Ingapore Rbitration N HE Atter F Rbitration O E Djudicated Y HIS Rbitral Ribunal Etween

926C
Page | I
9TH NATIONAL LAW UNIVERSITY ODISHA – BOSE MITRA & CO.

INTERNATIONAL MARITIME ARBITRATION MOOT, 2022
SINGAPORE ARBITRATION 926 / 2022

IN THE MATTER OF ARBITRATION TO BE ADJUDICATED
BY THIS ARBITRAL TRIBUNAL BETWEEN
CASPIAN TRADERS LIMITED …………………………………………................ CLAIMANT
&
TAWE LIMITED …………….……………………………..……………......... 1ST
DEFENDANT
CRUZ SA ……..………………….………………………..………..…........ 2ND

DEFENDANT
(CO. INCORPORATED UNDER
LAWS OF REPUBLIC OF COLUMBIA)
Most reverently submitted to this Hon’ble Arbitral Tribunal
WRITTEN SUBMISSIONS on behalf of the CLAIMANT
_____________________________________________________________________________
9TH NLUO – BOSE & MITRA & CO. IMAM, 2022 9 2 6 C | II
-TABLE OF CONTENTS-
-TABLE OF CONTENTS-..................................................................................................................II
-LIST OF ABBREVIATIONS-............................................................................................................IV
-INDEX OF AUTHORITIES-..........................................................................................................VIII
-STATEMENT OF JURISDICTION-.................................................................................................XII
-STATEMENT OF FACTS-.............................................................................................................XIII
-STATEMENT OF ISSUES-..............................................................................................................XV
-SUMMARY OF ARGUMENTS-.....................................................................................................XVI
-ARGUMENTS ADVANCED-......................................................................................................1
I. THAT THE ARBITRAL PANEL SHOULD CONSIST OF THREE ARBITRATORS...........................1
A. THAT THE INTENTION TO ARBITRATE UNDER ‘SCMA ARBITRATION RULES’ IS EVIDENT...1
B. THAT THE TEST TO DETERMINE LAW GOVERNING ARBITRATION AGREEMENT IS FULFILLED

2
C. THAT § 9 OF IAA IS A NON-MANDATORY PROVISION...............................................................3
D. THAT RULE 2.1 AND 32 ARE NOT APPLICABLE IN CASE OF NON-MANDATORY PROVISIONS. .4
II. THAT THE 1ST DEFENDANT IS LIABLE FOR BREACH OF CONTRACTUAL DUTY.....................4
A. THAT BOTH HAGUE RULES 1924 AND HAGUE-VISBY RULES 1968 APPLY IN THE PRESENT
CASE…………………………………………………………………………………………….5
B. THAT THE 1ST DEFENDANT IS LIABLE UNTIL THE GOODS REACH THE PORT OF
DISCHARGE I.E., CHENNAI UNDER THE COMBICONBILL 2016................................................6
C. THAT THE 1ST DEFENDANT HAS BREACHED CONTRACTUAL DUTY..........................................7
D. 1ST DEFENDANT IS LIABLE AS A BAILEE AND JOINTLY LIABLE FOR PROVIDING AN

UNSEAWORTHY VESSEL..............................................................................................................8
E. ISSUING A SECOND SET OF BILLS FOR THE SAME CARGO WITHOUT THE CONSENT OF
THE HOLDER OF THE FIRST SET, INADMISSIBLE.....................................................................9
WRITTEN SUBMISSIONS on behalf of CLAIMANT

9TH NLUO – BOSE & MITRA & CO. IMAM, 2022 9 2 6 C | III
III. THAT CRUZ IS LIABLE AS SUB-BAILEES FOR FAILURE TO SHOW DUE DILIGENCE TO
PROVIDE SEAWORTHY VESSEL..................................................................................................9
A. INCORPORATION OF HAGUE/HAGUE VISBY RULES..................................................................9
B. CLAUSE 15 DOES NOT SAFEGUARD CRUZ FROM LIABILITY...................................................12
IV. THAT DEFENDANTS ARE LIABLE TO CASPIAN FOR THE FULL VALUE OF THE CONVERTERS
14
A. THAT PROVISIONS OF H/VR WILL OVERRIDE EXPRESS TERMS OF CONTRACT.....................14
A. RELEVANT LIABILITY OUGHT TO BE DEALT AS PER THE HAGUE RULES, 1924....................16
B. ARGUENDO, RELEVANT LIABILITY SHOULD BE FIXED UNDER HAGUE-VISBY RULES

APPENDED TO THE CARRIAGE OF GOODS BY SEA ACT 1971.................................................17
C. ARGUENDO, APPLICATION OF ENGLISH LAW/HAGUE RULES IS NOT ACCEPTED, LIMIT OF
LIABILITY AS PER CLAUSE 3 IS INVALID IN THE EYES OF BRAZILIAN LAW..........................18
D. RESPONDENTS SHOULD LOSE THE RIGHT TO LIMIT LIABILITY UNDER HAGUE/VISBY RULES
19
-RELIEF SOUGHT-...........................................................................................................................20

9TH NLUO – BOSE & MITRA & CO. IMAM, 2022 9 2 6 C | IV
-LIST OF ABBREVIATIONS-
ABBREVIATION EXPANSION
& And
°C Degree Celsius
¶ Paragraph
§ Section
Appeal Cases (3rd Series)

AC
All ER All England Law Reports
AMC American Maritime Cases
Appeal Cases (2nd Series)

App. Cas.
Anr. Another
Art. Article
B/L Bill of Lading
C.A. Court of Appeal (English)

9TH NLUO – BOSE & MITRA & CO. IMAM, 2022 926C|V
Cir. Court of Appeals (federal)
Civ. Civil division
cl. Clause
COGSA, 1972 Carriage of Goods by Sea Act, 1971
Corp. Corporation
CRGN Companhia Riograndense de Navegação SA
Ct. App Court of Appeal (state)
DMM Despachantes Monteiro e Mineiro SA
Doc. Document
ed. Edition
Eng. Rep. English Reports
EWCA England and Wales Court of Appeal
EWHS High Court of England and Wales
Exch Exchequer Reports
FCR Federal Court Reports

9TH NLUO – BOSE & MITRA & CO. IMAM, 2022 9 2 6 C | VI
HL House of Lords
HR Hague Rules
H/VR Hague and/or Hague Visby Rules
i.e. That is
IAA International Arbitrational Act of Singapore
Inc. Incorporated
Int. International
Lloyd’s Rep. Lloyd Law Reports
LMCQ Lloyd's Maritime and Commercial Law Quarterly
LS Lenova Shipping Ltd.
MMT Multimodal Transport
N.E. 2d Second series of the North Eastern Reporter
Prof. Professor
QB Queen’s Bench
QBD Queen’s Bench Division

9TH NLUO – BOSE & MITRA & CO. IMAM, 2022 926C |
VII
r. rule
SCC Supreme Court Cases
SCMA Singapore Chamber of Maritime Arbitration
SCR Supreme Court Reporter
SGCA Singapore Court of Appeal
SGHC Singapore International Commercial Court
SLR Singapore Law Reports
Temp. Temperature
UKPC United Kingdom Privy Council
UKHL United Kingdom House of Lords
U.S. United States Reports
USD United States Dollar
v. Versus
WLR Weekly Law Reports

VIII
-INDEX OF AUTHORITIES-
CASES
1. Adamastos Ship Co v AngloSaxon Petroleum [1958] 1 LLOYD’S REP 73 (CA).. .10,15,16

2. Aktieselskabet V. Bajamar Compania Naviera S.A. (1983) 2 LL. L. REP. 210 (QB).......8
3. BNA vs. BNB [2019] SGCA 84 (SGCA)...........................................................................2
4. Brown Boveri Pty. v Baltic Shipping [1989] 1 LLOYD’S REP. 518 (AUSTRALIA SC).. 17
5. Browner Int. Ltd. v Monarch Shipping Ltd. [1989] 2 LLOYD’S REP 185, 188, (QB).....15
6. Cf. Overseas Tankship (UK) v BP Tanker Co [1966] 2 LLOYD’S REP 386, (PC)..........15
7. Darlington Borough Council v Wiltshier Northern Ltd [1995] 1 WLR 68, 76 (CA).....14
8. East West Corp v DKBS 1912 [2003] 1 LLOYD’S REP 239 (CA)...................................11
9. Eisen Und Metall AG v Ceres Stevedoring Co. Ltd [1977] 1 LLOYD'S REP 665 (CA)...14
10. Elder, Dempster & Co Ltd. v Paterson, Zachonis & Co Ltd [1924] AC 522 (HL)........13
11. Eridania S.P.A. And Others V Rudolf A. Oetker And Others (The "Fjord Wind") [2000]
2 LLOYD’S REP. 191, 200 (CA).........................................................................................7
12. Fertilizers and Chemicals Ltd. v Grimaldi Compagnia di Navigazione, [2004]
DIR.MAR. 451 (TRIBUNAL OF NAPLES)...........................................................................20
13. Gosse M Ltd v Canadian Gvnt.Merchant Marine Ltd. [1928] 32 LL.L.REP. 91 (HL).....9
14. Grimaldi Cie di Navigazione SpA v Sekihyo Lines (The Seki Rolette) [1998] 2 LLOYD’S
REP. 638. (CA)................................................................................................................16
15. Hellenic Steel Co. v Svolamar Shipping Co. L. [1991] 1 LLOYD’S REP 371 (CA)...13, 15
16. Hong Kong Fir Shipping Co v Kawasaki [1962] 2 QB 26 (QB)....................................12
17. Insigma Technology Co Ltd v Alstom Technology Ltd [2009] SGCA 24 (SGCA)...........1
18. JCB Sales Ltd and Ors v Wallenius Lines and Ors [1997]124 F.3D 132 (USCA).........17
19. Johnson Matthey & Co v Constantine Terminals Ltd [1976] 2 Lloyd’s Rep 215 (QB).. .9
20. Kish v Taylor [1912] AC 604 (CA).................................................................................13
21. Kopitoff v Wilson (1876) 1 QBD 377 (QB)....................................................................12
22. Lauritzen Reefers v Ocean Reef Transport Ltd. S.A. [1997] 2 LLOYD’S REP 744 (QB).10
23. Pandle & Rivett Ltd .v Ellerman Lines. Ltd (1927) 29 LL. L. REP.133 (KB).................19
24. Marifortuna Naviera v Government of Ceylon [1970] 1 LLOYD’S REP. 247 (QB); 16,17
25. Masters v Daniel Intern. Corp, 895 F.2D 1295 (USDC)................................................13

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26. Maxine Footwear Co. Ltd. V CG Merchant Marine Ltd., (1959) 2 LL. REP.105 (PC);. . .8
27. Mayhew Foods Ltd v Overseas Containers Ltd (1984) 1 LLOYD’S REP. 317 (QB).........7
28. Mccarren & Co. Ltd v Humber Int. Transport Ltd. And Truckline Ferries (Poole) Ltd.
[1982] 1 LLOYD’S REP. 301 (QB)..............................................................................16,18
29. McFadden v Blue Star Line [1905] 1 KB 697 (KB).......................................................12
30. Midland Silicones Ltd v Scruttons Ltd [1962] AC 446 (HL)..........................................14
31. Morris v CW Martin & Sons Ltd [1966] 1 QB 716 (QB) 729...................................11,13
32. Morviken v Owners of the Hollandia [1983] 1 AC 565,[1983] 1 LLOYD'S REP 1 (CA).16
33. Nea Agrex S.A. v Baltic Shipping Co. L. [1976] Q.B 933 (QB).............................5,10,17
34. Norfolk Southern RC. v James N Kirby PL. (2004) 543 US 14; 125 SCT 385 (USSC) 14
35. Northern Shipping Co. V Deutsche Seereederei G.M.B.H. And Others (The "Kapitan
Sakharov") [2000] 2 LLOYD’S REP. 255, 266 (CA)..........................................................7
36. Northland Cas. Co. v HBE Corp., 145 F. SUPP. 2D 1310, (M.D. FLA. 2001) (USDC)..19
37. Owners of Cargo on Board the Morviken v Owners of the Hollandia [1982] 1 LLOYD’S
REP. 325 (HL)...................................................................................................................7
38. P T Karya Sumiden Indonesia v Oceanmasters Marine Services Sdn Bhd, 27-35-
08/2013 (HIGH COURT OF MALAYSIA, KUALA LUMPUR (COMMERCIAL DIVISION)).......9
39. Paterson Steamships Ltd v Robin Hood Mills (1937) 58 LlLR 33 (PC).........................12
40. Peh Teck Quee v Bayerische LB [1999] 3 SLR(R) 842 [2000] 1 SLR 148 (CA).............4
41. Port Jackson S Pty Ltd v Salmond & SpraggonPty Ltd [1981] 1 WLR 138, PC............15
42. President of India v West Coast Steamship Co [1963] 2 LLOYD’S REP 278 (USDC)....12
43. Pricol Ltd. v. Johnson Controls Enterprises Ltd. & Ors (2015) 4 SCC 177 (SC)............1
44. Pyrene Co Ltd v Scindia Steam Navigation Co Ltd [1954] 2 QB 402 (QB)..................7,9
45. Rickshaw Int Ltd v Nicolai B Uexkull [2007] 1 SLR(R) 377, [2007] 1 SLR 377 (CA)....4
46. Riverstone Meat Co. Pty. Ltd. v Lancashire S Co. [1961]1 LLOYD'S REP. 57 (HL)......8,9
47. S uccessors of Moine Comte Co Ltd v East Asiatic Co Ltd [1954] MLJ 113 (OCJ),.......8
48. Sabah Flour and Feedmills v Comfez [1988] 2 LLOYD’S REP. 18 (CA)......................16
49. Scott v Pilkington, [1861] 15 ABB. PR. 280 (NYSC).....................................................19
50. Steel v State Line Steamship Co (1877) 3 APP CAS 72 (CAS)........................................12
51. Sulamérica Cia Nacional ds SA and ors v Enesa Engelharia SA and ors [2013] 1 WLR
102, 114 [25] (QB)............................................................................................................2
52. Swain v The Law Society [1983] 1 AC 598, 611 (UKHL)..............................................14
53. The Epar [1985] 2 MLJ 3 (SGHC).................................................................................16
54. The Friso [1980] 1 LLOYD’S REP 469 (QB)...................................................................13

9TH NLUO – BOSE & MITRA & CO. IMAM, 2022 926C|X
55. The Pioneer Container KH Enterprise v Pioneer Container [1994] 2 AC 324 (PC).....11
56. The Rosa S [1989] QB 419 679 (QB)........................................................................16,17
57. The Sonia and Borgship Tankers v Product Transport (The Casco) [2005] 1 LLOYD’S
REP. 565 (QB).................................................................................................................16
58. The Tasman Discoverer [2004] UKPC 22, [2005] 1 WLR 215 (NZ)............................16
59. The Tilia Gorthon (1985), 1 Ll. Rep. 552 (QB); [370] –[ 372]........................................8
60. Trafigura Beheer BV v Mediterranean Shipping Corp. [2007] 2 Lloyd’s Rep. 622
(CA).......................................................................................................................9, 17, 18
61. Union of India v N.V. Reederij Amsterdam [1963] 2 LLOYD’S REP 223 (HL)............7,12
62. Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277, [1939] 1 All ER 513
(PC).............................................................................................................................4,5,6
63. Volcafe Ltd and others v Co. Sud Americana de Vapores [2018] UKSC 61 (UKSC);....8
64. Williams v African S .S .Co, [1959]1 LLOYD'S REP. 352 (CANADIAN S.C.)...................19
65. X v Y, (2009) APPEAL NR. 1.066.152-2 (HIGH COURT OF SÃO PAULO, BRAZIL).........19
66. X_GmbH v. Y_Corporation, 4A_452/2007 (SIALR).......................................................2
67. Yemgas Fzco v Superior Pescadores SA Panama, [2001] 2 LLOYD’S REP 530 (CA).
....................................................................................................................................16,17
68. Yeo Goon Nyoh and another v Ocean Steamship Co Ltd [1967] SLR(R) 783 (SGHC)...8
STATUTES/RULES
BIMCO Combiconbill 2016.......................................................................................................6

Brazilian Civil Code (1916) ....................................................................................................19
Carriage of Goods by Sea Act 1971.................................................................................8,18,19
Hague Rules, 1924..........................................................................................................7, 12,19
Hague-Visby Rules 1968.................................................................................................5, 8, 20
Singapore Commercial Maritime Arbitration, 2022..................................................................4
The Arbitration Act, 2020..........................................................................................................3
BOOKS
1. Colinvaux RP, Carver’s Carriage by Sea (13th edn, Sweet & Maxwell Ltd. 1982) 1114–
35.......................................................................................................................................6,9
2. Frederick Pollock, Robert Samuel Wright, Possession in the Common Law, (Vol. 1
California Law Review, 1929) 169....................................................................................11

9TH NLUO – BOSE & MITRA & CO. IMAM, 2022 9 2 6 C | XI
3. Gaskell N, Asariotis, R, and Baatz, Y, Bills of Lading – Law and Contracts (1st edn,
Informa Law from Routledge (2000) 15..............................................................................6
4. Halsbury’s Laws of England (Vol. 8(1) (1996) ) 873.....................................................3,19
5. Howard Bennett; David Walsh, Scrutton on Charter Parties and Bills of Lading, (19th
edn, Sweet & Maxwell Ltd.1984) 201.................................................................................8
6. Norman Palmer, Bailment (1st edn, N.S.W. : Law Book Co. 1979) 26..............................9
7. The Hon Mr Justice David Foxton; Steven Berry, QC; Christopher Smith, QC; Professor
William Tetley, Marine Cargo Claims (3rd edn, 1988) 9-10............................................19
ARTICLES
1. Badrinath Srinivasan, Defective Arbitration Clauses: An overview, Indian Institute of

Quantity Surveyors Annual Insight 2015,< file:///C:/Users/User/Downloads/SSRN-
id2664882.pdf > accessed 24 January 2022........................................................................1
2. Jae Hee Suh, Interpretation of pathological clauses: a cautionary tale? Practical Law
Arbitration Clause 2019 <http://arbitrationblog.practicallaw.com/interpretation-of-
pathological-clauses-a-cautionary-tale/ > accessed 27 January 2022.................................2
3. Roscoe Pound, ‘Justice according to the law’ (1913) 13 (8) CLJ <
https://www.jstor.org/stable/pdf/1110655.pdf > accessed 28 January 2022....................14
4. Sir Richard Aikens, Richard Lord QC, Michael Bools QC, Michael Bolding, Kian Sing
Toh SC, Bills of Lading (3rd Edition, Informa Law from Routledge 2020) 363..........11,16
MISCELLANEOUS
1. Alastair Henderson, Arbitration procedures and practice in Singapore: overview,

Practical Law,UK Practical Law, < https://uk.practicallaw.thomsonreuters.com/.>
accessed on 28 January 2022)................................................................................................3

XII
-STATEMENT OF JURISDICTION-
The CLAIMANT has approached the tribunal under the arbitration Cl. present in the
addendums of the Odyssefs & Hidalgo B/L, read with r. 2 of the Singapore Chamber of
Maritime Arbitration [“SCMA”] Rules and § 2A of the International Arbitration Act of
Singapore [“IAA”]. The parties agree to accept the decision of the arbitral tribunal as final
and binding.

XIII
-STATEMENT OF FACTS-
GENESIS
Caspian Traders Ltd (Herein referred to as “CLAIMANT”) contracted with Tawe Ltd (Herein
referred to as “1ST DEFENDANT”), the owner of MV Odyssefs, for the Carriage of twenty
hydrogen fuel cell converters from Santos, Brazil to Chennai. Each converter costs $30,000.
Neither Brazil nor Colombia is party to Hague Convention for the Unification of Certain
Rules of Law relating to Bills of Lading 1924 or the Brussels Protocol to that Convention of
1968.
BILLS OF LADING
Odyssefs B/L
A bill of lading on the Combiconbill 2016 form was issued by 1ST DEFENDANT on 25th
November which named CLAIMANT as the shipper & consignee, Santos as the port of
loading and Chennai as the port of discharge.
ADDENDUM OF THE ODYSSEFS B/L:
1. The B/L is subject to English law, and any dispute arising out in connection with the
same will be settled by SCMA.
2. The carrier has liberty to tranship goods, and all liability shall cease once the goods
are discharged from the Odyssefs.
3. The liability for damage by the carrier is limited to $500 per package or unit.
4. The Contract evidenced by this B/L is subject to Hague Rules and Cl.11 of the
Combiconbill 2016 is deleted.
Hidalgo B/L
After the goods were discharged from the Odyssefs on 1st December, they were transhipped
to Hidalgo Owned by Armadores Cruz SA (herein referred to as “2ND DEFENDANT”), at
Cartagena. A bill of lading of Combiconbill form 2016 was entered into which mentions 1ST
DEFENDANT as the shipper & consignee, 2ND DEFENDANT as the carrier and mentioned
Cartagena as port of shipment and Chennai as port of discharge. It contained an addendum as
follows:

XIV
1. The B/L is subject to English law, and any dispute arising thereunder in connection
with the same will be settled by SCMA.
2. Clause 11 of Combiconbill deleted
3. Clause Paramount- B/L subject to Hague Rules 1924, Cl. IX shall not apply
4. Carrier’s liability limited to a sum of £1,000 Sterling per package or unit.
Both the bills of lading did not specify the value of the goods, and each converter is a
separate unit or package.
CLAIMS
During the voyage between Cartagena and Chennai, the vessel encountered a hurricane which
resulted in the converters being lost. The loss was admitted by Cruz for the failure to show
due diligence to render hidalgo seaworthy.
CLAIMANT
DEFENDANTS are liable for $600,000, the full market value of the lost converters. An
alternative claim and justification for the same was made as given below:
1. Tawe is liable for breach of contractual duty under Art. III r. 1 of the Hague/Visby
Rules. Also, Cl. 2 of the Addendum of Odyssefs B/L is null & void by Art III r. 8.
2. Cruz are liable as sub-bailees under Hague/Visby Rules to show due diligence to
provide a seaworthy vessel.
3. Art. 4 (5) of HR,yields to $40,000 per converter. Alternatively, the claimants claim
$2,800 per converter according to the HVR
1ST DEFENDANT
Denying liability, arguendo 1ST DEFENDANT claim that:
1. Cl.2 of the Addendum of the Odyssefs B/L exonerated them from liability after
tranship. As the Hague/Visby Rules incorporated by virtue of agreement, Art. III r.8 is
not relevant.
2. Liability is limited to $500 per package according to Cl. 3 of the Addendum.
2ND DEFENDANT
Denying liability, arguendo 2ND DEFENDANT claim that:
1. Protected as third parties by Clause 15 of the Odyssefs bill of lading.
2. Liability is limited to £1,000 per unit, and As the Hague/Visby Rules incorporated by
virtue of agreement, Art. III r.8 is not relevant.
APPROACHING THE ARBITRAL TRIBUNAL

XV
The parties have approached the SCMA and the CLAIMANT claim the arbitral panel should
consist of 3 arbitrators according to r. 8.2 of SCMA and the DEFENDANTS claim the arbitral
tribunal should be a sole arbitrator according to § 9 of the IAA.
-STATEMENT OF ISSUES-
ISSUE -I
WHETHER THE TRIBUNAL SHOULD CONSIST OF A SOLE ARBITRATOR?
ISSUE - II
WHETHER THE 1ST DEFENDANT ARE LIABLE FOR BREACH OF CONTRACTUAL DUTY?
ISSUE - III
WHETHER THE 2ND DEFENDANT IS LIABLE AS SUB-BAILEE’S FOR FAILURE TO SHOW

DUE DILIGENCE TO PROVIDE A SEAWORTHY VESSEL?
ISSUE - IV
WHETHER THE DEFENDANTS ARE LIABLE TO THE CLAIMANT FOR THE FULL VALUE
OF THE CONVERTERS?

XVI
-SUMMARY OF ARGUMENTS-
I. THAT THE TRIBUNAL SHALL CONSIST OF THREE ARBITRATORS
It is humbly submitted that the Arbitral Panel should consist of three arbitrators as per r. 8.2
of the SCMA. The parties agreed to the Singapore Commercial Maritime Arbitration and the
seat of arbitration is Singapore. Thus the intention of the parties is very clear to apply SCMA
rules for the arbitral proceedings and thus, the number of arbitrators shall be decided by the
SCMA. A three step test is also laid down to prove the governing law for the arbitration
proceedings is SCMA Rules and not IAA. Also, it is proved that § 9 of IAA is not applicable
in the present case because it is just a gap filling provision and not a mandatory provision. As
it is proved that § 9 of IAA is not a mandatory provision, it can be established that r. 2.1 and
r. 32 are not derogatory to the IAA. Therefore the SCMA Rules is to be applied which
appoints three arbitrators.
II. THAT THE 1ST DEFENDANT IS LIABLE FOR BREACH OF CONTRACTUAL DUTY
It is humbly submitted that the 1ST DEFENDANT is liable for breach of contractual duty under
the Hague/Visby Rules as the 1ST DEFENDANT is responsible for the carriage of goods until
the goods reach the final port of discharge i.e., Chennai. As none of the parties to the present
case is from a contracting state, naturally, the Hague-Visby Rule, by virtue of bill of lading
according to Art. X (c) shall apply. Thus, according to the rules, the 1st Defendant has to take
due diligence and maintain a seaworthy vessel and Cl. 2 Addendum of the bill of lading is
null and void. And as both the parties has signed the Combiconbill 2016 form of bill of

XVII
lading, the primary carrier, i.e., the 1ST DEFENDANT is bound to be liable and accountable for
the acts of the sub-bailee, and ensure that the goods reach the final port of discharge in the
best condition. Therefore according to the Hague/Visby Rules, Bailment and the Odyssefs bill
of lading, there is a breach of contractual duty to maintain a seaworthy vessel as well as for
non-disclosure of transhipment and involvement of the 2ND DEFENDANT as third party.
III. THAT THE 2ND DEFENDANT IS LIABLE AS SUB-BAILEE’S FOR FAILURE TO SHOW
DUE DILIGENCE TO PROVIDE A SEAWORTHY VESSEL
It is most humbly submitted that the 2ND DEFENDANT is liable as they failed to show due
diligence in providing a seaworthy vessel in the stated encounter which resulted in the cargo
being lost. The Hague Rules are applicable in the present case as the Addendum clearly
mentioned in express choice ‘Clause Paramount’. According to the Hague Rules, it is the
duty of the carrier to provide a seaworthy vessel for the voyage which should be subject to
due diligence, which was not done on behalf of the DEFENDANTS in the present case. To
adjudicate if the doctrine of bailment should apply should be decided on the basis of a test of
reasonableness as stated by the courts and the intention of parties in the agreement. The
position of the Himalaya Clause as mentioned in Cl. 15 of the Combiconbill does not
safeguard the 2ND DEFENDANT from privity or liability in the present case.
IV. THAT THE DEFENDANTS ARE LIABLE TO THE CLAIMANT FOR THE FULL VALUE
OF THE CONVERTERS
It is most humbly submitted that the 1ST & 2ND DEFENDANTS are liable to the claimants for
the full value of the converters. The intent of the 1ST DEFENDANT to apply Hague/Visby rules
and the 2ND DEFENDANT to apply Hague Rules, 1924 is abundantly clear by the addendum to
the Combiconbill of Lading. Furthermore, Hague/Visby Rules are compulsorily applicable as
a matter of English law either by virtue of Article X(c) of the Hague-Visby Rules or by S.
1(6) (a) of the CoGSA Act, 1971. Additionally, S.1(6) (a) of the CoGSA Act, 1971 provides
that in the event of any conflict between the rules and contract, the provisions of the Rules
will override express terms of the contract. Therefore, clauses setting a lower than the limit
set out by the Hague/Visby Rules are inconsistent with Art. III Rule 8 of H/VR.
The clause in the addendum between the 1ST & 2ND DEFENDANTS is clear in incorporating
the Hague Rules and not the Hague Rules “as amended”. In accordance with Article 4 (5)

XVIII
r/w Article 9 of the Hague Rules, 1924, DEFENDANTS are liable for $600,000 for twenty
converters. Arguendo, DEFENDANTS are liable under Hague-Visby Rules, 1968 as it has the
“force of law” for $56,000 according to Article 4 (5) (a) of the Rules, 1968. Further, Brazilian
law also does not warrant the limit purported by 1ST DEFENDANT. Arguendo, the Defendants
must be liable for more than the limit set in the Hague/Visby Rules as the value/nature of
goods were not declared in the bill of lading and serious faults were committed by them.

Page | 1
-ARGUMENTS ADVANCED-
THAT THE ARBITRAL PANEL SHOULD CONSIST OF THREE ARBITRATORS

1. It is most humbly submitted on behalf of the CLAIMANT that the arbitral panel should consist
of 3 arbitrators as per r. 8.2 of the SCMA rules. The same shall be dealt by the CLAIMANT
using following grounds: Firstly, intention to arbitrate by parties is clear [A.]. Secondly, the
test to determine the law governing the arbitration agreement lays in the favor of SCMA
Rules, 2022 [B.], Thirdly, § 9 of the IAA is not a mandatory provision whereas r. 8.2 is a
mandatory rule & therefore, r. 8.2 of the SCMA will override § 9 of the IAA [C.], Lastly, r.
2.1 & r.32 of the SCMA will only be applicable in case of mandatory provisions as given
under § 15A (1) of the IAA [D.].
A. THAT THE INTENTION TO ARBITRATE UNDER ‘SCMA ARBITRATION RULES’ IS EVIDENT
2. In the present case, all the three parties to the arbitration have agreed to SCMA Arbitration
and the place of arbitration is agreed as Singapore. 1 Therefore, it can be evidenced that the
parties intended to apply SCMA Arbitration Rules which is further proved in the three step
test below. However, there is an and the Court re-write the defective part of the arbitration
clause by supplying meaning that is most reasonable in the context of the arbitration clause.
In Pricol Ltd. v. Johnson Controls Enterprises Ltd. & Ors.2 Supreme Court of India referred
the parties to arbitration under the arbitration rules of the Singapore International Arbitration
Centre even when the parties provided for reference to arbitration under the arbitration rules
of Singapore Chamber of Commerce.
3. Although there was no such arbitral institution, the Supreme Court construed the reference in
the arbitration clause to mean the Singapore International Arbitration Centre.3 Whereas, in
the case at hand, there has merely been a minute error which does not take away the essence
of the arbitration clause.
4. Furthermore, the Singapore Court of Appeal explained in Insigma v Alstom4, “where the
parties have evinced a clear intention to settle any dispute by arbitration, the court should
give effect to such intention, even if certain aspects of the agreement may be ambiguous,
inconsistent, incomplete or lacking in certain particulars… so long as the arbitration can be
carried out without prejudice to the rights of either party and so long as giving effect to such
1
¶3 (1), ¶4 (1), Statement of Facts, CASPIAN & TAWE, CRUZ SA, Arbitration, 2022.
2
Pricol Ltd. v. Johnson Controls Enterprises Ltd. & Ors (2015) 4 SCC 177 (SC).
3
Badrinath Srinivasan, Defective Arbitration Clauses: An overview, Indian Institute of Quantity Surveyors
Annual Insight 2015,< file:///C:/Users/User/Downloads/SSRN-id2664882.pdf > accessed 24 January 2022.
4
Insigma Technology Co Ltd v Alstom Technology Ltd [2009] SGCA 24 (SGCA).
9TH NLUO – BOSE & MITRA & CO. IMAM, 2022 926C|2
intention does not result in an arbitration that is not within the contemplation of either
party.”5 Furthermore, any prudent reasonable man can link back the SCMA Arbitration to the
SCMA & SCMA Arbitration Rules. Therefore, SCMA Arbitration Rules, 2022 are
applicable.
5. According to Black's Law Dictionary, an addendum is “A document attached to clarify or
modify a part of a contract.” in the case of X__GmbH v. Y__Corporation.6 In this case, the
Tribunal concluded that the arbitration agreement in Addendum no. 2 specifically substituted
the jurisdiction clause of the Exclusive agreements ELV 2000 and ELV 2004. Similarly, in
the present case, Cl. 1 of the Addendum to Odyssefs bill of lading and Hildago’s bill of
lading agreeing to SCMA Arbitration modifies and substitutes Cl. 5 of the Combiconbill
2016.
B. THAT THE TEST TO DETERMINE LAW GOVERNING ARBITRATION AGREEMENT IS
FULFILLED
6. The arbitration agreement’s governing law determines questions of formation, validity, effect
and discharge of the arbitration agreement. The Singapore Court of Appeal in the case of
BNA vs. BNB7 the contention made was that the proper governing law was Singapore law,
which gave effect to the arbitration agreement. The three-stage test set out in the England and
Wales Court of Appeal decision of Sulamérica v Enesa Engelharia SA8 was applied to
determine the law governing the arbitration agreement.9
7. First essential- Did the parties expressly choose a law to govern the arbitration agreement?
The parties in the instant case had expressly chosen the proper law for the arbitration agreement.
In Cl. 1 of the Addendum10 the clear intention to apply SCMA Arbitration Rules in case of
any dispute arising out of or in connection with the present case shall be settled in Singapore.
To say that there is no intention to apply SCMA arbitration rules would be erroneous as the
intention of parties is clearly established by agreeing to SCMA Arbitration.
5
Jae Hee Suh, Interpretation of pathological clauses: a cautionary tale? Practical Law Arbitration Clause 2019
<http://arbitrationblog.practicallaw.com/interpretation-of-pathological-clauses-a-cautionary-tale/ > accessed 27
January 2022.
6
X_GmbH v. Y_Corporation, 4A_452/2007 (SIALR).
7
BNA vs. BNB [2019] SGCA 84 (SGCA).
8
Sulamérica Cia Nacional de Seguros SA and others v Enesa Engelharia SA and others [2013] 1 WLR 102, 114
[25] (QB).
9
BNA v BNB and another [2019] SGCA 84 [33] (SGCA); BCY v BCZ [2017] 3 SLR 357, 368 [40]
(SGHC); BMO v BMP [2017] SGHC 127 [35] (SGHC).
10
¶3, Statement of Facts, CASPIAN & TAWE, CRUZ SA, Arbitration, 2022.

8. Second essential: If an express choice is not evident, did the parties implicitly choose a law to
govern the arbitration agreement?
The parties accepted in their claims that the law of the seat is the Singapore. The words ‘SCMA
Arbitration Rules in Singapore’ indicated the seat was Singapore, and the rules governing
were SCMA Arbitration Rules. The DEFENDANTs wanting to apply the IAA with regards to
the number of arbitrators in the present case does not hold value as clear express choice of
rules is mentioned and the parties were aware of this fact. In the present case, given the
parties have made an express choice of law; this tribunal should consider this essential to be
satisfied.
9. Third essential: If an implied choice cannot be identified, what system of law has the closest
and most real connection to the arbitration agreement?
The third stage can be regarded as accepted, as an implied choice to apply ‘SCMA Arbitration
Rules’ was mentioned in the addendum and that has the closest and most real connection in
the instant case.
C. THAT § 9 OF IAA IS A NON-MANDATORY PROVISION
10. SCMA Rules of arbitration cannot override mandatory statutory provisions in the Arbitration
Act11 or the International Arbitration Act.12 However, the IAA does not explicitly set out any
mandatory provisions.13 Mandatory statutory provisions relate to the power to intervene in
certain situations to protect the integrity and it has been recognised that procedural provisions
are aimed at advancing justice and assisting the parties, and should be construed as such. § 9
seeks to provide a default rule that parties can benefit from in the absence of any agreement
between them, rather than to impose any obligation carrying a penalty for contravention.
11. Further, § 15A(5), states that the provision of the SCMA rules are not inconsistent with a
provision of Part II of IAA, merely because they deal with the same matter when the
provision of the IAA itself authorises parties to make their arrangements by agreement but
which applies in the absence of agreement. § 9 is one such provision.
12. Mandatory provisions should start with words like ‘notwithstanding any term in an
arbitration agreement’ and ‘notwithstanding anything to the contrary’.14 On the contrary, § 9
of the IAA allows the parties to make an agreement/arrangement which is the thumb rule of a
non-mandatory clause. In order to understand whether § 9 is a mandatory provision or not,
11
The Arbitration Act, 2020.
12
The International Arbitration Act 2020 , Cap 143A.
13
Alastair Henderson, Arbitration procedures and practice in Singapore: overview, Practical Law,UK Practical
Law, < https://uk.practicallaw.thomsonreuters.com/.> accessed on 28 January 2022).
14
Halsbury’s Laws of England (Vol. 8(1) (1996) ) 873.

the analysis and choice of words in the provision should be given importance. § 9 of the IAA
reads as under:
“9. 15 Despite Art. 10(2) of the Model Law, if the number of arbitrators is not determined by the
parties, there is to be a single arbitrator”
13. § 9 does not mention any of the above terms such as ‘notwithstanding’ ‘the court shall’
which is an essential for it to be a mandatory clause. However, § 9 of the international
arbitration act, 2016 did mention the term “Notwithstanding” instead of “Despite” in the act
of 2020. This is additional evidence that the present applicable International Arbitration Act
is a non-mandatory clause and the intention of the revision was to clear all ambiguity.
14. Provisions that are expressly subject to the parties’ contrary agreement or applies only in the
absence of the parties’ arrangements or use words such as ‘unless parties otherwise agree’,
‘subject to agreement to the contrary’ and ‘in the absence of agreement’. are non-mandatory,
‘gap filling’ provisions. In § 9 of IAA 16 there is a gap filling provision as it says “if number is
not determined by the parties” which establishes that § 9 is not a mandatory clause. Whereas,
r. 8.217 uses the word ‘shall’ which indicates that this is a mandatory provision.18
D. THAT RULE 2.1 AND 32 ARE NOT APPLICABLE IN CASE OF NON-MANDATORY PROVISIONS
15. The r. 2.1 & r. 32 of SCMA state that the law of the seat/IAA shall prevail whenever there is
a provision which cannot be derogated and there is inconsistency between the rules and the
law. However, in the case of a non- mandatory provision, when the parties have agreed to
apply the rules to an arbitration agreement then these rules shall govern the arbitration
proceedings. Thus, based on its construction and intention, § 9 can be seen as not a
mandatory provision and hence, r. 8.2 of SCMA are not-derogatory to IAA and should be
applicable. Therefore vide application of r. 8.2 of SCMA, the present Arbitral panel should
consist of three arbitrators.
THAT THE 1ST DEFENDANT IS LIABLE FOR BREACH OF CONTRACTUAL DUTY

16. It is humbly submitted before this Arbitral Tribunal that 1ST DEFENDANT is liable for the
breach of contractual duty entered between CLAIMANT and 1ST DEFENDANT on 20th
November 2020 under Hague/Visby Rules. The same shall be dealt under the grounds:
15
The International Arbitration Act, 2020, § 9.
16
The International Arbitration Act, 2020, § 9.
17
Singapore Commercial Maritime Arbitration, 2022, Rule 8.2.
18
Peh Teck Quee v Bayerische Landesbank [1999] 3 SLR(R) 842 [2000] 1 SLR 148 (CA); Rickshaw Investments
Ltd v Nicolai Baron von Uexkull [2007] 1 SLR(R) 377, [2007] 1 SLR 377 (CA); Vita Food Products Inc v Unus
Shipping Co Ltd [1939] AC 277, [1939] 1 All ER 513 (PC).

Firstly, both Hague Rules 1924 and Hague-Visby Rules 1968 are applicable in the present
case [A.] Secondly, 1ST DEFENDANT should be held liable until the goods reach the port of
discharge i.e., Chennai under the Combiconbill 2016 [B.] Thirdly, there is breach of
contractual duty [C.], Fourthly, 1ST DEFENDANT is liable as a Bailee and jointly liable for
providing an unseaworthy vessel [D.], Lastly, Issuing a second set of bills for the same cargo
without the consent of the holder of the first set, inadmissible. [E.]
A. THAT BOTH HAGUE RULES 1924 AND HAGUE-VISBY RULES 1968 APPLY IN THE
PRESENT CASE
17. It is most humbly submitted that both The Hague Rules, 1924 and the Hague Visby Rules
1968 are not separate rules or conventions, rather the Hague-Visby amendment(s) are
changes made to the initial Hague Rules. However, as neither Brazil nor Colombia are party
to the Hague Conventions19, the parties can only incorporate Hague-Visby Rules by virtue of
contract or bill of lading either by adopting the rules or the legislation of any State giving
effect to them are to govern the contract. 20 It is pertinent to note that the Addendum to
Odyssefs bill of lading provides for application of English Law which in turn gives effect to
Hague/Visby rules under Art. X (c) of the Hague-Visby Rules, 1968.
18. § 1(2) of the Carriage of Goods by Sea Act 1971 and § 5(5) of the Carriage of Goods by Sea
Act 1992 give the Hague-Visby Rules the force of law in the United Kingdom. This has
further effect that any inconsistent contractual provision will be of no effect. Whenever the
rules of the bill and the applicable mandatory national or international rules are not
compatible, the latter will always prevail and so, in case of inconsistency with the terms of
the bill of lading and the applicable law i.e Hague/Visby Rules, the latter shall prevail.
19. However, a question may arise as to which Hague Rules should apply in the present case.
When the ‘paramount clause’ is incorporated, without any words of qualification, it means
that all the Hague Rules are incorporated. 21 The next question that arises, is that to
incorporate any of the Hague Rules, is a paramount clause mandatory. It is common for bills
of lading to incorporate Hague Visby Rules by including a paramount clause in the contract
or bill of lading.
20. In the present instance, the bill of lading between CLAIMANT and 1ST DEFENDANT did not
contain a paramount clause. But however, the rules still apply in the present case as they have
agreed to follow Hague rules by virtue of agreement in the same way that a paramount clause
19
20
Hague-Visby Rules 1968, Art. 10.
21
Nea Agrex S.A. v Baltic Shipping Co. Ltd (The Agios Lazarus) [1976] Q.B 933 (QB).

would be followed.22 The judgment given in Vita Food Products v. Unus Shipping Co23 is no
longer valid as Hague-Visby Rules settles the question at Art.10, where the rules are
specifically declared to be of force of law, so that the need for a paramount clause is
eliminated. Additionally, there is no conflict of laws as the bill of lading is subject to English
Law and in case of conflict, Doctrine of Renvoi will make applicable English law as the
applicable law. 24
21. Thus, it is established that in the present case, the clause paramount is not necessary to
incorporate Hague/Visby Rules, and by virtue of agreement Hague-Visby rule is applied in
the present case according to Art. X (c) and as the Hague-Visby Rule is an amendment to the
Hague Rules, both the rules can be used interchangeably in the present case. It is also
submitted in the present case that a partial exclusion of clauses are inadmissible. The parties
have no power to exclude the operation of rules, where otherwise applicable, either by mutual
agreement or otherwise.25
B. THAT THE 1ST DEFENDANT IS LIABLE UNTIL THE GOODS REACH THE PORT OF
DISCHARGE I.E., CHENNAI UNDER THE COMBICONBILL 2016
22. It is respectfully submitted that 1ST DEFENDANT is to be held liable as the carrier until the
goods reach the port of discharge that was agreed in the Combiconbill signed between
CLAIMANT and 1ST DEFENDANT. The Combiconbill 2016 is the form of bill adopted by
CLAIMANT and 1ST DEFENDANT which is a Combined Transport Document. These ‘combined
transport bills of lading’ or ‘multimodal transport bills of lading’ 26 such as the Combiconbill,
the FBL or the BIMCO Multiwaybill for multimodal carriage. 27 The carrier shall be liable for
the loss of or damages to the goods occurring between the time when it receives the goods
into its occurring and the time of delivery.28 Thus a ‘combined transport bill of lading’ causes
the carrier to assume responsibility for the whole period of carriage. 29 In the instant case,
Combiconbill of lading has named Santos as the port of loading and Chennai as the port of
discharge30, hence until the goods reach Chennai, the 1ST DEFENDANT is liable.
22
¶3 (4), Statement of Facts, CASPIAN & TAWE, CRUZ SA, Arbitration, 2022.
23
Vita Food Products v Unus Shipping Co [1939] A.C. 277 (PC).
24
Vita Food Products Inc v Unus Shipping Co Ltd [1939] UKPC 7 (PC).
25
Colinvaux RP, Carver’s Carriage by Sea (13th edn, Sweet & Maxwell Ltd. 1982) 1114–35.
26
Gaskell N, Asariotis, R, and Baatz, Y, Bills of Lading – Law and Contracts (1st edn, Informa Law from
Routledge (2000) 14.
27
BIMCO Combiconbill 2016, Cl. 1.
28
BIMCO Combiconbill 2016, Cl. 9(1).
29
Gaskell N, Asariotis, R, and Baatz, Y, Bills of Lading – Law and Contracts (1st edn, Informa Law from
Routledge (2000) 15.
30

23. It is also pertinent to note that in the Pyrene case, the combined transport of lading was held
to be a bill of lading31, or at least a similar document of title, and thus covered by the rules in
so far as the document concerns carriage by sea.32
24. Moreover, with regards to any conflict between the rules and the terms of the contract, it is
held that the Hague Rules are to be given the coercive force of law. So much so that, the rules
are to be given supremacy over every other provision of the bill of lading and there is to be
no contracting-out of the rules.33Therefore, Cl. 2 of the Addendum of the Odyssefs bill of
lading stands null and void according to the Combiconbill. It is also established that as the
primary carrier i.e., 1ST DEFENDANT according to Combiconbill 2016, will be liable for all the
acts and omissions of any of whose services it makes use of, which is 2ND DEFENDANT in this
present case and as 2ND DEFENDANT has already admitted liability34, 1ST DEFENDANT as the
primary carrier is liable for the same.
C. THAT THE 1ST DEFENDANT HAS BREACHED CONTRACTUAL DUTY
25. It is submitted that 1ST DEFENDANT has breached the contractual duty to provide a seaworthy
vessel for CLAIMANT under Art. III r.1 of the Hague/Visby Rules and II. CLAIMANT was not
informed of 2ND DEFENDANT’s involvement as sub-bailees, as the contract of transhipment
was between 1ST DEFENDANT and 2ND DEFENDANT only.
26. It is submitted that 1ST DEFENDANT has breached the contractual duty of providing a
seaworthy vessel to CLAIMANT. Although the goods were transhipped and discharged in
Hidalgo, and 2ND DEFENDANT took over the goods from Colombia 35, the primary carrier being
1ST DEFENDANT is still liable for the acts of the following carriers or sub-bailees. Where the
contract of affreightment is governed by the Hague or Hague-Visby Rules, the absolute
obligation is replaced by a duty to exercise due diligence to make the ship seaworthy. 36
Accordingly, while the carrier will no longer be strictly liable in absence of any fault, he will
be liable not only for his own negligence but also for the negligence of any party, even
including an independent contractor, to whom he has delegated responsibility for making the
vessel seaworthy.
31
ibid [34].
32
Pyrene Co Ltd v. Scindia Navigation Co Ltd [1954] 2 QB 402 (QB); Mayhew Foods Ltd v Overseas Containers
Ltd (1984) 1 LLOYD’S REP. 317 (QB).
33
Owners of Cargo on Board the Morviken v Owners of the Hollandia [1982] 1 LLOYD’S REP. 325 (HL).
34
35
36
The Hague Rules 1924, Art.3 rule 1.

27. Due diligence equates in practice to the exercise of reasonable care and skill, and the lack of
it to negligence.37 Due diligence should be exercised not only to provide a vessel fit to
undertake a voyage, but also fit to carry the cargo safely to its destination. 38 Accordingly, the
carrier is liable not only for any negligence committed by himself or by his servants or
employees, but also he is responsible for the negligence of independent contractors. 39Further,
the burden of proof to prove the ship owner or the carrier in a claim against a ship-owner for
loss of, or damage to, cargo, is on the ship owner or the carrier to prove that they have
complied with their duties under Art. III r. 2, or the cargo was damaged by reason of one of
the “excepted clauses” under Art. III r. 2.40
28. Although there are sea peril exceptions in the Hague and/or Hague-Visby Rules, 41 many cases
have held that the foreseeability of the event is not the deciding factor, rather the Carrier’s or
their agent’s negligence and exercising of due diligence plays an active role in making the
carrier liable42 by want of due diligence on the part of the carrier to make the ship
seaworthy.43 Providing a seaworthy vessel is an overriding obligation under English law:
excepted perils cannot be invoked by the carrier if the vessel’s seaworthiness is not first
established.44 Thus, 1ST DEFENDANT is liable for the negligence of 2ND DEFENDANT who in
this case is the sub-Bailee of 1ST DEFENDANT for not providing a seaworthy vessel and
exercising due diligence.
D. 1ST DEFENDANT IS LIABLE AS A BAILEE AND JOINTLY LIABLE FOR PROVIDING AN
UNSEAWORTHY VESSEL
29. It is submitted that 1ST DEFENDANT as the Bailee of the goods is jointly liable for the acts of
2ND DEFENDANT, who is the sub-bailee of the goods. This is because, as per the bill of lading
between CLAIMANT and 1ST DEFENDANT, the port of discharge is mentioned as Chennai. So,
37
Union of India v N.V. Reederij Amsterdam [1963] 2 LLOYD’S REP 223 (HL); Eridania S.P.A. And Others V
Rudolf A. Oetker And Others (The "Fjord Wind") [2000] 2 LLOYD’S REP. 191, 200 (CA); Northern Shipping
Co. V Deutsche Seereederei G.M.B.H. And Others (The "Kapitan Sakharov") [2000] 2 LLOYD’S REP. 255, 266
(CA).
38
The Hon Mr Justice David Foxton; Steven Berry, QC; Christopher Smith, QC; Professor Howard Bennett;
David Walsh, Scrutton on Charter Parties and Bills of Lading, (19th edn, Sweet & Maxwell Ltd.1984) 201.
39
Riverstone Meat Company, Pty., Ltd. v Lancashire Shipping Company, Ltd. [1961]1 LLOYD'S REP.57 (HL).
40
Volcafe Ltd and others v Compania Sud Americana de Vapores SA [2018] UKSC 61 (UKSC); Successors of
Moine Comte Co Ltd v East Asiatic Co Ltd [1954] MLJ 113 (OCJ), Yeo Goon Nyoh and another v Ocean
Steamship Co Ltd [1965-1967] SLR(R) 783 (SGHC).
41
Hague Rules, 1924; Hague-Visby Rules 1968 appended to Carriage of Goods by Sea Act 1971, Art. IV Rule 2.
42
The Tilia Gorthon (1985), 1 Ll. Rep. 552 (QB); [370] - [ 372].
43
Hague Rules, 1924; Hague-Visby Rules 1968 appended to Carriage of Goods by Sea Act 1971, Art. 3 r. 1 & 2.
44
Maxine Footwear Company Ltd. V Canadian Government Merchant Marine Ltd., (1959) 2 LL. REP.105 (PC);
Aktieselskabet De Danske Sukkerfabrikker V. Bajamar Compania Naviera S.A. The Torenia, (1983) 2 LL. L.
REP. 210 (QB).

naturally, 1ST DEFENDANT is liable until the goods reach the agreed port of discharge. This
liberty to decide on the extent of liability is given under Art. 7 of Hague/Visby Rules. The
Hague Rules specify that the parties are free to agree on the role each is to play in the loading
and the extent to which loading and discharging are brought within the carrier’s obligations is
left to the parties themselves to decide.45
30. In English law, the bailee is bound to restore the subject of the bailment in the same condition
in that in which he received it, and it is for him to explain or offer a valid excuse if he has not
done so.46 Futher, The Muncaster Castle47 held that the carrier is liable for any servant, agent
and independent contractor, to whom he assigns his obligations under the contract of
carriage, that they have exercised due diligence in making the vessel seaworthy. The carrier is
thus not exempted from liability on the ground that he himself has showed due diligence
when selecting a competent independent contractor who was to make the vessel seaworthy
and this cannot be delegable. 48
Art. 3(2) of the Hague-Visby Rules requires the carrier to
properly care for the goods while in his custody. Therefore, it is established that 1ST
DEFENDANT as bailee is liable for 2ND DEFENDANT’s negligence as sub-bailee and hence is
said to be equally liable for the want of lack in showcasing due diligence. 49
E. ISSUING A SECOND SET OF BILLS FOR THE SAME CARGO WITHOUT THE CONSENT OF
THE HOLDER OF THE FIRST SET, INADMISSIBLE
31. Issuing a second set of bills of lading to a different shipper to cover the same shipment of
goods as under a set of bills of lading issued earlier to the original shipper is a prima facie
case of breach of the contract of carriage. 50 Consent isrelevant only between the bailor and
the head bailee.51 If the sub-bailment is on terms to which the bailor consented, he has no
cause of action against the head bailee. If it was not, the sub-bailee is still protected but, if the
bailor is damnified by the terms of the sub-bailment, he has a cause of action against the head
bailee.52 In the present case, the Hidalgo bill of lading between 1ST DEFENDANT and 2ND
DEFENDANT, did not mention CLAIMANT, the shipper in any way. Thus, it is a clear fact that
45
Pyrene Co Ltd v Scindia Steam Navigation Co Ltd [1954] 2 QB 402 (QB).
46
Gosse Millard Ltd v Canadian Government Merchant Marine Limited [1928] 32 LL.L.REP. 91 (HL).
47
Riverstone Meat Co. Pty. Ltd. v Lancashire Shipping Co. (The Muncaster Castle) [1961]1 LLOYD'S REP. 57
(HL).
48
Colinvaux RP, Carver’s Carriage by Sea (13th edn, Sweet & Maxwell Ltd. 1982) 9-147.
49
Norman Palmer, Bailment (1st edn, N.S.W. : Law Book Co. 1979) 26.
50
P T Karya Sumiden Indonesia v Oceanmasters Marine Services Sdn Bhd, 27-35-08/2013 (HIGH COURT OF
MALAYSIA, KUALA LUMPUR (COMMERCIAL DIVISION)).
51
Trafigura Beheer BV v. Mediterranean Shipping Corp. (The MSC Amsterdam) [2007] 2 LLOYD’S REP. 622
(CA).
52
Johnson Matthey & Co v Constantine Terminals Ltd [1976] 2 Lloyd’s Rep 215 (QB).

9TH NLUO – BOSE & MITRA & CO. IMAM, 2022 9 2 6 C | 10
CLAIMANT as the bailor was not aware of the second bill of lading. Therefore, CLAIMANT has
a cause of action against the head bailee 1ST DEFENDANT & it must be made liable for breach
of contract.
THAT CRUZ IS LIABLE AS SUB-BAILEES FOR FAILURE TO SHOW DUE DILIGENCE TO

PROVIDE SEAWORTHY VESSEL
32. It is most humbly submitted that, in the instant case, Caspian alleges that Cruz is liable for the
stated encounter of cargo being lost as Cruz failed to render Hidalgo seaworthy and failed to
show due diligence. Consequently, all claims for sub-bailment are being dealt under this issue
under the grounds: Firstly, the Hague/Hague Visby rules were incorporated by Clause
paramount[A.], Secondly, Caspian can hold Cruz liable as sub-bailees under Hague/Visby
Rules [B.], Thirdly, that the undertaking of seaworthiness was not dealt by Cruz [C.],
Fourthly, Cl. 15 of the Bill of Lading does not safeguard Cruz from liability [D.], and Lastly,
the position of Himalaya Clause has changed over the years [E.].
A. INCORPORATION OF HAGUE/HAGUE VISBY RULES
33. In the instant matter, Clause 3 of the ‘Hidalgo Bill of Lading’ very clearly specifies that the
parties are ‘Clause Paramount’ subject to the Hague Rules.53 The Court of Appeal
accordingly held that the intention of the parties in using the phrase ‘Clause Paramount’ was
to incorporate the entire Hague Rules in their original form. 54 In many cases the relevant
paramount clause will provide that in cases of conflict the provisions of The Hague Rules are
to take precedence.55 Such international conventions may be applicable either by statute as,
for example, the Hague/Visby Rules by the Carriage of Goods by Sea Act 1971, or may be
incorporated into the contract by the use of an appropriate paramount clause.
34. Thus in the case of Adamastos Shipping Co v AngloSaxon Petroleum56 the voyage charter
involved included a clause paramount incorporating the provisions of the US Carriage of
Goods by Sea Act 1936 which were written verbatim into the charter. The House of Lords
gave full effect to the provisions of the Hague Rules.
35. Since the repeal of COGSA 1924, the only way in English law that The Hague Rules can
apply to a contract of carriage of goods by sea contained in or evidenced by a bill of lading is
if they are incorporated contractually. This could be done by the use of a “clause paramount”
53
¶4, Statement of Facts, Caspian & Tawe, Cruz, Arbitration, 2022.
54
Lauritzen Reefers v Ocean Reef Transport Ltd. S.A. (The "Bukhta Russkaya") [1997] 2 LLOYD’S REP 744 (QB).
55
Nea Agrex S.A. v Baltic Shipping Co. Ltd. And Intershipping Charter Co.(The "Agios Lazaros") [1976] 2
LLOYD’S REP 47 (CA).
56
Adamastos Shipping Co v AngloSaxon Petroleum [1958] 1 LLOYD’S REP 73 (HL).

or other similar techniques of incorporation that have already been discussed. Thus, the
Hague as opposed to the Hague-Visby Rules are still of practical importance, particularly in
the case of shipments from non-contracting states.57 Thus, in the present case, it has been
established that the Hague Rules are applicable as intended by the parties.
36. It is humbly submitted that ‘Cl.2 of the addendum to the Odyssefs Bill of Lading’58 clearly
mentions about the transhipment clause & liability after discharge clause. Since Tawe is not
liable after transhipment and discharge, it would seem that both the owner and the first bailee
have concurrently the rights of a bailor against the [sub-bailee] according to the nature of the
sub-bailment’.59 In the landmark case of The Pioneer Container,60 on the facts of the case,
there could be no doubt that the claimants had consented to the sub-bailment and, by
authorising the carrier to sub-contract ‘on any terms’, such consent would encompass all
contractual provisions other than those which were unreasonable or unexpected in their
context.61
37. It is clear that the relationship between owner of the goods and sub-bailee is independent of
contract and is created by taking possession of goods. The result is that such sub-bailees owe
the duty of a bailee62 not only towards their immediate bailor but also towards the owner of
the goods.63
38. The owner (Caspian) is bound by the conditions if he has expressly or impliedly consented to
the bailee making a sub-bailment in the contract. Although this opinion was expressed obiter,
it was adopted by the Privy Council as the basis of its judgment in The Pioneer Container. 64
As per facts of the present case there could be little doubt in stating that the owners did not
consent to transhipping. As it is clearly mentioned in the Odyssefs Bill of Lading that there
was consent.65 The bill of lading provided that the carrier should be entitled to sub-contract
‘on any terms’ the whole or any part of the carriage.66
57
Sir Richard Aikens, Richard Lord QC, Michael Bools QC, Michael Bolding, Kian Sing Toh SC, Bills of Lading
(3rd Edition, Informa Law from Routledge 2020) 363.
58
59
Frederick Pollock, Robert Samuel Wright, Possession in the Common Law, (Vol. 1 California Law Review,
1929) 169.
60
The Pioneer Container KH Enterprise v Pioneer Container [1994] 2 AC 324 (PC); East West Corp v DKBS
1912 [2003] 1 LLOYD’S REP 239 (CA).
61
East West Corp v DKBS 1912 [2003] 1 LLOYD’S REP 239 (CA).
62
The Pioneer Container KH Enterprise v Pioneer Container [1994] 2 AC 324 (PC)
63
East West Corp v DKBS 1912 [2003] 1 LLOYD’S REP 239 (CA).
64
The Pioneer Container KH Enterprise v Pioneer Container [1994] 2 AC 324 (PC)
65
66
¶3 (2), Statement of Facts, Caspian & Tawe, Cruz, Arbitration, 2022.

39. Lord Denning MR indicated in Morris v Martin67 that implied consent by the shipper of the
goods to a sub-bailment on terms might be sufficient and this view was adopted by the Privy
Council in The Pioneer Container: ‘Such consent may be express or implied; and in this
context the sub-bailee may also be able to invoke, where appropriate, the principle of
ostensible authority. The test of reasonableness may be an appropriate guide, particularly if
the terms involved are standard conditions in deciding issues on Bailment. Since the sub-
contracting of any part/aspect of the carriage to another will ordinarily involve a bailment (or
sub-bailment) to that carrier, it must keep in mind that the Claimants had expressly consented
to sub-bailment of their goods to another carrier on any terms, as the ‘Odyssefs Bill of
Lading’ allowed sub-contracting/transhipping.
40. In every contract of affreightment there is an implied obligation to provide a seaworthy vessel
‘fit to meet and undergo the perils of the sea and other incidental risks to which of necessity
she must be exposed in the course of a voyage’. 68 Under English law the obligation of the
owner to provide a seaworthy ship is absolute. It amounts to an undertaking ‘not merely that
they should do their best to make the ship fit, but that the ship should really be fit’.69
41. In the analysis of the nature of obligation, the word ‘absolute’ means nothing more or less
than the duty to furnish a ship and equipment reasonably suitable for the intended use or
service.’70 The test would appear to be objective in that ‘the vessel must have that degree of
fitness which an ordinary careful and prudent owner would require his vessel to have at the
commencement of her voyage having regard to all the possible circumstances of it’. 71 Where
the contract of affreightment is governed by the Hague or Hague/Visby Rules, the absolute
obligation at common law is replaced by a duty to exercise due diligence to make the ship
seaworthy.72
42. The requirement for the shipowner to provide a seaworthy vessel comprises a twofold
obligation. On the one hand, the vessel must be suitably manned and equipped to meet the
ordinary perils likely to be encountered while performing the services required of it, while at
the same time it must be cargoworthy in the sense that it is in a fit state to receive the
specified cargo. Thus a vessel will clearly be unseaworthy where it has defective engines 73 or
67
Morris v CW Martin & Sons Ltd [1966] 1 QB 716 (QB).
68
Kopitoff v Wilson (1876) 1 QBD 377 (QB).
69
Steel v State Line Steamship Co (1877) 3 APP CAS 72 (CAS).
70
President of India v West Coast Steamship Co [1963] 2 LLOYD’S REP 278 (USDC).
71
McFadden v Blue Star Line [1905] 1 KB 697 (KB).
72
Hague Rules, 1924, Art. III Rule 1.
73
Hong Kong Fir Shipping Co v Kawasaki [1962] 2 QB 26 (QB); Union Of India v N.V. Reederij Amsterdam
[1963] 2 LLOYD’S REP 223 (HL).

a defective compass,74 or where deck cargo is stowed in such a way as to render the vessel
unstable.75 The second aspect of the common law undertaking as to seaworthiness relates to
the cargoworthiness of the vessel. The shipowner is under an obligation to ensure that his
ship is in a fit state to receive the contractual cargo.
43. It is most humbly submitted that due to Cruz’s negligence 76 to show due diligence to render
Hidalgo seaworthy, the unseaworthiness being due to Cruz’s failure to correct a fault in the
vessel’s weather radar, the stow collapsed and cargo was lost.
B. CLAUSE 15 DOES NOT SAFEGUARD CRUZ FROM LIABILITY
44. In the instant matter, the Defendants take the stance of exception from liability under Clause
1577 which is not applicable in the present case as the party was negligent. The notion of
bailment on terms', which was explored further in Morris Vs. Martin78, widely regarded as the
important case on bailment in English law 79, Quoting expressly from Pollock and Wright's
treatise on ‘Possession in the Common Law’, Lord Denning, noted that:
‘If the bailee of a thing sub-bails it by authority, and there is no direct privity of contract between
the third person and the owner, it would seem that both the owner and the first bailee have
concurrently the rights of a bailor against the third person according to the nature of the sub-
bailment.8081
45. The Himalaya clause cannot override a mandatory clause of the contract in which it is
contained. Article IV Bis (4) of the Hague-Visby Rules states that a servant or agent of the
carrier shall not be entitled to avoid himself of the provisions of this article, if it is proved that
the damage resulted from an act or omission of the servant or agent done with intent to cause
damage or recklessly and with knowledge that damage would probably result. It is hereby
established that Hague-Visby Rules also apply in the present case as the parties agree to
English law and under COGSA 1971, the Hague-Visby Rules shall also apply. 82 In the
present case, Cruz’s failure to correct a fault in the vessel’s weather radar before departure
from Cartagena amounts to gross negligence and recklessness as Cruz being the owner of
74
Paterson Steamships Ltd v Robin Hood Mills (1937) 58 LlLR 33 (PC).
75
Kish v Taylor [1912] AC 604 (CA); The Friso [1980] 1 LLOYD’S REP 469 (QB).
76
77
Combicon Bill, 2016.
78
Morris v CW Martin & Sons Ltd [1966] 1 QB 716 (QB).
79
Masters v Daniel Intern. Corp, 895 F.2D 1295 (USDC).
80
Morris v CW Martin & Sons Ltd [1966] 1 QB 716 (QB) 729.
81
Elder, Dempster & Co Ltd. v Paterson, Zachonis & Co Ltd [1924] AC 522 (HL).
82
Hellenic Steel Co. And Others v Svolamar Shipping Co. Ltd. And Others [1991] 1 LLOYD’S REP 371 (CA).

Hidalgo, may have had the knowledge of the probability of stow collapsing due to the
hurricane.83
46. Furthermore, if the Himalaya clause is contained in a contract of carriage governed by the
rules of an international convention, the first sub-paragraph would be invalid insofar as it
allows an exclusion of liability for gross negligence/intentional damage: it would collide with
Art. 4-bis(4) Hague-Visby rules. These rules object to any benefit concerning liability as a
consequence of an intentional or reckless conduct and apply also in cases where a contractual
clause (like the Himalaya clause) would provide otherwise.
47. Additionally, Public order (more often referred to as public policy in common law) is a
fundamental rule in most countries and refers to a varied set of principles involving the
reasonableness, justice, fairness and “morality” of the law. As such, one of its declinations is
that intentional damage or reckless/gross negligent conduct that leads to loss, should not be
excluded by the parties, as doing so would then leave the counterparty defenseless against a
conduct that is morally reprehensible. A Himalaya clause that holds the third party not liable
for its intentional conduct to cause loss would be caught under this principle and be declared
invalid.
48. A discussion of the utility of the Himalaya clause is not new and can be traced back to many
obiter cases.84 Infact, the Himalaya clause is an ingenious, short-term solution to a difficult
problem, but is a solution which raises infinitely more problems than it solves' 85. In Canada
several court judgments explored where the limitation of the Himalaya clause lies. In
particular a right was established that a limitation of liability agreement has no effect in a
case of gross negligence.86 In the instant matter to say that the ‘Defendants are protected
under exemption clauses is commercially wrong in a contract as there is clear negligence by
the parties. The purpose of law is to administer justice. 87 The law should be developed by the
application of old principles to new circumstances. Therein lies its genius.88
49. Thus it is submitted that Cruz is liable as sub-bailees who had agreed to carry the cargo on
the terms of Hague/ Hague Visby Rules, and on that basis they have failed to show due
83
84
Norfolk Southern Railway Company v James N Kirby Pty Ltd. (2004) 543 US 14; 125 SCT 385 (USSC);
Swain v The Law Society [1983] 1 AC 598, 611 (UKHL).
85
Darlington Borough Council v Wiltshier Northern Ltd [1995] 1 WLR 68, 76 (CA).
86
Eisen Und Metall AG v Ceres Stevedoring Co. Ltd [1977] 1 LLOYD'S REP 665 (CA).
87
Roscoe Pound, ‘Justice according to the law’ (1913) 13 (8) CLJ < https://www.jstor.org/stable/pdf/1110655.pdf
> accessed 28 January 2022.
88
Midland Silicones Ltd v Scruttons Ltd [1962] AC 446 (HL).

diligence and render Hidalgo seaworthy which resulted in the cargo being lost and they
cannot seek exception under the Combiconbill 2016.
THAT THE DEFENDANTS ARE LIABLE TO CASPIAN FOR THE FULL VALUE OF THE
CONVERTERS
50. It is most humbly submitted on behalf of CLAIMANT that the DEFENDANTS are liable to it for
the full value of the converters. The same shall be dealt by the CLAIMANT using following
grounds: Firstly, the provisions of Hague/Visby Rules will override express terms of the
contract which are inconsistent with them [A.], Secondly, Relevant liability ought to be dealt
as per the Hague Rules, 1924 [B.] Arguendo Thirdly, Relevant liability should be fixed under
Hague-Visby Rules, 1968 [C.]. Arguendo Fourthly, if application of English law/Hague
Rules is not accepted, limit of liability as per Cl. 3 is invalid in the eyes of Brazilian Law
[D.]. Lastly, Respondents should lose their right to limit liability under Hague/Visby Rules as
well [E.].
A. THAT PROVISIONS OF HAGUE/VISBY RULES WILL OVERRIDE EXPRESS TERMS OF
CONTRACT
51. In the matter at hand, along with the choice of law clause 89, an explicit clause90 to incorporate
Hague/ Visby Rules was also included. 91 Thereby, intention of the parties that their contract
of carriage should fall within the meaning of Art X(c), Hague-Visby Rules, 1968 92 was
evident and therefore, the incorporation of rules are to be treated as “force of law 93” and not
just matter of contract.94 Furthermore, the Hague/Visby Rules are compulsorily applicable as
a matter of English law. Therefore, the contention of the Respondent that the incorporation of
Hague/Visby Rules was merely by virtue of agreement and should be treated as a contractual
term is void and baseless.95 This has been dealt with in length in paragraphs ____ in this
written submission and is not repeated for the sake of brevity.
89
90
91
Hellenic Steel Co. And Others v Svolamar Shipping Co. Ltd. And Others [1991] 1 LLOYD’S REP 371 (CA).
92
Hague-Visby Rules 1968 appended to the Carriage of Goods by Sea Act 1971, Art.X (c).
93
Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd [1981] 1 WLR 138, Privy
Council;
94
Adamastos Shipping Co v Anglo-Saxon Petroleum Co [1958] 1 LLOYD’S REP 73 (CA); Cf. Overseas Tankship
(UK) v BP Tanker Co [1966] 2 LLOYD’S REP 386, (PC).
95
¶1, Tawe, Position of Parties, Caspian & Tawe, Cruz, Arbitration, 2022.

52. The principal relevance of S. 1(6) (a) is that, where it applies, the rules have statutory force
and override any other term96 that might otherwise restrict or exclude the carrier’s
obligations under the rules.97 Therefore, the limit of liability lessened by the incorporation of
clause in contract cannot override the Hague/Visby Rules as they have statutory force.98
53. This is further elucidated by conduct of the parties. The parties in the present matter have
given clear paramountcy to the Hague/Visby Rules99 and the same can be understood by
incorporation that begins with words such as 100: “The contract contained in or evidenced by
this bill of lading101”. Where the English Act or the Hague Rules as in the 1924 Convention
were incorporated into a bill of lading contract with paramount effect, it was held in The
Rosa S102 that a term limiting liability to “£100 sterling” was null and void by virtue of Art.
III rule 8 as it seeks to limit liability lower to what is provided under the rules.
54. It is submitted that to reach any other conclusion would leave it open to any shipowner to
evade liability and abuse power.103 Art. III r. 8 of the Hague/Visby Rules renders null and
void a clause which purports to lessen the carrier’s liability 104. Hence, with regards to 1ST
DEFENDANT, Cl. 3 of the addendum limiting liability 105 as well as omission of Cl.11 of the
combicon bill 2016 is null and void 106 as and when the Respondents seek to rely upon it. 107
Further, Cl. 4 of the addendum entered by Cruz limiting liability along with omission of Art.
IX of The Hague rules are invalid, null and void.108
A. RELEVANT LIABILITY OUGHT TO BE DEALT AS PER THE HAGUE RULES, 1924

55. Since the repeal of COGSA 1924, the only way in English law that Hague Rules can apply to
a contract of carriage of goods by sea contained in or evidenced by a bill of lading is if they
96
Browner International Ltd. v Monarch Shipping Co. Ltd. [1989] 2 LLOYD’S REP 185, 188, (QB).
97
Mccarren & Co. Ltd v Humber International Transport Ltd. And Truckline Ferries (Poole) Ltd. [1982] 1
LLOYD’S REP. 301 (QB).
98
¶2, Tawe, Position of Parties, Caspian & Tawe, Cruz, Arbitration, 2022.
99
Marifortuna Naviera v Government of Ceylon [1970] 1 LLOYD’S REP. 247 (QB); Sabah Flour and
Feedmills v Comfez [1988] 2 LLOYD’S REP. 18 (CA); The Sonia and Borgship Tankers v Product Transport
(The Casco) [2005] 1 LLOYD’S REP. 565 (QB).
100
Adamastos Shipping Co. Ltd v Anglo-Saxon Petroleum Co. Ltd [1959] A.C. 133 (CA); Grimaldi Cie di
Navigazione SpA v Sekihyo Lines (The Seki Rolette) [1998] 2 LLOYD’S REP. 638. (CA).
101
102
The Rosa S [1989] QB 419 679 (QB); The Tasman Discoverer [2004] UKPC 22, [2005] 1 WLR 215 (NZ).
103
The Epar [1985] 2 MLJ 3 (SGHC).
104
Yemgas v Superior Pescadores, [2016] EWCA CIV 101 (CA).
105
106
Morviken v Owners of the Hollandia [1983] 1 AC 565, [1982] 3 WLR 1111, [1983] 1 LLOYD'S REP 1 (CA).
107
108

are incorporated contractually.109 This has been dealt with in length in paragraphs 17-21 in
this written submission and is not repeated for the sake of brevity.
56. Therefore, in the matter at hand, the Hague Rules, 1924 are incorporated by the parties
without any exception110 and further mean that the Hague Rules, rather than the Hague-Visby
Rules will apply as the parties have chosen so111, regardless that the application of the Hague-
Visby Rules as a matter of law is compulsory as well.112
57. Tomlinson J113 made it abundantly clear that when a clause is clear in incorporating the
Hague Rules and not the Hague Rules “as amended”, they are only capable of referring to the
Hague Rules. Further, it is to be kept in mind that The Hague-Visby Rules are in fact an
amended version of the Hague Rules.114 It is also to be noted that in a matter where English
law applies and the parties must be taken to have known that the Hague-Visby Rules would
therefore apply compulsorily, a clause which provides for the application of the Hague Rules
would be construed as an agreement for the Hague and not the Hague-Visby Rules to
apply.115 Because the Hague-Visby Rules do apply compulsorily anyway, the parties must
have realised that a contractual choice of Hague Rules to include Hague Visby rules would be
largely ineffective. It could therefore be concluded that Cl. 4 116 technically constitutes
paramount clause of the bill of lading and showcases that the Hague Rules shall apply.117
58. Now that it is established that Hague Rules, 1924 will apply, the monetary limits under Art.
4(5)118 of Hague Rules are £100 for the lost or damaged cargo. Therefore, it is pertinent to
note that the figure of £100 as provided in Art. 4 (5) has to be read in the light of Art. 9119 as
held by Hobhouse J. in The Rosa S120 that Art. 4 (5) should not to be a reference to sterling,
but to the gold value of £100 ascertained in accordance with the Coinage Act 1971.121 Thus,
109
Sir Richard Aikens, Richard Lord QC, Michael Bools QC, Michael Bolding, Kian Sing Toh SC, Bills of Lading
(3rd Edition, Informa Law from Routledge 2020) 363.
110
111
Nea Agrex S.A. v Baltic Shipping Co. Ltd (The Agios Lazarus) [1976] Q.B 933 (QB); Marifortuna Naviera v
Government of Ceylon (The Mariasmi) [1970] 1 LLOYD’S REP. 247 (QB).
112
Trafigura Beheer v Mediterranean Shipping Co. (The MSC Amsterdam) [2007] 2 LLOYD’S REP. 622 (CA).
113
Yemgas Fzco and Others v Superior Pescadores SA Panama, [2001] 2 LLOYD’S REP 530 (CA).
114
JCB Sales Ltd and Ors v Wallenius Lines and Ors (The “Seijin”) [1997]124 F.3D 132 (USCA).
115
Trafigura Beheer BV v. Mediterranean Shipping Corp. (The MSC Amsterdam) [2007] 2 LLOYD’S REP. 622
(CA).
116
117
Yemgas Fzco and Others v Superior Pescadores SA Panama, [2001] 2 LLOYD’S REP 530 (CA).
118
Hague Rules, 1924, Art. III Rule 8; Hague-Visby Rules 1968 appended to the Carriage of Goods by Sea Act
1971.
119
1971.
120
The Rosa S [1989] QB 419 679 (QB).
121
Brown Boveri (Australia) Pty. v Baltic Shipping [1989] 1 LLOYD’S REP. 518 (AUSTRALIA SC).

the unit of account under the Hague Rules is the gold standard. The current market value of
the gold has been accepted by the courts of the United Kingdom in 1988 which is the
prevailing law.122
59. The current market value of gold is $1,796.00 per Troy Ounce which is appx. $40, 000 USD
for £100 which is in excess of $30,000 per converter. As all parties have agreed that each
converter was a separate package or unit for the purposes of Hague and/or Hague-Visby
Rules123 and there were twenty converters124. Therefore, DEFENDANTS are liable for $800,000
for twenty converters as under Art. 4 (5) of Hague Rules 125, however Caspian has agreed for
a sum of $600, 000 as that is the full market value of twenty lost converters in good faith.126
B. ARGUENDO, RELEVANT LIABILITY SHOULD BE FIXED UNDER HAGUE-VISBY RULES
APPENDED TO THE CARRIAGE OF GOODS BY SEA ACT 1971
60. Arguendo the application of Hague Rules is not accepted, s.1 of the Carriage of Goods by Sea
Act 1971 sets out in three separate sub§ s that the Hague-Visby Rules shall have the “force of
law”,127 namely, sub§ s (2), (3) and (6). Any forum applying the English law should to apply
the Rules in cases where the terms of the Rules require their application, irrespective of any
other clause purporting to produce a more limited effect than under the Hague-Visby Rules. 128
This position was substantiated by Lloyd J. in The Vechscroon129 it is sufficient to render the
Hague-Visby Rules compulsorily applicable and any inconsistent term will be overlooked.
61. Therefore, relevant liability is the limit of 2 SDRs per kg contained in Art. 4 Rule 5 of the
Hague-Visby Rules130 appended to the Carriage of Goods by Sea Act 1971. Therefore, 1ST
DEFENDANT and/or Cruz are liable to them in the figure of the dollar equivalent of 2,000
SDRs per tonne, approximately $2,800 per converter, or $56,000 in total.131
C. ARGUENDO, APPLICATION OF ENGLISH LAW/HAGUE RULES IS NOT ACCEPTED, LIMIT OF
LIABILITY AS PER CLAUSE 3 IS INVALID IN THE EYES OF BRAZILIAN LAW

122
Alberto.C. Capagali, Limitation of Liability (Buenos Aires 2010).
123
124
125
1971.
126
¶3, Caspian, Position of Parties, Caspian & Tawe, Cruz, Arbitration, 2022.
127
Carriage of Goods by Sea Act 1971, s. 1.
128
Trafigura Beheer BV v Mediterranean Shipping Corp. (The MSC Amsterdam) [2007] 2 Lloyd’s Rep. 622
(CA).
129
Mccarren & Co. Ltd. v Humber International Transport Ltd. And Truckline Ferries (Poole) Ltd. [1982] 1
LLOYD'S REP. 301 (QB).
130
Hague Rules, 1924, Art. III Rule 8; Hague-Visby Rules 1968, Art. III Rule 8;
131
¶3, Caspian, Position of Parties, Caspian & Tawe, Cruz, Arbitration, 2022.

62. This submission is made with regards to the addendum in Odyssefs bill of lading. Lex Loci
Contractus is the law of the place where an agreement is made.132 When the contract is
entered in one place and executed in another, there are two loci contractus133.
63. The Locus Celebrate Contractus, and the Locus Solutionis; the former governs everything
which relates to the mode of construing the contract134; the nature and validity of the engage-
ment and the latter governs the performance of the agreement.135 In the matter between the
CLAIMANT & 1ST DEFENDANT Brazilian Law is Locus Celebrate Contractus136, English Law
is the Locus Solutionis.
64. In this regard, the Brazilian law, pursuant to Art. 750 of the Brazilian Civil Code, limits the
carrier’s liability to the amount declared by the shipper and duly entered in the bill of lading
as being the value of the goods for compensation purposes. 137 In a very recent decision, the
High Court of São Paulo ruled exactly in this way, as to reject the limitation of liability clause
and compel the carrier to pay the amount equivalent to the full value of goods, as it was held
that the amount resulting from the limitation clause equivalent to US$ 500 was too low and it
would not serve to duly compensate the shipper.138
65. Therefore, both the Locus loci contractus do not warrant the limit of liability invoked by 1ST
DEFENDANT139 and therefore, the same shall be deemed to be invalid, null and void.
D. RESPONDENTS SHOULD LOSE THEIR RIGHT TO LIMIT LIABILITY UNDER HAGUE/VISBY

RULES
66. It is also the case of the CLAIMANT that the DEFENDANTS have lost their right to limit
liability140 under the Hague/Visby Rules141 on two grounds: Firstly, a declaration of the nature
and value of the goods in the bill of lading was not made and secondly, serious faults were
committed by the carrier as well as the sub-bailee. The nature and value of goods was not
132
Northland Cas. Co. v HBE Corp., 145 F. SUPP. 2D 1310, 1311 (M.D. FLA. 2001) (USDC).
133
Halsbury’s Laws of England (Vol. 8(1) (1996 ) 873.
134
Halsbury’s Laws of England (Vol. 8(1) (1996 ) 873.
135
Scott v Pilkington, [1861] 15 ABB. PR. 280 (NYSC).
136
137
Brazilian Civil Code (1916) Art. 750.
138
X v Y, (2009) APPEAL NR. 1.066.152-2 (HIGH COURT OF SÃO PAULO, BRAZIL).
139
140
1971, Art. III Rule 8;
141
Hague Rules, 1924, Art. IV Rule 5; Hague-Visby Rules 1968 Art. 2 Rule a;

expressly declared142 by the carrier before shipment143 and none of it was mentioned144 in the
bill of lading.145 Furthermore, in case of act or omission which is reckless and causes damage.
the carrier will be deprived of the right to enjoy the limitation of liability provided by Art.
4.5(a) of the Hague/Visby Rules.146
67. The wilful misconduct and gross negligence 147 committed by the DEFENDANTS led to the
failure of delivery at destination 148 and therefore, the limit of liability provided by the Hague-
Visby Rules cannot be claimed by them as it is against ordre public. Therefore, the
DEFENDANTS must be liable for more than the limit set in the Hague/Visby Rules and only in
accordance with the good faith of the Claimant, the full market value of lost converters is
claimed.
-RELIEF SOUGHT-
In light of the above submissions, the CLAIMANT request the tribunal to declare:
1. That the tribunal should consist of three arbitrators.

142
Williams v African S .S .Co, [1959]1 LLOYD'S REP. 352 (CANADIAN S.C.).
143
William Tetley, Marine Cargo Claims (3rd edn, 1988) 9-10.
144
145
Mackinnon, J., in Pandle & Rivett Ltd .v Ellerman Lines. Ltd (1927) 29 LL. L. REP.133 (KB).
146
Hague-Visby Rules 1968; Art. IV Rule 5.
147
Fertilizers and Chemicals Ltd. v Grimaldi Compagnia di Navigazione, [2004] DIR.MAR. 451 (TRIBUNAL OF
NAPLES).
148

2. That the 1ST DEFENDANT is liable for breach of contractual duty.

3. That Art. III r. 8 of the H/VR will override Cl. 2 & Cl. 3 of the Addendum of Odyssefs B/L.
4. That 2ND DEFENDANT is liable for not rendering due diligence for a seaworthy vessel.
5. That the 2ND DEFENDANT cannot be protected by the Himalaya Clause of the Odyssefs &
Hidalgo B/L and hence, not liable for breach of contractual duty.
6. That Art. III r. 8 of the H/VR will override clause Cl. 4 of the Addendum of the Hidalgo B/L.
And therefore, the following reliefs are prayed for:

1. USD 600,000 as damages.
2. Alternatively, USD 56,000 as damages.
3. Compound interest from 25th August 2021.
4. Further or other reliefs.
AWARD interest and costs in favour of the CLAIMANT.
-COUNSEL for CLAIMANT

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926C

9TH NATIONAL LAW UNIVERSITY ODISHA – BOSE MITRA & CO.

SINGAPORE ARBITRATION 926 / 2022

CASPIAN TRADERS LIMITED …………………………………………................ CLAIMANT

CRUZ SA ……..………………….………………………..………..…........ 2ND

Most reverently submitted to this Hon’ble Arbitral Tribunal

WRITTEN SUBMISSIONS on behalf of the CLAIMANT

I. THAT THE ARBITRAL PANEL SHOULD CONSIST OF THREE ARBITRATORS...........................1

A. THAT THE INTENTION TO ARBITRATE UNDER ‘SCMA ARBITRATION RULES’ IS EVIDENT...1

B. THAT THE TEST TO DETERMINE LAW GOVERNING ARBITRATION AGREEMENT IS FULFILLED

C. THAT § 9 OF IAA IS A NON-MANDATORY PROVISION...............................................................3

C. THAT THE 1ST DEFENDANT HAS BREACHED CONTRACTUAL DUTY..........................................7

D. 1ST DEFENDANT IS LIABLE AS A BAILEE AND JOINTLY LIABLE FOR PROVIDING AN

WRITTEN SUBMISSIONS on behalf of CLAIMANT

A. INCORPORATION OF HAGUE/HAGUE VISBY RULES..................................................................9

B. CLAUSE 15 DOES NOT SAFEGUARD CRUZ FROM LIABILITY...................................................12

A. THAT PROVISIONS OF H/VR WILL OVERRIDE EXPRESS TERMS OF CONTRACT.....................14

A. RELEVANT LIABILITY OUGHT TO BE DEALT AS PER THE HAGUE RULES, 1924....................16

B. ARGUENDO, RELEVANT LIABILITY SHOULD BE FIXED UNDER HAGUE-VISBY RULES

C. ARGUENDO, APPLICATION OF ENGLISH LAW/HAGUE RULES IS NOT ACCEPTED, LIMIT OF

LIABILITY AS PER CLAUSE 3 IS INVALID IN THE EYES OF BRAZILIAN LAW..........................18

WRITTEN SUBMISSIONS on behalf of CLAIMANT

Appeal Cases (3rd Series)

All ER All England Law Reports

AMC American Maritime Cases

Appeal Cases (2nd Series)

B/L Bill of Lading

C.A. Court of Appeal (English)

WRITTEN SUBMISSIONS on behalf of CLAIMANT

Cir. Court of Appeals (federal)

Civ. Civil division

COGSA, 1972 Carriage of Goods by Sea Act, 1971

CRGN Companhia Riograndense de Navegação SA

Ct. App Court of Appeal (state)

DMM Despachantes Monteiro e Mineiro SA

Eng. Rep. English Reports

EWCA England and Wales Court of Appeal

EWHS High Court of England and Wales

Exch Exchequer Reports

FCR Federal Court Reports

WRITTEN SUBMISSIONS on behalf of CLAIMANT

H/VR Hague and/or Hague Visby Rules

IAA International Arbitrational Act of Singapore

Lloyd’s Rep. Lloyd Law Reports

LMCQ Lloyd's Maritime and Commercial Law Quarterly

LS Lenova Shipping Ltd.

MMT Multimodal Transport

N.E. 2d Second series of the North Eastern Reporter

QBD Queen’s Bench Division

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SCC Supreme Court Cases

SCMA Singapore Chamber of Maritime Arbitration

SCR Supreme Court Reporter

SGCA Singapore Court of Appeal

SGHC Singapore International Commercial Court

SLR Singapore Law Reports

UKPC United Kingdom Privy Council

UKHL United Kingdom House of Lords

U.S. United States Reports

USD United States Dollar

WLR Weekly Law Reports

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