memorandum for claimant - murdoch university shipping corporation v voest alpine intertrading (the...

17th Annual International Maritime Law Arbitration Moot

In the matter of arbitration under the MLAANZ Arbitration Rules

UNIVERSITY OF QUEENSLAND

MEMORANDUM FOR

CLAIMANT

CLAIMANT

Zeus Shipping and Trading Co

Level 4, 200 Beta Street

Poseidon

V

RESPONDENT

Hestia Industries

Level 1, 100 Alpha Street

Hades

COUNSEL

KEILIN ANDERSON | DOMINIC FAWCETT | JAAMAE HAFEEZ-BAIG | AMINA KARCIC

University of Queensland

Memorandum for Claimant

ii

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ...................................................................................................................... iii

LIST OF AUTHORITIES ............................................................................................................................. v

STATEMENT OF FACTS ............................................................................................................................ 1

QUESTIONS PRESENTED ......................................................................................................................... 3

SUBMISSIONS .............................................................................................................................................. 4

I THE TRIBUNAL HAS JURISDICTION TO HEAR THE RESPONDENT’S CLAIM THAT

THE CHARTERPARTY IS FRUSTRATED ......................................................................................... 4

A The Tribunal has the power to rule on its own jurisdiction ............................................................. 4

B The Proper Law of the Arbitration Agreement is English Law ....................................................... 5

C Under English principles of contractual interpretation, a dispute about frustration is a ‘dispute

arising under this contract’....................................................................................................................... 6

D Alternatively, under Western Australian principles of contractual interpretation, the dispute is

nevertheless a ‘dispute arising under this contract’ ................................................................................. 6

II THE RESPONDENT IS LIABLE TO PAY THE CLAIMANT USD $17,900,000 BY WAY OF

DEMURRAGE ........................................................................................................................................... 8

A Laytime did not end on 7 October 2014 and subsequently expired on 13 October 2014 ................ 8

B Alternatively, laytime did not end as the Vessel did not cross the territorial limits of Hades before

being intercepted ...................................................................................................................................... 9

C The delay resulting from the interception of the Vessel was not an interruption to laytime ......... 11

D The interception, return and detention of the Vessel was not due to fault of the Claimant ........... 12

E The Force Majeure Clause does not excuse the Respondent from liability to pay demurrage ...... 13

III THE CHARTERPARTY WAS NOT FRUSTRATED................................................................. 13

A The supervening event was provided for in the Charterparty ........................................................ 14

B In any event, the delay was not of a frustrating character .............................................................. 15

IV ALTERNATIVELY, THE CHARTERPARTY WAS ONLY FRUSTRATED ON 30 APRIL

2015 ........................................................................................................................................................... 16

V THE RESPONDENT IS NOT ENTITLED TO A SALVAGE AWARD ................................... 17

A The Respondent is separate and distinct from the entity that salved the Vessel ............................ 18

B Alternatively, the Respondent’s services were not voluntary ........................................................ 19

C Alternatively, the Respondent should be fully deprived of any award .......................................... 21

PRAYER FOR RELIEF ............................................................................................................................. 23



iii

LIST OF ABBREVIATIONS

Act Arbitration Act 1996 (UK)

Arbitration Agreement Clause 30 of the Charterparty

Art. / Arts. Article/Articles

Bundle Bundle of Documents relevant to Arbitration

Cargo The cargo of HLNG aboard the Vessel

Charterparty The contract concluded between the Claimant and

Respondent on or about 22 July 2014

Claimant Zeus Shipping and Trading Company

Demurrage Clause Clause 10 of the Charterparty

Draft Arbitration

Agreement

Clause 30 of the Draft Charterparty

Draft Charterparty The contract enclosed in the Claimant’s email dated 14 July

2014

Force Majeure Clause Clause 19 of the Charterparty

HLNG Liquefied Natural Gas produced from Hades Shale Gas

Interruptions Clause Clause 9(e) of the Charterparty

Master Captain Marcus Yi

MLAANZ Maritime Law Association of Australia and New Zealand



iv

NOR Notice of Readiness

Respondent Hestia Industries

Salvage Convention International Convention on Salvage 1989

Statement of Facts The Statement of Facts in respect of MV Athena at Hades,

signed by Captain Marcus Yi on 7 October 2014

Tribunal The Arbitral Panel

Vessel MV Athena



v

LIST OF AUTHORITIES

Books

Beale, Hugh, Chitty on Contracts: General Principles (Sweet & Maxwell, 30th ed, 2008)

Reeder, John (ed), Brice on Maritime Law of Salvage (Sweet & Maxwell, 4th ed, 2003)

Rose, Francis, Steel, Sir David and Shaw, Richard (eds), Kennedy & Rose: Law of Salvage (Sweet

& Maxwell, 8th, 2008)

Stannard, John, Delay in the Performance of Contractual Obligations (Oxford University Press,

2007)

Treitel, Sir Guenter, Frustration and Force Majeure (Sweet & Maxwell, 3rd ed, 2014)

Cases

Admiral Shipping Co v Weidner Hopkins & Co [1916] 1 KB 429

AIC Ltd v Marine Pilot Ltd (The Archimidis) [2008] 1 Lloyd’s Rep 597

Amin Rasheed v Kuwait Insurance Corp [1984] AC 50

Arsonovia Ltd and Ors v Cruz City 1 Mauritius Holdings [2013] 1 Lloyd’s Rep 235

Ashville Investments Ltd v Elmer Contractors Ltd [1989] QB 448

Bank Line Ltd v Arthur Capel & Co [1918] AC 435

Black-Clawson International Ltd v Papierwerke Waldoff-Aschaffenburg AG [1981] 2 Lloyd's Rep

446

Brass v Maitland (1856) 6 E & B 470

Budgett v Binnington [1891] 1 QB 35

Chapman v Taylor [2004] NSWCA 456 (13 December 2004)

Chartbrook Ltd v Persimmon Homes Ltd [2008] 3 WLR 267

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337

Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45

Darlington Futures Ltd v Delco Aust Pty Ltd (1986) 161 CLR 500

Davis Contractors Ltd v Fareham UDC [1956] AC 696

Denny, Mott & Dickson Ltd v James B Fraser & Co Ltd [1944] AC 265

Dias Compania Naviera SA v Louis Dreyfus Corp (The Dias) [1978] 1 AC 325



vi

Edwinton Commercial Corp v Tsavliris Russ (Worldwide Salvage & Towage) Ltd (The Sea Angel)

[2007] 2 Lloyd’s Rep 517

Effort Shipping Co Ltd v Linden Management SA (The Giannis NK) [1998] AC 605

Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640

Ellis Shipping Corporation v Voest Alpine Intertrading (The Lefthero) [1992] 2 Lloyd’s Rep 109

Embiricos v Sydney Reid & Co [1914] 3 KB 45

ERG Raffinerie Mediterranee SpA v Chevron USA Inc (The Luxmar) [2007] 2 Lloyd’s Rep 542

Fiona Trust & Holding Corporation v Privalov [2007] Bus LR 1719

Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160

Heimann v Commonwealth of Australia (1938) 38 SR (NSW) 691

Heyman v Darwins Ltd [1942] AC 356

High Seas Venture Ltd Partnership v Sinom (Hong Kong) Ltd (The New Forest) [2008] 1 Lloyd’s

Rep 504

IBM Australia Pty Ltd v State of Queensland [2015] QSC 342 (7 December 2015)

In re Comptoir Commercial Anversois v Power, Son & Co [1920] 1 KB 868

J Lauritzen AS v Wijsmuller BV (The “Super Servant Two”) [1990] Lloyd’s Rep 1

Jackson v Union Marine Insurance Co (1874) LR 10 CP 125

Midwest Shipping v Henry [1971] 1 Lloyd’s Rep 375

oOH! Media Roadside Pty Ltd v Diamond Wheels Pty Ltd (2011) 32 VR 255

Pioneer Shipping v BTP Tioxide (The Nema) [1982] AC 724

Prenn v Simmonds [1971] 1 WLR 1381

Prest v Petrodel Resources Ltd [2013] 3 WLR 1

Profindo Pte Ltd v Abani Trading Pte Ltd (The MV Athens) [2013] 1 Lloyd’s Rep 317

Queensland Co Power Ltd v Downer EDI Mining Pty Ltd [2010] 1 Qd R 180

Salomon v Salomon & Co Ltd [1892] AC 92

Sametiet M/T Johs Stove v Istanbul Petrol Rafinerisi A/S (The Johs Stove) [1984] 1 Lloyd’s Rep 38

Scanlan’s New Neon Ltd v Tooheys Ltd (1943) 67 CLR 169



vii

Scottish Navigation Co Ltd v Souter; Admiral Shipping Co v Weidner Hopkins & Co [1917] 1 KB

222

Sulamerica SA v Enesa Engelharia SA [2013] 1 WLR 102

Tatem v Gamboa [1939] 1 KB 132

The Anthanasia Comninos and Georges Chr Lemos [1990] 1 Lloyd’s Rep 277

The Glenfruin (1885)10 PD 103

The Sava Star [1995] 2 Lloyd’s Rep 134

The Vrede (1861) Lush 322

Thiis v Byers (1876) 1 QBD 244

Transnet v The MV Cleopatra Dream (The Cleopatra Dream) [2011] ZASCA 12 (11 March 2011)

Transworld Oil Ltd v North Bay Shipping Corporation (The Rio Claro) [1987] 2 Lloyd’s Rep 173

Vinava Shipping Co Ltd v Finelvet AG (The Chrysalis) [1983] 1 Lloyd’s Rep 503

XL Insurance Ltd v Owens Corning [2001] 1 All ER (Comm) 530

Conventions

International Convention on Arrest of Vessels 1999, opened for signature 12 March 1999, 1110

UNTS 318 (entered into force 14 September 2011)

Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on

the law applicable to contractual obligations [2008] OJ L 177/6

The International Convention on Salvage 1989, opened for signature 28 April 1989, 1953 UNTS

165 (entered into force 14 July 1996)

United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833

UNTS 3 (entered into force 16 November 1994)

Vienna Convention on the Law of Treaties 1969, opened for signature 23 May 1969, 1155 UNTS

331 (entered into force 27 January 1980)

Legislation

Arbitration Act 1996 (UK)

Contracts (Applicable Law) Act 1990 (UK)

Merchant Shipping Act 1995 (UK)



viii

Other

London Arbitration 6/11 (2011) 827 LMN 3

London Arbitration 29/84 LMLN 134 (20 December 1984)

The Travaux Preparatoires of The International Convention on Salvage 1989, opened for signature

28 April 1989, 1953 UNTS 165 (entered into force 14 July 1996)



1

STATEMENT OF FACTS

1. The Claimant is the owner of a Hades-flagged ‘H Max LNG Carrier’, one of few ships worldwide

capable of carrying the Respondent’s LNG product.1 On 22 July 2014 the Claimant and the

Respondent entered into the Charterparty for the transport of the Respondent’s HLNG from

Hades to Poseidon.2

2. Significant protests were planned due to political unrest towards the Respondent’s Cargo at the

Port of Hades, with the object of preventing HLNG exports.3 On 3 October 2014, the Vessel

arrived at the Port of Hades and the Master tendered the NOR. If the Vessel did not ‘[leave] the

Loading Place’ within 10 WWD SHINC, the Respondent would be liable to pay USD $50,000 in

demurrage per day.4

3. On the Vessel’s arrival, violent protests erupted at the Port of Hades.5 The Master voiced his

concerns about the protests.6 Nevertheless, loading was completed, and on 7 October 2014 the

Vessel commenced sailing.7

4. That day, Opposition Leader Jacqueline Simmons seized control of the Hades Parliament,8 and

ordered the under-resourced Coast Guard to intercept the Vessel and return it to the Port of

Hades.9 Shortly after, the Coast Guard successfully intercepted the Vessel and ordered the Master

1 Bundle, p 3.

2 Ibid p 28.

3 Ibid p 26.

4 Ibid p 34.

5 Ibid pp 52, 53.

6 Ibid.

7 Ibid p 54.

8 Ibid p 55.

9 Ibid.



2

to return to port. The Master initially refused but succumbed when reminded that the Vessel was

Hades-flagged and therefore subject to Hades law.10

5. The exact location of the Vessel was uncertain. The Claimant was deprived of the use of its

Vessel for the following 364 days while detained at the Port of Hades.11 On 15 April 2015, the

Claimant claimed USD $9,200,000 in demurrage,12 and the Respondent resisted.13 On 30

September 2015, President Simmons resigned,14 and on 5 October 2015 the Vessel was

released.15 The Claimant claimed USD $17,900,000 in demurrage.16 The Respondent is yet to

pay.

6. After being towed to open waters by Hestug, a tug operator in the area, the Vessel’s propeller

shafts broke.17 This was the result of tampering while at the Port of Hades.18 The tugs were

nearby at the time and rendered assistance to the Vessel.19

7. The Claimant referred the dispute to arbitration on 16 November 2015.20 The Respondent:

a. denied that the Tribunal had jurisdiction to hear the dispute;

b. without prejudice to its primary position, denied all liability; and

c. claimed a salvage award.21

10

Ibid p 62. 11

Ibid p 70. 12

Ibid pp 63-4. 13

Ibid p 65. 14

Ibid p 53 15

Ibid p 68. 16

Ibid pp 69-70. 17

Ibid p 71. 18

Ibid 19

Ibid 20

Ibid p 72. 21

Ibid p 73.



3

QUESTIONS PRESENTED

1. What is the governing law of the Arbitration Agreement?

2. Does the Tribunal have jurisdiction to hear the dispute over whether the Charterparty is

frustrated?

3. Did laytime end on 7 October 2014?

4. Did the events of 7 October 2014 constitute an interruption to laytime under the

Interruptions Clause?

5. Was the delay due to fault of the Claimant?

6. Was the Charterparty frustrated on 7 October 2014?

7. Was the Charterparty frustrated at a later date?

8. Are Hestug and the Respondent the same legal entity?

9. If so, were the Respondent’s services voluntary?

10. Should the Respondent be fully deprived of the salvage award?



4

SUBMISSIONS

I THE TRIBUNAL HAS JURISDICTION TO HEAR THE RESPONDENT’S

CLAIM THAT THE CHARTERPARTY IS FRUSTRATED

1. The Tribunal has jurisdiction to hear the dispute regarding the frustration of the Charterparty

because: (A) the Tribunal has the power to rule on its jurisdiction; (B) the proper law of the

Arbitration Agreement is English law; (C) under English principles of contractual interpretation,

a dispute regarding frustration is a ‘dispute arising under’ the Charterparty; and (D) alternatively,

under Western Australian principles of contractual interpretation, a dispute regarding frustration

is nevertheless a ‘dispute arising under’ the Charterparty.

A The Tribunal has the power to rule on its own jurisdiction

2. The seat of the arbitration is London and therefore Part 1 of the Act applies. Section 30 of the Act

states that ‘the arbitral tribunal may rule on its own substantive jurisdiction, that is, as to … what

matters have been submitted to arbitration in accordance with the arbitration agreement’. Further,

under section 7, the Arbitration Agreement is treated as separable from the Charterparty and is

not rendered ineffective in the event that the Charterparty is indeed frustrated. It follows that the

Respondent’s claim that the Charterparty is frustrated22 does not affect the Tribunal’s competence

to determine its own jurisdiction.

3. The Arbitration Agreement confers jurisdiction upon the Tribunal over ‘any dispute arising under

this contract’. The relevant inquiry is to determine whether this encompasses the dispute over

22

See Submission III.



5

whether the Charterparty is frustrated. The construction of the Arbitration Agreement is governed

by its proper law, which may differ from the proper law of the Charterparty.23

B The Proper Law of the Arbitration Agreement is English Law

4. Pursuant to common law conflict of law rules,24 the proper law of the Arbitration Agreement is

the system of laws that the parties expressly or impliedly chose, or, if no such choice is

ascertainable, the system of laws with which it has the closest and most real connection.25 In the

absence of an express choice to the contrary, the parties impliedly chose English law to govern

the Arbitration Agreement.

5. From the choice of London as the seat of arbitration, it can be inferred that the parties impliedly

chose English law ‘to govern all aspects of the arbitration agreement, including … the jurisdiction

of the arbitrators’.26 The express choice of Western Australian law for the underlying

Charterparty cannot be used to indicate an implied choice of Western Australian law for the

Arbitration Agreement. Clause 30 explicitly restricts the choice of Western Australian law to ‘this

Charterparty’. The word ‘Charterparty’ connotes rights and obligations relating to the contract for

the carriage of goods by sea, rather than the Arbitration Agreement.27

6. Alternatively, the system of laws with which the Arbitration Agreement has the closest and most

real connection is English law. An agreement to arbitrate has a closer connection with the legal

system of the place where the arbitration is to be held, rather than the system of laws for the

23

Black-Clawson International Ltd v Papierwerke Waldoff-Aschaffenburg AG [1981] 2 Lloyd's Rep 446. See also

Arbitration Act 1996 (UK) s 7. 24

The Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law

applicable to contractual obligations [2008] OJ L 177/6 (‘Rome I Regulation’) does not apply to agreements to

arbitrate. See Contracts (Applicable Law) Act 1990 (UK) sch 1. 25

Amin Rasheed v Kuwait Insurance Corp [1984] AC 50; Sulamerica SA v Enesa Engelharia SA [2013] 1 WLR 102,

114 (Moore-Bick LJ, Hallett LJ and Lord Neuberger MR agreeing). 26

Sulamerica SA v Enesa Engelharia SA [2013] 1 WLR 102, 115 (Moore-Bick LJ) citing XL Insurance Ltd v Owens

Corning [2001] I All ER (Comm) 530. 27

Arsonovia Ltd and Ors v Cruz City 1 Mauritius Holdings [2013] 1 Lloyd’s Rep 235, 244.



6

underlying contract from which it is separable.28 For the reasons above, English principles of

contractual interpretation must be used in construing the Arbitration Agreement.

C Under English principles of contractual interpretation, a dispute about

frustration is a ‘dispute arising under this contract’

7. As reasonable business people who chose arbitration as the dispute resolution procedure, it is

presumed that the parties intended that all disputes arising out of their contractual relationship be

heard by the same tribunal.29 Under English law, an agreement to arbitrate ‘should be construed

in accordance with this presumption unless the language makes it clear that certain questions

were intended to be excluded from the arbitrator’s jurisdiction’.30

8. The phrase ‘any dispute arising under this contract’ encompasses the present dispute because it

does not contain wording that exclude disputes over whether the Charterparty is frustrated. A

semantic analysis of the phrase ‘arising under’ would defeat the parties’ presumed intention.31

The Respondent’s pre-contractual statements concerning the jurisdiction of the Tribunal are

immaterial.32

D Alternatively, under Western Australian principles of contractual

interpretation, the dispute is nevertheless a ‘dispute arising under this contract’

9. In the event that the Arbitration Agreement’s proper law is Western Australian law, the parties

are presumed to have intended that all future disputes be heard by the same tribunal.33 While not

28

Sulamerica SA v Enesa Engelharia SA [2013] 1 WLR 102, 116 [32] (Moore-Bick LJ). 29

Ashville Investments Ltd v Elmer Contractors Ltd [1989] QB 448, 517 (Bingham LJ). 30

Fiona Trust and Holding Corp v Privalov [2007] Bus LR 1719, 1725 [13] (Lord Hoffmann) (‘Fiona Trust’) . 31

Ibid 1724 [12]. 32

Prenn v Simmonds [1971] 1 WLR 1381, 1384 (Lord Wilberforce); affirmed in Chartbrook Ltd v Persimmon Homes

Ltd [2008] 3 WLR 267, 277 [28] (Lord Hoffmann). 33

Francis Travel v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160, 195 (Gleeson CJ); Comandate Marine Corp v

Pan Australia Shipping Pty Ltd (2006) 157 FCR 45, 87 [165] (Allsop J).



7

as strong as the English presumption, the presumption allows the Tribunal to ‘give liberal width

and flexibility to elastic and general words’ in the Arbitration Agreement.34

10. Construed liberally, ‘any dispute arising under this contract’ encompasses the present dispute

because it turns on the proper construction of its terms.35 The Respondent cannot resist the

Tribunal’s jurisdiction on the basis that the clause presupposes the existence of a contract. Such a

construction is unjustifiably narrow and contrary to authority.36

11. The parties’ pre-contractual negotiations over the scope of the Arbitration Agreement are

inadmissible,37 as is the position under English law.38 There is an exception where such evidence,

if it amounts to concurrence, is to be used to ‘negative an inference sought to be drawn from

surrounding circumstances’.39 However, the parties’ agreement to reject a particular meaning or

construction must be unambiguous.40

12. The Respondent requested the Claimant to amend the Draft Arbitration Agreement so that only

‘disputes aris[ing] out of the provisions of the [C]harterparty’ would be arbitrable. The Claimant,

without replying to the Respondent’s request, amended the Draft Arbitration Agreement so that

‘any dispute arising under this contract’ would be arbitrable. This was not an unambiguous

rejection of the presumption that the parties intended for all disputes to be heard by the Tribunal.

The Claimant’s silence was equivocal, and the words in the Arbitration Agreement do not mirror

34

Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45, 87 [164] (Allsop J). 35

Davis Contractors Ltd v Fareham UDC [1956] AC 696; Denny, Mott & Dickson Ltd v James B Fraser & Co Ltd

[1944] AC 265, 274-5 (Lord Wright) cited in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales

(1982) 149 CLR 337, 359 (Mason J). 36

In Heyman v Darwins Ltd [1942] AC 356, 383 Lord Wright considered that disputes ‘arising under’ a contract

included those about frustration; cited in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales

(1982) 147 CLR 337, 366 (Mason J). 37

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 352 (Mason J). 38

Prenn v Simmonds [1971] 1 WLR 1381; Chartbrook Ltd v Persimmon Homes Ltd [2008] 3 WLR 267. 39

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 353 (Mason J) citing Heimann v

Commonwealth of Australia (1938) 38 SR (NSW) 691, 695; IBM Australia Pty Ltd v State of Queensland [2015] QSC

342 (7 December 2015) [105]. 40

Queensland Co Power Ltd v Downer EDI Mining Pty Ltd [2010] 1 Qd R 180, 191 [74].



8

the Respondent’s requested amendment. In the absence of express words from both parties,

admitting their pre-contractual negotiations as evidence would undermine certainty of contract.

II THE RESPONDENT IS LIABLE TO PAY THE CLAIMANT USD $17,900,000 BY

WAY OF DEMURRAGE

13. The Respondent is liable to pay the Claimant demurrage because: (A) laytime did not end on 7

October 2014, and subsequently expired on 13 October 2014; (B) alternatively, laytime did not

end as the Vessel did not cross the territorial limits of Hades before being interrupted; (C) the

delay did not result from cause excepted pursuant to the Interruptions Clause; (D) the delay was

not due to fault of the Claimant; and (E) the Force Majeure Clause does not excuse the

Respondent from this liability.

A Laytime did not end on 7 October 2014 and subsequently expired on 13

October 2014

14. Under clause 9(c)(i), laytime could end in two ways: on the expiry of 10 WWD SHINC from the

date on which the NOR was tendered or when the Vessel ‘leaves the Loading Place’. The Vessel

never left the Loading Place.

15. The word ‘leaves’ should be given a practical construction in light of the purpose of clause 9(c)(i)

and the Demurrage Clause.41 The purpose of a demurrage clause is to provide an agreed amount

payable to reflect the shipowner’s deprivation of the use of its vessel.42 If the permitted laytime

elapses, the charterer is ‘liable in damages for the loss sustained by the shipowner during the

41

Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640, 656 [35] (French CJ, Hayne,

Crennan and Kiefel JJ). 42

ERG Raffinerie Mediterranee SpA v Chevron USA Inc (The Luxmar) [2007] 2 Lloyd’s Rep 542, 544 [4] (Longmore

LJ).



9

period for which [it] is being wrongfully deprived of the opportunity of making profitable use of

his ship’.43

16. Clause 9(c)(i) and the Demurrage Clause place the risk of delays during the loading stage upon

the Respondent until the Vessel ‘[left] the Loading Place’. After that, the risk would be

transferred to the Claimant. The Vessel’s temporary departure and immediate return was not

sufficient to transfer risk under a provision designed to protect the shipowner. The Claimant was

deprived of its Vessel for the following 364 days. This is the exact circumstance for which

shipowners are paid demurrage. A narrow and semantic interpretation of the word ‘leave’ should

not be adopted, as the Claimant would not be remunerated for the extended loss of its Vessel

through no fault of its own.

B Alternatively, laytime did not end as the Vessel did not cross the territorial

limits of Hades before being intercepted

17. In the alternative, the Vessel did not ‘[leave] the Loading Place’ as it did not cross the territorial

limits of Hades before being intercepted by the Coast Guard.

18. The ‘Loading Place’ is described in Box 5 as ‘1 safe port, Hades’.44 This should be interpreted to

refer to Hades itself, rather than the Port of Hades. Unlike Box 9 and clause 9(c)(ii) which refer to

‘Discharging Ports’, Box 5 and clause 9(c)(i) refer specifically to ‘Loading Places’.45 The words

‘1 safe port’ merely refer to the Respondent’s warranty that the port within the ‘Loading Place’

was safe.46 On this construction, the ‘Loading Place’ was the city-state of Hades, as distinct from

the Port of Hades. It follows that the Vessel needed to cross the territorial limits of Hades for

laytime to end before the expiry of 10 WWD SHINC.

43

Dias Compania Naviera SA v Louis Dreyfus Corp (The Dias) [1978] 1 AC 325, 327-8 (Lord Diplock). 44

Bundle, p 29. 45

Ibid. 46

AIC Ltd v Marine Pilot Ltd (The Archimidis) [2008] 1 Lloyd’s Rep 597, 603 [20] (Clarke MR).



10

19. This construction accords with the parties’ intended allocation of risk under the Charterparty.

Whereas conventional laytime clauses provide that laytime ends upon, for example, the

‘disconnection of hoses’,47 clause 9(c)(i) extends the Respondent’s liability for delays beyond the

completion of loading. Having read The Hades Advocate on 20 July 2014, the parties knew that

the Cargo was the subject of political unrest in Hades.48 Any complications arising from this

unrest was most likely to occur within Hades’ territory and could occur after the Vessel was

loaded. Clause 9(c)(i) places this risk upon the Respondent. It would defeat the parties’ allocation

of risk for laytime to have ended despite the Vessel still being within the territorial limits of

Hades.

20. There is no objective evidence that establishes that the Vessel crossed the territorial limits before

being intercepted on 7 October 2014. The Master’s argument that he was outside of territorial

waters49 is not proof of the fact that the Vessel did in fact cross the territorial limits. The Master

knew that the Cargo was the source of political unrest, having reported to the Claimant his

concern about the protests on 4 October 2014.50 If the Master succumbed to the Coast Guard it

was inevitable that delay would result and this was not in the interests of any concerned party.

Against this background the statement was an attempt to resist the Coast Guard’s orders rather

than an accurate statement of the Vessel’s location at the time.

21. Contrary to the Respondent’s assertion on 22 October 2014,51 laytime did not end upon the

issuing of the Statement of Facts on 7 October 2014. There is no custom of a ship’s visit to a port

being at an end upon the issuing of a statement of facts. A statement of facts is a document on

which a Master records relevant events during the loading and discharging stages of the voyage

47

Asbatankvoy clause 11; Shellvoy 3 clause 14; BPvoy clause 2; Mobilvoy clause 12. 48

Clarifications, p 1; Bundle, p 26. 49

Bundle, pp 57, 62. 50

Ibid p 53. 51

Ibid p 62.



11

and, at best, is probative evidence of its contents.52 Here, the Statement of Facts provided that the

Vessel ‘sailed from Hades’ at 0900 hours 7 October 2014. This is not proof of the fact that it

crossed territorial limits before being intercepted.

22. If there is no credible evidence of the Vessel crossing the territorial limits, then it must

necessarily have been intercepted inside territorial waters. Consequently, laytime did not expire

on 7 October 2014 and subsequently expired on 13 October 2014. The Vessel was then on

demurrage until 6 October 2015.53

23. If the Tribunal finds that the limits of the Port of Hades and the territorial limits of Hades are the

same,54 the evidence does not demonstrate that the Vessel crossed this limit. As mentioned above,

there is no objective evidence which shows that the Vessel crossed the territorial limits. The

comment in the article in The Hades Advocate dated 25 October 2014 that the Vessel was

intercepted ‘just outside the port limits of Hades’ is a journalistic piece and does not conclusively

establish the matter.55 The writer cannot be expected to have a thorough knowledge of maritime

zones.

C The delay resulting from the interception of the Vessel was not an interruption

to laytime

24. It is for the Respondent to prove that the Interruptions Clause applies in the circumstances.56

25. On a true construction of the Interruptions Clause the events of 7 October 2014 do not fall within

any of the excepted causes of delay. Relevantly, the exception for ‘arrests’ does not encompass

52

High Seas Venture Ltd Partnership v Sinom (Hong Kong) Ltd (The New Forest) [2008] 1 Lloyd’s Rep 504, 507

[13]. 53

Bundle, p 70. 54

Ibid p 63. 55

Ibid p 62. 56

London Arbitration 6/11 (2011) 827 LMN 3; Profindo Pte Ltd v Abani Trading Pte Ltd (The MV Athens) [2013] 1

Lloyd’s Rep 317.



12

the Vessel’s deprivation of liberty by the Coast Guard. The parties are members of the maritime

shipping industry, a community which ordinarily uses the word ‘arrest’ to describe the seizure of

ships as a provisional remedy to secure a maritime claim.57 The Coast Guard’s detention of the

Vessel was not connected to any maritime claim.

26. The parties did not include common exceptions such as ‘restraint of princes’ and ‘detainment’.

The word ‘arrests’ should not be construed broadly so as to defeat the intention of the parties.

Finally, the Interruptions Clause is an exemption clause that exists for the benefit of the

Respondent and must therefore be read contra proferentem.58

D The interception, return and detention of the Vessel was not due to fault of the

Claimant

27. It is for the Respondent to prove that fault of the Claimant is a bar to a claim for demurrage.59 The

Claimant is not precluded from claiming demurrage as the Master was not at fault in complying

with the Coast Guard’s order to return to berth.60 A master of a vessel is first and foremost a

mariner and is not expected to have a sophisticated understanding of a governmental authority’s

lawful powers. Given the expansive jurisdiction conferred on flag states,61 the Master was not at

fault in relying upon the authority of the Coast Guard of the Vessel’s flag state.

57

See, eg, International Convention on Arrest of Vessels 1999, opened for signature 12 March 1999, 1110 UNTS 318

(entered into force 14 September 2011) art 1(2). 58

Darlington Futures Ltd v Delco Aust Pty Ltd (1986) 161 CLR 500, 510. 59

London Arbitration 29/84 LMLN 134 (20 December 1984). 60

Budgett v Binnington [1891] 1 QB 35. 61

United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered

into force 16 November 1994) art 94(1).



13

E The Force Majeure Clause does not excuse the Respondent from liability to

pay demurrage

28. The Force Majeure Clause lacks the necessary specificity and precision to excuse the Respondent

from its liability to pay demurrage. A general exceptions clause does not apply to delays during

the loading stage unless by clear express words or necessary implication.62 Such clear wording is

absent in the Force Majeure Clause. Construing the Charterparty as a whole, the parties did not

intend for the Force Majeure Clause to extend to delays in the loading stage. The parties

expressly provided that neither laytime nor demurrage would accrue if any of the excepted causes

of delay in the Interruptions Clause arose.

III THE CHARTERPARTY WAS NOT FRUSTRATED

29. The Charterparty was not frustrated because: (A) the supervening event was provided for in the

Charterparty; and (B) in any event, the delay was not of a frustrating character.

30. The interception, return and detention of the Vessel did not frustrate the Charterparty because it

did not render performance ‘a thing radically different from that which was undertaken’ by the

Charterparty.63 The doctrine of frustration should not be invoked lightly as the effect of holding a

contract to be frustrated is to reverse the parties’ allocation of risk.64 The Respondent bears the

onus of establishing that the Charterparty was frustrated.

62

Ellis Shipping Corporation v Voest Alpine Intertrading (The Lefthero) [1992] 2 Lloyd’s Rep 109, 112 (Lloyd LJ);

Transworld Oil Ltd v North Bay Shipping Corporation (The Rio Claro) [1987] 2 Lloyd’s Rep 173; Sametiet M/T Johs

Stove v Istanbul Petrol Rafinerisi A/S (The Johs Stove) [1984] 1 Lloyd’s Rep 38, 41. 63

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 356-357 [39]-[40]

(Mason J), 376-378 (Aickin J) and 408 (Brennan J) citing Davis Contractors Ltd v Fareham UDC [1956] AC 696,

728-9 (Lord Radcliffe). 64

J. Lauritzen AS v Wijsmuller BV (The “Super Servant Two”) [1990] 1 Lloyd’s Rep 1, 8 (Bingham LJ).



14

A The supervening event was provided for in the Charterparty

31. The Demurrage Clause makes ‘full and complete provision’ for the delay caused by the Vessel’s

detention and defeats the Respondent’s plea of frustration.65 The Demurrage Clause is

unconditional and absolute. It applies to any length of delay irrespective of the Respondent’s

fault, provided that the cause of delay was not excepted under the Interruptions Clause. The

parties were at liberty to excuse the Respondent from the consequences of delays caused by

‘restraint of princes’, which would have included detention by the Coast Guard. The parties

omitted to use words to this effect in the Interruptions Clause. From this it can be inferred that

the parties intended to allocate the risk of the delay in question to the Respondent.66

32. The inference that the parties contemplated that the Demurrage Clause would apply in the

present circumstances is strengthened by the fact that the delay following the events on 7

October 2014 was foreseeable.67 The Hades Advocate reported that the ‘Save Hades Group’ were

planning protests as a way of preventing the export of HLNG. Having read the article before

contracting,68 the parties knew that the Cargo was the subject of political unrest. Given that delay

is a frequent incident of maritime adventures,69 the parties would have foreseen delays due to this

political unrest ‘as a real possibility’.70 It is irrelevant that the particular way in which this risk

materialised on 7 October 2014 was not foreseeable.71

65

Bank Line Ltd v Arthur Capel & Co [1918] AC 435, 454 (Lord Sumner). 66

Sir Guenter Treitel, Frustration and Force Majeure (Sweet & Maxwell, 3rd ed, 2014) 450-1 [12-002] citing Thiis v

Byers (1876) 1 QBD 244; Budgett v Binnington [1891] 1 QB 35, 41 (Lopes LJ). 67

oOh! Media Roadside Pty Ltd (formerly Power Panels Pty Ltd v Diamond Wheels Pty Ltd & Anor (2011) 32 VR

255, 275 [80] (Nettle JA). 68

Clarifications, p 1; Bundle, p 26. 69

Bank Line Ltd v Arthur Capel & Co [1918] AC 435, 458 (Lord Sumner). 70

Hugh Beale, Chitty on Contracts: General Principles (Sweet & Maxwell, 30th ed, 2008) [23-060]. See also oOh!

Media Roadside Pty Ltd (formerly Power Panels Pty ltd v Diamond Wheels Pty Ltd & Anor (2011) 32 VR 255, 274

[74], 275 [80] (Nettle JA). 71

Edwinton Commercial Corporation v Tsavliris Russ (Worldwide Salvage & Towage) Ltd (The Sea Angel) [2007] 2

Lloyd’s Rep 517, 538 [119] (Rix LJ); oOh! Media Roadside (formerly Power Panels Pty Ltd & Anor (2011) 32 VR

255, 274 [76] (Nettle JA).



15

B In any event, the delay was not of a frustrating character

33. The delay caused by the Vessel’s detention did not frustrate the Charterparty because at no point

would an informed observer have concluded that the effect of delay and/or likely effect of delay

was such as to frustrate the parties’ common purpose.72

34. The parties’ common purpose was to transport the Cargo from Hades to Poseidon in exchange

for freight. The Charterparty did not stipulate a deadline for delivery. The Claimant was only

required to ‘proceed with all reasonable speed’.73 It is of no consequence that the Respondent

told the Claimant that it wanted the Cargo discharged at Poseidon on or around 30 October

2014. This was a private objective and its fulfilment was not necessary for performance of the

Charterparty.74

35. The Charterparty was not a ‘charter for a definite voyage or adventure’75 as the Cargo was not

required for a specific enterprise at the destination. In the absence of facts to the contrary, the

commissioning of the Respondent’s plant could occur even after considerable delay. Delay

would also have little effect on the Cargo, as the Vessel could store the Cargo ‘with minimal

loss’.76

36. It follows that an informed observer had to be satisfied that the delay was close to interminable

before the Charterparty was frustrated. An informed observer would not have come to this

conclusion at any time during the Vessel’s detention. Although the length of delay was

72

John Stannard, Delay in the Performance of Contractual Obligations (Oxford University Press, 2007) 344 [12.08]

citing Admiral Shipping Co v Weidner Hopkins & Co [1916] 1 KB 429, 436-7 (Bailhache J): reversed on appeal but

for different reasons Scottish Navigation Co Ltd v Souter; Admiral Shipping Co v Weidner Hopkins & Co [1917] 1 KB

222, 242; Pioneer Shipping v BTP Tioxide (The Nema) [1982] AC 724, 752 (Lord Roskill); Chapman v Taylor [2004]

NSWCA 456 (13 December 2004) [8], [35] (Hodgson JA). 73

Bundle, p 31. 74

Ibid p 2. Scanlan’s New Neon Ltd v Tooheys Ltd (1943) 67 CLR 169, 224 (Williams J) citing In re Comptoir

Commercial Anversois v Power, Son & Co [1920] 1 KB 868, 881 (Bailhache J), 895 (Scrutton LJ). 75

Jackson v Marine Union Insurance Co (1874) LR 10 CP 125, 142-3 (Bramwell B). 76

Bundle, p 3.



16

seemingly dependent on the actions of third parties such as the Hades Government,77 the

following facts would suggest to an informed observer that the delay would end in a

commercially acceptable period.

37. The legal basis of the Vessel’s detention was uncertain78 and it was doubtful whether the under-

resourced Coast Guard79 was physically capable of preventing the Vessel from leaving. It also

seemed unlikely that an illegitimate government, which only came to power at the start of the

Vessel’s detention, would have the longevity to detain the Vessel for a sufficiently long period

of time. As it transpired, President Simmons resigned on 30 September 2015 and the Vessel

departed soon after.80 This assists in showing what the probabilities were if they had been

reasonably forecast.81

38. On this basis, the Charterparty remained in existence throughout the Vessel’s detention and the

Respondent owes demurrage in the sum of USD $17,900,000.

IV ALTERNATIVELY, THE CHARTERPARTY WAS ONLY FRUSTRATED ON 30

APRIL 2015

39. If the Tribunal is of the opinion that the delay was of a frustrating character, this would not have

been apparent until a substantial period of delay had accrued. As at 7 October 2014, an

informed observer would have considered it ‘necessary to wait on events’ and reassess on a later

77

Bank Line Ltd v Arthur Capel & Co [1918] AC 435. 78

Bundle, p 74. 79

Ibid p 55. 80

Ibid p 67. 81

Bank Line Ltd v Arthur Capel & Co [1918] AC 435, 454, 460 (Lord Sumner).



17

date when delay had accrued and a better idea of the likely duration could be ascertained.82 This

is because the probable length of delay was inherently speculative.

40. As mentioned above, there were considerable uncertainties surrounding the Vessel’s detention.

Unlike other instances of delay caused by government intervention,83 President Simmons’

regime had come into existence on the day that the Vessel was initially detained. There were no

prior instances of detention at the hands of this regime. Accordingly, this made it impossible for

an informed observer to ascertain the probable length of delay on 7 October 2014. The fact that

the length of delay was dependent on the actions of a government does not preclude a ‘wait and

see’ approach.84

41. An informed observer would have concluded that the Charterparty was frustrated on 30 April

2015, when the Respondent wrote a letter to the Claimant asserting for the first time that the

Charterparty was frustrated.85 At that point, the Vessel had been detained for around 7 months

and it appeared that the Vessel would not be released in the immediate future. It follows that the

Respondent remains liable to pay USD $9,950,000 for 199 days of demurrage.

V THE RESPONDENT IS NOT ENTITLED TO A SALVAGE AWARD

42. The Respondent is not entitled to a salvage reward because: (A) the Respondent and Hestug are

distinct and separate legal entities; (B) alternatively, the Respondent’s services were not

voluntary; (C) alternatively, the Respondent should be fully deprived of any salvage reward.

82

Pioneer Shipping v BTP Tioxide (The Nema) [1982] AC 724, 752 (Lord Roskill); Edwinton Commercial

Corporation v Tsavliris Russ (Worldwide Salvage & Towage) Ltd (The Sea Angel) [2007] 2 Lloyd’s Rep 517, 538

[120] (Rix LJ). Cf Bank Line Ltd v Arthur Capel & Co [1918] AC 435; Embiricos v Sydney Reid & Co [1914] 3 KB

45, 59 (Scrutton J). 83

See, eg, Bank Line Ltd v Arthur Capel & Co [1918] AC 435; Tatem v Gamboa [1939] 1 KB 132. 84

See, eg, Vinava Shipping Co Ltd v Finelvet AG (The Chrysalis) [1983] 1 Lloyd’s Rep 503. 85

Bundle, p 65.



18

43. Under the Salvage Convention,86 an award is contingent on the following criteria:87

a. the salvor undertakes ‘any act or activity ... to assist a vessel or any other property

in danger in navigable waters or in any other waters whatsoever’;

b. the services render a ‘useful result’; and

c. the salvor must be a volunteer.

44. The Salvage Convention will take precedence over the general law of salvage where there is any

inconsistency.88

A The Respondent is separate and distinct from the entity that salved the Vessel

45. The Respondent is not entitled to an award because Hestug is its subsidiary and is therefore a

separate and distinct legal entity.89 The Hades Advocate, in its article dated 7 October 2015

describes Hestug as a ‘tug company’ and a ‘business’ owned by the Respondent.90 This article

does not shed light on the legal relationship between the Respondent and Hestug as it is a

journalistic piece which conflates concepts of corporate personality. The Respondent is listed on

the Hades Stock Exchange and is therefore a public company. It is reasonable to infer that the

Respondent uses subsidiaries to carry out its operations and that Hestug is one such subsidiary.

86

The International Convention on Salvage 1989, opened for signature 28 April 1989, 1953 UNTS 165 (entered into

force 14 July 1996) (‘Salvage Convention’). The Salvage Convention applies whenever proceedings are brought in

England: Merchant Shipping Act 1995 (UK) s 224. 87

Respectively, arts 1(a) and 12(1). 88

John Reeder (ed), Brice on Maritime Law of Salvage (Sweet & Maxwell, 4th ed, 2003) 24 [1-76]; Transnet v The

MV Cleopatra Dream (The Cleopatra Dream) [2011] ZASCA 12 (11 March 2011) [25]. 89

Salomon v Salomon & Co Ltd [1892] AC 92; Prest v Petrodel Resources Ltd [2013] 3 WLR 1. 90

Bundle, p 71. The Hades Advocate 7 October 2015 describes Hestug as a ‘business’ owned by the Respondent.



19

B Alternatively, the Respondent’s services were not voluntary

46. In the event that Hestug and the Respondent are the same entity, the Respondent’s services were

not ‘voluntary’ because they did not go beyond what was ordinarily expected. In The Sava Star91

it was held that a cargo-owner is entitled in principle to a salvage award in respect of meritorious

services rendered to a ship carrying its cargo. However, such services must go beyond what was

ordinarily expected, which is fact-specific and not determined solely by the contractual

relationship.92

47. Article 17 of the Salvage Convention is not inconsistent with this principle. It states that no award

may be granted ‘unless the services rendered exceed what can be reasonably considered as due

performance of a contract entered into before the danger arose’. Article 17 does not prescribe

when services must be the subject of an award and thus is not the sole criterion of when a party is

entitled to a salvage award.

48. Furthermore, the travaux preparatoires to the Salvage Convention93 state that article 17 ‘forms

part of the important principle under which a salvage service must be voluntary’.94 Judicial

authority also supports the survival of general law principles of voluntariness.95 It follows that the

principle in The Sava Star96 is applicable. Accordingly, the fact that the Respondent was not

91

[1995] 2 Lloyd’s Rep 134, 143. 92

Ibid. 93

Vienna Convention on the Law of Treaties 1969, opened for signature 23 May 1969, 1155 UNTS 331 (entered into

force 27 January 1980) arts 31(1) and (2)(b). 94

The Travaux Preparatoires of The International Convention on Salvage 1989, opened for signature 28 April 1989,

1953 UNTS 165 (entered into force 14 July 1996) 430. 95

However where there is a conflict between the common law and the Salvage Convention, the Convention will

prevail: Transnet v The MV Cleopatra Dream (The Cleopatra Dream) [2011] ZASCA 12 (11 March 2011) [25]. 96

[1995] 2 Lloyd’s Rep 134.



20

obliged under either the towage contract or the Charterparty to assist the Vessel during the voyage

stage is inconclusive.97

49. The Respondent’s services do not qualify for a salvage award. The Respondent was in the

business of operating tugs in the area and was in a convenient position to assist the Claimant’s

Vessel, having towed it to open waters moments before.98 The present facts are distinguishable

from those in The Sava Star,99 where the cargo-owners remotely coordinated a salvage operation

which consumed upwards of four days and was extraordinary in character.100 This included:

engaging a fire brigade; arranging a helicopter overflight inspection; contracting a tow service

and deploying their technical manager on board the tow; mobilising specialised firefighting

equipment; and providing chemists to take gas tests and reporting the results to relevant

authorities. In contrast, the Respondent’s services were simple in nature. There is no need to

induce cargo-owners for providing services akin to the Respondent’s by way of an award.

50. The law of salvage treats passengers and cargo-owners equally.101 In The Vrede102 passengers

aboard a damaged ship abstained from abandoning on lifeboats and instead pumped the ship’s

bilges until it was towed to safety. Their claim for an award was rejected. In The Sava Star,103

Clarke J affirmed the correctness of that decision on the basis that the passengers’ services were

ordinarily expected of them. When one accounts for the differing capacities of passengers and

cargo-owners, an analogy can be drawn between a passenger who pumps the bilges of a

distressed ship and a cargo-owner who assists a ship carrying its cargo with a tug that was not

97

Ibid 143. 98

Bundle, p 71. 99

[1995] 2 Lloyd’s Rep 134. 100

Bundle, p 71. 101

Francis Rose, Sir David Steel, and Robert Shaw (eds), Kennedy & Rose: Law of Salvage (Sweet & Maxwell, 8th

ed, 2008) 293 [8-137] citing The Sava Star [1995] 2 Lloyd’s Rep 134. 102

(1861) Lush 322, 325. 103

[1995] 2 Lloyd’s Rep 134.



21

only in the immediate vicinity but had also towed the Vessel immediately prior to the casualty. In

both instances, the putative salvor is acting within their direct means.

C Alternatively, the Respondent should be fully deprived of any award

51. The Respondent should be deprived in full of an award under Article 18 of the Salvage

Convention, which states that ‘a salvor may be deprived of the whole … of the payment due

under this Convention to the extent that the salvage operations have become necessary … because

of fault or neglect on his part.’

52. The Respondent had an implied obligation to warn the Claimant of any risks that the Cargo

presented to the Claimant’s Vessel of which the Claimant was not aware or reasonably aware.104

It was irrelevant whether the Respondent knew of these risks.105 An intrinsic quality of the Cargo

was that it had the risk of inciting political opponents to sabotage the Vessel in an effort to

prevent its carriage.

53. It is a legitimate inference that supporters of President Simmons’ regime were responsible for the

tampering of the Vessel’s propellers,106 and this was the materialisation of such a risk. Had the

Claimant been warned, it could have taken appropriate measures to prevent sabotage or

alternatively refused to ship the Cargo. In light of this counterfactual, the Respondent’s failure to

warn caused the propeller shafts to break, which gave rise to the need for salvage services.

54. The Claimant did not assume this particular risk nor was it reasonably aware of it. The Claimant’s

assumption of risk in respect of the Cargo only extended to risks that were ordinarily associated

with the cargo described in the Charterparty, being ‘Liquefied Natural Gas’, such as damage

104

Brass v Maitland (1856) 6 E & B 470. 105

Effort Shipping Co Ltd v Linden Management SA (The Giannis NK) [1998] AC 605, 619 (Lord Lloyd). 106

Bundle, p 71.



22

caused by explosions.107 While the protests planned for the Vessel’s arrival at Hades would have

put the parties on notice of potential animosity,108 the Claimant could not have been aware that

the political opposition towards the Cargo would result in physical damage to the Vessel.

55. The Respondent breached its duty to warn of the abovementioned risk, which constitutes ‘fault or

neglect’ pursuant to Article 18. Applying Article 18, it is appropriate for the Respondent to be

deprived of any salvage award to which it would otherwise have been entitled.

56. Alternatively, if the Respondent’s breach does not constitute ‘fault’ for the purposes of Article 18,

its claim for an award should fail for circuity of action.109

107

Ibid p 29. See also The Anthanasia Comninos and Georges Chr Lemos [1990] 1 Lloyd’s Rep 277, 284. 108

See Submission III. 109

The Glenfruin (1885)10 PD 103.



23

PRAYER FOR RELIEF

For the reasons submitted above, the Claimant respectfully requests the Tribunal to:

1. DECLARE that it has jurisdiction to hear all of the parties’ disputes;

Further,

2. DECLARE that the Claimant is entitled to the following:

a. USD $17,900,000 in demurrage;

b. In the alternative, USD $9,950,000 in demurrage; and

c. An award of compound interest on any sum found owing in accordance with s 49 of

the Act;

Further,

3. DECLARE that the Charterparty is not frustrated; and

Further,

4. DECLARE that the Respondent is not entitled to a salvage reward.