MEMORANDA FOR CLAIMANT

Transcription

1 17TH ANNUAL INTERNATIONAL MARITIME LAW ARBITRATION MOOT COMPETITION 2016 IN THE MATTER OF AN ARBITRATION BETWEEN ZUES SHIPPING AND TRADING COMPANY (Claimant) AND HESTIA INDUSTRIES (Respondent) MEMORANDA FOR CLAIMANT SRI LANKA LAW COLLEGE TEAM 28 Mr. Duminde De Alwis Mr. Prasad Perera Ms. Divya Athputhanathan Mr. Thanuja Meegahawatta

2 Table of Contents List of Authorities... 4 Legislative Enactments... 4 Conventions... 4 Case Laws... 4 Legal Writings... 5 List of Abbreviations... 7 Statement of Facts... 8 The Parties... 8 The Charter Party... 8 Performance of Charter Party... 8 Summary of the Issues Summary of Arguments Preliminary Issue of Jurisdiction Validity of Arbitration Clause Parties Explicitly Agreed on Seat and Forum of Arbitration Arbitral Tribunal has jurisdiction to hear the respondent s substantive claim of Frustration 14 Claims based on frustration are admissible in arbitration The phrase any dispute arising under this contract is wide enough to embrace a claim based on frustration Jurisdiction to hear Claim of Demurrage Page 2 of 24

3 The Vessel prevented leaving the port of Hades Vessel had not left the port of Hades Coast Guard of Hades is justified in intercepting the vessel Hades has exclusive jurisdiction on flag state vessels Hades has coastal state jurisdiction over the vessel Right of Hot pursuit over the Vessel Claim of Demurrage Defense to Counterclaim for Salvage of Vessel Page 3 of 24

4 List of Authorities Legislative Enactments 1. Carriage of Goods by Sea Act No. of Commercial Arbitration Act No. 23 OF Rules of Australian Maritime and Transport Arbitration Commission 4. Rules the Maritime Law Association of Australia and New Zealand Arbitration Conventions 1. International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading as Amended by Brussels Protocol United Nations Convention on Arrest of Ships United Nations Convention on the Law of the Sea, United Nations Convention On The Recognition and Enforcement of Foreign Arbitral Awards 1958 Case Laws 1. Amin Rasheed Shipping Corporation v Kuwait Insurance Co (1984) AC Asghar v The Legal Services Commission (2004) EWHC 1803; Et Plus SA v Welter (2006) 1 Lloyd s Rep Bank Line v Capel (1919) A.C Barnard v. Adams 51 U.S. 270 (1850), per Justice Grier page Budgett & Co. v Binnington & Co [1891] 1 QB Capital Trust Investments Ltd v Radio Design TJ AB (2002) 2 ALL E.R Ethiopian Oilseeds & Pulses Export Corp v Rio Del Mar Foods Inc (1990) 1 Lloyd s Rep 58 Page 4 of 24

5 8. Fiona Trust & Holding Corp v Yuri Privalov (2007) UKHL 40 at (13) 9. French Marine V Compagnie Napolitaine (1921) 2 A.C Lesotho Highlands Developments Authority v Impreglio SpA (2005) UKHL 43 at (34) 11. Lloyd Royal Belge vs Stathatos (1918) 34 T.L.R Oldendorff (EL) & co GmbH v Tradax Export SA (The Johanna Olderndorff) (1973) 2 Lloyd s Rep 288 at p. 291 (HL) 13. Sellers V Maritime Safety Inspector NZLR 44, 46-8; 120 ILR, p The Homewood (1928)31 L.I.L.Rep Vosper Thorneycroft v Ministry of Defence (1976) 1 Lloyd s Rep 58 Legal Writings 1. A Practical and Elementary Abridgement of the Cases Argued Volume 11 by Charles Erdman Petersdorff, Elina Hammond 2. Admirarty and Maritime Law Volume 2 3. Black s Law Dictionary Shipping Conferences by Amos Herman, LLB, SJD 4. Brownlie s Principles on International Law 5. Business Law by Peter Gillies 6. Commencement of Laytime Third Edition by Donald Davies 7. International Law Sixth Edition by Malcolm N. Shaw 8. Law of Demurrage Fourth Edition by Hugo Tiberg, Sweet & Maxwell 9. Maritime Law of Salvage by Geoffrey Brice, Sweet & Maxwell 10. Russell on Arbitration Twenty Third Edition by Sweet and Maxwell 11. Scrutton on Charter Parties by Sweet & Maxwell Page 5 of 24

6 12. The York-Antwerp Rules, The Principles and Practice of General Average Adjustment. Second Edition by N. Geoffrey Hudson 13. Voyage Charters Second Edition Page 6 of 24

7 List of Abbreviations CAA 2012 Commercial Arbitration Act No. 23 of 2012 Charter Party Charterers / Respondent Coast Guard Hestug Master Owners / Claimant the Vessel Voyage Charter Party Agreement Hestia Industries Coast Guard of Hades Tug Company owned by Hestia Industries Captain Marcus Yi Zeus Shipping and Trading Company MV Athena UNCLOS United Nations Convention on the Law of the Sea, 1982 Page 7 of 24

8 Statement of Facts The Parties The claimant is Zeus Shipping and Trading Company (Owners) who owns a fleet of tanker vessels, one of which is the MV Athena (the Vessel). The Owners agree to have the vessel bore the flag of Hades, in support of the Natural Gas Industry there. The respondent is Hestia Industries (Charterers), a new producer of Liquid Natural Gas (LNG) based in Hades. The Charter Party On the 1 st of July the respondent requested for a proposal for a voyage charter of a suitable vessel from the claimant to which the latter replied favorably on the 14 th of July The respondent conditionally accept the offer by the claimant on the 16 th of July 2014 with Charter Party being executed on the 21 st of July The Charter party contains an arbitration clause, clause 30 (a), which provides that all disputes arising under this contract shall be referred to arbitration in London. The Charter Party provides for a voyage from Hades to Poseidon. Performance of Charter Party On the 30 th of September the Vessel sailed from Poseidon and reached Hades on the 3 rd of October In the midst of various protests against the vessel and cargo, loading commences on the 3 rd of October Once loading completes the vessel attempts to leave the port of Hades yet is prevented by the Coast Guard on authority of a Presidential Decree. The Master of the Vessel is ordered to step down on the basis that he had no obligation to comply with the Coast Guard, even though it was due to an issue with relation to the Cargo. Page 8 of 24

9 Since the vessel had not left the port of Hades due to an issue directly linked to the cargo carried, it is contended that lay-time continues to run till the 6 th of October 2015 when the Coast Guard releases the vessel. Upon release, the vessel received towage services from Hestug, after which it was discovered that the propeller shafts are broken, requiring the same to provide assistance to stabilize the Vessel. Page 9 of 24

10 Summary of the Issues The following issues arise for the determination of by the Tribunal, a. Whether this tribunal has jurisdiction to determine the substantive merits of the parties claims, including any issue as to whether the contract has frustrated, given that the Charter party contains an express arbitration clause providing for all disputes arising from the contract to be subject to arbitration in London. b. Whether the prevention of the Vessel leaving the port by coast guard amounts to a continuation of lay-time. c. Whether there is valid claim of demurrage and of the demurrage amount. d. Whether the Claimant is liable to pay the respondent a salvage reward on general average basis, which is deductable from the demurrage claim, if available. Page 10 of 24

11 Summary of Arguments First contention of claimant is that Arbitration Clause included in the Charter Party is valid and broad enough to hold a valid arbitration for any dispute arisen between two parties. Secondly claimants contend that issue of frustration is arbitrable through the same arbitrations and arbitrators hold jurisdiction to hear the matter before them. Thirdly claimant s position is that the Vessel was prevented from leaving port of Hades by Coast Guard due to its cargo, thus the cargo was considered to be illicit to export from Hades. Fourthly, lay-time continued to run from the 3 rd of October 2014 and then demurrage was accrued due to the Vessel was not leaving the port of Hades due to failure on the documentation and clearance from the Coast Guard. Final claimant s contention is that the salvage claim of respondent was not successful due to the Hestug was only providing towing service and Hestug has no right to remuneration for assistance to or salvage of the vessel she is towing or of the vessel s cargo, except where she has rendered exceptional services which cannot be considered as rendered in fulfilment of the contract of towage at the port of Hades. Page 11 of 24

12 Preliminary Issue of Jurisdiction Validity of Arbitration Clause According to section 02 of the Maritime Law Association of Australia and New Zealand Arbitration Rules, Arbitration means an arbitration conducted in Australia which concerns a dispute to which; 1. the Commercial Arbitration Act of a state or Territory applies; or 2. the International Arbitration Act 1974 applies; Section 20 of the CAA 2012 encapsulates that the parties are free to agree on the place of arbitration in that it is humbly submitted that this Tribunal is vested with authority to rule on its substantive jurisdiction to hear and determine the merits of these claims. The agreement to arbitrate extends jurisdiction to the court of the seat of the arbitration which is overseeing the arbitral proceedings. In Amin Rasheed Shipping Corporation v Kuwait Insurance Co (1984) AC 50, the House of Lords held; An arbitration agreement is a contract and like any other contract, is just a piece of paper devoid of all legal effect unless it is made by reference to some system of private law which defines the obligations assumed by the parties to the contract. Moreover, where the seat of arbitration is selected, the proceedings in arbitration can take place only at the designated seat and the lex arbitri will be the law of the seat of arbitration. Thus an arbitration in London will be governed by the CAA Clause 30 of finalized charter party is a London arbitration clause. There have not been any alteration to the clause 30 in as much clause 30 was incorporated in the charter party, as part of the standard clauses in the finalized charter party. Page 12 of 24

13 Clause 30 (a) provides that Any dispute arising under this contract shall be referred to arbitration in London in accordance with the Arbitration Rules of the Maritime Law Association of Australia and New Zealand. This clause elucidates that arbitration hearing is scheduled to be taken up in London in conformity with the Arbitration Rules of the Maritime Law Association of Australia and New Zealand. In present case, wording of the clause is not beyond doubt and binds parties to the agreement to arbitrate in London. Therefore, this Tribunal has been properly constituted to determine and hear the parties disputes in question. Parties Explicitly Agreed on Seat and Forum of Arbitration 1. Finalized Charter Party incorporates clause 30 of Charter Party 2. Clause 30 clearly provides for London to be the proper seat and forum of arbitration 3. Lex arbitri determines which national court can intervene in assisting the conduct of the arbitration Page 13 of 24

14 Arbitral Tribunal has jurisdiction to hear the respondent s substantive claim of Frustration Claims based on frustration are admissible in arbitration The Respondent contends at Paragraph 4 of their Points of Defence and Counterclaim that the Charter Party was frustrated by reason of the delay and respondent s claim of frustration is inadmissible in arbitration and not a dispute arising under the Charter Party. Presumably, it means it is not arbitrable. This contention is without merit. The claim relating to frustration is admissible in arbitration. This proposition can be straightforwardly settled by referring to authoritative references. As pointed out in Lesotho Highlands Developments Authority v Impreglio SpA (2005) UKHL 43 at (34) and in Capital Trust Investments Ltd v Radio Design TJ AB (2002) 2 ALL E.R 159; the purpose behind the CAA 2012 was the promotion of one stop adjudication. Accordingly, in considering the scope of an arbitration clause the court will apply the presumption that the parties have agreed to one forum for dispute resolution, which stance was further emphasized in the case of Asghar v The Legal Services Commission (2004) EWHC 1803; Et Plus SA v Welter (2006) 1 Lloyd s Rep 251. Further, where the parties have agreed an arbitration clause they are presumed to have intended to resolve their disputes through arbitration, and not by means of several different forms of dispute resolution including both arbitration and the courts. This presumption has been given judicial expression in Fiona Trust & Holding Corp v Yuri Privalov (2007) UKHL 40 at (13) where it was described as a powerful reason for a liberal interpretation of arbitration clauses. The Court of Appeal considered that no commercial man would knowingly create a system that required that the court should first decide whether the contract should be Page 14 of 24

15 rectified or rescinded or frustrated. Before the arbitrator could go on to resolve the dispute that had arisen. Hades and Demeter have adopted the laws of Western Australia in that the statutory definition of an arbitration agreement according to Section 7 of CAA 2012 makes clear that disputes may be referred to arbitration whether they arise in contract or otherwise. Accordingly, claims based on a cause of action arising in breach of a statutory duty or some other non-contractual cause of action may fall within an arbitration agreement. In this context it may be possible to conclude that the no contractual claims are so intimately connected with a contract that even an arbitration clause designed primarily for contractual claims will extend to connected non-contractual claims 1. In Asghar v Legal Services Commission claims for conspiracy and inducement to commit breach of conduct were all found to be within the arbitration agreement because the resolution of the contractual claims cannot sensibly or practically be divorced from the resolution of the no contractual claims. The phrase any dispute arising under this contract is wide enough to embrace a claim based on frustration An arbitration agreement referring any dispute or difference to arbitration was found wide enough to cover the effects of exceptional dislocation and delay notwithstanding that the disputes clause provided that they were to be assessed by mutual agreement. Once the parties had clearly agreed to differ about those issues they fell within the arbitration clause. Vosper Thorneycroft v Ministry of Defence (1976) 1 Lloyd s Rep 58. As decided in Fiona Trust 1 Woolf v Collis Removal Service (1948) 1 K.B 11 Page 15 of 24

16 and also in Ethiopian Oilseeds & Pulses Export Corp v Rio Del Mar Foods Inc (1990) 1 Lloyd s Rep 58, the phrases disputes arising under the contract was specifically considered by the Court of Appeal in Fiona Trust who concluded that they should cover every dispute except a dispute as to whether there was ever a contract at all. It is claimant s humble contention that the sequence of events leading up to the disputes being referred to arbitration should be thoroughly deliberated in their entirety or as a whole in order to arrive at an unambiguous conclusion. Respondent s defense that the charter party was frustrated and pleading of frustration is not a dispute arising under the charter party cannot be extracted from the claimant s points of claim in as much the respondent is liable to the claimant for demurrage in respect of 358 days. In the present case, the terms of the Charter party does not exclude any subject matter from the arbitrator s jurisdiction. Therefore, it follows that by reason of the words all disputes in clause 30, the claimant and respondent must have intended that any disputes arising out of this charter should be brought before this Tribunal. This Tribunal should find that the phrase arising out of is wide enough to allow it to hear a claim relating to frustration. The parties have agreed to refer the present dispute which includes claims relating to frustration to arbitration before this Tribunal. Once a potentially frustrating event has occurred its likely duration and effect on the charter party must be assessed at the time of occurrence, in order to determine whether it is sufficient to bring about frustration. In Bank Line v Capel (1919) A.C 435 Lord Summer, in dealing with the all-important question of the period for which the vessel had been requisitioned, said Page 16 of 24

17 The probabilities as to the length of the deprivation and not the certainty arrived at after the event are also material. The question must be considered at the trial as it had to be considered by the parties when they came to know of the cause and the probabilities of the delay and had to decide what to do.. It is submitted that respondents have never communicated the fact of frustration of charter party till 30 th April 2015 and allowed the charter party to remain stood. Admittedly, the respondent s claim that charter party was frustrated cannot be arguably adduced before this tribunal due to protracted delay in submitting such a claim. In the cases of Lloyd Royal Belge vs Stathatos (1918) 34 T.L.R 70 and French Marine V Compagnie Napolitaine (1921) 2 A.C 494 provide judicial expression in this regard where it was held that charter was dissolved on the date on which ship should have sailed from the loading place. Jurisdiction to hear Claim of Demurrage Without prejudice to the foregoing claim, the doctrine of separability (or severability) ensures that an arbitral tribunal may declare the contract frustrated and yet retain its jurisdiction to decide a dispute as to the consequences of demurrage. Section 16 of CAA 2012 summarizes that an arbitration agreement which forms or was intended to form part of another agreement shall not be regarded as invalid or ineffective because that other agreement is invalid or did not come into existence and it shall for that purpose be treated as a distinct agreement.in particular, the use of the words an arbitration clause which forms part of a contract is to be treated as an agreement independent of the other terms of the contract makes it clear that even if the matrix contract never came into existence, the arbitration agreement may still be binding. Similarly, the fact that the matrix Page 17 of 24

18 contract subsequently fails or is found to be invalid or never to have come into existence will not of itself mean that the arbitration agreement is necessarily undermined also. The consequence of this separate existence is that even if the matrix contract has been brought to an end by accepted repudiation or frustration, the arbitration agreement continues in being in order to deal with any disputes in respect of liabilities under the matrix contract arising before or after frustration or termination 2. It is further put that unless otherwise agreed by the parties, the arbitration agreement may survive as a distinct agreement even if the contract in which it is contained is regarded as invalid, or frustrated 3. Accordingly, the validity of the matrix agreement may therefore be determined by arbitration in accordance with the arbitration agreement and the resulting award will be enforceable, even if this duly constituted tribunal determines that the matrix contract is frustrated. Nonetheless, even where the matrix contract is held to be frustrated, the arbitration agreement which forms part of it may still be upheld as a valid and independent agreement, so that any dispute such as a claim for demurrage must be referred to arbitration. 2 DDT Trucks of North America Ltd v DDT Holdings Ltd (2007) EWHC Premium Nafta Products Ltd v Fili Shipping Co Ltd (2007) UKHL 40 Page 18 of 24

19 The Vessel prevented leaving the port of Hades Vessel had not left the port of Hades This is a Port Charter 4 and the Coast guard stated that they were not sure if they had intercepted beyond territorial waters 5. Also the vessel was at the immediate and effective disposition of the charterer 6, although the Master himself failed to communicate to the respondent. Coast Guard of Hades is justified in intercepting the vessel Hades has exclusive jurisdiction on flag state vessels A flag state is a state which has granted to a ship the right to sail under its flag 7. Hades flag is the symbol of nationality of the Vessel 8. Hades has the effective control over the administration of the vessel 9. Therefore, the flag state has exclusive jurisdiction over the vessel irrespective of its location 10. This was elaborated in the Lotus case 11, where it was held that vessels on high seas are subject to no authority except that of the state whose flag they fly 12. In abidance to principles of freedom at high seas, the Vessel is subject to the laws of its flag state 13 and thus comprehends the enforcement jurisdiction of Hades 14. Therefore, the 4 Under a port charter, a port is nominated for its destination see; Kyzikos 1989 AC 1264 p Compendium p. 62, 74 6 Oldendorff (EL) & co GmbH v Tradax Export SA (The Johanna Olderndorff) (1973) 2 Lloyd s Rep 288 at p. 291 (HL) 7 Churchhill and Lowe 1999, p UNCLOS article 91(1) 9 UNCLOS article 94, The 1958 Geneva Convention on the High Seas Article UNCLOS article 92(1), 94, 211(2), 217. The 1958 Geneva Convention on the High Seas Article PCIJ,Series A, No.10, 1927, p. 25; 4 AD, p See also Sellers V Maritime Safety Inspector NZLR 44, 46-8; 120 ILR, p Note that the duties of the flag state are laid down in articles 94, 97, 98, 99, 113 and 115 of the 1982 Convention 13 Report of the International Law Commission covering the work of its eighth session (A/3159), article 30 Commentary, para.(1), II YB ILC 1956 at 253, Enforcement jurisdiction as encompassing adjudicative authority. See M.N Shaw International Law 572 (5 th ed. of 2003), Churchill and LOWE, supra note 65, at 207. Page 19 of 24

20 Coast guard s interception of the vessel and subsequent action were within the scope of authorities vested through the flag state jurisdiction. Hades has coastal state jurisdiction over the vessel The coastal state is Hades. The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea 15. Hades sovereignty over the vessel extends until the territorial waters, as a coastal state. This power takes over in the situation where the vessel is within the territorial waters. 16 Hades can apply its customs law on the Vessel in maintaining its laws of preventing HLNG export 17. Right of Hot pursuit over the Vessel The Right of Hot Pursuit has begun in the territorial waters and ended once the Vessel had left the territorial waters 18. The Coast Guard did not abandon the chase, instead had followed the vessel continuing into the high seas despite all efforts 19. The Coast guards have expounded the course of pursuing the Vessel in an unceasing undertaking under a challenging situation 20. Their ultimate object was to ensure the export of HLNG that was made illegal is prevented from being exported UNCLOS article 2 16 Compendium p. 62, 63 and UNCLOS article 21(1). See JEAN-PAUL PANCRACIO, DROIT INTERNATIONAL DES ESPACES: AIR/MER/ FLEUvEs / CosMos 71 (1997) supra note 23, at M/V Saiga, 120 ILR, pp. 143, The Learned author COLOMBOS writes that the pursuit must be immediate, hot and continuous International Law of the Sea, London, 1962, p Compendium p Article 23 Geneva convention on the High seas (1958) makes a clear-cut distinction between the elements non-interruption and hot of the pursuit. Compendium p Article 111 UNCLOS on Violation of customs, fiscal, immigration, and sanitary law Page 20 of 24

21 Claim of Demurrage Without prejudice to above contention, lay-time continue to run at the port of Hades and demurrage would accrue as follows. In pursuant to clause 10 of the charter party demurrage will accrue over and above the laydays calculated to be paid to ship owner by the charterers at the rate specified in Box 24 of Charter Party, i.e. US$ 50,000/day or part thereof pro-rata. On 3 rd of October 2014 at 0915 hours Master had issued the Notice of Readiness (NOR) in accordance with clause 4 and further to the reference to clause 9 of the Charter Party. With regards to clause 9 (c) lay-time for loading is 10 Weather Working Days including Sundays and Holidays (WWDSHINC) starts when NOR is tendered until the vessel leaves the Port of Hades. Therefore any further time taken is considered over and above lay-time and considered for demurrage charge. Therefore lay-time started run from 3 rd of October 2014 until 13 th of October Then accordance with the Statement of Facts issued on 7 th of October 2014, the Vessel set sailed from Port of Hades but again Coast Guard has intercepted and brought back the ship to port of Hades due to carriage of HLNG. Then again lay-time continues to run due to early failure of clearance from coast guard. Question arose whether a Vessel leaving of port of Hades shall obtain clearance from Coast Guard of that state country. It was understood from Customary International Law that a vessel must be fit to sail from the Loading Place after completion of cargo loading and obtaining all required documentations. In this instance the Vessel had failed to obtain the clearance from Page 21 of 24

22 Coast Guard and it was considered to be an illicit cargo to transport. Further prevention of leaving port of Hade was discussed on previous contention. Therefore it considered that until the entire documentations ready, vessel continue to run lay-time and then starts demurrage. Accordingly, after 13 th of October 2014, demurrage started to accrue until the vessel was discharged from the Coast Guard i.e. till 5 th October Therefore the total demurrage accrued was for 358 days. The shipping industry has developed a number of time honored principles and maxims which are intended govern when everything else is not quite so clear. One such maxim is "once on demurrage, always on demurrage 22. In other words, once Charterers have used up their laytime and the vessel is on demurrage, all time used will fall for their account, whatever the apparent cause 23. Therefore demurrage accrued for 358 days at the rate of US $ 50,000/day totaling US $ 17,900,000/-. 22 classic statement of Lord Esher in Budgett & Co. v Binnington & Co [1891] 1 QB Like most maxims it is true in part and probably more accurately means that unless an exception clause refers specifically to demurrage, that exemption will only apply during the running of lay-time Page 22 of 24

23 Defense to Counterclaim for Salvage of Vessel The claimant submits that in this instance the towage service rendered by the respondent does not amount to being exceptional 24 in nature. In Homewood 25 two elements were identified by Hill J. in this regard: 1. The tow is in danger because of a circumstance that could not have been reasonably contemplated by the parties 2. The risk incurred or duty performed by the tug could not reasonably be held to be within the scope of the contract It is arguable that the skills that had been exhibited in this instance by the Respondent tugs by assisting the vessel to re stabilize itself was not outside what was necessary in the ordinary performance of a towage contract. The claimant further submits that the instance claimed by respondent, if there ever exists a salvage claim, the payment of which must be according to the general average. According to clause 21 of the Charter Party it has been agreed that general average claims must be made in accordance with the York / Antwerp Rules. Rule VI (a) of the York / Antwerp Rules requires that all expenses of the salvors shall be paid in general average. Moreover in Bernard v. Adam 26, the following three conditions are identified as pre requisites for an average claim under York / Antwerp Rules, namely: 24 Article 4 of Brussels Conventon on Slvage1910. See also Article 17 of London Salvage Convention The Homewood (1928)31 L.I.L.Rep. 336 at Barnard v. Adams 51 U.S. 270 (1850), per Justice Grier page 303 Page 23 of 24

24 a. a common inevitable danger to the cargo, vessel and all other salvable property at sea b. service has been successful c. salvor is a volunteer Thus it is contended that if a savage claim is to be awarded, it must be on the basis of general average. Page 24 of 24