3rd

July 2014

62. On 22nd

May 2014, Respondent and Claimant entered into a Charterparty for a period of

3 months and have agreed to pay the hire of the Vessel per calendar months starting from 4th

June 2014.103

Claimant argues that Respondent has to pay the second period of hire on 3rd

July

2014, a day before the hire actually due. Contrary to Claimant‘s contention, Respondent submits

that there was no hire due on 3rd

July 2014.

100 Best Management Practices for Protection against Somali Based Piracy (Version 4, 2011), p. 23 101 Case File, p.27 102 Case File, p. 35 103 Case File, p. 13; Shelltime 4 Clause 9, line 185


21

63. As per Templeman LJ,104

if a payment has to be done per calendar month, the next period

of hire shall ―[…] bears the same number [as] the earlier month on which the notice was given.‖

Further, it has been well accepted in chartering business that if a payment have to be done per

calendar month, the due date for the next payment period shall fall the exact day as when the first

payment due.105

In the present case, it was clear that the first period of hire starts on 4th

June

2014,106

subsequently the due date of the second payment shall fall on the exact date as the first

payments‘ which is 4th

July 2014. Therefore having established that the second period hire shall

fall on 4th

July 2014, Respondent submits that it is not in the obligation to pay the hire of the

Vessel on 3rd

July 2014.

B. The Charterparty Was Frustrated By No Later Than 4th

July 2014

64. Even if the deadline of the payment fall on 4th

July 2014, Respondent still shall not be

held liable over the payment of the Vessel since the Charterparty has been validly frustrated on

that date seeing that valid frustrating event has been occurred [i], which result to the exemption

of Respondent‘s liability [ii].

i. Valid frustrating event has been occurred

65. Respondent submits that it has validly frustrated the Charterparty by the reason of

missing of the Vessel.107

Frustration brings the contract to an end automatically.108

Frustration

can be invoked if Respondent can prove the existence of a frustrating event that made the

104 Dodds v. Walker [1981] 1 WLR 1027 (Templeman LJ) 105 Sheltime 4 Appendix B; BBC Chartering Terms; SC Line Chartering Definitions available at

http://www.scline.com/esp/chartering/chartering_c-e.html, 27 March 2015; Elton & Sons Chartering Definitions

available at http://www.eltonandsons.com/definitions.html, 27 March 2015 106 Case File, p. 29 107 Shelltime 4, Cl. 20 line 335 - 336 108 HirjiMulji v. Cheong Yue SS Co („The Singaporean‟) [1926] AC. 497 ¶ 505 (Lord Summer); Maritime National

Fish Ltd v. Ocean Trawlers Ltd [1935] AC. 524; Joseph Constantine S.S Line Ltd v. Imperial Smelting Corp Ltd

(„The Kingswood‟) [1942] AC 154 ¶ 161 (Viscount Simon L.C); Denny Mott & Dickson v. James B. Fraser & Co

Ltd [1944] AC 154 ¶ 274 (Lord Macmillan); Blane Steamships v. Minister of Transport [1951] 2 KB 965 ¶ 989; J.

Lauritzen A.S. v. Wijsmuller B.V („The Super Servant Two‟) [1990] 1 Lloyd‘s Rep.1 (Lord Justice Bingham)


22

contractual objective impossible to be fulfilled.109

In order to determine whether or not the

frustration is valid, there have to be two requisite elements to be present in a frustrating event to

validly frustrate the Charterparty.

66. The first element requires an unforeseen event in which it renders the contractual

objective impossible to be achieved.110

Essentially, the contractual objective of a time charter is

the services of a vessel.111

In this regard, the contractualobjective was for Claimant to deliver the

Cargo to OPL Luanda with the Vessel.112

However on 4th July 2014, the Vessel arrived at a wrong

location in which Respondent never ordered to do so.113 Subsequently, it led Respondent to the

assumption that the Vessel were missing and cannot perform its contractual obligation punctually.

67. Further, the frustrating event must be unforeseen by the parties.114

Per Rix LJ, an event

could be regarded as foreseen event if it ―[…] could reasonably be thought […] as a real

possibility.‖115

In this case, Respondent could not thought that the missing of the Vessel would

be a possibility seeing that the Master never disclose the existence of a third-party voyage

instruction although the Charterparty stipulates to do so.116

Further, should the Master disclose

the illegitimate order; Respondent will be able to foresee and prevent the missing of the Vessel.

109 Globe Master Management Ltd. v. Boulos Gad Ltd [2002] (Lord Justice Longmore); Beale, Hugh.Chitty on

Contracts 31sted: Volume 1 (General Principle) with 2nd Supplement(2014) ¶ 23-001 110 Davis Contractor Ltd v. Fareham U.D.C. [1956] AC 696 (Lord Radcliffe); Paal Wilson & Co A/S v.

Partenreederei Hannah Blumenthal („The Hannah Blumenthal‟) [1983] 1 All ER 34 at 43-44 (Lord Brandon) 111 Coghlin, Terrence et al. Time Charters(7th Ed; 2014) ¶ 3.2 112 Case File, p. 13 113 Case File, p. 38 114 Walton Harvey Ltd. v. Walker &Homfrays Ltd [1931] 1 Ch 274; Peter Cassidy Seed 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) 115Edwinton Commercial Corporation and Global Tradeways Ltd v. Tsavliris Russ Ltd („The Sea Angel‟) [2007]

EWCH 1713 ¶ 535 116 Case File, p. 13


23

68. The second element to be present is the unforeseen frustrating event should not be

rendered by one of the contracting party.117

In the Charterparty, it is clear the contract was

between the ship owner and charterer,118

in which it can be concluded that the contracting parties

is Western Tankers Inc as the Shipowner and LDT PTE as the Charterer.119

In this case, it was

the Master‘s fault that rendered the frustrating event not Claimant‘s or Respondent‘s. Therefore,

since missing of the Vessel has satisfied two requisite elements of valid frustrating event,

Respondent submits that the Charterparty has been validly frustrated.

ii. Consequently, frustration exempts Respondent obligation

69. Having established that second period of hire shall fall on the same date as the frustration

of the Charterparty, Respondent submits that its responsibility, particularly regarding payment of

hire, has been exempted. Frustration discharges parties‘ obligation arising after the charterparty

has been frustrated.120

As can be seen in The Lorna I,121

that the charterer was not entitled to pay

the freight since it was due after the charterparty has been frustrated. In the present case,

Respondent‘s obligation to pay the hire was due after the frustration of the Charterparty. Thus

Respondent is not in the obligation to pay the hire of the Vessel seeing that the Charterparty was

frustrated before the payment due date.

117 Bank Line Ltd v. Arthur Capel& Co [1919] AC 435 ¶ 452 (Lord Finlay LC); Maritime National Fish Ltd v. Ocean

Trawlers Ltd [1935] AC 524 (Lord Wright); Joseph Constantine S.S Line Ltd v. Imperial Smelting Corp Ltd („The

Kingswood‟) [1942] AC 154 ¶ 192-193 (Lord Wright); Davis Contractor Ltd v. Fareham U.D.C. [1956] A.C. 696 at

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

[1983] 1 All ER 34 ¶ 44 (Lord Brandon) 118 Shelltime 4, line 1-5 119 Case File, p. 5 120 Bank Line Ltd. v. Arthur Chapel & Co [1919] AC 435 459 (Lord Summer); FibrosaSpolkaAkcyjnav. 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 (Lord Justice

Bingham); Edwinton Commercial Corporation and Global Tradeways Ltd v. Tsavliris Russ Ltd („The Sea Angel‟)

[2007] EWCH 1713 (Lord Justice Rix) 121 Pioneer Shipping Ltd. v. B.T.P. Tioxide Ltd („The Nema‟) [1982] AC 724 at 752; CompaniaNaviera General SA v.

Kerametal Ltd („The Lorna I‟) [1983] 1 Llyod‘s Rep. 373¶ 375 (Sir John Donaldson)


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C. The Vessel Was Off-Hire from 4th

July 2014

70. Alternatively, Respondent was not in breach of Charterparty because Respondent is no

longer in the obligation to pay the hire of the Vessel seeing that the Vessel has validly placed as

off-hire in the event of breach of order [i] or neglect of duty[ii] by Master.

i. Master has exercised breach of order

71. The Charterparty grants Respondent the right to place the Vessel as off-hire in the event

of loss of time due to breach of order by the Master.122

In this case, the Master has breached

Respondent‘s order to go to OPL Luanda.It was held in The Pearl C,123

that the Vessel should be

placed off-hire in the event of Master‘s fault for not complying with the charterer order. Similar

to this case, the Master chose not to comply with Respondent‘s order to go to OPL Luanda124

and

deliberately complied with illegitimate order notwithstanding that he should not in any event

comply with it125

and subsequently led the Vessel to be missing

ii. Master has exercised neglect of duty

72. Respondent has the right to place the Vessel as off-hire if the Master neglects his duty.126

In this case, the Master has neglected his duty regarding his obligation to deliver the Cargo with

utmost dispatch as obliged under the Charterparty.127

In The Hill Harmony,128

when the master

was required to deliver the cargo with the utmost dispatch, the master has to choose a voyage

route, which will not delay the voyage. In the present case, the Master without further

consideration chose a route given by an unknown party although the Charterparty prohibited

122 Shelltime 4 Cl. 21(a), line 349 - 350 123 Bulk Ship Union SA v. Clipper Bulk Shipping Ltd („The Pearl C‟) [2012] 2 Lloyd‘s Rep. 533 (Popplewell J) 124 Case File, p. 13 125 Case File, p. 13 126 Shelltime 4 Cl. 21(a), line 349-350; Kawasaki Kisen Kaisha Ltd v. Whistler International Ltd („The Hill

Harmony‟) [2001] 1 Lloyd's Rep. 147; Bulk Ship Union SA v. Clipper Bulk Shipping Ltd („The Pearl C‟) [2012] 2

Lloyd‘s Rep. 533 127 Shelltime 4 Cl. 2(b), line 67-69 128 Kawasaki Kisen Kaisha Ltd v. Whistler International Ltd („The Hill Harmony‟) [2001] 1 Lloyd's Rep. 147; Bulk

Ship Union SA v. Clipper Bulk Shipping Ltd („The Pearl C‟) [2012] 2 Lloyd‘s Rep. 533


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such action,129

and subsequently led the Vessel to be missing whichcaused the voyage to be

delayed by 13 days.130

Therefore, Respondent has validly placed the Vessel as off-hire seeing

that the Master has neglected his duty to perform with the utmost dispatch and caused the voyage

to be delayed.

PRAYER FOR RELIEF

73. In light of the aforementioned submissions, Respondent respectfully requests the

Tribunal to declare that:

a. The dispute shall be settled within Singapore Tribunal in accordance with Singaporean

Law.

b. Even if English Law applies under English Tribunal, the Tribunal shall have no

jurisdiction due to the inadmissible claim;

c. Even if the Tribunal has the jurisdiction, Respondent is not liable for the breaches of

charter party and the tort of fraud as submitted above;

d. Respondent is entitled to receive compensation for the damages as particularized in the

phase relating to quantification of damages along with its interest; and

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

RESPECTFULLY SUBMITTED ON 22ND

APRIL 2015,

ALBERTUSALDIOPRIMADI JOHANNA DEVI KEVIN CARLOS

AGUNG ROSA MAHESWARI RAISSA YURIZZAHRA HEZARAMANDA

COUNSEL FOR THE LESS DEPENDABLE TRADERS PTE

[contact information]

129 Case File, p. 13 130 Case File, p. 42

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