SIXTEENTH ANNUAL INTERNATIONAL MARITIME LAW ARBITRATION MOOT COMPETITION 2015

Melbourne

Claimant Respondent Western Tankers Inc LDT Pte

MEMORANDUM FOR THE CLAIMANT Team NO. 12

Pablo Fraile Maqueda

Mihail Petrov Imante Sakalyte Maria Samara

Fiona Jennifer Unz

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TABLE OF CONTENTS

LIST OF AUTHORITIES.............................................................................................................................3

LIST OF ABBREVIATIONS .......................................................................................................................9

STATEMENT OF FACTS .........................................................................................................................10

PART ONE: JURISDICTION ....................................................................................................................12

I. LONDON ARBITRATION IS THE COMPETENT SEAT ............................................................12

A. PARTIES ACCEPTED CLAUSE 46 OF THE ST4 ......................................................................12

B. DISPUTES ARISING OUT OF THIS CHARTER .......................................................................14

PART TWO: MERITS ...............................................................................................................................16

II.PIRACY...............................................................................................................................................16

A. RESPONDENT HAS BREACHED ITS CONTRACTUAL OBLIGATIONS REGARDING

TRADE LIMITS..................................................................................................................................17

B. RESPONDENT HAS BREACHED ITS CONTRACTUAL OBLIGATION UNDER THE

BIMCO’s SPECIAL PIRACY CLAUSE ............................................................................................18

C. THE CHARTER-PARTY HAS NOT BEEN TERMINATED DUE TO FRUSTRATION……..20

D. THE RESPONDENT MAY NOT PRECLUDE LIABILITY ON THE BASIS OF

UNSEAWORTHINESS ...........................................................................................................................22

E. THE RESPONDENT IS LIABLE FOR INDEMNIFYING THE CLAIMANT UNDER THE

EMPLOYMENT CLAUSE OF THE CHARTER PARTY ................................................................24

II. TORT OF FRAUD ............................................................................. Error! Bookmark not defined.

A. RESPONDENT AND/OR PERSONS ACTING ON ITS BEHALF MADE DISHONEST

REPRESENTATIONS ........................................................................ Error! Bookmark not defined.

B. RESPONDENT’S ACTIONS CAUSED THE CLAIMANT’S LOSS AND DAMAGES ... Error!

Bookmark not defined.

III. PRAYER FOR RELIEF ....................................................................................................................31

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LIST OF AUTHORITIES: BOOKS

Chitty, J. & Beale, H.J., Chitty on contracts (31st, Sweet & Maxwell, London 2008) Vol II, 38 Danov, M., Jurisdiction and Judgments in Relation to EU Competition Law Claims (1st, Hart Publishing, Oxford 2010) Foxton, D, ‘Indemnities in Time Charters” in R Thomas (ed), Legal Issues Relating to Time Charterparties (Informa, 2008) paragraphs 6.33 to 6.35 Girvin, S.D., Carriage of Goods by Sea (2nd, Oxford University Press, Oxford, 2011) Goghlin, T., Baker, A.W., Kenny, J., Time Charters (6th, informa, London 2008) Harris, B., Planterose, R., Tecks, J., The Arbitration Act 1996: A Commentary (4th, Blackwell Publishing, Oxford 2007) Merkin, R., Arbitration Law (Informa, London 2008) Rutherford, M., Sims, J., Arbitration Act 1996: a practical guide (1st, Sweet & Maxwell, London 1996) Sutton, D., Russell on Arbitration (23rd edn Sweet & Maxwell, London 2007)

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LIST OF AUTHORITIES: CASES

A. ACD Tridon v Tridon Australia Pty Ltd [2002] NSWSC 896 Action Navigation Inc v. Bottiglieri Navigation Spa (The "Kitsa") [2005] EWHC 177 Actis Co Ltd v. The Sanko Steamship Co Ltd (The Aquacharm) [1982] 1 Lloyd’s Ewp 7 (CA) Aggeliki Charis Compania Maritima SA v Pagnan SpA (The Angelic Grace) [1995] 1 Lloyd’s Rep 87 Asghar and Ors v. Legal Services Commission [2004] EWHC 1803 (Ch) Astro Vencedor v Mabanaft [1971] 2 Q.B. 588 B. Bakri Navigation Co Ltd v Glorious Shipping SA [1991] 217 ALR 152 Bank Line v Arthur Capel & Co [1919] AC 435 Briess v Woolley [1954] A.C 223 Burges v. Wickham [1863] 3 B & S 669 Bunge S.A. v. Kyla Shipping Company Limited (Kyla) [2012] EWHC 3522 C. Christensen v. Harris County, [2000] 529 U.S. 576 Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] 157 FCR 45 Cosco Bulk Carrier Co. Ltd. v Team-Up Owning Co. Ltd. (the “Saldanha”) [2010] EWHC 1340 D. Davis Contractors Ltd. v Fareham Urban District Council [1956] AC 696 Dixon v. Sadler [1841] 5 M & W 405 E. Edwinton Commercial Corp v Tsavliris Russ (Worldwide Salvage & Towage) Ltd (The Sea Angel) [2007] 2 Lloyd’s Rep. 517 Empresa Cubana Importada de Alimentos Alimport v. Iasmos Shipping Co SA (the Good Friend) [1984] 2 Lloyd’s Rep 586 Empresa Exportadora de Azucar v Industria Azucera Nacional SA (the Playa Larga) [1983] 2 Ll R 171 ET Plus SA v. Welter [2006] 1 Lloyd’s Rep. 251 F. F. Mildner & Sons v Noble [1956] C.L.Y. 32 Farquharson Bros & Co v King & Co [1902] AC 325 Fiona Trust & Holding Corporation and Others v Privalov and Others [2007] EWCA Civ 20 Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways [1996] 39 NSWLR 160, 165 Freeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 G. G W Grace and Co Ltd v General Steam Navigation Co Ltd (The Sussex Oak) [1950] 1 All ER 201

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H. Hambro v Burnand [1904] 2 K.B. 10 Heyman v Darwins Ltd [1942] A.C.356, 366 I. IBM Australia Ltd v National Distribution Services Pty Ltd [1991] 22 NSWLR 466, 472-477, 483 Islamic Bank PJSC v. Paymentech Merchant Services Inc ; Arab National Bank v. El-Abdali [2005] 1 Lloyd’s Rep. 541 K. Knilll v. Hopper (1857) 2 H & N 277 Kreditbank Cassel G.m.b.H. v Schenkers Ltd [1927] 2 K.B. 450 Kopitoff v Wilson [1876] 1 QBD 377 L. Lauritzen A.S. v Wijsmuller B.V (The Super Servant Two) [1990] 1 Lloyd’s Rep 1 Leni Gas & Oil Investments Limited, Leni Gas & Oil plc v Malta Oil Pty Limited, Phoenicia Energy Co Limited [2014] EWHC 893 Limerik Steamship Co. Ltd. v. W.H. Stott & Co. Ltd [1921] 7 LIL Rep 69 (CA) Lloyd v Grace, Smith & Co [1912] A.C 716 Lloyds Bank Ltd v Chartered Bank of India [1929] 1 K.B. 40 M. Motor oil Hellas Refineries S.A. v. Shipping Corp. of India (The Kanchenjunga) [1990] 1 Lloyd’s Rep. p. 391, 397 (H.L.1989) N. National Carriers Ltd v. Panalpina (Northern) Ltd [1981] AC 675 Navarro v Moregrand Ltd [1951] 2 T.L.R. 674 Navarro v Moregrand Hammoud [1988] 1 W.L.R. 1051 O. Ocean Tramp Tankers Corp v V/O Sovfracht [1964] 2 QB 226 P. Pacific Carriers Ltd v BNP Paribas [2004] 218 CLR 451 Pearl Carriers Inc v Japan Line Ltd (The Chemical venture) [1993] 1 Lloyd’s Rep 508 Polkinghorne v Holland [1934] 51 C.L.R. 143 Premium Nafta Products Limited and Others v Fili Shipping Company Limited and Others [2007] UKHL 40 R. Royal Greek Government v. Minister of Transport (“The Ann Strathatos”) [1950] 83 Ll L Rep. 228 Ruben v Great Fingall Consolidated [1906] AC 439 (HL) S.

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Slingsby and Others v. District Bank [1932] 1 KB 544 Smith Hogg & Co Ltd v. Black Sea and Baltic General Insurance Co Ltd [1940] AC 997 Steel v. State Line Steamship Co [1837] 3 App Cas 72 (Lord Cairns LC) T. Tatem v Gamboa [1939] 1 KB 132 20 Tattersall v. The National Steamship Co. Ltd. (1884) 12 QBD 297 Temple S.S. Co. V. V/O Sovfracht [1944] 77 Lloyd’s Rep. 257 Temple Steamship v. Sovfracht [1945] 79 L1L Rep 1 The Athanasia Comninos 1990 1 Lloyds Rep 277 The Europa [1908] P84 The Georges Christos Lemos (third party proceedings) [1991] 2 Lloyd’s Rep. 107 Total Transport Corporation v Arcadia Petroleum Ltd (The Eurus) [1998] 1 Lloyd’s Rep. 351 Triad Shipping Co v Stellar Chartering & Brokerage Inc (The ”Island Archon”) [1993] 2 Lloyd’s Rep 388 Tritonia Shipping Inc v South Nelson Forest Products Corporation [1966] 1 Lloyd’s Rep 114 U. Ullises Shipping Corporation v Fal Shipping Co Ltd The Greek Fighter [2006] 1 Lloyd’s Rep. Plus 99 Uni Oceans Lines Pte Ltd v. Kamal Sood (The Reunion) [1983] 2 MLJ 189 United Bank of Kuwait v Hammoud [1988] 1 W. L.R. 1051 Uxbridge Permanent Building Society v Pickard [1939] 2 K.B 248 V. Virginia Carolina Chemical Co. v. Norfolk and North American Steam Shipping Co. [1912] 1 KB 229 (CA) W. Woolf v Collis Removal Service [1948] 1 K.B. 11

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LIST OF AUTHORITIES: OTHER

Ben-Caro, J.M., “Modern Piracy and Current Counter-Measures” (2012) 8(3) Canadian naval review 25 Burnett, D., Hartman, M., ‘Legal Lessons learned the last time the Suez Canal closed’, (2011) 42(1) The Arbitrator, 8 Chatterjee, C., 'The Reality of Party Autonomy in International Arbitration' (2003) 20(6) Journal of international arbitration 539 “Combating Somali Piracy: the EU’s Naval Operation Atalanta”, (House of Lords’ EU Committee’s report, HL paper 103, 2010) Lawbook, The Laws of Australia (at 1 February 1999) 13 Dispute Resolution „7 Arbitration‟ Pryles, M., ‘Limits to Party Autonomy in Arbitral Procedure’ (2007) 24(3) Journal of International Arbitration 327 Welser, I., Molitaris, I., 'The Scope of Arbitration Clauses – Or “All Disputes Arising out of or in Connection with this Contract …”' [2012] AYIA 17, 20

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LIST OF AUTHORITIES: INTERNATIONAL CONVENTIONS, RULES AND

STATUTES

International

Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958

United Nations Commission on International Trade Law, Arbitration Rules 1976

United Nations Commission on International Trade Law, Model Law on International

Commercial Arbitration 1985

Domestic

Arbitration Act 1996 (UK) c 2

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LIST OF ABBREVIATIONS

Arbitration Act 1996 : Arbitration Act 1996 (UK) c 23

BIMCO : Baltic and International Maritime Council

BMP : Best Management Practices

ETA : Estimated time of arrival

GPS : Global positioning system

mt : Metric tonnage

New York Convention : Convention on the Recognition and

Enforcement of Foreign Arbitral Awards 1958

OPL : Outer Port Limit

STS : Ship to ship cargo transfer

ST4 : ShellTime 4 charter-party standard form

UTC : Universal time coordinated

WAF : West Africa

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STATEMENT OF FACTS

1. On 22 May 2014 Bill from the Shipbroker (Brokers) contacted Charles from LDT Pte

(Respondent) and offered to find a vessel for LDT Pte. Following the negotiations it was

agreed that the Respondent would charter “Wester Dawn” (Vessel) under a time charter

(Charter-party)

2. The Charter-party was signed on the ST proforma on 26 May 2014 for 3 months +/- 30 days

from 04-06 June 2014. The Charter-party was for the carriage of cargo jet and gasoil from

Singapore.

3. The Charter-party included a clause that disputes are to be settled through arbitration in a

London tribunal (Tribunal).

4. In Singapore the Vessel (Vessel) was supplied with 950mt bunker fuel, which was enough

for the voyage to the discharge port plus a bad weather reserve. System and equipment of

the Vessel for anti-piracy measures were not upgraded due to delay on the equipment

freight to Singapore. The Vessel was loaded with 30 000 mt of cargo jet and 72 199 mt of

gasoil and bills of lading are issued.

5. On 8 June 2014 the Vessel departed from Singapore for Luanda with ETA given as 3 July

2014. On 25 2014 June the Master informed the Respondent that he would reduce speed due

to insufficient bunkers. On 28 2014 June the Respondent informed the Master that bunkers

would be provided at discharge port and that orders will follow in due course.

6. On 28 June 2014 the Master received an e-mail from persons claiming to be working for

Atlantic Service Agency (ASA2). ASA2 informed the Master that the Respondent had

passed control of the vessel to it and provided the coordinates of the discharge port. It also

confirmed that it was instructed to supply 300mt of bunkers.

7. On 3 July 2014 the Master informed the Respondent of their ETA to discharge port and that

the 300mt of bunkers that will be supplied are not enough for laden passage north to MEDI.

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On 3 July 2014 the Master informs the Owner (Claimant) of their ETA to discharge port

and informs that he will not be supplied with enough bunkers for laden passage north to

MEDI.

8. On 3 July 2014 the Claimant informed the Respondent that the payment for the second hire

period was due as of that day and asked for information regarding payment method. On 4

July 2014 the Respondent contacted the Master to inform him that bunkers would be

provided and that the Master would continue to liaise with the agent and to keep the

Charterer informed. On the same day the Master contacted the Claimant to inform him that

he had reached the discharge port but there were no tankers in the area. According to their

radar there were two small fishing boats 5 miles from them and nothing else in 12-mile

radius. Later on, the Master contacted ASA2 to inform that he had reached the discharge

port. After this, the Respondent informed the Claimant that the vessel was considered off

hire for failure to contact with receiver.

9. On 17 July 2014 the Master contacted the Claimant and the Respondent to inform them that

the vessel was back under his control after a pirate attack. According to the Master the

pirates had stolen about 28 000 mt of gasoil and due to no instructions of the Claimant and

no bunkers the vessel was proceeding to Cape Town for assistance.

10. According to the Master the Vessel was damaged as a result of the pirate attack. Only one

radar, GPS and management system was working and the rest of the bridge equipment was

damaged. The Main deck hose crane was unserviceable and the starboard-side

accommodation ladder was buckled.

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PART ONE: JURISDICTION

I. LONDON ARBITRATION IS THE COMPETENT SEAT

11. The competent seat to hear this dispute is to be determined in accordance with Clause 46(b)

of the ST 4 Charter. The reason is that the parties explicitly agreed to submit any dispute to

arbitration as set out in Clause 46 of the Form.

12. The intentions of the parties were expressed in the Charter-party, and any disagreement with

the provisions should have been resolved through negotiation. However, in the Fixed Recap

(from 26 May 2014) is shown that several amendments were made to the standard form’s

provisions and that rider clauses were inserted. Nevertheless, no amendment was made to

Clause 46 of the Charter-party.1

A. PARTIES ACCEPTED CLAUSE 46 OF THE ST4

13. In this case, the contract is concluded without stating any changes to the ST 4 form in the

fully fixed Recap on 26 May 2014, as regards the arbitration clause. A basic principle in

international commercial arbitration is party autonomy.2 It is defined as “total independence

of the parties in organizing but not conducting arbitration”.3 This principle is incorporated

in the Arbitration Act 1996.4 Therefore, parties are free to designate any seat of arbitration

based on mutual consent, and any modification should also be made with the explicit

consent of both parties.5 Consequently Clause 46 from the ST 4 form, which provides the

specific seat of arbitration, is contractually binding upon the parties and London is the

proper seat.6

1 Moot Scenario, 6 2 M Pryles, ‘Limits to Party Autonomy in Arbitral Procedure’ (2007) 24(3) Journal of International Arbitration 327, 330 3 C Chatterjee, 'The Reality of Party Autonomy in International Arbitration' (2003) 20(6) Journal of international arbitration 539, 550 4 Arbitration Act 1996 s 1 (b) 5 B Harris, R Planterose, J Tecks, The Arbitration Act 1996: A Commentary (4th, Blackwell Publishing, Oxford 2007) 31 6 Arbitration Act 1996 s 3 (a)

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14. The arbitration tribunal has jurisdiction to hear this dispute which falls within the scope of a

valid arbitration agreement made between the disputing parties. Charter-party Clause 46 is

part of the contract7 since recap fixture does not reject this view.8 According to the Harris

case,9 the construction of sec. 6 (2) indicates that a specific reference to the arbitration

clause as a presumption for incorporation is no longer necessary,10 additionally clause 46

provides that arbitration of disputes arising out of ST 4 Charter is compulsory and cannot be

treated as an alternative for the signatory parties to exercise.11

15. The Respondent never indicated an explicit intention to treat the arbitration agreement as

invalid. 12 The Respondent could have shown during negotiations its intention to submit

any dispute to exclusive Arbitration in Singapore or other seat, which it did not.

Consequently, the party has implicitly accepted the London arbitration and has refused its

right to arbitration in other seat by precise correction of the contract.13

16. Furthermore, the correspondence from 23rd May 2014 between the Broker and the

Respondent, which indicated that the Respondent “was not keen on London arbitration”

was never communicated to the Claimant. Moreover, if the actual intention of the

Respondent was to reject London as a seat of arbitration, this should have been expressed

unmistakably clear to the Claimant and this should have been communicated during the

construction of the Charter-party. Instead, there is no evidence that the Respondent has

communicated its intention to the Claimant during the negotiations of the Charter-party or

its construction.

7 Arbitration Act 1996 s 6 (2); Article 7(6) 8 Moot scenario, 6: “BASIS PROFORMA ST 4 (DDECEMBER 2003 EDITION) PLUS “SPECIAL PROVISIONS” WITH LDTP RIDER CLAUSES NUMBERS AS ATTACHED” 9 Supra note 5 p.78 10 M Rutherford, J Sims, Arbitration Act 1996: a practical guide (1st, Sweet & Maxwell, London 1996) 33 11 T Goghlin, A W Baker, J Kenny , Time Charters (6th, informa, London 2008) 731 12 ACD Tridon v Tridon Australia Pty Ltd [2002] NSWSC 896; Bakri Navigation Co Ltd v Glorious Shipping SA [1991]0 217 ALR 152 13 Supra note 5 31

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17. For the above mentioned reasons the standard Clause 46 of the ST 4 Charter applies,

according to which all disputes arising out of the charter fall under the exclusive jurisdiction

of London arbitration, in accordance with the Arbitration Act 1996.

B.DISPUTES ARISING OUT OF THIS CHARTER

18. The claim in tort falls within the scope of the arbitration clause as a) The phrase “arising out

of this charter” has an extensive application range and; b) Rational businessmen are

expected to submit to the same tribunal all the disputes that may arise in relation to their

contract.

a. The phrase “arising out of this charter” has an extensive application range

19. The Respondent further argues that the phrase “disputes arising out of this charter” does not

extend, and was not intended to extend to tort.14 It should be noted; nevertheless, that this

expression has exactly the same range of application as the one that the previous line of

authority interpreted as the “wide” clauses, i.e. “in connection”. 15 Therefore the court

should reject the Respondent argument because the view that the narrow clauses include

only disputes on contractual obligations cannot be accepted after the groundbreaking

decision of the “Fiona Trust”.16

20. It should also be pointed out that the admissibility of claims in tort is clearly admitted by

the wording of Section 6 of the Arbitration Act 1996. 17 Additionally the New York

Convention specifically recognizes arbitration agreements to disputes “whether contractual

or not,”18 which specifically go beyond contractual disputes into tortious ones.19

14 Moot Scenario, 68 15 I Welser, S Molitaris , 'The Scope of Arbitration Clauses – Or “All Disputes Arising out of or in Connection with this Contract …”' [2012] AYIA 17, 20 16 Fiona Trust & Holding Corporation and Others v Privalov and Others [2007] EWCA Civ 20 17 D Sutton, Russell on Arbitration (23rd edn Sweet & Maxwell, London 2007) 30; R Merkin, Arbitration Law (Informa, London 2008) 5-53. 18 New York Convention Article II (1)

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21. Indeed, it is a long-established principle that claims in tort can be brought within the

arbitration clause, provided that there is a sufficiently close connection between that claim

and the contract to bring the claim within the arbitration clause, although the claim should

be considered as tort.20 The test of “sufficiently close connection” is satisfied, because the

contractual issue “hire” and the tortious claim are so closely knitted together on the facts

that an agreement to arbitrate one could be construed as covering the other.21

b. Rational businessman are expected to submit to the same tribunal all the disputes that may arise in relation to their contract

22. Regardless of the aforementioned, recent developments in English case law concerning the

ST 4 Form, established that arbitration clauses are to be liberally and broadly construed and

the words “arising out of” cover every dispute except a dispute as to whether there was ever

a contract at all. 22 In Fiona Trust and Holding v Privalov case 23 it was stated that

construction of a conflicts clause “should start from the assumption that the parties, as

rational businessmen, are likely to have intended any dispute arising out of the relationship

into which they have entered or purported to enter” to be governed by the conflict clause,

unless language clearly states otherwise. 24 This approach ultimately promotes legal

certainty.25

23. Nothing in the facts of the case indicates that there was an intention of any of the parties to

submit claims relating to tort to a different forum and even if there was, it was not

19 Supra note 5 53 20 Woolf v Collis Removal Service [1948] 1 K.B. 11, para.18-19; Astro Vencedor v Mabanaft [1971] 2 Q.B. 588; Lawbook, The Laws of Australia (at 1 February 1999) 13 Dispute Resolution „7 Arbitration‟ [13.7.14]; M Danov, Jurisdiction and Judgments in Relation to EU Competition Law Claims (1st, Hart Publishing, Oxford 2010) 234 21 Empresa Exportadora de Azucar v Industria Azucera Nacional SA (the Playa Larga) [1983] 2 Ll R 171; Aggeliki Charis Compania Maritima SA v Pagnan SpA (The Angelic Grace) [1995] 1 Lloyd’s Rep 87. 22 Supra note 16; Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] 157 FCR 45. 23 Id. 24 Premium Nafta Products Limited and Others v Fili Shipping Company Limited and Others [2007] UKHL 40. 25 Id.

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materialized in the agreement. As was stated in the cases: Asghar and Ors v. Legal Services

Commission26, ET Plus SA v. Welter27, Fiona Trust & Holding Corporation and Ors v.

Privalov and Ors28 where the judges underlined that in the sight of the facts related to the

contract construction, all disputes arising out of charter-party should be settled by

arbitration.

24. Since the parties made a charter-party agreement which identifies the seat of arbitration in

ST 4, clause 46 (b), London has exclusive jurisdiction over this dispute, including the claim

in tort. Consequently, Singapore Tribunal is not a proper seat for arbitration.29

PART TWO: MERITS

II.PIRACY

25. The Claimant argues that the Respondent breached its obligations under the Charter-party

based on the following reasons: (A) Respondent has breached its obligations regarding the

trading limits, (B) Respondent has breached its obligations under the BIMCO’S special

piracy clause due to the following reasons: a. Respondent has breached its contractual

obligation to pay hire and b. In any case the Respondent is liable for the equivalent of

Charter Party hire, for any time lost in making good any damage and deterioration resulting

from the seizure, (C) The Charter-party has not been terminated due to frustration, (D)

Respondent may not preclude liability on the basis of unseaworthiness due to the following

reasons: a. No obligation for anti-piracy measures is imposed upon the Claimant, b. the

alleged obligation is nevertheless complied with and c. there is no causation established

26 Asghar and Ors v. Legal Services Commission [2004] EWHC 1803 (Ch) 27 ET Plus SA v. Welter [2006] 1 Lloyd’s Rep. 251 28 Supra note 16 29 Islamic Bank PJSC v. Paymentech Merchant Services Inc ; Arab National Bank v. El-Abdali [2005] 1 Lloyd’s Rep. 541

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between the piracy attack and the alleged breach of obligation and (E) The Respondent is

liable for indemnifying the Claimant under the employment clause of the Charter- Party

A. RESPONDENT HAS BREACHED ITS CONTRACTUAL OBLIGATIONS

REGARDING TRADE LIMITS

26. The Claimant submits that the Respondent breached its contractual obligations under the

Charter-Party. The trade limits originally fixed in a Charter-Party may be extended only

through the parties’ mutual intention to vary their charter.30 In that regard, the tenor and

terms of any correspondence from the Claimant’s in response to the Respondent’s orders

must lead to the conclusion that the initial contract is being amended.31 However, at no

point was the consent of the Claimant obtained regarding such activity in the OPL of

Luanda. It is notable that in light of the Claimant’s correspondence the information

provided referred to “WAF” and did not specify any intention to approach Luanda.32 Thus

it may not be concluded that there has ever been a mutual decision to amend the original

terms of the Charter-Party.

27. Additionally, the Master’s consent to the charterer’s voyage orders generally does not

constitute a variation of the original terms of the Charter- Party. 33 Thus, the ST 4

provisions as agreed upon by the parties will remain in effect. According to the latter’s

clause 4, the international trading limits of the Vessel should always exclude Angola,

which includes the OPL of Luanda. Since the Respondent ordered the vessel to the

aforementioned excluded area, the parties’ rights and obligations are respectively

30 Supra note 11 p. 124 31 Id. 32 Moot scenario, 25-27 33 Motor Oil Hellas (Corinth) Refineries SA -v- Shipping Corporation of India (The Kanchenjunga) [1990] 1 Lloyd’s Rep. 391 (H.L.)

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affected. 34 Accordingly, employment outside the scope of the permitted trading limits

constitutes a breach of contract.35

B. RESPONDENT HAS BREACHED ITS CONTRACTUAL OBLIGATION

UNDER THE BIMCO’s SPECIAL PIRACY CLAUSE

28. The Claimant submits that the Respondent has breached its obligation under the special

piracy clause of the Charter-Party. BIMCO’s special piracy clause expressly provides

under sub-clause (g) that in the event of conflict between the BIMCO clause and any other

clause of the charter-party the BIMCO clause prevails. Specifically, the Respondent has

breached the following contractual obligations under the BIMCO piracy clause: i). The

Respondent has breached its contractual obligation to pay hire and ii). Alternatively the

Respondent is liable for the equivalent of Charter-party hire for any time lost in making

good any damage and deterioration resulting from the seizure.

a. Respondent has breached its contractual obligation to pay hire

29. First, it is submitted that the event of piracy did not render the Vessel off hire. None of the

events contained in the off-hire ST4 represents a piracy attack. Further, the agreed upon

BIMCO piracy clause signed by both parties, expressly provides in sub- clause (f) for the

event of piracy to be considered to continue as on hire. The case law is in line with the

above interpretation. In the “Saldanha” case36 it was held that a vessel captured by pirates

will generally remain on hire while under control of pirates. This was despite charterer’s

34 Pearl Carriers Inc v Japan Line Ltd (The Chemical venture) [1993] 1 Lloyd’s Rep 508 35 G W Grace and Co Ltd v General Steam Navigation Co Ltd (The Sussex Oak) [1950] 83LLR 297; Temple S.S. Co. V. V/O Sovfracht, [1944] 77 Lloyd’s Rep 36 Cosco Bulk Carrier Co. Ltd. v Team-Up Owning Co. Ltd. (the “Saldanha”) [2010] EWHC 1340

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arguments that detention of the Vessel rendered the vessel off-hire due to “detention by

average accident to ship or cargo“ and default or deficiency of men and or due to “any

other cause”. As it was stated by Gross J in the above mentioned case “if the wider

interpretation was allowed, it would result in a startling alteration in the bargain typically

struck in time charter-parties as to the risk of delay”37.

30. Additionally, the Respondent cannot establish that the time period under consideration

should be considered off-hire due to the deviation of the Vessel according to clause 21,

sub-clause (c) of ST4. The BIMCO Piracy Clause for Charter-parties sub- clause (g)

expressly provides that anything that is done by the parties under the piracy clause shall not

be considered as deviation.

31. In any case, even if it is established that the vessel should be considered off-hire, the

burden of proof is on the charterers to prove that the particular clause will be in effect

under the respective circumstances. As it was held in “Royal Greek Government v. Minister

of Transport” case, if there is any doubt regarding the interpretation of off- hire clause then

the words of the clause “must be read in favor of the owners because the charterer is

attempting to cut down the owners’ right to hire”.38

b. In any case the Respondent is liable for the equivalent of Charter- party hire, for any time lost in making good any damage and deterioration resulting from the seizure

32. In any case, even if the Respondent alleges that he has no obligation to pay hire, due to

events giving rise to the operation of the off- hire clause, he is still liable to pay the

equivalent of Charter- party hire, due to the time that was lost when the piracy took part.

According to the express reference of sub- clause (f) of BIMCO piracy clause: “The

Charterers shall pay (…) the equivalent of Charter Party hire, for any time lost in making

good any damage and deterioration resulting from the seizure. The Charterers shall not be 37 Ibid p. 19-20. 38 Royal Greek Government v. Minister of Transport (“The Ann Strathatos”) [1950] 83 Ll L Rep. 228

20

liable for late redelivery under this Charter Party resulting from the seizure of the Vessel”.

Consequently, the Respondent is liable in any case for the late re-delivery of the Vessel and

must pay the exact amount that corresponds to the amount of hire, which has been agreed

in the Charter- party.

C. THE CHARTER-PARTY HAS NOT BEEN TERMINATED DUE TO

FRUSTRATION

33. According to the claims of the Respondent, the piracy that took place from 4th to 17th July

outside Luanda, Angola, and, consequently, resulted to the delay of the agreed journey, is

an event capable of leading to the frustration of the Charter-Party and to the exemption

from their contractual obligations. However, both the case law and the doctrine of

frustration in charter-parties indicate that such a claim is unfounded in events like these that

took place in the present case.

34. It is commonly accepted that in order to establish a frustration in a charter-party a

fundamental alteration of the contract is required.39 A contract will be frustrated only

where there is an unforeseeable change of circumstances which either makes a contractual

obligation incapable of being performed, or which renders performance radically different

from that which was undertaken. Mere inconvenience, hardship or financial loss will not

amount to frustration. The effect of the event that occurs must be such as to destroy the

identity of the charter service or to make it, as a matter of business, a totally different thing,

which the contract is not wide enough to encompass.40

39 Edwinton Commercial Corp v Tsavliris Russ (Worldwide Salvage & Towage) Ltd (The Sea Angel) [2007] 2 Lloyd’s Rep. 517; Davis Contractors Ltd. v Fareham Urban District Council [1956] AC 696 40 Supra note 11 p.483-484; National Carriers Ltd v. Panalpina (Northern) Ltd [1981] AC 675

21

35. In line with the above, courts hold that the doctrine of frustration is not to be lightly

invoked.41 A delay in the fulfillment of the obligations under a charter-party is not capable

of frustrating a contract if the delay is within the commercial risks undertaken by the

parties.42 Additionally in the “Ocean Tramp Tankers” case it was held that the fact that a

ship is trapped is the charterer’s own fault who acts in breach of the war clause, allowing

the vessel to enter in a non-permitted area cannot in any case rely on the detention of the

ship as a ground of frustration.43 Moreover, it is of crucial importance, when at events

which have affected the charter- party, to examine whether on its true construction, the

contract under consideration provided for the event or contingency which had occurred or

allocated the risk of that event or contingency to one or other of the parties, as it has been

held that the contractual allocation of risk was a primary factor in deciding whether or not

a charter- party was frustrated.44

36. Thus, it becomes clear that none of the requirements for the frustration of a charter-party

that have been set by the doctrine as well as the case law is fulfilled in the present case.

The piracy that took place from 4th to 17th of July was an event that had been taken into

consideration, when the parties were entering into the contract, by the special piracy

clauses that allocated the risk and regulated entirely the obligations of the parties as well

as the effects of piracy in the contract, as they have been analyzed above. Piracy cannot,

therefore, be considered to be an exceptional and unpredictable event that changed wholly

the nature of contractual rights and obligations of the parties. Pirates seized the vessel only

for 13 days and then it was entered again under the control of charterers. The damages that

the vessel suffered did not render it useless and did not change the nature of the

obligations of the parties. The contract continues to be valid and the Respondent is liable

41 Lauritzen A.S. v Wijsmuller B.V, (The Super Servant Two) [1990] 1 Lloyd’s Rep 1; D. Burnett, M. Hartman, “Legal Lessons learned the last time the Suez Canal closed”, (2011) 42(1) The Arbitrator, 8 42 Bank Line v Arthur Capel & Co [1919] AC 435; Tatem v Gamboa [1939] 1 KB 132 20 43 Ocean Tramp Tankers Corp v V/O Sovfracht [1964] 2 QB 226 44 Supra note 41; Bunge S.A. v. Kyla Shipping Company Limited (Kyla) [2012] EWHC 3522

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for the non-fulfillment of its contractual obligations, as they are being analyzed in the

above paragraphs.

D. THE RESPONDENT MAY NOT PRECLUDE LIABILITY ON THE BASIS OF

UNSEAWORTHINESS

38. The Claimant contends that none of the requirements of unseaworthiness are met in the

annotated case. More specifically, a seaworthy vessel is one which is fit to meet and

undergo the perils of the sea.45 Accordingly, the standard of seaworthiness is relative to

the nature of the ship, the particular voyage contracted for and the particular stages of the

voyage.46 Therefore, in order for a claim based on the unseaworthiness of a vessel to

succeed, the party invoking such allegations must bear the burden of proof, regarding the

breach of obligation and furthermore the fact that such breach caused the damage under

consideration.47

a. No obligation for anti-piracy measures is imposed upon the Claimant

39. Firstly, the Claimant submits that there is no breach of obligation regarding anti-piracy

measures. The BIMCO Piracy clause under sub-clause (g) and (c), which prevails in case

of contradicting terms, offers the liberty to the ship-owners of a vessel to take preventing

measures. Thus, under the aforementioned clause the risk lies on the charterers who is

responsible for the commercial management of the vessel. Accordingly, the Claimant

45 S D Girvin Carriage of Goods by Sea (2nd, Oxford University Press, Oxford, 2011) 384; Kopitoff v Wilson [1876] 1 QBD 377,380; Virginia Carolina Chemical Co. v. Norfolk and North American Steam Shipping Co. [1912] 1 KB 229 (CA); Steel v. State Line Steamship Co [1837] 3 App Cas 72 (Lord Cairns LC); Dixon v. Sadler [1841] 5 M & W 405,414. 46 Knilll v. Hopper (1857) 2 H & N 277, 283, 157 ER 115, 118; Burges v. Wickham [1863] 3 B & S 669, 696; Empresa Cubana Importada de Alimentos Alimport v. Iasmos Shipping Co SA (the Good Friend) [1984] 2 Lloyd’s Rep 586, 592; Actis Co Ltd v. The Sanko Steamship Co Ltd (The Aquacharm) [1982] 1 Lloyd’s Ewp 7 (CA); Tattersall v. The National Steamship Co. Ltd. (1884) 12 QBD 297,300 47 Uni Oceans Lines Pte Ltd v. Kamal Sood (The Reunion) [1983] 2 MLJ 189; The Europa [1908] P84, 97-8

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could at his own discretion choose to provide anti-piracy measures and may not be held

liable for the absence of such. Therefore, this Tribunal should not examine the question of

breach of obligation provided that this obligation is not established.

b. Alternatively, the alleged obligation is nevertheless complied with

40. Alternatively, even if this Tribunal finds that there is an obligation imposed upon the

Claimant to comply with the BMP4, it is submitted that the Claimant did not breach such

obligation. The vessel did indeed comply with the majority of the necessary prevention

measures. Specifically, Respondent’s allegations only mention the lack of razor wire in a

specific manner, which allegedly was not deployed by the Master of the vessel. In this

regard it should be noted that it is common practice in the shipping industry for vessels to

be equipped with some of the protective measures suggested by the BMP4, however not

all.48 Furthermore, the Master of the vessel stated on the 29th of June that the vessel

complies to the best of her ability with the BMP4, which was never disputed by the

Respondent.49 In light of the above, and by virtue of the principle of proportionality,50 the

Claimant submits that the threshold for breaching the relevant obligation to protect the

vessel is not met.

c. In any case, there is no causation established between the piracy attack and the alleged breach of obligation

41. In any case, in the event that this Tribunal finds that the Claimant did not comply with the

alleged obligation to comply with the BMP4, the Claimant invokes the fact that the

Respondent has not established the necessary causation between the piracy attack and the

48 J M Ben-Caro, “Modern Piracy and Current Counter-Measures” (2012) 8(3) Canadian naval review 25 49 Moot scenario, 36 50 “Combating Somali Piracy: the EU’s Naval Operation Atalanta”, (House of Lords’ EU Committee’s report, HL paper 103, 2010)

24

alleged breach of obligation on behalf of the Claimant.51 The Respondent has based their

claim of unseaworthiness on the hypothesis that the damage suffered was caused by the

lack of preventive measures regarding piracy. However, the chain of causation is

interrupted by the fact that the Respondent ordered the vessel to proceed to an area outside

the trade limits which caused or at least contributed to the loss suffered by the Claimant.

Additionally, the Respondent is responsible under the ST4 Clauses 15 and 29 to provide

sufficient bunkers for the voyage. Nevertheless, according to the undisputed facts of the

present case, the Respondent failed to comply with the aforementioned obligation at the

beginning of the voyage in Singapore.52 Consequently, the bunkers were to be provided in

Durban as an alternative, however the Respondent failed again to comply.53 As a result of

the breach of this obligation on behalf of the Respondent, the Master had to reduce speed

in order to ensure that bunkers would suffice.54 On the basis of the above, the Respondent

has breached his obligations under the charter party and cannot establish any kind of loss

as arising out of the lack of prevention measures.

E. THE RESPONDENT IS LIABLE FOR INDEMNIFYING THE CLAIMANT UNDER THE

EMPLOYMENT CLAUSE OF THE CHARTER PARTY

42. The Claimant submits that the Respondent should indemnify the Claimant regarding any

damages occurred due to the instructions given by the former. Under a time charter-party

the ship-owner puts the vessel at the disposal of the charterer, provided that the limits

prescribed by the contract are not exceeded. Thus, unforeseen expenses for which the

owner of a vessel have not undertaken any responsibility will be borne by the charterer.55

51 Ibid; Smith Hogg & Co Ltd v. Black Sea and Baltic General Insurance Co Ltd [1940] AC 997 52 Moot scenario, 25 53 Moot scenario, 27,28,32 54 Moot scenario, 32 55 Triad Shipping Co v Stellar Chartering & Brokerage Inc (The ”Island Archon”) [1993] 2 Lloyd’s Rep 388

25

In the present case, clause 13 of the ST4 expressly provides for the obligation of the

Respondent to indemnify Owners against all consequences or liabilities that may arise

from the master complying with Charterer’s orders.

43. The test for the expenses to be borne by the Respondent is whether the loss is too remote,

for which no damages would be awarded.56 In that context, a damage would be too remote

if it is of a type that would be beyond the reasonable contemplation of the parties at the

time of concluding the charter party, as liable to result from the breach in question.57 The

Claimant considered the risk of entering the waters of Angola and accordingly excluded

them as trade areas. It is evident that the loss suffered was within the parties’

contemplation, as required. In the present case, the instructions provided by the

Respondent led the vessel to the place of attack, and delayed its leave. Therefore, there is a

causal link between such instructions and the damages suffered by the Claimant.

44. Additionally, the risk of piracy was not a risk which the Claimant had undertaken upon

concluding the Charter-Party. 58 In stark contrast, the Claimant expressly denied such

responsibility to bear the risk by excluding the navigation and sail of the vessel to the area

specified. Provided that the Respondent’s obligation to indemnify the owner operates

irrespectively of fault and negligence,59 it is sufficiently established that the Respondent is

to be held liable by this Tribunal regarding the indemnification owed to the Claimant.

45. In this regard the case of Temple Steamship v. Sovfracht clarified that the owners’ right to

be indemnified is not affected by the Master’s obedience to wrongful orders.60 The judges

held that the obedience of the master to such instructions did not amount to a waiver of the

owner’s right to claim indemnity, since the master was under the orders of the charterers

56 Total Transport Corporation v Arcadia Petroleum Ltd (The Eurus) [1998] 1 Lloyd’s Rep. 351; Ullises Shipping Corporation v Fal Shipping Co Ltd The Greek Fighter [2006] 1 Lloyd’s Rep. Plus 99 57 D Foxton, ‘Indemnities in Time Charters” in R Thomas (ed), Legal Issues Relating to Time Charterparties (Informa, 2008) paragraphs 6.33 to 6.35 58 The Georges Christos Lemos (third party proceedings) [1991] 2 Lloyd’s Rep. 107 59 The Athanasia Comninos [1990] 1 Lloyds Rep 277 60 Temple Steamship v. Sovfracht [1945] 79 Ll.L.Rep. 1

26

as to employment. Hence, according to the above, the fact that the Master complied with

the orders of the Respondent regarding the navigation in the excluded area of Luanda does

not preclude the Claimant’s right to be indemnified for any damages as provided for in the

employment clause.

46. In any case, according to the BIMCO Special Piracy clause sub-clause (d), the Respondent

is to be held liable for any proved costs incurred due to the navigation of the Vessel

through high-risk areas. According to the aforementioned clause, the risk for any such

expenses always lies on the charterer. Thus, the Respondent will in any event carry the

burden of the damages which the Claimant suffered due to the event of piracy.

II. TORT OF FRAUD

47. The Claimant argues that the Respondent is liable to pay loss and damages for the tort of

fraud because: (A) Respondent and/or persons acting on its behalf made dishonesty

representations to the Claimant, which, on their proper construction were untrue. The

representations to claimant were made with the intention that the Claimant would rely on

them; (B) Respondent´s actions caused the Claimant's loss and damages.

A.RESPONDENT AND/OR PERSONS ACTING ON ITS BEHALF MADE

DISHONEST REPRESENTATIONS

48. ASA2 acting as an agent to the Respondent made a representation on the 28th of June

ordering the ship to proceed to coordinates STS 1 in order to discharge cargo and receive

bunkers.61 The representation made by ASA2 is false insofar as there was no intention by

the Respondent for cargo to be discharged and for bunkers to be supplied. The former 61 Moot scenario, 35

27

knew it to be false or was reckless as to the truth of the statement. It has already been

stated in the statement of defense that the representations made by ASA2 were not on

behalf of the Respondent. As a consequence, it is clear that when ASA2 made the

representations it knew that it is false insofar as the coordinates provided by them were not

coordinates where the Respondent would supply the vessel with bunkers and would

discharge the cargo.

49. The Respondent argues that “ASA2 is not, and has never been, the agent of Charterers”.62

However a person can allow another who is not his agent at all to appear as his agent

under the doctrine of apparent authority.63 Consequently the Respondent is responsible for

ASA2’s representations because ASA2 was acting as an agent of the Respondent at that

moment according to the aforementioned doctrine.

50. Even when the emails sent by ASA2 could be considered forged documents or a series of

acts involving fraudulent misrepresentation, this matter would fall within the question of

apparent authority.64

51. Furthermore, the fact that ASA2 acted in his own interests and in fraud of Respondent

should be addressed. Taking into consideration the well-established principle in Lloyd v

Grace that says: “A principal is liable for the fraud of his agent acting within the scope of

his authority, whether the fraud is committed for the benefit of the principal or for the

benefit of the agent”.65 Furthermore a principle is bound by acts done by an agent in the

scope of his apparent authority both in contract and tort.66 Consequently, it should be

concluded that the fraud committed by ASA2 for his own benefit does not relieve the

62 Moot scenario, 67 63 F. Mildner & Sons v Noble [1956] C.L.Y. 32 64 Uxbridge Permanent Benefit Building Society v Pickard [1941] ResJud 11 65 Lloyd v Grace Smith & Co [1912] A.C. 716 66 United Bank of Kuwait v Hammoud [1988] 1 W. L.R. 1051

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Respondent from liability because ASA2 was acting in other respects within the scope of

its apparent authority.67

52. The conditions for establishing apparent authority68 are: (a) A representation is made

(whether by statement or conduct) by the principal that the agent had authority; (b) The

third party must act on the representation.

a. A representation is made (whether by statement or conduct) by the principal that the

agent had authority

53. The conduct of the Respondent has established the authority of ASA2. On the 28th of June

the respondent provided the new discharge area and stated that coordinates would follow

in due course.69 The Master of the ship requested the coordinates of the next bunkering

and shortly following this communication between the Master and the Respondent,

persons presenting themselves as the Atlantic Service Agency provided the Master with

coordinates for bunkering. No other e-mails with contradictory orders were sent from the

Charterer or other persons acting on his behalf. Subsequent communication with the

Respondent also reaffirms the understanding of the Master that he is communicating with

an agent of the Charter.

54. In particular the e-mail from the Master on the 3rd of July which discusses the 300mt of

bunkers that are to be provided at STS 1, which is not contested by the respondent thus

reaffirming the representation of ASA2. In addition in the email from the next day, the

Respondent gave the order that the Master should continue to liaise with his local

coordinator further reaffirming ASA2 as their agent. It should also be pointed out that on

67 Hambro v Burnard [1904] 2 K.B. 10; Navarro v Moregrand Ltd [1951] 2 T.L.R. 674 and Briess v Woolley [1954] A.C 223 68 Freeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 69 Moot scenario, 34

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the 30 June Traders Inc BVI an affiliate of the Defendant was included in the

communication between the Master and ASA2.70

55. Furthermore, upon the request of the Respondent to be informed of the communication

between the Master and the agent, he was put in copy in the e-mail sent to ASA2 from 04th

July 2014 05:22(UTC +1).71 There was no indication by the Respondent that the Master

was not in contact with the actual agent. In view of all the submitted considerations, it is

clear, that the conduct of the Respondent can be viewed as a representation that ASA2 is

their agent.

b. The third party must act on the representation

56. The second requirement under the doctrine of apparent authority is that the third party

must act on the representation. “The requirement that there must be a representation which

is relied on is not interpreted strictly.” 72 “The holding out must be to the particular

individual who says he relied on it.”73 This requirement is fulfilled, as the Master was the

one who trusted in the e-mails addressed to him. The Master relied on the fact that the

person who was communicating with him was acting on behalf of the Respondent;

otherwise he would not have risked his own life and the lives of his crew following those

orders.

57. Additionally, the communication between the Master and the Respondent and his security

agent after he was given the coordinates for the location by ASA2 shows that the Master

refers to them as the same coordinates as those expected by the Respondent;74 therefore it

is evident that the Master was operating under the assumption that the coordinates were

provided by an agent of the Respondent.

70 Moot scenario, 37 71 Moot scenario, 41 72 J Chitty & H.G Beale, Chitty on contracts (31st, Sweet & Maxwell, London 2008) Vol II, 38 73 Farquharson Bros & Co v King & Co 74 Moot scenario, 38

30

58. Apparent authority, also, applies to cases where there is no contract made by an

agent,75 which is the situation in the present case. “A principal is bound by acts done

by an agent in the scope of his apparent authority, whether in contract, tort or

otherwise.”76 A requirement for this to apply is that the third party is acting in good

faith.77 As was established in the previous paragraphs the Master acted in good faith

when following the orders of ASA2.

B. RESPONDENT’S ACTIONS CAUSED THE CLAIMANT’S LOSS AND

DAMAGES

59. As regards this requirement it should be pointed out that as a result of the pirate attack the

Vessel suffered damage to its radar, gps and management systems, the main deck hose

crane and the starboard-side accommodation ladder. As it was established in the previous

paragraphs the pirate attack was a consequence of the representation made by ASA2 who

acted on behalf of the Respondent and provided the Master with the coordinates for STS 1,

where the pirate attack took place.

60. Finally as has been established in the previous paragraphs the Respondent or parties acting

on its behalf have made a false representation. Moreover this representation was intended

to be relied on and in fact was relied on. It should be observed that a party is entitled to

claim in fraud when the other party made a representation, which is false, dishonestly

made, and intended to be relied on and in fact relied on. Consequently the Claimant is

entitled to claim in fraud because it suffered a direct loss from the representations made by

75 J Chitty & H.G Beale, Chitty on contracts (31st, Sweet & Maxwell, London 2008) Vol II, 41 76 Supra note 65; Polkinghorne v Holland [1934] 51 C.L.R. 143; Uxbridge Permanent Building Society v Pickard [1939] 2 K.B 248; Navarro v Moregrand Hammoud [1988] 1 W.L.R. 1051 77 See statement of Scrutton L.J. in Lloyds Bank Ltd v Chartered Bank of India [1929] 1 K.B. 40,56

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the Respondent as shown in the email sent by the Master the 17th of July of 2014 at 23:25

(UTC+1).78

III.PRAYER FOR RELIEF

In light of the above submissions, the Claimant requests the Tribunal to:

DECLARE that this Tribunal has jurisdiction to hear the merits of the Claimant’s claims;

FIND that the Respondent is liable for the breaches of contract and the tort of fraud as argued

above; and

AWARD damages to the Claimant and interests on the amount claimed

78 Moot scenario, 42