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17th Annual International Maritime Law Arbitration Moot
In the matter of arbitration under the MLAANZ Arbitration Rules
UNIVERSITY OF QUEENSLAND
MEMORANDUM FOR
CLAIMANT
CLAIMANT
Zeus Shipping and Trading Co
Level 4, 200 Beta Street
Poseidon
V
RESPONDENT
Hestia Industries
Level 1, 100 Alpha Street
Hades
COUNSEL
KEILIN ANDERSON | DOMINIC FAWCETT | JAAMAE HAFEEZ-BAIG | AMINA KARCIC
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TABLE OF CONTENTS
LIST OF ABBREVIATIONS ...................................................................................................................... iii
LIST OF AUTHORITIES ............................................................................................................................. v
STATEMENT OF FACTS ............................................................................................................................ 1
QUESTIONS PRESENTED ......................................................................................................................... 3
SUBMISSIONS .............................................................................................................................................. 4
I THE TRIBUNAL HAS JURISDICTION TO HEAR THE RESPONDENT’S CLAIM THAT
THE CHARTERPARTY IS FRUSTRATED ......................................................................................... 4
A The Tribunal has the power to rule on its own jurisdiction ............................................................. 4
B The Proper Law of the Arbitration Agreement is English Law ....................................................... 5
C Under English principles of contractual interpretation, a dispute about frustration is a ‘dispute
arising under this contract’....................................................................................................................... 6
D Alternatively, under Western Australian principles of contractual interpretation, the dispute is
nevertheless a ‘dispute arising under this contract’ ................................................................................. 6
II THE RESPONDENT IS LIABLE TO PAY THE CLAIMANT USD $17,900,000 BY WAY OF
DEMURRAGE ........................................................................................................................................... 8
A Laytime did not end on 7 October 2014 and subsequently expired on 13 October 2014 ................ 8
B Alternatively, laytime did not end as the Vessel did not cross the territorial limits of Hades before
being intercepted ...................................................................................................................................... 9
C The delay resulting from the interception of the Vessel was not an interruption to laytime ......... 11
D The interception, return and detention of the Vessel was not due to fault of the Claimant ........... 12
E The Force Majeure Clause does not excuse the Respondent from liability to pay demurrage ...... 13
III THE CHARTERPARTY WAS NOT FRUSTRATED................................................................. 13
A The supervening event was provided for in the Charterparty ........................................................ 14
B In any event, the delay was not of a frustrating character .............................................................. 15
IV ALTERNATIVELY, THE CHARTERPARTY WAS ONLY FRUSTRATED ON 30 APRIL
2015 ........................................................................................................................................................... 16
V THE RESPONDENT IS NOT ENTITLED TO A SALVAGE AWARD ................................... 17
A The Respondent is separate and distinct from the entity that salved the Vessel ............................ 18
B Alternatively, the Respondent’s services were not voluntary ........................................................ 19
C Alternatively, the Respondent should be fully deprived of any award .......................................... 21
PRAYER FOR RELIEF ............................................................................................................................. 23
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LIST OF ABBREVIATIONS
Act Arbitration Act 1996 (UK)
Arbitration Agreement Clause 30 of the Charterparty
Art. / Arts. Article/Articles
Bundle Bundle of Documents relevant to Arbitration
Cargo The cargo of HLNG aboard the Vessel
Charterparty The contract concluded between the Claimant and
Respondent on or about 22 July 2014
Claimant Zeus Shipping and Trading Company
Demurrage Clause Clause 10 of the Charterparty
Draft Arbitration
Agreement
Clause 30 of the Draft Charterparty
Draft Charterparty The contract enclosed in the Claimant’s email dated 14 July
2014
Force Majeure Clause Clause 19 of the Charterparty
HLNG Liquefied Natural Gas produced from Hades Shale Gas
Interruptions Clause Clause 9(e) of the Charterparty
Master Captain Marcus Yi
MLAANZ Maritime Law Association of Australia and New Zealand
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NOR Notice of Readiness
Respondent Hestia Industries
Salvage Convention International Convention on Salvage 1989
Statement of Facts The Statement of Facts in respect of MV Athena at Hades,
signed by Captain Marcus Yi on 7 October 2014
Tribunal The Arbitral Panel
Vessel MV Athena
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LIST OF AUTHORITIES
Books
Beale, Hugh, Chitty on Contracts: General Principles (Sweet & Maxwell, 30th ed, 2008)
Reeder, John (ed), Brice on Maritime Law of Salvage (Sweet & Maxwell, 4th ed, 2003)
Rose, Francis, Steel, Sir David and Shaw, Richard (eds), Kennedy & Rose: Law of Salvage (Sweet
& Maxwell, 8th, 2008)
Stannard, John, Delay in the Performance of Contractual Obligations (Oxford University Press,
2007)
Treitel, Sir Guenter, Frustration and Force Majeure (Sweet & Maxwell, 3rd ed, 2014)
Cases
Admiral Shipping Co v Weidner Hopkins & Co [1916] 1 KB 429
AIC Ltd v Marine Pilot Ltd (The Archimidis) [2008] 1 Lloyd’s Rep 597
Amin Rasheed v Kuwait Insurance Corp [1984] AC 50
Arsonovia Ltd and Ors v Cruz City 1 Mauritius Holdings [2013] 1 Lloyd’s Rep 235
Ashville Investments Ltd v Elmer Contractors Ltd [1989] QB 448
Bank Line Ltd v Arthur Capel & Co [1918] AC 435
Black-Clawson International Ltd v Papierwerke Waldoff-Aschaffenburg AG [1981] 2 Lloyd's Rep
446
Brass v Maitland (1856) 6 E & B 470
Budgett v Binnington [1891] 1 QB 35
Chapman v Taylor [2004] NSWCA 456 (13 December 2004)
Chartbrook Ltd v Persimmon Homes Ltd [2008] 3 WLR 267
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45
Darlington Futures Ltd v Delco Aust Pty Ltd (1986) 161 CLR 500
Davis Contractors Ltd v Fareham UDC [1956] AC 696
Denny, Mott & Dickson Ltd v James B Fraser & Co Ltd [1944] AC 265
Dias Compania Naviera SA v Louis Dreyfus Corp (The Dias) [1978] 1 AC 325
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Edwinton Commercial Corp v Tsavliris Russ (Worldwide Salvage & Towage) Ltd (The Sea Angel)
[2007] 2 Lloyd’s Rep 517
Effort Shipping Co Ltd v Linden Management SA (The Giannis NK) [1998] AC 605
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640
Ellis Shipping Corporation v Voest Alpine Intertrading (The Lefthero) [1992] 2 Lloyd’s Rep 109
Embiricos v Sydney Reid & Co [1914] 3 KB 45
ERG Raffinerie Mediterranee SpA v Chevron USA Inc (The Luxmar) [2007] 2 Lloyd’s Rep 542
Fiona Trust & Holding Corporation v Privalov [2007] Bus LR 1719
Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160
Heimann v Commonwealth of Australia (1938) 38 SR (NSW) 691
Heyman v Darwins Ltd [1942] AC 356
High Seas Venture Ltd Partnership v Sinom (Hong Kong) Ltd (The New Forest) [2008] 1 Lloyd’s
Rep 504
IBM Australia Pty Ltd v State of Queensland [2015] QSC 342 (7 December 2015)
In re Comptoir Commercial Anversois v Power, Son & Co [1920] 1 KB 868
J Lauritzen AS v Wijsmuller BV (The “Super Servant Two”) [1990] Lloyd’s Rep 1
Jackson v Union Marine Insurance Co (1874) LR 10 CP 125
Midwest Shipping v Henry [1971] 1 Lloyd’s Rep 375
oOH! Media Roadside Pty Ltd v Diamond Wheels Pty Ltd (2011) 32 VR 255
Pioneer Shipping v BTP Tioxide (The Nema) [1982] AC 724
Prenn v Simmonds [1971] 1 WLR 1381
Prest v Petrodel Resources Ltd [2013] 3 WLR 1
Profindo Pte Ltd v Abani Trading Pte Ltd (The MV Athens) [2013] 1 Lloyd’s Rep 317
Queensland Co Power Ltd v Downer EDI Mining Pty Ltd [2010] 1 Qd R 180
Salomon v Salomon & Co Ltd [1892] AC 92
Sametiet M/T Johs Stove v Istanbul Petrol Rafinerisi A/S (The Johs Stove) [1984] 1 Lloyd’s Rep 38
Scanlan’s New Neon Ltd v Tooheys Ltd (1943) 67 CLR 169
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Scottish Navigation Co Ltd v Souter; Admiral Shipping Co v Weidner Hopkins & Co [1917] 1 KB
222
Sulamerica SA v Enesa Engelharia SA [2013] 1 WLR 102
Tatem v Gamboa [1939] 1 KB 132
The Anthanasia Comninos and Georges Chr Lemos [1990] 1 Lloyd’s Rep 277
The Glenfruin (1885)10 PD 103
The Sava Star [1995] 2 Lloyd’s Rep 134
The Vrede (1861) Lush 322
Thiis v Byers (1876) 1 QBD 244
Transnet v The MV Cleopatra Dream (The Cleopatra Dream) [2011] ZASCA 12 (11 March 2011)
Transworld Oil Ltd v North Bay Shipping Corporation (The Rio Claro) [1987] 2 Lloyd’s Rep 173
Vinava Shipping Co Ltd v Finelvet AG (The Chrysalis) [1983] 1 Lloyd’s Rep 503
XL Insurance Ltd v Owens Corning [2001] 1 All ER (Comm) 530
Conventions
International Convention on Arrest of Vessels 1999, opened for signature 12 March 1999, 1110
UNTS 318 (entered into force 14 September 2011)
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on
the law applicable to contractual obligations [2008] OJ L 177/6
The International Convention on Salvage 1989, opened for signature 28 April 1989, 1953 UNTS
165 (entered into force 14 July 1996)
United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833
UNTS 3 (entered into force 16 November 1994)
Vienna Convention on the Law of Treaties 1969, opened for signature 23 May 1969, 1155 UNTS
331 (entered into force 27 January 1980)
Legislation
Arbitration Act 1996 (UK)
Contracts (Applicable Law) Act 1990 (UK)
Merchant Shipping Act 1995 (UK)
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Other
London Arbitration 6/11 (2011) 827 LMN 3
London Arbitration 29/84 LMLN 134 (20 December 1984)
The Travaux Preparatoires of The International Convention on Salvage 1989, opened for signature
28 April 1989, 1953 UNTS 165 (entered into force 14 July 1996)
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STATEMENT OF FACTS
1. The Claimant is the owner of a Hades-flagged ‘H Max LNG Carrier’, one of few ships worldwide
capable of carrying the Respondent’s LNG product.1 On 22 July 2014 the Claimant and the
Respondent entered into the Charterparty for the transport of the Respondent’s HLNG from
Hades to Poseidon.2
2. Significant protests were planned due to political unrest towards the Respondent’s Cargo at the
Port of Hades, with the object of preventing HLNG exports.3 On 3 October 2014, the Vessel
arrived at the Port of Hades and the Master tendered the NOR. If the Vessel did not ‘[leave] the
Loading Place’ within 10 WWD SHINC, the Respondent would be liable to pay USD $50,000 in
demurrage per day.4
3. On the Vessel’s arrival, violent protests erupted at the Port of Hades.5 The Master voiced his
concerns about the protests.6 Nevertheless, loading was completed, and on 7 October 2014 the
Vessel commenced sailing.7
4. That day, Opposition Leader Jacqueline Simmons seized control of the Hades Parliament,8 and
ordered the under-resourced Coast Guard to intercept the Vessel and return it to the Port of
Hades.9 Shortly after, the Coast Guard successfully intercepted the Vessel and ordered the Master
1 Bundle, p 3.
2 Ibid p 28.
3 Ibid p 26.
4 Ibid p 34.
5 Ibid pp 52, 53.
6 Ibid.
7 Ibid p 54.
8 Ibid p 55.
9 Ibid.
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to return to port. The Master initially refused but succumbed when reminded that the Vessel was
Hades-flagged and therefore subject to Hades law.10
5. The exact location of the Vessel was uncertain. The Claimant was deprived of the use of its
Vessel for the following 364 days while detained at the Port of Hades.11 On 15 April 2015, the
Claimant claimed USD $9,200,000 in demurrage,12 and the Respondent resisted.13 On 30
September 2015, President Simmons resigned,14 and on 5 October 2015 the Vessel was
released.15 The Claimant claimed USD $17,900,000 in demurrage.16 The Respondent is yet to
pay.
6. After being towed to open waters by Hestug, a tug operator in the area, the Vessel’s propeller
shafts broke.17 This was the result of tampering while at the Port of Hades.18 The tugs were
nearby at the time and rendered assistance to the Vessel.19
7. The Claimant referred the dispute to arbitration on 16 November 2015.20 The Respondent:
a. denied that the Tribunal had jurisdiction to hear the dispute;
b. without prejudice to its primary position, denied all liability; and
c. claimed a salvage award.21
10
Ibid p 62. 11
Ibid p 70. 12
Ibid pp 63-4. 13
Ibid p 65. 14
Ibid p 53 15
Ibid p 68. 16
Ibid pp 69-70. 17
Ibid p 71. 18
Ibid 19
Ibid 20
Ibid p 72. 21
Ibid p 73.
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QUESTIONS PRESENTED
1. What is the governing law of the Arbitration Agreement?
2. Does the Tribunal have jurisdiction to hear the dispute over whether the Charterparty is
frustrated?
3. Did laytime end on 7 October 2014?
4. Did the events of 7 October 2014 constitute an interruption to laytime under the
Interruptions Clause?
5. Was the delay due to fault of the Claimant?
6. Was the Charterparty frustrated on 7 October 2014?
7. Was the Charterparty frustrated at a later date?
8. Are Hestug and the Respondent the same legal entity?
9. If so, were the Respondent’s services voluntary?
10. Should the Respondent be fully deprived of the salvage award?
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SUBMISSIONS
I THE TRIBUNAL HAS JURISDICTION TO HEAR THE RESPONDENT’S
CLAIM THAT THE CHARTERPARTY IS FRUSTRATED
1. The Tribunal has jurisdiction to hear the dispute regarding the frustration of the Charterparty
because: (A) the Tribunal has the power to rule on its jurisdiction; (B) the proper law of the
Arbitration Agreement is English law; (C) under English principles of contractual interpretation,
a dispute regarding frustration is a ‘dispute arising under’ the Charterparty; and (D) alternatively,
under Western Australian principles of contractual interpretation, a dispute regarding frustration
is nevertheless a ‘dispute arising under’ the Charterparty.
A The Tribunal has the power to rule on its own jurisdiction
2. The seat of the arbitration is London and therefore Part 1 of the Act applies. Section 30 of the Act
states that ‘the arbitral tribunal may rule on its own substantive jurisdiction, that is, as to … what
matters have been submitted to arbitration in accordance with the arbitration agreement’. Further,
under section 7, the Arbitration Agreement is treated as separable from the Charterparty and is
not rendered ineffective in the event that the Charterparty is indeed frustrated. It follows that the
Respondent’s claim that the Charterparty is frustrated22 does not affect the Tribunal’s competence
to determine its own jurisdiction.
3. The Arbitration Agreement confers jurisdiction upon the Tribunal over ‘any dispute arising under
this contract’. The relevant inquiry is to determine whether this encompasses the dispute over
22
See Submission III.
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whether the Charterparty is frustrated. The construction of the Arbitration Agreement is governed
by its proper law, which may differ from the proper law of the Charterparty.23
B The Proper Law of the Arbitration Agreement is English Law
4. Pursuant to common law conflict of law rules,24 the proper law of the Arbitration Agreement is
the system of laws that the parties expressly or impliedly chose, or, if no such choice is
ascertainable, the system of laws with which it has the closest and most real connection.25 In the
absence of an express choice to the contrary, the parties impliedly chose English law to govern
the Arbitration Agreement.
5. From the choice of London as the seat of arbitration, it can be inferred that the parties impliedly
chose English law ‘to govern all aspects of the arbitration agreement, including … the jurisdiction
of the arbitrators’.26 The express choice of Western Australian law for the underlying
Charterparty cannot be used to indicate an implied choice of Western Australian law for the
Arbitration Agreement. Clause 30 explicitly restricts the choice of Western Australian law to ‘this
Charterparty’. The word ‘Charterparty’ connotes rights and obligations relating to the contract for
the carriage of goods by sea, rather than the Arbitration Agreement.27
6. Alternatively, the system of laws with which the Arbitration Agreement has the closest and most
real connection is English law. An agreement to arbitrate has a closer connection with the legal
system of the place where the arbitration is to be held, rather than the system of laws for the
23
Black-Clawson International Ltd v Papierwerke Waldoff-Aschaffenburg AG [1981] 2 Lloyd's Rep 446. See also
Arbitration Act 1996 (UK) s 7. 24
The Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law
applicable to contractual obligations [2008] OJ L 177/6 (‘Rome I Regulation’) does not apply to agreements to
arbitrate. See Contracts (Applicable Law) Act 1990 (UK) sch 1. 25
Amin Rasheed v Kuwait Insurance Corp [1984] AC 50; Sulamerica SA v Enesa Engelharia SA [2013] 1 WLR 102,
114 (Moore-Bick LJ, Hallett LJ and Lord Neuberger MR agreeing). 26
Sulamerica SA v Enesa Engelharia SA [2013] 1 WLR 102, 115 (Moore-Bick LJ) citing XL Insurance Ltd v Owens
Corning [2001] I All ER (Comm) 530. 27
Arsonovia Ltd and Ors v Cruz City 1 Mauritius Holdings [2013] 1 Lloyd’s Rep 235, 244.
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underlying contract from which it is separable.28 For the reasons above, English principles of
contractual interpretation must be used in construing the Arbitration Agreement.
C Under English principles of contractual interpretation, a dispute about
frustration is a ‘dispute arising under this contract’
7. As reasonable business people who chose arbitration as the dispute resolution procedure, it is
presumed that the parties intended that all disputes arising out of their contractual relationship be
heard by the same tribunal.29 Under English law, an agreement to arbitrate ‘should be construed
in accordance with this presumption unless the language makes it clear that certain questions
were intended to be excluded from the arbitrator’s jurisdiction’.30
8. The phrase ‘any dispute arising under this contract’ encompasses the present dispute because it
does not contain wording that exclude disputes over whether the Charterparty is frustrated. A
semantic analysis of the phrase ‘arising under’ would defeat the parties’ presumed intention.31
The Respondent’s pre-contractual statements concerning the jurisdiction of the Tribunal are
immaterial.32
D Alternatively, under Western Australian principles of contractual
interpretation, the dispute is nevertheless a ‘dispute arising under this contract’
9. In the event that the Arbitration Agreement’s proper law is Western Australian law, the parties
are presumed to have intended that all future disputes be heard by the same tribunal.33 While not
28
Sulamerica SA v Enesa Engelharia SA [2013] 1 WLR 102, 116 [32] (Moore-Bick LJ). 29
Ashville Investments Ltd v Elmer Contractors Ltd [1989] QB 448, 517 (Bingham LJ). 30
Fiona Trust and Holding Corp v Privalov [2007] Bus LR 1719, 1725 [13] (Lord Hoffmann) (‘Fiona Trust’) . 31
Ibid 1724 [12]. 32
Prenn v Simmonds [1971] 1 WLR 1381, 1384 (Lord Wilberforce); affirmed in Chartbrook Ltd v Persimmon Homes
Ltd [2008] 3 WLR 267, 277 [28] (Lord Hoffmann). 33
Francis Travel v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160, 195 (Gleeson CJ); Comandate Marine Corp v
Pan Australia Shipping Pty Ltd (2006) 157 FCR 45, 87 [165] (Allsop J).
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as strong as the English presumption, the presumption allows the Tribunal to ‘give liberal width
and flexibility to elastic and general words’ in the Arbitration Agreement.34
10. Construed liberally, ‘any dispute arising under this contract’ encompasses the present dispute
because it turns on the proper construction of its terms.35 The Respondent cannot resist the
Tribunal’s jurisdiction on the basis that the clause presupposes the existence of a contract. Such a
construction is unjustifiably narrow and contrary to authority.36
11. The parties’ pre-contractual negotiations over the scope of the Arbitration Agreement are
inadmissible,37 as is the position under English law.38 There is an exception where such evidence,
if it amounts to concurrence, is to be used to ‘negative an inference sought to be drawn from
surrounding circumstances’.39 However, the parties’ agreement to reject a particular meaning or
construction must be unambiguous.40
12. The Respondent requested the Claimant to amend the Draft Arbitration Agreement so that only
‘disputes aris[ing] out of the provisions of the [C]harterparty’ would be arbitrable. The Claimant,
without replying to the Respondent’s request, amended the Draft Arbitration Agreement so that
‘any dispute arising under this contract’ would be arbitrable. This was not an unambiguous
rejection of the presumption that the parties intended for all disputes to be heard by the Tribunal.
The Claimant’s silence was equivocal, and the words in the Arbitration Agreement do not mirror
34
Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45, 87 [164] (Allsop J). 35
Davis Contractors Ltd v Fareham UDC [1956] AC 696; Denny, Mott & Dickson Ltd v James B Fraser & Co Ltd
[1944] AC 265, 274-5 (Lord Wright) cited in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales
(1982) 149 CLR 337, 359 (Mason J). 36
In Heyman v Darwins Ltd [1942] AC 356, 383 Lord Wright considered that disputes ‘arising under’ a contract
included those about frustration; cited in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales
(1982) 147 CLR 337, 366 (Mason J). 37
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 352 (Mason J). 38
Prenn v Simmonds [1971] 1 WLR 1381; Chartbrook Ltd v Persimmon Homes Ltd [2008] 3 WLR 267. 39
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 353 (Mason J) citing Heimann v
Commonwealth of Australia (1938) 38 SR (NSW) 691, 695; IBM Australia Pty Ltd v State of Queensland [2015] QSC
342 (7 December 2015) [105]. 40
Queensland Co Power Ltd v Downer EDI Mining Pty Ltd [2010] 1 Qd R 180, 191 [74].
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the Respondent’s requested amendment. In the absence of express words from both parties,
admitting their pre-contractual negotiations as evidence would undermine certainty of contract.
II THE RESPONDENT IS LIABLE TO PAY THE CLAIMANT USD $17,900,000 BY
WAY OF DEMURRAGE
13. The Respondent is liable to pay the Claimant demurrage because: (A) laytime did not end on 7
October 2014, and subsequently expired on 13 October 2014; (B) alternatively, laytime did not
end as the Vessel did not cross the territorial limits of Hades before being interrupted; (C) the
delay did not result from cause excepted pursuant to the Interruptions Clause; (D) the delay was
not due to fault of the Claimant; and (E) the Force Majeure Clause does not excuse the
Respondent from this liability.
A Laytime did not end on 7 October 2014 and subsequently expired on 13
October 2014
14. Under clause 9(c)(i), laytime could end in two ways: on the expiry of 10 WWD SHINC from the
date on which the NOR was tendered or when the Vessel ‘leaves the Loading Place’. The Vessel
never left the Loading Place.
15. The word ‘leaves’ should be given a practical construction in light of the purpose of clause 9(c)(i)
and the Demurrage Clause.41 The purpose of a demurrage clause is to provide an agreed amount
payable to reflect the shipowner’s deprivation of the use of its vessel.42 If the permitted laytime
elapses, the charterer is ‘liable in damages for the loss sustained by the shipowner during the
41
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640, 656 [35] (French CJ, Hayne,
Crennan and Kiefel JJ). 42
ERG Raffinerie Mediterranee SpA v Chevron USA Inc (The Luxmar) [2007] 2 Lloyd’s Rep 542, 544 [4] (Longmore
LJ).
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period for which [it] is being wrongfully deprived of the opportunity of making profitable use of
his ship’.43
16. Clause 9(c)(i) and the Demurrage Clause place the risk of delays during the loading stage upon
the Respondent until the Vessel ‘[left] the Loading Place’. After that, the risk would be
transferred to the Claimant. The Vessel’s temporary departure and immediate return was not
sufficient to transfer risk under a provision designed to protect the shipowner. The Claimant was
deprived of its Vessel for the following 364 days. This is the exact circumstance for which
shipowners are paid demurrage. A narrow and semantic interpretation of the word ‘leave’ should
not be adopted, as the Claimant would not be remunerated for the extended loss of its Vessel
through no fault of its own.
B Alternatively, laytime did not end as the Vessel did not cross the territorial
limits of Hades before being intercepted
17. In the alternative, the Vessel did not ‘[leave] the Loading Place’ as it did not cross the territorial
limits of Hades before being intercepted by the Coast Guard.
18. The ‘Loading Place’ is described in Box 5 as ‘1 safe port, Hades’.44 This should be interpreted to
refer to Hades itself, rather than the Port of Hades. Unlike Box 9 and clause 9(c)(ii) which refer to
‘Discharging Ports’, Box 5 and clause 9(c)(i) refer specifically to ‘Loading Places’.45 The words
‘1 safe port’ merely refer to the Respondent’s warranty that the port within the ‘Loading Place’
was safe.46 On this construction, the ‘Loading Place’ was the city-state of Hades, as distinct from
the Port of Hades. It follows that the Vessel needed to cross the territorial limits of Hades for
laytime to end before the expiry of 10 WWD SHINC.
43
Dias Compania Naviera SA v Louis Dreyfus Corp (The Dias) [1978] 1 AC 325, 327-8 (Lord Diplock). 44
Bundle, p 29. 45
Ibid. 46
AIC Ltd v Marine Pilot Ltd (The Archimidis) [2008] 1 Lloyd’s Rep 597, 603 [20] (Clarke MR).
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19. This construction accords with the parties’ intended allocation of risk under the Charterparty.
Whereas conventional laytime clauses provide that laytime ends upon, for example, the
‘disconnection of hoses’,47 clause 9(c)(i) extends the Respondent’s liability for delays beyond the
completion of loading. Having read The Hades Advocate on 20 July 2014, the parties knew that
the Cargo was the subject of political unrest in Hades.48 Any complications arising from this
unrest was most likely to occur within Hades’ territory and could occur after the Vessel was
loaded. Clause 9(c)(i) places this risk upon the Respondent. It would defeat the parties’ allocation
of risk for laytime to have ended despite the Vessel still being within the territorial limits of
Hades.
20. There is no objective evidence that establishes that the Vessel crossed the territorial limits before
being intercepted on 7 October 2014. The Master’s argument that he was outside of territorial
waters49 is not proof of the fact that the Vessel did in fact cross the territorial limits. The Master
knew that the Cargo was the source of political unrest, having reported to the Claimant his
concern about the protests on 4 October 2014.50 If the Master succumbed to the Coast Guard it
was inevitable that delay would result and this was not in the interests of any concerned party.
Against this background the statement was an attempt to resist the Coast Guard’s orders rather
than an accurate statement of the Vessel’s location at the time.
21. Contrary to the Respondent’s assertion on 22 October 2014,51 laytime did not end upon the
issuing of the Statement of Facts on 7 October 2014. There is no custom of a ship’s visit to a port
being at an end upon the issuing of a statement of facts. A statement of facts is a document on
which a Master records relevant events during the loading and discharging stages of the voyage
47
Asbatankvoy clause 11; Shellvoy 3 clause 14; BPvoy clause 2; Mobilvoy clause 12. 48
Clarifications, p 1; Bundle, p 26. 49
Bundle, pp 57, 62. 50
Ibid p 53. 51
Ibid p 62.
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and, at best, is probative evidence of its contents.52 Here, the Statement of Facts provided that the
Vessel ‘sailed from Hades’ at 0900 hours 7 October 2014. This is not proof of the fact that it
crossed territorial limits before being intercepted.
22. If there is no credible evidence of the Vessel crossing the territorial limits, then it must
necessarily have been intercepted inside territorial waters. Consequently, laytime did not expire
on 7 October 2014 and subsequently expired on 13 October 2014. The Vessel was then on
demurrage until 6 October 2015.53
23. If the Tribunal finds that the limits of the Port of Hades and the territorial limits of Hades are the
same,54 the evidence does not demonstrate that the Vessel crossed this limit. As mentioned above,
there is no objective evidence which shows that the Vessel crossed the territorial limits. The
comment in the article in The Hades Advocate dated 25 October 2014 that the Vessel was
intercepted ‘just outside the port limits of Hades’ is a journalistic piece and does not conclusively
establish the matter.55 The writer cannot be expected to have a thorough knowledge of maritime
zones.
C The delay resulting from the interception of the Vessel was not an interruption
to laytime
24. It is for the Respondent to prove that the Interruptions Clause applies in the circumstances.56
25. On a true construction of the Interruptions Clause the events of 7 October 2014 do not fall within
any of the excepted causes of delay. Relevantly, the exception for ‘arrests’ does not encompass
52
High Seas Venture Ltd Partnership v Sinom (Hong Kong) Ltd (The New Forest) [2008] 1 Lloyd’s Rep 504, 507
[13]. 53
Bundle, p 70. 54
Ibid p 63. 55
Ibid p 62. 56
London Arbitration 6/11 (2011) 827 LMN 3; Profindo Pte Ltd v Abani Trading Pte Ltd (The MV Athens) [2013] 1
Lloyd’s Rep 317.
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the Vessel’s deprivation of liberty by the Coast Guard. The parties are members of the maritime
shipping industry, a community which ordinarily uses the word ‘arrest’ to describe the seizure of
ships as a provisional remedy to secure a maritime claim.57 The Coast Guard’s detention of the
Vessel was not connected to any maritime claim.
26. The parties did not include common exceptions such as ‘restraint of princes’ and ‘detainment’.
The word ‘arrests’ should not be construed broadly so as to defeat the intention of the parties.
Finally, the Interruptions Clause is an exemption clause that exists for the benefit of the
Respondent and must therefore be read contra proferentem.58
D The interception, return and detention of the Vessel was not due to fault of the
Claimant
27. It is for the Respondent to prove that fault of the Claimant is a bar to a claim for demurrage.59 The
Claimant is not precluded from claiming demurrage as the Master was not at fault in complying
with the Coast Guard’s order to return to berth.60 A master of a vessel is first and foremost a
mariner and is not expected to have a sophisticated understanding of a governmental authority’s
lawful powers. Given the expansive jurisdiction conferred on flag states,61 the Master was not at
fault in relying upon the authority of the Coast Guard of the Vessel’s flag state.
57
See, eg, International Convention on Arrest of Vessels 1999, opened for signature 12 March 1999, 1110 UNTS 318
(entered into force 14 September 2011) art 1(2). 58
Darlington Futures Ltd v Delco Aust Pty Ltd (1986) 161 CLR 500, 510. 59
London Arbitration 29/84 LMLN 134 (20 December 1984). 60
Budgett v Binnington [1891] 1 QB 35. 61
United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered
into force 16 November 1994) art 94(1).
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E The Force Majeure Clause does not excuse the Respondent from liability to
pay demurrage
28. The Force Majeure Clause lacks the necessary specificity and precision to excuse the Respondent
from its liability to pay demurrage. A general exceptions clause does not apply to delays during
the loading stage unless by clear express words or necessary implication.62 Such clear wording is
absent in the Force Majeure Clause. Construing the Charterparty as a whole, the parties did not
intend for the Force Majeure Clause to extend to delays in the loading stage. The parties
expressly provided that neither laytime nor demurrage would accrue if any of the excepted causes
of delay in the Interruptions Clause arose.
III THE CHARTERPARTY WAS NOT FRUSTRATED
29. The Charterparty was not frustrated because: (A) the supervening event was provided for in the
Charterparty; and (B) in any event, the delay was not of a frustrating character.
30. The interception, return and detention of the Vessel did not frustrate the Charterparty because it
did not render performance ‘a thing radically different from that which was undertaken’ by the
Charterparty.63 The doctrine of frustration should not be invoked lightly as the effect of holding a
contract to be frustrated is to reverse the parties’ allocation of risk.64 The Respondent bears the
onus of establishing that the Charterparty was frustrated.
62
Ellis Shipping Corporation v Voest Alpine Intertrading (The Lefthero) [1992] 2 Lloyd’s Rep 109, 112 (Lloyd LJ);
Transworld Oil Ltd v North Bay Shipping Corporation (The Rio Claro) [1987] 2 Lloyd’s Rep 173; Sametiet M/T Johs
Stove v Istanbul Petrol Rafinerisi A/S (The Johs Stove) [1984] 1 Lloyd’s Rep 38, 41. 63
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 356-357 [39]-[40]
(Mason J), 376-378 (Aickin J) and 408 (Brennan J) citing Davis Contractors Ltd v Fareham UDC [1956] AC 696,
728-9 (Lord Radcliffe). 64
J. Lauritzen AS v Wijsmuller BV (The “Super Servant Two”) [1990] 1 Lloyd’s Rep 1, 8 (Bingham LJ).
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A The supervening event was provided for in the Charterparty
31. The Demurrage Clause makes ‘full and complete provision’ for the delay caused by the Vessel’s
detention and defeats the Respondent’s plea of frustration.65 The Demurrage Clause is
unconditional and absolute. It applies to any length of delay irrespective of the Respondent’s
fault, provided that the cause of delay was not excepted under the Interruptions Clause. The
parties were at liberty to excuse the Respondent from the consequences of delays caused by
‘restraint of princes’, which would have included detention by the Coast Guard. The parties
omitted to use words to this effect in the Interruptions Clause. From this it can be inferred that
the parties intended to allocate the risk of the delay in question to the Respondent.66
32. The inference that the parties contemplated that the Demurrage Clause would apply in the
present circumstances is strengthened by the fact that the delay following the events on 7
October 2014 was foreseeable.67 The Hades Advocate reported that the ‘Save Hades Group’ were
planning protests as a way of preventing the export of HLNG. Having read the article before
contracting,68 the parties knew that the Cargo was the subject of political unrest. Given that delay
is a frequent incident of maritime adventures,69 the parties would have foreseen delays due to this
political unrest ‘as a real possibility’.70 It is irrelevant that the particular way in which this risk
materialised on 7 October 2014 was not foreseeable.71
65
Bank Line Ltd v Arthur Capel & Co [1918] AC 435, 454 (Lord Sumner). 66
Sir Guenter Treitel, Frustration and Force Majeure (Sweet & Maxwell, 3rd ed, 2014) 450-1 [12-002] citing Thiis v
Byers (1876) 1 QBD 244; Budgett v Binnington [1891] 1 QB 35, 41 (Lopes LJ). 67
oOh! Media Roadside Pty Ltd (formerly Power Panels Pty Ltd v Diamond Wheels Pty Ltd & Anor (2011) 32 VR
255, 275 [80] (Nettle JA). 68
Clarifications, p 1; Bundle, p 26. 69
Bank Line Ltd v Arthur Capel & Co [1918] AC 435, 458 (Lord Sumner). 70
Hugh Beale, Chitty on Contracts: General Principles (Sweet & Maxwell, 30th ed, 2008) [23-060]. See also oOh!
Media Roadside Pty Ltd (formerly Power Panels Pty ltd v Diamond Wheels Pty Ltd & Anor (2011) 32 VR 255, 274
[74], 275 [80] (Nettle JA). 71
Edwinton Commercial Corporation v Tsavliris Russ (Worldwide Salvage & Towage) Ltd (The Sea Angel) [2007] 2
Lloyd’s Rep 517, 538 [119] (Rix LJ); oOh! Media Roadside (formerly Power Panels Pty Ltd & Anor (2011) 32 VR
255, 274 [76] (Nettle JA).
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B In any event, the delay was not of a frustrating character
33. The delay caused by the Vessel’s detention did not frustrate the Charterparty because at no point
would an informed observer have concluded that the effect of delay and/or likely effect of delay
was such as to frustrate the parties’ common purpose.72
34. The parties’ common purpose was to transport the Cargo from Hades to Poseidon in exchange
for freight. The Charterparty did not stipulate a deadline for delivery. The Claimant was only
required to ‘proceed with all reasonable speed’.73 It is of no consequence that the Respondent
told the Claimant that it wanted the Cargo discharged at Poseidon on or around 30 October
2014. This was a private objective and its fulfilment was not necessary for performance of the
Charterparty.74
35. The Charterparty was not a ‘charter for a definite voyage or adventure’75 as the Cargo was not
required for a specific enterprise at the destination. In the absence of facts to the contrary, the
commissioning of the Respondent’s plant could occur even after considerable delay. Delay
would also have little effect on the Cargo, as the Vessel could store the Cargo ‘with minimal
loss’.76
36. It follows that an informed observer had to be satisfied that the delay was close to interminable
before the Charterparty was frustrated. An informed observer would not have come to this
conclusion at any time during the Vessel’s detention. Although the length of delay was
72
John Stannard, Delay in the Performance of Contractual Obligations (Oxford University Press, 2007) 344 [12.08]
citing Admiral Shipping Co v Weidner Hopkins & Co [1916] 1 KB 429, 436-7 (Bailhache J): reversed on appeal but
for different reasons Scottish Navigation Co Ltd v Souter; Admiral Shipping Co v Weidner Hopkins & Co [1917] 1 KB
222, 242; Pioneer Shipping v BTP Tioxide (The Nema) [1982] AC 724, 752 (Lord Roskill); Chapman v Taylor [2004]
NSWCA 456 (13 December 2004) [8], [35] (Hodgson JA). 73
Bundle, p 31. 74
Ibid p 2. Scanlan’s New Neon Ltd v Tooheys Ltd (1943) 67 CLR 169, 224 (Williams J) citing In re Comptoir
Commercial Anversois v Power, Son & Co [1920] 1 KB 868, 881 (Bailhache J), 895 (Scrutton LJ). 75
Jackson v Marine Union Insurance Co (1874) LR 10 CP 125, 142-3 (Bramwell B). 76
Bundle, p 3.
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seemingly dependent on the actions of third parties such as the Hades Government,77 the
following facts would suggest to an informed observer that the delay would end in a
commercially acceptable period.
37. The legal basis of the Vessel’s detention was uncertain78 and it was doubtful whether the under-
resourced Coast Guard79 was physically capable of preventing the Vessel from leaving. It also
seemed unlikely that an illegitimate government, which only came to power at the start of the
Vessel’s detention, would have the longevity to detain the Vessel for a sufficiently long period
of time. As it transpired, President Simmons resigned on 30 September 2015 and the Vessel
departed soon after.80 This assists in showing what the probabilities were if they had been
reasonably forecast.81
38. On this basis, the Charterparty remained in existence throughout the Vessel’s detention and the
Respondent owes demurrage in the sum of USD $17,900,000.
IV ALTERNATIVELY, THE CHARTERPARTY WAS ONLY FRUSTRATED ON 30
APRIL 2015
39. If the Tribunal is of the opinion that the delay was of a frustrating character, this would not have
been apparent until a substantial period of delay had accrued. As at 7 October 2014, an
informed observer would have considered it ‘necessary to wait on events’ and reassess on a later
77
Bank Line Ltd v Arthur Capel & Co [1918] AC 435. 78
Bundle, p 74. 79
Ibid p 55. 80
Ibid p 67. 81
Bank Line Ltd v Arthur Capel & Co [1918] AC 435, 454, 460 (Lord Sumner).
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date when delay had accrued and a better idea of the likely duration could be ascertained.82 This
is because the probable length of delay was inherently speculative.
40. As mentioned above, there were considerable uncertainties surrounding the Vessel’s detention.
Unlike other instances of delay caused by government intervention,83 President Simmons’
regime had come into existence on the day that the Vessel was initially detained. There were no
prior instances of detention at the hands of this regime. Accordingly, this made it impossible for
an informed observer to ascertain the probable length of delay on 7 October 2014. The fact that
the length of delay was dependent on the actions of a government does not preclude a ‘wait and
see’ approach.84
41. An informed observer would have concluded that the Charterparty was frustrated on 30 April
2015, when the Respondent wrote a letter to the Claimant asserting for the first time that the
Charterparty was frustrated.85 At that point, the Vessel had been detained for around 7 months
and it appeared that the Vessel would not be released in the immediate future. It follows that the
Respondent remains liable to pay USD $9,950,000 for 199 days of demurrage.
V THE RESPONDENT IS NOT ENTITLED TO A SALVAGE AWARD
42. The Respondent is not entitled to a salvage reward because: (A) the Respondent and Hestug are
distinct and separate legal entities; (B) alternatively, the Respondent’s services were not
voluntary; (C) alternatively, the Respondent should be fully deprived of any salvage reward.
82
Pioneer Shipping v BTP Tioxide (The Nema) [1982] AC 724, 752 (Lord Roskill); Edwinton Commercial
Corporation v Tsavliris Russ (Worldwide Salvage & Towage) Ltd (The Sea Angel) [2007] 2 Lloyd’s Rep 517, 538
[120] (Rix LJ). Cf Bank Line Ltd v Arthur Capel & Co [1918] AC 435; Embiricos v Sydney Reid & Co [1914] 3 KB
45, 59 (Scrutton J). 83
See, eg, Bank Line Ltd v Arthur Capel & Co [1918] AC 435; Tatem v Gamboa [1939] 1 KB 132. 84
See, eg, Vinava Shipping Co Ltd v Finelvet AG (The Chrysalis) [1983] 1 Lloyd’s Rep 503. 85
Bundle, p 65.
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43. Under the Salvage Convention,86 an award is contingent on the following criteria:87
a. the salvor undertakes ‘any act or activity ... to assist a vessel or any other property
in danger in navigable waters or in any other waters whatsoever’;
b. the services render a ‘useful result’; and
c. the salvor must be a volunteer.
44. The Salvage Convention will take precedence over the general law of salvage where there is any
inconsistency.88
A The Respondent is separate and distinct from the entity that salved the Vessel
45. The Respondent is not entitled to an award because Hestug is its subsidiary and is therefore a
separate and distinct legal entity.89 The Hades Advocate, in its article dated 7 October 2015
describes Hestug as a ‘tug company’ and a ‘business’ owned by the Respondent.90 This article
does not shed light on the legal relationship between the Respondent and Hestug as it is a
journalistic piece which conflates concepts of corporate personality. The Respondent is listed on
the Hades Stock Exchange and is therefore a public company. It is reasonable to infer that the
Respondent uses subsidiaries to carry out its operations and that Hestug is one such subsidiary.
86
The International Convention on Salvage 1989, opened for signature 28 April 1989, 1953 UNTS 165 (entered into
force 14 July 1996) (‘Salvage Convention’). The Salvage Convention applies whenever proceedings are brought in
England: Merchant Shipping Act 1995 (UK) s 224. 87
Respectively, arts 1(a) and 12(1). 88
John Reeder (ed), Brice on Maritime Law of Salvage (Sweet & Maxwell, 4th ed, 2003) 24 [1-76]; Transnet v The
MV Cleopatra Dream (The Cleopatra Dream) [2011] ZASCA 12 (11 March 2011) [25]. 89
Salomon v Salomon & Co Ltd [1892] AC 92; Prest v Petrodel Resources Ltd [2013] 3 WLR 1. 90
Bundle, p 71. The Hades Advocate 7 October 2015 describes Hestug as a ‘business’ owned by the Respondent.
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B Alternatively, the Respondent’s services were not voluntary
46. In the event that Hestug and the Respondent are the same entity, the Respondent’s services were
not ‘voluntary’ because they did not go beyond what was ordinarily expected. In The Sava Star91
it was held that a cargo-owner is entitled in principle to a salvage award in respect of meritorious
services rendered to a ship carrying its cargo. However, such services must go beyond what was
ordinarily expected, which is fact-specific and not determined solely by the contractual
relationship.92
47. Article 17 of the Salvage Convention is not inconsistent with this principle. It states that no award
may be granted ‘unless the services rendered exceed what can be reasonably considered as due
performance of a contract entered into before the danger arose’. Article 17 does not prescribe
when services must be the subject of an award and thus is not the sole criterion of when a party is
entitled to a salvage award.
48. Furthermore, the travaux preparatoires to the Salvage Convention93 state that article 17 ‘forms
part of the important principle under which a salvage service must be voluntary’.94 Judicial
authority also supports the survival of general law principles of voluntariness.95 It follows that the
principle in The Sava Star96 is applicable. Accordingly, the fact that the Respondent was not
91
[1995] 2 Lloyd’s Rep 134, 143. 92
Ibid. 93
Vienna Convention on the Law of Treaties 1969, opened for signature 23 May 1969, 1155 UNTS 331 (entered into
force 27 January 1980) arts 31(1) and (2)(b). 94
The Travaux Preparatoires of The International Convention on Salvage 1989, opened for signature 28 April 1989,
1953 UNTS 165 (entered into force 14 July 1996) 430. 95
However where there is a conflict between the common law and the Salvage Convention, the Convention will
prevail: Transnet v The MV Cleopatra Dream (The Cleopatra Dream) [2011] ZASCA 12 (11 March 2011) [25]. 96
[1995] 2 Lloyd’s Rep 134.
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obliged under either the towage contract or the Charterparty to assist the Vessel during the voyage
stage is inconclusive.97
49. The Respondent’s services do not qualify for a salvage award. The Respondent was in the
business of operating tugs in the area and was in a convenient position to assist the Claimant’s
Vessel, having towed it to open waters moments before.98 The present facts are distinguishable
from those in The Sava Star,99 where the cargo-owners remotely coordinated a salvage operation
which consumed upwards of four days and was extraordinary in character.100 This included:
engaging a fire brigade; arranging a helicopter overflight inspection; contracting a tow service
and deploying their technical manager on board the tow; mobilising specialised firefighting
equipment; and providing chemists to take gas tests and reporting the results to relevant
authorities. In contrast, the Respondent’s services were simple in nature. There is no need to
induce cargo-owners for providing services akin to the Respondent’s by way of an award.
50. The law of salvage treats passengers and cargo-owners equally.101 In The Vrede102 passengers
aboard a damaged ship abstained from abandoning on lifeboats and instead pumped the ship’s
bilges until it was towed to safety. Their claim for an award was rejected. In The Sava Star,103
Clarke J affirmed the correctness of that decision on the basis that the passengers’ services were
ordinarily expected of them. When one accounts for the differing capacities of passengers and
cargo-owners, an analogy can be drawn between a passenger who pumps the bilges of a
distressed ship and a cargo-owner who assists a ship carrying its cargo with a tug that was not
97
Ibid 143. 98
Bundle, p 71. 99
[1995] 2 Lloyd’s Rep 134. 100
Bundle, p 71. 101
Francis Rose, Sir David Steel, and Robert Shaw (eds), Kennedy & Rose: Law of Salvage (Sweet & Maxwell, 8th
ed, 2008) 293 [8-137] citing The Sava Star [1995] 2 Lloyd’s Rep 134. 102
(1861) Lush 322, 325. 103
[1995] 2 Lloyd’s Rep 134.
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only in the immediate vicinity but had also towed the Vessel immediately prior to the casualty. In
both instances, the putative salvor is acting within their direct means.
C Alternatively, the Respondent should be fully deprived of any award
51. The Respondent should be deprived in full of an award under Article 18 of the Salvage
Convention, which states that ‘a salvor may be deprived of the whole … of the payment due
under this Convention to the extent that the salvage operations have become necessary … because
of fault or neglect on his part.’
52. The Respondent had an implied obligation to warn the Claimant of any risks that the Cargo
presented to the Claimant’s Vessel of which the Claimant was not aware or reasonably aware.104
It was irrelevant whether the Respondent knew of these risks.105 An intrinsic quality of the Cargo
was that it had the risk of inciting political opponents to sabotage the Vessel in an effort to
prevent its carriage.
53. It is a legitimate inference that supporters of President Simmons’ regime were responsible for the
tampering of the Vessel’s propellers,106 and this was the materialisation of such a risk. Had the
Claimant been warned, it could have taken appropriate measures to prevent sabotage or
alternatively refused to ship the Cargo. In light of this counterfactual, the Respondent’s failure to
warn caused the propeller shafts to break, which gave rise to the need for salvage services.
54. The Claimant did not assume this particular risk nor was it reasonably aware of it. The Claimant’s
assumption of risk in respect of the Cargo only extended to risks that were ordinarily associated
with the cargo described in the Charterparty, being ‘Liquefied Natural Gas’, such as damage
104
Brass v Maitland (1856) 6 E & B 470. 105
Effort Shipping Co Ltd v Linden Management SA (The Giannis NK) [1998] AC 605, 619 (Lord Lloyd). 106
Bundle, p 71.
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caused by explosions.107 While the protests planned for the Vessel’s arrival at Hades would have
put the parties on notice of potential animosity,108 the Claimant could not have been aware that
the political opposition towards the Cargo would result in physical damage to the Vessel.
55. The Respondent breached its duty to warn of the abovementioned risk, which constitutes ‘fault or
neglect’ pursuant to Article 18. Applying Article 18, it is appropriate for the Respondent to be
deprived of any salvage award to which it would otherwise have been entitled.
56. Alternatively, if the Respondent’s breach does not constitute ‘fault’ for the purposes of Article 18,
its claim for an award should fail for circuity of action.109
107
Ibid p 29. See also The Anthanasia Comninos and Georges Chr Lemos [1990] 1 Lloyd’s Rep 277, 284. 108
See Submission III. 109
The Glenfruin (1885)10 PD 103.
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PRAYER FOR RELIEF
For the reasons submitted above, the Claimant respectfully requests the Tribunal to:
1. DECLARE that it has jurisdiction to hear all of the parties’ disputes;
Further,
2. DECLARE that the Claimant is entitled to the following:
a. USD $17,900,000 in demurrage;
b. In the alternative, USD $9,950,000 in demurrage; and
c. An award of compound interest on any sum found owing in accordance with s 49 of
the Act;
Further,
3. DECLARE that the Charterparty is not frustrated; and
Further,
4. DECLARE that the Respondent is not entitled to a salvage reward.