th annual international maritime arbitration moot ... · 16th annual international maritime...
TRANSCRIPT
16th ANNUAL INTERNATIONAL MARITIME ARBITRATION MOOT COMPETITION
2015
SRI LANKA LAW COLLEGE TEAM NO. 18
IN THE MATTER OF AN ARBITRATION HELD AT LONDON
CLAIMANT DEFENDANT
WESTERN TANKERS INC LDT PTE
MEMORANDUM FOR THE CLAIMANT
TEAM MEMBERS
DAMINDA WIJAYARATNE
HIMANTHA WICKREMARATNE
NAVEEN MAHA ARACHCHIGE
PRASHAN GUNARATNA
i
Table of Contents
INDEX OF AUTHORITIES………………..…………………………………………………………………………ii
STATEMENT OF FACTS .................................................................................................................................. 1
QUESTIONS PRESENTED .......................................................................................................................................... 2
ARGUMENTS ADVANCED ......................................................................................................................................... 3
1 The Tribunal has jurisdiction to determine the matter. .................................................................................. 3
1.1 No agreement reached on the seat of arbitration prior to the 26th of May 2014. .......................................... 3
1.2 The Charter-party recognises London as the seat of Arbitration .................................................................. 3
1.3 The Defendants are barred from contradicting the Charter-party based on previous negotiations. .............. 4
1.4 Tort of Fraud is admissible since it‟s a „dispute arising out of the charter‟ .................................................. 5
2 Charterers are liable for directing the ship to an unsafe discharge location in international waters and
for the unauthorized discharge of cargo thereto. ..................................................................................................... 6
2.1 ASA2 is the Agent of Charterers .................................................................................................................. 6
2.2 ASA2 in the capacity of Agent of Charterers has not exercised due diligence in directing the vessel to an
Alternative discharge location................................................................................................................................... 7
2.3 Charterers breached obligations independent of any relationship of agency between the Charterers and
ASA2 ………………………………………………………………………………………………………………………………………………………………11
2.4 Master has acted diligently in accordance with the Charterparty. .............................................................. 12
3 Hire is due and owing from the 3rd
of July 2014. ............................................................................................ 13
3.1 On its terms, hire was due and owing by the Charterers under the Charterparty by 3rd
July 2014 and
thereafter. ................................................................................................................................................................ 14
3.2 The Charter-party was not frustrated by the 4 July 2014............................................................................ 14
3.3 The Vessel remains on hire from 4th
July onwards since the Master complied with the duties and orders
imposed on him. ……….…………………………………………………………………………………………..14
4 Charterers are liable in Tort for the fraudulent misrepresentations made to the Owners. ....................... 15
5 The Western Dawn was fit for service as required under the Charter-party ............................................. 18
5.1 The master competently followed the instructions given to the vessel by the Charterer ............................ 18
5.2 The master followed anti-piracy precautions as far as reasonably practicable ........................................... 19
6 Owners not responsible for the conversion of Cargo ..................................................................................... 19
6.1 Actions of the Owners were accidental and not deliberate. ........................................................................ 19
7 Owners are not responsible for the loss of cargo in the capacity of a bailee................................................ 20
7.1 Standard expected of the Owners in the capacity of Bailee has been displayed ........................................ 20
PRAYER ..................................................................................................................................................................... 21
ii
INDEX OF AUTHORITIES
CASES
Allen v Pink (1838) 4 M & W 140______________________________________________________________________5
Antec International Ltd v Biosafety USA Inc [2006] EWHC 47 (Comm) (27 January 2006)________________________4
Bunge S.A. v Kyla Shipping Company Limited [2012] EWHC 3522 (Comm)___________________________________15
Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066 [80 Cal.Rptr.2d 704]__________________________________20
Campbell Discount Co v Gall [1961] 1 QB 431__________________________________________________________5
Chartbrook Ltd v Persimmon Homes Ltd [2009] 3 WLR 267________________________________________________4
City and Westminster Properties (1934) Ltd. V Mudd [1959] Ch 129_________________________________________5
Constantine v Imperial Smelting Corp [1942] AC 154_________________________________________________14, 15
David Duncan v. Daniel Augustus Koster (The Teutonia1)(1872)LR 4 PC 171_________________________________7
Davis Contractors Ltd v Fareham Urban District Council [1956] UKHL 3___________________________________15
Derry v Peek (1889) UKHL 1, [1889] LR 14 App Cas 337________________________________________________16
Donoghue (or McAlister) v Stevenson, [1932] All ER Rep 1______________________________________________ 18
Felthouse v Bindley, [1862] EWHC CP J35, [1862] 142 ER 1037___________________________________________1
Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480______________________________6
Gillespie Bros & Co. v Cheney, Eggar and Co. [1896] 2 QB 59____________________________________________5
Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549______________________________________________________6
Herne Bay Steamboat Co v Hutton [1903] 2 KB 683____________________________________________________14
Hutton v Warren (1836) 1 M & W 466________________________________________________________________5
Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896_________________________4
Jacobs v Batavia and General Plantations Trust [1924] 1 Ch 287__________________________________________4
K/S Penta Shipping A/S v Ethiopian Shipping Lines Corporation (The Saga Cob) [1991] 2 Lloyd's Rep 545_________8
Kodros Shipping Corp v Empresa Cubana de Fletes (The Evia) (No 2) [1982] 2 Lloyd's Rep 307_________________7
Kuwait Airways v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19; [2002] 2 AC 883_________________________20
Leeds Shipping Co v Société Française Bunge (The Eastern City) [1958] 2 Lloyd’s Rep 127_____________________7
Mann v Nunn (1874) 30 LT 526_____________________________________________________________________5
Maritime National Fish v Ocean Trawlers [1935] AC 524_______________________________________________15
iii
Nayyar & Ors v Sapte & Anor [2009] EWHC 3218 (QB)___________________________________________________6
Ocean Tramp Tankers Corp v V/O Sovfracht (The Eugenia) [1963] 2 Lloyd’s Rep
381_____________________________________________________________________________________________14
Oxford Shipping Co. LTD. V. Nippon Yusen Kaisha (The Eastern Saga) [1984] 2 Lloyd’s Rep 373 __________________4
Paal Wilson & Co v Partenreederei Hannah Blumenthal (The Hannah Blumenthal) [1983] 1 AC 854 ____________3, 14
Port Swettenham Authority v T W Wu & Co (M) Sdn Bhd [1978] 3 All ER 337_________________________________21
Premium Nafta Products Limited and others v. Fili Shipping Company Limited and others [2007] UKHL
40______________________________________________________________________________________________5
Pym v Campbell (1856) 6 E & B 370__________________________________________________________________5
Scherk v. Alberto-Culver Co., (1974) 417 U.S. 506_______________________________________________________4
Securities Ltd v Scrimgeour Vickers (Asset Managament) Ltd [1997] 1 BCLC 350_____________________________18
Smith v Chadwick (1884) 9 App Cas 187______________________________________________________________16
Taylor v. Forte Hotels International (1991) 235 Cal.App.3d 1119, 1124 [1 Cal.Rptr.2d 189]____________________20
The Bremen v. Zapata Off-Shore Company, (1972) 407 U.S. 1_____________________________________________4
Tsakiroglou & Co Ltd v Noblee Thorl GmbH [1962] AC 93______________________________________________14
Unterweser Reederei GmbH v Zapata Off-Shore Co (The Chaparral) [1968] 2 Lloyd's Rep
158___________________________________________________________________________________________4
STATUTES
Arbitration Act 1996 (UK)_________________________________________________________________________4
BOOKS
A.M. Jones and M.A. Dugdale, Clerk & Lindsell on Torts, 17th ed (London: Sweet and Maxwell, 1995)___________20
Ewan Mckendrick, Contract Law, 9th
ed (United Kingdom: palgrave macmillan law masters, 2011)_________3,4,14,18
John f. Wilson, Carriage of Goods by the Sea, 7th
ed (Great Britain: Pearson Education Limited, 2010) __________3,14
Reynolds, F. M. B., Graziadei, M., & Bowstead, W, Bowstead and Reynolds on Agency, 18th ed (London: Sweet &
Maxwell, 2006)._________________________________________________________________________________ 6
iv
ONLINE MATERIAL
International Maritime Organization, REPORTS ON ACTS OF PIRACY AND ARMED ROBBERY AGAINST SHIPS: Acts
reported during January 2014, MSC.4/Circ.206 (7 March 2014), online:
<http://www.imo.org/OurWork/Security/PiracyArmedRobbery/Reports/Documents/206-Jan2014.pdf>______________9
International Maritime Organization, REPORTS ON ACTS OF PIRACY AND ARMED ROBBERY AGAINST SHIPS: Acts
reported during February 2014, MSC.4/Circ.207 (12 May 2014), online:
<http://www.imo.org/OurWork/Security/PiracyArmedRobbery/Reports/Documents/207-Feb2014.pdf >_____________9
International Maritime Organization, REPORTS ON ACTS OF PIRACY AND ARMED ROBBERY AGAINST SHIPS: Acts
reported during March 2014, MSC.4/Circ.209 (29 May 2014), online:
<http://www.imo.org/OurWork/Security/PiracyArmedRobbery/Reports/Documents/209-March2014.pdf>___________9
International Maritime Organization, REPORTS ON ACTS OF PIRACY AND ARMED ROBBERY AGAINST SHIPS: Acts
reported during April 2014, MSC.4/Circ.210 (29 May 2014), online:
<http://www.imo.org/OurWork/Security/PiracyArmedRobbery/Reports/Documents/210-April2014.pdf>_____________9
International Maritime Organization, REPORTS ON ACTS OF PIRACY AND ARMED ROBBERY AGAINST SHIPS: Acts
reported during May 2014, MSC.4/Circ.211 (12 November 2014), online:
<http://www.imo.org/OurWork/Security/PiracyArmedRobbery/Reports/Documents/211-May2014.pdf>_____________9
International Maritime Organization, REPORTS ON ACTS OF PIRACY AND ARMED ROBBERY AGAINST SHIPS: Acts
reported during June 2014, MSC.4/Circ.212 (12 November 2014), online:
<http://www.imo.org/OurWork/Security/PiracyArmedRobbery/Reports/Documents/212-June2014.pdf>_____________9
Best Management Practices for Protection against Somalia Based Piracy (Scotland: Witherby Publishing Group Ltd,
2011), online: <http://www.mschoa.org/docs/public-documents/bmp4-low-res_sept_5_2011.pdf?sfvrsn=0> _________19
1
STATEMENT OF FACTS
The Agreement
The Claimants, Western Tankers Inc (Owners) let the vessel, the „Western Dawn‟ on a Time charter-
party for a period of 3 months to the Defendants, Less Dependable Traders (Charterers). The vessel,
left the loading port, Singapore PB Terminal on the 8th
June 2014, was ordered to proceed to OPL
Luanda for discharge.
Taking over by ASA2
While the vessel was en route to the discharge location, passing Cape Town on the 28th
of June, the
vessel was contacted by ASA2, informing that the control of the vessel has passed on to the same
acting on behalf of the Charterers.
Alternate Discharge Location
The vessel was then instructed to proceed to an alternate discharge location, where the vessel would
be provided with an overdue bunker supply and to perform an STS discharge of 70,000 MT of Gasoil,
with the knowledge of the Charterers who were informed of the arrangement.
Pirate Attack
When the vessel arrived at the instructed discharge location by the 4th of July 2014, the vessel
„Antelope‟ which was scheduled to perform the operation was not present. During the process of
expecting Antelope, the vessel became the victim of a pirate attack which resulted in damage to the
vessel and the loss of 28,000 MT of Gasoil. By the 17th
Master having taken control of the vessel,
proceeded to Cape Town for assistance in the absence of any instructions by the charterers.
2
QUESTIONS PRESENTED
I. Whether the Tribunal has jurisdiction to determine the matter?
II. Is the claim relating to fraud admissible in this arbitration as „arising out of the charter-party‟?
III. Whether ASA2 is the Agent of the Charterer?
IV. Has ASA2 in the capacity as the Agent of Charterers, exercised due diligence in directing the
vessel to a safe location?
V. Even if ASA2 is not recognized to be the Agent of Charterers, is the Charterer still liable for not
directing the vessel to a safe location?
VI. Has the Master has acted diligently in accordance with the Charter-party after the Pirate attack?
VII. Is the Hire is due and owing from the 3rd
of July 2014?
VIII. Is the Charterer liable in tort of fraud for Misrepresentations made?
IX. Is the Western Dawn fit for service as required under the Charter-party?
X. Is the Owner responsible for the conversion of Cargo or for the breach of duty as Bailee of the
cargo?
3
ARGUMENTS ADVANCED
1 THE TRIBUNAL HAS JURISDICTION TO DETERMINE THE MATTER.
1.1 NO AGREEMENT REACHED ON THE SEAT OF ARBITRATION PRIOR TO THE 26TH
OF MAY 2014.
1. The correspondence provides that the Charterer has indicated a lack of interest to appoint London
as the seat and forum of arbitration on the 23rd
of May 2014.1
2. However, this intention was not communicated by the Charterers or the Shipping agent to the
Owner.2 Therefore the Owner was unaware of this intention of the Charterer which prevented any
agreement being constructed between the parties on the 23rd
of May 2014.3
3. Owners submit that even if the intention of the Charterers is deemed to be within the knowledge
of the Owner, Owners silence does not amount to any implied acceptance concluding an
agreement not to base London as the seat of Arbitration4. The Owner has not acted in any manner
in reliance of the purported agreement.5
1.2 THE CHARTER-PARTY RECOGNISES LONDON AS THE SEAT OF ARBITRATION.
4. The Owners and the Charterers freely negotiated a contract providing that the arbitration seat for
settlement of disputes arising out of this charter shall be at London and the parties shall be
governed according to English Law.6
1 Facts, page 2: Email from Charles at LDTP to Bill at IMWMB
2 Facts, page 3: Email from Bill at IMWMB to Oliver at WTI
3 Ewan Mckendrick, Contract Law, 9
th ed (United Kingdom: Palgrave Macmillan law masters, 2011) at 35 [Mckendrick].
4 Ibid at 37; Felthouse v Bindley, [1862] EWHC CP J35, [1862] 142 ER 1037; Paal Wilson & Co v Partenreederei
Hannah Blumenthal [The Hannah Blumenthal] [1983] 1 AC 854 5 Mckendrick, Supra note 3 at 38.
6 Shelltime4 Standard Charter-party, Clause 46 (a) and (b).
4
5. The charter-party agreed by both parties on the 26th
of May 2014 is the final and conclusive
charter-party agreement to which both parties had given their unqualified acceptance to be bound
by the terms in the charter-party.7
6. The arbitration clause in the Charter-party is intended to be part of the agreement reached between
the Charterers and the Owner on the 26th
of May 20148, the absence of any specific rectification
regarding this on or after the 26th
May 2014 indicates the agreement to be bound according to the
arbitration agreement9. Therefore the parties will be bound to their contractual choice of English
jurisdiction.10
Therefore it submitted that the appropriate seat of arbitration is at London.11
1.3 THE DEFENDANTS ARE BARRED FROM CONTRADICTING THE CHARTER-
PARTY BASED ON PREVIOUS NEGOTIATIONS.
7. The parties have embodied the charter-party agreement inclusive of the arbitration clause into a
written document12
. The document is the sole repository of the terms of the contract13
.
8. The claimant invoke the parole evidence rule to preclude the Charterers from adducing extrinsic
evidence to add, vary or contradict the written document14
or interpreting the document based on
past negotiations15
which have been ultimately left out of the agreement.
7 Procedural order No.2, page 2, paragraph 20; Facts, page 5: Email (Fully fixed Recap) from Bill at IMWMB Charles at
LDTP and Oliver at WTI. 8 Arbitration Act 1996 (UK), Section 6; Mckendrick, Supra note 3 at 38.
9 Procedural order No.2, page 2, paragraph 20; Facts, page 5: Email (Fully fixed Recap) from Bill at IMWMB Charles at
LDTP and Oliver at WTI. 10
Antec International Ltd v Biosafety USA Inc [2006] EWHC 47 (Comm) (27 January 2006); Bremen v. Zapata Off-
Shore Company, (1972) 407 U.S. 1; Oxford Shipping Co. LTD. V. Nippon Yusen Kaisha (The Eastern Saga) [1984] 2
Lloyds Rep 373, at 379; Scherk v. Alberto-Culver Co., (1974) 417 U.S. 506 11
Shelltime4 Standard Charter-party, Clause 46 (a) and (b); Unterweser Reederei GmbH v Zapata Off-Shore Co (The
Chaparral) [1968] 2 Lloyd's Rep 158 12
Shelltime4 Standard Charter-party, Clause 46 (a) and (b). 13
Jacobs v Batavia and General Plantations Trust [1924] 1 Ch 287; Procedural order No.2, page 2, paragraph 20; Facts,
page 5: Email (Fully fixed Recap) from Bill at IMWMB Charles at LDTP and Oliver at WTI. 14
Mckendrick, Supra note 3 at 153. 15
Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896; Chartbrook Ltd v Persimmon
Homes Ltd [2009] 3 WLR 267.
5
9. As established under sections 1.1 and 1.2 of this memorial, the claimant reiterate that an
agreement regarding the jurisdiction was only established on the 26th of May 2014.16
10. The charter-party agreement on the 26th
of May 2014 is the final and conclusive agreement with a
complete integration of the terms between the parties17
. In any event, the terms relating to the
jurisdiction of the forum of arbitration are complete.18
11. The claimant submits that in the present instance the rule is not subject to any exceptions
established by the authorities.19
1.4 TORT OF FRAUD IS ADMISSIBLE SINCE IT’S A ‘DISPUTE ARISING OUT OF THE
CHARTER’.
12. The term „disputes arising out of this charter‟, in the arbitration clause of the charter-party
agreement20
should be construed to include any dispute arising out of the relationship into which
the parties have entered. Any such dispute should be determined by the same tribunal.21
13. Any contrary construction should only be permitted where the language unequivocally specifies
limitations to the tribunal‟s jurisdiction.22
14. Further it is submitted that a high degree of precision is exercised in formulating clauses which
impose mutual agreements and obligations23
. The wording of the arbitration agreement does not
exclude disputes relating to Tort of Fraud on any ground whatsoever to be determined by the
16
Ibid 17
Procedural order No.2, page 2, paragraph 20; Facts, page 5: Email (Fully fixed Recap) from Bill at IMWMB Charles at
LDTP and Oliver at WTI. 18
Shelltime4 Standard Charter-party, Clause 46 (a) and (b). 19
Allen v Pink (1838) 4 M & W 140; Gillespie Bros & Co. v Cheney; Eggar and Co. [1896] 2 QB 59; Hutton v Warren
(1836) 1 M & W 466; Campbell Discount Co v Gall [1961] 1 QB 431; Pym v Campbell (1856) 6 E & B 370; Mann v
Nunn (1874) 30 LT 526; City and Westminster Properties (1934) Ltd. V Mudd [1959] Ch 129. 20
Shelltime4 Standard Charter-party, Clause 46 (a) and (b). 21
Premium Nafta Products Limited and others v. Fili Shipping Company Limited and others (“Fiona Trust”) [2007]
UKHL 40. 22
Ibid at para 26 23
Ibid.
6
tribunal. Where the wording of the charter-party agreement does not exclude the Tort of Fraud
claim the clause extends and intends that the Tort of Fraud is a dispute arising out of the charter.
2 CHARTERERS ARE LIABLE FOR DIRECTING THE SHIP TO AN UNSAFE
DISCHARGE LOCATION IN INTERNATIONAL WATERS AND FOR THE
UNAUTHORIZED DISCHARGE OF CARGO THERETO.
2.1 ASA2 IS THE AGENT OF CHARTERERS
15. Where a person, by words or conduct, represents or permits it to be represented that another
person has authority to act on his behalf, he is bound by the acts of that person with respect to
anyone dealing with him as an agent on the faith of any such representation, to the same extent as
if such other person had the authority that he was represented to have, even though he had no such
actual authority.24
16. The representation by the principal to the third party may be express, or implied from a course of
dealing. Further, it is submitted that the agent needs not be aware of the existence of the
representation made by the principal to the third party but he must not purport to make the
agreement as principal himself.25
17. It is submitted that ASA2 is the agent of the Charterers by reason of the conduct of the Charterers
and representations made regarding the authority of ASA2 to act on behalf of the Charterers.
When Charterers were informed of the STS transfer with the vessel Antelope of ASA2 at a new
discharge location (2 STS)26
, Charterers affirming the arrangement instructed to continue liaising
24
Reynolds, F. M. B., Graziadei, M., & Bowstead, W, Bowstead and Reynolds on Agency, 18th ed (London: Sweet &
Maxwell, 2006) at para. 8-013; Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480
[Freeman & Lockyer]; Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549 and Nayyar & Ors v Sapte & Anor [2009]
EWHC 3218 (QB). 25
Freeman & Lockyer, supra note 24 at page 504 26
Facts, page 38: Email from Master Stelios to Chris at LDTP
7
with the STS Coordinator,27
confirming the belief held by the Owners with regard to the authority
of ASA2 to act as Agent for Charterers. This amounts to a permission by the Charterers for
ASA2 to act on behalf of the Charterers and further ASA2‟s continuous assertion to act on behalf
of the Charterers and not as the Principal himself28
, fulfills the necessary requirements to confer
„apparent authority‟ on ASA2 to act as the agent of the Charterers.
18. It is submitted that in light of these circumstances, the Charterers are estopped29
from denying the
relationship of Agency between Charterers and ASA2 resulting in the creation of an Agency by
Estoppel thus making the Charterers liable to all activities performed by ASA2 on behalf of the
Charterers.
2.2 ASA2 IN THE CAPACITY OF AGENT OF CHARTERERS HAS NOT EXERCISED DUE
DILIGENCE IN DIRECTING THE VESSEL TO AN ALTERNATIVE DISCHARGE
LOCATION.
19. The Charterer is bound to use due diligence to ensure that the vessel is only employed between
and at safe places at sea.30
20. The general standard of safety expected at a port is attributable to any other location in the sea as
well.31
A port will not be safe unless, in the relevant period of time, the particular ship can reach
it, use it and return from it without, in the absence of some abnormal occurrence, being exposed to
danger which cannot be avoided by good navigation and seamanship.32
It is therefore contended
27
Facts, page 40: Email from Chris at LDTP to Master Stelios 28
Facts, page 35: Email from William Anya at ASA2 to Master Stelios 29
Freeman and Lockyer, supra note 24 at page 504 points out agency created by apparent authority is based on estoppel
and not the consent of the principal, who may not have intended to create an agency 30
Shelltime4 Standard Charter-party, Clause 4(c) 31
Ibid 32
Leeds Shipping Co v Société Française Bunge (The Eastern City) [1958] 2 Lloyd‟s Rep 127 at page 131; J. Bond Smith,
Jr., Time and Voyage Charters: Safe Port/Safe Berth, 49 Tul.L. Rev. 860 (1975); Kodros Shipping Corp v Empresa
Cubana de Fletes (The Evia) (No 2) [1982] 2 Lloyd's Rep 307[The Evia]; The Teutonia (1872) LR 4 PC 171.
8
that directing the vessel to a location where the threat of piracy is high; is similarly a risk which
makes a port or any other location to which a ship is directed to, unsafe.
21. The nature of the obligation of the Charterers does not amount to a continuing guarantee of the
port‟s safety but referred only to the prospective safety of the port at the time of nomination.33
But
if such guarantee is given to the Owners by the Charterers, Charterer would be liable for the
prevailing characteristics of the port at the time of arrival irrespective of whether they were
known to him, only excluding „unexpected and abnormal‟ events34
. The test is whether a
reasonably careful Charterer would on the facts known have concluded that the port was
prospectively unsafe at the time of nomination.35
22. It is submitted that a higher degree of due diligence is required where there is a real danger to
human lives from a belligerent opposition. Seriousness of consequences in such case should take
priority over the remoteness of the chance.36
23. Judicial opinion dictates that in circumstances where the port becomes actually or prospectively
unsafe to the knowledge of the Charterer after the nomination is done, while the vessel is sailing
towards it, or even after it has berthed within the port, Charterers are obliged to cancel the original
nomination and order the ship out of the danger.37
24. Therefore to correctly read the Charter-party obligation in light of the relevant jurisprudence
would be to question at the time of nomination of the Alternative discharge location by the ASA2
as the Agent of the Charterers, whether they have exercised due diligence expected of a
reasonably careful agent in directing the vessel to a safe discharge location.
33
The Evia, Supra note 32 34
Ibid. 35
K/S Penta Shipping A/S v Ethiopian Shipping Lines Corporation (The Saga Cob) [1991] 2 Lloyd's Rep 545. 36
Ibid 37
Ibid at page 320 per Lord Roskill
9
25. It is understood that by 2014, Maritime Piracy attacks surrounding Angolan coast has increased.
Reports of increased piracy activity are visible in International waters off Angola and
Cameroon 38
, off the coast of Nigeria, Congo, Togo, Sierra Leone, Ghana and Côte d‟Ivoire
39.
These attacks surrounding the West African region is sufficiently available public knowledge that
a reasonably careful Charterer would be required to take into consideration when directing a
vessel to a discharge location.
26. As a result of proceeding to the alternate discharge location given to the master by ASA2 acting
on behalf of the Charterer, the vessel became the victim of a dangerous pirate attack causing
injury to persons on board and damages to the vessel.40
27. It is submitted that instructions to proceed to the alternate discharge location given by ASA2 on
behalf of the Charterers were given without exercising due diligence as is expected of reasonably
careful Charterers and thus has done so in breach of Charter-party obligations owed to the
Owners41
. No action has been taken to inform Owners of any actual or prospective safety of the
discharge area, during any time of the voyage thus not complying with the obligation owed42
.
38
International Maritime Organization, REPORTS ON ACTS OF PIRACY AND ARMED ROBBERY AGAINST
SHIPS: Acts reported during January 2014, MSC.4/Circ.206 (7 March 2014), online:
<http://www.imo.org/OurWork/Security/PiracyArmedRobbery/Reports/Documents/206-Jan2014.pdf> 39
International Maritime Organization, REPORTS ON ACTS OF PIRACY AND ARMED ROBBERY AGAINST
SHIPS: Acts reported during February 2014, MSC.4/Circ.207 (12 May 2014), online: <
http://www.imo.org/OurWork/Security/PiracyArmedRobbery/Reports/Documents/207-Feb2014.pdf>
International Maritime Organization, REPORTS ON ACTS OF PIRACY AND ARMED ROBBERY AGAINST SHIPS: Acts
reported during March 2014, MSC.4/Circ.209 (29 May 2014), online: <
http://www.imo.org/OurWork/Security/PiracyArmedRobbery/Reports/Documents/209-March2014.pdf>
International Maritime Organization, REPORTS ON ACTS OF PIRACY AND ARMED ROBBERY AGAINST SHIPS: Acts
reported during April 2014, MSC.4/Circ.210 (29 May 2014), online: <
http://www.imo.org/OurWork/Security/PiracyArmedRobbery/Reports/Documents/210-April2014.pdf>
International Maritime Organization, REPORTS ON ACTS OF PIRACY AND ARMED ROBBERY AGAINST SHIPS: Acts
reported during May 2014, MSC.4/Circ.211 (12 November 2014), online: <
http://www.imo.org/OurWork/Security/PiracyArmedRobbery/Reports/Documents/211-May2014.pdf>
International Maritime Organization, REPORTS ON ACTS OF PIRACY AND ARMED ROBBERY AGAINST SHIPS: Acts
reported during June 2014, MSC.4/Circ.212 (12 November 2014), online:
<http://www.imo.org/OurWork/Security/PiracyArmedRobbery/Reports/Documents/212-June2014.pdf> 40
Facts, page 41 and 42: Email from Master Stelios to Oliver at WTI copied to Chris at LDTP 41
Shelltime4 Standard Charter-party, Clause 4(c). 42
Ibid
10
28. Further it is contended that given the frequency of the incidents of piracy attacks and the generally
available information on these incidents, such an attack cannot be considered an unexpected and
abnormal event.
29. Owners knowledge and consent to discharge the cargo initially at Luanda cannot be extended to
apply to the alternate discharge locations as the difference in distance between the original
discharge location (OPL Area 1 as 9deg 00‟ South: 11deg 30‟ East)43
and the alternate discharge
location (06 Degrees 00 minutes South: 08 Degrees 10 minutes East)44
is 496.3 km 45
substantially
towards the more dangerous part of the West African region which gives rise to a completely
different state of affairs.
30. By reason of above it is submitted that the Charterers are responsible for the damages caused to
the vessel, resulting out of directing the vessel to proceed to an unsafe discharge location by
ASA2 in the capacity of Agent of the Charterers.46
31. Further it is submitted that the conduct of the Agent acting on behalf of the Charterers has been in
violation of Charter-party obligation to ensure the Vessel is directed to a safe area for the conduct
of ship to ship operations.47
The breach of such obligation also amounts to an alternate claim for
damages by reason of Charterers responsibility to indemnify the Owners against any and all
consequences arising out of the ship to ship operations including but not limited to damage to the
Vessel and other costs and expenses incurred as a result of such damage, including any loss of
hire, damage to or claims arising from other alongside vessels, equipment, floating cranes or
barges, loss of or damage to cargo and pollution.48
43
Facts, page 34: Email from Master Stelios to Chris at LDTP 44
Facts, page 35: Email from Captain William Anya to Master Stelios 45
Calculated using verified applications made for such calculations. 46
Shelltime4 Standard Charter-party, Clause 4(c). 47
LDTP Rider Clauses to the Shelltime4 Standard Charter-party, BIMCO STS Clause (b). 48
LDTP Rider Clauses to the Shelltime4 Standard Charter-party, BIMCO STS Clause (f).
11
2.3 CHARTERERS BREACHED OBLIGATIONS INDEPENDENT OF ANY
RELATIONSHIP OF AGENCY BETWEEN THE CHARTERERS AND ASA2.
32. Notwithstanding the tribunal determining that ASA2 not to be the agents of Charterers, Owners
submit that Charterers are still liable for the breach of Charter-party for failing to provide the
master all requisite instructions and sailing directions.49
33. On the 28th
of June 2014 the Charterers instructed the master to proceed to discharge coordinate
given as STS Area 150
, afterwards there has been no further instructions given to the Master by the
Charterers or by any agent of the Charterers in relation to the voyage or the STS transfer (except
for the instructions given by ASA2 who are denied by the Charterers to be the agents of the
Charterers)51
.
34. It is submitted this constitute a breach of the obligations owed to the Owners by the Charterers to
give the master, from time to time, all requisite instructions and sailing directions.
35. Further it is contended that the failure on the part of the Charterers or an agent acting on behalf of
the Charterers to provide any such instructions has resulted in the breach of Charterers obligation
to use due diligence to ensure that the vessel is only employed between and at safe places
including locations at sea.52
When the Charterers were informed of the STS transfer with the
vessel Antelope of ASA2 at a new discharge location (2 STS)53
, Charterers affirming the
arrangement instructed to continue liaising with the STS Coordinator.54
It is submitted that this
statement was made negligently without verification by the supposed agents of the Charterers
therefore was made without exercising due diligence expected of Charterers.
49
Shelltime4 Standard Charter-party, Clause 12; Shelltime4 Standard Charter-party, Clause 13 (a). 50
Facts, page 34: Email from Christ at LDTP to Master Stelios 51
Defendants answer to the Statement of Claim of Claimants, Facts, page 68: paragraphs 10 and 11. 52
Shelltime4 Standard Charter-party, Clause 4(c). 53
Facts, page 38: Email from Master Stelios to Chris at LDTP 54
Facts, page 40: Email from Christ at LDTP to Master Stelios
12
36. It is submitted further that the conduct of the Charterers has led to the breach of Charter-party
obligation to ensure the Vessel is directed to a safe area for the conduct of such ship to ship
operations.55
37. The resulting position is that the Charterer is liable for the losses suffered by the Owners as a
result of the breach of the Charter-party. Charterer is liable to pay damages for loss or damage
caused by their failure to exercise due diligence as aforesaid56
, and shall indemnify the Owners
against any and all consequences arising out of the ship to ship operations including but not
limited to damage to the Vessel and other costs and expenses incurred as a result of such
damage57
.
2.4 MASTER HAS ACTED DILIGENTLY IN ACCORDANCE WITH THE CHARTER-
PARTY.
38. It is submitted that during the Pirate attack the members of the crew suffered injuries, substantial
amount of cargo was stolen (about 28190 MT of Gasoil) and the vessel suffered material
damages.58
39. Charter-party states that the Vessel shall not be obliged to proceed or required to continue to or
through any area or zone, which, in the reasonable judgment of the Master and/or the Owners, is
dangerous to the Vessel, cargo, crew or other persons on board the Vessel due to any actual,
threatened or reported acts of piracy, whether such risk existed at the time of entering into this
Charter-party or occurred thereafter59
.
55
LDTP Rider Clauses to the Shelltime4 Standard Charter-party, BIMCO STS Clause (b). 56
Shelltime4 Standard Charter-party, Clause 4(c). 57
LDTP Rider Clauses to the Shelltime4 Standard Charter-party, BIMCO STS Clause (f). 58
Facts, page 42: Email from Master Stelios to Oliver at WTI and Chris at LDTP 59
LDTP Rider Clauses to the Shelltime4 Standard Charter-party, BIMCO Piracy Clause (a).
13
40. And further if the Owners decide that the Vessel shall not proceed or continue to or through the
Area they must immediately inform the Charterers. The Charterers shall be obliged to issue
alternative voyage orders.60
41. Further it is submitted that throughout the charter service Owners shall take steps to maintain or
restore the vessel to agreed conditions and exercise due diligence so to maintain or restore the
vessel as soon as reasonably practicable.61
42. It is submitted that as soon as the pirate attack occurred, the Master of the vessel informed the
Charterers of the attack but no alternate voyage order was given.62
In light of such circumstances
where no instruction were given from the Charterer and due to the limited bunker supply the
vessel proceeding in direction Cape town indicates master has acted diligently to ensure that the
lives of persons on board are protected and has acted in conformity with the Charter-party to
repair of the vessel as soon as practicable.63
3 HIRE IS DUE AND OWING FROM THE 3RD
OF JULY 2014.
43. Owners submit, as substantiated below, that on its terms, the hire was due and owing by the
Charterers under the Charter-party in the manner provided by it on the 3rd July 2014 and
thereafter. Further as the contract was not frustrated by the 4 of July 2014 and owing to the fact
that the Master has acted competently, the Owners claim the hire due and owing under the terms
of the Charter-party.
60
LDTP Rider Clauses to the Shelltime4 Standard Charter-party, BIMCO Piracy Clause (b). 61
Shelltime4 Standard Charter-party, Clause 3(a). 62
Facts, page 42: Email from Master Stelios to Oliver at WTI and Chris at LDTP 63
Ibid
14
3.1 ON ITS TERMS, HIRE WAS DUE AND OWING BY THE CHARTERERS UNDER THE
CHARTER-PARTY BY 3RD
JULY 2014 AND EVEN THEREAFTER.
44. The Charter-party specifies that the agreement shall be valid for three months.64
On the 4th
of June
2014 the vessel was claimed to be on hire.65
The Charterers are bound to pay hire, each calendar
month in advance as provided by charter-party.66
3.2 THE CHARTER-PARTY WAS NOT FRUSTRATED BY THE 4 JULY 2014.
45. The burden for establishing the required elements of frustration to perform the contract lies with
the Charterers.67
46. The Charterer is precluded from invoking the doctrine of frustration since the present action is
subject to the limitations of the doctrine68
. The claimant contends if the charter has got frustrated
the reasons are attributable to the actions of the Charterer as established under sections 2.2 and 2.3
of the Memorial.69
It is submitted that the Charterer‟s fault vitiates the doctrine of frustration and
it should have no application in the present issue70
.
47. Consequently, the defendants are liable for the claimants for breach of the charter-party.
64
Procedural order No.2, page 2, paragraph 20; Facts, page 5: Email (Fully fixed Recap) from Bill at IMWMB Charles at
LDTP and Oliver at WTI. 65
Facts, page 29: Email from Master Stelios to Chris at LDTP. 66
Shelltime4 Standard Charter-party, Clause 8 and 9. 67
John f. Wilson, Carriage of Goods by the Sea, 7th
ed (Great Britain : Pearson Education Limited, 2010) at 42.
Mckendrick, Supra note 3 at 255, Constantine v Imperial Smelting Corp[Smelting Corp] [1942] AC 154, Ocean Tramp
Tankers Corp v V/O Sovfracht (The Eugenia) [1963] 2 Lloyd’s Rep 381at p 390, Tsakiroglou & Co Ltd v Noblee
Thorl GmbH [1962] AC 93, Herne Bay Steamboat Co v Hutton [1903] 2 KB 683. 68
[The Hannah Blumenthal], Supra note 4. 69
[Smelting Corp], Supra note 67. 70
Davis Contractors Ltd v Fareham Urban District Council [1956] UKHL 3, Maritime National Fish v Ocean
Trawlers [1935] AC 524,) Bunge S.A. v Kyla Shipping Company Limited [2012] EWHC 3522 (Comm).
15
3.3 THE VESSEL REMAINS ON HIRE FROM 4TH JULY ONWARDS SINCE THE
MASTER COMPLIED WITH THE DUTIES AND ORDERS IMPOSED ON HIM
48. The Charterers claim that the master was incompetent in following the orders of ASA2, who the
Charterers deny to be their agents. However, it is submitted, that when the Charterers were informed of
the STS transfer with the vessel Antelope of ASA2 at a new discharge location (2 STS)71
, Charterers
affirming the arrangement instructed to continue liaising with the STS Coordinator.72
49. It is submitted that the Charterers made representations indicating that ASA2 has authority to act
on behalf of the Charterers and therefore Charterers are estopped from denying relationship
between them as is illustrated in the Section 2.1 of this Memorial.
50. Therefore it is submitted that the Master has acted competently in following the orders of ASA2.
4 CHARTERERS ARE LIABLE IN TORT FOR THE FRAUDULENT
MISREPRESENTATIONS MADE TO THE OWNERS.
51. In order to sustain an action of deceit, there must be proof of fraud. Fraud is proved if a false
representation has been made knowingly or without belief in its truth or recklessly; careless as to
whether it was true or false.73
Further it needs to be shown that the person making a false
statement intended to be and in fact relied on by the person to whom it is made.74
52. Charterers and/or persons acting on their behalf made representations to Owners which, on their
proper construction, were untrue. The representations to Owners were made dishonestly. The
representations to Owners were made with the intention that the Owners would rely on them. The
Owners relied on the representations. The Owners suffered damage as a consequence of relying
on the representations.
71
Facts, page 38: Email from Master Stelios to Chris at LDTP 72
Facts, page 40: Email from Christ at LDTP to Master Stelios 73
Derry v Peek (1889) UKHL 1, [1889] LR 14 App Cas 337. 74
Smith v Chadwick (1884) 9 App Cas 187.
16
53. Charterers admit to having made representations on 3rd June 2014 stating a sufficient supply of
bunkers would be available passing Durban or Cape Town, and on the 28th June, twice, that
sufficient supply of bunkers would be available „on arrival STS Area 1‟.75
But Charterers while
further admitting to have intended those statements to be relied upon, maintains that they were
true at the time they were made.76
54. It is observed that initially an agreement for a $650,000 provisional credit line for a period of 30
days was arranged by the Charterers with Equator bunkers on the 27th
May 2014.77
The purchase
of 950 metric tons of fuel at the rate of US$630.25 per metric ton78
amounts to a total of
$598,737.5. This leaves the amount remaining under the credit line $51,262.5 which is
approximately enough for about 80 metric tons.
55. Master has continued to assert that the fuel supply would only be sufficient to reach the discharge
area and for the bad weather reserve which requires the provision of bunkers at or before the
discharge location for a successful completion of the voyage. It was predicted at least 300 metric
tons of Fuel will be required to complete the STS transfer and to proceed to the next load port.79
56. The provisional credit line given for fuel by the Equator Bunkers would expire on the 27th
of June
having completed 30 days from the grant thus disabling Charterers from purchasing fuel from
Equator Bunkers.80
57. At the time the representation was made on the 3rd
of June, no attempts have been made by the
Charterers after the initial purchase, to provide bunkers purchasable from the remaining credit
facility by the Equator Bunkers (which would anyway be insufficient), to re-negotiate the credit
75
Defendants answer to the Statement of Claim of Claimants, Facts, page 68: paragraphs 15. 76
Ibid 77
Facts, page 21: Email from David at Equator Bunkers to Chris at LDTP. 78
Facts, page 24: Email from Chris at LDTP to David at Equator Bunkers. 79
Facts, page 38: Email from Master Stelios to Chris at LDTP 80
Facts, page 24: Email from Chris at LDTP to David at Equator Bunkers.
17
facility given by Equator Bunkers and to provide sufficient bunkers or to contact any other
providers for the supply of bunkers to Western Dawn on or before OPL discharge, hence made
that representation knowing it to be false or recklessly; careless whether it is true or false.
58. On the 28th
of July Charterers were disabled from purchasing bunkers from Equator Bunkers due
to the expiry of the 30 days credit line and since no attempt have been made to re-negotiate the
credit facility given by Equator Bunkers and to provide sufficient bunkers or to contact any other
providers for the supply of bunkers to Western Dawn on or before OPL discharge, hence made
that representation knowing it to be untrue or recklessly; careless whether it be true or false.
59. It is further submitted that while it was possible for the Charterers to extend the credit line given
further with the conclusion of payments for the first trade with the Equator bunkers,81
no such
action has been taken by the Charterers despite receiving the full payment under sales contract for
the Gasoil and Jet cargo from Angola Energy.82
60. Further on the 4th
of July, the Charterers has again represented that a bunker supply would be
available at the STS locations83
which Owners in light of the above circumstances and in light of
the absence of any such inquiry by the Charterers by their supposed agents, claim was made
recklessly; careless whether it be true or false.
61. In light of these circumstances it is submitted that Charterers have acted fraudulently by making
statements which were false or recklessly; careless whether they were true or false. Since it is
admitted by the Charterers that they were intended to be relied upon and were in fact relied upon
by the Owners,84
the Owners state that the Charterers have committed the tort of fraud.
81
Facts, page 21: Email from David at Equator Bunkers to Chris at LDTP. 82
Facts, page 30: Email from Chris at LDTP to Angola Energy Imports. 83
Facts, page 40: Email from Chris at LDTP to Master Stelios. 84
Defendants answer to the Statement of Claim of Claimants, Facts, page 68: paragraphs 15.
18
62. ASA2 in the capacity of Agents too have represented on the 28th
June that a supply of 300 metric
tons of fuel will be available at the next discharge location85
but have done so having made no
arrangements to provide such bunkers. Hence the Owners claim that the statement was made
knowing it to be untrue.
63. Having established fraudulent intention of the Charterers and persons acting on behalf of the
Charterers, Owners claim that the Charterers are liable to the Owners for all losses arising as a
result of the Owners relying upon such misrepresentations.86
64. It is submitted however the claim in tort is independent of contractual liability and hence is not
affected by the frustration of the contract.87
5 THE WESTERN DAWN WAS FIT FOR SERVICE AS REQUIRED UNDER THE
CHARTER-PARTY
5.1 THE MASTER COMPETENTLY FOLLOWED THE INSTRUCTIONS GIVEN TO THE
VESSEL BY THE CHARTERER
65. The alleged claim for incompetence of the master is based on the claim that he followed orders
given by ASA2, whom the Charterer denies to be their agents.88
The Owners deny any such
representation claiming that ASA2 was not the Charterer‟s agent. As established in Section 2.1 of
this Memorial, ASA2 were the agent of the Charterers. Therefore the master duly acted as
directed by the agents of the Charterer.89
85
Facts, page 35: Email from William Anya at ASA2 to Master Stelios. 86
Securities Ltd v Scrimgeour Vickers (Asset Managament) Ltd [1997] 1 BCLC 350 at 375. 87
Mckendrick, Supra note 3 at 5, Donoghue (or McAlister) v Stevenson, [1932] All ER Rep 1. 88
Defendants answer to the Statement of Claim of Claimants, Facts, page 67: paragraphs 10 and 11. 89
Shelltime4 Standard Charter-party, Clause 12.
19
5.2 THE MASTER FOLLOWED ANTI-PIRACY PRECAUTIONS AS FAR AS
REASONABLY PRACTICABLE
66. The master was aware of the piracy risks associated within the voyage area. The Owners in good
faith attempted to upgrade the ship to meet required standards necessary to encounter the piracy
risks that were prevalent in the passage of the voyage.90
67. However, it is submitted that the deployment of razor wire is not an absolute guarantee of safety
against a pirate attack.91
It is understood that the Speed of the vessel is relatively the safest
solution to mitigate piracy risks.92
68. The master relied on the Charterers to direct the vessel to safe ports and to provide sufficient
bunkers93
. The Charterers failure to provide sufficient bunkers resulted in the master not being
able to comply with the safe navigation speeds to repel the pirate attack.
6 OWNERS NOT RESPONSIBLE FOR THE CONVERSION OF CARGO
6.1 ACTIONS OF THE OWNERS WERE ACCIDENTAL AND NOT DELIBERATE.
69. It is submitted that to hold the owners liable for the alleged claim of conversion the owners
conduct should constitute a deliberate action.94
While Conversion is a strict liability tort95
to the
extent that wrongful intent is not necessary but the act of Conversion must be intentionally done.
Then it follows, in the event that act of conversion is not intentionally done, neither negligence,
90
Facts, page 21 and 22: Email from Oliver at WTI to Master Stelios, Email from Rich Evasion to Master Stelios, Facts,
page 36: Email from Master Stelios to Rich Evasion. 91
Best Management Practices for Protection against Somalia Based Piracy, (Scotland: Witherby Publishing Group Ltd,
2011), online: < http://www.mschoa.org/docs/public-documents/bmp4-low-res_sept_5_2011.pdf?sfvrsn=0> at pp. 28 –
31. 92
Ibid at 7. 93
Refer above. For the obligation to provide bunkers refer Shelltime4 Standard Charter-party, Clause 7(a). 94
Kuwait Airways v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19; [2002] 2 AC 883; A.M. Jones and M.A. Dugdale,
Clerk & Lindsell on Torts, 17th ed (London: Sweet and Maxwell, 1995), p 636; para 13-12. 95
Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066 [80 Cal.Rptr.2d 704].
20
active or passive, nor a breach of contract, even though it result in injury to, or loss of, specific
property, constitutes a conversion.96
70. It is submitted, the removal of 28,500mt of gasoil from the Vessel between 4 and 17 July 2014,
does not amount to an intentional or an act knowingly done by the Master. The cargo was
forcefully taken from the ship in 5 STS operations by Pirates.97
7 OWNERS ARE NOT RESPONSIBLE FOR THE LOSS OF CARGO IN THE CAPACITY
OF A BAILEE
7.1 STANDARD EXPECTED OF THE OWNERS IN THE CAPACITY OF BAILEE HAS
BEEN DISPLAYED
71. Owners submit that the owner as the bailee is bound only to take as much care of the goods bailed
to him as a man of ordinary prudence would, under similar circumstances, take of his own
goods.98
72. It is submitted that the charter has exercised standard expected of a reasonably prudent person in
respect of the cargo if not for the pirate attack which was beyond the control of the Owners.99
96
Taylor v. Forte Hotels International (1991) 235 Cal.App.3d 1119, 1124 [1 Cal.Rptr.2d 189]. 97
Facts, page 42: Email from Master Stelios to Chris at LDTP. 98
Port Swettenham Authority v T W Wu & Co (M) Sdn Bhd - [1978] 3 All ER 337 at 339 99
Facts, page 42: Email from Master Stelios to Chris at LDTP.
21
PRAYER
In light of the above submissions, the Owners request the tribunal to declare:
I. The Tribunal has jurisdiction to determine the matter.
II. The claim relating to fraud is admissible in this arbitration as „arising out of the charter-party‟.
III. ASA2 is the Agent of the Charterers.
IV. ASA2 in the capacity of Agents of Charterers did not exercise due diligence in directing the
vessel to a safe location.
V. Even if ASA2 is not recognised to be the Agents of Charterers, the Charterers are still liable for
not directing the vessel to a safe location.
VI. Master has acted diligently in accordance with the Charter-party after the Pirate attack.
VII. The Hire is due and owing from the 3rd
of July 2014.
VIII. The Charterer is liable in tort of fraud for Misrepresentations made to the Owners.
IX. The Western Dawn was fit for service as required under the Charter-party.
X. The Owner is not responsible for the conversion of Cargo or for the breach of duty as bailee of the
cargo.
22
And therefore the following reliefs are prayed for:
1. Owners claim hire as due and owing under the Charter-party, or alternatively as damages for
Charterers‟ failure to pay the same.
2. Owners claim loss and damages resulting from the Charterers fraud.
3.Further, and in accordance with section 49 of the Arbitration Act 1996, Owners claim compound, or
alternatively simple, interest of any sum found owing to them at such a rate (and at such
compounding periods) as the Tribunal sees fit.
4. Further or other relief as the Tribunal considers fit.