seventh draft of full defendant memo - murdoch university · national carriers ltd v panalpina...

SIXTEENTH ANNUAL

INTERNATIONAL MARITIME LAW ARBITRATION MOOT

2015

MEMORANDUM FOR DEFENDANT

THE UNIVERSITY OF SYDNEY

TEAM 13

ON BEHALF OF:

AGAINST:

LDT PTE

WESTERN TANKERS INC

DEFENDANT/CHARTERERS CLAIMANT/OWNERS

COUNSEL

Henry Cooper

Winnie Liu

Timothy Smartt

Bradley Smith

MEMORANDUM FOR RESPONDENT

I

TWENTY FIRST ANNUAL

WILLEM C. VIS INTERNATIONAL COMMERCIAL ARBITRATION MOOT

12 TO 17 APRIL 2014

MEMORANDUM FOR RESPONDENT

THE UNIVERSITY OF SYDNEY

ON BEHALF OF:

Hope Hospital

1-3 Hospital Road

Oceanside

Equatoriana

RESPONDENT

AGAINST:

Innovative Cancer Treatment Ltd

46 Commerce Road

Capital City

Mediterraneo

CLAIMANT

COUNSEL:

James Argent

Matthew Barry

Heydon Wardell-Burrus

Dominique Yong

TEAM 13 MEMORANDUM FOR DEFENDANT

II

TABLE OF CONTENTS

ABBREVIATIONS ................................................................................................................................. V

LIST OF AUTHORITIES ....................................................................................................................... VI

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

ARGUMENTS ON JURISDICTION .......................................................................................................... 2

I. THE TRIBUNAL DOES NOT HAVE JURISDICTION OVER THIS DISPUTE ..................................... 2

A. The Parties did not agree to London as the arbitral seat ...................................................... 2

B. The arbitral seat is Singapore ............................................................................................... 2

II. THE TRIBUNAL DOES NOT HAVE JURISDICTION TO HEAR A CLAIM FOR THE TORT OF

FRAUD .............................................................................................................................................. 3

A. The tort of fraud is unconnected to the obligations of the Parties under the Charterparty .. 4

B. The tort of fraud was not contemplated by the Parties and therefore does not arise out of

the Charterparty ........................................................................................................................... 4

ARGUMENTS ON THE MERITS OF THE CLAIM .................................................................................... 5

III. DEFENDANT DID NOT BREACH ITS DUTY TO PAY HIRE UNDER THE CHARTERPARTY ........ 5

A. There was no obligation to pay hire on 3 July 2014 ............................................................ 6

B. The Vessel was off-hire from at least 4 July 2014 onwards ................................................ 7

1. The piracy clauses imposed an obligation of due diligence on the Master in respect of

piracy ....................................................................................................................................... 7

2. The Master breached the due diligence obligation in the Special Provisions Piracy

Clause, which also constituted a neglect of duty under cl 21(a)(ii) ......................................... 8

3. The Master breached the Voyage Orders, also enlivening cl 21(a)(ii) ............................. 9

4. Giving one basis for an off-hire notice does not preclude DEFENDANT from later relying

on another basis that was available at the time ...................................................................... 10

C. The Charterparty was frustrated from at least 4 July ......................................................... 10


III

IV. ASA2 IS NOT, AND HAS NEVER BEEN, THE AGENT OF DEFENDANT ................................... 12

A. There was no agency agreement between DEFENDANT and ASA2 ................................... 12

1. ASA2 wrongfully represented itself as ASA, the entity named as DEFENDANT’s disport

agent in the Voyage Orders ................................................................................................... 12

2. An agency agreement between DEFENDANT and ASA2 cannot be implied ................... 13

B. The doctrine of apparent authority cannot render DEFENDANT liable for the actions of

ASA2 ......................................................................................................................................... 13

V. DEFENDANT DID NOT COMMIT THE TORT OF FRAUD ........................................................... 14

A. The representations relied on by CLAIMANT were true at the time they were made ......... 14

B. DEFENDANT’s representations were not dishonest ............................................................. 15

C. DEFENDANT did not intend for CLAIMANT to rely on ASA2’s representations ................. 15

D. There is insufficient proof that CLAIMANT did in fact rely on the representations ............ 16

E. There is insufficient proof of damage before the Tribunal ................................................ 16

ARGUMENTS ON THE MERITS OF THE COUNTER-CLAIM ................................................................ 16

VI. CLAIMANT PROVIDED A VESSEL THAT WAS UNFIT FOR SERVICE ...................................... 16

A. The Master was incompetent when he followed instructions other than those given by

DEFENDANT ................................................................................................................................ 16

1. The Charterparty required CLAIMANT to provide a master who could competently

manage the risk of piracy throughout the voyage .................................................................. 17

2. The Master was incompetent .......................................................................................... 17

3. CLAIMANT’s provision of the Master caused the loss of DEFENDANT’s cargo ............... 18

4. CLAIMANT did not exercise due diligence in selecting the Master ................................. 19

5. The damage was not so remote as to be unrecoverable .................................................. 19

B. The Master failed to follow the anti-piracy precautions required by the Charterparty ...... 20

1. The Master was obliged to implement BMP4 ................................................................ 20

2. CLAIMANT did not comply with BMP4 .......................................................................... 21


IV

3. The failure to comply with BMP4 caused DEFENDANT’s loss of cargo ......................... 21

4. The damage was not so remote as to be unrecoverable .................................................. 22

VII. CLAIMANT IS LIABLE FOR THE CONVERSION OF THE LOST CARGO ................................ 22

A. CLAIMANT wrongfully deviated from the agreed disport location .................................... 22

B. CLAIMANT is liable for the wrongful delivery of the cargo ............................................... 23

VIII. CLAIMANT BREACHED ITS DUTY OF CARE AS BAILEE OF THE CARGO ........................... 23

A. CLAIMANT failed to take reasonable care of the cargo by following voyage orders from a

third party .................................................................................................................................. 24

B. CLAIMANT failed to provide a seaworthy Vessel in compliance with BMP4 .................... 24

REQUEST FOR RELIEF ....................................................................................................................... 25


V

ABBREVIATIONS

ASA Atlantic Services Agency

ASA2 Atlantic STS Agency Ltd (ASA Angola Ltd)

BIMCO Piracy Clause BIMCO Piracy Clause for Time Charter Parties 2013

BMP4 Best Management Practices for Protection against Somalia

Based Piracy (Version 4 – August 2011)

Charterparty Agreement contained in recap including Shelltime 4 proforma

CLAIMANT Western Tankers Inc

COB Close of Business

DEFENDANT LDT Pte

GMT Greenwich Mean Time

Hague-Visby Rules International Convention for the Unification of Certain Rules

of Law relating to Bills of Lading 1924 as Amended by the

Brussels Protocol 1968 First Protocol 1968

IMB International Maritime Bureau

Master Captain Stelios Smith

MT Metric Tonnes

Parties CLAIMANT/Owners and DEFENDANT/Charterers

Recap Fully fixed recap

Record 2015 International Maritime Law Arbitration Moot Scenario

Special Provisions Piracy Clause Special Provisions Piracy Clause to the ST4 proforma

ST4 BIMCO Shelltime 4 proforma (December 2003)

STS Ship-to-ship

Vessel Western Dawn

WAF West Africa


VI

LIST OF AUTHORITIES

CASES & ARBITRAL AWARDS

Referred to at page:

Abu Dhabi National Tanker Co v Product Star Shipping Ltd [1991] 2 Lloyd’s Rep 468

5

AIC Ltd v ITS Testing Services (UK Ltd) [2007] 1 Lloyd’s Rep 555

14

Anglo-Northern Trading Co v Emlyn Jones [1917] 2 KB 78

11

Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191

6

Association of British Travel Agents Ltd v British Airways Plc [2000] 2 Lloyd’s Rep 209

5

Atlantic Maritime Co v Gibbon [1954] 1 QB 88

11

Attorney-General for Ceylon v Silva [1953] AC 461

14

Bank Line Ltd v Arthur Capel & Co [1919] AC 435

11

Beckett v Cohen [1972] WLR 1593

15

Biggs & Anor v Sotnicks (a firm) & Ors [2002] EWCA Civ 272

14

Bocking Garage v Mazurk, The Times, February 4, 1954

14

Briess v Wooley [1954] AC 333

16

British & Beningtons Ltd v North Western Cachar Tea Co Ltd [1923] AC 48

10

BRS Ltd v Arthur V Crutchley & Co Ltd [1968] 1 All ER 811

25

Cementation Piling and Foundations Ltd v Aegon Insurance Co Ltd [1995] 1 Lloyd’s Rep 97

5

Cosco Bulk Carrier Ltd v Team-Up Owning Co Ltd (‘The MV Saldanha’) [2010] EWHC 1340 (Comm)

9

Dadourian Group International Inc v Simms [2009] 1 Lloyd’s Rep 601

14

Davis Contractors Ltd v Fareham UDC [1956] AC 696

11

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

11

Derry v Peek (1889) 14 App Cas 337

14, 15


VII

Dhanani v Crasnianski [2011] 2 All ER (Comm) 799

6

Diamond v Bank of London & Montreal Ltd [1979] QB 333

16

Dubai Islamic Bank PJSC v Paymentech Merchant Services Inc [2001] 1 Lloyd's Rep 65

2, 3

East West Corporation v DKBS 1912 [2003] 1 Lloyd’s Rep 239 23

Edwinton Commercial Corp v Tsavliris Russ (Worldwide Salvage & Towage) Ltd (The Sea Angel) [2007] EWCA Civ 547

11

Fibrosa Spolka Ackcynjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32

11

Fiona Trust & Holding Corporation v Privalov [2008] 1 Lloyd’s Rep 254

4

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

14

Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603

6

Freeman & Lockyer v Brockhurst Park Properties (Mangal) Ltd [1964] 2 QB 480

13, 14

Garnham, Harris and Elton Ltd v Alfred W. Ellis (Transport) Ltd [1967] WLR 940

25

Glynn v Margetson [1893] AC 351

6

Hamilton v Mendes (1761) 97 ER 787

6

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

13

Hillas & Co Ltd v Arcos Ltd [1932] All ER 494

6

Hirji Mulji v Cheong Yue S.S. Co Ltd [1926] AC 497

12

Homburg Houtimport BV v Agrosin Private Ltd (‘The Starsin’) [2004] 1 AC 715

6, 8

Hongkong Fir Shipping Co. Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26

17

Hornal v Neuberger Products [1957] 1 QB 247

14

Hudson Bay Apparel Brands LLC v Umbro International Ltd [2010] EWCA Civ 949

13

ING Re (UK) Ltd v R & V Versicherung [2006] 2 All ER (Comm) 870

13, 14


VIII

Inntrepreneur Pub Co v East Crown Ltd [2000] 2 Lloyd’s Rep 611

5

Interim Award in ICC Case No. 7929, XXV Y.B. Comm. Arb. 312

4

Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896

5

KH Enterprise v Pioneer Container (‘The Pioneer Container’) [1994] 2 AC 324

23

Kissavos Shipping Co SA v Empresa Cubana de Fletes (‘The Agathon’) [1982] 2 Lloyd’s Rep 211

12

Kopitoff v Wilson (1876) 1 QBD 377

17

Koufos v C Czarnikow [1969] 1 AC 350

20

Kuwait Airways Corp v Iraqi Airways Co [2002] 2 AC 883

22, 23

Kuwait Petroleum Corporation v I & D Oil Carriers Ltd (‘The Houda’) [1994] 2 Lloyd’s Rep 541

9

Lake v Simmons [1927] AC 487

6

Lindsay v Klein (‘The Tatjana’) [1911] AC 194

22

Manifest Shipping Co Ltd v Uni-Polaris Insurance Co Ltd (‘The Star Sea’) [1995] 1 Lloyd’s Rep 651

17

Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749

5

Maredelanto Compania Naviera SA v Bergbau-Handel GmbH (The Mihalis Angelos) [1971] 1 QB 164

10

McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579

6

Minion v Graystone Pty Ltd [1990] 1 Qd R 157

10

Minister of Food v Reardon Line (1951) 2 Lloyd’s Rep 265

19, 22

Miramar Maritime Corporation v Holborn Oil Trading Ltd [1984] AC 676

6

Morrison, Pollexfen and Blair v Walton [1915] 1 KB 73

23

Motis Export Ltd v Dampskibsselskabet AF 1912 Aktieselskab and Aktieselskabet Dampskibsselskabet Svendborg (‘Maersk Line’) [2000] 1 Lloyd’s Rep 211

23

Montpelier Estates Ltd v Leeds City Council [2013] EWHC 166 (QB)

15


IX

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

11

Ocean Glory Compania Naviera SA v A/SPV Christensen (‘The Ioanna’) [1985] 2 Lloyd’s Rep 164

9

Partial Award in ICC Case No. 7920, XXIII Y.B. Comm. Arb. 80, 80 (1998)

4

Partial Award in ICC Case No. 10623, 21 ASA Bull (2003)

5

Pioneer Shipping Ltd v BTP Tioxide Ltd (‘The Nema’) [1982] AC 724

11

Polish SS Co v A.J. Williams Fuels (Overseas Sales) Ltd (‘The Suwalki’) [1989] 1 Lloyd’s Rep 511

13

Preliminary Award in ICC Case No. 2321, I Y.B. Comm. Arb. 133 (1976)

4

President of India v West Coast of Steamship Co [1963] 2 Lloyd’s Rep 278

17

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

14

Reardon Smith Line v Yngvar Hansen-Tangen [1976] 1 WLR 989

5

Reynell v Lewis (1846) 15 M & W 517

13

Robertson v French (1803) 4 East 130

8

Select Commodities Ltd v Valdo SA (The Florida) [2007] 1 Lloyd’s Rep 1

11

Shashoua v Sharma [2009] 2 Lloyd's Rep 376

2, 3

Sir Lindsay Parkinson & Co Ltd v Commissioners of Works [1949] 2 KB 632

11

Smith v Chadwick (1884) 9 App Cas 187

16

Smith v Packhurst (1742) 3 Atk. 135

5

Smith v Thompson (1849) 8 CB 44

5

Smith, Hogg & Co Ltd v Black Sea Ins Co Ltd [1940] AC 997

19

Smith New Court Securities Ltd v Citibank NA [1997] AC 254

14

Standard Oil Co of New York v Clan Line Steamers Ltd [1924] AC 100

17

Stocznia Gdanksa SA v Latvian Shipping Co (No 3) [2002] 2 Lloyd’s Rep 436

10


X

Suncorp Insurance & Finance v Milano Assecurazioni SpA [1993] 2 Lloyd’s Rep 225

13

Sze Hai Tong Bank Ltd v Rambler Cycle Co Ltd (‘The SS Glengarry’) [1959] AC 576

23

Tamplin (F A) Steamship Co Ltd v Anglo-Mexican Petroleum Products Co Ltd [1916] 2 AC 397

11

Targe Towing Ltd v Marine Blast Ltd [2004] 1 Lloyd’s Rep 721

13

The Antigoni [1991] 1 Lloyd’s Rep 209

19

The Europa [1908] P 84

22

Transfield Shipping Inc v Mercator Shipping Inc [2009] 1 AC 61

20

Victoria Laundry (Windsor) v Newman Industries Ltd [1949] 2 KB 528 20

BOOKS


Beale, Hugh (ed), Chitty on Contracts (Sweet & Maxwell, 31st ed, 2013)

5

Born, Gary G, International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014)

2, 3, 4, 5

Carty, Hazel, An Analysis of the Economic Torts (Oxford University Press, 2nd ed, 2010)

14, 16

Jones, Michael, et. al., Clerk & Lindsell on Torts (Sweet and Maxwell, 21st ed, 2014)

15

Munday, Roderick, Agency: Law and Principles (Oxford University Press, 2010)

13

Palmer, Norman, Palmer on Bailment (Sweet & Maxwell, 3rd ed, 2009)

22, 25

Poudret, Jean-François and Sébastien Besson, Comparative Law of International Arbitration (Sweet & Maxwell, 2nd ed, 2007)

2

Redfern, Alan and Martin Hunter, Redfern and Hunter on International Arbitration (Oxford University Press, 5th ed, 2009)

3, 5

Tan, Cheng-Han, ‘Unauthorised Agency in English Law’ in Danny Busch and Laura J. Macgregor (eds), The Unauthorised Agent: Perspectives from European and Comparative Law (Cambridge University Press, 2009)

13, 14

Todd, Paul, Maritime Fraud and Piracy (Lloyd’s List, 2nd ed, 2010) 7


XI

Watts, Peter G (ed), Bowstead & Reynolds on Agency (Sweet & Maxwell, 20th ed, 2014)

14

Wilson, John F, Carriage of Goods by Sea (Pearson, 5th ed, 2004)

17, 19

ARTICLES


Baughen, Simon, ‘Bailment or conversion? Misdelivery claims against non-contractual carriers’, Lloyd’s Maritime and Commercial Law Quarterly, 2010, 411

23

Todd, Paul, ‘The bill of lading and delivery: the common law action’, Lloyd’s Maritime and Commercial Law Quarterly, 2006, 539

23

STATUTE


Arbitration Act 1996 (UK)

2

UNCITRAL Model Law on International Commercial Arbitration (1985) with amendments as adopted in 2006

2

MISCELLANEOUS


Best Management Practices for Protection against Somalia Based Piracy (Version 4, August 2011)

21

BIMCO Special Circular No 2 2009

8

BIMCO Special Circular No 7 2013

8

International Ship and Port Facility Security Code

17

International Chamber of Commerce Maritime Bureau, Piracy and Armed Robbery Against Ships: Report for the Period 1 January – 31 March 2014 (2014)

17, 20, 21

United Nations Commission on International Trade Law, UNCITRAL Notes on Organizing Arbitral Proceedings, United Nations, New York, March 2012

2


1

STATEMENT OF FACTS

1. Following a period of negotiations through a broker, Western Tankers Inc (CLAIMANT) and

LDT Pte (DEFENDANT), on 26 May 2014, entered into an amended ST4 Charterparty for the

carriage of aviation fuel and gasoil from Singapore to Luanda, Angola. On 27 May DEFENDANT

issued detailed Voyage Orders.

2. The Master accepted the bunker stem provided by DEFENDANT, which was sufficient to reach

the intended discharge location. DEFENDANT advised the Master that additional bunkers would

be available during the voyage.

3. CLAIMANT failed to provide anti-piracy equipment for the Vessel prior to its departure but the

Master proceeded to issue a Notice of Readiness, notwithstanding the requirements of the

Charterparty regarding piracy precautions. Having gone on-hire on 4 June, the Vessel left

Singapore on 8 June.

4. On 25 June, the Vessel reached East Africa. On 28 June, DEFENDANT advised the Master that

bunker supply would occur at the STS transfer. Later that day an unknown third party, Captain

Anya of Atlantic STS Agency Ltd (ASA2), advised the Master that he had been given control

of the STS operations by DEFENDANT. DEFENDANT at no time had any contact with or gave any

authorisation to Captain Anya. These third party instructions required the ship to go to a

different location to that of the instructions earlier provided by DEFENDANT.

5. Although required to refer third party voyage instructions to DEFENDANT, the Master accepted

the instructions and directed the Vessel to the new location, advising Captain Anya of his

arrival on 4 July. Shortly thereafter the Vessel was attacked and seized for thirteen days during

which 28,000 MT of gasoil was stolen. On 17 July, the Master advised DEFENDANT of the

attack. The Master then directed the Vessel to Cape Town for assistance.

6. CLAIMANT commenced arbitral proceedings on 1 November 2014.


2

ARGUMENTS ON JURISDICTION

I. THE TRIBUNAL DOES NOT HAVE JURISDICTION OVER THIS DISPUTE

1. This Tribunal has the power to determine the arbitral seat in the absence of an express

agreement between the Parties.1 The Parties did not agree to London as the arbitral seat (A). On

a true construction of the Charterparty and the Parties’ correspondence, the seat of arbitration is

Singapore (B).

A. The Parties did not agree to London as the arbitral seat

2. The Parties agreed to arbitrate in accordance with cl 46(b) of ST4.2 However, the Parties did not

agree to the arbitral seat contained within cl 46(b). In an email dated 23 May 2014, DEFENDANT

communicated to the broker through which the Parties were negotiating that it was ‘really not

keen on London arbitration’ due to recent negative experience.3 This was an expression of a

refusal to arbitrate in London. The broker was in error by not relaying DEFENDANT’s refusal to

arbitrate in London to CLAIMANT.4 On its true construction, the ‘Law and Litigation’ provision

within the Recap was left blank because the Parties never agreed to an arbitral seat.5

B. The arbitral seat is Singapore

3. On the true construction of the Charterparty and the Parties’ correspondence, the seat of

arbitration is Singapore. Since the Parties have failed to designate an arbitral seat, this Tribunal

has the power to determine the seat with reference to all the relevant circumstances.6 According

to art 20(1) of the UNCITRAL Model Law, the Tribunal should have particular regard to the

1 UNCITRAL Model Law art 20(1); Gary Born, International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014) 2096–8; Jean-François Poudret and Sébastien Besson, Comparative Law of International Arbitration (Sweet & Maxwell, 2nd ed, 2007) 111–12 [144]; see also Arbitration Act 1996 (UK) s 3. 2 Record 5. 3 Record 2. 4 Record 3–4. 5 Record 6. 6 Arbitration Act 1996 (UK) s 3; Dubai Islamic Bank PJSC v Paymentech Merchant Services Inc [2001] 1 Lloyd's Rep 65, 74 [52] (Aikens J); Shashoua v Sharma [2009] 2 Lloyd's Rep 376, 380 [25], 382 [34] (Cooke J); UNCITRAL Model Law art 20(1); United Nations Commission on International Trade Law, UNCITRAL Notes on Organizing Arbitral Proceedings, United Nations, New York, March 2012 [22].


3

logistics, convenience and cost to the Parties and arbitrators when determining the arbitral seat.7

Singapore is frequently selected as the arbitral seat by parties.8 DEFENDANT is incorporated in

Singapore.9 For these reasons, the forum for the dispute should be Singapore. The forum of the

arbitration creates a territorial link between the place of arbitration and the law of the place in

which the arbitration is legally situated.10 As such, the arbitral seat is Singapore.

4. The law of the arbitral seat, being Singaporean law, has the closest and most real connection to

the Parties and the dispute.11 This is because DEFENDANT is incorporated in Singapore, 12 and

the dispute before the Tribunal arises from the Charterparty which, on its proper construction,

was concluded in Singapore.13 Moreover, the performance of the Charterparty commenced in

Singapore.14

5. The Charterparty was concluded upon DEFENDANT lifting the subject to management clause.15

DEFENDANT is incorporated in Singapore, therefore CLAIMANT cannot assert that the

Charterparty was concluded in London simply because the broker issued the Recap from

London.16 Disputes arising from the Charterparty have their closest and most real connection

with Singaporean law. The fact that the Charterparty is governed by English law pursuant to cl

46(a) of ST4 is insufficient to sever this connection.17 As such, the proper seat and forum for

this dispute is Singapore.

II. THE TRIBUNAL DOES NOT HAVE JURISDICTION TO HEAR A CLAIM FOR THE TORT OF FRAUD

6. DEFENDANT submits that cl 46(b) of the Charterparty, on its proper construction, excludes the

tort of fraud. First, the tort of fraud is so unconnected to the Parties’ obligations under the

7 Gary Born, International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014) 2060-1. 8 Ibid 2063. 9 Statement of Claim [2]. 10 Alan Redfern and Martin Hunter, Redfern and Hunter on International Arbitration (Oxford University Press, 5th ed, 2009) 181. 11 Dubai Islamic Bank PJSC v Paymentech Merchant Services Inc [2001] 1 Lloyd's Rep 65, 74 [52] (Aikens J). 12 Statement of Claim [2]. 13 Record 5. 14 Record 13. 15 Procedural Order No 2 [20]. 16 Record 5. 17 Shashoua v Sharma [2009] 2 Lloyd's Rep 376, 380–1 [29] (Cooke J).


4

Charterparty that it cannot be said to ‘arise out of’ the Charterparty (A). Secondly, fraud would

be so unexpected and unforeseen that it cannot be considered within the jurisdiction of the

Tribunal intended by the Parties (B). DEFENDANT makes no admission regarding fraud and the

submissions on this point are without prejudice.

A. The tort of fraud is unconnected to the obligations of the Parties under the Charterparty

7. The claim for fraud is unconnected to the Charterparty and cannot be regarded as ‘arising out

of’ it. This is because the claim for fraud can be asserted without reference to the Charterparty

at all, as it turns on certain representations and the non-eventuation of those representations. The

substance of the Charterparty gives no content to, and does not inform, such a claim. The fraud,

as alleged, is conceptually distinct from any claim that might be pleaded in relation to the cl 7

bunkering obligation, because it concerns allegations of intentional dishonesty of a character

different not in degree but in kind from mere negligent performance. Such conduct does not

arise out of the Charterparty’s performance, and nor does it invalidate the consent of the Parties.

On this point, the weight of Fiona Trust18 should not be overstated. That decision established

that pre-contractual fraud was within the scope of the arbitral jurisdiction, because of its

potential to void the contract ab initio. That is to be distinguished from this case where no

question of the validity of the Charterparty arises.

B. The tort of fraud was not contemplated by the Parties and therefore does not arise out of

the Charterparty

8. The fact that the Charterparty was the chief cause of the commercial relationship of the Parties

does not mean that any dispute arising out of that relationship necessarily arises out of the

Charterparty. General principles of contractual construction apply to the interpretation of

arbitration clauses,19 and the clause should be construed with reference to the Charterparty as a

18 [2008] 1 Lloyd's Rep 254, HL(E). 19 Gary Born, International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014) 1321; Preliminary Award in ICC Case No. 2321, I Y.B. Comm. Arb. 133 (1976); Partial Award in ICC Case No. 7920, XXIII Y.B. Comm. Arb. 80, 80 (1998); Interim Award in ICC Case No. 7929, XXV Y.B. Comm. Arb. 312, 317 (2000).


5

whole,20 with regard to the factual matrix of the particular case,21 to determine the objective

intention of the Parties.22 This process of construction requires the Tribunal to construe the

words ‘arising out of’ as a limit on the jurisdiction of the Tribunal. The Charterparty envisages a

wide range of conduct that might be undertaken by the Parties, both in accordance with and in

breach of the Charterparty, none of which includes the tort of fraud. Because the tort of fraud is

not within the boundaries of the Charterparty, it cannot be said to ‘arise out of’ the Charterparty.

It is thus beyond the jurisdiction of the Tribunal.

9. On the proper construction of cl 46(b), arbitration is not the proper means for the resolution of

this type of dispute. A key motivation for the use of arbitration in international commerce is its

perceived superiority in ensuring the efficient resolution of commercial disputes.23 This is

particularly so because arbitral tribunals stemming from a Charterparty will often be comprised

of practitioners with vast experience and expertise in maritime contract claims.24 Consistent

with that is the intention that more complex and serious, and also less commercially

commonplace, actions will be heard in national courts which regularly hear such cases and have

well-adapted and established rules of procedure and evidence. These factors demonstrate the

uniqueness of the tort and that an action for fraud is so unconnected to the Charterparty, and so

outside the bounds of the Charterparty, that it is beyond the jurisdiction of the Tribunal. The

words used by the Parties manifest that intention.

ARGUMENTS ON THE MERITS OF THE CLAIM

III. DEFENDANT DID NOT BREACH ITS DUTY TO PAY HIRE UNDER THE CHARTERPARTY 20 Smith v Packhurst (1742) 3 Atk. 135, 136 (Willes LCJ); Abu Dhabi National Tanker Co v Product Star Shipping Ltd [1991] 2 Lloyd’s Rep 468, 478 (Judge Diamond QC); Cementation Piling and Foundations Ltd v Aegon Insurance Co Ltd [1995] 1 Lloyd’s Rep 97, 101 (Sir Ralph Gibson); Partial Award in ICC Case No. 10623, 21 ASA Bull 59 (2003); Hugh Beale (ed), Chitty on Contracts (Sweet & Maxwell, 31st ed, 2013) 943–4. 21 Smith v Thompson (1849) 8 CB 44; Reardon Smith Line v Yngvar Hansen-Tangen [1976] 1 WLR 989, 997 (Lord Wilberforce); Association of British Travel Agents Ltd v British Airways Plc [2000] 2 Lloyd’s Rep 209, 217 (Clarke LJ); Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 912–13 (Hoffman LJ) 22 Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, 767 (Lord Steyn), 775 (Lord Hoffman), 782 (Lord Clyde); Inntrepreneur Pub Co v East Crown Ltd [2000] 2 Lloyd’s Rep 611, 615 [10]. 23 Alan Redfern and Martin Hunter, Redfern and Hunter on International Arbitration (Oxford University Press, 5th ed, 2009) 1–2, 33–4; Gary Born, International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014) 96–7. 24 Gary Born, International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014) 79–81.


6

10. Under the terms of the Charterparty, there was no hire due and owing on 3 July 2014 (A). The

Vessel was off-hire before the hire payment obligation arose. DEFENDANT relies on two grounds

to justify its off-hire notice of 4 July and its non-payment of hire thereafter. First, the Vessel

was off-hire from that date onwards pursuant to the terms of the Charterparty (B). Secondly, and

in the alternative, the Charterparty was frustrated by the seizure on 4 July (C).

A. There was no obligation to pay hire on 3 July 2014

11. On the true construction of the Charterparty, payment for the second hire period was not due

and owing by COB GMT on 3 July. The Vessel went on-hire on 4 June.25 Accordingly, the

second hire period commenced on 4 July. Clause 9 of ST4 relevantly provides that ‘payment of

hire shall be made in immediately available funds … per calendar month in advance’. In

construing cl 9, the proper approach is to give the clause a businesslike interpretation, with

regard to the circumstances of commerce with which it deals, and the objects that it is intended

to secure.26 The words should be read fairly and broadly, without being too astute or subtle in

finding defects.27

12. The businesslike interpretation of the phrase ‘immediately available funds’ is that these words

are intended to preclude the DEFENDANT from tendering payment in a form whereby CLAIMANT

would not have immediate access to the money itself, such as a bank guarantee or letter of

credit. To adopt a broader approach would be to ignore the commercial context in which these

words appear, and the obvious object that the words were intended to have. These words refer

only to the method of payment; the words ‘per calendar month in advance’ govern the timing of

payment. The most reasonable and businesslike interpretation of these words is that payment is

25 Record 28–9. 26 Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603, 618 [19] (Allsop P); Homburg Houtimport BV v Agrosin Private Ltd (‘The Starsin’) [2004] 1 AC 715, 737–8 (Lord Bingham); McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579, 589 [22] (Gleeson CJ); Lake v Simmons [1927] AC 487, 509 (Viscount Sumner); Glynn v Margetson & Co [1893] AC 351, 359 (Lord Halsbury LC); Hamilton v Mendes (1761) 97 ER 787, 795 (Lord Mansfield). 27 Hillas & Co Ltd v Arcos Ltd [1932] All ER 494, 503 (Lord Wright), quoted in Dhanani v Crasnianski [2011] 2 All ER (Comm) 799, 813 [66] (Teare J); Miramar Maritime Corporation v Holborn Oil Trading Ltd [1984] AC 676, 682 (Lord Diplock); Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191, 201 (Lord Diplock).


7

due on the date at which the hire period commences. The term ‘in advance’ imposes an

obligation to pay on the first day of the period (here, 4 July), as opposed to the last. It would be

illogical for the Tribunal to impose a payment obligation on DEFENDANT before it receives any

use of the Vessel in the absence of clear words demanding such an interpretation. Accordingly,

payment was not due on 3 July.

B. The Vessel was off-hire from at least 4 July 2014 onwards

13. The Vessel was off-hire from 4 July onwards. First, the Special Provisions Piracy Clause, read

with the BIMCO Piracy Clause, required the Master to exercise due diligence in respect of

piracy (1). Secondly, the Master breached that due diligence obligation and also demonstrated a

neglect of duty pursuant to cl 21(a)(ii) of ST4 (2). Thirdly, the Master breached the Voyage

Orders, also enlivening cl 21(a)(ii) (3). Finally, DEFENDANT can rely on any or all of these

grounds notwithstanding any other ground it purported to rely upon in the off-hire notice of 4

July (4). DEFENDANT does not dispute that the seizure constituted a ‘pirate attack’, as it involved

the forced seizure of property.28

1. The piracy clauses imposed an obligation of due diligence on the Master in respect of

piracy

14. DEFENDANT submits that the dual piracy clauses imposed a due diligence obligation on the

Master in respect of piracy. Sub-clause (4) of the Special Provisions Piracy Clause provides:29

where … not caused by a lack of due diligence on owner’s part ... the vessel is captured by pirates,

hire shall be payable at 100% of the hire rate for the duration of any such capture.

15. Paragraphs (e) and (g) of the BIMCO Piracy Clause provide respectively:30

[i]f the vessel is attacked by pirates any time lost shall be for the account of the charterers and the

vessel shall remain on hire.

28 Paul Todd, Maritime Fraud and Piracy (Lloyd’s List, 2nd ed, 2010) 3–4. 29 Record 8. 30 Record 12.


8

…

In the event of a conflict between the provisions of this clause and any implied or express provision

of the charterparty, this clause shall prevail.

16. Effect should be given to sub-clause (4) of the Special Provisions Piracy Clause over paragraphs

(e) and (g) of the BIMCO Clause because it is highly likely that it was a bespoke provision

agreed upon by the Parties. The title ‘Special Provisions’, and the apparent absence of any

similar regularly used piracy clause suggests it is a bespoke provision. It is a basic canon of

contractual interpretation that a bespoke provision drafted by the parties will be given effect

over a standard form provision.31 The BIMCO Piracy Clause is a standard form provision

drafted by BIMCO,32 which is regularly added to ST4 to cover obligations in the event of

piracy,33 as ST4 otherwise lacks a piracy clause.34 Because of that, the Special Provisions Piracy

Clause should be given effect by the Tribunal, thereby imposing an obligation of due diligence

on the Master in respect of piracy. Where the Master exhibits a lack of due diligence, and the

Vessel is seized by pirates, the proper construction of the provisions is that the Vessel shall go

off-hire.

2. The Master breached the due diligence obligation in the Special Provisions Piracy Clause,

which also constituted a neglect of duty under cl 21(a)(ii)

17. DEFENDANT submits that the seizure of the Vessel occurred because of the Master’s lack of due

diligence in failing to take adequate anti-piracy precautions.35 Consequently, the Vessel was off-

hire from 4 July onwards pursuant to sub-clause (4) of the Special Provisions Piracy Clause.

The Master’s lack of due diligence also constituted a neglect of duty within the scope of

31 Robertson v French (1803) 4 East 130, 136 (Lord Ellenborough CJ); Hombourg Houtimport BV v Agrosin Private Ltd (‘The Starsin’) [2004] 1 AC 715, 737 [11] (Lord Bingham); Gerard McMeel, The Construction of Contracts – Interpretation, Implication and Rectification (Oxford University Press, 2007) 22–3. 32 BIMCO Special Circular No 2 2009. 33 BIMCO Special Circular No 7 19 July 2013. 34 Piracy is absent from cl 35, dealing with war risks. 35 See submissions on Master’s incompetence below [40].


9

cl.21(a)(ii). A pirate attack can constitute an off-hire event,36 and the wording of ST4 does not

prevent such a finding.37

3. The Master breached the Voyage Orders, also enlivening cl 21(a)(ii)

18. Further, and in the alternative, the Master’s conduct in breaching orders made the Vessel off-

hire from 4 July onwards pursuant to clause 21(a)(ii). An off-hire clause operates separately to

any question of breach of contract and DEFENDANT therefore does not need to establish that

CLAIMANT breached a term of the Charterparty for the Vessel to be off-hire.38 The Master

breached orders by failing to comply with the order in the Voyage Orders that ‘Master shall

disregard any voyage-related instructions received from third parties and immediately refer such

instructions to Charterer for handling’.39 These words could not have been clearer, and are

designed to capture precisely the events that occurred. Even absent that voyage order, it is

established at common law that, although orders must ordinarily be complied with immediately,

‘the circumstances in which an order was received, or the nature of it, might make it

unreasonable for the master to comply without further consideration or enquiry’.40 This is

exactly that type of case.

19. The Master received bunkering and discharge instructions from an unknown third party, ASA2,

and immediately accepted those instructions and acted upon them.41 At no stage did the Master

refer these new discharge and bunkering instructions to DEFENDANT. Forty-eight minutes after

receiving these instructions, the Master accepted them and advised that the Master would

comply with the details given.42 DEFENDANT foresaw the risk that instructions might be sent to

the Master from malign third parties and sought to mitigate the risk by the inclusion of the

36 Cosco Bulk Carrier Ltd v Team-Up Owning Co Ltd (‘The MV Saldanha’) [2010] EWHC 1340 (Comm) [32] (Gross J). 37 But see Cosco Bulk Carrier Ltd v Team-Up Owning Co Ltd (‘The MV Saldanha’) [2010] EWHC 1340 (Comm) [33] (Gross J). 38 The Ioanna [1985] 2 Lloyd’s Rep 164, 167 (Staughton J). 39 Record 13. 40 Kuwait Petroleum Corporation v I & D Oil Carriers Ltd (‘The Houda’) [1994] 2 Lloyd’s Rep 541, 553 (Leggatt LJ). 41 Record 35. 42 Record 35.


10

relevant order. It was not until five days later, on 3 July, that the Master made a passing

reference to the new instructions in an email to DEFENDANT. The instructions came from an

unknown source, were a significant change of plans and were unsolicited. Any reasonable

Master would have held suspicions about the provenance and authenticity of such Orders and,

acting reasonably on that suspicion, would have referred the instructions to DEFENDANT in

accordance with the Voyage Orders. The Master’s breach of the order led to the seizure of the

Vessel, which caused a loss of time of 13 days. The Vessel was off-hire for the duration of that

period and remained off-hire.

4. Giving one basis for an off-hire notice does not preclude DEFENDANT from later relying on

another basis that was available at the time

20. DEFENDANT submits that its email to the Master on 4 July,43 which declared the Vessel off-hire

due to no contact from the Master, does not prevent DEFENDANT from relying on other grounds

for the Vessel being off-hire that were applicable at that time. It is an established principle of

contract law that in the case of termination, express reliance by the terminating party on an

invalid justification for termination does not disentitle that party from later relying on another

valid justification for termination that was extant at the time of election.44 DEFENDANT submits

that this reasoning should apply in this case. That being so, the initial justification of ‘lack of

contact’45 does not preclude DEFENDANT from relying on the Special Provisions Piracy Clause

or cl 21 if either or both of those bases were available at the time of the email.

C. The Charterparty was frustrated from at least 4 July

21. The Charterparty was frustrated from at least 4 July because of the seizure of the Vessel. Where

a supervening event renders the contract radically different from what was envisaged by the

43 Record 41. 44 Stocznia Gdanksa SA v Latvian Shipping Co (No 3) [2002] 2 Lloyd’s Rep 436, 443 (Rix LJ); Maredelanto Compania Naviera SA v Bergbau-Handel GmbH (‘The Mihalis Angelos’) [1971] 1 QB 164, 193 (Lord Denning MR); British & Beningtons Ltd v North Western Cachar Tea Co Ltd [1923] AC 48, 71–2 (Lord Sumner); Minion v Graystone Pty Ltd [1990] 1 Qd R 157, 165 (McPherson J). 45 Record 41.


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parties, the contract will be frustrated if it would be unjust to hold the parties to their

agreement.46 Whether the cause of frustration is a new and unforeseeable event is relevant.47 If

there is a provision which deals with the supervening event, the question is whether it is a

complete provision that covers the entirety of the supervening event.48 In the present case,

although the general risk of seizure by pirates was contemplated in the piracy clauses, the

Parties did not contemplate that the seizure would result from the Master following false

discharge instructions and, as a result, piloting the Vessel directly to the location where the

seizure occurred. Given the extraordinary nature of those events, frustration is not prevented by

the presence of the piracy clauses as the circumstances of the seizure were not provided for or

within the contemplation of the Parties.

22. The performance of the Charterparty was rendered radically different due to the likely delay that

the seizure would occasion, in combination with its extremely unusual cause. Frustration is to

be assessed at the time the event occurs and the Tribunal must compare, at that point in time, a

reasonable commercial estimate of the probable length of the delay with the remaining portion

of the Charterparty.49 Commercial parties cannot be required to ‘wait and see’ how long the

delay will endure.50 As at 4 July, it was likely that DEFENDANT would be deprived of the use of

the Vessel for a large part, if not all, of the time remaining under the Charterparty. The probable

length of the seizure, in combination with the relatively brief duration of the Charterparty (90

days) 51 constituted frustration. If frustrated, the Charterparty is considered frustrated

46 Davis Contractors Ltd v Fareham UDC [1956] AC 696, 728–9 (Lord Radcliffe); National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675, 700–1 (Lord Simon); Pioneer Shipping Ltd v BTP Tioxide Ltd (‘The Nema’) [1982] AC 724, 738 (Lord Diplock); Edwinton Commercial Corp v Tsavliris Russ (Worldwide Salvage & Towage) Ltd (‘The Sea Angel’) [2007] EWCA Civ 547 [84] (Rix LJ). 47 Davis Contractors Ltd v Fareham UDC [1956] AC 696, 716 (Viscount Simons), 724 (Lord Reid); Sir Lindsay Parkinson & Co Ltd v Commissioners of Works [1949] 2 KB 632, 665 (Asquith LJ). 48 Tamplin (F A) Steamship Co Ltd v Anglo-Mexican Petroleum Products Co Ltd [1916] 2 AC 397, 406–7 (Viscount Haldane); Bank Line Ltd v Arthur Capel & Co [1919] AC 435, 456 (Lord Sumner); Fibrosa Spolka Ackcynjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32, 40 (Viscount Simon LC); Select Commodities Ltd v Valdo SA (‘The Florida’) [2007] 1 Lloyd’s Rep 1, 5 (Tomlinson J). 49 Anglo-Northern Trading Co v Emlyn Jones [1917] 2 KB 78, 84–5 (Bailhache J); Bank Line Ltd v Arthur Capel & Co [1919] AC 435, 454–5 (Lord Sumner); Denny, Mott & Dickson Ltd v James B Fraser & Co Ltd [1944] AC 265, 277–8 (Lord Wright); Atlantic Maritime Co v Gibbon [1954] 1 QB 88, 113 (Evershed MR). 50 Pioneer Shipping Ltd v BTP Tioxide Ltd (‘The Nema’) [1982] AC 724, 752 (Lord Roskill). 51 Record 5.


12

immediately upon the occurrence of the supervening event.52 Given that frustration occurred on

4 July, DEFENDANT has no obligation to pay hire due on or after that date.

IV. ASA2 IS NOT, AND HAS NEVER BEEN, THE AGENT OF DEFENDANT

23. There was no agency agreement between DEFENDANT and ASA2 (A). Moreover, the doctrine of

apparent authority cannot make DEFENDANT liable for the actions of Atlantic STS Agency Ltd

(ASA2) (B).

A. There was no agency agreement between DEFENDANT and ASA2

24. DEFENDANT submits that ASA2 was an imposter who wrongfully represented itself as the entity

named as DEFENDANT’s agent in the Voyage Orders (1). An agency agreement between

DEFENDANT and ASA2 cannot be implied (2).

1. ASA2 wrongfully represented itself as ASA, the entity named as DEFENDANT’s disport

agent in the Voyage Orders

25. ‘Atlantic STS Agency Ltd’ (ASA2) is a stranger to DEFENDANT, having wrongfully represented

itself as DEFENDANT’s true agent, ‘Atlantic Services Agency’ (ASA). ASA was the entity

named as disport agents in the Voyage Orders,53 and whom DEFENDANT twice copied into

emails to the Master in anticipation of the cargo transfer and bunkering.54 The names of ASA

and ASA2 are clearly different, and the ship nominated by ASA2 for the purposes of the cargo

transfer, ‘Antelope’, has no known relationship with ASA.55 Accordingly, the only reasonable

conclusion available on the evidence is that ASA2 was an imposter.

52 Hirji Mulji v Cheong Yue S.S. Co Ltd [1926] AC 497, 505 (Lord Sumner); Kissavos Shipping Co SA v Empresa Cubana de Fletes (‘The Agathon’) [1982] 2 Lloyd’s Rep 211, 212–13 (Lord Denning MR). 53 Record 14. 54 Record 33–4. 55 Procedural Order 2 [13].


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26. There is no direct evidence of communication between DEFENDANT and ASA2. Accordingly,

CLAIMANT cannot argue that there was an express agency agreement between those parties.56

2. An agency agreement between DEFENDANT and ASA2 cannot be implied

27. There are no facts that are sufficient to imply an agency agreement between DEFENDANT and

ASA2. The fact that DEFENDANT was silent while the Master liaised with ASA2 is most

consistent with DEFENDANT's ignorance of the fact that ASA2 was wrongfully representing

itself as DEFENDANT’s agent.57 It would be illogical and unreasonable for DEFENDANT to

consent to have ASA2 act on its behalf without informing CLAIMANT of its intention to do so.

28. The only fact that CLAIMANT can point to suggesting any relationship between DEFENDANT and

ASA2 is that ASA2 knew details of the performance of the Charterparty.58 There are a

multitude of possible explanations as to how ASA2 obtained this information. The mere fact

that DEFENDANT is unable to explain how it occurred should not give rise to a conclusion that

the transfer of information was facilitated by DEFENDANT.59 To hold otherwise would represent

an impermissible reversal of the onus of proof, which must remain with CLAIMANT.60

B. The doctrine of apparent authority cannot render DEFENDANT liable for the actions of

ASA2

29. The doctrine of apparent authority may bind a principal to the actions of a third party with

whom it had no agency agreement where the principal represents that the third party is

authorised to act on its behalf.61 There is no apparent authority in the present case because

DEFENDANT never represented that ASA2 had such authority. It is an essential element of 56 See Roderick Munday, Agency: Law and Principles (Oxford University Press, 2010) 41–7; see also Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549, 583 (Lord Denning MR). 57 See, eg, Targe Towing Ltd v Marine Blast Ltd [2004] 1 Lloyd’s Rep 721, 728 [26] (Mance LJ). 58 Record 35. 59 Hudson Bay Apparel Brands LLC v Umbro International Ltd [2010] EWCA Civ 949 [48] (Lord Neuberger MR). 60 Reynell v Lewis (1846) 15 M & W 517, 526–7 (Pollock CB); Polish SS Co v A.J. Williams Fuels (Overseas Sales) Ltd (‘The Suwalki’) [1989] 1 Lloyd’s Rep 511, 514 (Steyn J); Suncorp Insurance & Finance v Milano Assecurazioni SpA [1993] 2 Lloyd’s Rep 225, 233 (Waller J). 61 Freeman & Lockyer v Brockhurst Park Properties (Mangal) Ltd [1964] 2 QB 480, 503 (Diplock LJ); ING Re (UK) Ltd v R & V Versicherung [2006] 2 All ER (Comm) 870, 888 [99] (Toulson J); Cheng-Han Tan, ‘Unauthorised Agency in English Law’ in Danny Busch and Laura J. Macgregor (eds), The Unauthorised Agent: Perspectives from European and Comparative Law (Cambridge University Press, 2009) 185, 188.


14

apparent authority that the purported agent’s authority can be traced back to a representation by

the principal.62 It would not be enough for CLAIMANT to show that DEFENDANT was careless or

slack in not preventing ASA2 from pretending to be its agent.63

30. CLAIMANT cannot rely upon a representation by ASA2 as to its authority to act on behalf of

DEFENDANT.64 In the context of apparent authority, the law has never recognised the idea of a

self-authorising agent.65 In the present case, ASA2 exemplifies the idea of a self-authorising

agent. There is no evidence of a representation by DEFENDANT that ASA2 was authorised to act

on its behalf at any time. The only evidence is a unilateral statement in an email from ASA2 to

the Master.66 DEFENDANT was never made aware of the existence of this email.

V. DEFENDANT DID NOT COMMIT THE TORT OF FRAUD

31. CLAIMANT must prove each of the following elements in order to succeed in this claim: that

DEFENDANT made a false representation (A), knowing it to be untrue, or being reckless as to its

truth (B), and intending that CLAIMANT would act in reliance on it (C). If it proves these

elements, then insofar as CLAIMANT relied on the representations (D) and suffered loss (E),

DEFENDANT would be liable for this loss.67 Particularly cogent evidence is required to prove a

more serious and less commonplace claim such as the tort of fraud.68

A. The representations relied on by CLAIMANT were true at the time they were made

62 ING Re (UK) Ltd v R & V Versicherung [2006] 2 All ER (Comm) 870, 888 [100] (Toulson J); Bocking Garage v Mazurk, The Times, February 4, 1954, 3 (Sir Raymond Evershed MR); Rama Corp Ltd v Proved Tin and General Investments Ltd [1952] 2 QB 147, 149–50 (Slade J); Cheng-Han Tan, ‘Unauthorised Agency in English Law’ in Danny Busch and Laura J. Macgregor (eds), The Unauthorised Agent: Perspectives from European and Comparative Law (Cambridge University Press, 2009) 185, 188–9; Peter Watts and F. M. B Reynolds, Bowstead & Reynolds on Agency (Sweet & Maxwell, 20th ed, 2014) 120–1 [3-004]. 63 Bocking Garage v Mazurk, The Times, February 4, 1954, 9 (Denning LJ). 64 Freeman & Lockyer v Buckhurst Park Properties Ltd [1964] 2 QB 480, 505 (Diplock LJ); Attorney-General for Ceylon v Silva [1953] AC 461, 479 (UKPC). 65 First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd’s Rep 194, 201 (Lord Steyn). 66 Record 35. 67 Derry v Peek (1889) 14 App Cas 337, 374 (Lord Herschell); AIC Ltd v ITS Testing Services (UK Ltd) [2007] Lloyd’s Rep 555, 594 [252] (Rix LJ); Biggs & Anor v Sotnicks (a firm) & Ors [2002] EWCA Civ 272 [33] (Arden LJ); Hazel Carty, An Analysis of the Economic Torts (Oxford University Press, 2nd ed, 2010) 188. 68 Hornal v Neuberger Products [1957] 1 QB 247, 260 (Hodson LJ); Smith New Court Securities Ltd v Citibank NA [1997] AC 254, 274 (Lord Steyn); Dadourian Group International Inc v Simms [2009] 1 Lloyd’s Rep 601, 608 [32] (Arden LJ).


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32. The most striking feature of CLAIMANT’s case is what is missing from it: any evidence that

DEFENDANT’s representations were untrue at the time they were made. A representation as to

what will happen in the future is insufficient to found liability in fraud where the representation

was believed by its maker to be true at the time it was made.69 In the present case, there is no

evidence that any of the representations as to the availability of bunkers at certain locations

were not believed at the time they were made. That the intention which was represented as

existing was not eventually carried into effect is ‘little or no evidence of the original non-

existence of the intention’.70 This fact is thus not sufficient to satisfy this element of the tort.

B. DEFENDANT’s representations were not dishonest

33. Any representations made by DEFENDANT were not dishonest because they were genuinely

believed at the time they were made. The case of Derry v Peek71 is instructive. In that case, even

though the defendants did not have proper grounds for their belief that they would be able to

obtain the government permission required to fulfil their promises, there was no liability in the

tort of fraud on the ground that they genuinely believed they would obtain permission at the

time of their representations. In the present case, even if it is accepted that DEFENDANT had not

arranged bunkering when it represented that bunkers would be available,72 CLAIMANT cannot

prove that DEFENDANT did not have a genuine belief that bunkering would be available. The

evidence merely shows that DEFENDANT made representations that did not eventuate. There is

insufficient evidence as to the state of affairs surrounding those representations to prove that

they were made dishonestly.

C. DEFENDANT did not intend for CLAIMANT to rely on ASA2’s representations

69 Montpellier Estates Ltd v Leeds City Council [2013] EWHC 166 (QB) [54] (Supperstone J); Beckett v Cohen [1972] WLR 1593, 1596 (Lord Widgery CJ). 70 Michael A. Jones et al, Clerk & Lindsell on Torts (Sweet and Maxwell, 21st ed, 2014) [18–12]. 71 (1889) 14 App Cas 337. 72 See, eg, Record 26, 33–4.


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34. DEFENDANT submits that it made representations that were true, honest and intended to be relied

upon. It follows from DEFENDANT’s submissions on agency that there was no intention that

CLAIMANT would rely upon the representations of ASA2.

D. There is insufficient proof that CLAIMANT did in fact rely on the representations

35. CLAIMANT has been put to strict proof in regard to this element of its claim.

E. There is insufficient proof of damage before the Tribunal

36. CLAIMANT has no cause of action without proof of damage.73 Moreover, CLAIMANT must prove

that any such damage was a consequence of relying upon representations made by

DEFENDANT.74 The only evidence before the Tribunal that could be described as ‘proof’ of

damage is a unilateral, unverified assessment made by the Master,75 who is a representative of

CLAIMANT. This is not sufficient to satisfy CLAIMANT’s burden in respect of proof of damage.

ARGUMENTS ON THE MERITS OF THE COUNTER-CLAIM

VI. CLAIMANT PROVIDED A VESSEL THAT WAS UNFIT FOR SERVICE

37. CLAIMANT’s provision of an unfit Vessel breached the Charterparty in two respects. First,

CLAIMANT’s Master was insufficiently skilled for the voyage (A). Secondly, the CLAIMANT’s

master failed to implement anti-piracy measures required by the Charterparty (B).

A. The Master was incompetent when he followed instructions other than those given by

DEFENDANT

38. Because the Charterparty required a master who could competently implement anti-piracy

precautions (1), CLAIMANT’s provision of a master who lacked this competence constituted a

breach of the Charterparty (2). CLAIMANT’s provision of an incompetent master caused

DEFENDANT’s loss (3). CLAIMANT is therefore liable for this loss because it failed to exercise 73 Smith v Chadwick (1884) 9 App Cas 187, 190 (Lord Blackburn); Briess v Wooley [1954] AC 333, 353 (Lord Tucker); Diamond v Bank of London & Montreal Ltd [1979] QB 333, 349 (Stephenson LJ). 74 Hazel Carty, An Analysis of the Economic Torts (Oxford University Press, 2nd ed, 2010) 193. 75 Record 42.


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due diligence in appointing the Master (4) and the loss was not so remote as to be unrecoverable

(5).

1. The Charterparty required CLAIMANT to provide a master who could competently

manage the risk of piracy throughout the voyage

39. CLAIMANT was obliged to provide a vessel that was ‘in every way fit for the service’.76 This

obligation extended to the provision of a competent crew and master.77 The type of skills

required to discharge a master’s ‘ultimate responsibility for the safety and security of the ship’78

depends on the agreed nature of the voyage.79 Since the present Charterparty frequently

adverted to the risk of piracy during the voyage80 and explicitly obliged DEFENDANT to provide

a vessel ‘fit for service’,81 the Charterparty required a master who could competently implement

anti-piracy measures.

2. The Master was incompetent

40. During the voyage, the Master repeatedly demonstrated that he lacked the competence to

manage the Vessel through pirate-frequented waters. Specifically:

a. the Master decided to leave Singapore and proceed through the Singapore Straits (an

area with a high risk of piracy)82 without the necessary anti-piracy equipment;83

b. the Master failed to acquire this anti-piracy equipment at Durban;84

76 ST4 cl 1(c). 77 Standard Oil Co of New York v Clan Line Steamers Ltd [1924] AC 100, 121 (Lord Atkinson); Hongkong Fir Shipping Co. Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26, 56 (Sellers LJ); Manifest Shipping Co Ltd v Uni-Polaris insurance Co Ltd (‘The Star Sea’) [1995] 1 Lloyd’s Rep 651, 658 (Tuckey J); John F. Wilson, Carriage of Goods by Sea (Pearson Longman, 5th edition, 2004) 11. 78 International Ship and Port Facility Security Code, Part B, 4.10. 79 Kopitoff v Wilson (1876) 1 QBD 377, 380 (Field J); President of India v West Coast of Steamship Co [1963] 2 Lloyd’s Rep 278, 281 (Kilkenny DJ); Manifest Shipping Co Ltd v Uni-Polaris insurance Co Ltd (‘The Star Sea’) [1995] 1 Lloyd’s Rep 651, 658 (Tuckey J). 80 Record 8, 9, 11, 12 81 ST4 cl 1(c). 82 International Chamber of Commerce Maritime Bureau, Piracy and Armed Robbery Against Ships: Report for the Period 1 January – 31 March 2014 (2014) 19. 83 Record 27. 84 Procedural Order No 2 [17].


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c. the Master failed to appreciate the significance of two small ships on his radar whilst

travelling in an area with a high risk of piracy;85 and

d. the Master failed to prevent pirates from taking control of the Vessel.86

41. These incidents reflect the Master’s inability to satisfactorily implement anti-piracy precautions.

Accordingly, CLAIMANT breached cl 1(c) of ST4 by providing a master who was unfit for the

voyage.

3. CLAIMANT’s provision of the Master caused the loss of DEFENDANT’s cargo

42. The Master’s incompetence caused the loss of cargo because a competent master would have

refused to follow ASA2’s instructions. First, a competent master would have appreciated the

suspicious nature of the STS location provided by ASA2. As stated by CLAIMANT and

acknowledged by the Master several times, the object and purpose was to effect an OPL

discharge at Luanda,87 which typically occur very close to port. On that basis, a competent

master would have regarded an instruction to deliver bunkers at a location approximately 350

nautical miles from Luanda as highly suspicious.

43. Secondly, the instructions were sent from an email address with conspicuous differences to the

correct address twice provided by DEFENDANT in the Voyage Orders.88 In circumstances where

the Voyage Orders explicitly instructed the Master to ‘disregard any voyage-related instructions

received from third parties’,89 a competent master would have appreciated the difference

between the email addresses “[email protected]” and

“[email protected]”, an address to which the Master had already sent emails for weeks.90

44. A competent master would have promptly sought verification of ASA2’s identity from

DEFENDANT and thereby discovered that ASA2 was not DEFENDANT’s agent. On that basis, a

85 Record 40; Best Management Practices for Protection against Somalia based Piracy (August 2011) 7. 86 Record 42. 87 Record 20, 30, 31, 32, 33, 34, 35, 36, 37. 88 Record 35. 89 Record 13. 90 Record 29, 30, 31, 32, 33, 34.


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competent master would not have travelled to the location provided by ASA2. Since the Vessel

was most likely seized in close proximity to the STS location nominated by ASA2, the Master’s

incompetence substantially contributed to the loss of DEFENDANT’s cargo. 91 CLAIMANT’s

provision of an incompetent master therefore caused DEFENDANT’s loss.

4. CLAIMANT did not exercise due diligence in selecting the Master

45. DEFENDANT accepts that its claim for damages for its lost cargo is governed by the Hague-

Visby Rules due to the combined effect of cll 27(c)(ii) and 38 of ST4. Since DEFENDANT has

shown that its loss of cargo was caused by the incompetence of the Master,92 CLAIMANT carries

the burden of demonstrating that it exercised due diligence in selecting the Master.93 This

burden is not discharged for two reasons.

46. First, the Master’s inability to adequately protect the Vessel from piracy would have been

evident to any reasonable person assessing the Master’s qualifications and experience, as

evidenced by the repeated instances of incompetence set out above.94 Secondly, even if the

Master’s incompetence would not have been apparent to a reasonable person assessing the

Master’s fitness, CLAIMANT was informed that the Master had left Singapore without anti-piracy

equipment,95 and, further, that the Master did not collect anti-piracy equipment available in

Durban.96 Since CLAIMANT did not, inter alia, replace the Master or provide the Master with

instruction on anti-piracy prevention, CLAIMANT failed to exercise due diligence in appointing

the Master.

5. The damage was not so remote as to be unrecoverable

91 Smith, Hogg & Co Ltd v Black Sea Ins Co Ltd [1940] AC 997, 1007–8 (Lord Wright). 92 Above [42]–[44]. 93 Article IV, Hague-Visby Rules; Minister of Food v Reardon Line (1951) 2 Lloyd’s Rep 265, 270–2 (McNair J); The Antigoni [1991] 1 Lloyd’s Rep 209, 212 (Staughton LJ); John F Wilson, Carriage of Goods by Sea (Pearson Longman, 5th ed, 2004) 191. 94 Above [40]. 95 Record 27, 29. 96 Procedural Order No 2 [17].


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47. The fundamental service the CLAIMANT promised to provide was the transport of cargo.

Consequently, the loss of DEFENDANT’s cargo due to the breach of the Charterparty was within

the contemplation of a reasonable person in the position of CLAIMANT at the time of the

formation of the Charterparty.97 Accordingly, DEFENDANT’s loss is recoverable.

B. The Master failed to follow the anti-piracy precautions required by the Charterparty

48. Because the Master was obliged to implement BMP4 (1) and failed to do so (2), CLAIMANT

breached the piracy clause in a way that caused DEFENDANT’s loss of cargo (3), a loss that was

not so remote as to be unrecoverable (4).

1. The Master was obliged to implement BMP4

49. The phrase ‘the latest version of best management practices’ in the Charterparty refers to

BMP4.98 The piracy clause required CLAIMANT to adhere to the latest version of BMP4 while

travelling through areas deemed by a competent international authority to entail piracy risk.99

The Vessel’s position at ASA2’s STS location (6°00’S, 8°10’E) was approximately 230 nautical

miles from Pointe Noire, a centre of pirate activity according to the contemporaneously most

current report of the IMB.100 Since the IMB is an agency of the International Chamber of

Commerce and has vast experience in international piracy research and monitoring, 101

DEFENDANT submits that it meets the definition of a competent international authority as

required by the piracy clause.

50. The STS location was well within the Pointe Noire area. A distance of approximately 230

nautical miles is easily traversable by a typical pirate attack ship, which is often accompanied

97 Victoria Laundry (Windsor) v Newman Industries Ltd [1949] 2 KB 528, 540 (Asquith LJ); Koufos v C Czarnikow [1969] 1 AC 350, 383 (Lord Reid), 397 (Lord Morris); Transfield Shipping Inc v Mercator Shipping Inc [2009] 1 AC 61, 70–1 (Lord Hoffman), 75 (Lord Hope), 81 (Lord Rodger), 88 (Lord Walker). 98 Record 16, 36. 99 Record 8. 100 International Chamber of Commerce Maritime Bureau, Piracy and Armed Robbery Against Ships: Report for the Period 1 January – 31 March 2014 (2014) 18. 101 Ibid 2.


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by one larger ship capable of travelling long distances.102 In these circumstances, the STS

location was easily accessible by a pirate organisation based in Pointe Noire. This analysis is

supported by the IMB report, which described an incident off the coast of Luanda in which a

tanker was seized by pirates and subjected to multiple STS operations.103 It follows that the

Vessel travelled through an area with a current risk of piracy, verified by a competent

international authority, and consequently the obligation to implement BMP4 was engaged.

2. CLAIMANT did not comply with BMP4

51. In proceeding to and stopping at the STS location, CLAIMANT failed to comply with two

material aspects of BMP4. First, the Master did not comply with BMP4’s recommendation to

increase to maximum speed (evidenced by the Master’s admission that the Vessel was

‘drifting’)104 upon detecting a suspicious vessel.105 This is because Master failed to identify the

presence of two small boats on the radar as suspicious,106 despite BMP4’s caution that the

typical pirate attack begins with the approach of two skiffs.107 Secondly, the Master failed to

install razor wire. BMP4 recommends the use of razor wire, because it is an effective barrier

against pirates.108 Despite BMP4’s recommendation, the Master departed from Singapore

without the razor wire,109 and, further, did not acquire it in Durban, even though it was

available.110 On that basis, CLAIMANT further failed to comply with BMP4.

3. The failure to comply with BMP4 caused DEFENDANT’s loss of cargo

102 Best Management Practices for Protection against Somalia Based Piracy (August 2011) 3. 103 International Chamber of Commerce Maritime Bureau, Piracy and Armed Robbery Against Ships: Report for the Period 1 January – 31 March 2014 (2014) 20. 104 Record 40. 105 Record 7. 106 Record 40. 107 Best Management Practices for Protection against Somalia based Piracy, version 4 (August 2011) 9. 108 Ibid 28. 109 Record 27. 110 Procedural Order No. 2 [17].


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52. DEFENDANT must demonstrate that the Master’s incompetence caused DEFENDANT’s loss of

cargo.111 The pirates would never have gained access to the Vessel had CLAIMANT complied

with BMP4. A competent master would have immediately increased the Vessel’s speed upon

identifying the skiffs on the radar, making capture of the Vessel significantly more difficult.

Coupled with a wall of razor wire at the top of the Vessel’s sides, the application of this

precaution would have prevented the pirates from boarding. Accordingly, CLAIMANT’s breach

of the Charterparty caused the loss of cargo.

4. The damage was not so remote as to be unrecoverable

53. The loss was recoverable for the reasons stated above.112

VII. CLAIMANT IS LIABLE FOR THE CONVERSION OF THE LOST CARGO

54. CLAIMANT converted the lost cargo by acting in a manner inconsistent with DEFENDANT’s right

to immediate possession (A). CLAIMANT converted the cargo by deliberately deviating from the

agreed disport location and by wrongfully delivering the cargo to an unauthorised third party

(B). DEFENDANT has title to sue as bailor of the cargo.113 DEFENDANT retained title to the cargo

throughout the voyage in accordance with the terms of the sales contract between DEFENDANT

and the consignee. 114 CLAIMANT’s actions were inconsistent with DEFENDANT’s right to

immediate possession.115

A. CLAIMANT wrongfully deviated from the agreed disport location

55. CLAIMANT is liable in the tort of conversion because the Master wrongfully deviated from the

agreed disport location in breach of the Voyage Orders.116 The Master was aware of the correct

coordinates for ‘OPL Area 1’ as indicated by the Master in an email to DEFENDANT on 28

111 The Europa [1908] P 84, 97–8 (Bucknill and Bargrave Deane JJ); Lindsay v Klein (‘The Tatjana’) [1911] AC 194, 203 (Lord Shaw); Minister of Food v Reardon Line (1951) 2 Lloyd’s Rep 265, 271–2 (McNair J). 112 Above [47]. 113 Norman Palmer, Palmer on Bailment (Sweet & Maxwell, 3rd ed, 2009) 263. 114 Procedural Order No 2 [22]. 115 Kuwait Airways Corp v Iraqi Airways Co [2002] 2 AC 883, 1084 [39] (Lord Nicholls). 116 Above [18]–[19].


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June.117 The Master’s subsequent communications with ASA2 were in breach of the Voyage

Orders that expressly prohibited the Master from taking voyage-related instructions from third

parties.118 ASA2 is not DEFENDANT’s agent.119 The Master’s deviation from the agreed disport

location was a significant act of interference whereby the wrongful act excluded DEFENDANT

from the use and possession of the cargo.120 CLAIMANT is therefore liable in conversion.

B. CLAIMANT is liable for the wrongful delivery of the cargo

56. CLAIMANT is liable in conversion by wrongful delivery. As conversion is actionable per se,

CLAIMANT’s delivery of the cargo to a party other than the receivers named in the bill of lading

constitutes conversion.121 CLAIMANT’s misdelivery of the cargo is a voluntary and wrongful act.

Therefore, CLAIMANT is liable in conversion.

VIII. CLAIMANT BREACHED ITS DUTY OF CARE AS BAILEE OF THE CARGO

57. DEFENDANT has title to sue as bailor of the cargo.122 CLAIMANT breached its duty of care as

bailee by not taking reasonable care of the cargo in two respects, first, by taking voyage-related

instructions from a third party (A) and secondly, by failing to provide a seaworthy Vessel in

compliance with BMP4 (B). Since CLAIMANT voluntarily took custody and control over the

cargo123 and part of the cargo was lost due to piracy leaving DEFENDANT with no reasonable

prospect of recovering the lost cargo,124 CLAIMANT as bailee bears the burden to disprove

breach of duty.125

117 Record 33–4. 118 Record 13, 33–41. 119 Statement of Defence [10](a); Above [23]–[30]. 120 Kuwait Airways Corp v Iraqi Airways Co [2002] 2 AC 883, 1084 [39] (Lord Nicholls). 121 See Statement of Defence [21](a)–(c); Sze Hai Tong Bank Ltd v Rambler Cycle Co Ltd (‘The SS Glengarry’) [1959] AC 576, 586 (Lord Denning); Motis Exports Ltd v Dampskibsselskabet AF 1912 Aktieselskab and Aktieselskabet Dampskibsselskabet Svendborg (‘Maersk Line’) [2000] 1 Lloyd’s Rep 211, 214–15 [15]–[16] (Stuart-Smith LJ); Paul Todd, ‘The bill of lading and delivery: the common law action’, Lloyd’s Maritime and Commercial Law Quarterly, 2006, 541–2; Simon Baughen, ‘Bailment or conversion? Misdelivery claims against non-contractual carriers’, Lloyd’s Maritime and Commercial Law Quarterly, 2010, 412–3; see also Record 43–4 for Bill of Lading. 122 Above [54]. 123 Record 29. 124 Record 41–2; see Statement of Claim [10]; The Pioneer Container [1994] 2 AC 324, 341–2 (Lord Goff); East West Corporation v DKBS 1912 [2003] 1 Lloyd’s Report 239, 248–50, [24]–[30] (Mance LJ). 125 Morrison, Pollexfen and Blair v Walton [1915] 1 KB 73, 87–8 (Buckley LJ), 90 (Kennedy LJ), 97 (Phillimore LJ).


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A. CLAIMANT failed to take reasonable care of the cargo by following voyage orders from a

third party

58. CLAIMANT breached a term of the bailment by taking voyage-related instructions from a third

party.126 CLAIMANT breached its duty as bailee by not taking reasonable care to ascertain

whether ASA2 was DEFENDANT’s agent. The Voyage Orders expressly required the Master to

disregard any voyage-related instructions from a third party and to immediately refer them to

DEFENDANT.127 The Master was also required to copy DEFENDANT and the disport agent on ‘all

ETA discharge port messages’.128 Master failed to comply and did not copy DEFENDANT on any

correspondence with ASA2 between 28 June and 3 July.129 DEFENDANT was not aware of the

Master’s communications with ASA2 until the day of the pirate attack.130 CLAIMANT therefore

breached its duty as bailee by not taking reasonable care to ascertain whether ASA2 was in fact

DEFENDANT’s agent.

59. CLAIMANT’s failure to take reasonable care caused the loss of cargo. If the Master had copied

DEFENDANT on all ETA discharge messages in accordance with the Voyage Orders,

DEFENDANT would have alerted the Master to the fact that ASA2 was not DEFENDANT’s agent.

As a consequence, the Master would not have travelled to international waters under fraudulent

instructions or have exposed the Vessel to certain risks. CLAIMANT’s failure to take reasonable

care thus caused the loss of cargo.

B. CLAIMANT failed to provide a seaworthy Vessel in compliance with BMP4

60. CLAIMANT breached its duty as bailee by failing to implement anti-piracy measures in

accordance with BMP4.131 CLAIMANT had a duty as bailee to take active steps to protect the

126 Record 35. 127 Record 13. 128 Record 14. 129 Record 35–8. 130 Record 41. 131 Above [48]–[53].


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cargo from foreseeable hazards.132 CLAIMANT was aware of the risk of piracy en route to WAF.

CLAIMANT’s own Operations and Security Department inspected the Vessel and advised that it

needed to be equipped with razor wire.133 WAF is a known area for pirate activity and reports

have indicated that other vessels carrying gasoil have been targeted in the vicinity.134 CLAIMANT

was therefore obliged to protect the Vessel from piracy in accordance with BMP4 and its own

internal security assessment.

61. Further, CLAIMANT was obliged to take special care of the cargo due to its value, portability and

attractiveness to thieves.135 This obligation is particularly relevant since piracy was prevalent in

the vicinity.136 CLAIMANT, however, failed to exercise reasonable care as the Vessel was not

equipped with razor wire in either Singapore or Durban.137 The razor wire was available at

Durban but the Master chose to continue on without adequately equipping the Vessel.138 Given

the frequency of pirate attacks in WAF and the Vessel’s obvious vulnerability without adopting

adequate anti-piracy measures, CLAIMANT’s breach of duty caused the loss of the cargo.

REQUEST FOR RELIEF

For the reasons set out above, if the Tribunal finds that it has jurisdiction to hear this claim,

DEFENDANT requests it to:

a) declare that DEFENDANT is not liable in relation to CLAIMANT’s claim;

b) declare that CLAIMANT is liable in relation to DEFENDANT’s counter-claim;

c) award damages in relation to the counter-claim as particularised in the phase of this

arbitration relating to quantification of damages; and

d) award further or other relief as the Tribunal considers fit.

132 Norman Palmer, Palmer on Bailment (Sweet & Maxwell, 3rd ed, 2009) 1108. 133 Record 22. 134 Record 46; Above [49]–[50]. 135 Garnham, Harris and Elton Ltd v Alfred W. Ellis (Transport) Ltd [1967] WLR 940, 947 (Paull J). 136 BRS Ltd v Arthur V Crutchley & Co Ltd [1968] 1 All ER 811, 818 (Lord Pearson). 137 Record 27, 36. 138 Procedural Order No 2 [17].

seventh draft of full defendant memo - murdoch university · national carriers ltd v panalpina...

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