3RD NATIONAL LAW UNIVERSITY ODISHA INTERNATIONAL MARITIME ARBITRATION MOOT

WR

3RD NATIONAL LAW UNIVERSITY ODISHA INTERNATIONAL MARITIME

ARBITRATION MOOT, 2016

IN THE MATTER OF

LAFAYETTE AND COMPANY LIMITED

V.

ACC RADANI Pvt. Ltd.

In the Arbitration Matter concerning Public Policy, Compensation for Damages and
Repudiatory Breach held at London

MEMORANDUM ON BEHALF OF RESPONDENT

ON BEHALF OF: AGAINST:

ACC RADANI Pvt. Ltd. LAFAYATTE COMPANY LIMITED

(RESPONDENT) (CLAIMANTS)

MEMORANDUM FOR RESPONDENT Page i

Jay Kothari
 3RD NATIONAL LAW UNIVERSITY ODISHA INTERNATIONAL MARITIME ARBITRATION MOOT

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ................................................................................................ iv

INDEX OF AUTHORITIES ................................................................................................... v

TREATIES/CONVENTIONS ...................................................................................................... v

STATUTES ............................................................................................................................... v

RULES ..................................................................................................................................... v

CASE LAWS ............................................................................................................................ v

Indian Precedents ............................................................................................................. v

Foreign Precedents ........................................................................................................... v

BOOKS ..................................................................................................................................vii

STATEMENT OF FACTS .................................................................................................. viii

ISSUES RAISED...................................................................................................................... x

SUMMARY OF ARGUMENTS ............................................................................................ xi

ARGUMENTS ADVANCED .................................................................................................. 1

[A] THE TRIBUNAL HAS NO DOMINION OVER THE MERITS OF THE DISPUTE
.................................................................................................................................................... 1

[B] OWNERS ARE LIABLE FOR REPUDIATORY BREACH OF CHARTER PARTY

.................................................................................................................................................... 4

[B.1] THE ACTIONS OF THE OWNERS FALL UNDER THE AMBIT OF REPUDIATORY BREACH
OF ................................................................................................................ CHARTER PARTY
................................................................................................................................................ 5

[C] CHARTERERS ARE ENTITLED TO MAKE CERTAIN DEDUCTIONS

FROMTHE HIRE AMOUNT ................................................................................................ 6

[C.1] OWNERS FAILED TO MAINTAIN THE SHIP AND ITS EQUIPMENT................................... 6

[C.2] THE CHARTERER IS ENTITLED TO SUSPEND PAYMENT OF HIRE................................. 9

[D] CHARTERERS ARE NOT LIABLE FOR STRUCTURAL DAMAGES CAUSED

TO THE HOLDS OF THE VESSEL ................................................................................... 11

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[D.1] THE SHIP WAS NOT SEAWORTHY AND CARGO WORTHY WHEN DELIVERED ............ 12

[D.2] THE DAMAGE IS CAUSED DUE TO LACK OF DUE DILIGENCE ON PART OF THE
OWNERS ............................................................................................................................... 14

E. THE OWNERS ARE LIABLE TO PAY THE CHARTERERS DAMAGES ............ 14

[E.1] THE OWNERS ARE LIABLE TO PAY THE CHARTERERS THE LOSS OF FREIGHT ....... 15

[E.2] THE OWNERS ARE LIABLE TO PAY DAMAGES ........................................................... 15

PRAYER FOR RELIEF........................................................................................................ 17

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LIST OF ABBREVIATIONS
Art. - Article
S. - Section
v. - Versus
SCC - Supreme Court Cases
AB QB - Alberta Court of Queen’s Bench (Canada)
QBD Law Reports - Queen’s Bench Division
P&I - Protection and Indemnity Insurance
¶ - Paragraph
Lloyd’s Rep - Lloyd’s Law Reports
Ex - Exchequer
KB - King’s Bench
LR - Law Reports
i.e. - That is
EWHC - England and Wales High Court
Com Cas - Company Cases (England)
CLJ - Cambridge Law Journal
All ER - All England Law Reports
Art. - Article
Cl. - Clause
Bus. - Business
NYPE - New York Produce Exchange
UNCITRAL Model Law, 1985 - United Nation Commission on International Trade Law,
Model Law on International Commercial Arbitration, 1985
c/p - Charterpaty
YBCA - Yearbook Commercial Arbitration
r/w - Read with
B/L - Bill of Lading
LMAA - London Maritime Arbitration Association
ILOHC - In Lieu of Hold Cleaning

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INDEX OF AUTHORITIES

TREATIES/CONVENTIONS PAGE NO.

New York Convention on the Recognition and Enforcement of the Foreign Arbitral Awards,
1958, 330 UNTS 38 1

STATUTES
The Arbitration and Conciliation Act, 1996 1
The English Arbitration Act, 1996 3
The Indian Contract Act, 1872 3
UNCITRAL Model Law on International Commercial Arbitration, 1985 3
RULES
NYPE 93 Time Charter Party (Revised September 1993) 10, 12

CASE LAWS

Indian Precedents
Addhar Mercantile Private Limited v. Shree Jagdamba Agrico Exports Pvt Ltd., Arbitration
Application No. 197 of 2014 3
Associate Builders v. Delhi Development Authority, (2005) 3 SCC 49 2
NTPC v. Singer, (1992) 3 SCC 551 2
Oil and Natural Gas Corporation Ltd. v. Saw Pipes Ltd, (2003) 5 SCC 705 1
ONGC Ltd. v. Western Geco International, 2004) 9 SCC 263 2
Phulchand Exports Limited v OOO Patriot, (2011) 10 SCC 300 2
Renusagar vs. General Electric Co., (1984) 4 SCC 679 1
TDM Infrastructure Pvt. Ltd. v. U.E. Development India Pvt. Ltd., 2008 (14) SCC 271 2
Foreign Precedents

Brinkibon Ltd. V. Stahag Stahlund Stahlwarenhandelsgessellschaft mbh, [1983] 2 AC 34 4

British Westinghouse Electric and Manufacturing Co. v. Underground Electric Railways Co.,
[1912] A.C. 673 14
Compania Sud Americana De Vapores v Shipmair BV, (The Teno)[1977] 2 Lloyd’s Rep 289
7
Derby Resources v. Blue Corinth Marine (The Athenian Harmony), [1998] 2 Lloyd’s Rep.
410 12
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Eridania SpA v. Rudolf A Oetker (The Fjord Wind), [2000] 2 Lloyd’s Rep 191. 5
Federal Commerce and Navigation Ltd v Molena Alpha Inc (The Nanfri, Benfri and
Lorfri),[1978] 2 Lloyd’s Rep 132. 6
Frost v. Knight, 178 US 1 4
Giersten v. Turnbull, 1908 SC 1101 12
Gill & Duffus Landauer Ltd v. London Export Corp. GmbH, [1982] 2 Lloyd’s Rep 627 4
Hadley v. Baxendale, (1854) 9 Ex. 341 14
Heimdal v. Questier,(1949) 82 Ll. L. Rep. 452 12
Hogarth v Miller, (The Westfalia), [1891] AC 48 10
Hong Kong Fir Shipping v Kawasaki Kisen Kaisha, [1962] 2 QB 26 5
Koch Marine v. D’Amico Soc. di Nav. (The Elena d’Amico) ,[1980] 1 Lloyd’s Rep. 75 14
Kurt A. Becher v. Roplak Enterprises (The World Navigator), [1991] 2 Lloyd’s Rep. 23 14
Livingstone v. Rawyards Coal Co., (1880) 5 App. Cas. 25 14
Nissho v. Livanos,(1941) 69 Ll. L. Rep. 125 12
Onego Shipping & Chartering BV v. JSC Arcadia Shipping (The Socol 3), [2010] EWHC
777 (Comm) 13
Riverstone Meat Co v. Lancashire Shipping Co. (The Muncaster Castle) ,[1961] 1 Lloyd’s
Rep 57 5
Robinson v. Harman, (1848) 1 Exch. 850 14
Ruxley Electronics and Construction Ltd v. Forsyth, [1996] A.C. 344. 14
StromsBruksAkt. v. Hutchinson, [1905] A.C. 515 12
The Aditya Vaibhav, [1991] 1 Lloyd’s Rep. 573 7
The Archimidis, [2008] 1 Lloyd’s Rep. 597. 11
The Asia Star,[2010] 2 Lloyd’s Rep. 121 11
The Chrysovalandou Dyo ,[1981] 1 Lloyd’s Rep. 159 7
The Marika M, [1981] 2 Lloyd’s Rep 622 9
The Sargasso, [1994] 1 Lloyd’s Rep. 412 7
The Teno, [1977] 2 Lloyd’s Rep. 289 7
Vogemann v Zanzibar, [1902] 7 Com Cas 254 (CA) 9
Wertheim v. Chicoutimi Pulp, [1911] A.C. 301, 307 (P.C.) 14
Worms v. Storey, (1855) 11 Ex. 427 12
Wye S.S Co v. Compagagnie P.O, [1922] 1 K.B 617 13

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BOOKS
Bernard Eder, Scrutton on Charterparties and Bills of Lading, Sweet and Maxwell, (23rd ed.
2015) 6, 11, 12
Glanville Williams, Learning the Law (11th ed. 1982) 4
J.W. Carter, Carter’s Breach of Contract, 1st ed., Lexis Nexis Butterworths, Australia (2011)
4
Martin Dockray, Cases and Materials on Carriage of Goods by Sea (3rd ed. 2004) 12, 14

Rhidian D. Thomas, Legal Issues Relating to Time Charter party, (1st ed. 2008).
12, 13, 14

Terence Coghlin, Time Charters (5thed. 2003) 8

Yvonne Baatz, Maritime Law, (3rd ed. 2014) 5, 12

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STATEMENT OF FACTS
THE PARTIES

Lafayette Company Limited (hereinafter the Owners/Claimants) are the Owners of the Vessel
M.V.EMJOS (hereinafter the Vessel). ACC Radani Pvt. Ltd. (hereinafter the
Defendants/Charterers) are the Charterers in this present case.

CHARTER PARTY

The Claimants and Defendants entered into the contractual relationship on an amended
‘NYPE93’ format Charterparty inclusive of rider clauses for hiring of the Vessel on 12th
September 2012 for a period of 36 months. This Charter-Party was terminated by the Owners
on 24th January 2014.

BREAKDOWN OF CRANE

On the morning of 1st March 2013, the Vessel’s cranes had a malfunction due to certain
technical problems that were rectified by the local crane experts who confirmed that the
cranes were good to be used. In the same afternoon, during the cargo operations, the Jib of
crane no. 3 broke and fell on hatch no.4 making hold no. 3 and 4 inaccessible for loading,
reducing the cargo capacity to 20,000 MT.

DEFAULT IN PAYMENT

The default in payment was made by the Charterers in the month of March and a fraction of
the amount of full hire to be paid in advance was withheld by the Charterers. The Charterers

continued delaying the payment of advance hire for the subsequent months.

STRUCTURAL DAMAGE TO THE VESSEL

On 24th November 2013, the Independent Expert appointed by the Owners stated that due to
the continual carriage of corrosive cargo materials, the holds of the Vessel have suffered
structural defects which would affect the navigability and commercial utility of the Vessel
and recommended immediate sandblasting. The sandblasting was carried out at Shanghai at a
cost of US$ 1.13 million for which the vessel had to be grounded for a period of 17 days.

WITHDRAWAL OF VESSEL FROM SERVICE

The Charterers withheld the payment of hire and as a reaction to it, the Owners withdrew the
Vessel from the Charter party on 12th January 2014 and then subsequently instructed the

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master to abide by the Charterers instructions on 17th January 2014 after news of anticipated
slowdown in the South Asian naval logistics market. On 23rd January 2014, the Charterers
accepted the withdrawal of Vessel from services and asserted their claims for remittances.
The Owners accepted Charterers action of abstaining from providing further directions to the
Master of the Vessel and their explicit disinterest in performing the Charter party as a
repudiatory breach and terminated the Charter party on 24th January 2014.

ARBITRATORS

The Owners on 23rd December 2015 invoked the arbitration in terms of the Fixture Note and
appointed Capt. Joel Fernandez as their arbitrator and the respondents appointed Mr. Julian
Dave as their arbitrator on 6th January 2016. The arbitrators for the respective parties agreed
to appoint Mr. Henry Albridge as the presiding arbitrator on 14th January 2016.

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ISSUES RAISED
1. Jurisdictional Issue – Whether the invocation of arbitration between two Indian
parties at a foreign seat is unlawful for being contrary to public policy of India.
2. Whether the Claimants are liable for repudiatory breach of the charterparty?
3. Whether Charterers are entitled to make deductions in the amount of hire?
4. Whether Charterers are liable for the structural damage caused to the holds of the
Vessel?
5. Quantification of damages.

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SUMMARY OF ARGUMENTS
A. THE TRIBUNAL HAS NO DOMINION OVER THE MERITS OF THIS
DISPUTE
The invocation of arbitration proceedings by the claimants at the foreign seat of London in
accordance with The Arbitration Act, 1996 thereby excluding the applicability of non-
derogable provisions Part 1 of the Arbitration and Conciliation Act, 1996 and other
substantive Indian laws for domestic disputes, abrogates the public policy of India and thus
the tribunal has no jurisdiction to hear the matters arising out of this dispute.
B. OWNERS ARE LIABLE FOR REPUDIATORY BREACH OF CHARTER
PARTY
There is an implied obligation of seaworthiness at common law. It is an absolute obligation
that the ship will be fit for the purpose intended. This is a fairly heavy burden as the duty
cannot be delegated. The Owners’ act of shifting the blame to the defendant in order to
escape its liabilities and an unjustified withdrawal of ship amounts to a fundamental breach of
the Charter Party.
C. CHARTERERS ARE ENTITLED TO MAKE ANY DEDUCTIONS FROM THE
HIRE AMOUNT
The charterer can deduct a claim for damages in respect of a period during which the owner
has withheld the use of the ship in breach of charter. The owners failed to provide a
seaworthy ship on two occasions, first when they failed to properly maintain the ship’s cranes
and secondly the cargo holds. On both these occasions, the ship owner adamantly held in one
way or the other the charterer liable in order to escape its own liabilities and on both these
occasion the charterer had the right to deduct payment as well cease the payment of hire.
D. CHARTERERS ARE NOT LIABLE FOR STRUCTURAL DAMAGES CAUSED
TO THE HOLDS OF THE VESSEL
The damage to the holds of the Vessel was not a consequence of Charterers act or omission.
It is evident from the facts that nowhere during the performance of the charter party the
Charterers were at fault. The Charterers complied with all the stipulated conditions in the
charter party. The Owners were very well aware of the nature and the quantity, as well as the
quality of the cargo. The Owners were aware of the risk of carrying corrosive cargoes as well.
Therefore, it is humbly submitted that the damage caused to the structural holds of the Vessel
is the responsibility of the Owner. The Charterers are not at fault.

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E. THE OWNERS ARE LIABLE TO PAY THE CHARTERERS DAMAGES

The primary remedy for any breach of contract is damages. But in some circumstances,
breach of an express or implied duty to provide a seaworthy ship may entitle the innocent
party to terminate the contract. The basic principles governing the recoverability of
contractual damages have, for many years, remained intact, and the general thinking
supporting those principles, undisturbed.
Since the default is on part of the Owners, Owners are liable to pay-

PARTICULARS AMOUNT
Advance Hire Paid $ 360000 USD
Value of Bunkers ROB $ 270000 USD
Loss of Fixture As the tribunal deems fit in the ends
of justice and equity.

Therefore, it is humbly submitted that the honorable tribunal may order payment of the
damages at such interest rate, simple or compound as it deems fit in ends of justice and
equity.

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ARGUMENTS ADVANCED

[A] THE TRIBUNAL HAS NO DOMINION OVER THE MERITS OF THE DISPUTE
1. The Charterers contend that this tribunal does not have the contentious jurisdiction to hear
the merits of this dispute because two Indian parties cannot derogate from Indian laws by
opting for a foreign seat of arbitration in a purely domestic dispute, as the same would be
opposed to the public policy of India.
2. Article V(2)(b) of the New York Convention on Enforcement of International
Agreements and International Arbitral Awards states that, “Recognition and enforcement
of an arbitral award may also be refused if the competent authority in the country where
recognition and enforcement are sought finds that:…….(b) the recognition and
enforcement of the award would be contrary to the public policy of that country.”1
2
3. The Indian Arbitration and Conciliation Act is divided into two parts with regard to
arbitration; the first part deals with arbitration proceedings conducted in India and their
enforcement and the second part deals with foreign arbitration proceedings and its
enforcement. Section 34(2)(b)(ii) of the Act provides a ground of challenge to an arbitral
award on being in conflict with the public policy of India. Section 48 of the Arbitration
and Conciliation Act, 19963 dealt with grounds for refusal of enforcement of foreign
awards. Section 48 intends to give effect to Article V of the New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards, 1958 ("the New York
Convention"). The Court held that the expression "public policy" in Art. V(2)(b) of the
New York Convention and S.48 is used in the same sense.4 However, public policy has not
been defined in the Act and has been left open to interpretation by the Indian courts.
4. In Renusagar vs. General Electric Co.5 the Supreme Court enunciated three well-
recognized heads of public policy i.e. the fundamental policy of Indian law, the interest of
India, and the grounds of justice and morality.
5. The ratio in Oil and Natural Gas Corporation Ltd. v. Saw Pipes Ltd6 established that as a
fundamental principle any direction which is patently in violation of statutory provisions

1
New York Convention on the Recognition and Enforcement of the Foreign Arbitral Awards, 1958, 330
UNTS 38 (Hereinafter New York Convention)
2
The Indian Arbitration and Conciliation Act, 1996
3
Ibid
4
New York Convention, 330 UNTS 38
5
Renusagar vs. General Electric Co (1984) 4 SCC 679
6
Oil and Natural Gas Corporation Ltd. v. Saw Pipes Ltd (2003) 5 SCC 705

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cannot be said to be in public interest as such award was held likely to affect the
administration of justice adversely and could also be set aside if it is so unfair and
unreasonable that it shocks the conscience of the court. There is no need to adopt a
narrow view of public policy in domestic arbitrations as public policy is ever expanding
and its interpretation cannot be limited to specific heads.
6. In Phulchand Exports Limited v OOO Patriot7 the Apex Court held that "public policy"
under section 48 also carries the same meaning as given to it in SAW Pipes.
8
7. In ONGC Ltd. v. Western Geco International ("Geco") the Supreme court laid down
three distinct principles within the ambit of fundamental policy of India and stated that (a)
the judiciary should not rule on a whimsical basis, (b) decisions taken by courts and
competent authorities should be based on principles of natural justice and (c) no decision
taken by the court should be so perverse or irrational that no reasonable person would
have made it.
8. The Supreme Court in Associate Builders v. Delhi Development Authority9 that in order to
determine fundamental policy the judge should adopt the test of fairness, reasonableness
and objectiveness and clarified the position on the test of patent illegality which would
include any award that goes against any substantive law of India, against the Act in itself
or against the terms of the contract and that such illegality should go to the root of the
matter.
10
9. In TDM Infrastructure Pvt. Ltd. v. U.E. Development India Pvt. Ltd, It was held that
two Indian parties cannot exclude the applicability of mandatory Indian substantive law
as the same would be opposed to Indian public policy. A company incorporated in India
can only have Indian nationality for the purpose of the Act. Hence, where both parties
have Indian nationalities, then the arbitration between two such Indian parties cannot be
considered as international commercial arbitration under Section 2(1)(f) of the Act. The
intention of the legislature appears to be clear that Indian nationals should not be
permitted to derogate from Indian law. This is part of the public policy of the country.
10. In NTPC v. Singer the court stated that the concept of party autonomy in international
contracts is respected by all systems of law so far as it is not incompatible with any
overriding principle of public policy.11

7
Phulchand Exports Limited v OOO Patriot (2011) 10 SCC 300
8
ONGC Ltd. v. Western Geco International ("Geco") (2004) 9 SCC 263
9
Associate Builders v. Delhi Development Authority (2005) 3 SCC 49
10
TDM Infrastructure Pvt. Ltd. v. U.E. Development India Pvt. Ltd, (2008) 14 SCC 271
11
NTPC v. Singer, (1992) 3 SCC 551

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11. The UNCITRAL Model Law has defined the term "international" in a broad and
expansive manner allowing full sway to “party autonomy ". Under the Model Law, it is
open to the parties to give an international flavour to an otherwise purely domestic
relationship, merely by choosing a situs of arbitration abroad12 or even merely by
labelling the arbitration an international one.13 The Indian law has consciously and
correctly departed from the same and chosen only the nationality test for defining an
arbitration as "international" as is apparent from Section 2(1)(f) of the Arbitration Act,
1996. Relying on the provision of § 2(2), § 20 & § 28, it is evident that Arbitration Act,
1996 precludes Indian parties to a purely domestic dispute from choosing a place of
arbitration outside India.
12. Clause 45 of The NYPE Standard Time Party signed by the claimants and respondents
and the Arbitration clause in the fixture note provide that, “ all disputes arising out of this
contract shall be arbitrated at London in accordance with the Arbitration Act,1996
(English statute) ………… The terms of this Charter Party shall be governed by English
law”, hence, the agreement has the effect of substituting English laws for the substantive
Indian law of contracts and The English Arbitration Act, 1996 for Part I of the Arbitration
and Conciliation Act, 1996 that would have conventionally governed the agreement of
two domestic parties.
13. Section 23 of Indian Contract Act, 1872 states that “the consideration and object of an
agreement are lawful, unless: ………the court regards it as immoral or opposed to public
policy” and Section 28 makes any agreement that restrains legal proceedings, void.
14. Further in the case of Addhar Mercantile Private Limited v Shree Jagdamba Agrico
Exports Pvt Ltd 14(Addhar Mercantile), it was decided by Bombay High Court that two
Indian Parties cannot go for the foreign seat of arbitration as the same is opposed to the
public policy of India. In this case, the arbitration agreement between two Indian
companies provided for disputes to be submitted to "arbitration in India or Singapore".
And it was decided by the court that the arbitration is to be held in India as Indian parties
cannot derogate from Indian Laws.

12
Article 1(3)(b)(i), UNCITRAL Model Law, 24 ILM 1302 (1985) (Amended 2006)
13
Article 1(3)(c), UNCITRAL Model Law, 24 ILM 1302 (1985) (Amended 2006)
14
Arbitration Application No. 197 of 2014

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15. In the present matter both the parties are Indian Companies15 and on the basis of above
arguments it is crystal clear that Indian Parties cannot exclude and derogate from the
Indian laws as the same would be opposed to public policy of India.
16. The arguments against considering the choice of Indian parties of a foreign seat for
arbitration and excluding the applicability of Part I of the Act, in relation to an entirely
domestic transaction/ dispute as lawful and not void for being opposed to public policy
include: (a) non-convenient forum for Indian Parties, (b) misuse of bargaining position
between parties to exclude Part I of the Act, (c) slippery slope of escaping from Indian
Laws and Indian Courts' jurisdiction, (d) disadvantages of de-localization, and (e) the
conundrum of categorizing arbitrations into 'international commercial arbitration' or
'domestic arbitration' or 'foreign seated arbitration'.
17. Hence, it is humbly submitted that the invocation of arbitration proceedings by the
claimants at the foreign seat of London in accordance with The Arbitration Act, 1996
thereby excluding the applicability of non-derogable provisions Part 1 of the Arbitration
and Conciliation Act, 1996 and other substantive Indian laws, abrogates the public policy
of India and thus the tribunal has no jurisdiction to hear the matters arising out of this
dispute.

[B] OWNERS ARE LIABLE FOR REPUDIATORY BREACH OF CHARTER PARTY

18. A breach of contract16 can be defined as a situation where,
a) The promisor/promisee fails to perform a contractual obligation within the stipulated
time period
b) There is an anticipatory breach of the contract
19. A breach of contract can be established by the proof that the promisor/promisee failed to
perform a contractual obligation within the time period stipulated for the performance of
the obligation.17
20. Therefore, a breach of contract is a legal cause of action in which a binding agreement is
not honoured by one or more of the parties to the contract by non-performance of his
obligations as laid down in the contract.18

15
Refer Moot Proposition, Fixture Note, p. 1
16
J.W. Carter, Carter’s Breach of Contract, (1st ed. 2011).
17
Brinkibon Ltd. V. Stahag Stahl und Stahlwarenhandelsgessellschaftmbh, [1983] 2 AC 34; Gill & Duffus
Landauer Ltd v. London Export Corp. GmbH, [1982] 2 Lloyd’s Rep 627; Frost v. Knight, 178 US 1.
18
Glanville Williams, Learning The Law (11thedn 1982).

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[B.1] THE ACTIONS OF THE OWNERS FALL UNDER THE AMBIT OF REPUDIATORY
BREACH OF CHARTER PARTY
21. Repudiatory breach is any breach which the promisee is entitled to treat as a repudiation
of obligation at common law that gives rise to terminate the performance of the contract.
Repudiatory breach comprises a breach of condition and fundamental breach. Defendants
submit that the Charter Party has an express Off-Hire clause which lays down the criteria
as to when Hire payment will cease, however, the Owners’ act of shifting the blame to the
defendant in order to escape its liabilities and an unjustified withdrawal of ship amounts
to a fundamental breach of the Charter Party.
22. Seaworthiness is a concept that runs through maritime law in at least four contractual
relationships. In a marine insurance voyage policy, the assured warrants that the vessel is
seaworthy. A carrier of goods by sea owes a duty to a shipper of cargo that the vessel is
seaworthy at the start of the voyage. A ship owner warrants to a charterer that the vessel
under the charter is seaworthy; and similarly, a shipbuilder warrants that the vessel under
construction will be seaworthy.
23. A ship owner will normally owe the following duties to the charterer19:
1. To provide a seaworthy ship which complies with the charter party description;
2. To properly and carefully load, handle, stow, carry, keep, care for, discharge and deliver
the cargo;
3. To comply with charterers’ legitimate employment instructions;
4. To prosecute voyages with reasonable dispatch.
Legally defined, a seaworthy ship is one that is fit for any normal perils of the sea,
including the fitness of the vessel itself as well as any equipment on it and the skills and
health of its crew.
24. There is an implied obligation of seaworthiness at common law. It is an absolute
obligation that the ship will be fit for the purpose intended. This is a fairly heavy burden
as the duty cannot be delegated.20 It is not enough for the owner to say that it exercised
due diligence in selecting, for example, reputable ship repairers or surveyors. The owner
must also establish that those ship repairers or surveyors themselves exercised due
diligence.21

19
Hong Kong Fir Shipping v. Kawasaki Kisen Kaisha [1962] 2 QB 26
20
Riverstone Meat Co v Lancashire Shipping Co. (The Muncaster Castle) [1961] 1 Lloyd’s Rep 57
21
Yvonne Baatz, Maritime Law, p. 127 (3rd ed. 2014).

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25. In The Fjord Wind, 22

it was held that the owner’s obligation as to seaworthiness at
each stage was the same, i.e. to exercise due diligence and the owners were held liable
for repudiatory breach of Charter party even though maintenance work had been
carried out on the main engines by two representatives of the engine manufacturers.
26. Hence, failure of the owner to provide a ship efficient in its machinery on 1 march
2013 leading to repairs made to the machinery ultimately leading to the accident and
reduced capacity of the ship to carry the amount of cargo as instructed by the
charterer23 clearly depicts the failure on the part of the owner its seaworthy
obligations.
27. On 24th November 2013 the owners informed the charterers of the deviation of the
ship for holds cleaning citing the reason that the cargo holds have damaged and
shifted the blame on the charterers saying the cargo as loaded by the charterers have
caused such defects.24
28. The charterer has in subsequent contentions refuted all the actions and blame shifting
tactics of the owners and asserts its position and has tried to justify its action with a
hope to ultimately prove that the behaviour and attitude adopted by the owners
breached the charter party entitling the charterer to repudiate it.

[C] CHARTERERS ARE ENTITLED TO MAKE CERTAIN DEDUCTIONS

FROMTHE HIRE AMOUNT
29. As per the English common law, it appears to be the law that the charterer can deduct
a claim for damages in respect of a period during which the owner has withheld the
use of the ship in breach of charter. The basis has to do with English rules regarding
the "equitable set-off" of claims arising out of the same transaction.
[C.1] OWNERS FAILED TO MAINTAIN THE SHIP AND ITS EQUIPMENT
30. Clause 6 of the Charter-Party provides that it is the obligation of the Owner to
maintain the ship in the hull, machinery and equipment for and during the service.
Clause 6 - Owners to provide:
The owners shall provide and pay for the insurance of the Vessel, except as otherwise
provided, and for all provisions, cabin, deck, engine room and other necessary stores,
including boiler water; shall pay tor wages, consular shipping and discharging fees of the

22
Eridania SpA v Rudolf A Oetker (The Fjord Wind) [2000] 2 Lloyd’s Rep 191.
23
Refer Moot Proposition, Email Dated 01 March 2013, p.9
24
Refer Moot Proposition, Email Dated 24 November 2013,p.15

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crew and charges for port services pertaining to the crew; shall maintain the Vessels class
and keep her in thoroughly efficient state in hull, machinery and equipment for equipment for
and during the service and have a full complement of officers and crew.
31. In contrast with the position relating to freight, charterers may deduct certain
counterclaims from the payment of hire. The Court of Appeal in The Nanfri25 held
that they could invoke the doctrine of equitable set-off to deduct from hire, their valid
cross-claims, quantified by a reasonable assessment made in good faith, without the
necessity of first obtaining the owners’ consent.
32. A charterer irrespective of an express deduction clause still has the right to deduct hire
by the way of equitable set off in other circumstances.26
33. The Nanfri Case27 laid down three criteria for equitable set-off against the charter
hire. These are as follows:
a) both the claim and counterclaim must arise from the same contract (i.e. charter
party);
b) the counterclaim must be ‘directly connected with the claim; and
c) There must be a ‘manifest injustice’ in allowing the claim to be asserted
without taking into account the counterclaim.
34. It has been established through case law that there are only two circumstances that are
so directly connected with the claim’ that an owner’s breach of the charter may entitle
the charterer to make a valid deduction from the next month’s share. These are:
a) when the charterer has been wrongfully deprived of the use of the ship; or
b) When the charterer has been wrongfully prejudiced in their use of the ship.
35. In other words, the breach by an owner must genuinely deprive the charterer as to the
use of the ship itself for this to entitle them not to pay the owner in full for hire
otherwise due. The valid deductions on this basis have included:
a) breach of a speed and performance warranty28;
b) a failure to load a full cargo29;
c) time lost by having to dispose of contaminated cargo as a result of an owner’s breach
of contract30

25
Federal Commerce and Navigation Ltd v. Molena Alpha Inc (The Nanfri, Benfri and Lorfri) [1978] 2
Lloyd’s Rep 132.
26
Bernard Eder, Scrutton on Charterparties and Bills of Lading, p. 125, Sweet And Maxwell, (23 rd ed. 2015)
27
Nanfri Case, [1978] 2 Llyod’s Rep. 132
28
Santiren Shipping Ltd. v. Unimarine S.A. (The Chrysovalandou Dyo) [1981] 1 Lloyd’s Rep. 159
29
Compania Sud Americana De Vapores v Shipmair BV, The Teno [1977] 2 Lloyd’s Rep. 289
30
The Sargasso [1994] 1 Lloyd’s Rep. 412

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d) Delay due to an owner’s failure to perform hold-cleaning obligations31.

36. The time charterer may deduct a claim for failure to load a full cargo in breach of
charterer’s instructions.32
Compania Sud Americana De Vapores v Shipmair BV (The Teno):
On May 14, 1976, A, the owners of the Teno, time chartered the vessel to S. The charter
party provided, inter alia, "3. The owners to maintain the vessel in a thoroughly efficient
state in hull and machinery during service.” And “6. The charterers to pay as hire USD
6,100 per day, payment of hire to be made without discount, see clause 14.11. In the event
of loss of time from breakdown of machinery, want of repairs or any cause appertaining
to the duties of the owners preventing the proper working of the vessel or rendering her
inefficient for the service, the payment of hire shall cease from the hour when detention or
inefficiency begins until she be again in an efficient state to resume her service. The Teno
went to Paranagua to load a cargo of soya beans. The maximum permissible draught on
sailing was 29 feet and the master declared that she could load 20,541 metric tonnes to
that draught. Due to a mechanical breakdown at 0200 on June 4, 1976, the vessel could
not fully deballast and the Teno reached the maximum draught when she was still short of
the declared cargo by 769 tonnes. S insisted that the Teno remained to load the balance
of the declared cargo. The master refused to do so unless S would undertake that any
waiting time should be for S's account. S refused and the T sailed at 0800 hours on June
5. On January 31 1977, A issued a writ claiming, inter alia, USD 21,178.30 being the
balance of the hire, and sought summary judgment under RSC Ord.14 S sought a stay of
the proceedings pursuant to the arbitration clause and contended that (a) A's claim
included hire of USD 7,600 in respect of a period when the vessel was off-hire; (b) as to
USD 13,073, S had a claim for unliquidated damages in that amount for A's failure to
load 769 tonnes of cargo; and (c) S were entitled to deduct USD 609.65 in respect of
disbursements made on A's behalf. A contended that there was no arguable defence to
their claim for USD 21,178.30 and that although S may have had claims under the
charter party against them, such claims could not be used as a defence to their claim
since it was wholly a claim for the balance of hire against which a set-off was not
available.
The court held that:

31
The Aditya Vaibhav [1991] 1 Lloyd’s Rep. 573
32
Compania Sud Americana De Vapores v Shipmair BV (The Teno) [1977] 2 Lloyd’s Rep 289.

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a) S had an arguable case that the vessel was off-hire from 0200 June 4 to 0800 on June
5;
b) the words "without discount" in Cl.6 meant that there was to be no discount for early
payment; Cl.14 and Cl.55 did not indicate that if a right of set-off existed apart from
special provision such right was intended to be excluded;
c) equitable set-off was available against a claim for hire;
d) The USD 609.65 which S claimed they were entitled to set-off were ordinary
disbursements within Cl.14.
Therefore, on the basis of the facts of the case referred above and Clause 6 of the Charter
party it becomes clear that the charterer is entitled to make a deduction from the amount
of hire, in lieu of failure of the owner to ship the full cargo as per the instruction of the
charterer. The owner’s obligation to provide a seaworthy ship is an absolute one and
applies before and at the beginning of each voyage in a time Charter party.33

[C.2] THE CHARTERER IS ENTITLED TO SUSPEND PAYMENT OF HIRE

37. Off-Hire Clause (Clause 17):
In the event of loss of time from deficiency and/or default and/or strike of officers or
crew, or deficiency of stores, fire, breakdown of, or damages to hull, machinery or
equipment, grounding, detention by the arrest of the Vessel, (unless such arrest is caused
by events for which the Charterers, their servants, agents or subcontractors are
responsible), or detention by average accidents to the Vessel or cargo unless resulting
from inherent vice, quality or defect of the cargo, dry-docking for the purpose of
examination or painting bottom, or by any other similar cause preventing the full working
of the Vessel, the payment of hire and overtime, if any, shall cease for the time thereby
lost. Should the Vessel deviate or put back during a voyage, contrary to the orders or
directions of the Charterers, for any reason other than accident to the cargo or where
permitted in lines 257 to 258 hereunder, the hire is to be suspended from the time of her
deviating or putting back until she is again in the same or equidistant position from the
destination and the voyage resumed therefrom. All bunkers used by the Vessel while off
hire shall be for the Owners' account. In the event of the Vessel being driven into port or
to anchorage through the stress of weather, trading to shallow harbours or to rivers or
ports with bars, any detention of the Vessel and/or expenses resulting from such detention
shall be for the Charterers' account. If upon the voyage the speed is reduced by a defect

33
Terence Coghlin, Time Charters (5th ed. 2003)

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in, or breakdown of, any part of her hull, machinery or equipment, the time so lost, and
the cost of any extra bunkers consumed in consequence thereof, and all extra proven
expenses may be deducted from the hire.
38. An off – hire clause in time charter provides that hire will cease to be payable on the
occurrence of certain events which prevent the full working of the ship either for the time
lost34 to the charterer as a result of such event or during the period that the event
continues.The off-hire clause will not depend on the fault of the shipowner. If the ship
owner is actually at fault it may also be in breach of charter-party and the charterer may
have remedies such as the right to terminate the charter party or claim damages in
addition to, or in substitution for, the ship being off-hire.
39. The charterer is obliged to pay hire continuously unless it can show that the wording of
the off-hire clause applies to the event which has occurred. Where the clause is a “net loss
of time clause,” the burden of proof is on the charterer to show not only that the off hire
event occurred but also that time has been lost as a result. If the Charterer is able to prove
so it can successfully cease the payment of hire for such a period.35
40. For the charterer to cease the payment of hire under the off-hire clause, it has to prove
two issues. They are36:
a) Did an off-hire event, as defined in the contract, actually occur?
b) Was there, in consequence, a loss of time to the charterer?
41. Now taking into account the facts of the present case, the ship did suffer damage in the
holds and that too of such a grave degree that structural defects have been caused. The
damage so caused to the ship affects its navigability and commercial viability.37
42. Hence, it can be validly said that the occurrence of structural damage of the ship squarely
falls under the Off-hire clause and the nature of events manifested by it.The second
requirement as to the loss of time is also fulfilled as the ship had to undergo the process of
sandblasting resulting in the ship deviating to Chinese Port and the process took 18 days
i.e. from 24 November 2013 to 11 December 201338.
43. With regards to the structural damages sustained by the ship and its subsequent deviation
for holds cleaning, the charterers would like to draw the attention towards Clause 47 of

34
Eastern Mediterranean Maritime (Liechtenstein) Ltd. v. Unimarine S.A. (The Marika M) [1981] 2 Lloyd’s
Rep 622
35
Vogemann v Zanzibar [1902] 7 Com Cas 254 (CA)
36
Hogarth v Miller (The Westfalia) [1891] AC 48
37
Refer Moot Proposition, Email Dated 24 November 2013
38
Refer Moot Proposition, Email Dated 24 November 2013

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the Charter party which states that the holds of the vessel on delivery must be clean
swept, washed, dried etc. and be ready in all respects to receive from charterers any
permissible cargo to a local surveyors satisfaction failing which the ship will be off hire
and any extra expenses incurred would be borne by the owners.
44. Here the charterer would like to assert that all the mentioned cargo 39 which the owner
alleges to have caused defects in the ship were all permissible cargo as per Cargo
Exclusion clause40of the charter party.
45. Clause 49 also states that the cargo of cement clinker is always allowed and that in
regards to the cargo of Nickel ore, the owner has an option to arrange a surveyor on
charterer’s account for his own satisfaction. The master too has an option to carry out
‘can test’ and if the cargo fails this test he can refuse the cargo.
46. The absence of both as evident from the facts of the case depicts that it was the owner
who failed to exercise diligence and this shows acquiescence on the part of the owner.The
ILOHC41 clause in the fixture note also asserts that the charterer is paying for the cost of
holds cleaning which is to be performed by the owners and hence any liability that arises
falls completely on the owner.
47. Therefore to sum it up it can be validly held that the owners failed to provide a seaworthy
ship on two occasions, first, when they failed to properly maintain the ship’s cranes and
secondly the cargo holds. On both these occasions, the ship owner adamantly held one
way or the other the charterer liable in order to escape its own liabilities. Such behaviour
on the part of the charterer coupled with its action of withdrawing the ship to pressure the
charterer to accede to its demands shows aversion on the part of the shipowner of its
duties and liabilities resulting the charterer to treat such acts as a repudiatory breach of
charter-party.

[D] CHARTERERS ARE NOT LIABLE FOR STRUCTURAL DAMAGES CAUSED

TO THE HOLDS OF THE VESSEL
48. A time charter is strictly speaking not a contract of carriage but, a contract of hire and
services.42 The Owner under a time charter undertakes (for the period of charter) various
obligations and liabilities. These generally include the obligation to make the vessel
available to charterers and the obligation to keep the hull, machinery and equipment in a

39
Supra at 19
40
Clause 49 of the NYPE 93 Standard Time Charterparty
41
Refer Moot Proposition, p. 2
42
Bernard Eder, Scrutton on Charterparties and Bills of Lading, p. 425, Sweet And Maxwell, (23rd ed. 2015)

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thoroughly efficient state.43 The terms of charter party will need to make provision for a
large number of matters including its duration, the hire payable, the rights and obligations
of the parties as to payment of hire and when (if at all) the obligation to pay hire is to be
suspended, the day to day obligations of parties in relation to exploitation of the vessel
and redelivery of the vessel at the end of period.44
49. The damage to the holds of the Vessel was not a consequence of Charterers act or
omission. It is evident from the facts that nowhere during the performance of the charter
party the Charterers were at fault.
[D.1] THE SHIP WAS NOT SEAWORTHY AND CARGO WORTHY WHEN DELIVERED
50. Where a ship-owner has failed to provide a ship to carry the cargo, or the ship is
unseaworthy45 or unfit to load or fails to load all or some of the cargo tendered46, damages
may be assessed on alternative bases: the additional cost of transport by other means, that
is, the difference between the market rate and the charter rate of freight; or the cost of
replacing the goods at the port of discharge at the time when they ought to have arrived
(normally equal to the sound arrived value of the goods), less any value which the goods
have at the port of loading, freight and other savings.47
51. If there were no express provision in the charter party as to seaworthiness, there is an
implied obligation of seaworthiness at common law.48 It is an absolute obligation that the
ship will be fit for the purpose intended.49 The test of unseaworthiness is subjective and
not objective, i.e. this ship must be fit to encounter the perils of the sea for the contractual
voyage and not any other voyage.50
52. A time charter not by way of demise includes an undertaking of seaworthiness at the
beginning of the time.51 If the master proceeds on such a voyage without using an
opportunity for a remedy the unseaworthy condition of his ship the owner will be liable
for his negligence unless protected by exceptions.52 A common clause in time charters

43
Ibid at 425
44
Ibid at 425
45
The Asia Star [2010] 2 Lloyd’s Rep. 121
46
The Archimidis, [2008] 1 Lloyd’s Rep. 597
47
Stroms Bruks Akt. v. Hutchinson [1905] A.C. 515; Nissho v. Livanos (1941) 69 Ll. L. Rep. 125; Heimdav.
Questier (1949) 82 Ll. L. Rep. 452, Derby Resources v. Blue Corinth Marine (The Athenian Harmony)
[1998] 2 Lloyd’s Rep. 410
48
Yvonne Baatz, Maritime Law, p. 125 (3rd ed. 2014)
49
Id.
50
Yvonne Baatz, Maritime Law, p. 126 (3rd ed. 2014)
51
Giersten v. Turnbull 1908 SC 1101
52
Worms v. Storey (1855) 11 Ex. 427

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provides that the Owners will maintain the vessel in a thoroughly efficient state in hull
and machinery during the service.53
53. The carrier’s duty to provide a vessel that was tight, staunch and properly manned and
equipped for the voyage was a feature of customary maritime law recognized by many
commentators.54 A ship which can navigate safely may still be unseaworthy in law if it is
not fit to carry the agreed cargo. Some commentators prefer to treat cargo worthiness as a
distinct obligation while others regard it as an example of the wider duty to ensure
seaworthiness, as it is treated here. This difference is, in practice, one of presentation
rather than substance.55The Owner’s Obligation Clause56 begins with the important
obligation of delivering a vessel in class and in a thoroughly efficient state of hull and
machinery and of maintaining the vessel in such class and keeping her fit for service
throughout the charter period. In NYPE, this obligation is “hidden” in clause 6 listing the
items owners provide and pay for.57
54. Time charters usually provide that the Charterers shall redeliver the vessel in the same
good order and condition (fair wear and tear excepted) as when delivered to him.58 If on
redelivery the vessel has by the Charterer’s breach of contract been damaged, his liability
is for damages (i.e. cost of repair and loss of profit during repair), but, he is not liable for
hire during the period occupied by the repairs.59
55. Time charters often incorporate other provisions by which other provisions by which the
charterer agrees to indemnify the owner against specified damages or liabilities such as
the owner being held liable in relation to cargo carried on deck at the charterer’s request. 60
56. In the instant case, the Charterers complied with all the stipulated conditions in the
charter party. In case, Owners had any issues with the carriage of cargo or maintenance of
the Vessel, they could have raised an objection. The Owners were very well aware of the
nature, the quantity as well as the quality of the cargo. 61 The Owners were aware of the
risk of carrying corrosive cargoes as well. Therefore, it is humbly submitted that the
damage caused to the structural holds of the Vessel is the responsibility of the Owner.
The Charterers are not at fault.

53
Bernard Eder, Scrutton on Charterparties and Bills of Lading, p. 441, Sweet And Maxwell, (23rd ed. 2015)
54
Martin Dockray, Cases and Materials on Carriage of Goods by Sea, p. 45 (3rd ed. 2004)
55
Ibid at 45
56
Clause 11 of BIMCO Charterparties
57
D Rhidian Thomas, Legal Issues Relating to Time Charterparty, p. 12 (1st ed. 2008)
58
Bernard Eder, Scrutton on Charterparties and Bills Of Lading, p. 446, Sweet And Maxwell (23rd ed. 2015)
59
Wye S.S Co v. Compagagnie P.O [1922] 1 K.B 617
60
Onego Shipping & Chartering BV v. JSC Arcadia Shipping (The Socol 3) [2010] EWHC 777 (Comm)
61
Refer Moot Proposition, Email Dated 24 November 2013.

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[D.2] THE DAMAGE IS CAUSED DUE TO LACK OF DUE DILIGENCE ON PART OF

THE OWNERS

57. There are various types of risks which have been found to be “inherent in the scheme”
of any charter party, and which as a result do not fall within the ambit of the owner’s
entitlement to indemnity.62
58. In the present case, the risk of carrying cargoes was in the knowledge of the Owners.
The composition of cargo was also known to the Owners. The Owners agreed to the
risk involved in the voyage. Therefore, it is humbly submitted that the Charterers took
all stipulated steps as were required and necessary under the Charter party. In fact, it
is the responsibility of the Owners to provide for a vessel which is cargo worthy and
seaworthy. The default in the crane which led to a loss of freight proves the very fact
that the vessel was not seaworthy.63 Therefore, it is humbly submitted that there was a
sheer lack of due diligence on the part of the Owners for which Charterers are entitled
to damages.

E. THE OWNERS ARE LIABLE TO PAY THE CHARTERERS DAMAGES

59. The basic principle which lies behind an award of damages for breach of contract is that
of indemnity, it being “the general intention of the law that, in giving damages for breach
of contract, the party complaining should, as far as it can be done by money, be placed in
the same position as if the contract had been performed”.64
60. There is an easy assumption that once success has been achieved on liability, damages
will look after themselves.65 There are two separate questions to be considered in relation
to the issue of damages:66
a) What damages were caused by the breach?
b) Were those damages too “remote” to be recoverable?
Thus, once it has been determined that damage or loss has been caused by the defaulting
party; damages will be recoverable save to the extent that they are considered in law to be
too remote.67

62
D. Rhidian Thomas, Legal Issues Relating to Time Charterparty, p. 99 (1st ed. 2008).
63
Refer Moot Proposition, Email Dated 01 March 2013,p.9
64
Robinson v. Harman (1848) 1 Exch. 850; Livingstone v. Rawyards Coal Co. (1880) 5 App. Cas. 25 at p. 39;
Wertheim v. Chicoutimi Pulp [1911] A.C. 301, 307 (P.C.); British Westinghouse Electric and Manufacturing
Co. v. Underground Electric Railways Co. [1912] A.C. 673 at p. 689; Ruxley Electronics and Construction
Ltd v. Forsyth [1996] A.C. 344.
65
D. Rhidian Thomas, Legal Issues Relating to Time Charterparty, p. 257 (1 st ed. 2008)
66
Ibid at p. 257
67
Ibid at p. 257

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61. The purpose of underpinning an award of damages is to put the parties back into the
position they would have been in had the breach of contract not occurred.68The primary
remedy for any breach of contract is damages. But in some circumstances, breach of an
express or implied duty to provide a seaworthy ship may entitle the innocent party to
terminate the contract.69
62. Where two parties have made a contract which is broken by one of the parties, the
damages which the other party seeks to receive in respect of such breach of contract
should be such as may fairly and reasonably be considered as arising naturally. 70
63. In the absence of special considerations of the sort outlined above, the usual assessment
of the loss suffered by a claimant as a result of a breach of contract involves the
evaluation of his infringed contractual rights71 making due allowance for the amount he
recovers or is deemed to recover by mitigating his loss.72
[E.1] THE OWNERS ARE LIABLE TO PAY THE CHARTERERS THE LOSS OF FREIGHT
64. The basic principles governing the recoverability of contractual damages have, for many
years, remained intact, and the general thinking supporting those principles,
undisturbed.73 Lack of due diligence and negligence on the part of Owners have caused a
damage of to the Charterers. The Tribunal may kindly order for payment of such
compensation and at such rate of interest as it may deem fit in the ends of equity and
justice.
[E.2] THE OWNERS ARE LIABLE TO PAY DAMAGES
65. Since the default is on part of the Owners, Owners are liable to pay-
PARTICULARS AMOUNT
Advance Hire Paid $ 36000074 USD
Value of Bunkers ROB $ 27000075 USD
Loss of Fixture As the Tribunal deems fit in the ends of justice
and equity

68
Ibid at p. 257
69
Martin Dockray, Cases and Materials on Carriage of Goods by Sea, p. 59 (3rd ed. 2004)
70
Hadley v. Baxendale (1854) 9 Ex. 341, pp. 354-355.
71
Kurt A. Becher v. Roplak Enterprises (The World Navigator) [1991] 2 Lloyd’s Rep. 23
72
Koch Marine v. D’Amico Soc. di Nav. (The Elena d’Amico) [1980] 1 Lloyd’s Rep. 75
73
D. Rhidian Thomas, Legal Issues Relating To Time Charterparty, p. 257 (1st ed. 2008)
74
36*10000= 360000
75
450mt*600/MT=270000

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Therefore, it is humbly submitted that the honourable tribunal may order payment of the
damages at such interest rate, simple or compound as it deems fit in ends of justice and
equity.

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PRAYER FOR RELIEF

In light of the above submissions, the Respondents request this Arbitral Tribunal to:

ADJUDGE that, the Charterers:

a) Are not liable for liable for repudiatory breach of the charterparty.

b) Were entitled to make deductions in the amount of hire.

c) Are not liable for the structural damages caused to the holds of the Vessel.

ADJUDGE that, the Owners:

e) Committed a repudiatory breach of the Charter Party by withdrawing the vessel.

And therefore, AWARD the Respondent:-

A compensation for the Advance hire paid and the loss of Bunkers amounting to USD
630000 consolidated with the damages for loss of fixture as the tribunal may deem fit.

Any Simple interest or compound Interest pursuant to Section 49 of Arbitration Act, 1996
(UK).

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