INTERNATIONAL MARITIME LAW ARBITRATION MOOT. IMLAM Moot organised by School of Law, Murdoch University

Transcription

1 INTERNATIONAL MARITIME LAW ARBITRATION MOOT 2014 IMLAM Moot organised by School of Law, Murdoch University Oral rounds hosted by Faculty of Law, University of Hong Kong MOOT SCENARIO RELEASED 18 DECEMBER 2013 We request that teams intending to register for the competition inform the moot organisers as soon as possible; knowing the numbers of teams proposing to attend assists us with planning: You need not give the names of participants at this stage. Registration forms, the schedule of important dates and other information for competitors can be found at the website: Law-Arbitration-Moot/ Please follow us on twitter to ensure you are kept informed of breaking

2 1

3 2

4 3

5 4

6 5

7 6

8 7

9 8

10 9

11 10

12 11

13 12

14 13

15 14

16 15

17 16

18 17

19 18

20 19

21 20

22 21

23 22

24 23

25 24

26 25

27 26

28 27

29 28

30 29

31 30

32 31

33 32

34 33

35 34

36 35

37 36

38 37

39 38

40 39

41 40

42 41

43 42

44 43

45 44

46 45

47 46

48 47

49 48

50 49

51 50

52 51

53 52

54 53

55 54

56 55

57 56

58 57

59 58

60 59

61 60

62 61

63 62

64 63

65 64

66 65

67 66

68 67

69 68

70 69

71 70

72 71

73 72

74 73

75 74

76 75

77 76

78 77

79 78

80 79

81 80

82 81

83 82

84 83

85 84

86 85

87 86

88 87

89 88

90 89

91 90

92 91

93 92

94 93

95 94

96 95

97 96

98 97

99 98

100 99

101 100

102 101

103 102

104 103

105 104

106 105

107 106

108 107

109 IN THE MATTER OF AN ARBITRATION BETWEEN: RELIABLE TANKERS INC and SUPER CHARTERS INC Claimants/Owners Respondents/Charterers RELIABLE BUTTERLY AND IN THE MATTER OF AN ARBITRATION BETWEEN: SUPER CHARTERS INC and RELIABLE HOLDINGS INC Claimants/Charterers Respondents/Owners RELIABLE BUTTERLY SUPER CHARTERS INC S DEFENCE AND COUNTERCLAIM SUBMISSIONS (1 st Reference) CLAIM SUBMISSIONS (2 nd Reference) Procedure 1. The Tribunal will see there are two references. 108

110 2. The first is a nullity. Reliable Tankers Inc did not exist at the time when the arbitration was purported to be commenced. It is denied that the reference was commenced by Reliable Holdings Inc and denied that there was a misnomer. There was a deliberate decision to bring proceedings in the name of a non-existent party. 3. The second reference was validly commenced by Super Charters Inc. It will not be open to Reliable Holdings Inc to bring a counterclaim in this reference: a contractual time bar in Clause 4 of Super Charters standard terms (as incorporated into the underlying charter which will be described below) precludes the same. Arbitration had to be commenced by, at the latest, 20 days after discharge would have been completed. This would have been 10 January. Arbitration was not commended in any reference involving Reliable Holdings Inc until 12 February. The Charterers plead further below strictly without prejudice to this general defence. 4. For ease of reference and in the interests of proportionality, although technically Super Charters are required to file Defence & Counterclaim Submissions (first reference) and Claim Submissions (second reference), they set out their position in these combined submissions which are to be construed as appropriate in each reference. The Charterers trust that this will not inconvenience the Owners, who have adopted a rather casual approach to the requirement for submissions. Response to the claims by Reliable Tankers Inc 5. Reference to paragraph numbers are to the relevant paragraph in the submissions dated 14 March. Definitions utilised therein are adopted without admission. 6. Save that the Owners own the RELIABLE BUTTERFLY, the Owners are required to prove Paragraph

111 7. Paragraph 2 is denied and the Owners are asked to refrain from making such unfounded, irrelevant, allegations. 8. Paragraphs 3 and 4 are denied for the reasons set out above. 9. Paragraph 5 is admitted, save to the extent that the Charter may require rectification as set out below. 10. Paragraph 6 is noted. The Charterers will also rely upon the entirety of the terms of the Charter. 11. Paragraph 7 is denied. The approach voyage was, in the event, never commenced. 12. Paragraph 8 is admitted. The Owners failed to take the reasonable or customary steps to provide security. But for this negligence, the Vessel would have been able to meet her laycan. 13. Save as aforesaid, Paragraph 9 is admitted. 14. Paragraph 10 is admitted insofar as it recites the contents of the Charterers message. The Charterers will rely upon the entirety of that message for its full meaning and effect. 15. As to Paragraph 11: a. In breach of the Charter, the Owners failed to commence the approach voyage at such a time as to enable the Vessel to meet her laycan, failed to proceed with convenient despatch and declared that they were unable to meet the laycan. b. In the premises, the foregoing breaches (individually or collectively) were repudiatory and/or amounted to a renunciation. c. By their message of 17 November, the Charterers duly accepted the Owners repudiation and/or renunciation and/or exercised their rights under Clause 2 as set out therein and duly brought the Charter to an end. 110

112 16. Paragraph 12 is denied for the reasons set out above. Further, and without prejudice to the foregoing, the Owners interpretation of Clause 2 is specifically denied. On a proper construction, Clause 2 provided for an automatic cancellation without either party being required to act further; it did not release either party from liability. To the extent that the Tribunal finds otherwise, the Charter falls to be rectified by reason of a common or alternatively unilateral mistake. The Charterers will rely upon the prior discussions and accord between the parties that the Owners Standard Terms Clause 2 be amended so as to displace the Owners usual regime of releasing them from liability. 17. Paragraph 13 is noted. It is denied for the reasons aforesaid that the Owners are entitled to the declaration sought. 18. Paragraphs 14 and 16 are denied as a matter of construction. 19. Paragraph 15 is admitted. 20. Paragraph 17 is denied: a. No such sums fell due and payable as aforesaid. b. Alternatively, the Charterers are entitled to and do set-off the sums counterclaimed below. c. In the further alternative, if (which is denied) Clause 2 is a mutual release of obligations and liabilities, the Charterers were thereby released from any obligation to pay freight. 21. In the premises, Paragraphs 18 and 19 are denied. Claims against Reliable Holding Inc 22. By reason of the Owners breach as aforesaid, the Charterers have suffered loss and damage and been put to expense. 111

113 PARTICULARS OF LOSS AND DAMAGE (a) Increase in freight in the amount of approximately US$824,000, being the difference between the Charter freight and the amount payable under the replacement fixtures secured by the Charterers. (b) Further or alternatively and if (which is denied) freight is due and owing to the Owners, the amount of such freight being US$4,935, (c) Sums due and payable to the loadport terminal/sellers pursuant to the relevant sale contract for delayed arrival, in the amount of US$100,000 (a negotiated settlement of the claimed figure of US$150,000 which was validly calculated under the terms of the relevant contract). (d) Sums due and payable to the disport terminal/buyers pursuant to the relevant sale contract for delayed arrival in the amount of US$300,000 in respect of losses suffered from delayed planned maintenance work. 23. The Charterers claim the foregoing as damages arising out of the Owners breaches. 24. Further, the Charterers claim compound (or alternatively simple) interest on any sums found owing to them pursuant to section 49 of the Arbitration Act 1996 at such a rate and with such rests and for such a period as the Tribunal sees fit. AND the Charterers counterclaim: (a) Damages as aforesaid (b) Interest (c) Costs (d) Further or other relief 112

114 Expert Report of Tim Bowman I have been asked to give my expert opinion on the laws of Fruitland, being the place of incorporation of Reliable Tankers Inc and Reliable Holdings Inc. I have been appointed as a joint expert by the parties in this reference. The concept of merger by way of universal succession, which I believe is found in many legal systems, is established in Fruitland law. Two entities can choose to merge by universal succession by mutual consent. Where this occurs, there is one, single, surviving entity, which can be elected by the participants. The surviving entity, automatically without more as a matter of law and without other transfer, becomes the owner, of all the rights and property of the constituent companies and the Surviving Company shall become subject to all liabilities, obligations and penalties of the constituent companies. To put it another way, the Surviving Company automatically takes over all the rights and liabilities of the discontinuing corporation. I confirm that there is no requirement for any notices to be given for this process to be effective, although it is always polite to do so. 113