SYMBIOSIS LAW SCHOOL, PUNE- NOVICE MOOT SELECTION, 2022-23

PARTICIPANT CODE: - 22010126039, 22010126040

SYMBIOSIS LAW SCHOOL, PUNE- NOVICE MOOT SELECTION 2022-23

BEFORE THE HON’BLE CITY CIVIL COURT OF GORN

CIVIL PETITION UNDER SECTIONS 9, 15, AND 20 OF THE CIVIL

PROCEDURE CODE, 1908

CIVIL ORIGINAL SUIT No. 346/2022

GREENHEARTS ASSOCIATION…………………………………PETITIONER 01

v.

M/s ROYAL YATCHES & VESSELS…………………………….RESPONDENT 01

AND

Mr. X…………………………………………………………….PETITIONER 02

v.

M/s ROYAL YATCHES & VESSELS……………………….....RESPONDENT 02

BEFORE THE HON’BLE CITY CIVIL MAGISTRATE AND HIS COMPANION

IN THE CITY CIVIL COURT OF GORN

MEMORIAL ON BEHALF OF THE RESPONDENT

I MEMORIAL ON BEHALF OF THE RESPONDANT

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TABLE OF CONTENTS

TABLE OF CONTENTS .........................................................................................................ii

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

INDEX OF AUTHORITY ....................................................................................................... v

STATEMENT OF JURISDICTION ....................................................................................vii

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

Introduction ............................................................................................................................ viii

Background .......................................................................................................................... ix

Current situation .................................................................................................................... x

CHRONOLOGICAL LIST OF EVENTS ............................................................................ xi

ISSUE RAISED ....................................................................................................................... xi

Issue I ................................................................................................................................... xi

Whether M/s Royal Yatches & Vessels Inc. is strictly liable for the pollution caused at the
Midgard ............................................................................................................................. xi

Issue II ................................................................................................................................. xii

Whether M/s Royal Yatches & Vessels Inc. has committed a breach of contract and is
liable to pay damages for the same. .................................................................................xii

Issue III ................................................................................................................................ xii

Whether M/s Royal Yatches & Vessels Inc. is Negligent and is liable to pay compensation
for the damages caused to the environment. ....................................................................xii

Issue IV ............................................................................................................................... xii

Whether Mr.X can claim unliquidated damages for the breach of contract ....................xii

SUMMARY OF ARGUMENTS ......................................................................................... xiii

Issue I ................................................................................................................................. xiii

Whether M/s Royal Yatches & Vessels Inc. is strictly liable for the pollution caused at the
Midgard Islands. ............................................................................................................. xiii

Issue II ................................................................................................................................ xiii

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Whether M/s Royal Yatches & Vessels Inc. has committed a breach of contract and is
liable to pay damages for the same. ............................................................................... xiii

Issue III ............................................................................................................................... xiv

Whether M/s Royal Yatches & Vessels Inc. is Negligent and is liable to pay compensation
for the damages caused to the environment. ................................................................... xiv

Issue IV .............................................................................................................................. xiv

Whether Mr. X can claim unliquidated damages for the breach of contract. ................. xiv

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

Issue I .................................................................................................................................... 1

whether m/s royal yatches and vessels inc. is strictly liable for the pollution caused at the
midgard islands ..................................................................................................................... 1

[I.A] M/S Royal Yatches And Vessels Inc. Cannot Be Held Liable Under The Principle
Of Strict Liability ............................................................................................................... 1

[I.B] m/s royal yatches and vessels inc. cannot be held liable under the exceptions to the
principle of strict liability ................................................................................................... 4

[I.C] assuming but not admitting liability, the navy and coast guard may be held liable .. 4

ISSUE II ................................................................................................................................ 5

Whether M/S Royal Yatches & Vessels Inc. Has Committed A Breach Of Contract And Is
Liable To Pay Damages For The Same. ................................................................................ 5

[II.A] Both parties have not anticipated the event while making the contract ................... 5

[II.B] The Existence of the Force Majeure clause terminates the liability. ....................... 6

[II.C] The breach was caused because of frustration or impossibility of performing the
contract. Therefore, the company cannot be held liable. ................................................... 6

Issue III .................................................................................................................................. 7

Whether M/s Royal Yatches & Vessels Inc. is Negligent and is liable to pay compensation
for the damages caused to the environment. ......................................................................... 7

[III.A]The elements of Negligence are not satisfied. ......................................................... 8

[III.B] Local Authorities responsible for the pollution caused by the people .................... 9

[III.C] The Navy and the Coast Guard may be held liable for not moving the ship. ......... 9

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Issue IV ............................................................................................................................... 10

Whether Mr. X can claim unliquidated damages for the breach of contract ...................... 10

[IV.A] Provisions are available for contracts where damages are liquidated. ................. 10

[IV.B] Mr.X cannot claim damages for compensation exceeding the amount decided in
the contract. ...................................................................................................................... 11

[IV.C] The injured party must prove that there was a breach of contract. ....................... 12

[IV.D] No proof of actual loss. ........................................................................................ 12

[IV.E] Unliquidated damages claimed by Mr.X are not reasonable. ............................... 13

PRAYER ................................................................................................................................. 14

LIST OF ABBREVIATIONS

ABBREVIATIONS ACTUAL TERMS

& And

§ Section

¶, Para Paragraph

AC Appeal Case

AIR All India Reporter

Co. Company

ECR European Court Reports

Ed. Edition

EU European Union

Govt. Government

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HC High Court

Hon’ble Honorable

I.L.R India Law Reports

LJ Law Journal

L Rev Law Review

Ltd. Limited

No. Number

O.A. Original Application

INDEX OF AUTHORITY

STATUTES

Carriage of Goods by Sea Act 1925: Act XXVI. ....................................................................... 7

Coast Guard Act, 1978 ........................................................................................................... 5, 9
Coast Guard Act, 1978, § 14, No. 30, Acts of Parliament, 1978 (India). .................................. 9
Section 32 of Indian contract act, 1872 ...................................................................................... 6
Section 4 of Indian contract act, 1872 ........................................................................................ 6
Section 56 of Indian contract act, 1872 ...................................................................................... 6
Section 74 of Indian contract act, 1872 .............................................................................. 10, 12

FOREIGN CASES

Bourhill v Young [1943] A.C. 92 at 102.................................................................................... 8

Cellolose Acetate Silk Co Ltd v Widness Foundry (1925) Ltd, 1933 AC 20 (HL) ................. 11
Collingwood v. Home & Colonial Stores, (1936) 1 All ER 74 : 55 LT 550 ............................. 3
Eastern and South African Telegraph Co v. Cape of Town Tram Co. (1902) AC 381 , 393 .... 3
Edmund Bendit v. Edgar Raphael Prudhomme, 1924 SCC OnLine Mad 505: AIR 1925 Mad
626. ......................................................................................................................................... 7
Energy Watchdog v. Central Electricity Regulatory Commission & Ors., (2017) 14 SCC 80 . 6
Fletcher v. Rylands, (1866) LR 1 Ex. 265; approved in Rylands v Fletcher, LR 3 HL 330 ...... 4
Forward v Pittard, (1785) 1 TR 27 ............................................................................................. 4

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Howell v Coupland, (1876) 1 QBD 258 .................................................................................... 7

Kemble v Farren, (1829) 6 Bing 141 and Jessel MR in Wallis v smith, (1882) LR 21 Ch D 243
(CA) ...................................................................................................................................... 11
Mar Apprem Company Ltd. v. V.M Narendranath And Others (1987) 2 SCC 424; AIR 1987
SC 1257 ................................................................................................................................ 11
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection, 2022-23, ¶ 10 . 2, 10
Nugent v Smith, (1876) 1 CPD 423, 435; Forward v Pittard, (1785) 1 TR 27 .......................... 8
Nugent v Smith, (1876) CPC 423,433 ....................................................................................... 4
Read v J Lyons & Co, (1947) AC 156 (HL). ......................................................................... 1, 2
Rickards v. Lothiam, (1913) AC 263:108 LT 225; 29 TLR 281 ............................................... 3
Robophone Facilities Ltd v blank, (1966) 1 WLR 1428, 1447 (CA)....................................... 11
South Asia Marine Engg. Construction ltd. (SEAMEC Ltd.) v. oil India ltd., (2020) 5 SCC 164
................................................................................................................................................ 6
Taylor v. Caldwell, EWHC QB J1, (1863) 3 B & S 826, 122 ER 309 ...................................... 5
Western Engraving Co, v. Film Lab ltd, (1936) 1 All ER 106 .................................................. 3

ONLINE SOURCES

Jupiter.fl.us, www.jupiter.fl.us (last visited 31 Dec 2022)......................................................... 3

Leap.unep.org, https://leap.unep.org/knowledge/glossary/hazardous-waste (last visited Jan
4,2023 ..................................................................................................................................... 2
Response.restoration.noaa.gov, https://response.restoration.noaa.gov (last visited Jan 4,2023)
................................................................................................................................................ 3

MOOT PROPOSITION

Constitution (74th Amendment) Act, 1992, § 243-W, Acts of Parliament, 1992 (India) ........... 9
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection, 2022-23, ¶ 1 . 6, 8, 9
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection, 2022-23, ¶ 4 ..... 2, 5
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection, 2022-23, ¶ 8 ......... 4
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection, 2022-23, ¶ 9 ......... 9
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection,2022-23, ¶ 4 ........ 10
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection,2022-23, ¶ 8 ........ 13
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection,2022-23, ¶4 ......... 11

INDIAN CASES

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Ennore Port Ltd v Hindustan Construction Co Ltd, (2005) 4 LW 319. ................................... 12

Fateh Chand v Balkishan Dass, AIR 1963 SC 1405: (1964) 1 SCR 515 ................................. 11
Illustration given by Lord Halsbury in Clydebank case, 1905 AC 6. ...................................... 11
Kamarchand Thapar & Bros Ltd V H.H. jethandani, 76 CWN 38 .......................................... 12
M.M.T.C. ltd v S. Mohamed Gani, AIR 2002 Mad 378 .......................................................... 12
Maula Bux v Union of India (1969) 2 SCC 554: AIR 1970 SC 1955 ............................... 12, 13
State of Gujrat v M.K. Patel & Co, AIR 1985 Guj 179. .......................................................... 11
Sukhdev Kaur V Hoshiar Singh, (2004) 2 ICC 55 (P&H) ....................................................... 13
V.L. Narasu v P.S.V. Iyer, AIR 1953 Mad 300 ......................................................................... 6
Vijay Engineers & Developers v Suryadarshan Coop Housing Society Ltd, (2011) 5 Mah Lj
610 (Bom). ........................................................................................................................... 10

STATEMENT OF JURISDICTION

The Hon’ble Civil Court of Gorn is vested with jurisdiction to hear the present matter under

Sections 9, 15, and 20 of the Civil Procedure Code, which is as follows:

SECTION 9

Courts to try all civil suits unless barred.—The Courts shall (subject to the provisions

herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which

their cognizance is either expressly or impliedly barred.

[Explanation I].—A suit in which the right to property or to an office is contested is a suit

of a civil nature, notwithstanding that such right may depend entirely on the decision of

questions as to religious rites or ceremonies.

[Explanation I].—For the purposes of this section, it is immaterial whether or not any fees

are attached to the office referred to in Explanation I or whether or not such office is

attached to a particular place.]

SECTION 15

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15. Court in which suits to be instituted.—Every suit shall be instituted in the Court of the

lowest grade competent to try it.

SECTION 20

20. Other suits to be instituted where defendants reside or cause of action arises.—Subject

to the limitations aforesaid, every suit shall be instituted in a Court within the local limits

of whose jurisdiction—

(a) the defendant, or each of the defendants where there are more than one, at the time of

the commencement of the suit, actually and voluntarily resides, or carries on business, or

personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement

of the suit, actually and voluntarily resides, or carries on business, or personally works for

gain, provided that in such case either the leave of the Court is given, or the defendants

who do not reside, or carry on business, or personally works for gain, as aforesaid,

acquiesce in such institution; or

(c) The cause of action, wholly or in part, arises.

[Explanation].—A corporation shall be deemed to carry on business at its sole or

principal office in [India] or, in respect of any cause of action arising at any place where

it has also a subordinate office, at such place.

STATEMENT OF FACTS

INTRODUCTION
Krypton is a country situated in the South-Asian region of the continent, having laws pari

material to the Laws of India.

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M/s Royal Yatches & Vessels is a company incorporated in Krypton, with a registered

office in Nile, a city in Krypton.

Greenhearts Association, an NGO working for Environment rights.

Mr.X is a permanent resident of Gorn.

BACKGROUND
In 2022, Mr.X, a permanent resident of Gorn, entered into a contract with M/s Royal Yatches

& Vessels Inc. for the supply of consignments of certain manufacturing parts. This was to be

transported through the waters from the Nile to Gorn. This was made into a contract on 21st

May 2022, with all the legal procedures and formalities.

In the contract between Mr.X and M/s Royal Yatches and Vessels Inc., there was a provision

for liquidated damages up to Rs.10,00,100/-. Mr. X had paid the requisite amount for the

consignment of Rs.1,00,000/-.

In the contract, there was also a mention of a standard Force Majeure Clause.

M/s Royal Yatches & Vessels Inc. decided to dispatch the goods through its operating vessel,

the “Cleopatra.”

The consignment left Nile on 25th May 2022. The due date of arrival of goods to be received

by Mr.X was 10th June 2022.

On 5th June 2022, Cleopatra broke down due to usual wear and tear. It was then tugged to

another ship, “Vikrant,” operated by the same agency as “Cleopatra,” to take it to the Repair

Harbour & Scrap Yard of the Harbour for breaking down of faulty parts and replacement of the

same. Since it was being taken away, it was unmanned, and no person was on the ship.

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Due to extreme weather conditions at sea, a major storm broke on June 06, 2022, causing the

tug connecting the two ships to break off. Due to this, Cleopatra drifted away, carrying all the

consignments with it. It eventually got stuck at Midgard Islands at Athens Beach.

CURRENT SITUATION
On 1st July 2022, a large number of tar balls appeared on Athens Beach, the cause of which, as

ascertained by independent environmentalists, was an oil spill from Cleopatra, which affected

the Flora and Fauna, along with the livelihood of fishermen.

Greenhearts Association accused M/s Royal Yatches and Vessels Inc. of negligence in causing

the alleged spill leading to pollution.

M/s Royal Yatches and Vessels Inc. denies the allegation by issuing a statement that Cleopatra

couldn’t cause any pollution because it had run out of fuel the day it got struck by the storm.

The Navy and Coast Guard’s failure to pull away “Cleopatra” despite many attempts aggrieved

the Greenhearts Association, thus seeking compensation for the damages caused to the

livelihood of fishermen and the environment due to its alleged negligence.

Mr. X intimated the non-receipt of the consignment to M/s Royal Yatches & Vessels Inc. on

11th June 2022, to which they replied that the consignments could not be delivered owing to a

heavy storm. Mr.X filed a suit for recovery of damages on account of a breach on the part of

M/s Royal Yatches and Vessels Inc., seeking unliquidated damages of Rs. 35,00,000/-.

The Hon’ble City Civil Court of Gorn decided to hear strict liability filed for pollution caused

at the Midgard Islands if M/s Royal Yatches and Vessels Inc. has committed a breach of

contract, if they are negligent and liable to pay compensation for the damages caused to the

environment and if Mr.X can claim unliquidated damages for the breach of the contract. The

same shall be heard on January 08, 2022.

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CHRONOLOGICAL LIST OF EVENTS

PARTICULARS DATE

Date of Offer 20th May 2022

Date of Acceptance 21st May 2022

Date of Departure of Consignment by M/s 25th May 2022

Royal Yatches & Vessels Inc.

Breaking down of Cleopatra 5th June 2022

Drifting of Cleopatra because of a major storm 6th June 2022

Occurrence of Tar Balls on Athens Beach 1st July 2022

Due Date of Arrival of Goods to be 10th July 2022

received by Mr.X

Mr. X intimated the non-receipt of the 11th July 2022

consignment to M/s Royal Yatches and Vessels

Hearing of both matters in the Hon’ble City 8th January 2023

CivilCourt of Gorn

ISSUE RAISED

ISSUE I

WHETHER M/S ROYAL YATCHES & VESSELS INC. IS STRICTLY LIABLE FOR THE

POLLUTION CAUSED AT THE MIDGARD

[I.A] M/s Royal Yatches and Vessels Inc. cannot be held liable under the principle of strict

liability.

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[I.B] M/s Royal Yatches and Vessels Inc. cannot be held liable under the principle of

exceptions of strict liability.

[I.C] Assuming but not admitting liability, The Navy and the Coast Guard may be held

liable.

ISSUE II

WHETHER M/S ROYAL YATCHES & VESSELS INC. HAS COMMITTED A BREACH OF

CONTRACT AND IS LIABLE TO PAY DAMAGES FOR THE SAME.

[II.A] Both parties have not anticipated the event while making the contract.

[II.B] The Existence of the Force Majeure clause terminates the liability.

[II.C] The breach was caused because of frustration or impossibility of performing the

contract.

ISSUE III

WHETHER M/S ROYAL YATCHES & VESSELS INC. IS NEGLIGENT AND IS LIABLE TO PAY

COMPENSATION FOR THE DAMAGES CAUSED TO THE ENVIRONMENT.

[III.A]The elements of Negligence are not satisfied.

[III.B] Local Authorities are Responsible for the pollution caused by people.

[III.C] The Navy and the Coast Guard may be held liable for not moving the ship.

ISSUE IV

WHETHER MR.X CAN CLAIM UNLIQUIDATED DAMAGES FOR THE BREACH OF CONTRACT

[IV.A]Provisions are available for contracts where damages are liquidated.

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[IV.B]Mr. X cannot claim damages for compensation exceeding the amount decided in the

contract1.

[IV.C] The injured party must have to prove that there was a breach of contract.

[IV.D] No proof of actual loss.

[IV.E] Unliquidated damages claimed by Mr.X are not reasonable.

SUMMARY OF ARGUMENTS

ISSUE I

WHETHER M/S ROYAL YATCHES & VESSELS INC. IS STRICTLY LIABLE FOR THE

POLLUTION CAUSED AT THE MIDGARD ISLANDS.

It is contended that M/s Royal Yatches & Vessels Inc. cannot be held strictly liable for the

pollution caused at the Midgard Islands. This is because, per the factual matrix, M/s Royal

Yatches & Vessels cannot be held liable under the rules of strict liability as it does not

fulfil certain essential conditions that are mandatory for the principle to apply. There are

also exceptions under the principle of Strict liability, because of which M/s Royal Yatches

& Vessels Inc. cannot be held liable. Even if the strict liability is proved, the Navy and the

Coast Guard must be held liable in arguendo.

ISSUE II

WHETHER M/S ROYAL YATCHES & VESSELS INC. HAS COMMITTED A BREACH OF

CONTRACT AND IS LIABLE TO PAY DAMAGES FOR THE SAME.

It is contended that M/s Royal Yatches & Vessels is not liable for breach of contract nor

to pay damages for the same. This is because the delay in the consignment was because of

1
Section 74 of Indian contract act, 1872

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the Act of God, which is covered under the Force Majeure Clause in the contract, which

came into force on 21st May 2022 between Mr. X and M/s Royal Yatches & Vessels. Also,

both parties could not have anticipated the event while making the contract. The existence

of the Force Majeure Clause terminates the liability, and the breach was caused because of

frustration or impossibility of performing the contract.

ISSUE III

WHETHER M/S ROYAL YATCHES & VESSELS INC. IS NEGLIGENT AND IS LIABLE TO PAY

COMPENSATION FOR THE DAMAGES CAUSED TO THE ENVIRONMENT.

It is contended that M/s Royal Yatches & Vessels wasn’t negligent and is not liable to pay

compensation for the damages caused to the environment because the elements of

negligence are not satisfied. The local authorities are responsible for the pollution caused

by people, not M/s Royal Yatches & Vessels. Even if the Negligence is proven, the Navy

and the Coast Guard may be held liable for not moving the ship, which in turn causes

environmental damage and pollution.

ISSUE IV

WHETHER MR. X CAN CLAIM UNLIQUIDATED DAMAGES FOR THE BREACH OF CONTRACT.

It is contended that Mr. X can’t claim unliquidated damages for the breach of contract

because there are provisions available for contracts where damages are liquidated. Also,

Mr. X cannot claim damages for compensation exceeding the amount decided in the

contract according to Section 74 of the ICA, 1872. The injured party must also have to

prove that there was a breach of contract. There is also so no proof of actual loss. Last,

unliquidated damages claimed by Mr.X are not reasonable.

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ARGUMENTS ADVANCED

ISSUE I

WHETHER M/S ROYAL YATCHES AND VESSELS INC. IS STRICTLY LIABLE FOR THE POLLUTION

CAUSED AT THE MIDGARD ISLANDS

1. It is humbly contended before the Hon’ble City Civil Court of Gorn that M/s Royal Yatches

and Vessels Inc. (hereinafter referred to as ‘the respondent’) is not strictly liable for the

pollution caused at the Midgard Islands. The aforementioned contention will be proved in

a three-fold manner. [I.A] M/s Royal Yatches and Vessels Inc. cannot be held liable under

the principle of strict liability [I.B] M/s Royal Yatches and Vessels Inc. cannot be held

liable under the principle of exceptions of strict liability. [I.C] Assuming but not admitting

liability, The Navy and the Coast Guard may be held liable.

[I.A] M/S ROYAL YATCHES AND VESSELS INC. CANNOT BE HELD LIABLE UNDER THE

PRINCIPLE OF STRICT LIABILITY

2. The respondent cannot be held liable for the pollution caused at the Midgard Islands under

the principle of strict liability, and the same shall be proved in the following manner.

[I.A.1] THERE WAS NO ESCAPE OF “DANGEROUS” SUBSTANCE FROM THE SHIP

3. The principle of strict liability is applicable only in cases where a dangerous substance

which can be defined as any substance which will cause some mischief or harm if it

escapes. 2

2
Read v J Lyons & Co, (1947) AC 156 (HL).

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4. The respondent is clearly stating that Cleopatra had run out of fuel the day it got struck by

the storm (June 05, 2022), making it impossible for it to cause any pollution at the beach

due to the spillage of oil.3

[I.A.2] IN ITS GIVEN USE, OIL IS NOT A HAZARDOUS SUBSTANCE

5. Under the rule of strict liability, another essential element is that the substance which has

escaped must be hazardous in nature.4 A physical or chemical agent capable of causing

harm to persons, property, animals, plants, or other natural resources. Any material that

poses a threat to human health and/or the environment. Typical hazardous substances are

toxic, corrosive, ignitable, explosive, or chemically reactive.5

6. In the present case, the usage of oil is strictly for transportation purposes. 6 It is not meant

to invoke the harmful characteristics of the oil but rather to be used as the energy required

to transport the manufacturing parts in Cleopatra.7

7. Thus, it can be argued that in its present use, the oil must not be considered a hazardous

substance, as its usage is not in the course of its hazardous properties. It must also be kept

in mind that the usage of oil is vital for the Cargo ship to transport the consignment of

manufacturing parts.8

[I.A.3] LACK OF PROOF OF TAR BALLS HAVING OCCURRED FROM AN ALLEGED OIL SPILL

FROM CLEOPATRA

8. In the present scenario, the factual matrix contains no information that tar balls that

appeared on Athens Beach were because of an alleged oil spill from Cleopatra. Research

3
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection, 2022-23, ¶ 10
4
Read v J Lyons & Co, (1947) AC 156 (HL).
5
Leap.unep.org, https://leap.unep.org/knowledge/glossary/hazardous-waste (last visited Jan 4,2023)
6
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection, 2022-23, ¶ 4
7
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection, 2022-23, ¶ 4
8
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection, 2022-23, ¶ 4

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suggests that tar balls can be also produced from Natural seeps, places where oil slowly

escapes from the earth’s surface above some petroleum reservoirs.9

9. Tar is only found in certain types of rocks, like shale, sandstone, and limestone. Most of

these rocks are located on the bottom of the ocean. These rocks are called porous rocks

because they have many small holes in them. Porous rocks will "seep out" petroleum when

there is movement in the earth or shifting of ocean floor sediments. Since petroleum is

lighter than water, it rises to the top of the ocean, where currents, tides, and wind carry it

to shore. Geologists believe tar seeps have been leaking natural tar into the environment

for thousands of years.10

[I.A.4] THE USE OF OIL CAN BE CONSIDERED NATURAL

10. One of the essential elements for the rule of strict liability to apply is that the use of land

must be non-natural.11For the use of land to be non-natural, it must be some kind of special

use, bringing increased danger and not a use “as is proper for the general benefit of the

community”.12The question of non-natural use is circumstantial in nature and must take

into consideration all the circumstances of time and practices of mankind13.

11. Having oil in the ship does not constitute non-natural use as it is brought with the purpose

of transporting through its operating vessel “Cleopatra” from Nile to Gorn. There was no

excess of oil in the ship, which implies that considering the circumstances, the use of the

land should not be treated as non-natural.14

9
Response.restoration.noaa.gov, https://response.restoration.noaa.gov (last visited Jan 4,2023)
10
Jupiter.fl.us, www.jupiter.fl.us (last visited 31 Dec 2022)
11
Rickards v. Lothiam, (1913) AC 263:108 LT 225; 29 TLR 281
12
Eastern and South African Telegraph Co v. Cape of Town Tram Co. (1902) AC 381 , 393
13
Western Engraving Co, v. Film Lab ltd, (1936) 1 All ER 106
14
Collingwood v. Home & Colonial Stores, (1936) 1 All ER 74 : 55 LT 550

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[I.B] M/S ROYAL YATCHES AND VESSELS INC. CANNOT BE HELD LIABLE UNDER THE

EXCEPTIONS TO THE PRINCIPLE OF STRICT LIABILITY

12. The respondent cannot be held liable for the pollution caused at the Midgard Islands under

the exceptions to the principle of strict liability, and the same shall be proved in the

following manner.

[I.B.1] ACT OF GOD (VIS MAJOR)

13. In the ruling of Rylands v Fletcher, one of the exceptions was the escape was the

consequence of vis major, or the act of God15. This exception is to be defined to be such a

direct, violent, sudden, and irresistible act of nature as could not, by any amount of ability,

have been foreseen, or if foreseen, could not be by any amount of human care and skill

have been resisted.16 Thus, those acts which are occasioned by the elementary forces of

nature, unconnected with the agency of man or other cause, will come under the category

of acts of God.17 Eg. Storm.18

14. In the present scenario, due to extreme weather conditions at sea, a major storm broke out

on June 06, 2022, which caused the tug connecting the two ships to break off.19 Thus, we

can imply that this was an act of god as Strom falls under the Exceptions to the principle

of Strict Liability.

[I.C] ASSUMING BUT NOT ADMITTING LIABILITY, THE NAVY AND COAST GUARD MAY BE HELD

LIABLE

15. In arguendo, assuming that the principle of strict liability is applicable, the liability would

not fall upon the respondent. It can be argued that the duty of care fell upon the Navy and

15
Fletcher v. Rylands, (1866) LR 1 Ex. 265; approved in Rylands v Fletcher, LR 3 HL 330.
16
Nugent v Smith, (1876) CPC 423,433
17
Forward v Pittard, (1785) 1 TR 27
18
Nugent v Smith, (1876) CPC 423,433
19
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection, 2022-23, ¶ 8

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Coast Guard,20 considering the ship continues to lie on the beach. They were required to

remove the ship, which they still haven’t done, which leads to affecting the livelihoods of

fishermen and polluting the environment because people continue to visit it21.

ISSUE II

WHETHER M/S ROYAL YATCHES & VESSELS INC. HAS COMMITTED A BREACH OF
CONTRACT AND IS LIABLE TO PAY DAMAGES FOR THE SAME.

16. It is humbly contended before the Hon’ble City Civil Court of Gorn that M/s Royal

Yatches and Vessels Inc. (hereinafter referred to as ‘the respondent’) is not liable for

breach of contract. The aforementioned contention will be proved in a three-fold

manner. [II.A] Both parties have not anticipated the event while making the contract.

[II.B] The Existence of the Force Majeure clause terminates the liability. [II.C] The

breach was caused because of frustration or impossibility of performing the contract.

Therefore, the company cannot be held liable.

[II.A] BOTH PARTIES HAVE NOT ANTICIPATED THE EVENT WHILE MAKING THE

CONTRACT

17. The respondent has not committed a breach of contract and isn’t liable to pay damages

for the same under the Force Majeure Clause, and the same shall be proved in the

following manner.

18. If the parties to a contract while entering into it were not aware of the event that make

that contract impossible to perform, then the court can allow remedy under the Force

Majeure Clause, which is stated in the contract22. Additionally, if the contract does not

20
Coast Guard Act, 1978
21
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection, 2022-23, ¶ 10
22
Taylor v. Caldwell, EWHC QB J1, (1863) 3 B & S 826, 122 ER 309

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include an explicit clause of force majeure, the affected party could claim relief under

the doctrine of frustration as mentioned under Section 56 of the Indian Contract Act,

187223.

19. In the present case, although the parties were aware that Krypton experiences almost all

different weather conditions in their extremes in different parts24, it is not evident that

the area where Cleopatra drifted away is a zone of heavy storms. As the parties were

unaware of it, whatever happened was just an Act of God25, and the company should

not be held liable for breach of contract26.

[II.B] THE EXISTENCE OF THE FORCE MAJEURE CLAUSE TERMINATES THE LIABILITY.

20. To mitigate the harsh consequences of frustration and uphold the sanctity of the

contract, the parties may choose to mitigate the risk by inserting force majeure clauses,

in which case the clause in question would govern the matter27. In this case, to reduce

the risk, parties must have already agreed to a force majeure clause.

21. In the present scenario, as there is a mention of the Force Majeure Clause in the contract

between M/s Royal Yatches and Vessels Inc. and both the parties have agreed to it, thus

it terminates the liability.

[II.C] THE BREACH WAS CAUSED BECAUSE OF FRUSTRATION OR IMPOSSIBILITY OF

PERFORMING THE CONTRACT. THEREFORE, THE COMPANY CANNOT BE HELD LIABLE.

22. It is a well-settled principle that if an external interference, like an Act of God, leads to

the non-performance of an uncertain event 28by the parties, then the court declares it as

the frustration of the contract.29 In that, it is a requirement that events must be outside

23
Energy Watchdog v. Central Electricity Regulatory Commission & Ors., (2017) 14 SCC 80
24
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection, 2022-23, ¶ 1
25
Section 4 of Indian contract act, 1872
26
V.L. Narasu v P.S.V. Iyer, AIR 1953 Mad 300
27
South Asia Marine Engg. Construction ltd. (SEAMEC Ltd.) v. oil India ltd., (2020) 5 SCC 164
28
Section 32 of Indian contract act, 1872
29
Section 56 of Indian contract act, 1872

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the party’s control.30 Moreover, The Carriage of Goods by Sea Act 31

provides that

‘Neither the carrier nor the ship shall be responsible for loss or damage arising or

resulting from an act of god under Article IV, Rule 2 of the Schedule to the Act32.’

23. For example: either of the parties will be held liable if the agreement for performance

is excused because of a disease caused to the plants as it is an act of god33. In the present

situation, the event was covered under the clause of Force Majeure, which is evident

from the lines that “it is not limited to the Act of God or earthquake, fires, droughts,

epidemics, or pandemics,” which means the Act of God is also under its ambit.

Therefore this was an Act of God, and because of that, the company could not deliver the

consignment. So, here Mr. X can only claim breach if he can prove that the storm was not

an act of god; it was usual in nature. If they are unable to do that, then relief under the

Force Majeure clause should be provided to the company.

ISSUE III

WHETHER M/S ROYAL YATCHES & VESSELS INC. IS NEGLIGENT AND IS LIABLE TO PAY
COMPENSATION FOR THE DAMAGES CAUSED TO THE ENVIRONMENT.

24. It is humbly contended before the Hon’ble City Civil Court of Gorn that M/s Royal

Yatches and Vessels Inc. (hereinafter referred to as ‘the respondent’) is not negligent

and is not liable to pay compensation for the damages caused to the environment. The

aforementioned contention will be proved in a three-fold manner. [III.A]The elements

of Negligence are not satisfied. [III.B] Local Authorities responsible for the pollution

30
Edmund Bendit v. Edgar Raphael Prudhomme, 1924 SCC OnLine Mad 505: AIR 1925 Mad 626.
31
Carriage of Goods by Sea Act 1925: Act XXVI.
32
Carriage of Goods by Sea Act 1925: Act XXVI.
33
Howell v Coupland, (1876) 1 QBD 258

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caused by the people. [III.C] The Navy and the Coast Guard may be held liable for not

moving the ship.

[III.A]THE ELEMENTS OF NEGLIGENCE ARE NOT SATISFIED.

25. The respondent is not liable under negligence as the elements of negligence are not

satisfied. The four major elements of negligence, according to common understanding

and judicial negligence, are (1) the defendant owed him a duty of care; (2) the

defendant's behavior breached the standard of care; (3) that the plaintiff sustained

damage; and (4) that the damage was caused. Loss of any one of these elements

terminates the liability of negligence.

[III.A.1] THERE IS NO DUTY OF CARE DUE TO THE “UNFORESEEABILITY” OF THE EVENT

26. A duty of care “only arises towards those individuals of whom it may reasonably be

anticipated that they will be affected by the act which constitutes the alleged breach.”34

27. In the present situation, the act was not voluntary and was a result of an “Inevitable

Accident.” “Acts of God” are the acts that are occasioned by the elemental forces of

nature unconnected with the agency of man or other cause.35 The storm that broke on 6

June 2022, and caused the two ships to drift apart36, was an Act of God.

28. The storm was unforeseeable as there was very little or no possibility of a major storm

occurring in the month of June. Krypton’s northern part receives snowfall for the first

nine months a year, and the southern part experiences a hot and humid climate

throughout the year.37 Thus the possibility of a storm was nearly impossible.

34
Bourhill v Young [1943] A.C. 92 at 102
35
Nugent v Smith, (1876) 1 CPD 423, 435; Forward v Pittard, (1785) 1 TR 27
36
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection, 2022-23, ¶ 8
37
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection, 2022-23, ¶ 1

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[III.A.2] ASSUMING BUT NOT ADMITTING THERE WAS A DUTY, THERE IS NO BREACH OF THAT

DUTY

29. Even if we assume there was a duty of care, there was no breach of duty from the

respondent as Cleopatra had run out of fuel the day it got struck by the storm (06 June

2022), which makes it impossible for it cause any pollution or damage to the

environment due to the spillage of oil.38

[III.B] LOCAL AUTHORITIES RESPONSIBLE FOR THE POLLUTION CAUSED BY THE PEOPLE

30. The Municipality must perform the functions and implement the schemes to maintain

the public health and sanitation conservancy and solid waste management.39

31. As Cleopatra became a spot of local attraction, the beach became full of garbage and

litter from the people visiting it40. For the damage caused to the environment because

of the garbage disposal from people, the duty of care fell upon the Municipalities of the

area to maintain the health and sanitation of the people41 and place of Midgard Island.

The authorities failed to do so, and damage was caused to the environment.

[III.C] THE NAVY AND THE COAST GUARD MAY BE HELD LIABLE FOR NOT MOVING THE SHIP.

32. It is the duty of the Coast Guard to take measures that are necessary to preserve and

protect the maritime environment and prevent and control marine pollution and provide

protection to fishermen, including assistance to them at sea while in distress.42

33. It can be argued that the duty of care fell upon the Navy and Coast Guard,43 considering

the ship continues to lie on the beach. They were required to remove the ship, anyhow,

which they still haven’t done, which leads to affecting the livelihoods of fishermen and

38
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection, 2022-23, ¶ 10
39
Constitution (74th Amendment) Act, 1992, § 243-W, Acts of Parliament, 1992 (India)
40
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection, 2022-23, ¶ 9
41
Constitution (74th Amendment) Act, 1992, § 243-W, Acts of Parliament, 1992 (India)
42
Coast Guard Act, 1978, § 14, No. 30, Acts of Parliament, 1978 (India).
43
Coast Guard Act, 1978

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polluting the environment because people continue to visit it44. Thus the Navy and the

Coast Guard must be held liable for the damage caused to the environment.

ISSUE IV

WHETHER MR. X CAN CLAIM UNLIQUIDATED DAMAGES FOR THE BREACH OF CONTRACT
It is contended that the amount Mr.X is claiming has already been fixed by the parties in the

contract, which is Rs.10,00,000/-. So, Mr.X claiming unliquidated damages of Rs.35,00,000/-

is above the stipulated compensation set by the parties. It is humbly contended before the

Hon’ble Supreme Court that M/s Royal Yatches and Vessels Inc. (hereinafter referred to as ‘the

respondent’) that the claim made by Mr.X for the breach of contract is inadmissible and this

will be proved in a five-fold manner.[IV.A]Provisions are available for contracts where

damages are liquidated. [IV.B] Mr. X cannot claim damages for compensation exceeding the

amount decided in the contract. [IV.C] The injured party must have to prove that there was a

breach of contract. [IV.D] No proof of actual loss. [IV.E] Unliquidated damages claimed by

Mr.X are not reasonable.

[IV.A] PROVISIONS ARE AVAILABLE FOR CONTRACTS WHERE DAMAGES ARE LIQUIDATED.

34. As per the contract45, it is already mentioned that if there is a breach of contract by the

parties to the contract46, then the party who beach it will pay compensation stipulated

in the contract. Here law allows liquidated compensation as well. In addition to that,

giving a clause reading liquidated compensation is suitable for saving time in litigation

in case of a dispute47. In the present case, putting liquidated damages is permissible and

lawful.

44
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection, 2022-23, ¶ 10
45
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection,2022-23, ¶ 4
46
Section 74 of Indian contract act, 1872
47
Vijay Engineers & Developers v Suryadarshan Coop Housing Society Ltd, (2011) 5 Mah Lj 610 (Bom).

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[IV.B] MR.X CANNOT CLAIM DAMAGES FOR COMPENSATION EXCEEDING THE AMOUNT

DECIDED IN THE CONTRACT.

35. In the cases of penalties, where compensation is more than the actual loss or more than

the sum48 which ought to have been paid in total,49 if it seems unreasonable to the other,

the compensation is either reduced to reasonable compensation or the compensation

stipulated in the contract50. Damages will then be calculated as per ordinary principle

or responsibility51. If the parties failed to calculate the pre-estimated, then the court has

the authority to directly dismiss the case rather than allow the blindly written amount in

the contract.52

36. If parties fix an amount after a lack of pre-estimation about the actual damage, they

cannot claim more than what they have decided53, even if the loss was more than

estimated. That is, the court doesn’t have the power to compensate the petitioner more

than what is stated54 in the contract. On the contrary, the court can reduce the

compensation than stated in the contract55.

37. In the present situation, what Mr. X demands is more compensation than stated in the

contract (unliquidated damages) when there is already an amount decided by both

parties (liquidated damages)56. So, as per the laws of Krypton (pari materia to the laws

of India), no additional compensation than stated in the contract will be awarded even

after the party proves that they have suffered more loss.

48
Illustration given by Lord Halsbury in Clydebank case, 1905 AC 6.
49
Kemble v Farren, (1829) 6 Bing 141 and Jessel MR in Wallis v smith, (1882) LR 21 Ch D 243 (CA).
50
Fateh Chand v Balkishan Dass, AIR 1963 SC 1405: (1964) 1 SCR 515
51
Robophone Facilities Ltd v blank, (1966) 1 WLR 1428, 1447 (CA).
52
Mar Apprem Company Ltd. v. V.M Narendranath And Others (1987) 2 SCC 424; AIR 1987 SC 1257
53
Cellolose Acetate Silk Co Ltd v Widness Foundry (1925) Ltd, 1933 AC 20 (HL)
54
Pushpender Motilal Singh v commercial automobiles, (1992) 2 MOLJ 319
55
State of Gujrat v M.K. Patel & Co, AIR 1985 Guj 179.
56
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection,2022-23, ¶4

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[IV.C] THE INJURED PARTY MUST PROVE THAT THERE WAS A BREACH OF CONTRACT.

38. If the party claiming compensation does not prove a breach of contract has occurred, or

if it is under the consideration that the breach has occurred because of the party’s

conduct or any other act, then the case is referred again to the court. Compensation,

even after the party suffers a loss, will not be provided.

39. In the present case, Mr. X is still required to prove that the breach was because of the

act or omission by M/s Royal Yatches & Vessels Inc. because as, per the council, the

act of breach was not from the company side, but it was because of the Act of God. So,

the claim of compensation will not be permissible.57

[IV.D] NO PROOF OF ACTUAL LOSS.

40. Section 74 states that compensation will be provided even if the party doesn’t suffer

any injury or loss58. Contrary to the bare act, Shah J that the section doesn’t specify the

reason for claiming in case of no loss or injury. As per interpretation, compensation can

only be acquired if the party (the petitioner) who is claiming has suffered any legal

injury59.

41. In this present scenario, Mr.X is claiming unliquidated compensation. Still, the

petitioner hasn’t been able to prove that the delay or no delivery of the consignment of

manufacturing parts on 10th June 202260 caused any loss to him61. If the petitioner

claims unliquidated damages, he will have to prove that he has suffered a legal injury.

In this case, if he is not able to prove those mentioned above, then the court will not

award any compensation regardless of what is stated in the contract62.

57
M.M.T.C. ltd v S. Mohamed Gani, AIR 2002 Mad 378
58
Section 74 of Indian contract act, 1872
59
Kamarchand Thapar & Bros Ltd V H.H. jethandani, 76 CWN 38.
60
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection,2022-23, ¶ 6
61
Maula Bux v Union of India (1969) 2 SCC 554: AIR 1970 SC 1955
62
Ennore Port Ltd v Hindustan Construction Co Ltd, (2005) 4 LW 319.

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[IV.E] UNLIQUIDATED DAMAGES CLAIMED BY MR.X ARE NOT REASONABLE.

42. Mr. X demands unliquidated damages, for which he needs to prove reasonableness. He

needs to prove that the amount he is demanding is reasonable as per the damages

suffered by him. We see that there is only a delay in the consignment of goods 63, and

no damages have been suffered. Thus the compensation demanded should not be

granted64. Because here, in these cases court usually have ample power to award

compensation65.

63
Moot Proposition, Symbiosis Law School, Pune- Novice Moot Selection,2022-23, ¶ 8
64
Maula Bux v Union of India (1969) 2 SCC 554: AIR 1970 SC 1955
65
Sukhdev Kaur V Hoshiar Singh, (2004) 2 ICC 55 (P&H)

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PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this

Hon’ble City Civil Court of Gorn be pleased to:

1. DECLARE M/s Royal Yatches and Vessels are not strictly liable for the pollution

caused at the Midgard Islands.

2. DECLARE M/s Royal Yatches and Vessels is not liable for breach of Contract, nor is

it liable to pay damages for the same.

3. DISMISS M/s Royal Yatches & Vessels Inc. is not Negligent and is not liable to pay

compensation for the damages caused to the environment.

4. UPHOLD Mr. X cannot claim unliquidated damages for the breach of contract in the

present case.

DISMISS the Present Civil Proceedings, consequently.

AND/OR

Pass any other order, direction, or relief that it may deem fit in the best interest of

Justice, Equity, and Good Conscience.

For this act of kindness, the Respondent shall duty-bound forever pray.

Sd/-

(Counsel for Respondent)

14 MEMORIAL ON BEHALF OF THE RESPONDANT