17th Annual International Maritime Law Arbitration Moot In the matter of arbitration under the MLAANZ Arbitration Rules COUNSEL

Transcription

1 17th Annual International Maritime Law Arbitration Moot In the matter of arbitration under the MLAANZ Arbitration Rules UNIVERSITY OF QUEENSLAND MEMORANDUM FOR RESPONDENT CLAIMANT Zeus Shipping and Trading Co Level 4, 200 Beta Street Poseidon v RESPONDENT Hestia Industries Level 1, 100 Alpha Street Hades COUNSEL KEILIN ANDERSON DOMINIC FAWCETT JAAMAE HAFEEZ-BAIG AMINA KARCIC

2 TABLE OF CONTENTS LIST OF ABBREVIATIONS... iii LIST OF AUTHORITIES... v STATEMENT OF FACTS... 1 QUESTIONS PRESENTED... 4 SUBMISSIONS... 5 I THE TRIBUNAL DOES NOT HAVE JURISDICTION TO HEAR THE FRUSTRATION ISSUE... 5 A The Tribunal has the power to rule on its own jurisdiction... 5 B The Proper Law of the Arbitration Agreement is Western Australian Law... 6 C Under Western Australian principles of contractual interpretation, a dispute about frustration is not a dispute arising under this contract... 7 II THE RESPONDENT IS NOT LIABLE TO PAY DEMURRAGE... 8 A Laytime ended when the Vessel commenced sailing... 9 B Alternatively, laytime ended when the Vessel crossed the port limits C Alternatively, laytime was interrupted D Alternatively, any delay was caused by fault of the Claimant III ALTERNATIVELY, THE RESPONDENT IS NOT LIABLE TO PAY DEMURRAGE BECAUSE THE CHARTERPARTY WAS FRUSTRATED A As at 7 October 2014 the probable delay to the Vessel was so inordinate as to frustrate the commercial purpose of the Charterparty B Alternatively, the Charterparty was frustrated on a later date C The interception, return and detention of the Vessel gave rise to supervening impossibility of performance D The supervening event was not provided for by the parties E Frustration was not self-induced IV THE RESPONDENT IS ENTITLED TO A SALVAGE REWARD A The Respondent and Hestug are the same legal entity B The Vessel was salvable property in danger at sea C The Respondent s services were successful in rescuing the Vessel D The Respondent s services exceeded due performance of the contract E The Respondent is nonetheless a volunteer under the general law of salvage PRAYER FOR RELIEF ii

3 LIST OF ABBREVIATIONS Act Arbitration Act 1996 (UK) Arbitration Agreement Clause 30 of the Charterparty Art. / Arts. Article/Articles Bundle Bundle of Documents relevant to Arbitration Cargo The cargo of HLNG aboard the Vessel Charterparty The contract concluded between the Claimant and Respondent on or about 22 July 2014 Claimant Zeus Shipping and Trading Company Demurrage Clause Clause 10 of the Charterparty Draft Arbitration Clause 30 of the Draft Charterparty Agreement Draft Charterparty The contract enclosed in the Claimant s dated 14 July 2014 Force Majeure Clause Clause 19 of the Charterparty HLNG Liquefied Natural Gas produced from Hades Shale Gas Interruptions Clause Clause 9(e) of the Charterparty Master Captain Marcus Yi iii

4 MLAANZ Maritime Law Association of Australia and New Zealand NOR Notice of Readiness Respondent Hestia Industries Salvage Convention International Convention on Salvage 1989 Statement of Facts The Statement of Facts in respect of MV Athena at Hades, signed by Captain Marcus Yi on 7 October 2014 Tribunal The Arbitral Panel Vessel MV Athena iv

5 LIST OF AUTHORITIES Books Cooke, Julian et al, Voyage Charters (Informa, 4th ed, 2014) Beale, Hugh, Chitty on Contracts: General Principles (Sweet & Maxwell, 30th ed, 2008) Reeder, John (ed), Brice on Maritime Law of Salvage (Sweet & Maxwell, 4th ed, 2003) Rose, Francis, Steel, Sir David and Shaw, Richard (eds), Kennedy & Rose: Law of Salvage (Sweet & Maxwell, 8th, 2008) Stannard, John, Delay in the Performance of Contractual Obligations (Oxford University Press, 2007) Treitel, Sir Guenter, Frustration and Force Majeure (Sweet & Maxwell, 3rd ed, 2014) Articles Davies, Martin, What happened to the Salvage Convention 1989? (2008) 39(4) Journal of Maritime Law & Commerce 463 Gaskell, Nicholas, The 1989 Salvage Convention and the Lloyd s Open Form (LOF) Salvage Agreement 1990 (1991) 16 Tulane Maritime Law Journal 1 Cases Adelfamar SA v Silos Mangimi Martini SPA (The Adelfa) [1988] 2 Lloyd s Rep 466 Admiral Shipping Co v Weidner Hopkins & Co [1916] 1 KB 429 Amin Rasheed v Kuwait Insurance Corp [1984] AC 50 Andreas Sobonis v The National Defender, National Transport Corporation [1970] 1 Lloyd s Rep 40 Anglo Northern Trading v Emlyn Jones & Williams [1918] 1 KB 372 Arsonovia Ltd and Ors v Cruz City 1 Mauritius Holdings [2013] 1 Lloyd s Rep 235 Bank Line Ltd v Arthur Capel & Co [1918] AC 435 Black-Clawson International Ltd v Papierwerke Waldoff-Aschaffenburg AG [1981] 2 Lloyd's Rep 446 Blane Steamships v Minister of Transport [1951] 2 KB 965 Blue Anchor Line v Alfred C Toepfer (The Union Amsterdam) [1982] 2 Lloyd s Rep 432 Brisbane City Council v Group Projects Pty Ltd (1979) 145 CLR 143 v

6 British Foreign Marine Insurance Company v Samuel Sanday & Co [1916] 1 AC 650 Budgett v Binnington [1891] 1 QB 35 Bunge SA v ADM Do Brasil LTDA [2009] 2 Lloyd s Rep 175 C v D [2008] Bus LR 843 Chimimport v D Alesio [1994] 1 Lloyd s Rep 366; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45 Corporate Systems Publishing Pty Ltd v Lingard (No 4) [2008] WASC 21 (27 February 2008) Countess of Warwick Steamship Company v Le Nickel Societe Anonyme and Anglo-Northern Trading Company Ltd v Emlyn Jones & Williams [1918] 1 KB 372 Davis Contractors Ltd v Fareham UDC [1956] AC 696 Edwinton Commercial Corp v Tsavliris Russ (Worldwide Salvage & Towage) Ltd (The Sea Angel) [2007] 2 Lloyd s Rep 517 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 Ellis Shipping Corporation v Voest Alpine Intertrading (The Lefthero) [1992] 2 Lloyd s Rep 109 Embiricos v Sydney Reid & Co [1914] 3 KB 45 Fairbridge v Pace (1844) 1 Carr & K 317 Fibrosa v Fairbairn [1943] AC 32 Fillite (Runcorn) Ltd v Aqua-Lift (1981) 26 Con LR 66 Fiona Trust & Holding Corporation v Privalov [2007] Bus LR 1719 Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 Freedom Maritime Corporation v International Bulk Carriers SA and another (The Khian Captain) [1985] 2 Lloyd s Rep 212 Gem Shipping Co of Monrovia v Babanaft (Lebanon) SARL (The Fontevivo) [1975] 1 Lloyd s Rep 339 Government of Gibraltar v Kenney [1956] 2 QB 410 Grupo Torras SA v Sheikh Fahad Mohammed al Sabah [1995] 1 Lloyd s Rep 374 Heimann v Commonwealth of Australia (1938) 38 SR (NSW) 691 Heyman v Darwins Ltd [1942] AC 356 vi

7 High Seas Venture Ltd Partnership v Sinom (Hong Kong) Ltd (The New Forest) [2008] 1 Lloyd s Rep 504 Hillcrown Pty Ltd v O Brien [2011] QCA 129 (19 April 2011) Hirji Mulji v Cheong Yue Steamship Co Ltd (1926) AC 497 Hirsch v The Zinc Corp Ltd (1917) 24 CLR 34 Houlder v Weir (1905) 10 CC 228 Hudson v Bilton (1856) 119 ER 975 IBM Australia Pty Ltd v State of Queensland [2015] QSC 342 (7 December 2015) Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 J Lauritzen AS v Wijsmuller BV (The Super Servant Two ) [1990] Lloyd s Rep 1 Jackson v Union Marine Insurance Co Ltd (1874) LR 10 CP 125 Joseph Constantine Steamship Line Ltd v Imperial Smelting Corp Ltd [1942] AC 154 Kuwait Petroleum Corporation v I & D Oil Carriers Ltd (The Houda) [1994] 2 Lloyd s Rep 541 Leeds Shipping Co Ltd v Duncan Fox & Co Ltd (1932) 37 CC 213 Lodge Partners Pty Ltd v Pegum [2009] FCA 519 (20 May 2009) Midwest Shipping v Henry [1971] 1 Lloyd s Rep 375 Miller v. Law Accident Insurance Company [1903] 1 KB 712 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd; Wright Prospecting Pty Ltd v Mount Bruce Mining Pty Ltd (2015) 89 ALJR 990 National Carriers v Panalpina (Northern) Ltd [1981] AC 675 Nova (Jersey) Knit Ltd v Kammgarn Spinnerei [1977] 1 WLR 713 ooh! Media Roadside Pty Ltd v Diamond Wheels Pty Ltd (2011) 32 VR 255 Overseas Union Insurance Ltd v AA Mutual International Insurance Co Ltd [1988] 2 Lloyd s Rep 62 Paal Wilson and Co A/S v Partenreederei Hannah Blumenthal (The Hannah Blumenthal) [1983] 1 AC 854 Pacific Carriers v BNP Paribas (2004) 218 CLR 451 Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (1993) 43 FCR 439 Peterson Farms Inc v C&M Farming Ltd [2004] 1 Lloyd s Rep 60 vii

8 Pioneer Shipping v BTP Tioxide (The Nema) [1982] AC 724 Price v Livingstone (1882) 9 QBD 679 Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989 Rinehart v Welker [2012] NSWCA 95 (20 April 2012) Rodoconachi v Elliot (1874) LR 9 CP 518 Sailing Ship Garston Co. v. Hickie & Co (1885) 15 QBD 580 Sametiet M/T Johs Stove v Istanbul Petrol Rafinerisi A/S (The Johs Stove) [1984] 1 Lloyd s Rep 38 Scanlan s New Neon Ltd v Tooheys Ltd (1943) 67 CLR 169 Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 Stanton v Austin (1872) LR 7 CP 651 Sulamerica SA v Enesa Engelharia SA [2013] 1 WLR 102 Tamplin Steamship Co v Anglo-Mexican Petroleum Products Co [1916] 2 AC 397 Tatem v Gamboa [1939] 1 KB 132 The Bamburi [1982] 1 Lloyd s Rep 312 The City of Subiaco v Local Government Advisory Board [2011] WASC 322 (18 November 2011) The Penelope [1928] P 180 The Queen Elizabeth (1949) 82 Lloyd s Law Rep 803 The Sava Star [1995] 2 Lloyd s Rep 134 The Vrede (1861) Lush 322 Thompson v Gillespy (1885) 119 ER 459 Transnet v The MV Cleopatra Dream (The Cleopatra Dream) [2011] ZASCA 12 (11 March 2011) Transworld Oil Ltd v North Bay Shipping Corporation (The Rio Claro) [1987] 2 Lloyd s Rep 173 Union of India v EB Aabay s Rederi A/S (The Evje ) [1975] AC 797 Conventions International Convention on Arrest of Vessels 1999, opened for signature 12 March 1999, 1110 UNTS 318 (entered into force 14 September 2011) Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations [2008] OJ L 177/6 viii

9 The International Convention on Salvage 1989, opened for signature 28 April 1989, 1953 UNTS 165 (entered into force 14 July 1996) United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) Vienna Convention on the Law of Treaties 1969, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) Legislation Contracts (Applicable Law) Act 1990 (UK) Merchant Shipping Act 1995 (UK) Arbitration Act 1996 (UK) Other London Arbitration 11/91 LMLN 304 (29 June 1991) London Arbitration 20/10 LMN 807 (29 October 2010) The Travaux Preparatoires of The International Convention on Salvage 1989, opened for signature 28 April 1989, 1953 UNTS 165 (entered into force 14 July 1996) ix

10 STATEMENT OF FACTS 1. The Respondent is a producer of HLNG in Hades. 1 The Claimant is the owner of a Hades-flagged H Max LNG Carrier, designed specifically to transport this product. 2 On 1 July 2014 the parties entered into negotiations for the Claimant to promptly transport the Respondent s HLNG from Hades to Poseidon, as part of the commissioning of the Respondent s HLNG plant, which was to commence on 15 September On 14 July 2014 the Claimant sent the Respondent its standard form voyage charterparty. 4 On 16 July 2014 the Respondent informed the Claimant that it would not agree to the Claimant s terms unless the arbitration clause was amended. On 22 July 2014, the Respondent signed the Charterparty, which contained an amended arbitration clause. 3. On 3 October 2014, the Vessel arrived at the Port of Hades and the Master tendered the NOR. The permitted time for loading was 10 WWD SHINC, calculated from when the NOR was tendered until the Vessel [left] the Loading Place. 5 The Cargo was successfully loaded and on 7 October 2014 at 0900 hours the Vessel commenced sailing. 6 The Vessel left the Loading Place. 4. On the same day, the Opposition Leader of Hades Jacqueline Simmons seized control of Hades Parliament. 7 President Simmons ordered the under-resourced Coast Guard to intercept the Vessel 1 Bundle, p 2. 2 Ibid p 3. 3 Ibid p 2. 4 Ibid p 3. 5 Ibid p Ibid p Ibid p 55. 1

11 and return it to the Port of Hades. 8 Late on 7 October 2014, the Coast Guard intercepted the Vessel and ordered the Master to return to berth. 5. Initially the Master refused to do so on the basis that the Vessel was outside of territorial waters However, he subsequently succumbed once reminded that the Vessel was Hades-flagged and was therefore subject to Hades law. 9 The Claimant subsequently stood the Master down in respect of his negligence The Vessel spent the following 364 days detained at the Port of Hades. 11 On 30 September 2015, President Simmons resigned due to allegations of misconduct within her Government. 12 The Vessel was released by the Coast Guard on 5 October 2015, well after commissioning of the Respondent s HLNG plant was to take place. 13 The Claimant claimed USD $17,900,000 in demurrage. 14 The Respondent denied liability on the basis that the Vessel left the Loading Place, and alternatively, that the Charterparty was frustrated After being towed to open waters by tugs owned by the Respondent s business Hestug, the Vessel s propeller shafts snapped. 16 This was the result of tampering while at the Port of Hades. 17 The tugs voluntarily rendered assistance, successfully saving the Vessel Ibid. 9 Ibid pp 57, Ibid p Ibid p Ibid p Ibid p Ibid pp Ibid p Ibid p Ibid. 18 Ibid. 2

12 8. The Claimant referred the dispute to arbitration on 16 November The Respondent: a. denied that the Tribunal had jurisdiction to hear the dispute; b. without prejudice to its primary position, denied all liability; and c. claimed a salvage award Ibid p Ibid p 73. 3

13 QUESTIONS PRESENTED 1. What is the governing law of the Arbitration Agreement? 2. Does the Tribunal have jurisdiction to hear the dispute over whether the Charterparty is frustrated? 3. Did laytime end on 7 October 2014? 4. Did the events of 7 October 2014 constitute an interruption to laytime under the Interruptions Clause? 5. Was the delay the Claimant s fault? 6. Was the Charterparty frustrated on 7 October 2014? 7. Was the Charterparty frustrated at a later date? 8. Are Hestug and the Respondent the same legal entity? 9. If so, is the Respondent entitled to a salvage award? 10. If required at law, were the Respondent s services voluntary? 4

14 SUBMISSIONS I THE TRIBUNAL DOES NOT HAVE JURISDICTION TO HEAR THE FRUSTRATION ISSUE 1. The Tribunal does not have jurisdiction to hear the dispute regarding the frustration of the Charterparty because: (A) the Tribunal has the power to rule on its jurisdiction; (B) the proper law of the Arbitration Agreement is Western Australian law; and (C) under Western Australian principles of contractual interpretation, a dispute regarding frustration is not a dispute arising under the Charterparty. A The Tribunal has the power to rule on its own jurisdiction 2. The seat of the arbitration is London and therefore Part 1 of the Act applies. Section 30 of the Act states that the arbitral tribunal may rule on its own substantive jurisdiction, that is, as to what matters have been submitted to arbitration in accordance with the arbitration agreement. Further, under section 7 of the Act, the Arbitration Agreement is treated as separable from the Charterparty and is not rendered ineffective in the event that the Charterparty is indeed frustrated. It follows that the Respondent s claim that the Charterparty is frustrated 21 does not affect the Tribunal s competence to determine its own jurisdiction. 3. The Arbitration Agreement confers upon the Tribunal jurisdiction over any dispute arising under this contract. The Tribunal must determine whether, on a true construction, the dispute about whether the Charterparty is frustrated is a dispute arising under this contract. The construction 21 See Submission III. 5

15 of the Arbitration Agreement is governed by its proper law, which may differ from the proper law of the Charterparty. 22 B The Proper Law of the Arbitration Agreement is Western Australian Law 4. Pursuant to common law conflict of law rules, 23 the proper law of the Arbitration Agreement is the system of laws that the parties expressly or impliedly chose, or, if no such choice is ascertainable, the system of laws with which it has the closest and most real connection In the absence of an express choice, the parties impliedly chose Western Australian law to govern the Arbitration Agreement. This is because they expressly chose that law for the Charterparty. Where there is an express choice of law in the underlying contract yet no such express choice in the agreement to arbitrate, the natural inference is that [the parties] intended the proper law chosen to govern the substantive contract also to govern the agreement to arbitrate. 25 In the absence of any indication to the contrary, the parties are taken to have intended that the whole of their relationship be governed by the same system of law. 26 Without anything more, the mere choice of London as the seat of arbitration does not displace this presumption. 27 It follows that Western Australian contractual interpretation principles must be used in construing the Arbitration Agreement. 22 Black-Clawson International Ltd v Papierwerke Waldoff-Aschaffenburg AG [1981] 2 Lloyd's Rep 446. See also Arbitration Act 1996 (UK) s The Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations [2008] OJ L 177/6 ( Rome I Regulation ) does not apply to agreements to arbitrate. See Contracts (Applicable Law) Act 1990 (UK) sch Amin Rasheed v Kuwait Insurance Corp [1984] AC 50; Sulamerica SA v Enesa Engelharia SA [2013] 1 WLR 102, 114 (Moore-Bick LJ, Hallett LJ and Lord Neuberger agreeing). 25 Sulamerica SA v Enesa Engelharia SA [2013] 1 WLR 102, 109 (Moore-Bick LJ, Hallett LJ and Lord Neuberger MR agreeing); followed in Arsonovia Ltd and Ors v Cruz City 1 Mauritius Holdings [2013] 1 Lloyd s Rep Sulamerica SA v Enesa Engelharia SA [2013] 1 WLR 102, 109 (Moore-Bick LJ, Hallett LJ and Lord Neuberger MR agreeing). 27 Arsonovia Ltd v Cruz City 1 Mauritius Holdings [2013] 1 Lloyd s Rep 235, 243 [19]. 6

16 C Under Western Australian principles of contractual interpretation, a dispute about frustration is not a dispute arising under this contract 6. The principles of contractual interpretation under Western Australian Law are well-settled. 28 While pre-contractual negotiations are normally inadmissible, 29 there is an exception where such evidence, if it amounts to concurrence, is to be used to negative an inference sought to be drawn from surrounding circumstances. 30 As large business entities that agreed to refer disputes to arbitration, it is presumed that they intended that the same tribunal would hear all of their disputes The exchange of letters between 14 and 21 July 2014 negates this presumption. The Draft Arbitration Agreement referred to arbitration any dispute arising out of or in connection with this contract, including any question regarding its existence, validity, or termination. 32 At the request of the Respondent, the Claimant amended the Draft Arbitration Agreement such that any dispute arising under this contract would be referred to arbitration, a phrase that is significantly narrower. 33 The Respondent s request for such an amendment, and the Claimant s accession to it, demonstrates a mutual intention that some disputes would not be heard by the Tribunal In light of this admissible extrinsic evidence any dispute arising under this contract only refers to disputes that concern the parties rights and liabilities under the Charterparty. The words 28 See, eg, Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd; Wright Prospecting Pty Ltd v Mount Bruce Mining Pty Ltd (2015) 89 ALJR 990, 1006 [108] (Kiefel and Keane JJ); Pacific Carriers v BNP Paribas (2004) 218 CLR 451, [22]; The City of Subiaco v Local Government Advisory Board [2011] WASC 322 (18 November 2011) [85]; Corporate Systems Publishing Pty Ltd v Lingard (No 4) [2008] WASC 21 (27 February 2008) [257]. 29 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 352 (Mason J). 30 Ibid 353 (Mason J) citing Heimann v Commonwealth of Australia (1938) 38 SR (NSW) 691, 695; IBM Australia Pty Ltd v State of Queensland [2015] QSC 342 (7 December 2015) [105]. 31 Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160, 165 (Gleeson CJ); Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45, 87 [165] (Allsop J). 32 Bundle, p Overseas Union Insurance Ltd v AA Mutual International Insurance Co Ltd [1988] 2 Lloyd s Rep 62, Lodge Partners Pty Ltd v Pegum [2009] FCA 519 (20 May 2009) [31]-[32]. 7

17 arising under have been construed narrowly, 35 and presuppose that a contract exists. 36 The parties dispute over whether the Charterparty is frustrated does not concern rights and liabilities. Rather, it concerns whether the supervening event discharged the Charterparty. 9. Alternatively, if the parties pre-contractual negotiations are inadmissible, the present dispute is nevertheless outside the scope of the Arbitration Agreement. Unlike the English approach, the presumption cannot override the plain and ordinary meaning of the words. 37 Due to the limitations on the phrase arising under this contract mentioned above, the words of the Arbitration Agreement cannot be construed in accordance with the presumption For the reasons above, the Tribunal does not have jurisdiction to determine whether the Charterparty is frustrated. II THE RESPONDENT IS NOT LIABLE TO PAY DEMURRAGE 11. The Respondent is not liable to pay demurrage to the Claimant because: (A) laytime ended when the Vessel commenced sailing from the Port of Hades on 7 October 2014; (B) alternatively, laytime ended when the Vessel crossed the limits of the Port of Hades on 7 October 2014; (C) laytime was interrupted because the delay was due to a cause excepted under the Interruptions Clause; (D) alternatively, the Claimant cannot claim demurrage because any delay was due to fault of the Claimant. 35 See, eg, Codelfa v NSW Rail Authority (1982) 149 CLR 337, 366; Heyman v Darwins Ltd [1942] AC 356, 385 (Lord Wright), 399 (Lord Porter); Government of Gibraltar v Kenney [1956] 2 QB 410, 421; Chimimport v D Alesio [1994] 1 Lloyd s Rep 366; cf Union of India v EB Aabay s Rederi A/S (The Evje ) [1975] AC 797, 814, Fillite (Runcorn) Ltd v Aqua-Lift (1981) 26 Con LR 66, 76-7 (Slade LJ), 79 (Nourse LJ). 37 Rinehart v Welker [2012] NSWCA 95 (20 April 2012) [120]-[122] (Bathurst CJ), [204] (McColl JA), [219] (Young JA); cf Fiona Trust Holdings v Privalov [2007] Bus LR 1719, 1725 [13] (Lord Hoffmann). 38 Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45, 87 [165] (Allsop J); Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (1993) 43 FCR 439, 448 (French J). 8

18 A Laytime ended when the Vessel commenced sailing 12. Pursuant to clause 9(c)(i), laytime ends when the vessel leaves the Loading Place. The Loading Place is defined in box 5 as 1 safe port, Hades, which is understood to mean the Port of Hades. Laytime ended on 7 October 2014 when the Vessel commenced sailing from the Port of Hades, six days before it would have otherwise expired (10 WWD SHINC starting on 3 October 2014). 13. The word leaves should be construed such that laytime ended once the Vessel commenced sailing from the Port of Hades. Terms of commercial contracts are to be given a businesslike interpretation in accordance with the assumption that the parties intended to produce a commercial result. 39 It makes commercial sense for the Respondent s assumption of risk to be limited to the extent of its obligation to load. Giving clause 9(c)(i) the alternative construction that laytime ended once the Vessel crossed the port limits would produce an uncommercial result. The Respondent would assume all risk during the time it took for the Vessel to reach the port limits, during which the Vessel would be under the control of the Claimant. 14. As outlined in the Claimant s Statement of Facts, 40 loading was completed on 6 October 2014 and the voyage commenced on 7 October The Statement of Facts, issued as part of maritime custom, holds a strong evidential value of its contents even in the absence of mutuality or signature. 41 The Tribunal should lean towards seeing finality in the Statement of Facts and require convincing live evidence to dispute its accuracy Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640, 656 [35] (French CJ, Hayne, Crennan and Kiefel JJ). 40 Bundle, p High Seas Venture Ltd Partnership v Sinom (Hong Kong) Ltd (The New Forest) [2008] 1 Lloyd s Rep 504, 507 [13]. 42 Ibid. 9

19 B Alternatively, laytime ended when the Vessel crossed the port limits 15. If clause 9(c)(i) is given the alternative interpretation, laytime nevertheless ended on 7 October 2014 when the Vessel crossed the commercial limits of the Port of Hades before being intercepted by the Coast Guard. 16. The majority of the evidence before the Tribunal demonstrates that the Vessel, at the time of interception, was outside of the territorial limits of Hades. At the point of interception, the Master was of this opinion, 43 and he was in the best position to most accurately determine the location of the Vessel. The from the Claimant to the Master dismissing him also notes that the Vessel was outside of Hades territorial limits. 44 The Coast Guard did not have access to navigational equipment, 45 and the letter from the Claimant to the Respondent of 15 October 2014 which maintained that the vessel had not left the Port of Hades 46 is liable to be inherently selfinterested. 17. The port is to be defined by its commercial limits, rather than its legal, fiscal or administrative limits. 47 As it was outside the territorial limits of Hades, the Vessel was at least 12 nautical miles from Hades. 48 The natural inference to be drawn is that the Vessel was therefore also past the commercial limits of the Port of Hades. 43 Bundle, pp 57, Ibid p Ibid p Ibid p Price v Livingstone (1882) 9 QBD 679, 681 (Sir George Jessel MR). 48 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) art 3. 10

20 C Alternatively, laytime was interrupted 18. If the Vessel never left the Port of Hades and laytime continued to run, the detention at the hands of the Coast Guard constituted an arrest under the Interruptions Clause and was therefore an interruption to laytime. 19. By construing the Charterparty as a whole, it is reasonable to infer that the parties intended for the word arrests to have a broad meaning. The Force Majeure Clause provides for force majeure events, and specifically refers to Court issued arrest proceedings. Without express language to the contrary, force majeure clauses do not apply to events giving rise to delays during the loading stage as there is a specific clause dealing with interruptions to laytime. 49 In this context, had the parties intended that arrests in the Interruptions Clause bear the same narrow meaning as it does in the Force Majeure Clause, they could have used similar qualifying words. 20. The word arrests in the Interruptions Clause was intended to be broader in meaning. That is, it is not restricted to arrests that are a provisional remedy to secure a maritime claim. Further, the Force Majeure Clause only applies to events outside the control of the parties to the Charterparty. The Interruptions Clause is wider, as it covers events which are within the fault of the shipowner. Accordingly, the word arrests in the Interruptions Clause should be interpreted more broadly. 21. In the maritime industry it is common practice to include exceptions for arrest, detention and restraint of princes. In the absence of specific exceptions for restraint of princes and detention, a commercial and business-like interpretation of arrests would extend to that category of events. The Interruptions Clause can therefore include situations of restraint of princes. 49 Transworld Oil Ltd v North Bay Shipping Corporation (The Rio Claro) [1987] 2 Lloyd s Rep 173; Sametiet M/T Johs Stove v Istanbul Petrol Rafinerisi A/S (The Johs Stove) [1984] 1 Lloyd s Rep 38, 41. See also Freedom Maritime Corporation v International Bulk Carriers SA and another (The Khian Captain) [1985] 2 Lloyd s Rep

21 22. The Coast Guard s direction in accordance with President Simmons orders, and subsequent detention of the Vessel constitutes an arrest under the Interruptions Clause even in the absence of physical restraint. An arrest by a government is ordinarily a restraint of princes. It is not necessary that force should be employed, or even that force should be immediately available for employment. 50 This enlivens an interruption to laytime under the Interruptions Clause meaning that laytime [is] not to count during the period of such delay or hindrance and demurrage not to accrue. D Alternatively, any delay was caused by fault of the Claimant 23. It is well established that laytime or time on demurrage thereafter will not run whilst there is delay caused by the fault of the shipowner or those for whom he is responsible. 51 The Claimant cannot benefit from their own fault via a claim for demurrage. The Master s immediate compliance with the Coast Guard s orders was the cause of the interception and detention of the Vessel from 7 October It is trite law that the shipowner is responsible for the actions of the Master of the Vessel. 24. The delay must be caused by an act of the shipowners which amounts to a breach of obligation on their part. 52 That is, the shipowner has not done his part in regard to something which it was within his power to do. 53 There will be no fault where there has been no such breach of 50 British Foreign Marine Insurance Company v Samuel Sanday & Co [1916] 1 AC 650, 672 (Lord Wrenbury); see also (Lord Parmoor), 665 (Lord Atkinson), 659 (Earl Loreburn); Rodoconachi v Elliot (1874) LR 9 CP 518; Miller v Law Accident Insurance Company [1903] 1 KB 712; The Bamburi [1982] 1 Lloyd s Rep Budgett v Binnington [1891] 1 QB 35. In Blue Anchor Line v Alfred C Toepfer (The Union Amsterdam) [1982] 2 Lloyd s Rep 432 the Queen s Bench held that a person is not entitled to take advantage of their own wrong. 52 Houlder v Weir (1905) 10 CC 228, 236 (Channell J); Gem Shipping Co of Monrovia v Babanaft (Lebanon) SARL (The Fontevivo) [1975] 1 Lloyd s Rep 339, 342 (Donaldson J). 53 Leeds Shipping Co Ltd v Duncan Fox & Co Ltd (1932) 37 CC 213, 217 (Mackinnon J). 12

22 obligation, but merely the performance of a necessary operation. 54 The Master was in breach of obligation by failing to act reasonably upon receipt of the direction of the Coast Guard. 25. In the context of agency and employment clauses, the Master is obliged to follow the orders of the charterers. However, he is not always obliged to obey the orders immediately. The Master is under a duty to act reasonably, and the circumstances in which an order is received, or the nature of it, may make it unreasonable for the Master to comply without further consideration or enquiry It has been said that [s]ome orders are of their nature such that they would, if the master were to act reasonably, require immediate compliance. Others would require a great deal of thought and consideration before a reasonable master would comply with them The Master was under an analogous duty to act reasonably when issued with the direction to return to berth from the Coast Guard. The following circumstances of which the Master was aware made it unreasonable for him to immediately follow the direction without first seeking instructions from the Claimant: a. the unrest at the Port of Hades; 57 b. the recent presidential coup; 58 c. the fact that the Coast Guard amounted to two men with a rubber dinghy 59 and a work experience student; Houlder v Weir (1905) 10 CC 228, 236 (Channell J). 55 Midwest Shipping v Henry [1971] 1 Lloyd s Rep 375, 379 (Donaldson J); followed in Kuwait Petroleum Corporation v I & D Oil Carriers Ltd (The Houda) [1994] 2 Lloyd s Rep Midwest Shipping v Henry [1971] 1 Lloyd s Rep 375, 379 (Donaldson J). 57 Bundle, pp 52, Ibid p Ibid. 13

23 d. the uncertainty as to the location of the Vessel and whether the Master was legally required to comply; and e. the absence of any circumstances which might suggest that the Vessel would lawfully have to return to the Port of Hades. 28. If the Master had contacted the Claimant, he would have been advised to continue sailing, being under no obligation to follow the direction of the Hades Coast Guard. 61 The regular contact between the Master and the Claimant suggests that such correspondence would not have taken an unreasonable amount of time. In the premises, the Master s negligence caused the detention of the Vessel, and thereby constitutes fault which precludes the Claimant from claiming demurrage. III ALTERNATIVELY, THE RESPONDENT IS NOT LIABLE TO PAY DEMURRAGE BECAUSE THE CHARTERPARTY WAS FRUSTRATED 29. The Charterparty was frustrated by the interception, return and detention of the Vessel because: (A) as at 7 October 2014, the probable delay to the Vessel was so inordinate as to frustrate the commercial purpose of the Charterparty; (B) alternatively, the Charterparty was frustrated by delay on a later date; (C) alternatively, the interception, return and detention of the Vessel gave rise to supervening impossibility of performance; (D) the supervening event was not provided for by the parties; and (E) frustration was not self-induced. 30. When frustrated, a contract is automatically, and without election of either party, brought to an end. 62 Future obligations and rights of each party not already accrued are discharged. 63 If the Charterparty was frustrated on 7 October 2014, time on demurrage was yet to accrue, and the 60 Ibid p Ibid p Scanlan s New Neon Ltd v Tooheys Ltd (1943) 67 CLR 169, 203 (McTiernan J); J Lauritzen AS v Wijsmuller BV (The Super Servant Two ) [1990] Lloyd s Rep 1, 8 (Bingham LJ). 63 Hirsch v The Zinc Corp Ltd (1917) 24 CLR 34, 64; Fibrosa v Fairbairn [1943] AC

24 Respondent is not liable to pay any sum by way of demurrage. Alternatively, if the Charterparty was frustrated on 15 October 2014 or 22 October 2014, only two days demurrage or nine days demurrage respectively are payable. A As at 7 October 2014 the probable delay to the Vessel was so inordinate as to frustrate the commercial purpose of the Charterparty 31. Delay will frustrate a contract when it becomes clear to an informed observer that it will be of such a length as to defeat the common object underlying the contract. 64 The common object of the Charterparty was to transport the Cargo from Hades to Poseidon within a reasonable time, gleaned from the genesis of the transaction, the context and the market in which the parties were operating An estimate of one month was given for the voyage, 66 which supports the common object of dispatching the Cargo promptly. This is so the Respondent could improve its standing on the stock exchange 67 and the Claimant could have use of its Vessel for subsequent voyages. Furthermore, the Respondent s object was within the contemplation of both parties, as the Respondent informed the Claimant the Vessel was required to facilitate commissioning of the LNG plant commencing on 15 September Considering this common object, an informed observer on 7 October 2014 would have concluded that the likely delay would be of a frustrating character. The probable length of the delay 64 Scanlan s New Neon Ltd v Tooheys Ltd (1943) 67 CLR 169, 223 (Williams J) citing Hirji Mulji v Cheong Yue Steamship Co Ltd [1926] AC 497, 507 (Lord Sumner). 65 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640, 657 [35] (French CJ, Hayne, Crennan, Kiefel JJ) citing Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 350 (Mason J). 66 Bundle, p Ibid p Ibid p 2. See Admiral Shipping Co v Weidner Hopkins & Co [1916] 1 KB 429,

25 compared to the anticipated period of the Charterparty was inordinate as at that date. 69 Unlike delays caused by strikes which are inherently speculative, 70 this delay was caused by a government. This raises a general presumption it was likely to continue for a significant period. 71 This is strengthened by the facts that the government s primary agenda was to stop the export of the Respondent s product 72 and that the subsequent detention continued until 5 October In any event, anticipated length is not the sole focus of the assessment. It is significant that the delay was wholly indefinite and probably long 74 and completely dependent on the actions of third parties. This was the case in Bank Line Ltd v Arthur Capel & Co, 75 where the delay was only four months in duration Accordingly, an informed observer would not need to wait and see before assessing whether the delay was of a frustrating character. 77 There was no indication at 7 October 2014 that the Vessel would be able to leave the Port of Hades in the immediate future. Given the political hostility toward the Cargo and the illegitimacy of the government, it would have appeared unlikely that the detention could be resolved through formal negotiations or official channels. 78 In these circumstances, it would be uncommercial for the fate of the parties rights and liabilities to hang in suspense Countess of Warwick Steamship Company v Le Nickel Societe Anonyme; Anglo-Northern Trading Co Ltd v Emlyn Jones & Williams [1917] 2 KB 372, 378 affirming Tamplin Steamship Co v Anglo-Mexican Petroleum Products Co [1916] 2 AC See, eg, Pioneer Shipping v BTP Tioxide (The Nema) [1982] AC Julian Cooke et al., Voyage Charters (Informa, 4th ed, 2014), [22.13]. 72 Bundle, pp 52, Which assists in showing that the probability of prolonged detention was reasonably forecasted: Bank Line Ltd v Arthur Capel & Co [1918] AC 435, 454, 460 (Lord Sumner). 74 Bank Line Ltd v Arthur Capel & Co [1918] AC 435, 460 (Lord Sumner). 75 [1918] AC Ibid. 77 Pioneer Shipping v BTP Tioxide (The Nema) [1982] AC 724, 752 (Lord Roskill). 78 Cf Edwinton Commercial Corp v Tsavliris Russ (Worldwide Salvage & Towage) Ltd (The Sea Angel) [2007] 2 Lloyd s Rep 510, 538 [117] (Rix LJ). 79 Embiricos v Sydney Reid & Co [1914] 3 KB 45, 59 (Scrutton J). 16

26 B Alternatively, the Charterparty was frustrated on a later date 36. Subsequent evidence which came to light strengthened the presumption that the delay was frustrating in nature. On 15 October 2014, correspondence indicates that the Claimant anticipated a long delay and was concerned that the Cargo would be drawn upon over time to be used in emerging Hades energy sectors. 80 On 22 October 2014, the Respondent made the Claimant aware it would suffer significant losses if the Cargo were not delivered on time Within this time, the Vessel continued to remain within the control of the Hades Government with no prospects of imminent release. The parties changed expectations and probable forecasts heightened the probability of inordinate delay, and an informed observer would consider it to be of a frustrating character. In this event, a negligible sum in demurrage would be payable to the Claimant. C The interception, return and detention of the Vessel gave rise to supervening impossibility of performance 38. An agreement is frustrated where the parties enter into it on a common assumption about a future fact that proves to be mistaken. 82 The parties entered into the Charterparty on the common assumption that the Vessel would not be subject to interception at the Port of Hades. This assumption was central to performance 83 of the Charterparty, as the agreement was to transport Cargo from Hades to Poseidon rendering it necessary to be able to leave Hades with the Cargo. 80 Bundle, p Ibid p Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 358 (Mason J); Tamplin Steamship Co v Anglo-Mexican Petroleum Products Co [1916] 2 AC 397, 406; ooh! Media Roadside Pty Ltd (formerly Power Panels Pty Ltd) v Diamond Wheels Pty Ltd (2011) 32 VR 255, 272 [68] (Nettle JA); Hillcrown Pty Ltd v O Brien [2011] QCA 129 (19 April 2011) [27] (Chesterman JA). 83 The common assumption must be about a future fact which is essential to performance: Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 357 (Mason J) citing with approval Davis Contractors Ltd v Fareham UDC [1956] AC 696 (Lords Reid and Radcliffe). 17

27 39. This assumption is found in the terms of the Charterparty and by recourse to surrounding circumstances, 84 such as correspondence between the parties. 85 Mutually known facts 86 demonstrate there was no indication the Vessel would be able to leave Hades, 87 and the parties also contemplated significant delay was likely. 88 The common assumption as to the Vessel s ability to leave Hades was a mistake as to a future fact, and therefore performance is rendered radically different from that which was undertaken by the contract. 89 D The supervening event was not provided for by the parties 40. A contract will not be frustrated where the parties have expressly provided in their contract for the consequences of the particular event that has occurred. 90 Nevertheless, frustration may still occur where the provisions of the contract do not in terms apply to the situation which has arisen, or the degree or disruption which has occurred is greater than that which the clause contemplates The Demurrage Clause, Interruptions Clause or Force Majeure Clause do not provide for the delay resulting from the interception, return and detention of the Vessel. 84 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 358 (Mason J); Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 89 ALJR 990, 998 [49]-[50] (French CJ, Nettle and Gordon JJ). 85 Bundle, p Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, (Mason J); Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 89 ALJR 990, 1006 [108] (Kiefel and Keane JJ). 87 Bundle, p 52. The President s reported intentions were of permanently stopping the export of HLNG from Hades. 88 Ibid p 60. Forecasted expectations are relevant for the Tribunal s assessment as to whether frustration occurred: Edwinton Commercial Corp v Tsavliris Russ (Worldwide Salvage & Towage) Ltd (The Sea Angel) [2007] 2 Lloyd s Rep 517, [111] (Rix LJ). 89 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 357 (Mason J). 90 Joseph Constantine Steamship Line Ltd v Imperial Smelting Corp Ltd [1942] AC 154, Bank Line Ltd v Arthur Capel & Co [1918] AC 435; Fibrosa v Fairbairn [1943] AC 32, 40 (Viscount Simon); The Penelope [1928] P 180; Anglo Northern Trading v Emlyn Jones & Williams [1918] 1 KB 372; Tatem v Gamboa [1939] 1 KB

28 a. The existence of the Demurrage Clause does not preclude the Charterparty being frustrated due to delay resulting from a supervening event during the loading stage. 92 b. In Submission II, the Respondent states that the relevant events on 7 October 2014 fell within the Interruptions Clause and thus afforded an exception to laytime. If that submission is not accepted, the presence of the Interruptions Clause cannot be relied upon to suggest that the Charterparty provides for the supervening event. c. The Force Majeure Clause does not provide for the supervening event because it lacks the necessary specificity and precision to apply to delays during the loading stage. 93 E Frustration was not self-induced 42. The frustrating event must arise without blame or fault by the party seeking to rely on the contract being frustrated. 94 The Respondent was not at fault in providing cargo under the Charterparty which was the subject of political upheaval as well as the motivating reason behind President Simmons order to the Coast Guard to detain the vessel. Provided that the carriage of its cargo does not violate a municipal law, a charterer is not under a duty to warn a shipowner that their cargo is liable to cause delay Adelfamar S.A. v Silos Mangimi Martini SPA, (The Adelfa) [1988] 2 Lloyd s Rep 466, Ellis Shipping Corporation v Voest Alpine Intertrading (The Lefthero) [1992] 2 Lloyd s Rep 109, 112 (Lloyd LJ); Transworld Oil Ltd v North Bay Shipping Corporation (The Rio Claro) [1987] 2 Lloyd s Rep 173; Sametiet M/T Johs Stove v Istanbul Petrol Rafinerisi A/S (The Johs Stove) [1984] 1 Lloyd s Rep 38, Bank Line Ltd v Arthur Capel & Co [1918] AC 435, 452; Paal Wilson and Co A/S v Partenreederei Hannah Blumenthal (The Hannah Blumenthal) [1983] 1 AC 854, 909; J Lauritzen AS v Wijsmuller BV (The Super Servant Two ) [1990] 1 Lloyd s Rep 1, 8 (Bingham LJ). 95 Bunge SA v ADM Do Brasil LTDA [2009] 2 Lloyd s Rep 175, 187 [36]. 19

29 43. There is no evidence to suggest that it was unlawful to transport HLNG. Even if it is assumed that President Simmons order to the Coast Guard to return the Vessel to berth was lawful, 96 the order did not directly prohibit the carriage of HLNG. In any event, the Claimant knew that the Cargo was politically dangerous. 97 The Vessel was specifically designed to transport HLNG. 98 The Claimant assumed any risk relating to the Cargo. IV THE RESPONDENT IS ENTITLED TO A SALVAGE REWARD 44. The Respondent is entitled to a salvage reward because: (A) the Respondent and Hestug are the same legal entity; (B) the Vessel was salvable property in danger at sea; (C) the Respondent s services were successful in rescuing the Vessel; (D) the Respondent s services exceeded due performance of the contract; and (E) the Respondent is nonetheless a volunteer under the general law of salvage. 45. The Respondent towed the Claimant s Vessel to safety when its propeller shafts broke, likely saving many millions of dollars worth of cargo and vessel. 99 Under the Salvage Convention, 100 an award is contingent on the following criteria: 101 a. the salvor undertakes any act or activity... to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever ; b. the services render a useful result ; and 96 Bundle, p Ibid p Ibid p Ibid pp 71, The International Convention on Salvage 1989, opened for signature 28 April 1989, 1953 UNTS 165 (entered into force 14 July 1996) ( Salvage Convention ). It applies whenever proceedings are brought in England: Merchant Shipping Act 1995 (UK) s Respectively, Salvage Convention arts 1(a), 12(1) and

30 c. the services rendered exceed what can be reasonably considered as due performance of a contract entered into before the danger arose. A The Respondent and Hestug are the same legal entity 46. Hestug is a business of the Respondent rather than its subsidiary. The Respondent s letter of 23 November 2015 informed the Claimant that its own tugs undertook the salvage efforts 102 and this is confirmed in the Respondent s counterclaim. 103 The Hades Advocate also stated that the Respondent has traditionally been in the business of port management and tug services at Hades From this evidence, it is reasonable to infer that the Respondent owns the tugs, and it operates a towing business under the name Hestug. B The Vessel was salvable property in danger at sea 48. A ship falls under the Salvage Convention s definition of property. 105 Further, the Vessel was in danger at the time of being salved due to its propeller shafts snapping. The Vessel was unable to continue her voyage and was unable to effectively address any emergencies that may have arisen Bundle, p Ibid pp Ibid p Salvage Convention art 1(c). 106 Andreas Sobonis v The National Defender, National Transport Corporation [1970] 1 Lloyd s Rep

31 C The Respondent s services were successful in rescuing the Vessel 49. The Respondent s tugs rendered assistance to the Vessel, likely saving many millions of dollars worth of cargo and vessel. 107 The Respondent s salvage operation therefore had a useful result. 108 D The Respondent s services exceeded due performance of the contract 50. The Respondent s services exceeded due performance under both the Charterparty and the towage contract. According to article 17 of the Salvage Convention, a person is a salvor if the services they have rendered exceed what can be reasonably considered as due performance of a contract entered into before the danger arose. Article 17 is the only restriction 109 on who is entitled to an award for salvage and takes precedence 110 over any pre-existing case law to the contrary. 51. The Respondent s towage contract concluded upon the towline being released. Given that the towage contract was discharged by performance, the subsequent assistance provided by the Respondent s tugs necessarily exceeded due performance of that contract. Further, when the propeller shafts broke, the Vessel had just embarked on its voyage stage, when nothing was required of the Respondent under the Charterparty. 107 Ibid pp 71, Salvage Convention art 12(1). 109 Martin Davies, What happened to the Salvage Convention 1989? (2008) 39(4) Journal of Maritime Law & Commerce 463, 486; Nicholas Gaskell, The 1989 Salvage Convention and the Lloyd s Open Form (LOF) Salvage Agreement 1990 (1991) 16 Tulane Maritime Law Journal 1, Specifically where there is a conflict: Transnet v The MV Cleopatra Dream (The Cleopatra Dream) [2011] ZASCA 12 (11 March 2011) [25]. 22