ninteenth international maritime law arbitration … · ninteenth international maritime law...

$: NINTEENTH INTERNATIONAL MARITIME LAW ARBITRATION … · ninteenth international maritime law arbitration moot 2018 memorandum for claimant \ universitas airlangga team 10 cerulean$
NINTEENTH INTERNATIONAL MARITIME LAW ARBITRATION MOOT

2018

MEMORANDUM FOR CLAIMANT

\

UNIVERSITAS AIRLANGGA

TEAM 10

CERULEAN BEANS AND AROMAS LTD

(CLAIMANT)

V.

DYNAMIC SHIPPING LLC

(RESPONDENT)

COUNSEL FOR CLAIMANT

AULY NAHDYAN MAFAZA

BIMA DANUBRATA ADHIJOSO

INDARWATI ATIKA SHANTI

REGINE WIRANATA

SHOFY SUMA NISRINA

i

TABLE OF CONTENTS

ABBREVIATIONS ................................................................................................................. iv

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

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

I. THE TRIBUNAL POSSESS JURISDICTION OVER CLAIMANT’S CLAIMS FOR

DAMAGES ............................................................................................................................... 3

A. THIS TRIBUNAL HAS JURISDICTION OVER THE PRESENT DISPUTE .................................... 3

1. The Tribunal is the chosen forum of the dispute resolution by the parties .................... 3

2. The Tribunal has the power to determine its own jurisdiction ........................................ 3

B. THE CLAIMS OF CLAIMANT ARE ARBITRABLE BY THE TRIBUNAL ..................................... 4

1. The Tribunal has the power to award damages on the cargo ......................................... 4

a. The claim on damages arose out of the Charterparty .................................................... 4

b. The claim does not involve a technical matter within the ambit of the Charterparty .... 5

i. The issue of deviation does not involve a technical matter ..................................... 5

ii. The issue of the Cargo’s storage at the Port does not involve a technical matter .. 6

2. The Tribunal has the power to declare the maritime lien on the Madam Dragonfly ..... 6

a. The claim on damages arose out of the Charterparty .................................................... 6

b. The claim does not involve an action beyond the jurisdiction of the Tribunal .............. 7

C. THE TRIBUNAL HAS THE POWER TO APPLY THE LAWS GOVERNING THE CLAIMS OF

CLAIMANT ................................................................................................................................. 7

1. The Tribunal can apply the laws of New South Wales to the dispute on damages ........ 8

2. The Tribunal can apply the laws of the United Kingdom to the dispute on the maritime

lien over the Madam Dragonfly ............................................................................................ 8

ii

II. RESPONDENT IS LIABLE TO CLAIMANT FOR DAMAGE COMPRISING

ACCOUNTS OF THE DAMAGED CARGO, REPLACEMENT COFFEE PAYMENT,

AND SETTLEMENT PAYMENT ......................................................................................... 9

A. RESPONDENT IS RESPONSIBLE FOR THE DAMAGES TO THE CARGO............................... 9

1. Respondent is responsible for the deviation causing damages to the cargo ................... 9

a. The cargo’s damage was the indirect result of Respondent’s deviation ........................ 9

b. Respondent does not benefit from protection under force majeure.............................. 10

2. In any event, Respondent breached its duty to keep the cargo safe until its delivery ... 11

B. CLAIMANT IS ENTITLED TO COMPENSATION FOR THE DAMAGES INCURRED ............... 12

1. Respondent is liable for the entire value of the damaged Cargo ................................... 12

b. Respondent does not benefit from the limitation of ...................................................... 13

2. Respondent is liable for indirect damages for the losses incurred by Claimant ........... 13

a. The damages were foreseeable at the time of the making of the contract .................... 13

b. The damages were incurred reasonably ....................................................................... 14

III. CLAIMANT HOLDS A MARITIME EQUITABLE LIEN OVER THE MADAM

DRAGONFLY ........................................................................................................................ 15

A. THERE EXIST A MARITIME LIEN FOR WAGES OVER THE MADAM DRAGONFLY ............. 15

B. CLAIMANT IS ENTITLED TO A SUBROGATION OF THE MARITIME LIEN THROUGH ITS

PAYMENT TO THE WAGES ACCOUNT ..................................................................................... 15

1. Claimant had paid the wages of the crew by virtue of payment to the account ............ 16

2. The payment was made on credit of the vessel ............................................................... 16

IV. CLAIMANT IS NOT LIABLE TO RESPONDENT FOR AMOUNTS OWING

UNDER THE CHARTERPARTY FOR FREIGHT, AGENCY FEES, COST OF

REPAIRS, DEMURRAGE, AND USE OF ELECTRONIC ACCESS SYSTEMS ......... 18

iii

A. CLAIMANT HAS NO OBLIGATION TO PAY RESPONDENT ANY AMOUNTS DUE TO THE

LIEN IT HAS OVER THE MADAM DRAGONFLY .......................................................................... 18

B. CLAIMANT IS NOT LIABLE FOR AGENCY FEES AT THE PORT OF SPECTRE .................. 18

1. The agency fees were not particular charges ................................................................. 18

2. In any event, Respondent’s fault bars its claim of particular charges .......................... 19

C. CLAIMANT IS NOT LIABLE FOR DEMURRAGE ............................................................... 20

1. Demurrage did not accrue at all during the discharge of the Cargo ............................ 20

2. In any event, the claim for demurrage is obstructed by Respondent’s negligence ....... 21

D. CLAIMANT IS NOT LIABLE FOR THE USE OF THE ELECTRONIC ACCESS SYSTEMS AT

THE PORT OF DILLAMOND ...................................................................................................... 21

1. The purchase of the electronic access systems was not necessary ................................ 21

2. In any event, it was incurred due to Respondent’s fault ................................................ 22

REQUEST FOR RELIEF ..................................................................................................... 23

iv

ABBREVIATIONS

Claimant Cerulean Beans and Aromas Ltd.

Respondent Dynamic Shipping LLC

Charterparty The Voyage Charterparty

Master Edward Hillster

LMAA London Maritime Arbitrators Association

Act The UK Arbitration Act of 1996

Cargo Speciality Grade Green Coffee

Parties Claimant and Respondent

Vessel Madam Dragonfly

Tribunal Present Arbitral Tribunal

v

LIST OF AUTHORITIES

Legislations

Arbitration Act 1996 (UK) 3, 4, 8

The London Maritime Arbitrators Association Terms 2017 3

The Hague Visby Rules 13

UK Merchant Shipping Act 1995 15

The York-Antwerp Rules 18

Australia Carriage of Goods by Sea Act 19

Cases

Christopher Brown Ltd v Genossenschaft Oesterreichischer Waldbesitzer

Holzwirtschaftsbetriebe Registrierte GmbH [1954] 1 QB 8, 12-3 (Devlin J)

3

Engineering Company v Engineering Company (Final Award) (1999) XXIV

Yearbook Commercial Arbitration 80

3

The Ioanna [1978] 1 Lloyd‟s Rep 238 (CA) 4

Verity Shipping SA v NV Norexa [2008] 1 Lloyd‟s Rep 652 (QBD) 4

Heyman v Darwins Ltd [1942] AC 356 4

Mackender v Feldia [1967] 2QB 590 4

The Playa Larga [1983] 2 Lloyds Rep 171 4

Antonis P Lemos [1985] AC 711 4

Ashville Investments Ltd v Elmer Contractors Ltd [1989] QB 488 4

Fillite (Runcorn) v AquaLift (1989) 26 Const LR 66 4

Harbour Assurance Co (UK) Ltd v Kansa General International Insurance 4

vi

[1993] QB 701

The Angelic Grace [1995] 1 Lloyds Rep 87 4

Cape Flattery Ltd v Titan Maritime, LLC (The Cape Flattery), 607 F. Supp. 2d.

1179

4

White Rosebay Shipping SA v Hong Kong Chain Glory Shipping Ltd [2013]

EWHC 1355 (Comm) (23 May 2013)

4

Jones v Sherwood Computer Services Ltd [1992] 1 WLR 277 5

Norwich Union Life Insurance Society v P&O Property Holdings [1993] EGLR

164

5

Leduc v. Ward (1779) 1 Doug. 284 5

Morrison v. Shaw Savill [1916] 2 K.B. 783, 797 5

Baulderstone Hornibrook Engineering Pty Ltd v Kayah Holdings Pty Ltd (1997)

14 BCL 277

6

L Brown & Sons Limited v Crosby Homes (North West) Limited, [2005] EWHC

3503

6

Fulham Football Club (1987) Ltd v. Sir David Ichards and The Football

Association Premier League Ltd [2010] EWHC 3111

7

Bankers Trust International v. Todd Shipyards Corp, The Halcyon Isle [1981]

AC 221, [1980] 3 All ER 197, [1980] 3 WLR 400, [1980] 2 Lloyd's Rep 325,

124 Sol Jo 479

7

Daniel Harmer v William Errington Bell and Others ("In Rem Jurisdiction of

English Admiralty Courts") 13 E.R. 884 (1851)

7

Republic of India v. India Steamship Co. Ltd (The Indian Grace) (No. 2) [1998]

1Lloyd's Rep. 1. 4NJJ

7

Monmouthshire County Council v. Costelloe & Kemple Ltd (1965) 5 BLR 83 8

vii

Leduc v. Ward (1888) 20 Q.B.D. 475, 481 9

Glynn v. Margetson [1893] A.C. 351, 354 9

Clayton v. Simmonds [1741] 9

Hadley v. Baxendale (1854) 8 Ex 341 9

Davis v. Garrett (1830) 6 Bing. 716, 725 9

Reardon Smith v. Black Sea Insurance [1939] A.C. 562 9

Phelps, James & Co v. Hill [1891] 1 QB 605 CA 10

Brightman & Co v. Bunge y Born [1924] 2 K.B. 619 10

Holcim (Singapore) Pte Ltd v. Precise Development Pte Ltd [2011] 2 SLR 106

at [66]

11

Chartered Bank v. British India, S.N. Co. (1909) A.A. 369, 375 11

Mondial Shipping and Chartering BV v. Astarte Shipping Ltd [1995] CLC 1011 12

Notara v. Henderson (1872) LR 7 QB 225 12

Robinson v. Harman (1848) 1 Ex Rep 850 13

Victoria Laundry (Windosr) LD. v. Newman Industries LD 13

Slater v. Hoyle & Smith Ltd [1920] 2 KB 11 (CA) 17 14

Louis Dreyfus Trading Ltd v. Reliance Trading Ltd [2004] 2 Lloyd‟s Rep 243 14

KG Bominflot Bunkergesellschaft fur Mineralole mbH & Co v. Petroplus

Marketing AG [2012] EWHC 3009 (Comm)

14

Williams Bros v. Ed T Agius Ltd [1914] AC 510, 523 14

Harmer v. Bell (The “Bold Buccleugh”) [1851] EngR 985 7, 15

Ships “Hako Endeavour”, “Hako Excel”, “Hako Esteem” and “Hako

Fortress” v. Programmed Total Marine Services Pty Ltd [2013] FCAFC 21 (26

February 2013)

15, 17

viii

Clay v. Snelgrave (1700) 1 Ld Raym 576 15

The Tolten, “The Two Ellens” LR 4 PC 15

Commandate Marine Corporation v. Pan Australia Shipping Pty Ltd 15

The “Albion” 1 Asp MLC 401 15

The “Tagus” [1903] P 15

Bofinger v. Kingsway Group Limited [2009] HCA 44 16

Yonge v. Reynell [1852] EngR 655 16

O’Day v. Commercial Bank of Australia Ltd [1933] HCA 37 16

Friend v. Brooker [2009] HCA 21 16

Barclays Bank Ltd v. Quistclose Investments Ltd [1970] AC 567 16

Conservative & Unionist Central Office v Burrell [1982] 1 WLR 522 16

Walsh v Lonsdale [1882] Ch D 9 16

The “Petone” [1917] P 198 16

The Andalina (1886) 12 P.D. 1 18

The Leo (1862) Lush 444 18

Birkley v. Presgrave (1801) 1 East 220, 228-229 (Lawrence J) 18

Kidston and Others v. The Empire Marine Insurance Company (1867) LR 1 CP

535

18

Eisenerz GmbH v. Federal Commerce and Navigation Co Ltd (“The Oak Hill”)

[1970] 2 Lloyd‟s Rep 332, affirmed [1975] 1 Lloyd‟s Rep 105

19

Svendsen v. Wallace Bros (1884) 13 QBD 69, 87–88, 19

Goulandris Bros v. Goldman & Sons [1958] 1 QB 74 19

Guinomar of Conakry v. Samsung Fire & Marine Insurance Co. Ltd (“The 19

ix

Kamsar Voyager”) [2002] 2 Lloyd‟s Rep 57

Rey Banano del Pacifico CA & Ors v Transportes Navieros Ecuatorianos &

Anor, Court of Appeal - Commercial Court, February 24, 2000, [2000] EWHC

215 (Comm)

19

The Isla Fernandina [2000] 2 Lloyd‟s Rep 15 19

The Dias [1978] 1 Lloyd‟s Rep 325 20

Cawthron v. Trickett (1864) 15 CB (NS) 74 20

William Alexander v. Akt. Hansa [1920] A.C. 88 20

E.L. Oldendorff & Co GmbH v Tradax Export SA (The Johanna Oldendorff)

[1973] 3 All ER 148

20

TA Shipping Ltd v. Comet Shipping Ltd (The Agamemnon) [1998] 1 Lloyd‟s

Rep 675

20

Blue Anchor Line Ltd. v. Alfred C. Toepfer International (The Union

Amsterdam) [1982] 2 Lloyd‟s Rep. 432

21

Hammond v. Bussey (1880) 20 QBD 79 21

Hoenig v. Isaacs (1952) 2 All ER 176 22

A-G (UK) v Times Newspaper Ltd (No 2) [1990] 1 AC 109, 286 22

Book

Chitty on Contracts: General Principles 18

1

STATEMENT OF FACTS

1. On 18 July 2017, Cerulean Beans and Aromas Ltd (“Claimant”), a coffee supplier based in

Cerulean, entered into an agreement with Coffees of the World Ltd to supply 1,000 bags of

rare, high-quality, speciality grade green coffee (“the Cargo”) by 29 July 2017 for a coffee

festival in Dillamond.

2. On or around 22 July 2017, Claimant entered into a voyage charter party (“Charterparty”)

with Dynamic Shipping LLC (“Respondent”) for the urgent shipment of the coffee from

Cerulean to Dillamond on board the Madam Dragonfly (“the Vessel”). During the conclusion

of the Charterparty, Claimant stressed that the Cargo should arrive at Dillamond by 7 pm on

28 July, and that the containers used for the voyage were to be entirely waterproof.

Respondent claimed that the sealant it used provided waterproof protection for up to five

days.

3. A side agreement was made and conducted as a prerequisite to the voyage. Claimant was to

pay the crew‟s wages in the amount of USD 100,000 to a separate account specifically made

by Respondent for that purpose, as the crew would not sail otherwise.

4. On 24 July 2017, the Cargo was loaded onto the Vessel, and a corresponding dock receipt

was released. The Vessel began its voyage to Cerulean the same day, with expected arrival at

5 pm on 28 July 2017.

5. At 2.32 pm on 26 July 2017, Claimant was informed of a solar flare that had disabled the

Vessel‟s navigational and communication systems for 17 hours, and that the Vessel

subsequently deviated to the port of Spectre to which it had hardcopy maps.

6. On 27 July 2017, Claimant demanded assurance that the vessel would arrive at Dillamond by

7 pm on 28 July. The same day, the Vessel continued its voyage.

7. At 4.58 pm on 28 July 2017, Respondent informed Claimant that there was a massive storm

about to hit Dillamond preventing the Vessel from proceeding past its location then.

2

8. At 11.45 pm the same day, Claimant seeks news from Respondent on the whereabouts of the

vessel after having its staff waits since 4.30 pm the same day. Respondent did not respond.

9. At 8.58 am on 29 July 2017, Respondent notified Claimant that the vessel was waiting for a

berth at the place instructed by the port, around 100 nautical miles from Dillamond. At 4.28

pm, Respondent again notified Claimant that the vessel was due to berth in 30 minutes, and

that delivery of the cargo would be approximately 2 hours later. Along with the notification,

Respondent sent a barcode to retrieve the cargo from the container port in the event that

Claimant was unable to do it before midnight the same day. At 8.42 pm, the cargo had

become available for collection.

10. At 12 am on 30 July 2017, Respondent left the cargo at the port‟s shipping containers. Later

findings showed that somewhere from 4.30 am the same day, 3 of the 4 containers used were

damaged due to the sealant breaking and rainfall.

11. At 1.17 pm on 31 July 2017, Claimant retrieved the containers and found it in damaged

condition. Claimant was forced to purchase an urgent supply of specialty grade coffee valued

USD 9,450,000, and pay settlement money in the value of USD 5,000,000 under the contract

with Coffees of the World Ltd. On 1 August 2017, Claimant demanded the damages it

incurred, totaling USD 30,200,000 from Claimant by 7 August 2017.

12. On 7 August 2017, Respondent sent notice of the alleged late payment for its performance of

the Charterparty. The next day, Claimant refused the invoice, and stated that its non-payment

was justified owing to its legal deal under the side agreement.

13. On 11 August 2017, Claimant referred the dispute to arbitration pursuant to Clause 27(a) of

the Charterparty. The Tribunal was then properly constituted under the terms of the

Charterparty.

3

ARGUMENT ON JURISDICTION

I. THE TRIBUNAL POSSESS JURISDICTION OVER CLAIMANT’S CLAIMS

FOR DAMAGES

A. THIS TRIBUNAL HAS JURISDICTION OVER THE PRESENT DISPUTE

1. The Tribunal is the chosen forum of the dispute resolution by the parties

14. Parties to a dispute have the autonomy to choose the arbitration regime to govern their

dispute resolution.1 As stated in the Points of Claim and Counterclaim, the dispute existing

between Claimant and Respondent pertain to the performance of the Voyage Charterparty

dated 22 July 2017.2 Clause 27. Arbitration of said Charterparty contains the choice of the

Parties to resolve such disputes in arbitration in London, subject to the arbitration rules of the

LMAA.3 Hence, in the present case, the Tribunal does have in personam jurisdiction over the

Parties.

2. The Tribunal has the power to determine its own jurisdiction

15. Term 6(a) of the LMAA Terms governing these proceedings provides that absent any

agreement to the contrary, the Parties agree that the law applicable to the arbitration

agreement is English.4 As the Parties are silent on the procedural law of the arbitration,

5 the

1 Arbitration Act 1996 (UK) c 23, s 30; Christopher Brown Ltd v Genossenschaft

Oesterreichischer Waldbesitzer Holzwirtschaftsbetriebe Registrierte GmbH [1954] 1 QB

8, 12-3 (Devlin J); Engineering Company v Engineering Company (Final Award) (1999)

XXIV Yearbook Commercial Arbitration 80, 83; Gary B Born, International Commercial

Arbitration (Kluwer Law International, 2nd ed, 2014) vol I, 1050-1; Nigel Blackaby and

others, Redfern & Hunter on International Arbitration (5th edn, Oxford University Press

2009) para 5.99. 2 Moot Scenario (15 December 2017), at 37.

3 Ibid, Clause 27(a).

4 The London Maritime Arbitrators Association Terms 2017, Term 6(a).

5 Moot Scenario (15 December 2017), at 12, Clause 27(a).

4

UK Arbitration Act of 1996 (“the Act”) applies.6 Section 30(1) of the Act affirms the

principle of Kompetenz-Kompetenz - that is, that the Tribunal can rule on its own

jurisdiction.7 As such, the mere assertion by Respondent that this Tribunal possesses no

jurisdiction over the submitted claims does not, in itself, constitute a bar to jurisdiction.

B. THE CLAIMS OF CLAIMANT ARE ARBITRABLE BY THE TRIBUNAL

1. The Tribunal has the power to award damages on the cargo

a. The claim on damages arose out of the Charterparty

16. The operative phrase in Clause 27(a) is “any disputes arising out of or in connection with this

contract”. The use of the words “arising out of” covers a wide set of disputes concerning the

contract, including on its performance and consequences flowing therefrom.8

17. In this instance, the damages claimed by Claimant are concerned with the damage inflicted

on the cargo by Respondent‟s negligence during its performance of the Charterparty.9

Consequently, it is a claim that falls under the heading of disputes arising out of the

Charterparty.

6 The Ioanna [1978] 1 Lloyd‟s Rep 238 (CA); Verity Shipping SA v NV Norexa [2008] 1

Lloyd‟s Rep 652 (QBD). 7 Arbitration Act 1996 (UK) c 23, s 30 (1).

8 See, e.g., Heyman v Darwins Ltd [1942] AC 356; Mackender v Feldia [1967] 2QB 590;

The Evje [1975] AC 797; The Playa Larga [1983] 2 Lloyds Rep 171; Antonis P Lemos

[1985] AC 711; Ashville Investments Ltd v Elmer Contractors Ltd [1989] QB 488; Fillite

(Runcorn) v AquaLift (1989) 26 Const LR 66; Harbour Assurance Co (UK) Ltd v Kansa

General International Insurance [1993] QB 701; The Angelic Grace [1995] 1 Lloyds Rep

87; Cape Flattery Ltd v Titan Maritime, LLC (The Cape Flattery), 607 F. Supp. 2d. 1179

at 924. 9 White Rosebay Shipping SA v Hong Kong Chain Glory Shipping Ltd [2013] EWHC 1355

(Comm) (23 May 2013); Ignacio Arroyo, Yearbook Maritime Law 1984 (Business Media,

2013).

5

b. The claim does not involve a technical matter within the ambit of the

Charterparty

18. Clause 27. Arbitration concluded between Claimant and Respondent specifies that disputes as

to technical matters to be referred to expert determination by an independent Master Mariner

prior to its institution to arbitration.10

19. The Master Mariner‟s role is confined to the narrow technical issues stipulated in the

contract,11

which in this case matters surrounding the technical aspects of the performance of

the Charterparty which can reasonably be considered to be within his expert technical

knowledge.12

20. In this instance, neither of the issues on damages: (i) Respondent‟s deviation, or (ii) the

cargo‟s storage at Dillamond, involve technical matters.

i. The issue of deviation does not involve a technical matter

21. While it is true that a question requiring factual determination should foremost be submitted

to an expert13

- i.e., a technical matter under the Charterparty, the issue of deviation in this

case does not fall within that ambit. The only circumstances under which the issue would be a

technical matter would be if it pertains solely to the vessel‟s route,14

that is, whether the

vessel did take the most direct route to its port of destination.15

10

Moot Scenario (15 December 2017), at 12, Clause 27(d). 11

Jones v Sherwood Computer Services Ltd [1992] 1 WLR 277. 12

Moot Scenario (15 December 2017), at 12, Clause 27(g). 13

Norwich Union Life Insurance Society v P&O Property Holdings [1993] EGLR 164. 14

Moot Scenario (15 December 2017), at 12, Clause 27(g). 15

See, e.g., Leduc v. Ward (1779) 1 Doug. 284; Morrison v. Shaw Savill [1916] 2 K.B. 783,

797.

6

22. The vessel having deviated from the most direct route is a fact acknowledged by both

Parties,16

and as such is not the issue raised. Instead, the issue raised is whether, given the

factual circumstances of the case, Respondent should be held liable for the damages caused

by that deviation. That is a question of legal determination,17

and falls entirely within the

scope of the Tribunal‟s jurisdiction.18

ii. The issue of the Cargo’s storage at the Port does not involve a

technical matter

23. Technical matters are those that fall exclusively within the expert technical knowledge of a

Master Mariner.19

The „storage‟ that would be included in the scope of those matters20

would

solely pertain to onboard storage,21

and not the storage after the cargo‟s discharge. In this

case, as Claimant‟s claim focuses solely on the latter issue, it does not fall within the scope of

technical matters enumerated in the Charterparty.

2. The Tribunal has the power to declare the maritime lien on the Madam

Dragonfly

a. The claim on damages arose out of the Charterparty

24. Disputes arising out of a side agreement to the main contract fall in the scope of disputes in

connection with said contract.22

Here, the dispute concerning the maritime lien arose out of a

side agreement with respect to the payment of the crew, which was a prerequisite to the

16

Moot Scenario (15 December 2017), at 18. 17

Baulderstone Hornibrook Engineering Pty Ltd v Kayah Holdings Pty Ltd (1997) 14 BCL

277. 18

Moot Scenario (15 December 2017), at 12, Clause 27(a). 19

Ibid, Clause 27(g). 20

Ibid. 21

See, e.g., Ibid, Clause 1, 8(e), (f), 29. 22

L Brown & Sons Limited v Crosby Homes (North West) Limited, [2005] EWHC 3503.

7

commencement of the main contract of voyage.23

As a consequence, it should be regarded as

a dispute that is in connection with the Charterparty.

b. The claim does not involve an action beyond the jurisdiction of the

Tribunal

25. The Tribunal‟s lack of power to order an arrest of the vessel as a consequence of a maritime

lien does not bar it from examining the subject-matter of the lien, given that it pertains to an

in personam issue.24

26. First, Claimant‟s claim of equitable subrogation of a maritime lien, although giving rise to a

right to an arrest in rem,25

stems from a claim in personam with regards to the non-

performance of an obligation.26

27. Second, the claim of a maritime lien should be accepted as lying not only against the vessel,

but also the party having an interest in said vessel,27

Respondent in this case. Consequently, it

is a matter that is arbitrable by the Tribunal.

C. THE TRIBUNAL HAS THE POWER TO APPLY THE LAWS GOVERNING THE CLAIMS

OF CLAIMANT

28. Article 46 of the Act, which governs the substantive law of the dispute,28

grants the Tribunal

jurisdiction to apply (a) the substantive laws of New South Wales to the dispute on damages,

23


Fulham Football Club (1987) Ltd v. Sir David Ichards and The Football Association

Premier League Ltd [2010] EWHC 3111. 25

Bankers Trust International v. Todd Shipyards Corp, The Halcyon Isle [1981] AC 221,

[1980] 3 All ER 197, [1980] 3 WLR 400, [1980] 2 Lloyd's Rep 325, 124 Sol Jo 479;

Daniel Harmer v William Errington Bell and Others ("In Rem Jurisdiction of English

Admiralty Courts") 13 E.R. 884 (1851). 26

Ibid. 27

Republic of India v. India Steamship Co. Ltd (The Indian Grace) (No. 2) [1998] 1Lloyd's

Rep. 1. 4NJJ Gaskell, C Debattista, & RJ Swatton. Chorley & Giles' Shipping Law 7 (8th

ed., Pearson Education Ltd. 1987).

8

and (b) the substantive laws of the UK to the dispute on the maritime lien over the Madam

Dragonfly.

1. The Tribunal can apply the laws of New South Wales to the dispute on

damages

29. Article 46(1)(a) provides that the Tribunal shall decide the dispute in accordance with the law

chosen by the parties as applicable to the substance of the dispute.29

The dispute between the

Parties concerning the damages in respect of the cargo, having existed out of the performance

of the Charterparty,30

is governed under Clause 26. Law, which provides for New South

Wales law to be applied. Consequently, this Tribunal has the power to apply such laws to said

dispute.

2. The Tribunal can apply the laws of the United Kingdom to the dispute on

the maritime lien over the Madam Dragonfly

30. Having involved a different claim,31

the dispute on the maritime lien should be regarded as a

separate dispute.32

As a consequence, the Tribunal has the power to apply Article 46(3),

where to the extent that there is no explicit choice of law, the Tribunal can apply the law

determined by the conflict of laws rules that is applicable to the case.33

31. In the present case, as the maritime lien incurs the liability of Respondent in personam as

established supra, the Tribunal can apply the law of Respondent‟s place of business. Thus,

the laws of Cerulean, which incorporates the laws of the UK, applies with respect to the

maritime lien.

28

Arbitration Act 1996 (UK) c 46. 29

Ibid, c 46 (1) (a). 30

Moot Scenario (15 December 2017), at 12, Clause 28. 31


Monmouthshire County Council v. Costelloe & Kemple Ltd (1965) 5 BLR 83. 33

Arbitration Act 1996 (UK) c 46 (3).

9

ARGUMENT ON MERITS

II. RESPONDENT IS LIABLE TO CLAIMANT FOR DAMAGE COMPRISING

ACCOUNTS OF THE DAMAGED CARGO, REPLACEMENT COFFEE

PAYMENT, AND SETTLEMENT PAYMENT

A. RESPONDENT IS RESPONSIBLE FOR THE DAMAGES TO THE CARGO

1. Respondent is responsible for the deviation causing damages to the cargo

32. A Carrier must take the direct or usual route to reach the port of discharge;34

else it would be

liable for damages for deviation.35

In this case, Respondent is responsible for the effects of its

deviation, a) which had been the indirect result of its deviation, and b) for which it was not

entitled to protection under force majeure.

a. The cargo’s damage was the indirect result of Respondent’s deviation

33. A Carrier is liable for indirect losses if the damages are reasonably foreseeable as the result of

a breach of contract at the time.36

Deviation being a breach of contract,37

what remains to be

established is whether Respondent should have foreseen the possibility of the cargo being

damaged as a consequence, given the facts of the case at hand.

34. The facts of the case are: First, the waterproof sealant lasted up to five days,38

and would

have definitively expired had the vessel arrived on July 29.

34

Leduc v. Ward (1888) 20 Q.B.D. 475, 481. 35

Glynn v. Margetson [1893] A.C. 351, 354; Clayton v. Simmonds [1741]; UCL Journal of

Law and Jurisprudence, p. 116. 36

Hadley v. Baxendale (1854) 8 Ex 341. 37

Davis v. Garrett (1830) 6 Bing. 716, 725; Reardon Smith v. Black Sea Insurance [1939]

A.C. 562. 38

Moot Scenario (15 December 2017), at 14.

10

35. Second, the deviation had cost the Madam Dragonfly 17 hours of its voyage,39

which was

expected to end at 5 PM on July 28.40

This means the vessel should have foreseeably arrived

on July 29 even without the storm,41

at which point the sealant would have expired.

36. Third, the Expert Opinion provided conclusive proof that the cargo was damaged due to the

sealants‟ prolonged use,42

which should have been foreseeable by Respondent given the

circumstances of the case. As a consequence, it is liable for the damages caused, even

indirectly, by its deviation.

b. Respondent does not benefit from protection under force majeure

37. The only circumstances in which Respondent would not be liable would be by a contractual

exclusion under the force majeure clause.43

However, that does not apply because

Respondent‟s fault is at play for the deviation causing the damages to the cargo,44

not the

force majeure events it alleged.45

38. Force majeure exempts non-performance of an obligation solely when it directly causes the

inability in question.46

Respondent is under the obligation to demonstrate the causal effect of

the force majeure towards its inability to perform its obligation,47

and it had taken reasonable

39

Ibid, at 17. 40

Ibid, at 15. 41

See Ibid, at 19-22. The storm lasted until 8 pm, causing only a 4-hour delay until the vessel

arrived at the waiting place of the port at 7 am. This means that had the storm not

occurred, the vessel still would have arrived at its berth approximately 3 am on 29 July if

there had been no queue. 42

Ibid, at 43. 43

Davis v. Garrett (1830) 6 Bing. 716, 725 per Tindal C.J. 44

Phelps, James & Co v. Hill [1891] 1 QB 605 CA. 45


McKendrick, E. Force Majeure and Frustration of Contract (Lloyd‟s of London Press, 2nd

ed, 1995). 47

Brightman & Co v. Bunge y Born [1924] 2 K.B. 619.

11

steps to mitigate its effects.48

In the present case, Respondent cannot assert such grounds as

the deviation itself was not the direct effect of the solar flares, nor was it non-mitigable.

39. Respondent‟s deviation, although made following the solar flares, was not a direct

consequence thereof. Rather, it was caused by the lack of hard copy maps for the voyage to

the Port of Dillamond, and instead only ones for the Port of Spectre.49

Even with its

awareness of the potential occurrence of the flares during the two-week period after 18 July,50

Respondent failed to take any mitigating steps to prevent its impact on the voyage.

Consequently, Respondent cannot benefit from protecting under the force majeure.

2. In any event, Respondent breached its duty to keep the cargo safe until its

delivery

40. Even if the deviation was to be held too remote as the cause of damage, Respondent is

nonetheless liable for neglecting their duty of care. A carrier‟s duty of care remains until the

right and true delivery of the cargo,51

which occurs when it is placed under the absolute

dominion and control of the consignees.52

41. As a consequence, the cargo could only be said to be under the control of Claimant when the

electronic access system, which gave Claimant access to the offloaded cargo,53

took effect. In

spite of it being sent on 29 July,54

the electronic access system did not take effect until 30

48

Holcim (Singapore) Pte Ltd v. Precise Development Pte Ltd [2011] 2 SLR 106 at [66]. 49


Ibid, at 35. 51

Henderson v. Merrett Syndicates [1995] 2 A.C. 145. 52

Chartered Bank v. British India, S.N. Co. (1909) A.A. 369, 375. 53


Ibid, at 22.

12

July 2017, which was a Sunday and not a working day.55

As such, the delivery of the cargo

could only be said to occur on 31 July, which was the next working day.56

42. Respondent‟s duty of care, in this case, comes with the obligation to keep the containers

carrying the cargo entirely waterproof.57

As such, from the time of the cargo‟s discharge and

until it is received by Claimant, Respondent was under the duty to take measures to avoid

water damage to the cargo from any preventable cause.58

On the contrary, even in spite of its

awareness that the sealant expired on 29 July,59

and the existence of pouring rain at the Port

of Dillamond on that date,60

Respondent elected to leave the cargo exposed at the Port‟s

shipping containers.61

B. CLAIMANT IS ENTITLED TO COMPENSATION FOR THE DAMAGES INCURRED

1. Respondent is liable for the entire value of the damaged Cargo

a. Respondent is liable for direct damages for the Cargo

43. The foremost liability is that for direct damages, which arise naturally from the breach of

contract.62

Here, the actions of Respondent as explained supra were the primary reason

behind the damage inflicted on the cargo sometime in the 24 hours from 4.30 a.m. on 30

July,63

a period of time when the cargo supposed to be still under its duty of care. Hence,

Respondent as the party who was negligent to perform its duty to deliver the cargo until it

was safely received hereto still had the liability to put Claimant in the same financial position

55

Ibid, at 24. 56

Mondial Shipping and Chartering BV v. Astarte Shipping Ltd [1995] CLC 1011. 57


Notara v. Henderson (1872) LR 7 QB 225, Court of Exchequer Chamber. 59


Ibid, at 36. 61

Procedural Order 2, at 18. 62

Hadley v. Baxendale (1854) 9 Exch 341. 63


13

as if the contract had been performed.64

Thus, Respondent is liable to the direct damages

upon the damaged cargo in the sum of USD 15,750,000.65

b. Respondent does not benefit from the limitation of

44. The Hague Visby Rules stipulated that neither the carrier nor the ship shall be entitled to the

benefit of the limitation of liability if it is proved that the damage resulted from an act or

omission of the carrier done with the knowledge that its action will lead to loss.66

45. In this case, that omission occurred when Respondent negligently left the cargo unprotected

at the shipping containers on July 29.67

When it did so, Respondent could not have been

unaware of the sealant‟s expiry on July 29,68

and the existence of pouring rain at the Port of

Dillamond on that date.69

Its choice to leave the cargo regardless means that it had assumed

this risk, and should be held liable for it - consequently, it cannot benefit from the limitation

of liability clause.

2. Respondent is liable for indirect damages for the losses incurred by

Claimant

a. The damages were foreseeable at the time of the making of the contract

46. Indirect damages are recoverable should they have been in the contemplation of both parties

at the time entering into the contract as the probable result of the breach of it.70

Here,

64

Robinson v. Harman (1848) 1 Ex Rep 850 at 855. 65


The Hague Visby Rules, Article 4 (5) (e); Article 4bis (4). 67

Procedural Order 2, at 18. 68


Ibid, at 36. 70

Victoria Laundry (Windosr) LD. v. Newman Industries LD. ; Hadley v. Baxendale (1854) 8

Ex 341.

14

Claimant claims two forms of indirect damages, comprising USD 9,450,000 for Replacement

Coffee Payment and USD 5,000,000 on account of the Settlement Payment.71

47. Both of these were entirely foreseeable given the circumstances in which the Charterparty

was concluded. Claimant had clearly stated that the coffee, a rare, high-quality, speciality

grade, is at high risk for moisture damages.72

Additionally, Claimant mentioned that the

shipment was for purposes of a separate contract with Coffees of the World Ltd.73

Given

these facts, Respondent should have been aware that should the coffee be damaged in its care,

Claimant would be liable for any resulting losses

b. The damages were incurred reasonably

48. The party suffering losses should be expected to act prudently in the given circumstances.74

Both the damages incurred by Claimant are reflections of that act.

49. First, on account of the Replacement Coffee Payment, purchasing a replacement for damaged

goods used within a subcontract is generally accepted as a lawful mitigation in the event of

non-delivery.75

50. Second, on account of the Settlement Payment, Claimant avoided potential convoluted

litigation by its client,76

which was only possible entirely due to Respondent‟s failure to

deliver the cargo. Consequently, Claimant had acted fully reasonably, and should be

compensated for the losses it incurred.

71


Ibid, at 2. 73

Ibid. 74

Slater v. Hoyle & Smith Ltd [1920] 2 KB 11 (CA) 17; Louis Dreyfus Trading Ltd v.

Reliance Trading Ltd [2004] 2 Lloyd‟s Rep 243 at 21-22. 75

KG Bominflot Bunkergesellschaft fur Mineralole GmbH & Co v. Petroplus Marketing AG

[2012] EWHC 3009 (Comm); Williams Bros v. Ed T Agius Ltd [1914] AC 510, 523 76


15

III. CLAIMANT HOLDS A MARITIME EQUITABLE LIEN OVER THE MADAM

DRAGONFLY

A. THERE EXIST A MARITIME LIEN FOR WAGES OVER THE MADAM DRAGONFLY

51. The laws of the UK govern the maritime lien on the Madam Dragonfly in rem,77

which as of

the date of these proceedings remains in Dillamond.78

Said laws recognize maritime lien for

unpaid crew wages both in admiralty79

and in statute.80

In this case, the crew of the Madam

Dragonfly has not been paid for their wages by Respondent,81

creating a maritime lien that

adheres to the vessel until the time that it is extinguished.82

B. CLAIMANT IS ENTITLED TO A SUBROGATION OF THE MARITIME LIEN THROUGH

ITS PAYMENT TO THE WAGES ACCOUNT

52. A maritime lien, in its true construction, is an action against the vessel,83

even though it

involves the fault of its owner in personam. As such, payment on behalf of the vessel to the

privileged creditor - the crew, in the case for a claim for wages,84

would by virtue of equity

transfer their rights to the payer.85

In this case, Claimant is entitled to a subrogation of the

maritime lien as: (1) Claimant had paid the wages of the crew, and (2) It had been made on

behalf of the vessel

77

Harmer v. Bell (The “Bold Buccleugh”) [1851] EngR 985; (1851) 7 Moo PC 267 at 284-

285 [1851] EngR 985; (13 ER 884 at 890-891). 78

Moot Scenario (15 December 2017), at 36, 45. 79

Ships “Hako Endeavour”, “Hako Excel”, “Hako Esteem” and “Hako Fortress” v.

Programmed Total Marine Services Pty Ltd [2013] FCAFC 21 (26 February 2013), at 94,

citing Holt LCJ in Clay v. Snelgrave (1700) 1 Ld Raym 576 at 578 80

UK Merchant Shipping Act 1995, s. 39(1). 81


The Tolten, “The Two Ellens” LR 4 PC, at 169. 83

Commandate Marine Corporation v. Pan Australia Shipping Pty Ltd; Ships “Hako

Endeavour”, “Hako Excel”, “Hako Esteem” and “Hako Fortress” v. Programmed Total

Marine Services Pty Ltd [2013] FCAFC 21 (26 February 2013). 84

The “Albion” 1 Asp MLC 401. 85

The “Tagus” [1903] P at 54; The “Albion” 1 Asp MLC 401

16

1. Claimant had paid the wages of the crew by virtue of payment to the

account

53. The first prerequisite for equitable subrogation is that Claimant had satisfied the debt owed to

the crew for their wages.86

In this case, as a side agreement to the Charterparty, Claimant had

agreed to pay USD 100,000 in wages to the crew as security.87

This effectively created a trust

relationship, wherein in the event of Respondent‟s personal default, Respondent as trustee

should transfer the funds to the crew as beneficiary.88

54. As a consequence, when Respondent failed to pay the crew, Claimant‟s funds effectively

constituted payment to the crew.89

The fact that Respondent has not transferred said funds to

the crew90

does not alter this notion. Equity regards as done that which ought to be done91

- in

this case, having paid the funds as trustor, equity regards Claimant has having paid off the

crew.

2. The payment was made on credit of the vessel

55. The second prerequisite for equitable subrogation is that the payment was done on behalf of

the vessel, as opposed to being a voluntary action.92

In this case, Claimant did not on their

own accord pay off the crew, but did so out of a contractual requirement to conduct the

Charterparty.93

That requirement was made with the basis that the crew would consequently

86

Bofinger v. Kingsway Group Limited [2009] HCA 44; (2009) 239 CLR 269 at 280-281;

Yonge v. Reynell [1852] EngR 655; (1852) 9 Hare 809 at 818-819; O’Day v. Commercial

Bank of Australia Ltd [1933] HCA 37; (1933) 50 CLR 200 at 223; Friend v. Brooker

[2009] HCA 21; (2009) 239 CLR 129 at 153. 87


Barclays Bank Ltd v. Quistclose Investments Ltd [1970] AC 567; Conservative & Unionist

Central Office v Burrell [1982] 1 WLR 522. 89

Ibid. 90


Walsh v Lonsdale [1882] Ch D 9, at 14-15. 92

The “Petone” [1917] P 198. 93


17

be willing to sail,94

and not exercise their right to seize the ship. As a consequence of the

above, Claimant possesses the right to enforce the crew‟s rights and remedies against the

ship,95

and of subrogation of the maritime lien against the ship.

94

Ibid. 95

Ships “Hako Endeavour”, “Hako Excel”, “Hako Esteem” and “Hako Fortress” v.

Programmed Total Marine Services Pty Ltd [2013] FCAFC 21 (26 February 2013), at 101.

18

IV. CLAIMANT IS NOT LIABLE TO RESPONDENT FOR AMOUNTS OWING

UNDER THE CHARTERPARTY FOR FREIGHT, AGENCY FEES, COST OF

REPAIRS, DEMURRAGE, AND USE OF ELECTRONIC ACCESS SYSTEMS

A. CLAIMANT HAS NO OBLIGATION TO PAY RESPONDENT ANY AMOUNTS DUE TO

THE LIEN IT HAS OVER THE MADAM DRAGONFLY

56. A maritime lien grants the holder not only lien over the vessel, but also the freight earned.96

As Claimant in effect holds a lien over the freight it owes to Respondent, it has no obligation

to pay Respondent until a declaration otherwise by the Tribunal, or until Respondent pays the

value of the lien to Claimant.

B. CLAIMANT IS NOT LIABLE FOR AGENCY FEES AT THE PORT OF SPECTRE

57. Clause 23. Charges are silent on whether Claimant or Respondent should be responsible for

fees incurred at an intermediate port.97

In that absence, Claimant‟s liability would be invoked

in the case of a particular charge.98

However, Claimant is not liable for such fees as: (1) the

agency fees were not particular charges, and (2) in any event, Respondent‟s fault bars its

claim thereof.

1. The agency fees were not particular charges

58. A particular charge is one that is incurred for saving or preserving the cargo.99

Parallel with

the instance of a general average loss,100

for the agency fees to be claimed as a particular

96

The Andalina (1886) 12 P.D. 1 at 3; The Leo (1862) Lush 444 at 447. 97

Moot Scenario (15 December 2017), at 11, Clause 23. 98

Chitty on Contracts: General Principles at 29-133; Birkley v. Presgrave (1801) 1 East 220,

228-229 (Lawrence J). 99

Kidston and Others v. The Empire Marine Insurance Company (1867) LR 1 CP 535;

(1867) LR 2 CP 357; Benecke on Marine Insurance, 472, Lond. 1824. 100

The York-Antwerp Rules, Rule A.

19

charge, it requires: First, an establishment of direct and unbroken causation,101

and Second,

that the loss be inevitable.102

Such principles contradict the facts of the present case.

59. First, agency fees are costs additional to that incurred by way of mere deviation to a port,103

and as such is not the direct result of the deviation.

60. Second, the agency fees would have been avoidable had the vessel‟s systems been up to date,

under which circumstances it would have come back after four hours,104

not necessitating any

handling of the vessel and cargo.

2. In any event, Respondent’s fault bars its claim of particular charges

61. The existence of fault bars any claim to losses by the ship-owner.105

Such fault is especially

pertinent in the case of unseaworthiness of the vessel,106

which includes the failure to equip it

with adequate charts and navigational aids.107

In the present case, the Madam Dragonfly

would not have deviated had it had maps to the Port of Dillamond, which Respondent had

failed to provide.108

As such, any expenses incurred as a consequence, including agency fees

at the Port of Spectre, cannot be claimed as a particular charge.

101

Australian Coastal Shipping Commission v. Green [1971] 1 QB 456, CA. 102

Eisenerz GmbH v. Federal Commerce and Navigation Co Ltd (“The Oak Hill”) [1970] 2

Lloyd‟s Rep 332, affirmed [1975] 1 Lloyd‟s Rep 105. 103

Svendsen v. Wallace Bros (1884) 13 QBD 69, 87–88, per Bowen LJ . 104


Goulandris Bros v. Goldman & Sons [1958] 1 QB 74; Hamilton v. Mendez, 2 Burrow,

1198 as cited from D. Akenhead and Sons, on the Sandhill, The Ships Owner’s Manual

(7th Ed, 1795, Maritime Law). 106

Australia Carriage of Goods by Sea Act, Article 4.1; Guinomar of Conakry v. Samsung

Fire & Marine Insurance Co. Ltd (“The Kamsar Voyager”) [2002] 2 Lloyd‟s Rep 57. 107

Rey Banano del Pacifico CA & Ors v Transportes Navieros Ecuatorianos & Anor, Court

of Appeal - Commercial Court, February 24, 2000, [2000] EWHC 215 (Comm); The Isla

Fernandina [2000] 2 Lloyd‟s Rep 15. 108


20

C. CLAIMANT IS NOT LIABLE FOR DEMURRAGE

62. Demurrage arises when a vessel is detained by a charterer beyond the agreed laytime.109

As

Charterer, Claimant is not liable for demurrage as (1) demurrage did not accrue at all during

the discharge of the cargo, and in any event, (2) the claim for demurrage is obstructed by

Respondent‟s negligence.

1. Demurrage did not accrue at all during the discharge of the Cargo

63. Although Respondent did wait until midnight for the collection of the cargo,110

this does not

mean that the vessel was detained during the entire period it claims. The detention of a vessel

occurs when the cargo remains in its carriage and has yet to be unloaded.111

Demurrage

would only begin accruing if this period of detention occurs beyond laytime,112

which

pursuant to Clause 8. Loading and Discharging, lasts 12 hours after the vessel‟s arrival at the

discharge port.113

64. To qualify as an arrived vessel, there are two prerequisites: first, that the vessel had reached

the place where vessels wait for a berth, and second, that it was made available to

Claimant.114

Although the vessel may have arrived at the waiting place at 7 am,115

it was not

until 8.58 am that Respondent sent notification of the vessel‟s arrival,116

thereby making it at

Claimant‟s effective disposal.117

This means demurrage would have begun accruing at 8.58

109

The Dias [1978] 1 Lloyd‟s Rep 325; John Schofield, Laytime and Demurrage, (CRC

Press, Dec 22, 2015), para 6.24. 110


Cawthron v. Trickett (1864) 15 CB (NS) 74. 112

William Alexander v. Akt. Hansa [1920] A.C. 88, at p. 94. 113

Moot Scenario (15 December 2017), at 6, Clause 8(c)(ii). 114

E.L. Oldendorff & Co GmbH v Tradax Export SA (The Johanna Oldendorff) [1973] 3 All

ER 148. 115


Ibid. 117

TA Shipping Ltd v. Comet Shipping Ltd (The Agamemnon) [1998] 1 Lloyd‟s Rep 675.

21

pm.118

On the other hand, the cargo was discharged by 8.42 pm,119

before the lapse of the

laytime. Hence, no demurrage is recoverable by Claimant.

2. In any event, the claim for demurrage is obstructed by Respondent’s

negligence

65. Demurrage is a claim inherently based on the detention of the vessel by the charterer,120

and

is not a remedy available to the shipowner if the grounding of the vessel is caused by his own

negligence.121

In the present case, any detention was solely by way of Respondent‟s fault.

Respondent made an unnecessary deviation to the Port of Spectre owing to its faulty

systems122

and lack of hardcopy maps.123

Without such deviation, it would have reached the

Port of Dillamond prior to the storm,124

where Claimant‟s crew had readily awaited the

delivery of the cargo.125

As such, Respondent is not entitled to claim demurrage.

D. CLAIMANT IS NOT LIABLE FOR THE USE OF THE ELECTRONIC ACCESS SYSTEMS

AT THE PORT OF DILLAMOND

1. The purchase of the electronic access systems was not necessary

66. Any costs that are not necessarily incurred by a party constitute a loss, the responsibility for

which lies on the party in default.126

In the present case, at the time of its purchase, the

electronic access system had been entirely unnecessary. The purchase was made before the

vessel arrived, and before Respondent had ensured that Claimant would not take delivery of

118

Moot Scenario (15 Desember 2017), at 20. 119

Ibid, at 24. 120

William Alexander v. Akt. Hansa [1920] A.C. 88, at p. 94. 121

Blue Anchor Line Ltd. V. Alfred C. Toepfer International (The Union Amsterdam) [1982]

2 Lloyd‟s Rep. 432 at p. 436. 122


Ibid, at 18. 124

Ibid, at 20-22. 125

Ibid, at 19-20. 126

Hammond v. Bussey (1880) 20 QBD 79.

22

the goods in time.127

Even though Claimant had later used the access,128

it does not constitute

acquiescence to the act,129

as Claimant had been unaware that it should shoulder the costs.130

2. In any event, it was incurred due to Respondent’s fault

67. Equity dictates that no party should be permitted to profit from their own wrongdoing.131

In

this case, Respondent cannot escape a cost it incurred due to its own fault. Given the

circumstances of the case, had Respondent delivered the cargo in time, Claimant‟s crew

would have readily waited to receive it.132

The storage costs incurred were entirely avoidable

if not for Respondent‟s unjustified delay. As such, it was a cost which must be borne by

Respondent, and cannot be imposed upon Claimant.

127


Ibid, at 24. 129

Hoenig v. Isaacs (1952) 2 All ER 176. 130


A-G (UK) v Times Newspaper Ltd (No 2) [1990] 1 AC 109, 286. 132

Moot Scenario (15 December 2017), at 20-21.

23

REQUEST FOR RELIEF

For the foregoing reasons, Claimant respectfully requests the Tribunal to adjudge and

declare that:

I. The Tribunal has jurisdiction over Claimant‟s claim for damages;

II. Respondent is liable to the Claimant for damages comprising accounts of the

damaged Cargo, Replacement Coffee Payment, and Settlement Payment;

III. Claimant holds a maritime equitable lien over the Madam Dragonfly

IV. Claimant is not liable to Respondent for amounts owing under the Charterparty

for freight, agency fees, cost of repairs, agency fees, demurrage, and use of

electronic access systems.

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