EIGHTEENTH ANNUAL INTERNATIONAL MARITIME LAW ARBITRATION MOOT 2018 MEMORANDUM FOR CLAIMANT THE UNIVERSITY OF LE HAVRE-NORMANDY TEAM 14 ON BEHALF OF: AGAINST: Cerulean Beans and Aromas (CBA) Dynamic Shipping LLC (DS) CLAIMANT RESPONDENT
EIGHTEENTH ANNUAL
INTERNATIONAL MARITIME LAW ARBITRATION MOOT
2018
MEMORANDUM FOR CLAIMANT
THE UNIVERSITY OF LE HAVRE-NORMANDY
TEAM 14
ON BEHALF OF: AGAINST:
Cerulean Beans and Aromas (CBA) Dynamic Shipping LLC (DS)
CLAIMANT RESPONDENT
TEAM 14 MEMORANDUM FOR CLAIMANT
II
TABLE OF CONTENTS
TABLE OF CONTENTS ...................................................................................................................... II
ABBREVIATIONS .............................................................................................................................. V
LIST OF AUTHORITIES.................................................................................................................... VI
STATEMENT OF FACTS ............................................................................................................................ 1
ARGUMENTS ON JURISDICTION .................................................................................................... 2
I. The Tribunal Has Jurisdiction To Determine Parties’ Dispute ....................................................... 2
A. The law of the United Kingdom governs the arbitration agreement ................................... 2
B. The arbitration agreement grants the Tribunal jurisdiction to determine Parties‘ dispute ......... 4
ARGUMENTS ON THE MERITS OF THE CLAIM ........................................................................... 6
I. Respondent’s Deviation Constitutes a Breach of the Charterparty ................................................ 6
A. RESPONDENT was contractually obliged not to deviate ............................................................. 6
B. The deviation was not caused by a Force Majeure Event but by a gross negligence on behalf of
the RESPONDENT ............................................................................................................................. 7
C. The additional delay caused by the Storm is a result of the RESPONDENT action and is not a case
of Force Majeure Event .................................................................................................................. 9
D. The Delivery of the goods was beyond the date fixed by the Charterparty and therefore
constitutes a breach of contract & CLAIMANT is eligible to receive damages for breach of
Charterparty .................................................................................................................................. 10
II. Respondent is Liable for the Damage to the Goods .................................................................... 11
A. The damages occurred before the effective delivery at the discharging port .......................... 11
B. CLAIMANT is eligible to receive extended damages for the damaged goods ........................... 12
TEAM 14 MEMORANDUM FOR CLAIMANT
III
III. CLAIMANT HOLDS A MARITIME LIEN OVER THE DRAGONFLY ............................... 15
A. The Dagonfly’s crew can enforce a maritime lien ................................................................... 15
B. Maritime lien is held by CLAIMANT because of its action ....................................................... 15
ARGUMENTS ON THE MERITS OF THE COUNTERCLAIMS.................................................... 16
I. Claimant does not owe full freight under the Charterparty ...................................................... 16
A. Delivery was not on 29 but 31 July ................................................................................... 16
B. Upon delivery, ¾ of the cargo were not in merchantable condition ........................................ 16
II. Claimant does not owe reimbursement of Agency fees in Spectre ............................................. 17
A. RESPONDENT’s failure to ask for instructions .................................................................... 17
B. Informing CLAIMANT was possible .......................................................................................... 18
III. Claimant does not owe demurrage ............................................................................................. 18
A. The delay was caused by an unexpected peril ................................................................... 18
B. The event was beyond CLAIMANTs control ............................................................................. 19
C. Delay would not have occurred under normal circumstances ................................................. 19
IV. Claimant does not owe contribution for reparation expenditures to the vessel ......................... 19
A. RESPONDENT’s negligence broke chain of causation ......................................................... 20
B. Unpredictability of the sacrifice broke chain of causation ...................................................... 20
V. CLAIMANT DOES NOT OWE EXPENSES MADE AT DILLAMOND ................................ 21
A. Expenses resulting from a breach of the Charterparty are excluded ................................. 21
B. Charterer did not agree to the expenses ................................................................................... 21
REQUEST FOR RELIEF .................................................................................................................... 22
TEAM 14 MEMORANDUM FOR CLAIMANT
IV
TEAM 14 MEMORANDUM FOR CLAIMANT
V
ABBREVIATIONS
Charterer Cerulean Beans and Aromas (CBA) CLAIMANT
Owners Dynamic Shipping LLC (DS) RESPONDENT
Charterparty The voyage charterparty between CLAIMANT and RESPONDENT
Force Majeure Event An event listed in Clause 17 of the Charterparty
Loading Place Port of Cerulean
Dischargind Place Port of Dillamond
Parties CLAIMANT and RESPONDENT
The Dragonfly The MV Madam Dragonfly
Cargo 70 metric tons of speciality grade green coffee
Event 1 The Solar Flares that hit the Madam Dragonfly during the voyage
Event 2 The Storm that hit the region of Dillamond at the end of the voyage
ECDIS Electronics Charts Display Information System
TEAM 14 MEMORANDUM FOR CLAIMANT
VI
LIST OF AUTHORITIES
CASES AND ARBITRAL AWARDS
Akai Pty Ltd v People’s Insurance Co Ltd (1996)
Amin Rasheed Shipping Corp v Kuwait Insurance Co [1984]
Asfar v Blundell [1896] 1 Q.B. 123.
Bonython v Commonwealth [1950] 81 CLR 486, 498
British Shipowners v. Grimond
Carboex v Louis Dreyfus [2011] EWHC 1165
Dakin v Oxley (1864) 15 C.B. (N.S.) 646
DalwoodMarine v. Nordana Line (The Elbrus) [2010] 2 Lloyd's Rep. 315.
Emeraldian v Wellmix (The Vine) [2010] EWHC 1411
Evera SA Commercial v North Shipping Co [1956] Lloyd’s Rep. 367
Fletcher v Gillespie [1826] 3 Bing.635
Golden Strait Corp. v. Nippon Yusen Kaisha (The Golden Victory) [2007], 2 A.C. 353;
Hadley v. Baxendale [1854] Voyage charter
Holman v Dasnieres [1886] 2 T.L.R. 480
Knight v. Fleming (1898)
Oceanic Sun Line Special Shipping Co Inc v Fay [1988]
Sulamérica Cia Nacional de Seguros SA v Enesa Engenharia SA [2013]
The Saturnia [1987] 2 Lloyd’s Rep. 43
BOOKS
Aleka Mandaraka-Sheppard, Modern Maritime Law (2nd ed, 2007, Routledge Cavendish)
Carver, Colinvaux, Carriage by Sea (London Stevens & Sons, 13th ed, 1982)
Clare Ambrose, Karen Maxwell and Michael Collett, London Maritime Arbitration (4th ed, 2011,
Informa Law from Routledge)
Eder, Bernard, Howard Bennett, Stevn Berry, David Foxton and Christopher Smith, Scrutton on
Charterparties and Bills of Lading (22nd ed, 2011, Sweet & Maxwell)
Gary Born, International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014)
Jean-Pierre Beurier, Droits Maritimes (3rd ed, 2015, Dalloz)
John Livermore, Transport Law in Australia (3rd ed, 2017, Wolters Kluwer)
Julian Cooke, Tim Young, Michael Ashcroft, Andrew Taylor, John Kimball, David Martowski,
LeRoi Lambert, Michael Sturley, Voyage Charters (Lloyd's shipping law library, CRC Press, 2014)
TEAM 14 MEMORANDUM FOR CLAIMANT
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Julian Cooke, Tim Young, Michael Ashcroft, Andrew Taylor, John Kimball, David Martowski, LeRoy
Lambert and Michael Sturley, Voyage Charters (4th ed, 2014, Informa Law from Routledge)
Laura WALTHER, Anisa RIZVANOLLI, Mareike WENDEBOURG, Carlos JAHN, Modeling and
Optimization Algorithms in Ship Weather Routing. International Journal of e-Navigation and
Maritime Economy 4 (2016)
Nigel Blackaby, Constantine Partasides, Alan Redfern, and Martin Hunter, Redfern and Hunter on
International Arbitration (Oxford University Press, 6th ed, 2015)
WEBSITES
Legal meanings of delivery https://repub.eur.nl/pub/6943/05.pdf
Lloyd’s List intelligence https://www.lloydslistintelligence.com/llint/print-
article.htm;jsessionid=0D2B5C01A3FE8F987952A152028D9618?documentId=240716&articleTyp
e=rats
CNRS http://www2.cnrs.fr/sites/en/fichier/cp_gabarit_helicite_magnetique_en_web.pdf
SOLAS http://solasv.mcga.gov.uk/
https://worldoceanreview.com/en/wor-1/transport/global-shipping/2/
STATUTES AND CONVENTIONS
Arbitration Act 1996
International Arbitration Act 1974
International Maritime Organisation Convention On Maritime Liens And Mortgage
Safety Of Life At Sea (SOLAS) convention 2002
UNCITRAL Model Law on International Commercial Arbitration
York and Antwerp Rules 2004
TEAM 14 MEMORANDUM FOR CLAIMANT
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STATEMENT OF FACTS
1. Cerulean Beans and Aromas Ltd. (CLAIMANT) is a company based in Cerulean. It contacted Dynamic
Shipping LLC (RESPONDENT), a company based in Cerulean as well, to charter RESPONDENT’s vessel
(The Madam Dragonfly) for the urgent shipment of high quality coffee beans (‘cargo’) from Cerulean
to Dillamond by 28 July in order to satisfy CLAIMANT’S client.
2. Together, the parties agreed a voyage charter. Clause 27 of this charter provided that “any dispute
arising out of or in connection with this contract, [...], shall be referred to arbitration in London”.
3. Upon a further agreement, CLAIMANT transferred money in order to secure the crew’s wages and the
timely depart of the vessel in a separate bank account.
4. As agreed, on 24 July, the cargo was packed in specially sealed waterproof containers and loaded on
the vessel that departed without delay. The same night, solar flares knocked out communication and
satellite navigation. The vessel deviated to the port of Spectre as this was the only port for which
hardcopy maps were on board.
5. On 27 July, the vessel left the port of Spectre to continue her route to Dillamond. In the early morning
of 28 July the vessel was about to arrive at Dillamond but could not enter it in the reason of an
unexpected storm. While waiting the storm to pass, Master engaged manoeuvres and damage was
caused to the vessel’s hull.
6. Vessel entered the port of Dillamond on 29 July and discharged cargo in the evening. RESPONDENT’s
men waited CLAIMANT to collect cargo until midnight. Congestion caused by the storm hindered
CLAIMANT to get the cargo before 31 July.
7. It was found that 75 % of the cargo was water damaged. CLAIMANT organized replacement coffee and
agreed upon a settlement payment to not lose his client. The appointed expert declared cargo was
damaged in the 24 hours from 30 July’s early morning.
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8. CLAIMANT commenced arbitral proceedings on 11 August for the payment of damages for the damaged
cargo, the replacement coffee payment and the settlement payment. Further, CLAIMANT alleged to hold
a maritime lien over the vessel.
ARGUMENTS ON JURISDICTION
I. THE TRIBUNAL HAS JURISDICTION TO DETERMINE PARTIES’ DISPUTE
9. According to the principle of kompetenz-kompetenz, the Tribunal has power to determine its own
jurisdiction1 by construing the arbitration agreement according to its governing law.2 The law of the
United Kingdom governs the arbitration agreement (A). Under that law, the Tribunal has jurisdiction
to determine CLAIMANT's claims and RESPONDENT’s counterclaims (B) and the expert determination
provision of the Charterparty is irrelevant to the present dispute (C).
A. The law of the United Kingdom governs the arbitration agreement
10. Parties have not expressly chosen a governing law for the arbitration agreement. In the absence of such
a choice, the system of law with the “closest and most real connection” to the arbitration agreement
governs that agreement.3 This is the law of the United Kingdom (i) and the choice of London as the
arbitral seat reinforces this conclusion (ii).
1 Nigel Blackaby, Constantine Partasides, Alan Redfern, and Martin Hunter, Redfern and Hunter on
International Arbitration (Oxford University Press, 6th ed, 2015) (‘Redfern and Hunter’), 322, 345;
QH Tours Ltd v Ship Design and Management (Aust) Pty Ltd (1991) 105 ALR 371, 384 (Foster J);
Dallah Real Estate and Tourism Co v Ministry of Religious Affairs of the Government of Pakistan
[2011] 1 AC 763, 830 [84] (Lord Collins of Mapesbury JSC); Ust-Kamenogorsk Hydropower Plant
JSC v AES Ust-Kamenogorsk Hydropower Plant LLP [2013] 1 WLR 1889, 1902 (Lord Mance);
UNCITRAL Model Law on International Commercial Arbitration, Article 16(1); International
Arbitration Act 1974 (Cth), s 16; Arbitration Act 1996 (UK), s 30(1). 2 Gary Born, International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014) 3 Bonython v Commonwealth [1950] 81 CLR 486, 498; Amin Rasheed Shipping Corp v Kuwait
Insurance Co [1984]; Oceanic Sun Line Special Shipping Co Inc v Fay [1988]; Akai Pty Ltd v People’s
Insurance Co Ltd (1996) 1; Sulamérica Cia Nacional de Seguros SA v Enesa Engenharia SA [2013]
TEAM 14 MEMORANDUM FOR CLAIMANT
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(i) The law of United Kingdom has the closest and most real connection to the arbitration agreement
11. If the Parties expressly chose the law of New South Wales, Australia to govern their substantive
agreement, the Charterparty4, there is only a presumption that the same law governs the arbitration
agreement and that the Parties intended to see the same law govern any arbitration.5
12. That presumption can be rebutted in the case a different law has a closer and more real connection to
the arbitration agreement6 which is the case in the present dispute and the Tribunal should apply the
law of the United Kingdom to the arbitration agreement as it has the closest and most real connection
to the agreement.
13. Indeed, both Parties are located in Cerulean7 and Cerulean applies all laws of the United Kingdom8
and other complementary factors designates the law of the United Kingdom as the closest to the
arbitration agreement. First, both Parties are located in a state that applies the law of the United
Kingdom9.Second, both Parties executed their counterparts of the Charterparty in states that apply the
law of United Kingdom as Dillamond applies as well the law of the United Kingdom10. Third, the
subject matter of the arbitration agreement is “any dispute arising out of or in connection with this
contract”11, which is an agreement for the voyage of a Cerulean-flagged ship12 between states that
apply the United Kingdom law. Fourth, the arbitration is regulated by a British set of institutional
rules13 and involved preliminary activities14, which took place in states that apply the UK law.
4 Chaterparty Clause 28, Moot Problem at p13 5 Redfern and Hunter 6 Redfern and Hunter 7 Invoice 31 July 2017, Moot Problem at p29; Clarification 1, Procedural Order 2 at p1 8 Background information and assumptions, Moot Problem at p46 9 Idem 10 Idem 11 Chaterparty Clause 27 (a), Moot Problem at p13 12 Points of Claims, Moot Problem at p38 13 Chaterparty Clause 27 (a), Moot Problem at p13 14 Letter from Kensington Mayfair and Associates to Respondent, Moot Problem at p35
TEAM 14 MEMORANDUM FOR CLAIMANT
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(ii) The choice of London as the arbitral seat means that English law governs the arbitration
agreement
14. In light of the above demonstration and considering London to have been chosen as the arbitral seat,
CLAIMANT can rebut the presumption that New South Wales, Australian law, as the proper law of the
contract, also governs the arbitration agreement.
15. In any event, a determination that the New South Wales, Australia law governs the arbitration
agreement does not prejudice CLAIMANT’s submission that the arbitration agreement grants the
Tribunal jurisdiction over the present dispute.
B. The arbitration agreement grants the Tribunal jurisdiction to determine Parties‘ dispute
16. The Parties objectively intended all disputes to be arbitrable and to limit expert determination to
technical matters. Expert determination was only intended for technical and limited matters (i) and the
Parties did not intend, as the presumption of “one-stop” dispute resolution (ii), the language of the
arbitration clause (iii) and because the intended technical scope of the expert determination clause
exceeds the current dispute (iv), to limit nor refute the Tribunal’s jurisdiction over technical matters.
(i) Expert determination clause is only intended for maritime, technical and simple issues
17. Expert determination is a form of dispute resolution invoked when there is not a formulated dispute in
which the parties have defined positions that need to be subjected to arbitration but in which parties
only need an independent evaluation on one technical and well-defined issue.
18. Parties clearly intended expert determination provision as an alternative to arbitration in the case of a
simple and limited matter related to a maritime issue as the provision clearly designates “an
independent Master Mariner”15 to act as expert showing that parties intended expert determination to
be limited to technical matters related to the conduct of the vessel and issues in relation to it. In the
15 Chaterparty Clause 27 (d), Moot Problem at p13
TEAM 14 MEMORANDUM FOR CLAIMANT
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present case, the scope of the claims made by CLAIMANT exceeds and not all relate to maritime
technical matters. Therefore, making the provision irrelevant to the present dispute.
(ii) Expert determination is irrelevant to the complexity of the present dispute
19. The complexity of the claims and counterclaims of Parties and as the dispute arises from issues that
go beyond a mere technical matter but extends to a legal issue make Expert determination unfit for the
present dispute. RESPONDENT by issuing counterclaims and discussing the legitimacy of the claims
made by CLAIMANT has expressed a clear opposed legal position. Consequently, Arbitration is the
sole way to resolute the present dispute as the writing of Clause 27 (a) suggests it16.
20. Furthermore, the brevity of the terms of the provision makes it unclear and therefore unenforceable.
The scope of the issues reserved to expert determination is unclear and the duty given to the expert is
not specified nor is provided a detailed proceeding. Courts have held that expert determination clauses
will be upheld only if their terms are clear.
(iii) There is a presumption that the Parties intended “one-stop” dispute resolution
21. Reasonable commercial parties intend all disputes between them to be decided in the one place. This
reduces the cost and complexity of dispute resolution, which is a key commercial purpose of
arbitration.
22. Requiring parties to arbitrate legal claims but to leave to expert determination disputes arising from
maritime and technical matters would force Parties to commence multiple proceedings at considerable
expense and complexity, especially when like in the present case the claims are legal and as well
technical. Dividing the dispute when the issues are overlapping could lead to an incoherent resolution
between Arbitrator’s decision and expert determination.
23. Arbitrators must have sole jurisdiction over the entirety of the dispute with the help during proceedings
of experts if needed for the evaluation of technical issues such as the cause of the damages.
16 Chaterparty Clause 27 (a), Moot Problem at p13
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Furthermore, the use of “however”17 shows that parties intended to use experts in case of technical
matters disputed within any case of arbitration. Parties intended to guarantee contractually the use of
24. Therefore, since the Charterparty expressly provides for arbitration, there is a presumption that the
Parties intended it to resolve all their disputes including the ones arising from technical issues. In
accordance with this intention, the Tribunal has jurisdiction to determine both CLAIMANT’s pleading
for damages and to resolve disputes arising from technical matters in relation to these claims.
(iv) The language of the arbitration clause indicates that technical matters are arbitrable
25. Clause 27(a) provides that “Any dispute arising out of or in connection with this contract, including
any question regarding its existence” is arbitrable.18 That language is very broad and should be
construed widely. Therefore, the Tribunal has a broad jurisdiction over any disputes including the legal
ones arising from technical matters.
ARGUMENTS ON THE MERITS OF THE CLAIM
I. RESPONDENT’S DEVIATION CONSTITUTES A BREACH OF THE CHARTERPARTY
26. RESPONDENT had a contractual duty not to deviate (A) and the deviation was not caused by a Force
Majeure Event but by its own gross negligence (B). The consecutive delay was the effective cause of
the late delivery and not Event 2 (C) and was a breach of the Charterparty (D).
A. RESPONDENT was contractually obliged not to deviate
27. In a voyage Charterparty, it has been established law that, in the absence of any contractual provision
giving liberty to deviate, the law implies “a duty in the owner of a vessel,[...], to proceed without
unnecessary deviation in the usual and customary course" as it is the case in the present situation 19.
17 Chaterparty Clause 27 (d), Moot Problem at p13 18 Chaterparty Clause 27 (a), Moot Problem at p13 19 Cooke et al,Voyage Charters (Lloyd's shipping law library, CRC Press, 2014) p. 275.
TEAM 14 MEMORANDUM FOR CLAIMANT
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Further, during precontractual exchanges, CLAIMANT clearly expressed its desire to have the Dragonfly
follow the most direct route to Dillamond20. By its mere mention, it became a contractual duty for
CLAIMANT to fulfill.
B. The deviation was not caused by a Force Majeure Event but by a gross negligence on behalf
of the RESPONDENT
28. Deviation was not caused by a Force Majeure Event as RESPONDENT was aware that Solar Flares were
happening in the Dillamond Region (i) and that the consequences of them could be mitigated by
navigation and communications systems up to date with industry standards (ii). Therefore, consecutive
deviated route that the RESPONDENT had to take was caused by its own gross negligence (iii).
(i) Solar Flares were predictable
29. As early as a fortnight prior to the departure21, RESPONDENT must have known that Solar Flares were
happening in the region where he operates his usual business22. As a diligent professional,
RESPONDENT could not have ignored this crucial element that was impacting the safety and conduct of
all vessels in the area. Therefore, the Solar Flare that impacted the Dragonfly was not in any way
unpredictable.
Furthermore, Solar Flares predictions have drastically improved in the recent decade making them
almost impossible to qualify as unpredictable and therefore as Force Majeure Events23.
(ii) Solar flares’ consequences were not insurmountable
30. Not only were Solar Flares predictable, their consequences and effects were perfectly surmountable.
As reported, if some vessels were impacted by “unprecedented Solar Flares”, the Cerulean National
Communications Agency stated that the delay in rebooting some communications system had to “be
attributed to old/faulty equipment”24.
20 Letter from CLAIMANT to Respondent, moot scenario p. 2. 21 News article, moot scenario p. 36. 22 Procedural ordre n°2, p. 1. 23CNRS press release, A new approach to forecasting solar flares, press release May 17, 2017. 24 News article, moot scenario p. 36.
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As shown, modern communications systems would have managed to handle the flares. Consequently,
it shows a lack of investment or a lack of maintenance for The Dragonfly’s overaged systems.
(iii) The deviation was the result of RESPONDENT’s gross negligence
31. Even if communications and navigational systems of the Dragonfly were impacted by Solar Flares,
the Dragonfly was not supposed to be left without any means of navigation as it should have had hard
copies of the maps needed to reach Dillamond25.
32. The Dragonfly was also required by its flag state regulations to always hold hard copies of maps which
in this case is Cerulean26. It has authority to enforce rules and regulations regarding pollution and
safety. As we know Cerulean has adopted all laws of the United Kingdom in order to facilitate trade
with its neighbours. So, in addition, we can assume that they also joined the same international
conventions such as SOLAS.
33. Indeed, the revised version from 2002 of SOLAS convention has been implemented in the legislation
of the United Kingdom by the Merchant shipping Regulations of the same year27. The SOLAS
convention in its Chapter V deals with this particular aspect, regulation 19 paragraph 228 is especially
clear on this topic, all ships should be equipped of nautical charts be it electronic or not and have
backup arrangements if they are using ECDIS.
34. Further, the Charterparty clearly states in Clause 15 regulations regarding duties The law of the
contract is the law of NSW29, the Australian law refers to The Australian navigation act (2012) as a
standard for navigation practice.
25 SOLAS convention, chapter V, rule 19. 26 Moot scenario p. 46. 27 Merchant shipping (safety of navigation) regulation, 2002. 28 SOLAS convention, chapter V, regulation 19, §2.1.4. 29 Charter party clause 28, moot scenario p. 13
TEAM 14 MEMORANDUM FOR CLAIMANT
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35. According to the act30, the master or the owner of a foreign vessel must not take it to sea if it is not
supplied with "nautical charts (including charts in electronic form), of a suitable scale and properly
corrected at the time of sailing; and nautical publications"
Finally, the RESPONDENT lacked of diligence as in the precontractual exchanges, CLAIMANT made it
clear to RESPONDENT that in any case of deviation RESPONDENT had to notify CLAIMANT before taking
any decision31.
C. The additional delay caused by the Storm is a result of the RESPONDENT action and is not a
case of Force Majeure Event
36. But for the deviation, the RESPONDENT’s vessel would have not faced the Storm at its peak and
would have been able to deliver the goods on schedule. The fact it had to face the storm was a direct
consequence of the deviation (i); anyway the Dragonfly was at a considerable distance from the port
of Dillamond when it had to stop (ii).
(i) The Storm faced by the RESPONDENT is the direct consequence of the deviation
37. As unpredictable and irresistible the Storm may have been32, RESPONDENT’s vessel should not have
had to face it had it not deviated. Indeed, the Storm started in the late afternoon on Friday33 and it did
not reach its peak until Friday night around 1 AM34. Consequently, if the Dragonfly had not deviated,
it would have arrived as scheduled at 5PM35 at berths at the Port of Dillamond. Therefore, only facing
the first rains of the Storm and a perfectly manageable weather36. RESPONDENT would have been
30 Australia navigation act, 2012, chapter 3, part 2, division 5. 31 Letter from CLAIMANT to Respondent, moot scenario p. 2. 32 Moot scenario p. 22. 33 Email from Respondent to CLAIMANT, moot scenario p. 19. 34 Moot scenario p. 22. 35 Email from Respondent to CLAIMANT, moot scenario p.15. 36 Laura WALTHER, Anisa RIZVANOLLI, Mareike WENDEBOURG, Carlos JAHN, Modeling
and Optimization Algorithms in Ship Weather Routing. International Journal of e-Navigation and
Maritime Economy 4 (2016)
TEAM 14 MEMORANDUM FOR CLAIMANT
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technically able to proceed to discharging and delivery. RESPONDENT created the conditions in which
he had to face the storm.
38. Moreover, RESPONDENT by deviating increased the risks of the adventure, indeed, while on the devious
course, the ship lost precious hours on its way to Dillamond37, only to face the storm while arriving at
Dillamond. Courts have stated that loss or damage can be caused by a deviation when it increases the
risks inherent to the voyage38.
(ii) RESPONDENT was a hundred nautical miles away from the port when facing the storm
39. Breach of contract happened when RESPONDENT was not at berths at 5PM on delivery date as
discharging would have required two more hours39. And as a consequence, the set time for delivery
could not be technically and physically respected. At 5PM, the Dragonfly was 100 nautical miles40 41
from the port and RESPONDENT had breached its contractual duty at this precise time.
40. Nonetheless, breach of contract occurred before Event 2 and therefore, the precise qualification of
Event 2 and its characteristics are of no interest. The Tribunal shall not take into account Event 2 and
its consequences as the effective cause of the breach of contract was the wrongful deviation operated
by RESPONDENT.
D. The Delivery of the goods was beyond the date fixed by the Charterparty and therefore
constitutes a breach of contract & CLAIMANT is eligible to receive damages for breach of
Charterparty
41. The breach of the Charterparty is duly proved as RESPONDENT deviated from the contractual set route
and delivered the goods after the set date and time (31st of July at 1:17pm)42. Thus, CLAIMANT is
eligible to receive damages. These damages should amount to the valuation of the direct consequences
37 Email from Respondent to CLAIMANT, moot scenario p. 19. 38 Hain v. Tate & Lyle, Voyage charter, p. 286 39 Procedural order n°2, p.2. 40 Email from Respondent to CLAIMANT, moot scenario p. 21. 41 https://worldoceanreview.com/en/wor-1/transport/global-shipping/2/ average speed of a container
ship estimated around 15 knots. 42 Email from CLAIMANT to Respondent, moot scenario p. 24
TEAM 14 MEMORANDUM FOR CLAIMANT
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of this breach, the late delivery, and the settlement money that CLAIMANT had to pay to its own business
partner who had to suffer from RESPONDENT’s breach of contract43. Accessory damages should follow
main damages as a result of the test of remoteness44.
II. RESPONDENT IS LIABLE FOR THE DAMAGE TO THE GOODS
42. As the damages to the goods occurred before the effective delivery (A), RESPONDENT is liable and
CLAIMANT is eligible to receive all damages (B).
A. The damages occurred before the effective delivery at the discharging port
43. The delivery of the goods occurred at a date and time (i) when goods were still under the guardianship
of the RESPONDENT (ii).
(i) Delivery and transfer of custody of the goods occurred at 1:17PM on July 31th
44. It has been established that delivery takes place when "the goods are so completely under the control
of the consignee that he may do what he likes with them'', or when they are "placed under the absolute
dominion and control of the consignees" 45 Delivery will only occur when the goods are placed in the
hands of an agent of the consignee46. The effect of the requirement that delivery involves the placing
of the goods under the complete control of the consignee or his agent makes delivery a bilateral act,
involving the receipt of the goods by the consignee or his agent as well as the relinquishing of
possession by the carrier and it cannot be effected merely by discharging the goods over the ship's side
at the port of delivery as RESPONDENT is implying in this case.
45. Neither the CLAIMANT nor its representative were able to take delivery of the goods before July 31th,
1:17PM47. Notwithstanding, mentions carried by the access barcode produced by the RESPONDENT
who cannot claim unilaterally delivery has occurred48. The Court of Appeal held that a carrier cannot
43 Moot scenario p.32. 44 (Hadley v. Baxendale (1854) 45 Cooke et al,Voyage Charters (Lloyd's shipping law library, CRC Press, 2014) p. 217. 46 Cooke et al,Voyage Charters (Lloyd's shipping law library, CRC Press, 2014) p. 218. 47 Email from CLAIMANT to Respondent, moot scenario p. 25 48 Cooke et al,Voyage Charters (Lloyd's shipping law library, CRC Press, 2014) p. 289.
TEAM 14 MEMORANDUM FOR CLAIMANT
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simply issue a delivery order and consider the goods delivered as he can regain control of them later
on.
46. "The carrier did give delivery of the goods, but he did not do so merely by issuing the delivery order,
since he might have revoked the authority to deliver and might have succeeded in regaining control of
the goods"49.
(ii) Damages occurred on port before established delivery and while goods were still under the
guardianship of RESPONDENT
47. Expert stated that damages to the goods occurred “sometime in the 24 hours from 4:30am on 30 July
2017”50. Therefore, damages occurred at a time and a date that were before the established delivery
and while goods were still under the liability of RESPONDENT.
48. Furthermore, RESPONDENT committed himself contractually to preserve the integrity of the goods
before their delivery and cannot consequently oppose any exemption arising from the sealant used and
its physical characteristics. The sealant used by the RESPONDENT was inappropriate for such a long
exposure to rain or water in general and even with this information and the knowledge that the delivery
was already late the RESPONDENT failed to take any protective measures to make sure that the goods
would stay intact, thus failing even more to show due diligence.
49. As a matter of fact, damages occurred before the delivery and the transfer of custody of the goods to
the CLAIMANT or its representatives. Consequently, RESPONDENT is liable to all damages caused to the
goods as a result of his inability to perform the contract.
B. CLAIMANT is eligible to receive extended damages for the damaged goods
50. RESPONDENT shall pay damages that amount to the value of the damaged goods (i) and cannot benefit
from any limited liability clause or statutes (ii). Furthermore, RESPONDENT must repair the direct
49 Great Eastem Shipping Co. Ltdv. Far East Chartering Ltd (The Jag Ravi) [2012] l Lloyd's Rep. 638 50 Moot scenation, p.43.
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consequences of the damages: the cost of the replacement coffee (iii) and the awarded settlement
money (iv).
(i) Damages amount to the value of the damaged goods
51. The “compensatory principle” can be used51 as a guideline to make sure that the CLAIMANT is
restored in its rights and that he will be put in the same situation that would have been his had the
contract been performed correctly which is with an intact product retaining is high commercial value
which the RESPONDENT was made aware of in the pre contractual exchanges52. Consequently,
RESPONDENT should pay damages amounting to the commercial value of the goods53.
(ii) RESPONDENT cannot claim any limited liability benefits
52. The RESPONDENT cannot limit his liability as he committed a gross negligence, the deviation itself
being a breach of the charter, he cannot benefit from any exemption clause. Even if the clause
Paramount of the charter party was to be in effect, the Hague and Visby rules clearly state that “Neither
the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness
unless caused by want of due diligence on the part of the carrier to make the ship seaworthy”54. We
already established precedently that the carrier lacked due diligence to make the ship seaworthy prior
to the voyage by failing to supply backup maps in case of ECDIS failure.
53. Nonetheless, the Charterparty carries an imprecise and vague reference to a limited liability system
that a casual professional like CLAIMANT could not understand and therefore the Tribunal should be
interpreted in favor of CLAIMANT.55 The RESPONDENT is fully responsible without any limitations for
the damages caused to the CLAIMANT.
51 Cooke et al,Voyage Charters (Lloyd's shipping law library, CRC Press, 2014) p. 616. 52 Letter from CLAIMANT to Respondent, moot scenario p. 2. 53 Moot scenario, p.27. 54 The Hague-Visby Rules - The Hague Rules as Amended by the Brussels Protocol 1968, article iv 55 See "Contra preferentem doctrine"
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(iii) RESPONDENT must repair the direct consequence of the damages: replacement coffee
54. Repairing the damages done by the breach of the charter do not stop only at awarding damages solely
for the damaged coffee. The full scope of the damage can only be apprehended in the context of the
contract that the CLAIMANT had with a third party named “Coffees of the world”.
55. As the RESPONDENT was made fully aware of the circumstances surrounding the urgent shipment of
coffee for a festival and the consequences of delivering late56.
56. At the date of the contract, the potential consequences of a late delivery and the urgency of the
shipment was perfectly foreseeable for the RESPONDENT and cannot be considered too remote of a
damage to be left out of the compensation owed to the CLAIMANT57.
(iv) Settlement money is a direct compensation for the damage done to CLAIMANT
57. Damages for the breach shall be calculated based on this direct and known consequence of the breach.
The damages asked by the CLAIMANT are rather reasonable: they are mere compensatory damages.
They place the CLAIMANT in the same position as if the delivery had been on time: the business relation
would be saved, the goods would have been delivered and sold, etc. The settlement payment can be
seen as a mere compensation of what it took to save the future of the business venture, it compensates
(and preserve) the outcomes they would have been able to expect if the delivery had been made on
time.
58. "Where a breach of contract gives rise to a claim against a contracting party by a third party and that
claim is "reasonably settled'', then the amount of the settlement is generally recoverable as damages"58.
56 Letter from CLAIMANT to Respondent, moot scenario p. 2. 57 Cooke et al,Voyage Charters (Lloyd's shipping law library, CRC Press, 2014) p. 628. 58 John F. Hunt Demolition v. Asma Engineering Ltd [2008] Cooke et al,Voyage Charters (Lloyd's
shipping law library, CRC Press, 2014) p. 648.
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III. CLAIMANT HOLDS A MARITIME LIEN OVER THE DRAGONFLY
59. Prior to the voyage and as an accessory to the Charterparty, CLAIMANT paid USD100,000 into a
separate Bank account59. Both parties intended this money to become payable to the crew following
the voyage60.
RESPONDENT has not paid the crew’s wages for the voyage and has not repaid the USD100,000 to the
CLAIMANT. A maritime lien is enforceable (A) and it lays in the hands of the CLAIMANT (B).
A. The Dagonfly’s crew can enforce a maritime lien
60. A maritime lien is a privileged charge on maritime property. Under British law61 and International
Conventions signed by Australia62, a claim on seamen’s wages is recognized as giving rise to a
maritime lien.
61. Wages of the Dragonfly’s crew were not paid by RESPONDENT for the voyage and therefore, a maritime
lien can be enforced by the crew.
B. Maritime lien is held by CLAIMANT because of its action
62. The CLAIMANT, prior to the voyage, paid the crew on a separate bank account because of the financial
difficulties experienced by the RESPONDENT and in order to secure the voyage. This money was
intended by both Parties to constitute the wages of the seamen.
63. By its action, CLAIMANT acted as a substitute to RESPONDENT paid the wages prior to the voyage as
a way to secure the crew work. Consequently, the actual wages were to be paid back directly to
CLAIMANT as a reimbursement for its action.
Therefore, CLAIMANT holds a maritime lien over the Dragonfly by its action nonetheless the effective
use of the money and the fact that the crew were not paid effectively by RESPONDENT.
59 Internal Memo, Moot Problem at p2 60 Points of Claims, Moot Problem at p38 61 62 International Maritime Organization Convention On Maritime Liens And Mortgage
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ARGUMENTS ON THE MERITS OF THE COUNTERCLAIMS
I. CLAIMANT DOES NOT OWE FULL FREIGHT UNDER THE CHARTERPARTY
64. Under a Charterparty, freight is due when the service in respect of which freight was contracted has
substantially been performed. 63 This service, according to Clause 1 of the Charterparty is the delivery
of the agreed cargo at the point of destination. 64
65. When CLAIMANT took receipt of the cargo, 75 % of it was water damaged. By this, CLAIMANT argues
RESPONDENT does not deserve full freight because upon delivery (A) the cargo was not the cargo
agreed upon in the Charterparty (B).
A. Delivery was not on 29 but 31 July
66. The obligation of delivery means that cargo has to be handed out to a “specified an identifiable
person”.65 The invoice issued by the RESPONDENT could not replace his obligation to deliver cargo to
an identifiable person representing CLAIMANT’s interests.
For reasons of congestion at the Port of Dillamond, cargo was delivered in its legal meaning not before
31 July by 1.55pm. Only then, there was physical delivery of the goods permitting CLAIMANT to
inspect the cargo.
B. Upon delivery, ¾ of the cargo were not in merchantable condition
67. To give right on payment of freight, the cargo delivered must be the same as the cargo agreed upon in
the Charterparty. 66 Accordingly to the Charterparty and confirmed by the dock receipt, the cargo to be
delivered was Speciality Grade Coffee ready for immediate sale. 67
63 Dakin v Oxley [1864] 15 C.B. (N.S.) 646, per Willes J at pp. 664-665 64 Moot scenario p. 4, Clause 1 65 Chapter 2 Legal meanings of delivery; Carver’s Carriage by Sea, 13rd ed, 1982, para. 1655
66 Scrutton, p. 469, 16-001 67 Moot scenario p.3; Moot scenario p.16
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68. In Asfar v. Blundellit it was held that cargo condemned by water contact was no longer in a business
sense the thing shipped and that no freight was payable; the question being whether the thing became
a “total loss”.68
69. When the cargo was effectively delivered to the CLAIMANT on 31 July 2017 by 1.55pm, the ¾ of the
cargo was already, as stated by the expert, water damaged. 69 The ¾ of the cargo became unusable and
unfit for being sold or consumed. It is a total financial and business loss.
As a result, charterer is not liable to pay full freight.
II. CLAIMANT DOES NOT OWE REIMBURSEMENT OF AGENCY FEES IN SPECTRE
70. In the event of Solar flares knocking out communication and navigation systems, the vessel deviated
to the Port of Spectre. RESPONDENT claims reimbursement of agency fees occurred thereby.
71. CLAIMANT is not liable to undertake such reimbursement because RESPONDENT missed his obligation
to inform CLAIMANT about the events (A) and RESPONDENT cannot excuse his failure by the fact that
informing CLAIMANT was impossible (B).
A. RESPONDENT’s failure to ask for instructions
72. As first agent of the CLAIMANT, the Master of the voyage’s (forming one with RESPONDENT) primary
duty is “to carry on the cargo safely in the same bottom”.70 Further he must, especially in exceptional
circumstances, inform the charterer to get his instructions. 71
73. The person keeping CLAIMANT up to date about the voyage was the RESPONDENT. He had to inform
CLAIMANT about the news’s that he had or received about the ongoing of the voyage.
74. Solar flares knocked out vessel’s communication and navigation systems for 17 hours starting by 9.30
pm on 24 July, meaning that they stopped at latest by 2.30 pm on 25 July.72 Even if RESPONDENT has
68 Asfar & Co v Blundell [1896] QB at pp.127-128 69 Moot scenario p.43. 70 Scrutton, p. 329, 12-005 71 Idem 72 Moot scenario p.35; Moot scenario p.17
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not been aware of the exact situation until communication systems had reconnected, he failed in his
obligation to inform CLAIMANT as he did it only on 26 July by 2.32 pm.73
B. Informing CLAIMANT was possible
75. There was nothing hindering RESPONDENT to ask CLAIMANT for instructions, namely not after 25 July
by 2.30pm when communication systems were completely reconnected and RESPONDENT could get
back in touch with the vessel. Saying that RESPONDENT did not want to worry CLAIMANT can be seen
as moral impossibility but to excuse his failure the existence of a real, objective impossibility is to be
proven.
76. As a result, RESPONDENT failed to his obligation to inform CLAIMANT and CLAIMANT cannot be held
liable to reimburse agency fees at the Deviation port.
III. CLAIMANT DOES NOT OWE DEMURRAGE
77. When the vessel arrived at the port of Dillamond, Charterer could not take delivery of the cargo before
31 July in the afternoon because there was impossibility to access cargo due to congestion at the port
caused by the storm.
78. RESPONDENT is not entitled to claim demurrage because the delay was caused by an unexpected peril
(A) that was beyond CLAIMANT’s control (B) and that would not have occurred under normal
circumstances (C).
A. The delay was caused by an unexpected peril
79. If delay is caused by an unexpected peril, there is possibility for demurrage not to count.74 As stipulated
by clause 8 (e) of the Charter Party, laytime is interrupted by reasons of “congestion of shipping [...]
consequent upon any one of the aforesaid causes”, including rain and bad weather.75
73 Moot scenario p.17 74 The Saturnia [1987] 2 Lloyd’s Rep. 43. 75 Moot scenario p.6, clause 8
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80. Congestion as consequence of the storm at the discharging port hindered Charterer to access the cargo.
Storm includes bad weather as well as rain. Therefore, the reason why Charterer took delivery on delay
is within the scope of an unexpected peril.
B. The event was beyond CLAIMANTs control
81. The event must have been beyond CLAIMANTs control, meaning that he could not have any influence
on the happening of such event. 76
82. CLAIMANT could not prevent the storm nor could he take influence by reasonable legal methods on the
congestion of the port to access the cargo earlier than he did.
C. Delay would not have occurred under normal circumstances
83. Delay is only excused if under normal circumstances there would not have been delay. 77 CLAIMANT
was ready to take delivery of the cargo, waiting at the port of destination since 28 July. Under normal
circumstances, there would not have been demurrage as CLAIMANT was most interested in taking
delivery on time.
Accordingly, CLAIMANT cannot held be liable for payment of demurrage.
IV. CLAIMANT DOES NOT OWE CONTRIBUTION FOR REPARATION EXPENDITURES TO THE VESSEL
84. RESPONDENT claims for contribution for the expenses he made to repair the vessel’s hull that was
damaged while waiting out the storm that raged over Dillamond. RESPONDENT is not entitled to claim
contribution to general average because the chain of causation between the damage and the
RESPONDENT’s action has been broken by RESPONDENT’s own negligence (A) and further because the
sacrifice was not foreseeable (B).
76 Emeraldian v Wellmix (The Vine) [2010] EWHC 1411 (Comm); [2011] 1 Lloyd’s Rep. 301 77 Carboex v Louis Dreyfus [2011] EWHC 1165; [2011] 2 Lloyd’s Rep. 177 at [62]; [2012] EWCA
Civ 838; 2 Lloyd’s Rep. 379.
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Clause 19 paragraph 1 of the Charter Party stipulates clearly applicability of York and Antwerp Rules
in case of general average.78 Thus, “any law and practise inconsistent therewith” are excluded to be
applied.79
85. Accordingly to Rule C of The York and Antwerp Rules, “only such losses, damages or expenses which
are the direct consequence of the general average act shall be allowed as general average“; the burden
of showing a break in the chain of causation being on the CLAIMANT.80
A. RESPONDENT’s negligence broke chain of causation
86. The chain of causation can be broken if the expenses claimed are the result of the perpetrator’s own
negligence. 81 If RESPONDENT’s crew had acted as they are supposed to by their obligation of due
diligence, the ship would not have stranded on the coral bed. Besides, during a storm it cannot be a
good idea to anchor in the middle of the sea.
B. Unpredictability of the sacrifice broke chain of causation
87. Chain of causation can also be broken if the sacrifice has not been foreseeable by the master. In
Australian Coastal Shipping vs. Green82 it was held that “if the master, when he does ‘the general
average act’, ought reasonably to have foreseen that a subsequent accident of the kind might occur –
or even that there was a distinct possibility of it – then the subsequent accident does not break the chain
of causation”. By contrast, if the “subsequent incident [...] was only a remote possibility”, there could
be a breach of the chain of causation.
88. By application of the provisions made in this decision, the question is whether the master could have
foreseen that by his action he is going to make a sacrifice. RESPONDENT’s crew was not aware of the
78 Moot scenario p.10, clause 19 79 York Antwerp Rules, Rule of Interpretation 80 Lloyd’s List Intelligence, Chapter 15, point 2.2 81 Lloyd’s List Intelligence, Chapter 15, point 2.3
82 1971, Lloyd's Rep. 16
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coral bed “on which the ship inadvertently stopped on”.83 Thus, they cannot say that they made a
sacrifice: that the ship was damaged was nothing but a coincidence and not foreseeable by the crew.
89. This is why this Tribunal should find that there was no act of general average and thus no liability for
the CLAIMANT to contribute hereto.
V. CLAIMANT DOES NOT OWE EXPENSES MADE AT DILLAMOND
90. When vessel arrived on 29 July at Dillamond, RESPONDENT decided to make use of electronic access
system to produce an access authority constituting delivery of the cargo. RESPONDENT claims for
reimbursement for expenses made thereby. CLAIMANT does not owe reimbursement of these expenses
because they result in RESPONDENT’s breach of the Charterparty for delay in delivery (A) and because
CLAIMANT did not agree to such expenses (B).84
A. Expenses resulting from a breach of the Charterparty are excluded
91. As examined above, RESPONDENT breached the Charterparty by deviating unreasonably from his route
to Dillamond, causing delay in the delivery of cargo.
Regarding shipowner’s obligation to load on time, it was hold that if they do not arrive when they were
supposed to, extra expenses were on their cost.85 By analogy, if shipowner’s are already on delay on
arrival and it is by their fault that they do so, extra-costs incurred thereby must be on their cost, too.
92. RESPONDENT was supposed to deliver by 28 of July, hence he did not fulfil his obligation and expenses
incurred in this context cannot be for CLAIMANT’s account.
B. Charterer did not agree to the expenses
93. Still it is possible if Charterer agrees expressly upon shipowner’s demand to take such expenses, that
they are for Charterer’s account. 86, 87
83 Moot scenario p. 20. 84 Scrutton p. 182, 9-006
85 Evera SA Commercial v North Shipping Co [1956] 2Lloyd’s Rep. 367 86 Holman v Dasnieres [1886] 2 T.L.R. 480; affirmed at 607. In Fletcher v Gillespie [1826] 3 Bing.635 87 Scrutton p. 204, 9-116
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94. RESPONDENT decided by himself to make use of electronic access systems at Dillamond, without
asking for CLAIMANT’s opinion or waiting for him to agree.
Therefore, there was no agreement on CLAIMANT’s behalf and he cannot be held liable for these
expenses. As a result, it is on RESPONDENT to bear these extra-expenses.
REQUEST FOR RELIEF
For the reasons pleaded above we ask that this Tribunal:
a) Declare that it has jurisdiction to hear CLAIMANT's pleading of breach of the Charterparty;
b) Award CLAIMANT the sum of USD 30,200,000 as damages;
c) Declare that CLAIMANT is not liable to pay neither the amount on the invoice presented by the
RESPONDENT, nor any damages for failing to pay the aforementioned amount, and;
d) award further or other relief as the Tribunal considers fit.