international moot competition on maritime … · -o'wise as per gcn '94 c/p logically...

INTERNATIONAL MOOT COMPETITION ON MARITIME

ARBITRATION

ODESSA-UKRAINE

2011

MARINE PLANET LIMITED

(CLAIMANT)

V

SANTIAGO ASSISTANCE INC.

(DEFENDANT)

by International Law Offices

Organizer Center for International Law and Justice

From: Petrova Olha <[email protected]>

To: Manager <[email protected]

Sent: Wed, 25 Nov 2009 19:00:03 +0300

Subject: 10 kt vessel to Varna West ex Mariupol

Alexander,

Please find our recap as follows:

MV SEAFORCE OR FULL SISTER SHIP IN OO

FLAG – GREECE

DWT - 12,062 MT / DWCC 11500 MT

BUILD 1975 / JAPAN

LOA - 128.77 M / LBP 120 M / BEAM - 19.60 M / DRAFT- 8.25

GRT - 6,997 / NRT - 4,088

SID / IMO FITTED / STEELFLORED / GEARLESS

B/C WITH TOP AND BOTTOM SIDE TANKS DECK CARGO

HOLDS / HATCH DIMENSIONS: GRAIN/BALE CAPACITY CBM

==============================================

NO1 -24.00 MX16X9 - 20.00 X 9.75 3854/3744

NO2- 38.00 MX19X8,5 - 34.00 X 9.75 6331/6224

NO3- 24.00 MX15X8,5 - 34.00 X 9.75 3950/3873

TOTAL M.CUB 14134/13842

- SUB STEM TO BE LIFTED UNTIL 12:00 MOSCOW TIME 26.11.2009 AFTER FINALIZING RECAP

- ACCOUNT SANTIAGO ASSISTANCE INC.

El Greko Building, 4^nd floor,

Sofia Luz and 77̂ nd streets,

Panama, Panama

BNP PARIBAS (SUISSE) SA, Geneva

Swift, HDGFJWIUIFF; clearing 4545

General account 90852-0

USD account 76482/2C

IBAN CH64 5454 9764 5734 9857 9**

- CARGO: 10'500 MT AS MIN UPTO VSL' FCC +/-10 PCT MOLOO OF STEAM COAL STW MAX 43'

- PERFORMING VESSEL HAS TO BE IN EVERY RESPECT SUITABLE AND READY TO LOAD,CARRY AND

DISCHARGE CONTRACTED CARGO; VSL IS FREE OF ANY DEBTS

- MARIUPOL / VARNA 1/1 GSPB AAAA BE

- L/C 14-18 DEC 2009

- 0800/1400 CLS TO APPLY

- VSL ACCEPTED AS GEARLESS BENDS

- MASTER HAS RIGHT TO TENDER NOR EVEN VIA CABLE/RADIO/VHF W/W/W/W 2PM/8AM CLS BE.

- MASTER/OWNER HAS TO SEND 4/3/2/1 NOTICES PRIOR ARRIVAL AT POL AND POD

- LOADING 6000 MT PWWDAYS OF 24 CONS HRS SSHINC

- DISCHARING 5000 MT PWWDAYS SATSHEX UU, time from Friday 17:00 or day proceeding legal or local holiday until

Monday 08:00 or day after

-HOLIDAYS AS PER LOCAL CALENDAR

-FRT USD 15,00 PMT BSS FIOS

-FRT TO BE PAID 100 PCT LESS COMM ONLY W/I 1 BDAY AFTER S/RELEASING ORIGINALS BS/L MARKED

'FRT PAYABLE AS PER C/P DATED, TO OWNERS NOMINATED BANK ACCNT IN USD CURRENCY

-FULL FRT TO BE DEEMED EARNED, DANRVAOCLONL

-OWNERS TO CLARIFY THEMSELVES PORT RESTRICTIONS/REGULATIONS

-DEBALLASTING TIME IF ANY NOT TO COUNT AS LAYTIME

-TIME USED BEFORE L/C IF ANY NOT TO COUNT

-DEMM USD 6000 PDPR/FD BE

- DEMM IF ANY WILL BE SETTLED W/IN 7 DYS AFTER OWS PRESENTATION OF

SOF/NOR/TS/ETC BENDS BY FAX

-CHAGENT BENDS

-L\AGENT Bulka

Contact tel. 380 204 941 369

e-mail: [email protected]

Contact person: Dmitriy Ivanov

- D\AGENT K. MARITIME AGENCY

78, Alexander Malinov Str. Office 15, 1st floor 9004 Varna, Bulgaria

-TAXES/DUES ON VSL/FLAG/CREW TO BE OWNER'S ACCNT

-SAME FOR CARGO - FOR CHARTS ACCNT

-TIME FOR DRAFT SURVEY, IF ANY MORE THAN 2 HRS TC AS LAYTIME BE, OTHERWISE NTC

-GENERAL ARBITRATION IN LONDON, ENGLISH LAW TO APPLY

-O'WISE AS PER GCN '94 C/P LOGICALLY AMMENDED BY MAIN TERMS WITHOUT ANY BROK COMM FOR

FRT/DEMM END.

Manager writes:

> Olga,

> thanks for yr last.

> further our phone negos pls find below our counter which we kindly ask

> to confirm within 1 hour.

> MV SEAFORCE OR FULL SISTER SHIP IN OO

> FLAG – GREECE

> DWT - 12,062 MT / DWCC 11500 MT

> BUILD 1975 / JAPAN

> LOA - 128.77 M / LBP 120 M / BEAM - 19.60 M / DRAFT- 8.25

> GRT - 6,997 / NRT - 4,088

> SID / IMO FITTED / STEELFLORED / GEARLESS

> B/C WITH TOP AND BOTTOM SIDE TANKS DECK CARGO

> HOLDS / HATCH DIMENSIONS: GRAIN/BALE CAPACITY CBM

> ==============================================

> NO1 -24.00 MX16X9 - 20.00 X 9.75 3854/3744

> NO2- 38.00 MX19X8,5 - 34.00 X 9.75 6331/6224

> NO3- 24.00 MX15X8,5 - 34.00 X 9.75 3950/3873

> TOTAL M.CUB 14134/13842

> - SUB STEM TO BE LIFTED UNTIL 12:00 MOSCOW TIME 26.11.2009 AFTER FINALIZING RECAP

> - ACCOUNT SANTIAGO ASSISTANCE INC.

> El Greko Building, 4^nd floor,

> Sofia Luz and 77^nd streets,

> Panama, Panama

> BNP PARIBAS (SUISSE) SA, Geneva

> Swift, HDGFJWIUIFF; clearing 4545

> General account 90852-0

>USD account 76482/2C

>IBAN CH64 5454 9764 5734 9857 9**

> -CARGO: 10'500 MT AS MIN UPTO VSL' FCC +/-10 PCT MOLOO OF STEAM COAL

> STW MAX 43'

> -PERFORMING VESSEL HAS TO BE IN EVERY RESPECT SUITABLE AND READY TO

> LOAD, CARRY AND DISCHARGE CONTRACTED CARGO; VSL IS FREE OF ANY DEBTS

> -MARIUPOL / VARNA 1/1 GSPB AAAA BE

> -L/C 14-18 DEC 2009

> -0800/1400 CLS TO APPLY

> - VSL ACCEPTED AS GEARLESS BENDS

> -MASTER HAS RIGHT TO TENDER NOR EVEN VIA CABLE/RADIO/VHF W/W/W/W 2PM/8AM CLS BE.

> -MASTER/OWNER HAS TO SEND 4/3/2/1 NOTICES PRIOR ARRIVAL AT POL AND POD

> -LOADING 6000 MT PWWDAYS OF 24 CONS HRS SSHINC

> - DISCHARING 5000 MT PWWDAYS SATSHEX UU, time from Friday 17:00 or day proceeding legal or local holiday

until Monday 08:00 or day after

> -HOLIDAYS AS PER LOCAL CALENDAR

> -FRT USD 15,00 PMT BSS FIOS

> -FRT TO BE PAID 100 PCT LESS COMM ONLY W/I 1 BDAY AFTER S/RELEASING

> ORIGINALS BS/L MARKED 'FRT PAYABLE AS PER C/P DATED___' , TO OWNERS

> NOMINATED BANK ACCNT IN USD CURRENCY

> -FULL FRT TO BE DEEMED EARNED, DANRVAOCLONL

> -OWNERS TO CLARIFY THEMSELVES PORT RESTRICTIONS/REGULATIONS

> -DEBALLASTING TIME IF ANY NOT TO COUNT AS LAYTIME

> -TIME USED BEFORE L/C IF ANY NOT TO COUNT

> -DEMM USD 6000 PDPR/FD BE

> - DEMM IF ANY WILL BE SETTLED W/IN 7 DYS AFTER OWS PRESENTATION OF

> SOF/NOR/TS/ETC BENDS BY FAX

> -CHAGENT BENDS

- L\AGENT Bulka

> Contact tel. 380 204 941 369

> e-mail: [email protected]

> Contact person: Dmitriy Ivanov

> -D\AGENT K. MARITIME AGENCY

> -78 , Alexander Malinov Str. Office 15, 1st floor 9004 Varna, Bulgaria

> -TAXES/DUES ON VSL/FLAG/CREW TO BE OWNER'S ACCNT

> -SAME FOR CARGO - FOR CHARTS ACCNT

> -TIME FOR DRAFT SURVEY, IF ANY MORE THAN 2 HRS TC AS LAYTIME BE,

> OTHERWISE NTC

> -GENERAL ARBITRATION IN LONDON, ENGLISH LAW TO APPLY

> -O'WISE AS PER GCN '94 C/P LOGICALLY AMMENDED BY MAIN TERMS

> WITHOUT ANY BROK COMM FOR FRT/DEMM

> END.

> Best Regards,

> Alexander Alexandrov

> Shipbulkmanagement Ltd.

> e-mail [email protected]

> skype shipbulk

> *************

From: Petrova Olha [mailto:[email protected]]

Sent: Wednesday, February 09, 2011 1:57 PM

To: Smirnov Ivan

Subject: mv "Seaforce" - demurrage calculation

Dear Ivan,

As told before, discussions regarding situation with demurrage was in progress when the operator/shipowner disappeared and

stooped negotiations.

We refused to confirm their Invoice, as the situation had been declared to be Force- Majeure by Ukrainian Chamber of

Commerce.

As you can see, there is no official base for claim, and all other discussions have no sense. All shipowners accepted this

situation as Force- Majeure.

Please also forward this official document to your lawyer.

Kind Regards,

Olga

February 9, 2011 г. 14:53, user <[email protected]> wrote:

Dear Olga,

We fail to understand how this paper can influence to charterer’s obligation under c/p. It is not clear what is the involvement

of Ukrainian Chamber of Commerce to this case and why their comments are of essence to shipowners and/or charterers.

Moreover, there is no Force- Majeure clause in Gencon 94 charter party, so in any event this paper is irrelevant.

As you know, Owners have commenced arbitration yesterday. Owners will proceed and obtain default judgment if you fail to

participate.

As requested yesterday, we look forward to the details of charterers appointed arbitrator for the tribunal to be properly

constituted and your confirmation of issuance of Bank Guarantee to USD125,000.

Best regards,

Ivan Smirnov

Deputy Director of P&I Claims Department

Russtrakh Insurance Company phone: +7 495 222 22 31

fax: +7 495 222 22 13

mob: +7 916 111 07 91

email: [email protected]

IMPORTANT: The contents of this email and any attachments are confidential. They are intended for the named recipient(s) on ly. If you have received this email in error, please notify the sender

immediately and do not disclose the contents to anyone or make copies thereof.

From: Olha Petrova [mailto:[email protected]


To: Smyrnov Ivan

Subject: Re: mv "Seaforce" - demurrage calculation

Dear Ivan,

The organization who is obliged to state the existence of Force Majeure is Chamber of Commerce of the country where one

takes place.

It is official State organization who is legally authorized to declare of availability of such situation. As per Gencon one safe

berth is guaranteed by charterer, one safe berth.

It is proved by FMC that due to bad vessel, port was not reachable and there was real danger for the vessel to reach the berth.

Laytime is not reversible. All your calculations are connected with loading port.

Kind Regards, Olga

From: Smyrnov Ivan


To: Olha Petrova

Subject: RE: mv "Seaforce" - demurrage calculation

Dear Olga,

Thank you for charterer`s confirmation that berth was unsafe. This is a separate and independent breach of c/p by your good

company as charterers are deemed to have guaranteed a berth to be safe according to Gencon CP. You seem to have not

clearly understood the legal position you are trying to rely upon and that your arguments will ultimately fail.

As discussed in the course of our telephone conversation, Owners are realistic commercial people and are ready to discuss the

settlement on reasonable commercial terms to minimize the costs. This settlement however shall meet actual merits of the

matter and real positions of the parties in this dispute. As early stipulated, Owners case is undisputable and straightforward

whilst charterers arguments lack legal and material background.

Although, Owners see no problem in getting this case up to the final judgment against the charterers and then enforce it

against your owned/managed assets wherever they may be found and/or put your company in to liquidation, it is better for

both parties to try to reach amicable conclusion, taking into account not very considerable amounts at stake.

As charterers last offer for US$10,000. is obviously not enough to be acceptable, we look forward to your improved settlement

offer to be considered in due course.

We look forward to hearing from you. Best regards,

Ivan Smirnov



fax: +7 495 222 22 13

mob: +7 916 111 07 91




From: Smyrnov Ivan

Sent: Friday, February 11, 2011 12:28 PM

To: Olha Petrova


Dear Olga,

We seem didn’t receive charterers improved offer as requested below. We are reminding you of the deadline as per attached

legal notice and reserve the right to proceed further accordingly without further notice to you. We will draw attention of the

court to your failure to reply.

We look forward to hearing from you.

Best regards,

Ivan Smirnov



fax: +7 495 222 22 13

mob: +7 916 111 07 91





Sent: Mon, 21 Feb 2011 09:45:46 +0000

From: [email protected]

To: [email protected]

Dear Olga,

mailto:[email protected]

mailto:[email protected]

Did charterers appoint their arbitrator? If yes, pls advise details.

If no details are provided by COB 22nd February,11, we consider that charterers decided to waive their right to appoint own

arbitrator and will appoint Owners arbitrator - Mr. Smith as sole arbitrator. His decision will then be final and binding for the

parties.

Best regards,

Ivan Smirnov,



fax: +7 495 222 22 13

mob: +7 916 111 07 91



immediately and do not disclose the contents to anyone or make copies thereof

IN THE MATTER OF THE ARBITRATION ACT 1996 AND IN THE MATTER OF AN ARBITRATION

BETWEEN:


Claimant/Owners

-and-

SANTIAGO ASSISTANCE INC

Respondent/Charterers

"SEAFORCE" C/P DATED 25™ NOVEMBER, 2009

CLAIM SUBMISSIONS We, AAA International Law Firm, represent the Claimants, Messrs. Marine Planet Limited and should be grateful if

tribunal would treat this letter as claim submissions served on their behalf.

1. M/v "Seaforce", flag of Greece, owned by Messrs. Marine Planet Limited (hereinafter "The Owners") was chartered by

Messrs. Santiago Assistance Inc. (hereinafter "The Charterers") on the basis of the Charter-party dd. 25.11.2009 (Recap) as per

Gencon '94 proform logically amended by the terms agreed in the Recap for carriage of cargo of 10336,653 mt of Ukrainian

Steam Coal in bulk from Mariupol, Ukraine to Varna, Bulgaria (hereinafter – “the Charter”).

2. The Charter insofar as material provided as follows:

Laycan 14-18 Dec 2009

…

Demurrage USD 6000 per day pro rata… Demurrage if any will be settled within 7 days after owner’s presentation of

SOF/NOR/TS/ETC bends by fax

3. Notice of Readiness was rendered by the Owners on 18 December 2009 and was accepted by the Charterers' agent as per

the Charter the same day. Copy of the Notice of Readiness is attached as Enclosure 1.

4. Upon completion of loading the Owners submitted Statement of Facts dated 28 December 2009 (attached as

Enclosure 2) and upon discharging the Owners submitted Standard Statement of Facts dated 06 January 2010 (attached as

Enclosure 3).

5. Upon completion of the voyage the Owners provided the Charterers with Demurrage calculation with a balance of USD41

280.00 due and payable by the Charterers to Owners.

6. Despite the Owners' numerous reminders and demands however the Charterers failed to reimburse the Owners for the

amount of demurrage payment due to them under the

Charter terms without any creditable explanation.

7. The Charterers however admit in their letter dated 04 February, 2011 that demurrage debt is due and owing to Owners and

asked for payment extension allowing Charterers to collect demurrage sum from Receiver who is in their view a responsible

party.

8. On 8 February 2011 the Owners through their Insurers notified the Charterers of commencement of arbitration

proceedings by them.

9. On 8 February 2011 the Owners sent a request to the Charterers where they required production of security in the form

of the bank guarantee for the amount of USD 125,000.00 in order to secure their principal claim together with interests

and costs occurred due to the Charterers’ failure to effect timely payment of demurrage due to the Owners under the SOFs

and the respective calculation. The Charterers did not provide for any security.

10. Accordingly, the claimants claim the principal sum of USD 41 280.00 from the defendants plus interests and costs and

such rate and for such period as the Tribunal in their discretion consider appropriate and costs on a standard basis to be

assessed.

11. The Claimants respectfully ask the Tribunal to proceed with an immediate arbitration award against the Defendants on the

basis that sum due and owing to Owners is not in dispute and admitted by the Defendants.

Served this 18 day of March 2011 by Messrs. AAA International Law Firm, Moscow, Russian Federation.

ENCLOSURE 1

M/V"SEAFORCE"

NOTICE OF READINESS

Please, be advised that the m/v "SEAFORCE" under my command arrived at port MARIUPOL today 18.12.2009 at 23:00

LT and in all respect ready to loading the cargo COAL IN BULK in quantity 10,500. MT as per C/P.

Time waiting for berth to count. If loading is commenced or carried on during excepted period, such time to be counted fully,

unless stipulation to the contrary has been agreed upon in advance.

Stevedoring damages must be repaired before for departure, for account of the party responsible of such damages, including

compensation for all losses resulting there from.

MASTER OF MV “SEAFORCE” __________________ V. Chrebtov

NOTICE TENDERED BY TLX 18.12.2009 AT_____LT

NOTICE ACCEPTED AS PER C/P AS AGENT ONLY

ENCLOSURE 2

Port Mariupol, Ukraine 28th of December, 2009

S T A T E M E N T O F F A C T S

M/V: Seaforce Owners: Marine Planet Limited

Cargo: STEAM COAL IN BULK Quantity: 10 336,653 mts

Vessel arrived to Mariupol road

Notice of readiness tendered: Notice of readiness accepted:

Loading commenced: Loading completed:

18/12/09 at 23.00 LT

18/12/09 at 23.00 LT As per C/P

26/12/09 at 08.30 LT 27/12/09 at 01.45 LT

DETAILS OF DAILY WORKING 18/12/09

19/12/09

20/12/09 21/12/09

22/12/09 23/12/09

24/12/09 25/12/09

26/12/09

27/12/09

28/12/09

Friday

Saturday

Sunday Monday

Tuesday Wednesday

Thursday Friday

Saturday

Sunday

Monday

-------- - 23.00

23.00 – 24.00 00.00 – 24.00

00.00 – 24.00 00.00 – 24.00

00.00 – 24.00 00.00 – 24.00

00.00 – 24.00 00.00 – 06.10

06.10 – 24.00 00.00 – 03.40

03.40 – 05.00 05.00 – 06.00

06.00 – 08.30 -------- - 08.30

08.30 – 10.30 10.30 – 11.00

11.00 – 16.00 16.00 – 16.30

16.30 – 24.00 00.00 – 01.45

------- - 01.45 01.45 – 03.15

03.15 – 04.30 ------- - 04.30

04.30 – 21.00

21.00 – 24.00 00.00 – 02.40

02.40 – 12.15 12.15 – 17.30

17.30 – 18.30 ------- - 20.00

Vessel arrived to Mariupol road

Waiting for load berth / Heavy traffic at Mariupol Channel due to ice Waiting for load berth / Heavy traffic at Mariupol Channel due to ice




P.O.B. / Proceeding Mariupol Channel (heavy ice) P.O.B. / Proceeding Mariupol Channel (heavy ice)

Inward clearance Initial draft survey

Opening of the vsl’s hatch covers Loading commenced

Loading Intermediate draft survey

Loading Intermediate draft survey

Loading Loading

Loading completed Final draft survey

Waiting for cargo documents Cargo documents on board

Waiting for outward clearance turn due to heavy ice situation at the channel P.O.B. / Unavailability of the main engine / Waiting for repair

P.O.B. / Unavailability of the main engine / Waiting for repair Waiting for outward clearance turn / Elimination of defects of PSC

Waiting for outward clearance turn Outward clearance

P.O.B. / Sailing

TIME OFF: DAILY 01.00 – 02.00 & 13.00 – 14.00 meal break

07.30 – 08.30 & 19.30 – 20.30 shifts’ change

MASTER OF THE M/V “SEAFORCE”

(signature)

SHIP’S AGENT: “BULKA”

(signature)

PORT REPRESENTATIVE: /Ch. Stevedore/

(signature)

Page 1 of 1

ENCLOSURE 3 1 Agents K. Maritime Agency Ltd.

78, Al. Malinov Str., 9004 Varna, Bulgaria

STANDART STATEMENT OF FACTS (SHORT FORM)

RECOMMENDED BY

THE BALTIC AND INTERNATIONAL MARITIME CONFERENCE (BIMCO)

AND THE FEDERATION OF NATIONAL ASSOCIATIONS

OF SHIP BROKERS AND AGENTS (FONASB A)

2 Vessel’s name

M/V “SEAFORCE”

3 Port

VARNA WEST

4 Owners/Disponent Owners

SHIPBULKMANAGEMENT Ltd.

5 Vessel berthed

02.01.2010 1945 HRS 6 Loading commenced

-

7 Loading completed

- 8 Cargo

STEAM COAL IN BULK

9 Discharging commenced

03.01.2010 0000 HRS

10 Discharging completed

04.01.2010 0410 HRS

11 Cargo documents on

board

12 Vessel sailed

13 Charter Party 14 Working hours/meal hours of the port

1900 – 0700 HRS, 0700-1900 HRS Meal time Coffee time

1200-1300 / 1800-1900

15 Bill of Lading weight/ quantity

10 336,653 MT

16 Outturn weight / quantity

-

17 Vessel arrived on roads

31.12.2009 1940 HRS

18 Free pratique granted

02.01.2010 2040 HRS 19 Notice of readiness tendered

31.12.2009 1940 HRS

20 Notice of readiness accepted

AS PER CHARTER PARTY

DETAILS OF DAILY WORKING

Date

31.12.2009

01.01.2010 02.01.2010

03.01.2010

04.01.2010

05.01.2010

06.01.2010

Day

THURSDAY

FRIDAY SATURDAY

SUNDAY

MONDAY

TUESDAY

WEDNESDAY

Hours worked Hours stopped Quantity Load./disch.

Remarks

VESSEL ARRIVED VARNA ROADS

AT ROADS/SEE REMARK 1 DITTO

DITTO SEE REMARK 2

POB, SHIFTING TO VARNA WEST.

BERTHED INWARD CLEARANCE

INITIAL DRAFT SURVEY OPENING OF HATCHES

DISCHARGING COMMENCED NO DISCHARGING /

CHANGING OF SHIFTS DISCHARGING

NO DISCHARGING / CHANGING OF SHIFTS

DISCHARGING NO DISCHARGING. MEAL TIME

DISCHARGING COMPLETED FINAL DRAFT SURVEY

WAITING FOR BUNKERING DITTO

DITTO BUNKERING

OUTWARD CLEARANCE

From

0000

0750

1930

0030

To

0530

1800

2400

0410

From

1940 0000

0000 0430

1710

1945 2040

2200

0530

1800

0000

0410 0600

0000 0000

1630

To 1940

2400 2400

0430 1710

1945

2040 2200

2400

0750

1930

0030

0600 2400

2400 1630

2030

General Remarks: 1. FROM 1700 HRS ON 31.12.2009 TILL 0800 HRS ON 02.01.2010 – OFFICIAL HOLIDAYS

2. FROM 0430 HRS TILL 1710 HRS ON 02.01.2010 – OBVIATING OF MAIN ENGINE TROUBLE Place and date

Port of Varna West, 06.01.2010

Name and signature (Master)

Name and signature (Agent’s)

K. Maritime Agency Ltd. - Varna

Name and signature (for the Charterer/Shipowner/Receiver)

For and on behalf of the Receivers

IN THE MATTER OF THE ARBITRATION ACT 1996

IN THE MATTER OF ARBITRATION BETWEEN:


Claimants/Owners

-and-

SANTIAGO ASSISTANCE INC

Respondents/Charterers

m.v “SEAFORCE”- Charter Party dated 25 November 2009

____________________

DEFENSE SUBMISSIONS

____________________

Introduction and background

1. The motor vessel "SEAFORCE" ("the Vessel") was chartered by Messrs. Santiago Assistance Inc.

("Respondents/Charterers") on 25th of November, 2009, on a "Gencon" 1994 Charter Party form, evidenced by the

Fixture Recap, for a voyage from the loading port Mariupol, Ukraine, to the discharging port Varna, Bulgaria. The cargo

was steam coal in bulk in the quantity of 10,336.653 mt.

2. The Charter Party in question was negotiated, agreed and confirmed on behalf of the Owners by the Managers of the

Claimants, Messrs. Shipbulkmanagement ("Managers").

3. The Vessel made the voyage from the loading port Mariupol to the discharging port Varna from 18th of December,

2009, till 4th of January, 2010.

4. On 11th of January, 2010, the Managers provided the Charterers with the Demurrage Calculation and issued the invoice

for its payment. In reply the Charterers did not agree with the provided calculation and rejected the demurrage in full

referring to the force-majeure circumstances in the loading port evidenced by the Certificate on Force-Majeure

Circumstances issued by the Chamber of Commerce and Industry of Ukraine (enclosed hereto as Enclosure No.1).

5. Having received such Charterers’ reply the Managers since then kept silence which the Charterers therefore interpreted

as the Managers' acceptance of the Charterers' position and closing of the matter.

6. However, a year later, in January 2011, the Owners' P&I Insurers Russtrakh appeared claiming the demurrage payment

from the Charterers.

7. In the course of further negotiations with Russtrakh the Charterers nevertheless offered to settle the dispute amicably

and to pay the amount of USD 10,000.00 as evidenced by the following Charterers' electronic message dated 8111 of

February, 2011:

"... We can be ready to pay 10 000 USD max in order to close the file subject to your final confirmation of Beneficiary Bank details..."

8. However no consensus was reached between the Parties and on 8th of February, 2011, the Claimants initiated the

arbitration proceedings.

9. The Charterers still do not agree with the Owners' position as for the laytime and demurrage calculation for the

voyage in question and therefore submit therein the following Points of Defense.

The Respondents defend themselves against the Claimants ' claim under the Charter Party as follows:

10. The Fixture Recap in question amongst other provisions provides for the following:

"-LOADING 6000 MT PWWDAYS OF 24 CONS HRS SSHINC

- DISCHARGING 5000 MT PWWDAYS SATSHEX UU, time from Friday 17:00 or day proceeding legal or local

holiday until Monday 08:00 or day after

-HOLIDAYS AS PER LOCAL CALENDAR

… …

O-WISE AS PER GCN '94 CIP LOGICALLY AMENDED BY MAIN TERMS"

11. The Charterers therefore object the Owners' calculation of laytime as reversible, consider that the laytime clause of

the Charter Party in question clearly provides for non-reversible laytime and basing on this position so made the

Charterers ' Laytime and Demurrage Calculation.

12. Upon the Vessel 's arrival at the loading port of Mariupol, Ukraine, corresponding Notice of Readiness was

tendered on Friday, 18th of December, 2009, at 23.00 It and was duly accepted by the Charterers 'as per Charter Party '.

13. In respect of the laytime commencement the Charter Party provides for:

"- MASTER HAS RIGHT TO TENDER NOR EVEN VIA CABLEIRADIOIVH W/W/W/W 2PM/8AM CLS

BE".

The provision of the Gencon 94 form regarding laytime commencement was therefore amended by the Parties as

follows: given up to and including 12.00 hours, and at 08.00 hours next working day if notice given during office hours

after 12.00 hours. "

Provided that NOR was tendered on Friday 18th of December, 2009, at 23.00 It after office hours, next working day

was Monday, 21th of December, 2009, when laytime commenced at 14.00.

14. However, the Claimants in their Demurrage Calculation considered the laytime commenced since Saturday, 12 th

December 2009, 14.00 lt. In this connection the Charterers object it.

15. The period from December 18 till December 25, 2009, was one of exceptional severity and a great deal of ice

formed in the Mariupol Port approaching channel and water area.

16. Considering such circumstances upon arrival of m/v "SEAFORCE" at the Port of Loading she could not be

immediately berthed but should wait for her turn. Reference should be made to the correspondence of Respondents

with the Vessel 's Agents, Messrs. Bulka Agency, as for the port schedule for berthing.

In the electronic mail dated 19th of December, 2009, the Vessel's Agents informed the Charterers:

"As for the present port schedule of the berth:

1. m/v Southern Star ETCIS tomorrow morning (if WPAGW);

2. m/v Kovalev ETB tomorrow morning to load 12 000 mts (if WPAGW);

3. m/v Bybek ETB likely on Monday to load 12 000 mts;

4. m/v Agora ETB likely on Tuesday to load 10 000 mts;

5. m/v Amigo ETB likely on Tuesday.

6. m/v Seaforce ETB likely on Wednesday.

FYI- from 19/12 08 lt- no pilotage due to strong wind"

17. Due to pilotage restrictions on December 19-20, 2009, and further heavy ice situation in the approaching channel and

port water area, planned berthing of vessels was not fulfilled making everyday more delay for the Vessel. On Wednesday,

23'd of December, 2009, the Vessel was still neither berthed nor having clear prospects of berthing time.

18. The Vessel was finally berthed on Saturday, 26th of December, 2009, after proceeding with the pilot on board through

Mariupol Channel since Dec.25, 2009, 06.10 till Sat. 26, 03.40 local time.

19. The Parties agreed on loading rate 6000 MT PWWDAYS OF 24 CONS HRS SSHINC. Total quantity of loaded cargo

was 10 336.653 mt. As laytime commenced on Monday, 21st of December 2009, at 14.00 It, it thereby expired on

Wednesday, 23'd of December, 2009, at 7.20 It.

20. The Vessel was on demurrage since this time till Sunday, 21st of December, 2009, 1.45 local time, when the loading

was completed.

21. The demurrage in the loading port thereby calculated by the Charterers is not more than USD22, 560.00.

22. In the discharging port of Varna, Bulgaria, Notice of Readiness was tendered on Thursday, 31st of December, 2009, at

19.40 Lt.

23. Pursuant to the provisions of the Charter Party regarding the commencement of the laytime and taking into account

that the forthcoming days were the local holidays, Friday, 1st of January, 2010, Saturday, 2nd of January, 2010, the laytime

commenced on Sunday, 3rd of January, 2010, at 00.00 It, when discharging commenced.

24. The Parties agreed on discharging rate 5000 MT PWWDAYS SATSHEX UU. The discharging was completed on

Monday, 4th of January 2010, at 4.10 It. Therefore, pursuant to the provisions of the Charter Party in question, no

demurrage occurred in the port of discharging.

25. Therefore the demurrage for the Vessel's voyage Mariupol-Varna under the Charter Party dated Nov.25, 2009, thereby

calculated by the Charterers in total is not more than USD 22,560.00

26. Taking into account the circumstances stated above referring to the negotiations of the Parties in respect of

demurrage payment, the Charterers fully reject the Owners' claim for payment of interests by the Charterers stated in

paragraph 10 of the Claim Submissions.

27. The Charterers on the same grounds deem reasonable and acceptable that each party pays its own costs in this

arbitration .

Enclosures:

No.1. Certificate on force-majeure circumstances by the Chamber of Commerce and Industry of Ukraine

SERVED this 18th day of May 2011, via e-mail to:

Mr. Tom Smith, LMAA Arbitrator

Gallery 6,

the Lloyds Building 18

Leadenhall Street London EX3V 1LP UK [email protected]

AAA International Law Office

22, Lenin str., Moscow

Elena [email protected]

ENCLOSURE 1

FR O M: SAN TIAG O ASSISTANCE I N C F AX N O. : 7 6 87 2 3 47 6 8 2 09 F eb. 2 0 1 1 1 4 :0 3 P 1

THE UKRAINIAN CHAMBER OF COMMERCE AND IN DUSTR Y

33, vul. Velyka Zhytomyrska, Kyiv, 01601, Ukraine 17 February 2010 No.765/65 5

Certificate on force-majeure circumstances

The Ukrainian Chamber of Commerce and Industry considered the request of the Private Enterprise 'ULF' (Donetsk, Ukraine) dated 15 February 2010 No.46/02 regarding confirmation of the force-majeure circumstances that influenced on execution of the Forwarding Agreement dated 7 August 2009 No.07/08-MP made by the Private Enterprise 'ULF' with Santiago Assistance Inc. (Panama). Hereby we inform that the ice formation started in the Sea of Azov (in the approach channel of the Port of Mariupol - since 18 December) in the second half of December 2009, 8 points (under 10-points grade scale) of the dark nilas was recorded on 18 December in the water basin of the Port of Mariupol. On 19-21 December the number of the dark nilas was 10 points. On 22-23 December the drifting light nilas with 5-10 cm thickness was noted, while the ice was 10 points. On 24 December 9 points of the small light nilas with 10 points solidarity and 1 point of the water was recorded in the eastern part of the port. On 25-26 December the mist could be observed. On 27-29 December the small light nilas decreased up to 2-5 points. The extraordinary weather conditions in this period caused delay in loading of m/v Seaforce from18 December 2009 till 25 December 2009 that arrived to the roadstead of the Port of Mariupol on 18 December 2009 (due to the compound pilotage in the channel of Mariupol). M/v Seaforce sailed from the port pursuant to the approved plan on maneuvering works at the first opportunity. The emergency situation in the Sea of Azov caused forced demurrage of m/v Seaforce as well non fulfillment of the obligations on timely removal of the planned volume of coal by the Private Enterprise 'ULF' from the territory of Ukraine (Certificate of Mariupol Hydrometeorological Observatory dated 16 February 2010 No.18-94/40c; Ice Review from 18 December 2009 till 29 December 2009 in the approach channel and water basin of the Port of Mariupol; Order of the Head of the State Enterprise 'Mariupol Sea Commercial Port' dated 25 December 2009 No.615; Certificate of Mariupol Hydrometeorological Observatory dated 16 February 2010 No.18-94/40c; Letter of the State Enterprise 'Mariupol Sea Commercial Port' dated 12 February 2010 No.04-09/124). The above circumstances lasted from 18 December 2009 till 25 December 2009 that influenced on execution of the terms of the Forwarding Agreement dated 7 August 2009 No.33/44-MP made by the Private Enterprise 'USL' and Santiago Assistance Inc., are qualified as forcemajeure circumstances. Vice-President A.K. Timoshenko

A team should write Memoranda of Applicant and Respondent with respect to the Rules of the IMCMA. The applicable law is English. The case will be resolved by the LMAA.

Submissions flow from the above papers.

This compromise is intended only for educational use.

Any coincidence with real natural or legal persons is accidental.

international moot competition on maritime … · -o'wise as per gcn '94 c/p logically...

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