19th ANNUAL INTERNATIONAL MARITIME LAW ARBITRATION MOOT 2018

In the matter of an Arbitration under the Arbitration Act of 1996 and the London Maritime Arbitrator’s Association (LMAA) Rules

Between

Cerulean Beans and Aromas Ltd …Claimant

and

Dynamic Shipping LLC …Respondent

Respondent’s Memorandum

Team One

Amanda S. Thomas Doried D.A. Tovar Zabaleta

Ivan M. Guzman Kira K. Kuhnert

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LIST OF AUTHORITIES

Primary Sources

Statutes

Schedule 1, Carriage of Goods by Sea Act 1991 (Cth).

Electronic Transactions Act 1999 (Cth) ss 9, 10(b).

Cases

Ashville Invs. Ltd v. Elmer Contractors Ltd [1988] 3 WLR 867 (English Ct. App.)

Australian Broadcasting Commission v Australasian Performing Rights Association Limited [1973] 129 CLR 99 at 109

Birkley v. Presgrave. 102 ER 86 (1801).

Bolden v. FedEx Ground Package Systems, Inc., [2011] 60 So.3d 679, 689 (4th Cir.)

Brogden v Metropolitan Railway Co (1877) 2 App Cas 666

The Byrnes v. Kendle [2011] CLR 284

Century Indem. Co. v. Certain Underwriters at Lloyd’s, [2009] 584 F.3d 513, 556 (3d Cir.)

Chimimport plc v. G. D’Alesio SAS, The Paola D’Alesio [1994] 2 Lloyd’s Rep. 366 (QB) (English High Ct.)

Cornell Univ. v. UAW Local 2300, [1991] 942 F.2d 138, 140 (2d Cir.)

Final Award in ICC Case No. 12502, [2009] XXXIV Y. B. Comm. Arb. 130, 157.

Fowler v. Rathbones, 12 Wall. 102, 114.

Hi-Fert Pty Ltd v. Kiukiang Maritime Carriers Inc., [1998] FCA 1485 (Australian Fed. Ct.).

Hyundai Merchant Marine Co Ltd v Dartbrook Coal (Sales) Pty Ltd, [2006] FCA 1324.

In re Dillard Dep’t Stores, Inc., [2006] WL 508629 (Tex.)

Int’l Bhd of Elec. Workers, AFL-CIO v. Verizon New Jersey, Inc., [2006] 458 F.3d 305, 310 (3d Cir.)

The Jason. 225 US 34 (1912)

Kavia Holdings Pty Ltd v Suntrack Holdings Pty Ltd, [2011] NSWSC 716

Kelly v. Camillo, [2006] WL 2773600 (Conn. Super. Ct.)

Kish v. Taylor [1912] A.C 604

Lopes, L.J. Phelps, James & Co. v Hill [1891] 1 QB 605

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Lonrho Ltd v. Shell Petroleum Co. Ltd, [1979] IV Y.B. Comm. Arb. 320 (Ch) (English High Ct. 1978)

Malthouse v Adelaide Milk Supply Co-operative Ltd [1922] SASR 572.

McAndrews v. Thatcher, 3 Wall. 348, 366.

Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd (2010) 30 VR 141.

Monarch SS. Co. v. Karlshanmns Oljefabriker [1949] A.C 196

Owners of Cargo Ex “Greystoke Castle” v. Morrison Steamship Company, Ltd. (1946) 80 LI.L. Rep. 55

Provencher v. Dell, Inc., [2006] 409 F.Supp.2d 1196, 1199 (C.D. Cal.)

Ralli v. Troop. 157 U.S. 365 (1865)

Reardon Smith Line Ltd v. Black Sea and Baltic General Insurance Company Ltd (The Indian City) [1939] A.C. 562

Reardon Smith Line Ltd v Ministry of Agriculture, Fisheries and Food [1962] 1 QB 42

Recyclers of Australia Pty Ltd v. Hettinga Equip. Inc., [2000] 175 ALR 725 (Australian Fed. Ct.).

Robertson v French [1803] 4 East 130

Santiren Shipping Ltd v Unimarine SA (The Chrysovalandou Dyo) [1981] 1 Lloyd’s Rep 159 (QB) 165.

Star of Hope. 76 US 203 (1869).

State ex rel. City Holding Co. v. Kaufman, 609 S.E.2d 855 (W. Va. 2004)

The Madonna D’ldra [1811] 165 ER 1224

Toepfer v. Cremer [1975] 2 Lloyd’s Rep 118

United Steel Workers of Am., AFL-CIP, CLC v. Century Aluminum of Kentucky, [2005] 157 F.Appx. 869, 873 (6th Cir.)

Walter Rau Neusser Oel und Fett AG v. Cross Pac. Trading Ltd, [2006] XXXI Y.B. Comm. Arb. 559, 568-69 (Australian Fed. Ct. 2005)

Woolf v. Collis Removal Serv. [1948] 1 KB 11, 18 (English Ct. App.) (dicta).

Regulations

Hague Visby Rules, Article III rr 1&2 (1968)

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Secondary Sources

Books and Treatises

Bernard Eder et al., Scrutton on Charterparties and Bills of Lading (23d ed, Sweet & Maxwell 2015)

Gary Born, International Arbitration and Forum Selection Agreements: Drafting and Enforcing (4th ed) (2013).

Gary Born, International Commercial Arbitration (2d ed, 2014).

Julian D.M. Lew, Harris Bor, et al. (eds.) Arbitration in England, with chapters on Scotland and Ireland 154 (2013).

Jan Paulssen, The Idea of Arbitration (2014)

P. Zhang, The Obligations of an Anchored Vessel to Avoid Collision at Sea. The Journal of Navigation (The Royal Institute of Navigation, 2013)

Journals

Sarwar, Md. Golam Mahabub, "Impacts of climate change on maritime industries" (World Maritime University Dissertations, 2006).

Hon Justice Steven Rares, The onus of proof in a cargo claim -- Arts III and IV of the Hague-Visby rules and the UNCITRAL Draft Convention, 2008 ABR LEXIS 57

J. A. Nafziger and S. C. Symeonides. Law and Justice in a Multistate World: Essays in Honor of Arthur T. Von Merhren. (2002)

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TABLE OF CONTENTS I. STATEMENT OF FACTS ............................................................................................ 5

A. THE PARTIES .......................................................................................................... 5

B. THE CHARTERPARTY CHAIN .............................................................................. 5 C. PERFORMANCE OF THE CHARTERPARTY ........................................................ 5

II. SUMMARY OF THE ISSUES ...................................................................................... 7 III. THE TRIBUNAL DOES NOT HAVE JURISDICTION TO ADJUDICATE THE DAMAGES PRESENTED BY CLAIMANT ........................................................................ 7

A. JURISDICTION RATIONA CONSENSUS ................................................................. 8 B. JURISDICTION RATIONA MATERIA ...................................................................... 9

IV. THE FORCE MAJEURE CLAUSE ........................................................................ 12 A. THE RESPONDENT IS NOT LIABLE FOR THE DAMAGES CAUSED BY THE DELAY........................................................................................................................... 12 C. THE STORM IS A FORCE MAJEURE EVENT .................................................... 16 D. MERITS ON THE COUNTERCLAIM ................................................................... 19

V. BREACH OF THE VOYAGE CHARTERPARTY AND NEW JASON CLAUSE APPLICATION .................................................................................................................. 19 VI. THE CLAIMANT IS NOT ENTITLE TO EXERSICE A LIEN OVER THE VESSEL 24

A. CLAIMANT DOES NOT HAVE A CONTRACTUAL RIGHT TO A LIEN .......... 24

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I. STATEMENT OF FACTS

A. THE PARTIES

1. The Claimant is Cerulean Beans and Aromas Ltd, a Cerulean Company. The

Respondent is Dynamic Shipping LLC, which is also a Cerulean Company. The vessel,

the Madam Dragonfly (the “Vessel”), was chartered by Respondent. The recipient of

the cargo on board the Vessel is Coffees of the World (“CW”), a Dillamond company.

B. THE CHARTERPARTY CHAIN

2. Based on a need for urgent delivery to a client in Dillamond, Claimant contacted

Respondent for shipment of rare coffee beans only two days before the cargo needed

to leave Cerulean. The Parties negotiated and agreed to the terms of a Voyage Charter

Party (VCP) on the same day, July 22, 2017.

3. Being an expert in shipping, Respondent did not hesitate to accept the industry-

common preform VCP, only making one small immaterial change to the measurement

of the cargo for the purposes of data entry.

4. Respondent, aware of the “commercial sensitivities” of the voyage, took care to use

the state-of-the-art sealant they had been using on several previous voyages. The

sealant had proven itself to keep containers waterproof for up to 5 days, and

Respondent had yet to encounter an issue with the sealant.

5. In the VCP, the Parties agreed that the Vessel should depart Cerulean on July 24, 2017,

and that the cargo be delivered in Dillamond no later than 7pm on July 28, 2017,

allowing Claimant enough time to deliver the cargo to their client in time for a coffee

festival the following day.

C. PERFORMANCE OF THE CHARTERPARTY

6. With the cargo safely on board, the Vessel set sail for Dillamond promptly on July 24,

2017. Respondent informed the Claimant that, based on the agreed-upon route between

the Parties, they expected to deliver the cargo on time.

7. Mother nature had other plans. On July 25, 2017, the Vessel was caught up in the

effects of unexpected solar flares that rendered their entire satellite communications

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system useless for 17 hours. Not wanting to worry Claimant, Respondent informed

them of the flares once communications with the Vessel were reestablished.

8. Luckily, though, the crew was able to note that they had passed the Port of Spectre just

before losing all contact. The ship was well-equipped with the maps for this port and

sought refuge there in order to ensure the safety of the Vessel, the crew and the cargo.

Thankfully, the communications systems were not permanently damaged, and once

communication resumed, the Vessel was headed straight back to Dillamond on July

27, 2017 to deliver the cargo.

9. En route to Dillamond, the crew noted another force of nature headed straight for them.

A sudden and unprecedented freak storm preyed on the vessel, and the Master was

forced to act quickly. Left without any other option, he decided to try and avoid the

storm out at sea, expecting it to be less severe there. Unfortunately, the storm ended

up being worse than expected. The Vessel’s anchor got caught in a coral bed, resulting

in damage to the Vessel’s hull.

10. Attempting to mitigate the delay caused by the flares and the storm, the Master directed

the Vessel straight to the Port of Dillamond but was forced to wait 100nm outside of

the port due to congestion at the port as a result of the storm.

11. Respondent informed Claimant 30 minutes ahead of its berth of its arrival,and

suggested that if no one was available to take the cargo, Respondent would make the

cargo available through electronic access systems, and cautioned Claimant about

congestion at the port. Respondent further noted to Claimant that once the ship was

docked, the demurrage would accrue at USD 20,000 per hour.

12. Having transported the cargo “in accordance with industry standard conditions,” the

cargo was ready for collection and delivery on July 29, 2017 at 8:42pm.

13. The crew waited as long as they could—until midnight—to deliver the cargo, but when

Claimant did not arrive to receive it, the crew was forced to leave it offloaded at gate

1B at the Port of Dillamond.

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II. SUMMARY OF THE ISSUES

14. Whether the tribunal has jurisdiction to adjudicate the dispute between Cerulean Beans

and Aromas Ltd and Dynamic Shipping LLC.

15. Whether the factors that caused the Vessel to deviate from the agreed-upon course

constituted a Force Majeure.

16. Whether Cerulean Beans is entitled to an equitable lean.

17. Whether the damages caused by Respondent were in the amount that Cerulean Beans

claims (USD 30,200,00.00).

III. THE TRIBUNAL DOES NOT HAVE JURISDICTION TO ADJUDICATE THE

DAMAGES PRESENTED BY CLAIMANT

18. The cornerstone of arbitration is the consent of the parties.1 In the present case, the

Parties have opted for a coexistence of both expert determination and arbitral

determination within a single and effective dispute resolution mechanism, allowing for

complicated technical matters to be resolved by an expert of the industry on the one

hand, while also allowing for the determination of non-technical matters by legal

experts on the other.2 It is undisputed that while the Parties intended for some disputes

to be referred to arbitration, they clearly did not intend for all disputes to be resolved

by these means. The intent of the Parties was to rely on effective dispute resolution

mechanisms, which is why they included provisions 27(d)-(g), which stipulate for

some matters to be decided by an Expert Master Mariner.3

19. Even where Parties have specifically agreed to arbitrate, there are certain claims that

either party does not want to be deferred to arbitration. In such cases, parties can

exclude certain issues or categories in the language of the arbitration agreement.4 For

example, parties may choose to exclude particular contractual obligations (such as

payment obligations or technical matters) from the scope of the arbitration clause,5 1 Jan Paulsson, The Idea of Arbitration (2014). 2 VCP, Clause 27. 3 Moot Scenario, p 12. 4 See, e.g., Provencher v. Dell, Inc., 409 F.Supp.2d 1196, 1199 (C.D. Cal. 2006) (“[Arbitration clause] does not apply to claims against Dell arising under the applicable written warranty. Such claims may be pursued in any court of competent jurisdiction.”); Kelly v. Camillo, 2006 WL 2773600 (Conn. Super. Ct.) (arbitration clause excluded non-compete terms from its scope); In re Dillard Dep’t Stores, Inc., 2006 WL 508629 (Tex.) (arbitration agreement excluded worker’s compensation claims); State ex rel. City Holding Co. v. Kaufman, 609 S.E.2d 855 (W. Va. 2004) (arbitration clause excluded payment obligations). 5 Gary Born, International Commercial Arbitration 1384 (2d ed. 2014).

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instead subjecting these obligations to either specialized dispute resolution provisions

(for instance, expert determination) or a choice-of-court clause 6

20. In these instances, where an arbitration agreement contains exclusions or exceptions,

some courts have sometimes declined to interpret the arbitration clause broadly.7 In

one court’s words, “[w]here the arbitration provision is narrowly crafted, we cannot

presume, as we might if it were drafted broadly, that the parties here agreed to

submit all disputes to arbitration.”8

21. Underlined by Article 16 of the UNCITRAL Model Law, the principle of Kompetenz-

Kompetenz allows this Tribunal the right to rule on its own jurisdiction. Based on this

principle, the Tribunal should conclude that it possesses limited (A) jurisdiction

rationa consensus and limited (B) jurisdiction rationa marteria.

A. JURISDICTION RATIONA CONSENSUS

22. The language of the arbitration agreement unequivocally demonstrates the desire of

the Parties to have complicated technical matters be determined by an expert, and not

by an arbitral tribunal. This is common practice in international maritime law.9 If they

had not intended this, they would not have included provisions 27(d)-(g) in the

arbitration agreement.

23. To begin with, the Tribunal should first look to the manner in which the Parties defined

the term “technical matters.” Cl. 27(g) outlines technical matters as “matters

surrounding the technical aspects of the performance of the charterparty, such as the

vessel’s route, loading and unloading of cargo, storage conditions and other matters

which can reasonably be considered to be within the expert technical knowledge of a

Master Mariner.”10 6 Gary Born, International Arbitration and Forum Selection Agreements: Drafting and Enforcing 1342-44 (4th ed. 2013). 7 See, e.g., United Steel Workers of Am., AFL-CIP, CLC v. Century Aluminum of Kentucky, 157 F.Appx. 869, 873 (6th Cir. 2005) (“express provision excluding an issue from arbitration which allows a court to say ‘with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute’ rebuts the presumption of arbitrability”) (quoting AT&T Techs., Inc. v. Commercial Workers, 475 U.S. 643, 650 (U.S. S.Ct. 1986)); Cornell Univ. v. UAW Local 2300, 942 F.2d 138, 140 (2d Cir. 1991) (where collective bargaining agreement limited arbitration to disputes relating directly to its terms, claim arising under other terms is not arbitrable); Bolden v. FedEx Ground Package Systems, Inc., 60 So.3d 679, 689 (4th Cir. 2011) (arbitration clause limited to disputes regarding termination or constructive termination of agreement “but no others” was considered “narrowly crafted” and interpreted restrictively). See also id, supra at note 6 pp 1355-56 n. 201. 8 Int’l Bhd of Elec. Workers, AFL-CIO v. Verizon New Jersey, Inc., 458 F.3d 305, 310 (3d Cir. 2006). See also Century Indem. Co. v. Certain Underwriters at Lloyd’s, 584 F.3d 513, 556 (3d Cir. 2009). 9 Michael Collett, “Chapter 8: Maritime Arbitration” in Julian D.M. Lew, Harris Bor, et al. (eds.) Arbitration in England, with chapters on Scotland and Ireland 154 (2013). 10 VCP, Clause 27(g).

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24. By this definition, the disputes raised by Claimant as to Respondent’s performance

under the VCP fall within the Master Mariner’s determination of technical matters,

and not within the jurisdiction of the Tribunal. These are matters specifically regarding

the “performance of the charterparty,” specifically pertaining to the route, the loading

and unloading of the cargo, and its proper storage.

25. Conversely, the Parties did consent to the Tribunal’s jurisdiction over matters that do

not fall within the definition of “technical matters.” Cl. 27 gives the Tribunal the power

to adjudicate the matters raised by Respondent in their Counterclaim,11 because these

matters are outside of the scope of the expert’s determination. These points of claim

relate to the late payment by Claimant, which is not a technical matter. Therefore, the

Tribunal has jurisdiction over the Counterclaim of Respondent.

B. JURISDICTION RATIONA MATERIA

26. To determine the exact scope of the disputes that the Tribunal may adjudicate, the

Tribunal should analyze the language of the arbitration clause. Cl. 27(a) of the VCP

states that the Parties agree to refer any dispute “arising out of and in connection with

this contract” to arbitration. The terms “arising out of” and “in connection with” are

standard formulae used in most arbitration agreements, even in model clauses set forth

by the leading arbitral institutions.12 They are generally read to be synonymous and are

meant to give effect to the practical objective of commercial parties, which is to obtain

a single, neutral and expert forum for effectively resolving their disputes.13 The

synonimity of the two terms aside, the disputes before this Tribunal clearly fall into

the definitions of these terms, and thus within its jurisdiction.

27. Firstly, the term “in connection with” has been construed liberally by both English14

and Australian15 courts. Similarly, arbitral tribunals, such as the one rendering the Final

Award in ICC Case No. 12502, have concluded that the phrase “in connection with”

11 Moot Scenario, pp 41-42. 12 Gary Born, International Arbitration and Forum Selection Agreements: Drafting and Enforcing 40-42, 47-61 (4th ed. 2013). 13 Gary Born, International Commercial Arbitration 1343 (2d ed, 2014). 14 See, e.g., Ashville Invs. Ltd v. Elmer Contractors Ltd [1988] 3 WLR 867 (English Ct. App.); Lonrho Ltd v. Shell Petroleum Co. Ltd, IV Y.B. Comm. Arb. 320 (Ch) (English High Ct. 1978) (1979). 15 See, e.g.,Walter Rau Neusser Oel und Fett AG v. Cross Pac. Trading Ltd, XXXI Y.B. Comm. Arb. 559, 568-69 (Australian Fed. Ct. 2005) (2006) (“arising out of” has “wide meaning” and is synonymous with “in connection with”).

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is broad.16 In that case, it was held that, inter alia, all disputes as to the conclusion and

negotiation of the Agreement were encompassed in the term “in connection with,”

referenced in the arbitration agreement.17

28. Secondly, the term “arising out of” or “arising under” has brought authorities to

divergent conclusions: some have interpreted the term as broad, while others construe

it narrowly.18 The latter approach is common practice in England, where courts have

historically interpreted the term to be limited to “claims based on the parties’

contract.”19 Australian courts have also adopted a narrow approach when it comes to

interpreting the term “arising out of.”20

a. The damages claimed by Claimant as to the cargo do not fall within the

terms “arising out of” or “in connection with” the VCP because they

occurred after the conclusion of the VCP.

29. The damages presented by Claimant are outside of the scope of the arbitration

agreement because they occurred once the VCP was already performed and completed.

With the delivery of the cargo, which occurred at 8:42pm on July 29, 2017,21

Respondent completed the services it was contracted for under the contract, thus

concluding its effectiveness. Simon Webster, the expert Master Mariner, determined

that the damage to the cargo, presented by Claimant, occurred “in the 24 hours from

4:30am on 30 July 2017.”22 Therefore, it is clear that the damages demanded by

Claimant occurred after the conclusion of the VCP and are therefore outside the scope

of this Tribunal’s jurisdiction. The Parties clearly agreed to have technical and non-

technical matters decided separately, and the fact remains that the technical matter

16 See Final Award in ICC Case No. 12502, XXXIV Y. B. Comm. Arb. 130, 157 (2009) (“arbitration clause, which refers broadly to all disputes ‘in connection with the contract’, must be understood to encompass, inter alia, all disputes as to the negotiation and conclusion of the Agreement”). 17 Id. 18 Gary Born, International Commercial Arbitration 1352 (2d ed, 2014). 19 Chimimport plc v. G. D’Alesio SAS, The Paola D’Alesio [1994] 2 Lloyd’s Rep. 366 (QB) (English High Ct.); Ashville Invs. Ltd v. Elmer Contractors Ltd [1988] QB 488 (English Ct. App.) (misrepresentation claims not encompassed by “arising under” language but covered by words “in connection therewith”); Woolf v. Collis Removal Serv. [1948] 1 KB 11, 18 (English Ct. App.) (dicta). 20 Recyclers of Australia Pty Ltd v. Hettinga Equip. Inc., [2000] 175 ALR 725 (Australian Fed. Ct.). See also Hi-Fert Pty Ltd v. Kiukiang Maritime Carriers Inc., [1998] FCA 1485 (Australian Fed. Ct.). 21 Moot Scenario, p 24. 22 Moot Scenario, p 43.

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have already been determined by the expert Master Mariner,23 as was agreed upon in

Cl. 27 (d)-(g) of the VCP.

b. The damages claimed by Claimant as to the settlement payment between

Claimant and their third-party client do not fall within the terms “arising

out of” or “in connection with” the VCP because this was a separate

agreement.

30. Claimant had an agreement with their third-party client (Coffees of the World) to sell

and deliver rare coffee for a coffee festival in Dillamond.24 Respondent was never a

party to this agreement. The VCP demonstrates a service agreement for the shipment

of the coffee, and not a sales agreement. Nowhere in the VCP is there mention of the

sale of the coffee to Claimant’s third-party client. Therefore, this transaction is neither

“in connection with” nor “arising out of” the contract and consequently outside of the

scope of the Tribunal’s jurisdiction. Moreover, the damages demanded by Claimant in

this regard are a consequence of the determination given by the expert, making them

beyond the Tribunal’s jurisdiction.

c. The damages claimed by Claimant as to the crew’s wages do not fall within

the terms “arising out of” or “in connection with” because it was a

separate agreement between the Parties.

31. The agreement to pay the crew’s wages in a separate trust account was entirely a

separate agreement between the Parties and is nowhere to be found in the VCP. It

neither arises out of the contract (because no clause stipulates it) nor is it in connection

with the contract. The wages are the responsibility of the Owner, and how he negotiates

the payment of these wages is entirely up to his discretion. The Tribunal only has the

power to decide matters included in the VCP, of which the separate payment of the

crew’s wages into a trust account would not be one of.

23 Id. 24 Moot Scenario, p 2, 29.

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d. The damages claimed by Respondent fall within the terms “arising out of”

or “in connection with” because they concern the payment due by

Claimant to Respondent pursuant to Clause 22 of the VCP.

32. According to the VCP, Claimant had a duty to pay Respondent 90% of the amount

billed to Claimant immediately following the delivery of the cargo.25 This amount was

due within two banking days of delivery of the cargo (and the issuance of the invoice,

which occurred on July 31, 2017), which would have been on August 1, 2017.26 The

payment is yet to be made by Claimant. Being that this is an explicit term agreed to by

the Parties in the VCP, it constitutes an issue that “arises out of” the present contract

and thus falls within the Tribunal’s jurisdiction.

33. Moreover, the specific damages claimed by Respondent in the aforementioned invoice

constitute costs for damages that occurred during the Force Majeure events that the

Vessel was subject to. These damages fall under the General Average Clause (VCP,

Clause 19), and thus give the Tribunal yet another basis for determining that this is a

matter arising out of the contract, and therefore falls within its jurisdiction.

IV. THE FORCE MAJEURE CLAUSE

A. THE RESPONDENT IS NOT LIABLE FOR THE DAMAGES CAUSED

BY THE DELAY.

34. Pursuant to the Charterparty, Parties agreed that liability for delays by reason of force

majeure is excluded. Claimant requested the imperative discharge of cargo by 7pm on

Friday, 28 July 2017 but, a prompt notice that cargo was delivered was given to the

claimant by 8:42pm, 29 July 2017. Cl. 17 of the Charterparty excludes liability for

any failure or delay caused by a force majeure event. The Respondent can rely on the

protection under Clause 17(b) of the VCP (A) or the exemptions under Cl. 17 of the

Charterparty (II). The claimant argues the delay was not caused by two events of force

majeure. The delay was justified by ghastly solar flare emissions, that caused a

25 VCP, Clause 22. 26 Moot Scenario, p 32.

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deviation in efforts to save the vessel and an “unforeseen storm,” which led to

circumstances “beyond the control” of the crew.

a. The Deviation was an Effort to Save the Vessel and the Cargo.

35. The solar flares knocked out the satellite communications and navigation systems

which caused a deviation from the given route. Clause 17 of the VCP allows the

Vessel, “liberty to deviate for the purpose of saving life or property (including the

vessel and cargo).”27

36. To determine if the deviation is justifiable under Cl. 17, one must apply the necessity

test. It is important to consider the deviation as pivotal and necessary to achieving the

business aim of the VCP.28 It could be argued that the main aim of the voyage is the

safe delivery of cargo to the Charterers.

37. As a result, the Master of the Vessel has the discretion to exercise his independent

judgement as to the Vessel, its navigation, and, ultimately, the safe delivery of its

cargo. As a matter of agency and contract law through the ship owner, the Master is

also bound by his duty take into account the interest of the cargo owners, the ship

owners, and the lives of his crew on board the ship.29

38. The Tribunal should find that disruptions to navigation and satellite communication

systems caused by the solar flares and a lack of a physical map on the Vessel is a

significant threat to the safe navigation of the Vessel and the cargo. In accordance with

the standard set, any reasonable man acting as a Master of the Vessel, would deviate

from the said route to avoid collisions with other vessels or maritime structures or

getting lost at sea.

39. As seen by the app Lord Porter in Baltic General Insurance, where he explains that

although a direct contract route may be given, the modification of the given route is

permitted for “navigational or other reasons.”30 The Tribunal should allow a broad

27 Moot Scenario, p 9. 28 Sarunas Basijokas, Is the Doctrine of Deviation only a Historical Record Today? UCL Journal of Law and Jurisprudence Vol 1, No 2 (2012). 29 Lopes, L.J. Phelps, James & Co. v. Hill [1891] 1 QB 605. 30Reardon Smith Line Limited v. Black Sea and Baltic General Insurance Company Limited [1939] A.C.562 at 584.

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interpretation of “other reasons” to include a deviation necessitated by

unseaworthiness31 for which liability is excluded.

40. The Tribunal should find that deviation to Spectre to save the ship from sea perils and

updated copy of maps is justifiable even though the ship was unseaworthy, and though,

but for that unseaworthiness, she would not have been in any danger. This principle is

further preserved in common law as a deviation necessarily made to remedy

unseaworthiness is justifiable unless the owners knew about the vessel’s state on

sailing.32

41. The Tribunal should find, like in Taylor,33 that the deviation was not only reasonably

necessary but required to save the Vessel and the lives of the crew members from sea

perils. The Tribunal should find that the failed satellite communications systems,

coupled with the lack of physical maps aboard the ship is an appropriate reason to

divert from the given route because a Master is bound to do so if the safety of the

adventure is threatened.

B. THE SOLAR FLARE IS A FORCE MAJEURE EVENT.

42. The solar flares as described in The Cerulean Mail disrupted satellite and

communication systems. These continuous flares were caused by events beyond the

control of the parties, lasted for two weeks after the July 18, 2017, and would have

continued well beyond the intended duration of the voyage charterparty. While the

solar flare was foreseeable and existed before the contract was executed, such extreme

weather conditions are arguably beyond the control of mankind.

43. The purpose of the Force Majeure clause contained in Cl. 17(b) of the VCP is to

extinguish liability for “unforeseen weather” events that fall within the language of the

clause. By itself, the term force majeure has been construed to cover abnormal weather

conditions.34

31 Kish v. Taylor [1912] A.C 604. 32 Monarch SS. Co. v. Karlshanmns Oljefabriker [1949] A.C 196. 33 Supra, at note 8. 34 Toepfer v. Cremer [1975] 2 Lloyd’s Rep 118.

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44. It is important to note that according to case law and principles of contractual freedom,

there is no settled rule of construction that prevents a party to a Force Majeure clause

from relying on events in existence at the time the contract was entered into as events

beyond that party’s control.35 The Tribunal should find that it was the parties intention

to exclude liability for force majeure events, especially the storm which was in

existence before, and at the time the contract was executed.

45. Further, the Claimant who is based in Cerulean exercised their discretion to choose a

loading port.36 This prompts a strong presumption that Claimant is fully aware with

the weather conditions and other environmental risks such as climate change, that may

have an adverse impact on the safe navigation of the vessel or safe delivery of cargo37.

Tribunal should deduce from the fact pattern that, the Claimant ought to have been

aware of the solar flares in Cerulean and made the decision to choose the Port of

Cerulean despite the warnings.38

46. Therefore, underlying test here in relation to the solar flare is whether such a disruption

of that magnitude, caused by a natural weather event was outside the Respondent’s

control. To determine this, the tribunal must appreciate the standards of care placed by

the Hague Visby Rules on the Owner as regulated by the Carriage of Goods by Sea

Act 1991(COGSA 1991).

47. In Australia, Hague-Visby Rules are given the force of law by their inclusion in Sch 1

of the COGSA 1991.39 Articles III and IV of the Hague-Visby Rules evolved from the

Harter Act 1893 (US). Congress provided a regime which limited the ability of ship

owners to derogate from their common law liability which demanded a more

demanding standard of common carriers.

35 Reardon Smith Line Ltd v. Ministry of Agriculture, Fisheries and Food [1962] 1 QB 42. 36 See Moot Scenario, pp 2,3. 37 Sarwar, Md. Golam Mahabub, "Impacts of climate change on maritime industries" (2006). World Maritime University Dissertations. 276. 38 See Moot Scenario, p 35. (The Cerulean Mail made warnings of satellite and navigational disruptions that were caused by the solar flares and lasted 14 days). 39 Schedule 1 to Carriage of Goods by Sea Act 1991 (Cth).

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48. Article III r 1 imposes an obligation on the carrier before and at the beginning of the

voyage to exercise due diligence to make the ship seaworthy, properly man, equip the

vessel, ensuring it is fit for navigation.

49. Art III r 1 deviates from the common law's requirement of an absolute obligation on a

ship owner to make the vessel seaworthy before she sailed. The Tribunal should find

that courts and other authorities have interpreted Art III r 1 as requiring the ship owner

to act to a relatively high standard but recognize that it is to be relieved from situations

where, for example, latent defects manifest themselves during the course of the

voyage.40

50. Here, the failure of the satellite communication and navigation systems manifested

themselves after the voyage had already begun. This caused the Master to exercise his

discretion to deviate from the prescribed route to the nearest safe port to ensure the

ship was seaworthy and fit for navigation. Tribunal should find that the deviation was

in efforts to ensure safe navigation thus, any liability for delay caused by this deviation

is excluded under Cl. 17.

51. Finally, Tribunal should recognize the Respondent’s efforts to take reasonable steps to

minimize the effects of the delay caused by the force majeure event and prompt written

notice of the cause of the event as required by Cl. 17. Tribunal should find that the

email correspondence between the parties41 informing the Claimant of the force

majeure event and it resulting to a deviation in order to ensure safe navigation and

delivery of cargo constitutes, “reasonable steps” to minimize the effects of the solar

flares.

C. THE STORM IS A FORCE MAJEURE EVENT

52. Firstly, the wording of Cl. 17(b) must be read in the context of the entire clause. Cl.

17 includes a lengthy list of Force Majeure events which exclude liability for delays

or non-performance. Cl. 17(b) excludes liability for delays caused by “unforeseen

weather events” which the storm can be described as.

40 Articles: The onus of proof in a cargo claim -- Arts III and IV of the Hague-Visby rules and the UNCITRAL Draft Convention, 2008 ABR LEXIS 57 Pg 15 41 See Moot Scenario, pp 17,18

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53. Secondly, the “storm” appeared only 30 minutes before delivery of cargo on the radar.

There are generally three essential elements to force majeure: (1) It can occur with or

without human intervention; (2) it cannot have reasonably been foreseen by the parties;

and (3) It was completely beyond the parties' control and they could not have prevented

its consequences.

a. The storm was unforeseeable.

54. The storm was unforeseeable, because it was not in existence before, or at the time the

contract was executed.42 The Dillamond Times reported that the storm which did not

show up on radars until approximately 45 minutes before it hit, brought with

unexpected harsh weather conditions including rain, hail and severe winds that affected

Dillamond.

b. The storm was out of control of the Master.

55. Furthermore, it is reasonable to assume that such a “freakish” and ghastly storm, was

out of the control of the Parties. Considering the voyage was already in progress and

almost coming to an end at the time the storm occurred, one could strongly argue that

approximately 45 minutes is not enough time to take any reasonable steps to avoid the

affected area or plan for an alternative method or port of delivery.

56. The Tribunal should also consider the position of the vessel and the congestion already

present at the port. Respondent gave prompt written notice to the Claimant on the 28th

of July, it also expressed that they had been told by authorities that due to congestion

caused by the storm, the Vessel could not proceed pasts its current location.43

c. Prompt and proper notice was provides as required by the VCP.

57. The party suffering a force majeure event should provide proper notice as prescribed

in the contract. This notice is required in event of any force majeure event arising and

it is to be prompt and written. Thus, in this case prompt and proper notice was provided.

58. The Tribunal, like the court in Hyundai Merchant Marine Co Ltd v. Dartbrook Coal

(Sales) Pty Ltd should favor the analysis that the email correspondence between both

42 Moot Scenario, p 21 (Dillamond Times reported the storm on the July 29, 2017). 43 Moot Scenario, p 19, 20.

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Parties as initiated by the Respondent (on p. 20 of the Moot Scenario), is extrinsic

proof of a prompt written notice as to the cause of the force majeure.44

59. With the frequency of electronic communications and transactions in commerce

today, the Tribunal should find that the purpose of the Electronic Transactions Act

1999 in Australia is to place electronic messages on par with other methods of

communication, so that actions will not be invalidated or discriminated against merely

because they were conducted electronically.

60. It could be implied from the conduct of the parties and the frequent method of

communications that the parties intended that email correspondence are contractually

binding and admissible as evidence in cases of any proceedings.45

61. Under Australian law46, electronic messages are deemed to be writing. For notice to

be effective under the example standard clause, it must also be signed. As technology

is undergoing rapid change in the field of electronic signatures, and because all

business needs differ, jurisdictions adopt the minimalist approach which dictates that

the reliability of the electronic signature must be appropriate given regard to the

circumstances.

62. Furthermore, since the contract is silent on the issue of notices by email, the question

is whether notice sent by email satisfy the requirements for a valid notice set out in the

contract. Like the courts in Kavia Holdings Pty Ltd v Suntrack Holdings Pty Ltd,47

Tribunal should consider that the relevant notice, which was sent by email, satisfied

these requirements because the mandatory requirement as to writing was satisfied.

63. Additionally, two requirements were also met by transmission of the email and

inclusion of the sender's name and email address, noting that any other outcome would

produce a capricious and commercially inconvenient result that might have wide-

reaching and unintended consequences in modern day trade and commerce.48

44 Hyundai Merchant Marine Co Ltd v Dartbrook Coal (Sales) Pty Ltd, [2006] FCA 1324. 45 Brogden v Metropolitan Railway Co (1877) 2 App Cas 666; Malthouse v Adelaide Milk Supply Co-operative Ltd [1922] SASR 572. 46 Electronic Transactions Act 1999 (Cth) s 9. 47 [2011] NSWSC 716 48 Kavia Holdings Pty Ltd v Suntrack Holdings Pty Ltd, [2011] NSWSC 716

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64. This approach if taken will be in accordance with the Metacorp Australia Pty Ltd v

Andeco Construction Group Pty Ltd49 where the Victorian Supreme Court also

considered permissive notice clauses and deemed the service of a notice by email valid

because there had been a historical custom between the parties of serving and

responding to payment claims by email.

D. MERITS ON THE COUNTERCLAIM

65. Cl. 17 of the VCP states the Vessel is not liable for losses occasioned by any latent

defect in the machinery or hull, not resulting from want of due diligence by the Owners

of the ship or any of them or by the ship's husband or manager.50 The Vessel sustained

damage to the hull while trying to avoid damage from the fierce storm. In doing this,

the crew lowered the anchor to further stabilize the vessel and prevent possible damage

to the vessel.

66. While it is important to examine case law on this matter, it is equally as important to

take into consideration general accepted maritime and shipping practices. Anchoring

equipment and techniques are some of the most fundamental aspects of successful and

safe navigation.51

67. Tribunal should find that in that extreme weather condition of ghastly storms with such

high winds, in choosing to lower the anchor, the crew is acting to fulfil its duty to take

into interest the safety of the vessel and—consequently—the cargo52. Thus, excluding

liability for any damages caused the anchors.

V. BREACH OF THE VOYAGE CHARTERPARTY AND NEW JASON CLAUSE

APPLICATION

68. The Claimant is required to share on the losses along with the Respondent pursuant to

the General Average Clause set forth in Cls. 17 and 19 of the VCP as unforeseeable

events of Force Majeure clearly interfered with the regular operations of the Vessel

and thus provoked the late delivery of the cargo. 49 (2010) 30 VR 141. See Opinion by Justice Vickery of the Victorian Supreme Court 50 Moot Scenario, p 9. 51 Eugen Barsan, Radu Hanzu-Pazara, Human response in navigation emergency situation, International Journal of Vehicle Safety, vol. 5, Issue 1 DOI: 10.1504/IJVS.2010.03532 52 William Tetley; Bruce Cleven, Prosecuting the Voyage, 45 Tul. L. Rev. 807 (1970-1971) p 814-815.

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69. Pursuant to Cl. 19 of the VCP, the determination of liabilities shall be made according

to the York/Antwerp Rules that provide that: “In the event of accident, danger, damage

or disaster before or after the commencement of the voyage, resulting from any cause

whatsoever, whether due to negligence or not, for which, or for the consequences of

which, the Carrier is not responsible by statute, contract or otherwise, the goods,

shippers, consignees, or Owners of the good shall contribute with the Carrier in

General Average to the payment of any sacrifices, losses or expenses of a General

Average nature that may be made or incurred and shall pay salvage and special charges

incurred in respect of the goods.”53

70. Rule A of the York-Antwerp Rules defines a general average act as follows:

“There is a general average act when, and only when, any extraordinary sacrifice or expenditure is intentionally and reasonably made or incurred for the common safety for the purpose of preserving from peril the property involved in a common maritime adventure.”

71. The idea of compensation set forth by the General Average Rules has been applied in

cases such as Birkley v. Presgrave, where the Court stated that “[a]ll loss which arises

in consequence of extraordinary sacrifices made or expenses incurred for the

preservation of the ship and cargo comes within general average and must be borne

proportionately by all who are interested.”54

72. The United States Supreme Court also described General Average as a “contribution

by all parties in a sea adventure to make good the loss sustained by one of their number

on account of sacrifices voluntarily made of part of the ship or cargo to save the residue

and the lives of those on board from an impeding peril.” With regard to losses, the

Supreme Court further proclaimed that “[l]osses which give a claim to general average

are usually divided into two great classes: (1) those which arise from sacrifices of part

of the ship or part of the cargo, purposely made to save the whole adventure from

perishing, and (2) those which arise out of extraordinary expenses incurred for the joint

benefit of ship and cargo.”55 53 VCP, Cl. 19. 54 Birkley v. Presgrave. 102 ER 86 (1801) 55 Star of Hope. 76 US 203 (1869).

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73. Cl. 19 of the VCP is defined as the “New Jason Clause,” which is a modern

development of the law of the General Average. The Jason, a case in which the United

States Supreme Court held that General average shall be payable according to the

York/Antwerp Rules if the owner of the ship had exercised due diligence to make said

ship in all respects seaworthy and properly manned, equipped and supplied, held that

in cases of danger, damage or disaster resulting from fault or negligence of the pilot,

Master or crew at the beginning of the voyage but not discoverable by due diligence,

the ship owner shall contribute in general average, if damages had not resulted from

negligence or unseaworthiness.56

74. In this case, not only was the Vessel equipped with proper navigation systems to

mitigate the impending solar flares and the developing weather conditions, but the

crew also took precautionary measures to avoid damages to any of the interests

involved in the voyage as it will be demonstrated below.

75. The United States Supreme Court has also held, that where two or more parties are

engaged in a common sea risk, and one of them in a moment of imminent peril, makes

a sacrifice to avoid the impending danger, or incurs extraordinary expenses to promote

the general safety of the associated interests, the loss or expenses so incurred shall be

assessed upon all in proportion to the share of each in the adventure.57

76. With regards to the actions of the Master, the courts have stated that the Master’s

authority in cases of necessity, in which he has to act for the interests of all parties, and

where there is no superior power involved, constitutes therefore, an act of general

average58 and therefore have granted authority for the master to apply his reasoning

and discretionary powers to a particular problem of danger to take reasonable steps in

the circumstances, provided that his steps are for the interests of all parties involved in

the adventure.

56 The Jason. 225 US 34 (1912) 57 Ralli v. Troop. 157 U.S. 365 (1865). See also Mc Andrews v. Thatcher, 3 Wall. 348,366. See also Fowler v. Rathbones, 12 Wall. 102, 114. 58 Owners of Cargo Ex “Greystoke Castle” v. Morrison Steamship Company, Ltd. (1946) 80 LI.L. Rep. 55

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77. In this case, the steps taken by the Master of the Vessel when deviating to the Port of

Spectre corresponded with the Master’s discretionary power to mitigate any further

delays or costs in the voyage as communications were disrupted by solar flares and

was then ordered to hold 100nm out of Dillamond by the Port of Dillamond as a

massive, unexpected storm hit the area.

78. As stated in our Points of Defense and Counterclaim, there are no liabilities for any

delay as the delay was caused by two events of force majeure59 that Claimant was

properly informed of in emails dated July 26, 2017 and July 28, 2017,60 when both

solar flares that caused disruptions in communications systems worldwide and a

massive storm hitting the Port of Dillamond with no previous notice interfered with

the regular operations of the Vessel.

79. As a result of these two Force Majeure events, the Master of the Vessel interrupted the

route to avoid the impending storm that was detected only 30 minutes before it collided

with the course of the Vessel and was later instructed by the Port of Dillamond to wait

in its position at 100nm out from the Port, as it was informed to the Claimants on July

29, 2017.61

80. Pursuant to the International Regulations to for Preventing Collision at sea, the crew

had the obligation to mitigate any navigation hazards. After full assessment of the

vessel of such hazards to prevent the ship from drifting away from a desired position,

the Master decided to mitigate delay and damages by lowering the anchor to the sea

bed by a length of chain cable.62 Therefore, in response to unforeseen events of Force

Majeure, the Master of the Vessel, in his discretionary authority to protect all interests

involved in the cargo, decided to anchor the vessel at a safe location to avoid the

impeding storm at a designated location where it was believed to avoid the effects of

an unprecedented storm.

59 Points of Defense and Counterclaim. Respondent. Section 4(b) 60 Moot Scenario, pp 17-19 61 Moot Scenario, pp 20. 62 The Obligations of an Anchored Vessel to Avoid Collision at Sea. Pengfei Zhang. The Journal of Navigation (2013), 66, 473-477. The Royal Institute of Navigation 2013

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81. As it was informed to the Claimants, the Vessel was not completely able to avoid the

storm, as the crew anchored the Vessel in a position where it was expected to avoid

the storm’s effects. As a result of the storm being worse at sea, however, the Vessel

sustained heavier damages than expected because the anchor got tangled in a coral bed

on which the ship inadvertently stopped on when anchoring initially, causing damages

to the hull, giving no other option to the crew than to take the necessary actions to

ensure the safety of the vessel itself, the crew and cargo on board.

82. These actions concur with those considered as an act of peril as defined in Thames &

Mersey Insurance Co v. Hamilton, Fraser & Co (The Inchmaree), which established

that peril is “every accidental circumstance, not the result of ordinary wear and tear,

delay, or of the acct of the assured, happening in the course of the navigation, and

incidental to the navigation”.

83. Damages to the hull resulting from the actions taken by the crew after the anchor

tangled inadvertently in a coral bed were therefore an incident to the navigation, which

falls under the elements of general average, pursuant to the York/Antwerp Rules.

84. As a result of the diligent actions of the crew of the Vessel to prevent further damages

to the interests of all of the parties interested in the sea adventure, an act of general

average was constituted and recoveries in general average are permitted as the crew

took all of the precautionary measures to avert an imminent peril, as it happened in

Vlassopoulos v British and Foreign Marine Insurance Co where claims were made by

the ship owner for expenses incurred in putting Cherbourg as a port of refuge and

questioning the element of peril the court stated that it was not necessary that the ship

should be actually in the grip of the disaster that may arise from a danger to take

measures to avert any damages to be an act of general average, it must be a real danger

and thus the implementation of any measure to avert a peril could be grounds for

recoveries in general average.63

85. In this case, actions taken by the crew of the Vessel are those required in Vlassopoulos

to consider a claim in general average, as the master in use of his discretionary 63 Vlassopoulos v. British and Foreign Marine Insurance Co (The Makis) 1929 1 K.B. 187,189.

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authority anchored the vessel to protect all interests involved in the adventure in a

location where the master reasonably considered it could avoid the storm, but the

unprecedented storm caused the anchor to get tangled in a coral bed, causing accidental

damages to the hull.

86. Also, circumstances of Force Majeure that occurred during the course of the

navigation to the Port of Dillamond triggered the decision of the Master to deviate to

the Port of Spectre to protect the integrity of the operation itself, the cargo, the vessel,

and its crew. Pursuant to Cl.19 of the VCP, and due to the unforeseeable events of

Force Majeure that interfered with the regular operations of the Vessel, there are

grounds for Claimant to share on the losses of the general average as agreed upon in

the VCP.

VI. THE CLAIMANT IS NOT ENTITLED TO EXERSICE A LIEN OVER THE

VESSEL

A. CLAIMANT DOES NOT HAVE A CONTRACTUAL RIGHT TO A

MARITIME LIEN

87. Pursuant to the VCP, the Parties agreed that “the Master and the Owners [will have]

an absolute lien on the cargo for all freight, dead freight and demurrage due to the ship

under this charter.”64 This demonstrates that the Parties to the VCP foresaw the

possibility of a lien and focused particularly on Respondent’s right to a lien. The

phrase, “under this charter,” in Cl. 10 also proves that any other right to a lien not

within the VCP is not included. The language of the contract per se is clearly granting

a specific right to the Respondent, but it is not essentially including a right to a lien to

any other person. Claimant does not have a secured right to a lien pursuant to the

applicable law either within the four corners of the contract or beyond the four corners

of the contract.65

64 VCP, Clause 10. 65 Australian Broadcasting Commission v Australasian Performing Rights Association Limited (1973) 129 CLR 99 at 109 (When ascertaining the meaning of the terms of a contract the court is primarily concerned with objectively determining the intention of the parties).

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88. A lien “operates as a defense available to one in possession of a claimant’s goods who

is entitled at common law or by contract to retain possession until he is paid what he

is owed.”66 This illustrates that Claimant has no contractual lien security interest over

the Vessel. Charterparty contracts are to be interpreted with the objective of giving

effect to the intention of the parties.67 The words used in charterparty contracts are to

be understood in their plain, ordinary and popular meaning, unless the context shows

that the parties, for the purposes of the contract, intended to place a different meaning

on them.68 The meaning of the language in a contract depends on “the intention which

the parties expressed, not the subjective intentions which they may have had, but did

not express.”69 Based the facts in this case, the Parties did not expressly discuss their

intention to include any other right to exercise a lien other than the one given to the

Master and the Owners on the cargo pursuant to Cl. 10 of the VCP.

89. “Maritime lien” is a very specific type of maritime claim and breaches of charterparty

contracts do not give rise to “traditional maritime liens.”70 Therefore, even though

Claimant argues that the Respondent has not repaid the US$100,000 security payment

they made on account of wages, they does not hold a right to a maritime lien because

“[t]hese are sacred liens, and, as long as a plank remains, the sailor is entitled, against

all other persons, to the proceeds as a security for his wages.”71 Thus, the crew

members, and not Claimant, are the only persons with the legal right to hold a

“traditional maritime lien” for wages.

90. The present dispute does not concern the crew’s wages itself. Instead, it concerns the

Respondent’s obligations to adhere to the agreed-upon route, to deliver the cargo in

good condition and in a timely fashion, and whether the nonfulfillment of these

obligations constitute a breach of the VCP, providing Claimant with a maritime lien

66 Santiren Shipping Ltd v Unimarine SA (The Chrysovalandou Dyo) [1981] 1 Lloyd’s Rep 159 (QB) 165. 67 Bernard Eder and others, Scrutton on Charterparties and Bills of Lading (23rd edn, Sweet & Maxwell 2015) para 2-047. 68 Robertson v. French (1803) 4 East 130, 136. 69 Byrnes v Kendle (2011) at CLR 284; ALR 236-7 (“Contractual construction depends on finding the meaning of the language of the contract – the intention which the parties expressed, not the subjective intentions which they may have had, but did not express. A contract means what a reasonable person having all the background knowledge of the ‘surrounding circumstances’ available to the parties would have understood them to be using the language in the contract to mean.”) 70 James A.R. Nafziger and Symeon C. Symeonides. Law and Justice in a Multistate World: Essays in Honor of Arthur T. Von Merhren. (2002) P. 443. 71 Sir William Scott in The Madonna D’ldra (1811) 1 Dods 37, 40; 165 ER 1224, 1225.

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over the ship. Justified by events of Force Majeure, the Vessel deviated in an effort to

save the Vessel, the crew, and the cargo.72 It is these elements that are specifically

mentioned in the VCP, and not the crew’s wages. As previously mentioned, the

agreement between the Parties regarding the crew’s wages was a separate agreement,

thereby nullifying Claimant’s right to a maritime lien in the present case.

91. The foregoing reasons also deny Claimant the beneficial right to hold a maritime

equitable lien over the Vessel to secure the sum of damages in the amount of

USD30,200,000. According to the expert Master Mariner, the cargo was damaged at

some point in the 24 hours from 4:30am on July 30, 2017, after the Respondent

delivered the cargo at 8:42pm on July 29, 2017.73 This means that the Respondent’s

obligations under the VCP had been fulfilled, and thus Respondent cannot be held

liable for the damage to the cargo and the subsequent damages that Claimant is

demanding.

VII. PRAYER FOR RELIEF

92. For the foregoing reasons, the Respondent asks this Tribunal to:

FIND that Respondent acted in response to events of Force Majeure to protect

the Vessel, cargo, and the crew, thus justifying the delay of the delivery of the

cargo;

DENY the Claimant’s application for both a maritime equitable lien and a

maritime lien;

APPROVE the Respondent’s application that Claimant share in the losses of

the General Average; and

AWARD costs and damages in favor of the Respondent.

Dated this 18th of April, 2018

Solicitors for the Respondent

Dynamic Shipping LLC 72 Moot Scenario, p 17, 19, 21, 35. 73 Moot Scenario, p 43.