105A

6TH NATIONAL LAW UNIVERSITY ODISHA – BOSE & MITRA & C0.
INTERNATIONAL MARITIME ARBITRATION MOOT, 2019

IN THE MATTER OF ARBITRATION TO BE

ADJUDICATED BY THIS ARBITRAL TRIBUNAL BETWEEN:

CITY SHIPPING COMPANY LIMITED………………………………….CLAIMANT

AND
UNITED MARITIME LOGISTICS PTE LTD …………………………..RESPONDENT

(MT INDIA)

MEMORIAL FOR CLAIMANT

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6th NLUO BOSE & MITRA & CO IMAM 2019 TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF ABBREVIATIONS ....................................................................................... III

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

STATEMENT OF JURISDICTION .............................................................................. VII

STATEMENT OF FACTS ............................................................................................ VIII

ISSUES RAISED ................................................................................................................ X

SUMMARY OF ARGUMENTS ....................................................................................... XI

ARGUMENTS ADVANCED ............................................................................................. 1

[1] THAT THE TRIBUNAL LACKS JURISDICTION TO ADJUDICATE THE

COUNTERCLAIMS. .......................................................................................................... 1

[A] THE PARTIES INTENDED TO HAVE SEPARATE ARBITRATION AGREEMENT FOR

DIFFERENT TYPE OF DISPUTES. ...................................................................................... 1

[B] THE PRESENT TRIBUNAL DRAWS ITS POWERS FROM CL 49.2. .................................. 2

[C] THE PRESENT TRIBUNAL CANNOT ADJUDICATE THE COUNTER-CLAIM.................... 2

[2] THAT THE UNITED MARITIME LOGISTICS PTE LTD ARE LIABLE TO CITY
SHIPPING COMPANY LIMITED FOR DUES UNDER THE CHARTERPARTY. ..... 4

[A] THE LAYTIME SHOULD COMMENCE FROM 10 DECEMBER 2018 AT 0601. ................ 4

[B] THE ENTIRE TIME FROM 6 JANUARY 2019 AT 0600 TO 13 JANUARY 2019 AT 1005 IS
ON CHARTERERS ACCOUNT........................................................................................... 6

[C] OWNERS’ CLAIM FOR DEMURRAGE SHOULD NOT BE TIME BARRED DUE TO FAILURE
TO PROVIDE PUMPING LOG. ......................................................................................... 10

[3] THAT THE CITY SHIPPING COMPANY LIMITED IS NOT LIABLE TO

UNITED MARITIME LOGISTICS PTE LTD FOR THEIR CLAIMS. ....................... 13

[A] THE VOYAGE ORDERS WERE NOT VIOLATED BY THE MASTER. .............................. 13

[B] THE OWNERS DID NOT BREACH THE ARTICLE III RULE 2 OF HAGUE-VISBY RULES.
.................................................................................................................................... 14

[C] THE OWNERS ARE COVERED UNDER THE EXCEPTIONS PROVIDED BY ARTICLE IV
RULE 2 OF THE HAGUE-VISBY RULES. ........................................................................ 15

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6th NLUO BOSE & MITRA & CO IMAM 2019 TABLE OF CONTENTS

[4] Arguendo, the Owners are not liable to the full extent. .............................................. 17

[A] LOSS IS COVERED BY IN-TRANSIT LOSS CLAUSE OF THE ADDITIONAL TERMS....... 17

[B] MASTER’S NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE LOSS. ............. 17

[C] THE RESPONDENTS ALSO CONTRIBUTED TO THE DAMAGE. .................................. 18

[5] COST OF ARBITRATION. ........................................................................................ 19

PRAYER ........................................................................................................................ XIII

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6th NLUO BOSE & MITRA & CO IMAM 2019 TABLE OF ABBREVIATIONS

TABLE OF ABBREVIATIONS

ABBREVIATION FULL FORM

& And
Arb Arbitration
B/L Bill of Lading
C/P Charterparty
Cl Clause
HVR Hague Visby Rules
IMAM International Maritime Arbitration Moot
KB King‟s Bench
LOP Letter of Protest
LR Law Report
Ltd. Limited
MT Metric Tonne
NOP Notice of Protest
NOR Notice of Readiness
Ors Others
QB Queen‟s Bench
Rep Report
w.r.t. With respect to

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6th NLUO BOSE & MITRA & CO IMAM 2019 INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

CASES

Agrimpex Hungarian Trading Company for Agricultural Products v. Sociedad Financiera De

Bienes Raices S.A., [1961] Lloyd‟s Rep. 623 .................................................................... 7
Ajit Singh v. Fateh Singh, AIR 1962 (Punj) 412 .................................................................... 3
Albacora S.R.L. v. Westcott & Laurance Line Ltd., [1966] 2 Lloyd‟s Rep. 53. .............. 14, 16
All India Radio v. Unibros, (2010) 6 RAJ 217 ..................................................................... 19
Andrew v. Grove, [1902] 1 KB 625..................................................................................... 19
Antaios Compania Naviera S.A. v. Salen Rederierna A.B., [1984] 2 Lloyd‟s Rep. 235. ......... 9
Arrett Bros (Taxis) Ltd. v. Davies Lickiss, [1966] 1 WLR 1334 .......................................... 11
Banabaft International Co. S.A. v. Avant Petroleum Inc., [1982] 1 Lloyd's Rep. 448. .......... 11
Barclays Bank plc. v. Nylon Capital L.L.P., [2011] EWCA (Civ) 826 ................................... 3
Blyth v. Birmingham, (1856) 11 Ex Ch 781 ........................................................................ 15
Booz Allen & Hamilton Inc. v. S.B.I. Home Finance Ltd., (2011) 5 SCC 532 ....................... 3
D.D. Sharma v. Union of India, (2004) 5 SCC 325 ................................................................ 3
D.S.A. Engineers (Bombay) v. H.U.D.C.O., (2009) 1 RAJ 276 ............................................. 2
Delian Spirit v. Carras Shipping Co. Ltd., [1983] 2 Lloyd‟s Rep. 496.................................... 6
Droege v. Stuart, (1869) LR 2 PC 505. ................................................................................ 14
Duro Felguera S.A. v. Gangavaram Port Limited, (2017) 9 SCC 729. ................................... 3
Franco-British Steamship Co. v. Watson & Youell, [1921] 11 WLUK 138............................ 9
G.H. Renton & Co. Ltd. v. Palmyra Trading Corporation of Panama, [1956] 2 Lloyd‟s Rep.
379 .................................................................................................................................. 14
Garriock v. Walker, (1873) L.R. 100 ................................................................................... 14
Gatoil International Inc. v. Panatlantic Carriers Corporation (The “Rio Sun”), [1985] 1
Lloyd‟s Rep. 350 ............................................................................................................. 15
Glaister v. Amalgamated Dairies Ltd., [2004] 2 NZLR 606 CA .......................................... 19
Glencore Grain Ltd. v. Flacker Shipping Ltd., [2001] 1 Lloyd‟s Rep. 754. ............................ 6
Glencore Grain Ltd. v. Flacker Shipping Ltd., [2002] 2 Lloyd‟s Rep. 487. ............................ 5
Gould v. South Eastern and Chatham Railway Co., [1920] 2 KB 186. ................................. 16
Govt. of Ceylon v. Chandris, [1965] 2 Lloyd‟s Rep. 204. .................................................... 18
Greenshields v. Stephens, (1908) App. Cas. 431. ................................................................. 16

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6th NLUO BOSE & MITRA & CO IMAM 2019 INDEX OF AUTHORITIES

Himachal Pradesh State Electricity Board v. R.J. Shah & Co., (1999) 2 Arb. LR 316. ........... 3
Hobbs Padgett & Co. v. J.C. Kirkland Ltd., [1969] 2 Lloyd's Rep. 547 .................................. 1
Kassiopi Maritime Co. Ltd. v. Fal Shipping Co. Ltd., [2015] EWHC 318 (Comm). ............. 12
Leland Shipping Co. v. Norwich Union Fire Insurance Society, [1918] AC 350. ................. 17
Lewis v. Denye, [1939] 1 KB 540. ...................................................................................... 19
Lewis v. Haverfordwest Rural District Council, [1953] 1 WLR 1486. ................................. 19
Leyland v. Norwich Union, [1918] AC 350 ......................................................................... 18
Lukoil Asia Pacific Pte. Ltd. v. Ocean Tankers Pte. Ltd., [2018] EWHC 163 ...................... 12
M.M.T.C. v. Sterlite Industries (India) Ltd., (1996) 6 SCC 716. ........................................ 1, 2
Mangistaumunaigaz Oil Production v. United World Trade Inc., [1995] 1 Lloyd's Rep. 617 . 1
Mannai Investment Co. Ltd. v. Eagle Star Life Assurance Co. Ltd., [2010] EWCA (Civ) 713 8
Mansel Oil v. Troon Storage Tankers S.A. [2008] EWHC 1269 (Comm). ........................... 11
Metals & Ropes Co. Ltd. v. Filia Compania Limitad., [1966] 2 Lloyd‟s Rep. 219. ................ 8
Mira Oil Resources of Tortola v. Bocimar N.V., [1999] 2 Lloyd‟s Rep. 101. ....................... 11
National Shipping Company of Saudi Arabia v. B.P. Oil Supply Company (The
Abqaiq), [2011] EWCA (Civ) 1127 ................................................................................. 12
Navalmar U.K. Ltd. v. Kale Made Hammadeeler Sanayi Ve Ticart A.S., [2017] 1 Lloyd‟s
Rep. 370. ........................................................................................................................... 7
Newall v. Lewis, [2008] 4 Costs L.R. 626. ...................................................................... 2, 11
North River Freighters Ltd. v. President of India, [1955] 2 Lloyd‟s Rep. 668. ....................... 8
Northern Shipping Co. v. Deutsche Seereederei G.m.b.H., [2000] 2 Lloyd‟s Rep. 255 ........ 18
Ocean Pride Maritime L.P. v. Qingdao Ocean Shipping Co., [2007] EWHC 2796. ................ 5
Operative Wholesale Society Ltd. v. National Westminster Bank plc., [1995] 1 EGLR 97 .. 12
Oriental Insurance Co. Ltd. v. Amira Foods Ltd., 2010 (4) RAJ 499 (Del) .......................... 19
Oxford Shipping v. Nippon Yusen Kaisha, [1984] 2 Lloyd's Rep. 373................................. 18
P. Madhusudhan Rao v. Ravi Manan, (2015) SCC OnLine Hyd 87 ....................................... 2
Pera Shipping Corporation v. Petroship S.A., [1985] 2 Lloyd's Rep. 103 CA ....................... 13
Petroleum Corporation (B.V.I.) v. Ferrell International Ltd., (2002) 1 All ER (Comm) 627. .. 2
Precis plc. v. William M. Mercer Ltd., [2004] EWHC 838. ................................................. 19
Pyrene Co. Ltd. v. Scindia Navigation Co. Ltd. [1954] 2 QB 402 ........................................ 14
R. Pagnan v. Finagrain Compagnie Commerciale Agricole et Financiere S.A., [1986] 2
Lloyd's Rep. 395. .............................................................................................................. 9
R.K. Aneja v. Delhi Development Authority, (1998) 2 Arb. L.R. 341. ................................... 3
Rainy Sky S.A. v. Kookmin, [2011] UKSC 50. ................................................................... 11

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6th NLUO BOSE & MITRA & CO IMAM 2019 INDEX OF AUTHORITIES

Ram Lal Jagan Nath v. Punjab State through Collector, (1996) 2 SCC 216. ........................... 1
Ryland v. Fletcher, [1868] UKHL 1. ................................................................................... 19
Saraswat Trading Agency v. Union of India, (2007) 4 RAJ 429 ............................................ 2
Societe Empresa de Telecomunicaciones de Cuba S.A. (E.T.E.C.S.A.) v. Telefonica
Antillana S.A., (Nov.16, 2006). ......................................................................................... 3
Sofial S.A. v. Ove Skou Rederi, [1976] 2 Lloyd's Rep. 205 ................................................... 5
Star Shipping A.S. v. China National Foreign Trade Corporation, [1993] 2 Lloyd‟s Rep. 445.
.......................................................................................................................................... 1
Surrey Shipping Co. Ltd. v. Compagnie Continentale (France) S.A., [1978] 1 Lloyd's Rep.
191. .................................................................................................................................. 5
T.A. Shipping Ltd. v. Comet Shipping Ltd., [1998] 1 Lloyd's Rep. 675. ................................ 6
T.M. Noten B.V. v. Harding, [1990] 2 Lloyd‟s Rep. 283. .................................................... 18
The Petroleum Oil and Gas Corporation of South Africa (Pty.) Ltd. v. F.R.8 Singapore Pte.
Ltd., [2009] 1 Lloyd's Rep. 107. ................................................................................ 12, 13
Trafigure Beheer B.V. v. Navigazione Montanari S.p.A., [2015] EWCA (Civ) 91. .............. 17
Transgrain Shipping v. Global Transporte Oceanico, [1990] 1 Lloyd‟s Rep. 507 ................... 9
Transoceanic Co. Ltd. v. Newton Shipping Limited, 203 (Jan. 17, 2001) ............................. 12
Trust Risk Group v. AmTrust Europe Ltd., [2015] EWCA (Civ) 437. ................................... 4
Volcafe Ltd. v. Compania Sud Americana De Vapores S.A., [2018] UKSC 61. ....... 13, 14, 17
Westcoast Food Brokers Ltd. v. The Ship "Hoyanger" And Westfallarsen & Co., [1979] 2
Lloyd‟s Rep. 79. .............................................................................................................. 16
Wickman Machine Tools Sales Limited v. Schuler A.G., [1974] AC 235 ............................ 12
Yarm Road Ltd. v. Hewden Towwer Cranes Ltd., (2003) 90 Con. L.R. 1. ............................. 2

STATUTES

Arbitration and Conciliation Act 1996 §7. ............................................................................. 1

Arbitration and Conciliation Act 1996 § 10. .......................................................................... 2
Arbitration and Conciliation Act 1996 § 23 cl. 2A. ................................................................ 3
Arbitration and Conciliation Act 1996 § 31A(1). ................................................................. 20
Arbitration and Conciliation Act 1996 § 31A(2)(a).............................................................. 20
Arbitration and Conciliation Act 1996 § 31A(3)(c).............................................................. 20

ARTICLES

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6th NLUO BOSE & MITRA & CO IMAM 2019 INDEX OF AUTHORITIES

Despoina Aspragkathou, The Happy Day and Issues of the Invalidity of a Notice of Readiness
under English Law, 38 J. Mar. L. & Com. 191, 197 (2007)................................................ 6
Despoina Aspragkathou, The Happy Day and Issues of the Invalidity of a Notice of Readiness
under English Law, 38 J. Mar. L. & Com. 191, 200 (2007). ............................................... 5
Donald Davies, Voyage Charterparties - Notice of Readiness (Feb. 15, 2019, 10:05 AM),
https://www.ukpandi.com/fileadmin/uploads/uk-pi/legal/31%20Davies_D.pdf. ............. 4, 5
Nikolai Ivanov, A Brief History of Laytime, (Feb. 20, 2019, 12:30 PM),
https://www.skuld.com/topics/legal/pi-and-defence/a-brief-history-of-laytime/. ................ 5
Patrick Stewart Hodge, Judicial Development of the Law of Contract in the United Kingdom,
85 Geo. Wash. L. Rev. 1587 (2017)................................................................................. 12

BOOKS

BLACK‟S LAW DICTIONARY 1441 ( Bryan A. Garner, 8th ed. Thomson Reuters 2004). ........ 13
C.T. WALTON, CHARLESWORTH & PERCY ON NEGLIGIENCE 242 (13th ed. Sweet & Maxwell
2014). .............................................................................................................................. 18
DONALD DAVIES, COMMENCEMENT OF LAYTIME 268 (4th ed. Taylor and Francis 2006)........ 5
DR. P. C. MARKANDA ET AL., LAW RELATING TO ARBITRATION AND CONCILIATION 207 (9th
ed. LexisNexis 2016) ......................................................................................................... 1
H.G. BEALE, CHITTY ON CONTRACTS 342 (28th ed. Sweet & Maxwell 1999). ..................... 12
HAILSHAM ET AL, HALSBURY LAW OF ENGLAND 453 (4th ed. Butterworths law 1994). ........ 14
JULIAN COOKE ET AL., VOYAGE CHARTERS 245 (4th ed. Informa Law 2014). ....................... 15
KIM LEWISON, THE INTERPRETATION OF CONTRACTS 294 (4th ed. Sweet & Maxwell 2007). . 9
KIM LEWISON, THE INTERPRETATION OF CONTRACTS 36 (4th ed. Sweet & Maxwell 2007) .... 8
MUSTIL & BOYD,COMMERCIAL ARBITRATION 234 (2d ed. Lexis Nexis 2001). ....................... 3
OXFORD ENGLISH DICTIONARY 1394 ( Angus Stevenson, 3d ed. Oxford University Press 2010
........................................................................................................................................ 13
OXFORD ENGLISH DICTIONARY 711 ( Angus Stevenson, 3d ed Oxford University Press. 2010)
.......................................................................................................................................... 2
PROF. JOHN WILSON, CARRIAGE OF GOODS BY SEA 345 (7th ed. Longman 2010). ................ 14
RANDOLPH ET AL., PIPELINE FLOW ASSURANCE: A CASE STUDY OF OIL WITH HIGH PARAFFIN
CONCENTRATION IN VIETNAM: ENERGY AND GEOTECHNICS (Springer 2018). ................... 17
RANDOLPH ET AL., PIPELINE FLOW ASSURANCE: A CASE STUDY OF OIL WITH HIGH PARAFFIN
CONCENTRATION IN VIETNAM: ENERGY AND GEOTECHNICS 234 (Springer 2018). ............ 16
SIMON BAUGHEN, SUMMERSKILL ON LAYTIME 132 (6th ed. Sweet & Maxwell 2017). ......... 11

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SIR THOMAS EDWARD SCRUTTON & F. D. MACKINNON, CHARTERPARTIES AND BILLS OF

LADING 125 (8th ed. Sweet & Maxwell 1917). ................................................................ 16

YASHAR NASIRIAN, REVISION IN THE CONCEPT OF COMMENCEMENT OF LAYTIME AND
DEMURRAGE 30 (Spring 2013)........................................................................................... 9
YASHAR NASIRIAN, REVISION IN THE CONCEPT OF COMMENCEMENT OF LAYTIME AND
DEMURRAGE 35 (Spring 2013)........................................................................................... 8
YASHAR NASIRIAN, REVISION IN THE CONCEPT OF COMMENCEMENT OF LAYTIME AND
DEMURRAGE 37 (Spring 2013)........................................................................................... 6

ARBITRATION AWARDS

London Arbitration 6/04 LMLN 636. .................................................................................... 5

London Arbitration 6/90 LMLN 274. .................................................................................... 5
London Arbitration LMLN 230. ............................................................................................ 9
New York Arbitration The „„Polyfreedom‟‟ 1974. ................................................................. 7

HAGUE VISBY RULES

The Hague Visby rules 1968, art. III rule 2. ................................................................... 15, 16
The Hague Visby rules 1968, art. IV rule 1.......................................................................... 16
The Hague Visby rules 1968, art. IV rule 2(m). ................................................................... 17

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6th NLUO BOSE & MITRA & CO IMAM 2019 STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION
The parties, City Shipping Company Limited and United Maritime Logistics Pte Limited
have agreed to submit the present dispute to the arbitral tribunal pursuant to clause 49 of the
C/P dated 9 December 2018 read with Arbitration and Conciliation Act, 1996.
The parties agree to accept the decision of the arbitral tribunal as final and binding.

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6th NLUO BOSE & MITRA & CO IMAM 2019 STATEMENT OF FACTS

STATEMENT OF FACTS
[1] The Parties.
City Shipping Company Limited [“Owners”/ “Carrier”] is the owner of the vessel MT
INDIA.
United Maritime Logistics Pvt Ltd. [“Charterers”/ “Shipper”] chartered the vessel as per the
C/P contract.
[2] The Charter Party Agreement.
City Shipping Company Limited and United Maritime Logistics Pvt Ltd. signed a Voyage
Charterparty Agreement on 9 December 2018, wherein it was decided that 45,000 MT of
Bach Ho Oil would be transported on the vessel, MT INDIA.
[3] The Notice of Readiness tendered on 10 December 2018 and the laytime
calculation.
The Master on behalf of the Owners tendered the NOR on 10 December 2018. Letter of
Protest was also issued along with the same as free pratique could not have been procured.
There lies a dispute as to the calculation of laytime, Charterers alleging that the NOR was
tendered without free pratique and thus, laytime should be calculated from 11 December
2018 which was calculated from 10 December 2018 by the Owners.
[5] Voyage instructions regarding cargo heating.
Charterers, on 13 December 2018, conveyed to the masters that the cargo was loaded with the
pour point of 34 degree Celsius. On 25 December 2018, Charterers requested the master to
maintain the cargo temperature over and above 55 degree Celsius to avoid solidification of
the cargo, due to change in weather conditions. Owners claimed that cargo heating was not
undertaken because of Charterer‟s failure to provide the instructions within the given time
frame. On 15 January 2019 the Charterers came to know about the shortage of 157.50 MT of
cargo due to solidification. They claimed damages for the in-transit loss suffered by them.
[6] Laytime calculation dispute at the second port.
On 6 January 2019, the Master provided the Notice of Arrival and the vessel was ordered to
wait at the anchorage. The Owners calculated the laytime from 6 January 2019 on the pretext
that it was the Charterers‟ fault of not providing the berth timely. Charterers on the other
hand claim that the laytime should be calculated from 13 January 2019 when the actual NOR
was tendered.
[7] Presentation of claim and documentation.

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6th NLUO BOSE & MITRA & CO IMAM 2019 STATEMENT OF FACTS

The Owners presented their laytime and demurrage claim on 10 March 2019, to which the
Charterers questioned their calculation on the above stated reasons. The Charterers also
alleged that the Owners‟ inability to submit the pumping log within 60 days forfeit their
entire claim.
[8] The invocation of arbitration.
The Claimants invoked the arbitration under clause 49 of the C/P. The Notice of Arbitration
dated 19 March 2019 referred the dispute of non-payment of demurrage claim. The
Respondents rejected all the claims and made their counter-claim regarding the cargo
damage. Now, this matter lies before this arbitral tribunal for adjudication.

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6th NLUO BOSE & MITRA & CO IMAM 2019 ISSUES RAISED

ISSUES RAISED
1. WHETHER THE ARBITRAL TRIBUNAL HAS JURISDICTION?
2. WHETHER UNITED MARITIME LOGISTICS PTE LTD ARE LIABLE TO CITY
SHIPPING COMPANY LIMITED FOR DUES UNDER THE CHARTERPARTY?
3. WHETHER CITY SHIPPING COMPANY IS LIABLE TO UNITED MARITIME
LOGISTICS PTE LTD FOR THEIR CLAIM? IF SO, TO WHAT EXTENT?
4. COSTS?

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6th NLUO BOSE & MITRA & CO IMAM 2019 SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS
[1] THAT THE TRIBUNAL LACKS JURISDICTION TO ADJUDICATE THE
COUNTERCLAIMS.
(A) The parties intended to have a separate arbitration clause (cl 49.1) for specific issues
like demurrage apart from a general arbitration clause (cl 49.2). Validity of both cl 49.1 and
cl 49.2 to qualify as separate arbitration agreements along with the use of word like
„furthermore‟ substantiates the above argument. Specific reference of demurrage in the notice
and a constitution of tribunal with 3 arbitrators signify that the present tribunal draws its
power from cl 49.2 rather than cl 49.1. Cl 49.2 is limited in scope and does not confer the
jurisdiction to adjudicate the counterclaim related to cargo damage. Section 23(2A) of the
Arbitration Act 1996 specifically bars the power of tribunal to hear the counterclaim outside
the scope of its arbitration agreement. Thus, the present tribunal lacks the jurisdiction to hear
the counterclaim.
[2] THAT THE UNITED MARITIME LOGISTICS PTE LTD ARE LIABLE TO CITY
SHIPPING COMPANY LIMITED FOR DUES UNDER THE CHARTERPARTY.
(A) The laytime calculation should initiate from the moment NOR was issued by the
Master at Singapore Port. This is because of the fact that the accountability of the owners for
not procuring the free pratique was done away by the issuance of Letter of Protest promptly.
Moreover, the Charterers were estopped by accepting the NOR by their conduct. According
to prudent practices in shipping business, the nuances in the notices provided should have
been questioned instantly. Notwithstanding the above contention, the laytime computation
commences as and when the vessel tenders NOR on its arrival at the specified port, they
being port charterparties.
(B) At the second port, the vessel had to wait at the anchorage upon Charterers‟ orders. It
was the Notice of Arrival, which should have been construed as a deemed NOR, through
which the status of the vessel‟s arrival and readiness was communicated to the Charterers.
Furthermore, the vessel was ready to be placed at the Charterers‟ disposal, but for their
waiting orders. Additionally, the owners suffered losses as the vessel stood idle due to
inability of the Charterers to provide the berth within time. Therefore, owners are entitled for
the detention damages.
(C) Owners did not submit the pumping log because it only substantiates the additional
time used by the vessel which was not claimed as demurrage in the instant case. Moreover,

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the commercial intent of the demurrage time bar clause i.e. to have certainty in time bound
period with regard to the claims was achieved without the pumping log only. The whole
exercise was futile and law never forces such an act. Furthermore, the expressions used in the
clause and general industry practices signify the common intention of the parties to not have
such an outcome while writing down the clause.
Arguendo, the claim can be divided and calculated for separate constituents, therefore, the
entire claim cannot be time barred in the present case.
[3] THAT THE CITY SHIPPING COMPANY LIMITED IS NOT LIABLE TO
UNITED MARITIME LOGISTICS PTE LTD FOR THEIR CLAIMS.
(A) The Charterers ordered the Master to heat the cargo according to standard industrial
practices. Large number of such incidents during that period and contradictory views of
experts establish absence of any standard practice regarding heating. Master further fulfilled
the obligation under cl 8 of the Additional Terms by consistently asking for the specific
instructions. Charterers‟ ignorance to these queries gave master an implied authority to take
reasonable actions.
(B) „Proper and careful‟ care of the cargo under HVR requires the Master to establish a
sound system which exclude „special‟ weaknesses of the cargo. There lies no evidence to
show that the Master should have greater knowledge of the cargo. He, therefore, fulfilled the
criteria of reasonable care by keeping the cargo temperature above the point it ceases to flow.
(C) Furthermore, the Owners are saved by the exception under Article IV Rule 2(m)
which provides for damage due to inherent vice. The same is to be determined in reference to
the standard of care the charterers required for the cargo. In absence of any special
instructions, the viscosity due to high paraffin content and tendency to solidify due to
temperature sensitivity would qualify as inherent vice.
[4] ARGUENDO, THE OWNERS ARE NOT LIABLE TO THE FULL EXTENT.
(A) The oil solidification is incidental to normal voyage. Thus, the total loss, being only
0.35%, is covered by the in-transit loss clause of the Additional Terms. Furthermore, the
common sense approach to causation does not lean toward the Master‟s negligence as the
proximate cause. This is due to the inherent vice of Bach Ho oil in the form of temperature
sensitivity and vague heating orders. The chain of causation also broke due to the Charterers‟
ignorance. The same resulted in the Claimant taking the defense of contributory negligence.
[5] COST OF ARBITRATION.
The rule, „costs follow the event‟, should be applied. Also, the Respondents‟ conduct
including a futile counterclaim increases the burden of costs on them.

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6th NLUO BOSE & MITRA & CO IMAM 2019 ARGUMENTS ADVANCED

ARGUMENTS ADVANCED
[1] THAT THE TRIBUNAL LACKS JURISDICTION TO ADJUDICATE THE
COUNTERCLAIMS.
¶1. It is humbly submitted that the RESPONDENTS made their counterclaim, for alleged
cargo damage due to master‟s inability to follow the voyage orders, to the arbitration tribunal.
The Owners submit that the present tribunal lacks the jurisdiction to adjudicate on the above
matter as the same is outside the scope of arbitration agreement under which the present
arbitration is invoked. This is because parties intended to have separate arbitration agreement
for different type of disputes[A], the present tribunal draws its powers from cl 49.2 1 of the
C/P[B] and it lacks jurisdiction to adjudicate the counterclaim under cl 49.22[C].
[A] THE PARTIES INTENDED TO HAVE SEPARATE ARBITRATION AGREEMENT FOR DIFFERENT
TYPE OF DISPUTES.

¶2. The arbitral tribunal should construe the validity and scope of an arbitration clause in
accordance with the general principles of the interpretation of contracts, seeking the intention
of the parties. 3 Cl 49.14 of the C/P portrays the specific intent of the parties to refer the
disputes to arbitration and hence, does not require the specifications to be construed for being
a valid arbitration agreement5.
¶3. The use of the word „arbitration‟ is sufficient to disclose the intention of the parties. 6
Section 7 of the Arbitration and Conciliation Act, 1996 7 (hereinafter „the Arbitration Act‟)
lays down the essentials of an arbitration agreement. It may not specify the number of
arbitrators to be appointed in an arbitration agreement. 8 Moreover, there is no principle
objection to the enforcement of an arbitration clause which operates to allow a party to
nominate the seat of arbitration. 9 Such a clause makes it clear that the parties are to refer the

1
IMAM PROPOSITION 17.
2
IMAM PROPOSITION 17.
3
Ram Lal Jagan Nath v. Punjab State through Collector, (1996) 2 SCC 216.
4
IMAM PROPOSITION 17.
5
DR. P. C. MARKANDA ET AL., LAW RELATING TO ARBITRATION AND CONCILIATION 207 (9th ed. LexisNexis
2016).
6
Hobbs Padgett & Co. v. J.C. Kirkland Ltd., [1969] 2 Lloyd's Rep. 547; Mangistaumunaigaz Oil Production v.
United World Trade Inc., [1995] 1 Lloyd's Rep. 617.
7
Arbitration and Conciliation Act 1996 §7.
8
M.M.T.C. v. Sterlite Industries (India) Ltd., (1996) 6 SCC 716.
9
Star Shipping A.S. v. China National Foreign Trade Corporation, [1993] 2 Lloyd‟s Rep. 445.

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6th NLUO BOSE & MITRA & CO IMAM 2019 ARGUMENTS ADVANCED

dispute to arbitration and thus, the same clause qualifies as an arbitration clause even though
the specifications have not been decided at the time of agreement itself. 10
¶4. Literal interpretation of a contract unfolds the intention of the parties. 11 Oxford
English Dictionary prescribes the word „furthermore‟ as to bring a fresh consideration. 12 The
use of the same in the C/P, to begin cl 49.2, itself indicates the intention of the parties to have
a „separate‟ arbitration agreement for specific disputes relating to freight, deadfrieght,
demurrage, detention and delay. 13
¶5. In Petroleum Corporation (BVI) v. Ferrell International Ltd,14 an agreement for
different jurisdictions for different issues was held valid. Moreover, considering both the
clauses as part of the same arbitration agreement will render the former portion inoperative,
which is against the cannons of construction of contracts.15
¶6. Therefore, it can be well established that the parties always intended to have different
arbitration clauses for different kinds of disputes.
[B] THE PRESENT TRIBUNAL DRAWS ITS POWERS FROM CL 49.2.
¶7. The Notice of Arbitration dated 19 March 2019 submits the dispute related to the non-
payment of demurrage to the arbitration. Cl 49.216 deals with the disputes related to
demurrage. Applying the principle of Generalia Specials Non Derogant, in case of any
conflict between general and specific clauses, the latter operates.17
¶8. The present tribunal comprises of three arbitrators as prescribed by cl 49.2 of the C/P.
Furthermore, cl 49.1 does not specify the number of arbitrators for the tribunal. Section 10 of
the Arbitration Act18, dealing with the number of arbitrators, mandates for the tribunal to
consist of a sole arbitrator when no prior agreement regarding the same subsists between the
parties. 19 Had the arbitration clause been invoked under cl 49.1 of the C/P, the tribunal would
have consisted of a sole arbitrator. Therefore, the present tribunal has its jurisdiction under cl
49.2 of the C/P primarily.
[C] THE PRESENT TRIBUNAL CANNOT ADJUDICATE THE COUNTER-CLAIM.

10
ROBERT MARTIN, ARBITRATION LAW 120 (Lloyd‟s Commercial Law Library 2004).
11
P. Madhusudhan Rao v. Ravi Manan, (2015) SCC OnLine Hyd 87.
12
OXFORD ENGLISH DICTIONARY 711 (Angus Stevenson, 3d ed. Oxford University Press 2010).
13
IMAM PROPOSITION 17.
14
Petroleum Corporation (B.V.I.) v. Ferrell International Ltd., (2002) 1 All ER (Comm) 627.
15
Newall v. Lewis, [2008] 4 Costs L.R. 626.
16
IMAM PROPOSITION 17.
17
Yarm Road Ltd. v. Hewden Towwer Cranes Ltd., (2003) 90 Con. L.R. 1.
18
Arbitration and Conciliation Act 1996 § 10.
19
M.M.T.C. v. Sterlite Industries (India) Ltd., (1996) 6 SCC 716.

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6th NLUO BOSE & MITRA & CO IMAM 2019 ARGUMENTS ADVANCED

¶9. An arbitral tribunal derives its authority from the arbitration agreement and will
thereby, not undertake any action which the parties have not authorized it to do.20 This is in
consonance with s 23(2A) of the Arbitration Act, which mandates only those counter-claims
which are to be adjudicated by the tribunal and fall within the scope of the arbitration
agreement.21 For deciding the jurisdiction of the arbitration tribunal, the question is whether
the dispute has been enumerated in the dispute resolution agreement of the parties or not.22
¶10. Cl 49.2 of the C/P specifically provides for the dispute resolution through arbitration
for matters relating to freight, dead freight, demurrage, detention and delay. The pro-
arbitration interpretative presumption does not apply where an arbitration clause is limited in
scope.23 Thus, the subjects being enumerated specifically, the scope of the clause is limited
and does not include counter-claim per se.
¶11. The underlying test to determine the scope of an arbitration agreement is to check if
the counter-claim could have been raised under the said agreement. 24 The counter-claim, in
the present case, raised by the RESPONDENTS alleges the breach of City/United Additional
Terms and does not fall under cl 49.2 of the C/P. Therefore, the same cannot be raised as a
claim under the said clause.
¶12. A decision on the counter-claim by the tribunal will be in excess of jurisdiction which
has been conferred by the arbitration agreement. 25 Thus, the arbitrator should not entertain
the counter-claim as it does not provide a true defense, and should therefore, be pursued in a
separate proceeding. 26
¶13. In a similar case, the claimant was successful in setting aside the award for lack of
jurisdiction and the tribunal entertained the counterclaim under different arbitration
agreement with a different seat.27
¶14. If something is without jurisdiction, it cannot acquire the sanctity merely because of
the parties‟ inability to raise the objection of jurisdiction.28 Even efficiency cannot supersede

20
D.S.A. Engineers (Bombay) v. H.U.D.C.O., (2009) 1 RAJ 276; Saraswat Trading Agency v. Union of India,
(2007) 4 RAJ 429.
21
Arbitration and Conciliation Act 1996 § 23 cl. 2A.
22
Booz Allen & Hamilton Inc. v. S.B.I. Home Finance Ltd., (2011) 5 SCC 532.
23
Barclays Bank plc. v. Nylon Capital L.L.P., [2011] EWCA (Civ) 826.
24
D.D. Sharma v. Union of India, (2004) 5 SCC 325.
25
Himachal Pradesh State Electricity Board v. R.J. Shah & Co., (1999) 2 Arb. LR 316.
26
MUSTIL & BOYD, COMMERCIAL ARBITRATION 234 (2d ed. Lexis Nexis 2001).
27
Societe Empresa de Telecomunicaciones de Cuba S.A. (E.T.E.C.S.A.) v. Telefonica Antillana S.A., (Nov.16,
2006).
28
Ajit Singh v. Fateh Singh, AIR 1962 (Punj) 412.

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6th NLUO BOSE & MITRA & CO IMAM 2019 ARGUMENTS ADVANCED

party autonomy. 29 It is no misconduct on the part of the arbitrator, if he denies to deal with
counter-claims, which, as per terms of the contract, are outside the purview of arbitration. 30
¶15. Therefore, the extent to which agreements in question have different jurisdiction
clauses, the parties should be referred to different proceedings under each such agreement. 31
[2] THAT THE UNITED MARITIME LOGISTICS PTE LTD ARE LIABLE TO CITY
SHIPPING COMPANY LIMITED FOR DUES UNDER THE CHARTERPARTY.
¶16. It is humbly submitted that the Charterers are liable to the demurrage claims made by
the Owners because the laytime should commence from 10 December 2018 at 0601[A]. The
entire time from 6 January 2019 at 0600 to 13 January 2019 at 1005 is on Charterers‟
account[B]. Moreover, Owners‟ entire claim for demurrage should not be time barred due to
the failure to provide pumping log[C].
[A] THE LAYTIME SHOULD COMMENCE FROM 10 DECEMBER 2018 AT 0601.
The counsel on behalf of the CLAIMANTS argue that the laytime should commence from 10
December 2018 at 0601 because the notice of protest was issued within the stipulated
time(a), the Charterers waived their right to question the validity of the NOR by their
conduct(b) and issuance of free pratique remains a mere formality in the present commercial
scenario(c).
(a) The NOP was issued on time.
¶17. Readiness of a vessel is a preliminary existing fact which must exist before NOR can
be given. 32 The vessel should be both physically and legally ready at the time of tendering the
NOR. In the present case, legal readiness can be construed by the very fact that the NOP was
issued by the master within the stipulated time, owing to clause 6.3.3 33 of the C/P, which was
an essential requirement if the free pratique was not available.
¶18. The very language of Clause 6.3.334 of the C/P suggests the intention of the parties
clearly. The words used such as “failing which” itself imply that the laytime would
commence after tendering the NOR, as the master did not “fail” in issuing the NOP.
Furthermore, the counsel refrains from establishing the physical readiness as it is not
challenged by the RESPONDENTS primarily.

29
Duro Felguera S.A. v. Gangavaram Port Limited, (2017) 9 SCC 729.
30
R.K. Aneja v. Delhi Development Authority, (1998) 2 Arb. LR 341.
31
Trust Risk Group v. AmTrust Europe Ltd., [2015] EWCA (Civ) 437.
32
Donald Davies, Voyage Charterparties - Notice of Readiness (Feb. 15, 2019, 10:05 AM),
https://www.ukpandi.com/fileadmin/uploads/uk-pi/legal/31%20Davies_D.pdf.
33
IMAM PROPOSITION 29.
34
IMAM PROPOSITION 29.

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6th NLUO BOSE & MITRA & CO IMAM 2019 ARGUMENTS ADVANCED

(b) The waiver of their right to question invalidity of the NOR by the Charterers’
acceptance by conduct.
¶19. The counsel submits that the RESPONDENTS have waived their right to object upon the
validity of the NOR by their subsequent e-mail conversations, regarding the berthing of the
vessel, which suggests their inherent acceptance of the same. In The Happy Day35, it was held
that waiver of the defect in the notice by the party depends on the subsequent communication
or conduct of the parties.
¶20. As persons with experience in the shipping business, Charterers should have
complained immediately of the notice's invalidity. 36 The reason for this might be that the
Owners act relying on that acceptance and cannot be expected to behave differently whenever
the charterers change their mind. 37 Thus, no immediate question raised about the invalidity of
NOR due to the absence of free pratique, gives an impression to the Owners that the
Charterers have accepted the same.
¶21. The Charterers, in London Arbitration 6/90 LMLN 274,38 were estopped from
contending that the original notice of readiness was invalid, as they did not reject it and their
agents accepted it. A similar decision was taken in The Northgate39, where acceptance of the
defective NOR was considered as a waiver of that defect.
¶22. Laytime commences if there exists a waiver or estoppel regarding its validity. 40. Thus,
in the instant case, the laytime should commence from 10 December 2018 at 0601 itself.
¶23. Similarly, in The Shackleford,41 an invalid NOR was deemed accepted by charterers
when charterers endorsed it with the word "accepted" having full knowledge of the defect and
were thereby, estopped from relying on the invalidity. 42 In the present case, the acceptance
was by conduct, rather than in expressed terms.
¶24. In The Helle Skou43, it was held that as the charterers had accepted the NOR, they
could not later claim to reject it, “unless” on ground of fraud. 44 In our case, fraud was not
alleged by the RESPONDENTS, and thus, cannot reject the earlier accepted NOR.

35
Glencore Grain Ltd. v. Flacker Shipping Ltd., [2002] 2 Lloyd‟s Rep. 487.
36
Despoina Aspragkathou, The Happy Day and Issues of the Invalidity of a Notice of Readiness under English
Law, 38 J. Mar. L. & Com. 191, 200 (2007).
37
Donald Davies, Voyage Charterparties - Notice of Readiness (Feb. 15, 2019, 10:05 AM),
https://www.ukpandi.com/fileadmin/uploads/uk-pi/legal/31%20Davies_D.pdf.
38
London Arbitration 6/90 LMLN 274.
39
Ocean Pride Maritime L.P. v. Qingdao Ocean Shipping Co., [2007] EWHC 2796.
40
London Arbitration 6/04 LMLN 636.
41
Surrey Shipping Co. Ltd. v. Compagnie Continentale (France) S.A., [1978] 1 Lloyd's Rep. 191.
42
Nikolai Ivanov, A Brief History of Laytime, (Feb. 20, 2019, 12:30 PM),
https://www.skuld.com/topics/legal/pi-and-defence/a-brief-history-of-laytime/.
43
Sofial S.A. v. Ove Skou Rederi, [1976] 2 Lloyd's Rep. 205.

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6th NLUO BOSE & MITRA & CO IMAM 2019 ARGUMENTS ADVANCED

(c) Free pratique remains to be a mere formality in present scenario when other
conditions are fulfilled.
¶25. In the Delian Spirit45, Lord Denning held that in some cases obtaining a free pratique
license is a formality process to tender NOR.46 The court rejected the charterers‟ argument of
non-acceptance of vessel‟s readiness without obtaining free pratique. Thus, non procurement
of Free pratique cannot be the sole argument to question the validity of the NOR, giving no
reason to suspend the laytime calculation.
¶26. Cl 6.147 of the C/P provides arrival of the vessel at the respective loading or
discharging port as the pre-condition for tendering NOR. The counsel submits that the NOR
was tendered by the master, only after the arrival of the vessel at the Singapore port, owing to
the subsisting port C/P contract between the parties.
¶27. The test for validity of the NOR did not concern the geographical position of the
vessel. 48 With all these conditions fulfilled by the master before tendering the NOR, the
validity of the NOR cannot be questioned merely on the ground of unavailability of free
pratique, which is earlier stated to be a mere formality in today‟s scenario.
¶28. In Glencore Grain Ltd v. Flacker Shipping Ltd,49 being a berth C/P, the NOR
tendered outside the berth was considered invalid for the commencement of the laytime. 50
However, in the present case, the parties entered into a port C/P and thus, the NOR tendered
on the vessel‟s arrival in the specified port, is sufficient to make it valid for the
commencement of laytime.
¶29. Since, all the significant conditions were fulfilled on behalf of the CLAIMANTS

including the issuance of NOP within time in place of free pratigue, validity of the NOR
sustains, therefore, it is prudent to commence the laytime from 10 December 2019 at 0601.
[B] THE ENTIRE TIME FROM 6 JANUARY 2019 AT 0600 TO 13 JANUARY 2019 AT 1005 IS ON
CHARTERERS ACCOUNT.
The owners are entitled to claim damages for the time lost because the vessel acquired the
status of an arrived ship at the anchorage(a), the charterers failed to provide the berth
timely(b), and the notice of arrival was the deemed NOR(c).

44
DONALD DAVIES, COMMENCEMENT OF LAYTIME 268 (4th ed. Taylor and Francis 2006).
45
Delian Spirit v. Carras Shipping Co. Ltd., [1983] 2 Lloyd‟s Rep. 496.
46
YASHAR NASIRIAN, REVISION IN THE CONCEPT OF COMMENCEMENT OF LAYTIME AND DEMURRAGE 37
(Spring 2013).
47
IMAM PROPOSITION 29.
48
T.A. Shipping Ltd. v. Comet Shipping Ltd., [1998] 1 Lloyd's Rep. 675.
49
Glencore Grain Ltd. v. Flacker Shipping Ltd., [2001] 1 Lloyd‟s Rep. 754.
50
Despoina Aspragkathou, The Happy Day and Issues of the Invalidity of a Notice of Readiness under English
Law, 38 J. Mar. L. & Com. 191, 212 (2007).

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6th NLUO BOSE & MITRA & CO IMAM 2019 ARGUMENTS ADVANCED

(a) The vessel acquired the status of an arrived ship on 6 January 2019 at 0600.
¶30. Under a port C/P, a vessel is considered arrived when it can proceed directly to a
berth or when it cannot do so, on reaching that part of the port where vessels waiting usually
lie before moving to the berth and there it must be in a position to be effectively placed at the
charterers‟ disposal.51 In the instant case, it is submitted that the vessel was ordered to wait at
the anchorage by the Charterers. Moreover, the vessel was ready to be given at the
Charterers‟ disposal, but could not, due to the waiting orders of the Charterers.52
¶31. It must be necessarily implied that the vessel becomes an arrived ship when she
arrives at the usual waiting place, even though it is outside the port. 53 The status of an arrived
ship acquired by the vessels in these different circumstances suggests that there exists no
thumb rule to that effect and depends upon the circumstances of each and every case.
¶32. The arrival of the ship is therefore, established as the NOR tendered prior to the vessel
becoming an arrived ship, cannot be perfected afterwards.54 Thus, the vessel being an arrived
ship implied that the readiness was not established before arrival.
(b) Charterers are liable for damages because of their own fault.
¶33. The Owners seek special provisions to compensate them for the time their money-
making chattel laid idle at the anchorage because of the Charterers‟ fault of not providing the
berth timely.55 In the present case, the notice of arrival was given at the anchorage on 6
January 2019 and the vessel laid idle at that place, waiting for the Charterers‟ further
instructions, till 13 January 2019. Thus, the owners are entitled for the compensation.
¶34. Delay caused by any of the parties gives the right to the other party to sue for the
damages.56 In this case, the delay was caused due to the Charterers‟ fault, entitling the
Owners to claim damages regarding the same.
¶35. In The Aello,57 even though the owners were denied the commencement of laytime at
the intersection anchorage, the House of Lords allowed them damages for the delay caused
due to unavailability of a berth. Similarly, in the present case, the owners should be allowed

51
Despoina Aspragkathou, The Happy Day and Issues of the Invalidity of a Notice of Readiness under English
Law, 38 J. Mar. L. & Com. 191, 210 (2007).
52
IMAM PROPOSITION 7.
53
New York Arbitration The „„Polyfreedom‟‟ 1974.
54
Navalmar U.K. Ltd. v. Kale Made Hammadeeler Sanayi Ve Ticart A.S., [2017] 1 Lloyd‟s Rep. 370.
55
Despoina Aspragkathou, The Happy Day and Issues of the Invalidity of a Notice of Readiness under English
Law, 38 J. Mar. L. & Com. 191, 207 (2007).
56
Despoina Aspragkathou, The Happy Day and Issues of the Invalidity of a Notice of Readiness under English
Law, 38 J. Mar. L. & Com. 191, 205 (2007).
57
Agrimpex Hungarian Trading Company for Agricultural Products v. Sociedad Financiera De Bienes Raices
S.A., [1961] Lloyd‟s Rep. 623.

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the damages for delay. Furthermore, in The Vastric,58 it was decided that the time lost should
be calculated as laytime and thus, entitled the owners to claim damages in this form.
¶36. Following the principles laid down in these cases, the owners in the present case,
submit their claim for the damages through the laytime calculation commencing from 6
January 2019 itself.
¶37. “In addition to the words of the instrument, and the particular facts proved by the
evidence admitted in aid of construction, the court may also be assisted by a consideration of
the commercial purpose of the contract, and in considering that purpose may rely upon its
own experience of contracts of a similar character to that under examination.”59 Therefore,
considering the above principle, similar provisions of different C/P contracts suggests
common commercial practices in the business.
¶38. Cl 6(c) of the GENCON 94 form included that if the berth is not available on the
vessel‟s arrival at or off the port, the vessel shall be entitled to give NOR, within ordinary
office hours, and laytime shall then count as if she were in berth. Therefore, considering it to
be the common commercial practice, the waiting period should come under the laytime
calculation.
¶39. In interpreting the language of a commercial contract, the law generally favours a
commercially sensible construction because it is more likely to give effect to the intention of
the parties.60
¶40. In LMLN 230,61 cl 17b of the C/P laid that the time spent waiting outside the port‟s
commercial limits was also be considered against laytime. The vessel though did not wait
outside the port limits in the ongoing case, it is through the commercial practices and the
intention of parties, which advocates the protection of both the parties to the contract, the idle
time spent while waiting for the berth should be calculated as laytime.
¶41. Arguendo, the Court of Appeal, in The Radnor62,held that the laytime can commence
even before tendering of the NOR, while waiting for the berth. Similarly, in the present case,
in order to protect owners‟ interest, the laytime should commence from 6 th January 2019.
(c) Notice of Arrival was deemed to be the Notice of Readiness.
¶42. In Adolf Leonhardt Case63, the court held that it was not necessary that the notice is
emanated in a written from, merely informing the charterers in written form is necessary to

58
Metals & Ropes Co. Ltd. v. Filia Compania Ltd., [1966] 2 Lloyd‟s Rep. 219.
59
KIM LEWISON, THE INTERPRETATION OF CONTRACTS 36 (4th ed. Sweet & Maxwell 2007).
60
Mannai Investment Co. Ltd. v. Eagle Star Life Assurance Co. Ltd., [2010] EWCA (Civ) 713.
61
London Arbitration LMLN 230.
62
North River Freighters Ltd. v. President of India, [1955] 2 Lloyd‟s Rep. 668.

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fulfil the clause.64 By the above decision of the court, the counsel reasonably deduce that the
major stress is upon the fact of communicating the status of the vessel to the Charterers,
putting minimal emphasis upon the nature or the name of the notice so given.
¶43. Therefore, the notice of arrival given by the master on 6 January 2019 was a deemed
NOR, hereby communicating the vessel‟s state of readiness, but for the Charterers‟ orders.
¶44. If the charterers are aware of the state of arrival and readiness of the vessel from other
sources, then there is no requirement to give the notice and the time will start to run.65 Thus,
it was the Charterers‟ orders which made the ship to wait at the anchorage and not the
vessel‟s unreadiness, thereby, calculating the laytime therefrom.
¶45. If there is any doubt as to the validity of the notice, it is always advisable for the
master to tender a further notice. 66 This suggests that the master can give multiple NORs for
the formality, though the intention of the mere communication of the vessel‟s readiness
stands by, which was fulfilled by the master in the instant case through the deemed NOR
earlier. Even after that, a further NOR was tendered by the Owners on 13 January 2019, as a
mere formality, to give the Charterers the information of vessel‟s readiness again when the
berth was available finally.
¶46. In Noemijulia Steamship Co Ltd v. Minister of Food67, it was held that if the
unreadiness alleged by the charterers was not such that would hamper the operations, then the
owners cannot be held liable thereby, restricting the Charterers from transferring their own
liabilities upon the owners.68 In the present case, though the delay in loading is merely
because of the Charterers‟ failure to provide for a berth, it implies that the laytime will be
calculated in the manner presented by the Owners, as they had no fault in the delay.
¶47. Justice Roskill emphasise that the ship need not be absolutely ready at the time when
the charterers are not in a position to do any of their part of the work, so long as the ship can
be absolutely ready as soon as they are. 69 Similarly, the orders of the Charterers to wait, itself
suggests that they were not ready to carry on their operations due to unavailability of the
berth, and thus, cannot question upon the vessel‟s readiness primarily.

63
R. Pagnan v. Finagrain Compagnie Commerciale Agricole et Financiere S.A., [1986] 2 Lloyd's Rep. 395.
64
YASHAR NASIRIAN, REVISION IN THE CONCEPT OF COMMENCEMENT OF LAYTIME AND DEMURRAGE 35
(Spring 2013).
65
Franco-British Steamship Co. v. Watson & Youell, [1921] 11 WLUK 138.
66
Transgrain Shipping v. Global Transporte Oceanico, [1990] 1 Lloyd‟s Rep. 507.
67
Antaios Compania Naviera S.A. v. Salen Rederierna A.B., [1984] 2 Lloyd‟s Rep. 235.
68
YASHAR NASIRIAN, REVISION IN THE CONCEPT OF COMMENCEMENT OF LAYTIME AND DEMURRAGE 30
(Spring 2013).
69
KIM LEWISON, THE INTERPRETATION OF CONTRACTS 294 (4th ed. Sweet & Maxwell 2007).

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6th NLUO BOSE & MITRA & CO IMAM 2019 ARGUMENTS ADVANCED

¶48. Therefore, the laytime calculated by the Owners from 6 January 2019 was a prudent
act in the commercial interest, to protect their position and to penalise the Charterers for their
fault of not providing the berth within time.
[C] OWNERS’ CLAIM FOR DEMURRAGE SHOULD NOT BE TIME BARRED DUE TO FAILURE TO
PROVIDE PUMPING LOG.

¶49. It is presented on behalf of the CLAIMANTS‟ counsel that the RESPONDENTS wrongly
alleged the demurrage claim as time barred, citing failure of CLAIMANTS to submit pumping
log for discharge port 2 within the limitation period of 60 days under cl 20 of the C/P. The
CLAIMANTS are entitled to recover their claim as the pumping log for discharge port 2 does
not substantiate any constituent part of the demurrage claim(a), the commercial intent of the
clause is fulfilled(b), Cl 20.2 does not require pumping for the pumping log in the present
claim(c) and failure to submit a document for constituent part of the claim cannot time bar the
entire demurrage claim(d).
(a) Pumping log for discharge port 2 does not substantiate any constituent part of the
demurrage claim.
¶50. Pumping log is an official document which contains the hourly record of the pressure
maintained by the vessel during loading or discharging. As evident from cl 19.7 of the C/P, it
is used to justify any additional time used by the Owners. 70
¶51. Cl 19.4 of the C/P provides vessel with either 24 hours or pro rata time to maintain a
minimum discharge pressure of seven (7) bars. 71 MT India had to discharge only half of the
cargo, at the discharge port 2 and thus, qualify as „part cargo‟ under the definition provided
under cl 19.1 of the C/P.72 Thus, the vessel had 12 hours to discharge the cargo before any
additional time could accumulate. The net time used by MT India in discharging the cargo at
discharge port 2 was 11 hours 5 mins. 73 Hence, no additional time was consumed by the
vessel in discharging the part cargo so, none was claimed by the CLAIMANTS against
demurrage. Therefore, the pumping log for discharge port 2 does not substantiate any
constituent part of the demurrage claim presented by the Owners.
(b) The commercial intent of the clause is fulfilled.
¶52. A clause of a commercial contract must be interpreted keeping the commercial
common sense in mind. 74 The commercial intention behind cl 20 of the C/P is to put the

70
IMAM PROPOSITION 34.
71
IMAM PROPOSITION 34.
72
IMAM PROPOSITION 33.
73
IMAM PROPOSITION 49.
74
Rainy Sky S.A. v. Kookmin, [2011] UKSC 50.

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Charterers in possession of the factual material which they require in order to satisfy
themselves whether the demurrage claim is correctly calculated or not.75 This is exclusively
for Charterers‟ benefit. 76 As already established above, the pumping log for discharging port
2 does not substantiate any part of the claim presented and the Charterers were in possession
of all the factual matrix required to satisfy themselves regarding demurrage on 10 March
201977.
(c) Cl 20.2 does not require pumping for the pumping log in the present claim.
¶53. Cl 20.2 relied upon by the RESPONDENTS for barring the demurrage claim due to
exhaustion of time limit provided, uses the phrase 'substantiating each and every part of the
demurrage claim’ just before mentioning the essential documents.78 While interpreting the
contract, whole context should be kept in mind before focusing on specific words.79
Moreover, strict interpretation of the clause would make the above phrase inoperative which
is against the cannons of construction of commercial contracts80. Thus, the mandatory
requirement of presenting documents is qualified by the phrase 'substantiating each and
every part of the demurrage claim’. This signifies that some documents are only required if
they substantiate the demurrage claim.
In the instant case, as the pumping log was not substantiating the demurrage claim, the same
was not required.
¶54. Breach of the pumping warranty amounted to an exception to laytime under cl 19 of
the C/P, and accordingly, the burden of proof was on Charterers to prove an exception to
laytime.81 This creates no onus on the Owners to provide pumping log.
¶55. Furthermore, the law never compels a person to do something which is useless or
unnecessary. 82 Providing pumping log for the discharge port 2 would have added nothing of
value to either party, nor was it necessary in the interest of commercial practices. Thus, the
requirement was futile making the claim of the Owners just and reasonable.

75
Banabaft International Co. S.A. v. Avant Petroleum Inc., [1982] 1 Lloyd's Rep. 448.
77
Mira Oil Resources of Tortola v. Bocimar N.V., [1999] 2 Lloyd‟s Rep. 101.
77
IMAM PROPOSITION 9.
78
IMAM PROPOSITION 17.
79
Patrick Stewart Hodge, Judicial Development of the Law of Contract in the United Kingdom, 85 Geo. Wash.
L. Rev. 1587 (2017).
80
Newall v. Lewis, [2008] 4 Costs L.R. 626.
81
SIMON BAUGHEN, SUMMERSKILL ON LAYTIME 132 (6th ed. Sweet & Maxwell 2017).
82
Arrett Bros (Taxis) Ltd. v. Davies Lickiss, [1966] 1 WLR 1334; Mansel Oil v. Troon Storage Tankers S.A.,
[2008] EWHC 1269 (Comm).

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¶56. In The Abqaiq, it was held that the substance of the documents had to be focused
upon, rather than presentation of documents, while construing demurrage time bar clauses.83
It is better to give effect to the clarity and certainty, which is the purpose to be achieved by
such clauses.84 In the instant case, the claim was unambiguous, even without the pumping
log.
¶57. Therefore, the current claim did not require the pumping log as a supporting
document and therefore the Owners‟ claim should not be time barred.
(d) Arguendo, non-submission of pumping log cannot time bar the entire demurrage
claim.
¶58. The non-submission of pumping log for discharge port 2 cannot time bar the
demurrage claim in entirety. As it was held in The Minerva,85 if the claim can be identified
and quantified in constituent parts, failure to provide document substantiating one of the parts
would not time bar the claim in totality.
¶59. Similarly, in the instant case, the demurrage claim can be divided into three
constituent parts w.r.t one loading and two discharging ports.86 CLAIMANTS failed to provide
documents only for discharge port 2. The touchstone is that the claims should be unrelated. 87
Demurrage claim for discharge port 2, in the present case, is totally unrelated to the claims at
the other two ports. Moreover, it can even be quantified separately.
¶60. Use of phrase, „all and any‟, by the parties in the clause, shows the intention of the
parties to submit the claims in multiple parts. Thus, it is absurd to differentiate between the
two situations. Even if a composite claim was required, failure to provide „supporting
documents for one constituent part cannot discharge the liability for the entire demurrage
claim’.88
¶61. In case of conflicting interpretations, the tribunal should reject the one which seems
unreasonable in commercial common sense. 89 A balance has to be struck between the two.90
The ambiguity in the demurrage time bar clause, if any, should never be resolved in such a

83
National Shipping Company of Saudi Arabia v. B.P. Oil Supply Company (The Abqaiq), [2011] EWCA (Civ)
1127.
84
Lukoil Asia Pacific Pte. Ltd. v. Ocean Tankers Pte. Ltd., [2018] EWHC 163.
85
Transoceanic Co. Ltd. v. Newton Shipping Limited, 203 (Jan. 17, 2001).
86
IMAM PROPOSITION 17.
87
Kassiopi Maritime Co. Ltd. v. Fal Shipping Co. Ltd., [2015] EWHC 318 (Comm).
88
The Petroleum Oil and Gas Corporation of South Africa (Pty.) Ltd. v. F.R.8 Singapore Pte. Ltd., [2009] 1
Lloyd's Rep. 107.
89
Operative Wholesale Society Ltd. v. National Westminster Bank plc., [1995] 1 EGLR 97; Wickman Machine
Tools Sales Limited v. Schuler A.G., [1974] AC 235.
90
H.G. BEALE, CHITTY ON CONTRACTS 342 (28th ed. Sweet & Maxwell 1999).

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manner so as to prevent an otherwise legitimate claim. 91 Thus, even if the demurrage claim
for discharge port 2 stands in ambiguity to be decided by the tribunal, the residuary claim for
the other ports should be considered as a legitimate entitlement of the Owners. The
commercial common sense also favours the partial time bar of such claims, 92 thereby
establishing that, it will be against the commercial practice to bar the Owners from claiming
the residuary, if not entire, demurrage claim.
[3] THAT THE CITY SHIPPING COMPANY LIMITED IS NOT LIABLE TO
UNITED MARITIME LOGISTICS PTE LTD FOR THEIR CLAIMS.
¶62. It is humbly submitted that the Owners are not liable for the alleged cargo damages
occurred on the vessel because there was no violation of the voyage orders by the master[A],
the Owners also did not violate Article III Rule 2 of HVR[B] and the Owners are covered by
the exceptions provided under Article IV Rule 2 of the HVR[C].
[A] THE VOYAGE ORDERS WERE NOT VIOLATED BY THE MASTER.
¶63. It is humbly submitted that the Charterers failed to give any clear instructions
regarding heating of the cargo. Cl 3.1 of the voyage order instructs cargo heating to be in
accordance to standard industrial practices. 93 The same is immediately followed with an
assurance to specify the details in short period of time. Charterers failed to supply any
specific voyage order regarding the heating of the cargo, in spite of two general and one
specific query regarding additional voyage instructions and cargo heating on 11 December,
13 December and 18 December 2018 respectively, was made by the master.
¶64. „Standard‟ means a model conduct or custom94 whereas „practice‟ can be defined as a
habitual action.95 Thus, standard industrial practice in commercial sense is a habitual model
or conduct followed by a large segment of the industry. Assuming the cause of solidification
to be non-heating of Bach Ho oil, several such incidents of cargo solidification, including 15
between the months of December and January, 96 indicates absence of any specific heating
practice in the industry.
¶65. Furthermore, in Volcafe Ltd,97 Supreme Court upheld the decision of not assuming
any practice as a standard practice, if it is contradictory in view of the experts. In the instant

91
Pera Shipping Corporation v. Petroship S.A., [1985] 2 Lloyd's Rep. 103 CA.
92
The Petroleum Oil and Gas Corporation of South Africa (Pty.) Ltd. v. F.R.8 Singapore Pte. Ltd., [2009] 1
Lloyd‟s Rep. 107.
93
IMAM PROPOSITION 27.
94
BLACK‟S LAW DICTIONARY 1441 (Bryan A. Garner, 8th ed. Thomson Reuters 2004).
95
OXFORD ENGLISH DICTIONARY 1394 (Angus Stevenson, 3d ed. Oxford University Press 2010).
96
IMAM PROPOSITION 51.
97
Volcafe Ltd. v. Compania Sud Americana De Vapores S.A., [2018] UKSC 61.

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case, advice by Fulham Laboratories and statement by Dr. Ibrahimovio, point towards
different conclusions regarding the nature of the cargo. Therefore, it is submitted that, in this
scenario, no standard industrial practice can be established.
¶66. Moreover, cl 8 of the City/Unity Additional Terms (hereinafter „Additional Terms‟)
related to voyage orders, confers a right upon master to contact charterers for instruction in
case of non-compliance. In the instant case, master‟s communication on 11 December, 13
December and 18 December 2018, asking for instructions absolves him, on behalf of the
CLAIMANTS, of any liability under this clause.
¶67. The Charterers‟ negligence to reply to the communication98 or refusal to give
instructions, 99 gave an implied authority to the master to take such steps as may appear to him
as reasonably necessary. 100 The master fulfilled this authority by maintaining an adequate
temperature throughout the voyage. 101
¶68. Therefore, CLAIMANTS are not liable for any violation of the voyage orders, as alleged
by the RESPONDENTS.
[B] THE OWNERS DID NOT BREACH THE ARTICLE III RULE 2 OF HAGUE-VISBY RULES.
¶69. Article III Rule 2 of HVR imposes a duty on the carrier to properly and carefully
keep, take care and carry the cargo.102 If the carrier can show that the loss or damage to the
cargo occurred without any breach of his duty of care inherent under the above provision, he
is not required to rely on any exception. 103
¶70. "Properly" in Article III Rule 2 did not impose an obligation to achieve a particular
outcome, but to load, carry and discharge "in accordance with a sound system”.104 This sound
system does not require to take into account all weaknesses and idiosyncrasies pertaining to a
particular cargo, but to reflect general practices of the voyage. 105 Therefore, in the instant
case, to establish a sound system, the carrier need not take care of the particular heat
sensitivity of the Bach Ho oil. Master fulfilled the obligation under „proper‟ care, by
maintaining the adequate temperature.106

98
Droege v. Stuart, (1869) L.R. 2 PC 505.
99
Garriock v. Walker, (1873) L.R. 100.
100
HAILSHAM ET AL., HALSBURY LAW OF ENGLAND 453 (4th ed. Butterworths Law 1994).
101
IMAM PROPOSITION 9.
102
The Hague Visby rules 1968, art. III rule 2.
103
Volcafe Ltd. v. Compania Sud Americana De Vapores S.A., [2018] UKSC 61.
104
Pyrene Co. Ltd. v. Scindia Navigation Co. Ltd., [1954] 2 QB 402; G.H. Renton & Co. Ltd. v. Palmyra
Trading Corporation of Panama, [1956] 2 Lloyd‟s Rep. 379.
105
Albacora S.R.L. v. Westcott & Laurance Line Ltd., [1966] 2 Lloyd‟s Rep. 53.
106
IMAM PROPOSITION 9.

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¶71. The word “carefully” means merely taking care and is considered by authors to be
equivalent to the standard of reasonable care. 107 The exercise of reasonable care is assessed
and gauged by way of a comparison with what an ordinarily prudent and rational person
would have done in the same circumstances. 108 The master not only maintained the adequate
temperature above pour point to protect the cargo from solidifying, but also constantly
queried regarding the specific heating requirements of the oil. It cannot be expected of a
master to be an expert surveyor and to posses any greater knowledge or experience of the
cargo in question. 109 This suggests that in absence of any special knowledge, an ordinary
prudent master would also have opted for a similar measure. Therefore, the above care
qualifies as reasonable care and signifies absence of negligence on master‟s behalf.
¶72. In The Maltasian,110 the court held that the carrier did not breach its duty to carry the
cargo properly and carefully, as the consignment was marked “keep away from engines and
boilers”, which was complied by the carrier and no further instructions were given by the
consignors. Similarly, in the instant case, where the instructions only provide to heat the
cargo “as per standard industrial practices,” the carrier cannot be held liable to heat it upto
55 degree Celsius. The master fulfilled his obligations by keeping the cargo above pour point
as provided by the Charterers.111
¶73. Moreover, in Rio Sun,112 the court did not find the carrier to have breached its duty,
when there was no evidence to prove master‟s past experience in a similar cargo. In the
instant case, mentioning of the last three cargoes, indicate that the master does not carry
before such an oil, which required special heating like this. He, thus, followed the general
practice and maintained the adequate temperature.
¶74. Therefore, the carrier cannot be held liable to have failed in taking proper and careful
care of the cargo under Article III Rule 2 of HVR.
[C] THE OWNERS ARE COVERED UNDER THE EXCEPTIONS PROVIDED BY ARTICLE IV RULE
2 OF THE HAGUE-VISBY RULES.
¶75. Article III Rule 2 of HVR begins with “Subject to the exceptions laid down in Article
IV”.113 This signifies that even if the carrier has breached the duty therein, it is entitled to a

107
PROF. JOHN WILSON, CARRIAGE OF GOODS BY SEA 345 (7th ed. Longman 2010).
108
Blyth v. Birmingham, (1856) 11 Ex Ch 781.
109
JULIAN COOKE ET AL., VOYAGE CHARTERS 245 (4th ed. Informa Law 2014).
110
Albacora S.R.L. v. Westcott & Laurance Line Ltd., [1966] 2 Lloyd‟s. Rep. 53.
111
IMAM CLARIFICATION 3.
112
Gatoil International Inc. v. Panatlantic Carriers Corporation (The “Rio Sun”), [1985] 1 Lloyd‟s Rep. 350.
113
The Hague Visby rules 1968, art. III rule 2.

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defense against its breach in Art IV. Moreover by virtue of Cl 38 114 of the C/P and Article IV
Rule 1,115 the Owners are entitled to the protection of the exceptions therein, against the
claims made under the C/P.
¶76. Article IV Rule 2(m), provides for wastage in bulk of weight or any other loss or
damage arising from inherent defect, quality or vice of the goods.116 „Inherent vice‟ means
the unfitness of the goods to withstand the ordinary incidents of the voyage, given, the degree
of care which the shipowner is required by the contract to exercise, in relation to the goods.117
In the instant case, the contract did not require any special heating of the cargo. The voyage
order also did not involve specific instructions regarding heating. The queries regarding the
same were also ignored. Therefore, the voyage, here, did not involve any special standard of
care. The solidification of the oil, thus, was due to its inability to withstand the normal
voyage circumstances and henceforth, constituted inherent vice.
¶77. In The Albacora,118 the court upheld the exception of inherent vice, where the voyage
did not provide for refrigeration, though the cargo could have been saved through it. It is
therefore submitted, that even though the oil could have been saved through special heating,
absence of any such requirement enable the loss to be covered under the exception of
inherent vice.
¶78. Furthermore, the Owners are bestowed with no duty to carry out more than superficial
inspection of the goods,119 or being prevented from relying on the exception, where the
inherent defect in the goods is “perfectly apparent”.120 The principle applies to oil cargoes
that are allegedly “vicious” due to their propensity to solidify. 121 Bach Ho oil has high
paraffin content (about 20-25%), which makes it a “vicious oil”.122
¶79. The phrase “inherent vice” is applied figuratively as “anything which by reason of its
own inherent qualities is lost without any negligence by any one”.123 The fact that 15

114
IMAM PROPOSITION 41.
115
The Hague Visby rules 1968, art. IV rule 1.
116
The Hague Visby rules 1968, art. IV rule 2(m).
117
SIR THOMAS EDWARD SCRUTTON & F. D. MACKINNON, CHARTERPARTIES AND BILLS OF LADING 125 (8th ed.
Sweet & Maxwell 1917).
118
Albacora S.R.L. v. Westcott & Laurance Line Ltd., [1966] 2 Lloyd‟s Rep. 53.
119
Westcoast Food Brokers Ltd. v. The Ship "Hoyanger" And Westfallarsen & Co., [1979] 2 Lloyd‟s Rep. 79.
120
Gould v. South Eastern and Chatham Railway Co., [1920] 2 KB 186.
121
Gatoil International Inc. v. Panatlantic Carriers Corporation (The “Rio Sun”), [1985] 1 Lloyd‟s Rep. 350.
122
RANDOLPH ET AL., PIPELINE FLOW ASSURANCE: A CASE STUDY OF OIL WITH HIGH PARAFFIN
CONCENTRATION IN VIETNAM: ENERGY AND GEOTECHNICS 234 (Springer 2018).
123
Greenshields v. Stephens, (1908) App. Cas. 431.

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shipments in a short period of two months have faced the issue of wax formation, indicates
inherent deteriorating quality of the oil and not negligence as a cause.124
¶80. Furthermore, a cargo may have inherent characteristics that make its deterioration
inevitable, irrespective of the care taken. In that scenario, negligence is irrelevant and
inherent vice is proved without further contentions.125 The instances of solidification even
after being adequately heated during the voyage,126 represents such characteristics of the
Bach Ho oil. Therefore, solidification of oil occurred due to its inherent vice and thus, the
Owners cannot be held liable for the same.
[4] ARGUENDO, THE OWNERS ARE NOT LIABLE TO THE FULL EXTENT.
It is humbly submitted, arguing but not conceding, that the Owners‟ negligence cannot make
them liable for the damages, to the full extent, because the loss is covered by the in-transit
clause of the Additional Terms[A], the negligence was not the proximate cause of the
damage[B] and the Charterers also contributed to the damage so caused[C].
[A] LOSS IS COVERED BY IN-TRANSIT LOSS CLAUSE OF THE ADDITIONAL TERMS.
Cl 4 of the Additional Terms makes the Owner liable for any cargo loss only when such loss
exceeds 0.5% of the total cargo. In the instant case, the total cargo loss is of 157.50 MT
which amounts to only 0.35% of the total cargo.
The "in transit loss" clause is interpreted as applying to a loss, incidental to such cargo,
occurring during the course of a normal voyage. 127 In The Kriti Rex, the court concluded that
the cargo damage sustained to be in the nature of an in-transit loss, caused due to its fragile
nature. In the instant case, Bach Ho oil, being a high paraffin content oil, is difficult to
transport.128 Wax formation, in spite of adequately heating the cargo, further substantiates
this argument.129 Thus, the loss sustained in the course of voyage, is incidental to the cargo
and should therefore, be covered by in-transit loss clause.
[B] MASTER’S NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE LOSS.
The cause, truly proximate, is that which causes the damage even in the absence of other
causes, but may not be true vice versa. 130 In the instant case, the inherent vice of the cargo

124
IMAM PROPOSITION 51.
125
Volcafe Ltd. v. Compania Sud Americana De Vapores S.A., [2018] UKSC 61.
126
IMAM PROPOSITION 51.
127
Trafigure Beheer B.V. v. Navigazione Montanari S.p.A., [2015] EWCA (Civ) 91.
128
RANDOLPH ET AL., PIPELINE FLOW ASSURANCE: A CASE STUDY OF OIL WITH HIGH PARAFFIN
CONCENTRATION IN VIETNAM: ENERGY AND GEOTECHNICS (Springer 2018).
129
IMAM PROPOSITION 51.
130
Leland Shipping Co. v. Norwich Union Fire Insurance Society, [1918] AC 350.

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caused the solidification, even after taking due care, but the same would not have occurred
without it, as the cargo temperature was maintained above the pour point. 131
The question of causation should be approached with a broad common sensical view of the
whole position. 132 In the present case, the common sense approach lean towards the inherent
vice of a vicious oil to solidify. The argument is supported by the fact that the port witnessed
15 such incidents in the period of two months, even when the carriage involved proper
heating compliance.
In Harding,133 the court attributed the cause of damage to inherent vice while analyzing the
weather conditions and refused to acknowledge the fact that the moisture travelled via roof of
the container. Drawing analogy, here, the temperature sensitivity of the cargo, as
acknowledged by Fulham Laboratories, along with absence of specific heating instructions,
should be attributed as the cause of damage.
In Kapitan Sakharov,134 the court did not hold the Owners liable, where the chain of
causation was attributed to unseaworthiness and damage due to presence of dangers, which
could not be known by the owners. In the instant case, the chain of causation broke by the
presence of inherent vice in the form of temperature sensitivity of Bach Ho oil. Due to the
ignorance of the Charterers, the master had no means to know about the nature of oil and
thus, could not make out the special care requirements demanded by the same.
Moreover, where the burden of proof is upon the CLAIMANT to prove the damage caused by
breach of contract, he must also quantify the same. 135 If it is not possible to draw inference
about the quantum of the damage, the carrier should not be held liable for more than just the
nominal damages.136 Therefore, even if the damage is assumed to be caused by negligence, in
absence of any evidence to infer the quantum attributable, the CLAIMANTS are only
responsible for nominal damages.
[C] THE RESPONDENTS ALSO CONTRIBUTED TO THE DAMAGE.
Contributory negligence means that there has been some act or omission on the part of the
aggrieved, which has materially contributed to the damage caused. 137 For these purposes
„negligence‟ is used in the sense of carelessness in looking after its own safety rather than in

131
IMAM CLARIFICATION 3.
132
Leyland v. Norwich Union, [1918] AC 350.
133
T.M. Noten B.V. v. Harding, [1990] 2 Lloyd‟s Rep. 283.
134
Northern Shipping Co. v. Deutsche Seereederei G.m.b.H., [2000] 2 Lloyd‟s Rep. 255.
135
Oxford Shipping v. Nippon Yusen Kaisha, [1984] 2 Lloyd's Rep. 373.
136
Govt. of Ceylon v. Chandris, [1965] 2 Lloyd‟s Rep. 204.
137
C.T. WALTON, CHARLESWORTH & PERCY ON NEGLIGIENCE 242 (13th ed. Sweet & Maxwell 2014).

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its sense of breach of duty. 138 In the instant case, the Charterers‟ vague voyage order and
ignorance to the Owner‟s query on 18 December 2018, regarding specific cargo heating
instructions, signify their careless conduct in looking after their own cargo‟s safety. 139
In Precis,140 failure to instruct an independent actuary, who would have been likely to have
discovered the error, amounted to contributory negligence. Taking cue from this case, even
though it was master‟s responsibility to discover the specific industrial practices, Charterers‟
failure to clarify, must amount to contributory negligence.
Applying the principles of Ryland v Fletcher, 141 oil would not have solidified but for the
Charterers‟ negligence to answer the queries of the master. Thus, the Charterers are barred
from claiming of the damages.
[5] COST OF ARBITRATION.
Section 31 of the Arbitration Act gives the discretion to the arbitral tribunal to award on the
cost of arbitration, including the amount and time of payment of such costs. 142 The tribunal is
expected to exercise its discretion judiciously. 143 The general rule of the unsuccessful party
being ordered to pay the cost,144 should be followed in the instant case. Refusal to mediate the
disputes amicably is not a special circumstance to deviate from this general rule. 145
Moreover, actual costs must be awarded rather than just nominal costs.146
It is submitted that the circumstances and conduct of the parties must be taken into account
while deciding the costs.147 Moreover, the counter-claim brought by the RESPONDENTS, w.r.t.
cargo damage, suffer from lack of jurisdiction. The RESPONDENTS decided to claim the sum
only after the CLAIMANTS decided to go for arbitration. It was only pursued to delay the
proceedings of the tribunal, and force the CLAIMANTS to arrive at an unjust settlement.
Misconceived claims against a party are not only to be rejected but the party initiating such
claims has to be burdened with the costs.148 Thus, according to Section 31A(3)(c) of the
Arbitration Act,149 the liability of the RESPONDENTS to bear the costs is enhanced.

138
Lewis v. Denye, [1939] 1 KB 540.
139
IMAM PROPOSITION 5.
140
Precis plc. v. William M. Mercer Ltd., [2004] EWHC 838.
141
Ryland v. Fletcher, [1868] UKHL 1.
142
Arbitration and Conciliation Act 1996 § 31A(1).
143
Lewis v. Haverfordwest Rural District Council, [1953] 1 WLR 1486.
144
Arbitration and Conciliation Act 1996 § 31A(2)(a).
145
Glaister v. Amalgamated Dairies Ltd., [2004] 2 NZLR 606 CA.
146
Oriental Insurance Co. Ltd. v. Amira Foods Ltd., 2010 (4) RAJ 499 (Del).
147
Andrew v. Grove, [1902] 1 KB 625.
148
All India Radio v. Unibros, (2010) 6 RAJ 217.
149
Arbitration and Conciliation Act 1996 § 31A(3)(c).

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6th NLUO BOSE & MITRA & CO IMAM 2019 PRAYER

PRAYER

In light of the above submissions, the Claimants request the tribunal to declare:
(1) That the counter-claim is not maintainable.
(2) That the Claimants provided valid NOR along with NOP.
(3) That the Claimants are entitled to detention damages for the time lost.
(4) That the pumping log is not an essential document to claim damages.
(5) That Claimants are not liable for the damage caused.
(6) That the Claimants are fully entitled to the laytime and demurrage claims.

And, therefore, the following reliefs are prayed for:

(1) USD 227,400 as the laytime and demurrage claim including detention damages.
(2) Further or other reliefs.

AWARD interest and costs in favour of the Claimants.

Counsel for Claimants

XIII