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SEVENTEENTH ANNUAL INTERNATIONAL MARTIME LAW
ARBITRATION MOOT COMPETITION 2017
IN THE MATTER OF AN ARBITRATION HELD IN SINGAPORE
CLAIMANT RESPONDENT
FURNACE TRADING PTE LTD INFERNO RESOURCES SDN BHD
MEMORANDUM FOR THE CLAIMANT
TEAM NO. 4
DANIEL GAZZARD
ZOE KALIMERIS
DONNÉ OOSTHUIZEN
DOMENICO ROMEO
i
TABLE OF CONTENTS
Part One: Jurisdiction ............................................................................................................. 2
I. The Tribunal Has the Power to Rule on Its Own Jurisdiction…………………….2
II. The International Arbitration Act Applies to this Arbitration……………………2
III. Singaporean Law Governs the Arbitration Agreement………………………….3
IV. The Arbitration Agreement is Valid……………………………………………..3
A. The Fixture Recap Validly Modified the Coal Orevoy………………………….4
B. An Agreement May Be in Electronic Form……………………………………..5
C. A Signature is Not Necessary…………………………………………………...5
V. This Tribunal Has the Power to Make Interim Orders for the Sale of Property...5
A. Scope of The Dispute Is Determined by Reference to the Submission to
Arbitration…………………………………………………………………………….6
B. The Cargo is Subject Matter of the Dispute……………………………………..6
(i) The Issues Giving Rise to the Sale of the Cargo were Directly Linked to the
Primary Dispute……………………………………………………………………….7
(ii) RESPONDENT was Aware of all Issues……………………………………………8
VI. It Is Necessary and Just For the Cargo to Be Sold Pendente Lite……………….8
Part Three: Liability in Contract ......................................................................................... 11
I. Respondent breached the Voyage Charterparty………………………………..11
A. RESPONDENT Breached Clause 19 of the Voyage Charterparty…………….….11
(i) The Freight was Due on 9 October 2016………………………………………11
(ii) The Freight was Payable by 14 October 2016…………………………………12
B. Respondent Breached Clause 16 of the Charterparty………………………….12
(i) The RESPONDENT Did Not Nominate a Discharge Port Within the Specified
Time…………………………………………………………………………………12
ii
(ii) In any event, Busan Was Not a Valid Port Nomination………………………..13
C. CLAIMANT was Entitled to Treat the Contract as Discharged………………….14
(i) Respondent’s Conduct Amounted to a Repudiation of the Contract…………..15
(ii) Respondent’s conduct amounted to a renunciation…………………………….18
(iii) Respondent’s Repudiation and/or renunciation was Accepted by Claimant…..19
Part Three: Valid Exercise of Lien ....................................................................................... 21
II. Claimant Has a Valid and Enforceable Contractual Lien Over the Cargo……..21
A. The Terms of the Voyage Charterparty Were Validly Incorporated Through the
B/L…………………………………………………………………………………...21
B. The Shipper was Bound by the Voyage Charterparty………………………….23
(i) The Shipper intended to be bound by the Voyage Charterparty/………………23
(ii) The terms of the Voyage Charterparty were reasonably ascertainable to the
Shipper………………………………………………………………………………24
C. RESPONDENT Failed to Pay Freight in Accordance the Voyage Charterparty…25
D. CLAIMANT Gave Sufficient Notice to RESPONDENT of the Exercise of a Lien...25
PRAYER FOR RELIEF........................................................................................................ 25
iii
INDEX OF ABBREVIATIONS
Furnace Trading Pte Ltd CLAIMANT
Inferno Resources Sdn Bhd RESPONDENT
Idoncare Berjaya Utama Pty Ltd Shippers
IMLAM Consignorist GmbH Shipowners
M.V. Tardy Tessa Vessel
The Voyage Charter fixed on an amended
BIMCO standard Coal and Ore Charterparty
and evidenced in an email dated 1 September
2016
Voyage Charterparty
BIMCO standard Coal and Ore Charterparty Coal Oravoy
Email dated 1 September 2016 which
amended the Coal Oravoy
Fixture Recap
International Arbitration Act (Cap 143A,
2002 Rev Ed)
IAA
Singapore Chamber of Maritime Arbitration
Rules
SCMA Rules
UNICITRAL Model Law on International
Commercial Arbitration
Model Law
Bill of Lading B/L
The Charterparty between CLAIMANT and
the Shipowner
The Time Charterparty
84,000 MT of Molloo Australian Steam coal
The Cargo
Tan Xiao Ming
The Master
Eric Yan
The Broker
The 2017 International Martitime Law
Arbitration Law Moot
Moot problem
CLAIMANT and RESPONDENT
The parties
Gordon Grill
CLAIMANT’S Representative
Peter Girvin
The Shipowner’s Representative
Clause 29 of the Fixture Recap
Arbitration Clause
iv
LIST OF AUTHORITIES
CASES AND ARBITRAL AWARDS
‘The Federal Bulker’ [1989] 1 Lloyd’s rep 103
‘The Kostas K’ [1985] 1 Lloyd’s Rep 231
‘The Trade Resolve’ [1990] 2 SLR 129
Alliance Concrete Singapore Pte Ltd v Comfort Resources Pte Ltd [2009] 4 SLR (R) 602
Alliance Concrete Singapore Pte Ltd v Sato Kogyo (S) Pte Ltd [2014] 3 SLR 857
Amelia Shipping Inc v State Enterprise for Pulp and Paper Industries [1991] SGHC 36
American Cyanamid Co v Ethicon Ltd [1975] AC 396
Astrata (Singapore) Pte Ltd v Tridex Technologies Pte Ltd [2011] 1 SLR 449
Banco do Brasil S.A. v. "Alexandros G. Tsavliris" (The) [1987] CarswellNat 252
Bangladesh Chemical Industries v Tex-Dilan Shipping Co (The S.L.S Everest) [1981] 2 Lloyd’s Rep. 389
Bentsen v Taylor [1983] 2 QB 274
Bradford v Williams (1872) LR 7 Ex 259
Brostrom & Son v Dreyfus & Co (1932) 44 Ll L Rep 136
Bunge Corporation New York v Tradax export SA, Panama [1989] 1 WLR 711
Caresse Navigation Ltd v Zurich Assurances Maroc and Others (‘The Channel Ranger’) [2014] 1 Lloyd’s
Rep 337
Challenger Technologies Ltd v Courts (Singapore) Pte Ltd [2015] SGHC 218
Citicorp Investment Bank v Wee Ah Kee [1997] 2 SLR 759 8
Colonial Bank v European Grain and Shipping Co Ltd (‘The Dominique’) [1989] 1 Lloyds Rep 431
Compania Naviera General SA v Kerametal Ltd (‘The Lorna I’) [1983] 1 Lloyds Rep 373
Concordia Agritrading Pte Ltd v Cornelder hoogewerft (Singapore) Pte Ltd [1999] 3 SLR(R) 618
D’amico Shipping Italia Spa v Endalfa DMCC & ANOR [2016] EWC 2223 (Comm)
Decro-Wall International SA v Practitioners in Marketing Ltd [1971] 1 WLR 361
Dry Bulk Handy Holding Inc. and another v. Fayette International Holdings and another (‘Bulk Chile’)
[2013] EWCA Civ 184
Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847; [1915] UKHL 1
Econ Piling Pte Ltd v. NCC International AB [2007] SGHC 17
Fercometal S.A.R.L v Mediterrean Shipping Co SA [1989] AC 788
FirstLink Investments Corp Ltd v. GT Payment Pte Ltd and others [2014] SGHCR 12
Five Ocean Corporation v Cingler Ship Pte Ltd [2015] SLR 1159
Force India Formula One Team Ltd v Areolab SRL [2013] EWCA Civ 780
Franklin Lumber Ltd. v. "Essington II" (The) 2005 FC 95
Freight Connect (S) Pte Ltd v Paragon Shipping Pte Ltd [2015] 5 SLR 178
Front Carriers Ltd v Atlantic & Orient Shipping Corp [2006] 3 SLR (R) 854
Gard Marine & Energy Ltd v China National Chartering Co Ltd (The Ocean Victory) [2015] EWCA Civ
16; [2015] 1 Lloyd’s Rep 381
Glencore Grain BV v The Ship Lancelot V [2015] NZHC 2052
Gullischen v Stewart (1884) 13 Q.B.D. 317
Hain SS Co v Tate & Lyle (1936) 41 Com Cas 350
Hamilton v Mackie (1889) 5 T.L.R. 677
Heskell v Continental Express (1950) 83 L1.L.R. 438
Heyman v Darwins Ltd [1942] 72 LL.L.Rep 65
Hingston v Wendt (1876) 1 QBD 367
Homburg Houtimport B.V. v Agrosin Private Ltd and Others (“The Starsin”) [2003] 1 Lloyd’s Rep 571
Hong Kong Fir Shipping Co Ltd v Kawasaki Kisan Kaisha Co [1962] 2 QB 26
v
Hyundai Shipbuilding and Heavy Industries Co v Pournaras [1978] 2 Lloyds Rep 502
Indian Company v Pakistani Bank, Award, ICC Case No. 1512, 1971 in Yearbook 1976, Vol. I,
128
Indian Oil Corporation v. Vanol Inc [1992] 2 Lloyd's Rep 563
Insigma Technology Co Ltd v Alstom Technology Ltd [2009] 3 SLR(R) 936
International Research Corp PLC v Lufthansa Systems Asia Pacific Pte ltd [2014] 1 SLR 130
Jiangsu Overseas Group Co, Ltd v. Concord Energy Pte Ltd and another matter [2016] SGHC 153
Johnson v Agnew [1980] AC 367
K/S A/S Seateam v Iraq National Oil Co (The Sevonia Team) [1983] 2 Lloyds Rep. 640
Karin Vatis Vagres Compania Maritime SA v Nissho-Iwai America Corp (‘The Karin Vatis’) [1988] 2 Lloyds
Rep 330
Kirchner v Venus (1859) 12 Moo PC 361
Kodros Shipping Corpn v Empresa Cubana de Fletes (No 2) (The Evia (No 2)) [1983] 1 AC 736; [1982]
Lloyd's Rep 307
L Schuler AG v Wickham Machine Tools Ltd [1974] AC 235
L&M Concrete Specialist Pte Ltd v United Eng Contractors Pte Ltd [2000] 2 SLR(R) 852
Larsen Oil and Gas Pte Ltd v Petropod Ltd [2011] 3 SLR 414
Leeds Shipping Co Ltd v Societe Francaise Bunge (The Eastern City) [1958] 2 Lloyd’s Rep 127
MacAndrew v Chapel (1866) LR 1 CP 643
Maldives Airport Co Ltd v GMR Male International Airport Pte Ltd [2013] 2 SLR 449
Man Financial (S) Pte Ltd v Wong Bark Chuan David [2008] 1 SLR (R) 663
Metall Market 000 v Vitorio Shipping Co Ltd (‘the Lehmann Timber’) [2013] 2 Lloyds Rep 541
National Navigation Co v Endesa Generacion SA (The Wadi Sudr) [2009] EWHC 196 (Comm).
NCC International AB v Alliance Concrete Singapore Pte Ltd [2008] SGCA 5
NCC International AB v Alliance Concrete Singapore Pte Ltd [2008] SLR 5563
Ocean Projects Inc v Ultratech Pte Ltd [1994] 2 SLR (R) 245
P.T. Tri-M.G. Intra Asia Airlines (Indonesia) v. Norse Air Charter Limited (Mauritius) [2009] SGHC 13
Pacific Molasses & United Molasses Trading Co v Entre Rios Compania Naviera (The San Nicolas) [1976]
1 Lloyd’s Rep. 8
Palace Shipping Co Ltd v Gans Steamship Line [1916] 1 KB 138
Photo Production Ltd v Securicor Transport Ltd [1980] 1 Lloyds Rep 545; [1980] AC 827
Pirelli Cables v United Thai [2000] 1 Lloyd’s Rep 663
Porteus v Watney (1878) 3 Q.B.D 534
Prudential Assurances Co Ltd v Ayres [2008] EWCA Civ 52
PT ASuransi jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR(R) 597
PT Prima International Development v Kempinski Hotels SA [2012] 4 SLR 98
RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd [2007] 4 SLR (R) 413
Re Beloff Michael Jacob QC [2014] SLR 424
Reinante Transoceanic Navegacion SA v President of India (The Apiliotis) [1985] 1 Lloyd’s Rep 255
Ross T Smyth & Co v T D Bailey, Son & Co [1940] 3 ALL ER 60
Rudhra Minerals Pte Ltd v MRI Trading Pte Ltd (formerly known as CWT Integrated Services Pte Ltd)
[2013] 4 SLR 1023
San International Pte Ltd v Keppel Engineering Pte Ltd [1998] 3 SLR(R) 447
Sato Kogyo (S) Pte Ltd [2014] 3 SLR 857
Serraino v Campbell [1891] 1 Q.B. 283
Sewell v Burdick (1884) 10 App.Cas. 74
Singapore Press Holdings Ltd v Brown Noel Trading Ptd Ltd [1994] 3 SLR(R) 114
SK Shipping (S) Pte Ltd v Petroexport Ltd (‘The Pro Victor’) [2010] 2 Lloyds Rep 158
SK Shipping (S) Pte Ltd v Petroexport Ltd [2009] EWHC 2974 (Comm)
Sports Connection Pte Ltd v Deuter Sports GmbH [2009] 3 SLR (R) 883
vi
Star-Trans Far East Pte ltd v Norske- Tech Ltd [1996] 2 SLR(R) 196
Stella Jones v Hawknet [2002] F.C.A. 315
Sui Southern Gas Co Ltd v Habibullah Coastal Power Co (Pte) Ltd [2010] 3 SLR 1
Suisse Atlantique Société d’Armement SA v NV Rotterdamsche Kolen Centrale [1967] 1 AC 361
Sulamerica Cia Nacional De Seguros S.A. & Ors v Enesa Engenharia SA & Ors [2012] EWCA Civ 638
Taddy & Co v Sterious & Co [1904] 1 Ch 354
Tagart, Beaton & Co v James Fisher & Sons [1903] 1 KB 391
Tan Soo Leng David v Lim Thian Chai Charles [1998] 1 SLR(R) 880
The ‘Epsilon Rosa’ [2002] 2 Lloyd’s Rep 81
The “Channel Ranger” [2015] 1 Lloyd’s Rep 256
The “Star Quest” and other matters [2016] SGHC 1304
The Annefield [1971] 168
The Athenian Zoe (No 2) [1985] 1 HKC 367
The Chrysovalandou Dyo [1981] 1 Lloyd’s Rep 159
The Lucille [1984] 1 Lloyd’s Rep 244
The Mary Lou [1981] 2 Lloyd’s Rep 272
The Merak [1965] 223
The Mihalio Xilas [1978] 2 Lloyd’s Rep 186
The Myrto [1977] 2 Lloyd's Rep 243
The Phonizen [1966] 1 Lloyd’s Rep. 150
The Rainbow Spring [2002] SGHC 255
The Saga Cob [1991] 2 Lloyd’s Rep 398
The SLS Everest [1981] 2 Lloyd’s Rep 389
The Starsin [2003] 1 Lloyd’s Rep 571
The STX Mumbai and Another Matter [2015] 5 SLR 1
The Varenna [1984] QB 599
Thomas v Portsea [1912] A.C. 1 HL
Tjong Very Sumito v Antig Investments [2009] 4 SLR(R) 732
Tradigrain SA v King Diamond Marine Ltd (The Spiros C)
Turner v Haji Goolam [1904] AC 826
Universal Cargo Carriers Corp v Citati [1957] 2 Lloyds Rep 72
Vitol SA v Norelf Ltd [1996] AC 800
Western Bulk Shipowning v Carbofer Maritime Trading (The Western Moscow) [2012] EWHC 1224
STATUTES AND CONVENTIONS
International Arbitration Act (Cap 143A, 2002 Rev Ed)
UNCITRAL Model Law on International Commercial Arbitration
Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958)
BOOKS
Andrew Phang and Goh Yihan, Contract Law in Singapore, Kluwer Law International, 2012.
Andrew Phang, Contract Law in Singapore (Academy Publishing, 2012)
Beale, HG, Chitty on Contracts (Sweet and Maxwell, 32nd ed, 2012)
David Joseph and Lim Wei Lee, Singapore International Arbitration: Law and practice (LexisNexis, 2014
Emmanuel Gaillard and John Savage (eds), Fouchard Gaillard Goldman on International Commercial
Arbitration, (Kluwer Law International, 1999)
Gary Born, International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014)
J W Carter, Carters Breach of Contract (Hart Publishing, 2012)
vii
John F Wilson, Carriage of Goods by Sea, Pearson Education 2001 4th ed.
Julian Lew et al., Comparative International Commercial Arbitration (Kluwer Law International, 2003)
Julien Cook et al, Voyage Charters (Informer Law, 3rd ed, 2007)
Lord Collins of Mapesbury et al (eds), Dicey, Morris & Collins on the Conflict of Laws (Sweet & Maxwell,
15th ed, 2016)
Nigel Blackaby, Constantine Partasides et al, Redfern and Hunter on International Arbitration (Oxford
University Press, 6th ed, 2015)
Scrutton on Charterparties, (18th ed. (1974))
Simon Boughen, Shipping Law (Rutledge, 2015).
Sir Bernard Edar et al., Scrutton on Charterparties and Bills of Lading, (Thompson Reuters (professional
UK Ltd), 2015)
Sir Bernard Eder et al, Scrutton on Charterparties and Bills of Lading (Thomson Reuters (Professional UK
Ltd), 24th ed, 2015)
Treitel, Carver on Bills of Lading
JOURNAL ARTICLES
D. Rhidian Thomas, ‘Admirality Sales Pendente Lite’ (1998) 17 Civil Justice Quarterly 409
Rhidian Thomas, ‘The Safe Port Promise of Charterers from the Perspective of the English Common Law’
(2006) 18 Singapore Academy of Law Journal 597
OTHER AUTHORITIES
Introductory Recitals to UN General Assembly Resolution 40/72 (1985).
Oxford English Dictionary
Sandra Lielbarde, The Incorporation of a Charterparty Arbitration Clause in the Bill Of Lading: Binding
Effect of Contract Without Consent (Masters Thesis, Lund University, 2010)
SCMA Rules 3rd Edition (October 2015).
Singapore Parliamentary Debates, Official Report (31 October 1994) vol 63, col 627 (Assoc Prof Ho Peng
Kee, Parliamentary Secretary to the Minister for Law)
UNICITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (New York, 1958) 2016 Ed, UN Doc (September 2016)
UNICITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (New York, 1958) 2016 Ed, UN Doc (September 2016)
1
STATEMENT OF MATERIAL FACTS
THE TIME CHARTERPARTY
1. On 15 February 2016, Furnace Trading Pte Ltd (‘CLAIMANT’) contracted with Imlam Consignorist
GmbH (‘the Shipowner’) to hire the M.V. Tardy Tessa (‘the Vessel’) for a period of two (2) years
pursuant to a time charterparty (‘the Time Charterparty’). The Time Charterparty included a clause
granting CLAIMANT the liberty to sub-let the Vessel.
THE VOYAGE CHARTERPARTY
2. On 1 September 2016, a Voyage Charterparty was entered into between CLAIMANT and Inferno
Resources Sdn Bhd (‘RESPONDENT’) for the transport of 80,000 MT MOLOO Australian Steam Coal
(‘the Cargo’) from Newcastle, Australia, to a discharge port to be nominated (‘the Voyage
Charterparty’). The Voyage Charterparty was fixed on an amended BIMCO Standard Coal and Ore
Charterparty as evidenced in an email dated 1 September 2016 (‘the Fixture Recap’).
3. RESPONDENT, in turn, sub-chartered the Vessel to Idoncare Berjaya Utama Pty Ltd (‘the Shipper’)
in accordance with Clause 4 of the Voyage Charterparty.
CLAIMANTS’ NOTICE OF LIEN OVER CARGO
4. In an email dated 20 October 2016, CLAIMANT contacted RESPONDENT regarding its failure to
pay freight and its consistent delay in nominating a legitimate discharge port. RESPONDENT
notified CLAIMANT that they were unable to pay freight on the basis that they had not received
freight from the Shipper. CLAIMANT subsequently exercised its lien over the Cargo for sub-
freight under the Voyage Charterparty. However, RESPONDENT still neglected to nominate a
discharge port.
THE NOTICE OF TERMINATION
5. On 21 October 2016 RESPONDENT nominated Ningbo as the discharge port. RESPONDENT stated that
it was unable to make payment of freight at that time; however, promised to do so after the delivery
and discharge of the Cargo at Ningbo. CLAIMANT sent its notice of termination of the Voyage
Charterparty to RESPONDENT on 22 October 2016.
2
THE ARBITRAL PROCEEDINGS
6. On 25 November 2016, CLAIMANT referred the matter to arbitration in accordance with Clause 29
of the Voyage Charterparty. CLAIMANT contends that RESPONDENT is in breach of the Voyage
Charterparty due to its failure to pay freight and its failure to nominate a legitimate discharge port
on time. CLAIMANT seeks US$771,120.48 in freight, and liberty to sell the Cargo pendente lite.
These proceedings have been consolidated for the Tribunal’s reference.
PART ONE: JURISDICTION
I. THE TRIBUNAL HAS THE POWER TO RULE ON ITS OWN JURISDICTION
1. An arbitral tribunal has the power to rule on its own jurisdiction, due to the kompetenz-kompetenz
doctrine.1 There is no evidence that gives rise to a challenge of the competence of this Tribunal.
II. THE INTERNATIONAL ARBITRATION ACT APPLIES TO THIS ARBITRATION
2. The International Arbitration Act2 (‘IAA’) will apply to arbitrations where, at the conclusion of the
arbitration agreement, at least one of the parties had its place of business in any State other than
Singapore.3 CLAIMANT’S business address is in Singapore; however, RESPONDENT’S business address
is in Malaysia. This is evident from the initial notice of arbitration4 and the terms of the Voyage
Charterparty.5 As such, the IAA will apply to this case.
2. Section 3 of the IAA gives force of law to the UNCITRAL Model Law on International Commercial
Arbitration 1985 (‘the Model Law’). The Model Law was designed to harmonise international
arbitration legislation globally, in order to promote predictability and efficiency in international trade
law.6 It was also drafted so that it could easily be inserted as domestic legislation to all nations that
1 International Arbitration Act (Cap 143A, 2002 Rev Ed) s 3; Art 16 UNCITRAL Model Law on International Commercial
Arbitration GA Res 2205 (XXI), UN GAOR, 40th sess, 112th plen mtg, UN Doc A/40/17 (21 June 1985); r 20 (a) SCMA
Rules 3rd Edition (October 2015). 2 (Cap 143A, 2002 Rev Ed) 3 International Arbitration Act (Cap 143a, Rev ed 2002) Singapore, s 5(2)(a). 4 Moot problem, 82. 5 Ibid, 20.. 6 ‘Introductory Recitals’ GA Res 40/72 (XXI), UN GAOR, 40th sess, 112th plen mtg, UN Doc A/40/17 (21 June 1985).
3
have ratified the convention.7
3. Singapore has only given legislative effect to Article 17J of the 2006 Model Law Amendments,8
through section 12A of the IAA.9 As such, bar section 12A, the scope of the IAA is limited to the
provisions of the Model Law that were in effect as of 1985.
III. SINGAPOREAN LAW GOVERNS THE ARBITRATION AGREEMENT
3. The law applicable to an arbitration agreement (the lex arbitri) may be determined by express reference
within an arbitration agreement itself.10
4. CLAIMANT submits that Clause 26 of the Coal Orevoy, titled ‘DISPUTE RESOLUTION’ as amended
by Clause 29 of the Fixture Recap (‘the Arbitration Agreement’), is a written term of the Voyage
Charterparty and represents an agreement to arbitrate between CLAIMANT and RESPONDENT.11
5. The Arbitration Agreement provides for ‘Singapore law and arbitration’,12 and CLAIMANT submits that
this constitutes an express nomination of Singaporean law as the lex arbitri.
6. Further, the Arbitration Agreement provides for arbitration in accordance with the Singapore Chamber
of Maritime Arbitration Rules (‘SCMA Rules’).13
7. In any event, CLAIMANT submits that Singapore law is the also the law with the closest connection to
the dispute, and should be the lex arbitri for that reason.
IV. THE ARBITRATION AGREEMENT IS VALID
8. The IAA governs international arbitration agreements that are subject to Singaporean law.14 Under the
7 Ibid. 8 UNCITRAL Model law on International Commercial Arbitratioin 1985 with Amendments as Adopted in 2006. 9 In relation to court-ordered interim measures. 10 Sulamerica Cia Nacional De Seguros S.A. & Ors v Enesa Engenharia SA & Ors [2012] EWCA Civ 638, [25](Moore-
Bick LJ); Indian Company v Pakistani Bank, Award, ICC Case No. 1512, 1971 in Yearbook 1976, Vol. I,
128; Art 35(1) UNCITRAL Model Law on International Commercial Arbitration; Nigel Blackaby, Constantine Partasides
et al, Redfern and Hunter on International Arbitration (Oxford University Press, 6th ed, 2015) 186-187; Lord Collins of
Mapesbury et al (eds), Dicey, Morris & Collins on the Conflict of Laws (Sweet & Maxwell, 15th ed, 2016) 836, [16-017]. 11 Moot problem, 23. 12 Ibid 23. 13 Moot problem, 23; SCMA Rules 3rd Edition, r 22; Gary Born, International Commercial Arbitration (Kluwer Law
International, 2nd ed, 2014) 2427; Julian Lew et al., Comparative International Commercial Arbitration (Kluwer Law
International, 2003) 586-587 [23-8]-[23-9]. 14 International Arbitration Act (Cap 143A, 2002 Rev Ed).
4
IAA, once an arbitration agreement is shown to exist, it is presumed to be valid unless proven
otherwise.15
9. CLAIMANT submits that the Arbitration Agreement is found in Clause 29 of the Fixture Recap, which
is a written term of the Voyage Charterparty. Therefore, it should be presumed to be valid.
10. CLAIMANT submits that there are no issues that should affect this presumption including, but not limited
to A) the Fixture Recap validly modified the Coal Orevoy; B) an arbitration agreement may be in
electronic form and; C) that a signature is not necessary.
A. The Fixture Recap Validly Modified the Coal Orevoy
11. It is common practice in international trade for parties to use standard form agreements produced by
professional bodies.16 These standard form agreements may then be modified or extended by agreement
of the parties. When a standard form agreement is modified by parties, greater weight should attach to
the terms that the parties have specifically chosen to include.17
12. CLAIMANT submits that the Fixture Recap found in the email sent from All’s Good Brokerage Pte Ltd
(‘the Broker’) to the CLAIMANT on 1 September 2016 validly modified the Coal Orevoy, including its
dispute resolution provision found in Clause 26.
13. Further, the Fixture Recap is referred to as being ‘clean’.18 In chartering ‘fixed clean’ is an expression
used to indicate a concluded fixture.19 In this email, the Broker also asked for confirmation of the final
nature of the Fixture Recap,20 which CLAIMANT then confirmed.21
14. Therefore, the valid dispute resolution clause will be Clause 26 of the Core Orevoy as modified by
Clause 29 of the Fixture Recap.
15 International Arbitration Act (Cap 143A, 2002 Rev Ed) s 6(2); FirstLink Investments Corp Ltd v. GT Payment Pte Ltd
and others [2014] SGHCR 12, [7] (Shaun Leong Li Shiong AR). 16 UNICITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards
(New York, 1958) 2016 Ed, UN Doc (September 2016); Emmanuel Gaillard and John Savage (eds), Fouchard Gaillard
Goldman on International Commercial Arbitration, (Kluwer Law International, 1999) 271 [491]. 17 Homburg Houtimport B.V. v Agrosin Private Ltd and Others (“The Starsin”) [2003] 1 Lloyd’s Rep 571, 577 [11] (Lord
Bingham); Indian Oil Corporation v. Vanol Inc [1992] 2 Lloyd's Rep 563 (Webster J) referred to in P.T. Tri-M.G. Intra
Asia Airlines (Indonesia) v. Norse Air Charter Limited (Mauritius) [2009] SGHC 13, [30] (Darius Chan AR).
18 The Rainbow Spring [2002] SGHC 255, [24] (Ang JC).
19 Ibid.
20 Moot problem, 20. 21 Ibid 20.
5
B. An Agreement May Be in Electronic Form
15. Under the IAA arbitration agreements in the form of electronic communication will satisfy the writing
requirement.22 Email is considered to be a form of ‘Electronic communication’.23
16. CLAIMANT submits that the Arbitration Agreement was communicated by email from All’s Good the
Broker as agents for the RESPONDENT on 1 September 2016.24 Therefore, the Arbitration agreement
satisfies the writing requirement.
C. A Signature is Not Necessary
17. Though an arbitration agreement must be in written form in order to be considered valid,25 there is no
formal requirement for the agreement to be signed by both parties.26 Provided that the terms of the
agreement are readily ascertainable, the agreement will be enforceable.27 In particular, there is no need
for a charterparty to be reduced to a single written document and signed to be valid.28
18. CLAIMANT submits that the terms of the arbitration agreement found in Clause 29 of the Coal Orevoy
are readily ascertainable as they clearly specify the location, the governing law and the procedural rules
of the arbitration.29 Therefore, despite the lack of signature on the Fixture Recap, the Arbitration
Agreement remains valid.
V. THIS TRIBUNAL HAS THE POWER TO MAKE INTERIM ORDERS FOR THE SALE OF PROPERTY
22 International Arbitration Act (Cap 143A, 2002 Rev Ed) s 2A(5); Julian Lew et al, Comparative International
Commercial Arbitration (Kluwer Law International, 2003) 131 [7-10]. 23 Ibid s 2A(10). 24 Moot problem, 20. 25 International Arbitration Act (Cap 143A, 2002 Rev Ed) s 2A(3); Art 2 Convention on the Recognition and Enforcement
of Foreign Arbitral Awards (New York, 1958); Julian Lew et al, Comparative International Commercial Arbitration
(Kluwer Law International, 2003) 130 [7-27]. 26 Lidgett v. Williams (1845) 4 Hare 456 cited by The “Epsilon Rosa” [2002] 2 Lloyd’s Rep 81, 86 [27] (Steel J); Sandra
Lielbarde, The Incorporation of a Charterparty Arbitration Clause in the Bill Of Lading: Binding Effect of Contract
Without Consent (Masters Thesis, Lund University, 2010) 18; Julian Lew et al, Comparative International Commercial
Arbitration (Kluwer Law International, 2003) 138 [7-7]. 27 Freight Connect (S) Pte Ltd v Paragon Shipping Pte Ltd [2015] 5 SLR 178, 188 [22] (Menon CJ , Chao JA and Chan
SJ); Sandra Lielbarde, The Incorporation of a Charterparty Arbitration Clause in the Bill Of Lading: Binding Effect of
Contract Without Consent (Masters Thesis, Lund University, 2010) 18. 28 Freight Connect (S) Pte Ltd v Paragon Shipping Pte Ltd [2015] 5 SLR 178, 188 [22] (Menon CJ , Chao JA and Chan
SJ); Lidgett v. Williams (1845) 4 Hare 456, cited with approval in The ‘Epsilon Rosa’ [2002] 2 Lloyd’s Rep 81, [27]
(Steel J); Gary Born, International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014) 801. 29 Moot problem, 25.
6
19. CLAIMANT argues that the Tribunal has the power to order sale of the Cargo because (A) the IAA may
grant the sale of cargo in relation to subject matter of the dispute and (B) the Cargo is subject matter
of the dispute.
20. Under section 12(1)(d) of the IAA, an arbitral tribunal is granted power to order the preservation,
interim custody or sale of any property which is or forms part of the subject matter of the dispute.30
21. The arbitration agreement is merely an agreement between the parties to submit their disputes to
arbitration.31
A. Scope of The Dispute Is Determined by Reference to the Submission to Arbitration
22. The arbitration agreement is merely an agreement between the parties to submit their disputes to
arbitration.32
23. The arbitration agreement is merely an agreement between the parties to submit their disputes to
arbitration.33 The scope of the subject matter of the dispute is determined by reference to the parties’
submission to arbitration,34which is comprised of the notice of arbitration and the response to it.35
B. The Cargo is Subject Matter of the Dispute
4. The scope of the subject matter of the dispute is determined by reference to the parties’ submission to
arbitration,36 which is comprised of the notice of arbitration and the response to it.37
5. Determining the scope of the subject matter is designed to ensure the other party is able to raise a
reasonable defence against any claims raised.38 In determining whether or not the tribunal would
exceed the scope of its power by granting the pendente lite sale of the cargo, the court must determine
30 UNCITRAL Model Law (1985), Art 17. 31 PT Prima International Development v Kempinski Hotels SA [2012] 4 SLR 98 at [32], citing PT Asuransi jasa Indonesia
(Persero) v Dexia Bank SA [2007] 1 SLR(R) 597 [37]. 32 PT Prima International Development v Kempinski Hotels SA [2012] 4 SLR 98 at [32], citing PT Asuransi jasa Indonesia
(Persero) v Dexia Bank SA [2007] 1 SLR(R) 597 [37]. 33 PT Prima International Development v Kempinski Hotels SA [2012] 4 SLR 98 at [32], citing PT ASuransi jasa
Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR(R) 597 at [37]. 34 PT Prima International Development v Kempinski at [32]. 35 PT Prima International Development v Kempinski at [39]. 36 PT Prima International Development v Kempinski SA [2012] 4 SLR 98 [32]. 37 PT Prima International Development v Kempinski SA [2012] 4 SLR 98 [39]. 38 PT ASuransi jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR(R) 597 [37].
7
the matters which were explicitly stated within the scope of submission to the arbitral tribunal.39
(i) The Issues Giving Rise to the Sale of the Cargo were Directly Linked to the Primary
Dispute
6. One of the fundamental purposes of the IAA is to encourage international arbitration in Singapore, by
implementing a predictable legislative framework in which parties’ can efficiently resolve their
disputes.40 As such, courts and tribunals should interpret the submission to arbitration generously when
defining the scope of the dispute.41 A narrow interpretation would unduly fetter the tribunal’s discretion
in ordering interim measures, and thus undermine one of the primary goals of the IAA.42
7. In the case of Bocotra Construction Pte Ltd v AG (‘Bocotra’),43 the court adopted a narrow
interpretation of the submission to arbitration. Bocotra involved a contractual dispute, whereby Bocotra
were contracted to complete works for the Singapore Public Works Department (‘SPWD’), and
Bocotra furnished a performance guarantee for the works. Due to administration errors by SPWD,
works were delayed, and Bocotra commenced arbitration against SPWD for damages for delay. SPWD
gave notice to Bocotra calling on the performance guarantee, however the tribunal granted an interim
measure restraining SPWD from calling on the performance guarantee. Subsequently, the Court of
Appeal held that the disputes relating to the proper construction of the guarantee were peripheral to the
primary reference to arbitration, and refused to enforce the injunction on the basis the arbitrator had
exceeded the scope of their power provided by the terms of the submission to arbitration.44
8. The circumstances of this case can easily be distinguished from Bocotra. CLAIMANT makes explicit
reference to the right to exercise a lien, and the issues giving rise to a claim for freight owing under the
section ‘BRIEF STATEMENT OF THE NATURE AND CIRCUMSTANCES OF THE DISPUTE.’45
39 Sui Southern Gas Co Ltd v Habibullah Coastal Power Co (Pte) Ltd [2010] 3 SLR 1 at [10]-[11] citing PT Asuransi
Jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR(R) 597(Chan Sek Keong CJ) 40 Report of the Sub-Committee on Review of Arbitration Laws 1993. 41 Tjong very Sumito v Antig Investments Pte ltd [2009] 4 SLR(R) 732 (Phang Boon Leong JA); Insigma Technology Co
Ltd v Alstom Technology Ltd [2009] 3 SLR(R) 936 (Phang Boon Leong JA) at [948-950]; Larsen Oil and Gas Pte Ltd v
Petropod Ltd [2011] 3 SLR 414 (Chan Sek Keong CJ). 42 Larsen oil and Gas Pte Ltd v Petropod ltd [2011] 3 SLR 414 at [421-423]. 43 [1995] 2 SLR(R) 282. 44 Bocotra Construction Pte Ltd v AG [1995] 2 SLR(R) 282 at [19] 45 Moot problem, 78.
8
CLAIMANT submits that the CLAIMANT’s right to claim unpaid freight, combined with their right to
exercise a lien, directly give rise to a consideration of whether the Cargo should be sold in order to
recompense CLAIMANT for unpaid freight.
(ii) RESPONDENT was Aware of all Issues
9. In any case, Singaporean courts have held that any fact or dispute arising after the submission to
arbitration, of which all parties are aware, need not be explicitly pleaded.46 CLAIMANT submits that
RESPONDENT had constructive knowledge of all issues contended by CLAIMANT, including the dire
condition of the Cargo and crew aboard of the Vessel. RESPONDENT received several emails from
CLAIMANT stressing the urgency that RESPONDENT declare a discharge port.47 Further, the fact that the
Vessel has been at sea for upwards of 6 months suggest RESPONDENT should have been aware of the
conditions aboard the vessel.
10. CLAIMANT submits that the Cargo is subject matter of the dispute.
VI. IT IS NECESSARY AND JUST FOR THE CARGO TO BE SOLD PENDENTE LITE
A. Necessary
2. In Maldives Airport Co Ltd v GMR Male International Airport Pte Ltd, the Singapore Court of Appeal
found that an interim order granting the sale of an asset would be ‘necessary’ if without the order the
asset sought to be preserved would be lost.48
3. In considering whether an order is necessary, it must be more than ‘desirable’, ‘recommended’ or
‘appropriate’ for the tribunal to make that order.49
4. In the current circumstances the Cargo is sub-bituminous50 and there are clear signs of the Cargo
overheating, with the risk of self-ignition/explosion.51 Undoubtedly, if the Cargo is to ignite its value
46PT Prima International Development v Kempinski Hotels SA [2012] 4 SLR 98 at [32], citing PT Asuransi jasa
Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR(R) 597 [62] (Phang Boon Leong JA) 47 Moot problem, 54, 60, 62. 48 Maldives Airport Co Ltd v GMR Male International Airport Pte Ltd [2013] 2 SLR 449, 465 [44] (Menon CJ, Phang JA
and Woo J); Five Ocean Corporation v Cingler Ship Pte Ltd [2015] SLR 1159, 1180 [60] (Ang J). 49 Gary Born, International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014) 2468. See further, Re Beloff
Michael Jacob QC [2014] SLR 424, 447 [62] (Menon CJ, Chao JA and Phang JA). 50 Moot problem 99. 51 Ibid 37.
9
would be diminished.
5. Furthermore, according to the expert report, the value of coal in the Chinese market has undergone a
steady decline.52 Whilst the Australian market prices have increased, this does not mean that the coal
in question also rose in value.53 Potential buyers are typically informed of the distressed nature of the
Cargo and are likely to bid lower prices which reflect this.54
6. Hence, in light of the circumstances, a sale is ‘necessary’ for the preservation of the Cargo and, the
safety of the crew on board the vessel.
B. Balance of Respective Interests
7. A fair balance of the respective interests is used in deciding whether a sale is necessary.55
8. In undergoing a ‘fair’ balance of the respective interests, the Tribunal is essentially considering whether
the sale is ‘just’.56
(i) CLAIMANT’S Interests
9. In the recent decision of Five Ocean Corporation v Cingler Ship Pte Ltd,57 the Singapore Court of
Appeal ordered a judicial sale of the cargo pursuant to s 12A of the IAA in order to preserve the value
of the cargo on board the vessel in aid of arbitration. There, Ang J found that the factors which indicated
‘urgency and necessity’ justifying a sale included: that the crew had been on board for 4 months and
were falling ill; there was a lack of fresh food, water and medical supplies; and overheating of the cargo
and risk that the coal cargo would self-ignite.58 An analogous situation exists in the present case.
10. In the present case, there is clear evidence that the Cargo is at a high risk of being damaged or lost.59
There is a lack of fresh food, water and medical supplies (in particular insulin supplies of the first
officer).60 Serious hygiene issues.61 Clear signs of the Cargo overheating, with the risk of self-
52 Ibid 100. 53 Ibid 100. 54 Ibid 101-102. 55 Five Ocean Corporation v Cingler Ship Pte Ltd [2015] SLR 1159, 1181 [63] (Ang J). 56 According to the Oxford English Dictionary, ‘fair’ means ‘just’. 57 [2015] SGHC 311; [2015] SLR 1159. 58 Five Ocean Corporation v Cingler Ship Pte Ltd [2015] SLR 1159,1179 [56] (Ang J). 59 Moot problem, 37. 60 Ibid. 61 Ibid.
10
ignition/explosion.62 On masse crew resignations and bad weather conditions in the terms of monsoon,
Force 9 Beaufort Scale winds.63 Further, as of 21 October 2016 additional costs were outstanding,64
and the cargo was losing value.
(ii) Balance of Interests
11. In terms of the interests of RESPONDENT, the ability to pay damages is an important consideration.65
12. In Five Ocean Corporation v Cingler Ship Pte Ltd,66 the court found the balance of convenience
favoured the plaintiff and the pendente lite sale of the cargo aboard the vessel as it was evident the
defendant did not have the ability to pay the damages owed for freight and demurrage.67
13. Here, RESPONDENT expressed that they did not have an ability to pay freight until they were paid by
the Shipper. Furthermore, RESPONDENT stated they would pay freight at the discharge port which
suggests that their ability to pay was linked to the Cargo sale.68
14. When a tribunal is asked to order the sale of property, the tribunal should make a commercially
reasonable decision without going into the inquiry of the merits of the parties’ claims in order to
minimise the resulting loss.69 The intention of the IAA is to preserve the property which forms the
subject matter of the dispute, where they are likely to deteriorate.70 The interim measures established
in s 12(1) of the IAA are remedies which are aimed at ‘assisting in the just and proper conduct of
arbitration, or in the preservation of property which is the subject matter of the arbitration’.71
15. Additionally, the RESPONDENT would not be able to pay freight until such a sale was exercised.
Furthermore, a pendente lite sale would allow the crew of the vessel to return home and receive the
62 Ibid. 63 Ibid. 64 Ibid, 67. 65 Maldives Airports Co Ltd v GMR Male International Airport Pte Ltd [2013] 2 SLR 449 at [63] (Menon CJ) 66 [2015] SGHC 311. 67 Five Ocean Corporation v Cingler Ship Pte Ltd [2015] SLR 1159, 1181, [63] (Ang J). 68 Moot problem, 68. 69 Gary Born, International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014) 2498. 70 Five Ocean Corporation v Cingler Ship Pte Ltd [2015] SGHC 311; [2015] SLR 1159, 1179, [54] (Ang J). 71 NCC International AB v Alliance Concrete Singapore Pte Ltd [2008] SLR 5563, 573 [28] (Phang JA and Rajah JA)
agreeing with Front Carriers Ltd v Atlantic & Orient Shipping Corp [2006] 3 SLR (R) 854, 862 [15] (Ang J).
11
necessary medical supplies, food and water.72
16. CLAIMANT argues that a sale would be in the best interests of all the parties concerned, since any further
delay would result in increased costs which would eat into the sale proceeds of the Cargo.
17. Therefore, the Tribunal should exercise its discretionary power under Section 12 (i)(d) of the IAA and
approve CLAIMANT’s application for the appraisement and sale of the Cargo pendente lite.
PART THREE: LIABILITY IN CONTRACT
I. RESPONDENT BREACHED THE VOYAGE CHARTERPARTY
18. CLAIMANT argues that RESPONDENT is liable for breaching the Voyage Charterparty because: (A)
RESPONDENT failed to pay freight under Clause 19; and (B) RESPONDENT failed to nominate a
legitimate discharge port on time under Clause 16. Further CLAIMANT argues that: (C) the contract was
lawfully terminated as a result of RESPONDENT’s contractual breaches.
A. RESPONDENT Breached Clause 19 of the Voyage Charterparty
19. CLAIMANT argues that RESPONDENT failed to pay freight because: (i) freight was due on 9 October
2016; and (ii) freight was payable by 14 October 2016
(i) The Freight was Due on 9 October 2016
20. Parties to a charterparty may freely determine the time at which freight under the contract becomes
payable. For example, parties may expressly agree that either whole or part of the freight will be
payable prior to the delivery of goods, such as upon the loading of the cargo or signing of the B/L, or
before the discharge operation has commenced.73
21. Clause 19 of the Voyage Charterparty provides that 100% of the freight was to be paid within five
banking days after completion of loading and signing/releasing of the B/L and receipt of CLAIMANT’s
72 See Glencore Grain BV v The Ship Lancelot V [2015] NZHC 2052, [64] (Wylie J) whereby the New Zealand High
Court found that a ‘prompt sale would enable the remaining crew to return home, and bring an end to their currently
uncertain positions’. 73 Karin Vatis Vagres Compania Maritime SA v Nissho-Iwai America Corp (‘The Karin Vatis’) [1988] 2 Lloyds Rep 330,
332 (Lloyd J); Colonial Bank v European Grain and Shipping Co Ltd (‘The Dominique’) [1989] 1 Lloyds Rep 431, 436
(Lord Brandon); Sir Bernard Edar et al., Scrutton on Charterparties and Bills of Lading, (Thompson Reuters (professional
UK Ltd), 2015) 406, [16.005].
12
freight invoice, but in any case before breaking bulk.74
22. The phrase ‘before breaking bulk’ is defined as the point in time before discharge operations have
commenced.75
23. The loading commenced on 2 October 201676 and was then completed on 4 October 2016.77 The B/L
were also signed/released on 4 October 2016.78
24. CLAIMANT subsequently issued an invoice to RESPONDENT for the freight, five (5) banking days after
4 October 2016, on 9 October 2016.79
25. Accordingly, this Tribunal should find that the freight was due on 9 October 2016.
(ii) The Freight was Payable by 14 October 2016
26. CLAIMANT argues that due to the operation of clause 19 of the Charterparty, freight was payable, not
only before the discharge operation had commenced, but at a specific point in time agreed to by the
parties, that is, on 14 October 2016.80 RESPONDENT did not pay freight at this time.81 There was also
no indication by RESPONDENT that payment would be made forthwith.82
27. Accordingly, RESPONDENT breached Clause 19 of the Voyage Charterparty and CLAIMANT is entitled
to damages.
B. Respondent Breached Clause 16 of the Charterparty
28. CLAIMANT argues that RESPONDENT breached Clause 16 of the Voyage Charterparty because: (i) it did
not nominate a discharge port within the specified time and, in any event, (ii) Busan was not a valid
port nomination; and, (iii) Busan was not a safe port for the vessel to discharge.
(i) The RESPONDENT Did Not Nominate a Discharge Port Within the Specified Time
29. Clause 16 of the Charterparty imposes an obligation on RESPONDENT to nominate a discharge port
74 Moot problem, 22.
75 D’amico Shipping Italia Spa v Endalfa DMCC & ANOR [2016] EWC 2223 (Comm) where the court noted that there
is a clear temporal difference between ‘before breaking bulk’ and ‘on breaking bulk.’ 76 Moot problem, 50. 77 Ibid 47. 78 Ibid 41. 79 Ibid 49. 80 Ibid 54. 81 Ibid. 82 Ibid 56, 62.
13
‘when the vessel passes Singapore for bunkering’. This is equivalent to a charterer’s common law duty
to nominate a discharge port.83
30. Despite the fact that Clause 16 does not specify a date by which nomination is due, a date can be readily
calculated from the facts of the case. As per the Vessel’s itinerary sent by CLAIMANT, the vessel arrived
at Singapore at 15:15 LT on 10 October 2016.84 The estimated time of departure (‘the ETD’) was 00:02
LT 11 October 2016.85 The CLAIMANT submits that the time between arrival and departure should be
considered the time of ‘pass[ing] Singapore’ for the purposes of Clause 16. Nomination of a port was
required, therefore, prior to the Vessel’s departure on 11 October 2016.
31. RESPONDENT failed to nominate a discharge port by this time, thereby breaching Clause 16.
(ii) In any event, Busan Was Not a Valid Port Nomination
32. Clause 16 of the Voyage Charterparty provided a list of ports in China to which the Cargo may have
been delivered. Clause 16 provides that the RESPONDENT may nominate any of the listed ports.86
33. On 16 October 2016, after failing to nominate a legitimate port within the time required, RESPONDENT
nominated Busan as the preferred discharge port.87 According to RESPONDENT this was due to
‘congestion at the Chinese ports’.88 However, Busan was not one of the discharge ports listed under
clause 16.89 The discharge ports listed in Clause 16 are all located in China,90 whereas Busan is located
in South Korea.
34. As such, the RESPONDENT’s nomination of Busan was invalid.
(iii) Further, Busan posed a War Risk to the Vessel
35. On 17 October 2016, CLAIMANT again rejected the nomination of Busan as discharge port due to the
zombie threat occurring at the time of nomination. Clamant submits that this threat constituted a war
83 ‘The Kostas K’ [1985] 1 Lloyd’s Rep 231; Sir Edar et al, [13.008], above at 77. 84 Moot problem, 50. 85 Ibid. 86 Ibid 22. 87 Ibid 57. 88 Ibid. 89 Ibid 21. 90 Ibid.
14
risk under the Voyage Charterparty.91
36. According to Clause 18 of the Voyage Charterparty, the master and or the owners of the cargo may
refuse to perform their obligations under the charterparty if ‘in the reasonable judgement of the Master
and/or the Owners, performance of the Charter Party, or any part of it, may expose, or is likely to
expose, the Vessel, her cargo, crew or other persons on board the Vessel to War Risks’.92
37. The term ‘owner’ in Clause 18 of the Voyage Charterparty is broadly defined to include the disponent
owner of the vessel.93 In the present case, CLAIMANT is the disponent owner of the Vessel94 and,
therefore, may rely on Clause 18.
38. A ‘war risk’ is defined as including any ‘civil commotion…by any…body’.95 The CLAIMANT submits
that the zombie threat to Busan constituted a civil commotion by a particular body for the purposes of
Clause 18.
39. Although these events were merely rumours at the time CLAIMANT rejected RESPONDENT’S port
nomination,96 it was still a ‘reasonable judgement’ of the CLAIMANT that discharge at Busan may
expose the Vessel to a war risk.97
40. Accordingly, this Tribunal should find that Busan was a War Risk.
C. CLAIMANT was Entitled to Treat the Contract as Discharged
41. In light of RESPONDENT’S breaches as outlined above, CLAIMANT elected to terminate the Voyage
Charterparty and claim sub-freight and damages for detention vide its notice of termination dated 22
October 2016. Under Singapore law, Courts have recognised that an innocent party does not have an
automatic right to terminate a contract where there has been a breach.98 The Singapore Court of Appeal
91 Ibid 30. 92 Ibid 30. 93 Ibid. 94 Ibid, 21. 95 Ibid 30. 96 Ibid 58. 97 Ibid 30. 98 RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd [2007] 4 SLR (R) 413, 444 (Phang JA); Andrew Phang, Contract Law
in Singapore (Academy Publishing, 2012) 1173 [17.007].
15
in RDC Concrete99 set out the four situations that will entitle an innocent party to elect to treat a contract
as discharged on the grounds of the defaulting parties breach.100
42. CLAIMANT argues that its common law right of termination was validly exercised in the present case
because: (i) the RESPONDENT’S conduct amounted to a repudiation of the contract; (ii) the
RESPONDENT’S conduct amounted to a renunciation; and (iii) the RESPONDENT’S REPUDIATION and/or
renunciation was accepted by CLAIMANT on 22 October 2016.
(i) Respondent’s Conduct Amounted to a Repudiation of the Contract
43. CLAIMANT argues that RESPONDENT’S inability to perform its contractual obligations amounted to a
repudiatory breach of the Charterparty and therefore entitled them to accept that repudiatory breach as
termination of the contract on 22 October 2016 and claim damages.
44. A breach of a condition or a serious breach of an intermediate term goes to the root of the contract and
entitles the innocent party to elect to treat the contract as discharged.101 This well-known principle of
contract law is exemplified in Situation 3(B) of RDC Concrete (which embodies what is commonly
referred to as the ‘Hong Kong Fir approach’).102
45. As stated by Justice Phang in RDC Concrete, unlike situation 3(A) the main focus here is not on the
nature of the term itself - whether it’s a condition or a warranty - but on the actual consequences and
events resulting from the breach.103
46. It was in the case of Hong Kong Fir Shipping Co Ltd v Kawasaki Kisan Kaisha Co,104 where Diplock
99 RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd [2007] 4 SLR (R) 413. 100 RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd [2007] 4 SLR 413, 445, 446 (Phang JA); Approved in Man Financial
(S) Pte Ltd v Wong Bark Chuan David [2008] 1 SLR (R) 663, 720 (Phang JA); see also, Alliance Concrete Singapore Pte
Ltd v Comfort Resources Pte Ltd [2009] 4 SLR (R) 602, 613; Sports Connection Pte Ltd v Deuter Sports GmbH [2009] 3
SLR (R) 883, 898, 899; Alliance Concrete Singapore Pte Ltd v Sato Kogyo (S) Pte Ltd [2014] SGCA 35; The STX Mumbai
and Another Matter [2015] 5 SLR 1, 32 (Andrew Phang JA); Andrew Phang, Contract Law in Singapore (Academy
Publishing, 2012). 101 RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd [2007] 4 SLR 413 [105]; Hong Kong Fir Shipping Co Ltd v Kawasaki
Kisan Kaisha Ltd 2 QB 26, 66 (Diplock LJ); Bunge Corporation New York v Tradax export SA, Panama [1989] 1 WLR
711 (Lord Wilberforce); Decro-Wall International SA v Practitioners in Marketing Ltd [1971] 1 WLR 361, 380 (Buckley
LJ); Suisse Atlantique Société d’Armement SA v NV Rotterdamsche Kolen Centrale [1967] 1 AC 361 (Lord Upjohn); see
also H G Beale, Chitty on Contracts (Sweet & Maxwell, Vol 1, 2012) 917 [12-019]-[12-020]. 102 RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd [2007] 4 SLR 413, 447 (Phang J). 103 RDC Concrete at [107]; Hong Kong Fir Shipping Co Ltd v Kawasaki Kisan Kaisha Co [1962] 2 QB 26. 104 [1962] 2 QB 26 (Diplock LJ).
16
LJ laid down the principle for determining what will amount to a fundamental breach giving the
innocent party the right to terminate. There, he said that:
‘… [n]on-compliance with a contractual term will lead to a fundamental breach if it deprives the
innocent party of substantially the whole benefit of the contract which it was intended that he should
obtain from the contract, which depends on the circumstances that occurred as a result of the breach’.105
47. Thus, as observed by the Court in the Singapore decision of Sports Connection106, the analytical
approach in determining whether a fundamental breach occurred comprises two steps. First, identify
what constituted the benefit the parties intended the innocent party to derive. Second, examine the
actual consequences of the breach that occurred at the time the innocent party terminated the
contract.107
48. In the present case, the contract was for the delivery of the Cargo from Newcastle to a nominated
discharge port in China in exchange for the payment of freight.108 The parties obligations here reflect
what is the main purpose of a Voyage Charterparty in the shipping industry, that is, to transport the
cargo in exchange for the payment of freight.109
49. CLAIMANT fulfilled its obligations under the contract insofar that it supplied the vessel and completed
loading as promised. All that remained was for the RESPONDENT to nominate a legitimate discharge
port and pay freight in accordance with the terms of the Voyage Charterparty.110 CLAIMANT submits
that had RESPONDENT done so the contract would have continued on foot.
50. CLAIMANT made repeated requests for freight to be paid,111 and made plain its intention to terminate
the Voyage Charterparty if RESPONDENT failed to remit freight no later than 20 October 2016.112
105 Hong Kong Fir Shipping [1962] 2 QB 26, 66 (Diplock LJ) (Citing Glaholm v Hays (1841) 2 Man & G 257; Bradford
v Williams (1872) LR 7 Ex 259, 261 (Martin B). 106 Sports Connection Pte Ltd v Deuter Sports GmbH [2009] 3 SLR (R) 883 107 Sports Connection, 916 Phang JA); see Also, Aero-Gate Pte Ltd v Engine Marine Engineering Pte Ltd [2013] 4 SLR
409, 430 (Coomaraswamy J). 108 Moot problem, 21. 109 MacAndrew v Chapel (1866) LR 1 CP 643, 648 (Willes J); Metall Market 000 v Vitorio Shipping Co Ltd (‘the Lehmann
Timber’) [2013] 2 Lloyds Rep 541, 571 (Sir Rix LJ); Julien Cook et al, Voyage Charters (Informer Law, 3rd ed, 2007)
[1.1]; Simon Boughen, Shipping Law (Rutledge, 2015). 110 Moot problem, 21. 111 Ibid, 51, 54, 56, 62. 112 Ibid 63, 64.
17
RESPONDENT knew that CLAIMANT would elect to bring the contract to an end if it did not comply with
CLAIMANT’S demand.113 Instead of paying freight on 20 October 2016 and avoiding a termination of
the contract, RESPONDENT chose to ignore this demand and insisted that freight be payable after the
delivery of the Cargo at the discharge port.114 This request was clearly not within the contemplation of
Clause 19 of the Voyage Charterparty.115
51. CLAIMANT argues that a fundamental breach had occurred that went to the root of the contract and
denied CLAIMANT of the substantial benefit to which the parties intended that it would receive. This is
for two reasons. First, RESPONDENT’S breach of the contract prevented CLAIMANT from receiving the
payment of freight and thereby making a profit under the Voyage Charterparty – the very thing
contracted for.116 Second, it jeopardised any opportunity for CLAIMANT to re-charter the Vessel in a
timely manner, since the Vessel was hired from the shipowner for a period of two (2) years pursuant
to Clause 1 of the Time Charterparty.117
52. CLAIMANT submits that it was no better off on 22 October 2016 than when it entered into the Voyage
Charterparty with RESPONDENT on 1 September 2016.118 Further, CLAIMANT submits that not only was
it denied of a substantial benefit of the contract, but the Tribunal should find that it was in fact deprived
of all of the benefit that it expected to receive under the contract.
53. RESPONDENT’S failure to pay freight as and when it fell due;119 its failure to comply with CLAIMANT’S
email on 18 October 2016;and its proven inability to pay before breaking bulk,120 individually or
collectively is sufficient to amount to a repudiation of the Voyage Charterparty.
54. Accordingly, RESPONDENT’S breaches went to the root of the contract and CLAIMANT was entitled to
elect to treat the contract as discharged.121 As a result, the Tribunal should therefore find CLAIMANT’S
113 Ibid. 114 Ibid, 67, 68. 115 Ibid 22. 116 Ibid 22. 117 Ibid 2. 118 Sports Connection, 916 (Phang JA). 119 Moot problem 22, 54. 120 Ibid 68. 121 RDC Concrete, 444 (Andrew Phang JA).
18
common law right of termination was validly exercised on 22 October 2016 when the notice of
termination was sent to RESPONDENT.122
(ii) Respondent’s conduct amounted to a renunciation
55. An innocent party may elect to treat a contract as discharged ‘where one party, by words or conduct,
simply renounces the contract in as much as it conveys to the other party that it will not perform its
contractual obligations at all’.123 Short of any express refusal to perform, the issue of whether one party
has renounced the contract is determined objectively in light of the surrounding circumstances.124
56. RESPONDENT’S email on 21 October 2016125 may not amount to an express (or absolute) refusal to
perform the Voyage Charterparty. However, it was an indication that RESPONDENT would not be able
to discharge their obligations under the contract; or that it would be unable to perform the Charterparty
in some material respect – namely, paying freight before breaking bulk.
57. Further, the fact that no date or time for when such payment would be made was specified in the email
on 21 October 2016, save that it was to take place after the cargo was delivered,126 is an expression of
doubt as to their will or ability to perform the chartered voyage. This may reasonably be inferred to be
an indication of their absolute inability to pay freight to CLAIMANT and perform the Voyage
Charterparty. In other words, RESPONDENT’S conduct created a semblance of refusal to pay that
amounted to a renunciation of the contract.
58. Throughout the course of the contract RESPONDENT had demonstrated a propensity not to pay freight
to CLAIMANT under the Voyage Charterparty. When CLAIMANT requested that the balance of freight
owing under the Charterparty be paid Respondent insisted CLAIMANT to be patient, which was
communicated to CLAIMANT on two separate occasions. Further, CLAIMANT submits that there was no
122 Moot problem, 70. 123 RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd [2007] 4 SLR 413; San International Pte ltd [1998] 3 SLR (R) 447,
459 (Karthigesu JA); Andrew Phang, Above n 101 at [611] 124 San International Pte Ltd v Keppel Engineering Pte Ltd [1998] 3 SLR(R) 447; Alliance Concrete Singapore Pte Ltd v
Sato Kogyo (S) Pte Ltd [2014] 3 SLR 857, [59]; Andrew Phang, Contract Law in Singapore (Academy Publishing, 2012);
see also, SK Shipping (S) Pte Ltd v Petroexport Ltd [2009] EWHC 2974 (Comm).
125 Moot problem 67, 68. 126 Ibid 69.
19
realistic expectation that freight would be made after the delivery of the Cargo at the discharge port.127
59. CLAIMANT argues that the words and conduct of RESPONDENT are sufficient to enable a reasonable
person in the position of CLAIMANT to conclude that there was no prospect of RESPONDENT making
payment of freight to CLAIMANT.128 As such, this demonstrates that RESPONDENT was unwilling,
because it was unable to comply with the terms of the Voyage Charterparty.
60. Therefore, RESPONDENT’S conduct in failing to pay freight amounted to a renunciation and a right to
elect to treat the contract as discharged arose under Situation (2) of RDC Concrete.
61. At the Heart of the doctrine of repudiation is the notion that there must be an absence of readiness or
willingness to perform the contract. CLAIMANT submits that RESPONDENT’S conduct, when taken as a
whole, demonstrates a clear absence of readiness or willingness to perform the Charterparty.
RESPONDENT may contend that it remained ‘ready and willing’ to perform and still ‘promised to pay’
– albeit after the Cargo had been discharged.129 However, CLAIMANT argues that such a declaration
cannot be construed as a positive step dispelling the inference that RESPONDENT would not perform its
contractual obligations.130
62. The consistent failure to pay freight culminating in the email on 21 October 2016,131 is a clear
manifestation of an absence of readiness or willingness to perform the Charterparty. As such,
CLAIMANT submits that the tribunal should reject the claim put by RESPONDENT IN ITS EMAIL DATED 22
OCTOBER 2016 that they had at all relevant times ‘always remained’ ready and willing to perform the
Charterparty.132
(iii) Respondent’s Repudiation and/or renunciation was Accepted by Claimant
63. A repudiatory breach of a contract by one party entitles the innocent party to choose between
127 Moot problem, 67. 128 San International Pte Ltd v Keppel Engineering Pte Ltd [1998] 3 SLR(R) 447; Econ Piling Pte Ltd v. NCC
International AB [2007] SGHC 17; see also, Universal Cargo Carriers Corp v Citati [1957] 2 Lloyds Rep 72 (Devlin J);
SK shipping (S) Pte Ltd v Petroexport Ltd (‘The Pro Victor’) [2010] 2 Lloyds Rep 158, 173 (Flaux J). 129 Moot problem 69. 130 J W Carter, Carters Breach of Contract (Hart Publishing, 2012) 371. 131 Moot problem, 67, 69. 132 Moot problem, 69.
20
acceptance of the breach thereby treating the contract as discharged, and affirmation of the contract
thereby waving any right to terminate.133 As stated by the Court of Appeal in Alliance Concrete
Singapore Pte Ltd v Comfort Resources Pte Ltd,134 if there is no legal justification for terminating the
contract, then the ‘innocent party’ will have itself committed a repudiatory breach and will therefore
be liable to pay damages.135 However, as discussed above, RESPONDENT’s conduct amounts to a
repudiation of the Voyage Charterparty and goes to the root of the contract.136
64. CLAIMANT’s email on 22 October 2016137 constitutes a valid acceptance of RESPONDENT’s
repudiation of the contract, clearly and unequivocally bringing the contract to an end.138
65. Such acceptance, brought about by the innocent party, had the effect of terminating the contract,
discharging the parties from any further performance of the contract, leaving obligations and
liabilities already accrued unaffected.139 In other words, CLAIMANT submits that it had, and still has,
an entitlement to freight under Clause 19 which survived the termination of the contract.140
66. Accordingly, the Voyage Charterparty was lawfully terminated on 22 October 2016. It follows that
RESPONDENT’S counterclaim for wrongful termination must fail.
133 Bentsen v Taylor [1983] 2 QB 274, 279; Fercometal S.A.R.L v Mediterrean Shipping Co SA [1989] AC 788, 799-801;
Photo Production Pty Ltd v Securicor Transport [1980] AC 827, 551; Tan Soo Leng David v Lim Thian Chai Charles
[1998] 1 SLR(R) 880, [28] (Warren L.H. Khoo J); HG Beale, Above n 102, [24-002]; Andrew Phang, Contract Law in
Singapore (Acadamy Publishing, 2012) 633 [1347]. 134 [2009] 4 SLR (R) 602. 135 Ibid, 613 (Phang JA). 136 See paragraph [43]-[45] above. 137 Moot problem 68. 138 Photo Production v Securicor Transport [1980] AC 827; [1980] 1 Lloyd’s Rep 545, 550 (Wilberforce L); Force India
Formula One Team Ltd v Areolab SRL [2013] EWCA Civ 780; [2013] RPC 36, [37].; Vitol SA v Norelf Ltd [1996] Ac
800, 810-811. 139 Heyman v Darwins Ltd [1942] 72 LL.L.Rep 65, 89 (Lord Porter); Photo Production Ltd v Securicor Transport Ltd
[1980] 1 Lloyds Rep 545, 551 (Lord Wilberforce); Hyundai Shipbuilding and Heavy Industries Co v Pournaras [1978]
2 Lloyds Rep 502, 508 (Roskill LJ) ; Moschi v Lep Air Services Ltd [1972] AC 331, 350 (Diplock LJ); Johnson v
Agnew [1980] AC 367, 396 ; see also, Beale, above n 102, 1693-1694 [12-002]. 140 Ibid.
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PART THREE: VALID EXERCISE OF LIEN
II. CLAIMANT HAS A VALID AND ENFORCEABLE CONTRACTUAL LIEN OVER THE CARGO
67. Clause 19, the (‘Lien Clause’) of the Coal Orevoy, which forms part of the Voyage Charterparty gives
CLAIMANT a right to exercise a lien over the Cargo for freight, deadfreight, demurrage and general
average contribution due to them under the Voyage Charterparty.
68. CLAIMANT submits that they are entitled to exercise a lien over the Cargo for sub-freight and detention
because: (A) The terms of the Voyage Charterparty were validly incorporated through the B/L; (B)
the Shipper was bound by the terms of the Voyage Charterparty; (C) RESPONDENT’S failure to pay
freight entitles CLAIMANT to exercise a contractual lien and; (D) CLAIMANT gave sufficient notice to
RESPONDENT regarding the exercise of a lien over the Cargo.
A. The Terms of the Voyage Charterparty Were Validly Incorporated Through the B/L
69. A B/L is strong evidence of the terms of a contract.141 An incorporation clause in a B/L will bind a
party where the incorporating words are specific and sufficiently clear.142
70. Where the B/L uses wide words of incorporation, for example ‘all the terms provisions and
exceptions’ the words will be sufficient in incorporating all the terms of the charterparty which make
sense in the context of the B/L.143
71. CLAIMANT submits that the wording of Clause 1 on page 2 of the B/L the (‘Incorporation Clause’) is
both specific, sufficiently clear and wide enough to incorporate the terms of the charterparty because
141 Per Lord Bramwell in Sewell v Burdick (1884) 10 App.Cas. 74 at 105; The Ardennes [1951] 1 K.B. 55; Heskell v
Continental Express (1950) 83 L1.L.R. 438 at 449, 455; Pyrene v Scindia Navigation [1954] 2 Q.B. 402 [419] and
[424]. 142 Star-Trans Far East Pte ltd v Norske- Tech Ltd [1996] 2 SLR(R) 196, 206 [33] (Karthigesu JA); Concordia
Agritrading Pte Ltd v Cornelder hoogewerft (Singapore) Pte Ltd [1999] 3 SLR(R) 618, 624 [15] (Teong Qwee JC);
L&M Concrete Specialist Pte Ltd v United Eng Contractors Pte Ltd [2000] 2 SLR(R) 852, 856 [10] (Choo Han Teck
JC); ‘The Federal Bulker’ [1989] 1 Lloyd’s rep 103, 105 (Hobhouse J). 143 Hamilton v Mackie (1889) 5 T.L.R. 677; Thomas v Portsea [1912] A.C. 1 HL per Lords Gorrell and Robson at 10
and 11; The Merak [1965] 223 per Sellers LJ at 250; The Annefield [1971] 168; Porteus v Watney (1878) 3 Q.B.D 534
at 542; Gullischen v Stewart (1884) 13 Q.B.D. 317; Serraino v Campbell [1891] 1 Q.B. 283 at 289; The Phonizen
[1966] 1 Lloyd’s Rep. 150.
22
it clearly states that ‘all terms and conditions, liberties, and exceptions of the Charter Party are
herewith incorporated’.144
72. Where the incorporating clause does not identify which charterparty it seeks to incorporate the court
will assume that the B/L is referring to the charterparty under which the goods are being carried.145
73. There are two possible charterparties the Incorporation Clause may have been referring to.146 The
Time Charterparty, concluded between the Shipowner and CLAIMANT,147 or the Voyage Charterparty,
concluded between CLAIMANT and RESPONDENT.148 However, the Cargo is being carried under the
Voyage Charterparty and therefore it is assumed that the Incorporation Clause is referring to the
Voyage Charterparty.149
74. Further, when a B/L uses the word ‘freight’, it could in fact only be referring to a voyage charterparty
and not to a time charterparty because ‘freight’ is an expression normally used in a voyage
charterparty and not a time charterparty.150
75. CLAIMANT submits that the word ‘freight’ was used in the B/L under special instructions: ‘Freight
payable as per charterparty’. In this case, the B/L could only possibly have been referring to the
Voyage Charterparty when incorporating the terms of a charterparty.
76. CLAIMANT argues that both the Voyage Charterparty and the B/L specifically refer to the shipment
of the Cargo. The Time Charterparty was for the purpose of hiring the Vessel to CLAIMANT and makes
no reference to the Cargo.
77. Therefore, the Incorporation Clause in the B/L could only possibly be referring to the Voyage
Charterparty when it incorporated all the terms and conditions of ‘the Charter Party’.
144 Moot problem, 42. 145 At any rate if it is the voyage charter: approved in K/S A/S Seateam v Iraq National Oil Co (The Sevonia Team)
[1983] 2 Lloyds Rep. 640 at 644; National Navigation Co v Endesa Generacion SA (The Wadi Sudr) [2009] EWHC 196
(Comm). 146 Moot problem, 42. 147 Ibid 1. 148 Ibid 24. 149 Ibid 42. 150 The SLS Everest [1981] 2 Lloyd’s Rep 389, 392 (Lord Denning MR).
23
78. The B/L sought to incorporate the terms and conditions of a charterparty dated as overleaf, but failed
to specify a date.151 It is not uncommon that a B/L will provide for incorporation of a charterparty
which is to be identified by a date, however parties omit to specify the date of the charterparty. The
omission does not negative the incorporation.152
B. The Shipper was Bound by the Voyage Charterparty
79. A party cannot be burdened by obligations of a contract to which they are not partied.153 Generally,
a party cannot exercise a lien over cargo belonging to a party that has not entered into a contract with
them.154 An exception, however, is where a lien clause found in a charterparty is incorporated through
a clause in the B/L, which is then issued to the third-party shipper, thereby binding them to that
Charterparty.155
80. While the Voyage Charterparty was between CLAIMANT and RESPONDENT, CLAIMANT contends that
the Shipper was bound by the Voyage Charterparty because: i) the Shipper intended to be bound by
the Voyage Charterparty and; ii) the terms of the Voyage Charterparty were reasonably ascertainable
to the Shipper.
(i) The Shipper intended to be bound by the Voyage Charterparty
81. In The Epsilon Rosa, the English Court of Appeal held that for an incorporation clause to incorporate
terms of a charterparty, the reference to the terms of that charterparty in the B/L must be156 so that
from reading the clause, the holder of the B/L would be aware of the contractual obligations to which
they are to be bound.157
151 Ibid. 152 Pacific Molasses & United Molasses Trading Co v Entre Rios Compania Naviera (The San Nicolas) [1976] 1
Lloyd’s Rep. 8; see also, Bangladesh Chemical Industries v Tex-Dilan Shipping Co (The S.L.S Everest) [1981] 2
Lloyd’s Rep. 389. 153 Prudential Assurances Co Ltd v Ayres [2008] EWCA Civ 52 [42]. Taddy & Co v Sterious & Co [1904] 1 Ch 354;
Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847. 154 Turner v Haji Goolam [1904] AC 826, 837. 155 The Chrysovalandou Dyo [1981] 1 Lloyd’s Rep 159, 165 (Mocatta J).
157 The Epsilon Rosa [2002] 2 Lloyd’s Rep 202, 515 [27] (Tuckey LJ); Caresse Navigation Ltd v Zurich Assurances
Maroc and Others (‘The Channel Ranger’) [2014] 1 Lloyd’s Rep 337, 260 [9] (Lord Dyson); The “Star Quest” and
other matters [2016] SGHC, 1304 [64] (Chong J).
24
82. The terms of a charterparty may be incorporated through a B/L provided it is the intention of the
parties to be bound by those terms. 158
83. CLAIMANT submits that on the facts it is clear that the Shipper intended to be bound by the Voyage
Charterparty. The Voyage Charterparty was for the purpose of shipping coal. The Shipper did in fact
ship coal, as evidenced by the B/L for the receipt of coal, which is held by the Shipper.
84. Therefore, it was the intention of the Shipper to be bound by the terms of the Voyage Charterparty.
(ii) The terms of the Voyage Charterparty were reasonably ascertainable to the Shipper
85. In The Starsin, Lord Bingham expressly acknowledged that a ‘transferee of a bill of lading would
recognise the need to consult the detailed conditions on the reverse of the bill’.159
86. The case of Pirelli Cables v United Thai held that were a holder of the B/L knows that there are
further terms by which they are bound, but do not know the content of those terms they should ask
for and obtain that information. In failing to do so, the holder of the B/L will be bound by the clause,
despite being unaware of its contents.160
87. CLAIMANT argues that the Shipper was issued the B/L and therefore had knowledge of the
Incorporation Clause seeking to incorporate all terms of the charterparty. The Shipper was aware that
further terms of a charterparty existed but were potentially unaware of the content of those terms. In
failing to ask for or obtain such knowledge they should still be bound by the terms.
88. Accordingly, the Shipper cannot deny the existence of the terms of the Voyage Charterparty simply
because it ‘failed to inform itself of the terms to which it agreed to have its goods shipped.’161
Consequently, by failing to inform itself of the content of the Incorporation Clause, the Shipper must
be taken to have accepted the terms of the Voyage Charterparty and therefore bound by those terms.
158 ‘The Trade Resolve’ [1990] 2 SLR 129, 66; Star-Trans Far East Pte ltd v Norske- Tech Ltd [1996] 2 SLR(R) 196;
Concordia Agritrading Pte Ltd v Cornelder hoogewerft (Singapore) Pte Ltd [1999] 3 SLR(R) 618; L&M Concrete
Specialist Pte Ltd v United Eng Contractors Pte Ltd [2000] 2 SLR(R) 852; International Research Corp PLC v
Lufthansa Systems Asia Pacific Pte ltd [2014] 1 SLR 130. 159 The Starsin [2003] 1 Lloyd’s Rep. 571, 578, [15]. 160 Pirelli Cables v United Thai [2000] 1 Lloyd’s Rep 663, 669. 161 Stella Jones v Hawknet [2002] F.C.A. 315 [19].
25
C. RESPONDENT Failed to Pay Freight in Accordance the Voyage Charterparty
89. Clause 19 of the Voyage Charterparty gives CLAIMANT a right to exercise a lien over the Cargo for
freight due to them under the charterparty.162 As discussed above in paragraphs [46]-[54],
RESPONDENT failed to pay freight when it became due and payable.163 Failure to pay freight entitled
CLAIMANT to exercise a lien over the Cargo in accordance with the terms of the Voyage
Charterparty.164
D. CLAIMANT Gave Sufficient Notice to RESPONDENT of the Exercise of a Lien
90. A lien will be considered valid if sufficient notice is given to the party against whom the lien is
exercised.165 No particular form of words is required for conveying this information.166
91. CLAIMANT issued a warning to RESPONDENT that a lien would be exercised by email on 19 October
2016167 and then issued a formal ‘NOTICE OF LIEN’ via email on 20 October 2016.168
92. Hence, CLAIMANT submits that sufficient notice to exercise the lien was given to RESPONDENT.
93. Therefore CLAIMANT submits that it has a valid and enforceable lien over the Cargo.
PRAYER FOR RELIEF
For the reasons set out above, CLAIMANT requests that the Tribunal:
a) Declare that it has jurisdiction to hear the CLAIMANT’S pleading for the sale of the Cargo pendente
lite and pleading for demurrage;
b) Find that the Charterers exercised a valid lien over the Cargo;
c) Order the sale of the Cargo pendente lite;
d) Award damages to CLAIMANT and interest on amounts claimed; and
e) Award further or other relief as the Tribunal considers fit.
162 Moot problem, 31. 163 Refer to moot submission Part III. 164 Moot problem, 31. 165 Tagart, Beaton & Co v James Fisher & Sons [1903] 1 KB 391. 166 The Bulk Chile [2013] 1 All ER (Comm) 177 [51]; Dry Bulk Handy Holding Inc. and another v. Fayette
International Holdings and another (‘Bulk Chile’) [2013] EWCA Civ 184. 167 Moot problem, 62. 168 Ibid 65.
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