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SECOND NUALS NATIONAL M OOT COURT COMPETITION 2015

IN THE HIGH COURT OF JUDICATURE AT SCINDIA


ADMIRALTY JURISDICTION
Zeus & Co. .............................................................................................Applicant
v.
YA MAVLAYA...................................................................................Respondent
With
NAND APARAJITHA & INDIAN GRACE... .....................................Applicant
v.
ALIAKMON........................................................................................Respondent
With
Xiang Ship Building Yard.....................................................................Applicant
v.
ALIAKMON........................................................................................Respondent

MEMORANDUM FILED ON BEHALF OF THE APPLICANTS

TABLE OF CONTENTS

LIST OF ABBREVIATIONS................................................................................................ 4
INDEX OF AUTHORITIES ................................................................................................. 6
CASES:............................................................................................................................. 6
BOOKS AND ARTICLES: ............................................................................................... 6
STATUTES, CONVENTIONS, ETC.: .............................................................................. 7
STATEMENT OF JURISDICTION ...................................................................................... 8
STATEMENT OF FACTS .................................................................................................... 9
STATEMENT OF ISSUES ................................................................................................. 11
SUMMARY OF ARGUMENTS ......................................................................................... 12
ARGUMENTS ADVANCED ............................................................................................. 14
I. The High Court of Scindia has jurisdiction over the present case. ................................. 14
II. Blue Star Lines is responsible for the Violation of Charter party terms. ....................... 15
III. Blue Star Lines is not entitled to the demurrage and dead freight. .............................. 20
IV. Blue Star Lines is liable to compensate the applicant for the loss of goods. ................ 21
V. NAND APARAJITHA and INDIAN GRACE are entitled to remuneration for
salvage assistance rendered to ALIAKMON. ................................................................ 22
VI. Xiang Ship Building Yard is entitled to the ownership of ALIAKMON..................... 25
VII. Blue Star Lines is liable to pay the outstanding construction charges of ALIAKMON
to Xiang Ship Building Yard. .......................................................................................... 26

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VIII. The applicant has not committed breach of contract and is thus, not liable to pay to
the respondent, any damages for the same. ...................................................................... 27
PRAYER ............................................................................................................................ 29
Zeus & Co. v. YA MAVLAYA ........................................................................................... 29
NAND APARAJITHA & INDIAN GRACE v. ALIAKMON................................................ 29
Xiang Ship Building Yard v. ALIAKMON ........................................................................ 30

MEMORANDUM FILED ON BEHALF OF THE APPLICANTS

LIST OF ABBREVIATIONS
A.I.R.: All India Reporter
A.C.: Appeals Cases
B.S.L.: Blue Star Lines
BOM.: BOMBAY
Honble: Honourable
K.B.: Kings Bench
LC: Lord Chancellor
L.J.: Lord Justice
Ltd.: Limited
N.S.A.: Norwegian Shipowners Association
N.S.C.: Norwegian Supreme court
N.S.G.: Norwegian Sale of Goods
Ors.: Others
L.M.C.L.Q.: Lloyd's Maritime and Commercial Law Quarterly
Ltd: Limited
p.: page
Pvt.: Private

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Q.B.: Queens Bench
Rep: Reports
S.C.: Supreme Court
S.C.C.: Supreme Court Reporter
U.N.C.L.O.S.: The United Nations Convention on the Law of the Sea
U.K.S.T.C.: UK Standard Conditions For Towage And Other
v.:versus
Voylay: Voyage Charter Party Laytime
WLR: Weekly Law Reports

MEMORANDUM FILED ON BEHALF OF THE APPLICANTS

INDEX OF AUTHORITIES
CASES:
Covington Marine Corporation and Others v. Xiamen Shipbuilding Industry Co. Ltd [2006] 1
Lloyds Rep. 745 [28]
Dahl v. Nelson [1880] 6 App. Cas. 38 [19]
Evera SA Commercial v North Shipping Co Ltd [1956] 2 Lloyd's Rep. 367 [16]
Glencore Grain Ltd v. Flacker Shipping Ltd (The Happy Day)[2002] 2 Lloyds Rep. 487 [18]
Horsley v. Price [1883] 11 Q.B.D. 244 [19]
Isaacs v. McAllum [1921] 3 K.B. 377 [22]
Little v. Courage Ltd (1995) 70 P. & C. R. 469 [28]
Liverpool and London S. P. and I Association v M. V. Sea Success I and Another, (2004) 9
S.C.C. 512 [23]
M.V. Elisabeth v Harwan Investment and Trading Pvt Ltd A.I.R. 1993 S.C. 1014 [15]
North River Freighters Ltd v. President of India [1955] 2 Lloyds Rep. 668 [17]
Oldendorff (EL) & Co GmbH v. Tradax Export SA (The Johanna Oldendorff) [1973] 2
Lloyds Rep. 285 [15, 17]
Reardon Smith Line Ltd. v. Ministry of Agriculture, Fisheries and Food [1962] 1 Q.B. 42 [16]
Reid v. Macbeth [1904] A.C. 223 [25]
St. George Shipping Co Ltd v MV Irene P A.I.R. 1999 Bom. 280 [14]
The Hill Harmony [2001] 1 Lloyds Rep. 147 [21]
TheNagasaki Spirit [1997] 1 Lloyds Rep 323, noted (1997) LMCLQ 321 [23]
The Scaptrade [1983] 2 Lloyds Rep. 253 [21]
BOOKS AND ARTICLES:

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AlekaMandaraka Sheppard, Modern Maritime Law Vol. 2: Managing Risks AndLiablities,
Informa Law from Routledge, 2013 [24,26]
James Gosling, Rebecca Warder (Editors), The Shipping Law Review, Law Business
Research Ltd, July 2014 [25]
John Schofield, Laytime and Demurrage, Informa Law from Routledge, 2011 [17,19]
Julian Cooke, &Ors.,Voyage charters, Informa Law from Routledge, 2014 [16]
Paul Bugden, Demurrage Claims under Voyage Charterparties, Bugden & Co., 2012 [20]
Vickey L. Quinn, Hard Aground: A Primer on the Salvage of Recreational Vessels, U.S.F.
Maritime Law Journal, Vol. 19, No. 2, 2006-07 [24]

STATUTES, CONVENTIONS, ETC.:


International Convention on Salvage, 1989 [23]
Liberian Maritime Regulations, 2002 [22]
Norwegian Sale of Goods Act, 1988 [25, 26, 27]
Norwegian Shipowners Association Form [26, 27]
The United Nations Convention on the Law of the Sea (UNCLOS), 1982 [14]
Voylayrules 1993 [17, 20]

MEMORANDUM FILED ON BEHALF OF THE APPLICANTS

STATEMENT OF JURISDICTION
The Honble High Court of Judicature at Scindia may exercise its admiralty jurisdiction
under S. 2 of the [The] Colonial Courts of Admiralty(India) Act, 1891 whereby the High
Court of Judicature at Scindia has been declared as a Colonial Court of Admiralty, read with
S. 20 of the Supreme Court Act, 1981 which provides the extent of the admiralty jurisdiction
of the High Court.
The Applicants most humbly and respectfully submit to the jurisdiction of this Honorable
High court of Judicature at Scindia.

The present memorandum sets forth the facts, contentions and arguments in the present
case.

MEMORANDUM FILED ON BEHALF OF THE APPLICANTS

STATEMENT OF FACTS
I. Blue Star Lines, a Company registered in the Republic of Sparta, placed orders for
construction of a bulk carrier vessel with Xiang Ship Building Yard, a public sector
undertaking of the Republic of Aaron. The contract dated 1 st October, 2011 was in the
Norwegian Ship Owners Association Form. The contract provided that the vessel would
become the absolute property of the buyer on the payment of first instalment and that best
endeavours would be made for completing the construction by 1 st September 2013.
II. During August 2013, Blue Star Lines entered into a charter party agreement with Zeus and
Co., a public sector enterprise of Republic of Aaron, for chartering out their bulk carrier YA
MAVLAYA a vessel flying the flag of Republic of Liberia for transportation of 10,000 MT
coal from the port of Minsk in Eastern Europe to Shangze in the Republic of Aaron during
September 2013 to October 2014. The officers employed on board YA MAVLAYA,
appointed by Blue Star Lines were to be paid by Zeus and Co. during the charter period. Blue
Star Lines will make available YA MAVLAYA at the port of Minsk or so near thereto as
she can safely get on or before 1st September 2013.
III. YA MAVLAYA was already performing a voyage under an earlier charter. Entry to the
Minsk port depended on the water draught available in River Tista which in turn depended on
tides. Zeus and Co. had transported 8000 MT of coal to the wharf at the Port of Minsk &
waited for the arrival of YA MAVLAYA. On 29th August, 2013, she reached Petra, &
missed the tide. She waited there for the next tide. A notice of arrival was issued to the agents
of Zeus and Co. on behalf of YA MAVLAYA. When cargo was loaded into her holds, lay
time as agreed to in charter party had expired. After loading, Zeus and Co. instructed Captain
of YA MAVLAYA was to proceed to Port of Kripsto and take in cargo of ammunition in
her empty hold. YA MAVLAYA laden with full cargo, got into rough weather. The Captain

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sought refuge in Republic of Catonia. There, news papers reported ammunition carried by
vessel as contraband goods liable to seizure. The authorities directed Captain to facilitate
inspection by the authorities, who ignored it & proceeded to the high seas. While crossing the
Exclusive Economic Zone of Republic of Catonia, a hot pursuit allegedly ensued & she was
brought back. Pursuant to a Prompt Release action initiated by the Republic of Liberia, the
vessel and its crew were later released. However, the cargo was forfeited. YA MAVLAYA
later docked in the port of Neva in Scindia State of Republic of Sparta.
IV. Republic of Aaron through Zeus and Co, initiated an in rem action in High Court of
Scindia for compensating the loss of goods and for violation of charter party terms. The
claims were defended by Blue Star Lines. A counter claim for demurrages and dead freight
was raised against Zeus and Co.
V. While so, Xiang Ship Building Yard informed Blue Star Lines of the part completion of
construction of the vessel in its yard. The new vessel was christened ALIAKMON. Upon
the insistence of Blue Star Lines, work was speeded through and on 1st September 2013
Engineers of Blue Star Lines boarded the vessel for trial. While on trial run, vessel started
taking in water. Assistance was sought by ALIAKMON from vessels in vicinity. A hauser
was connected and NAND APARAJITHA, a container carrier proceeded to tow
ALIAKMON to safety. While within the territorial waters of Republic of Sparta,
apprehending her own safety, NAND APARAJITHA abandoned ALIAKMON.
ALIAKMON was finally towed into the port of Neva by INDIAN GRACE.
VI. Xiang Ship Building Yard invoked the Admiralty Jurisdiction of the High Court of
Scindia claiming ownership over the vessel and towards the outstanding construction charges
from Blue Star Lines. NAND APARAJITHA and INDIAN GRACE moved the High
Court of Scindia in the Republic of Sparta seeking to recover remuneration for salvage
assistance rendered to ALIAKMON.

MEMORANDUM FILED ON BEHALF OF THE APPLICANTS

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STATEMENT OF ISSUES

Zeus & Co. v. YA MAVLAYA


I.
II.
III.

Whether High Court of Scindia has jurisdiction to try the case?


Whether Blue Star Lines is responsible for violation of charter party terms?
Whether Blue Star Lines has a claim for demurrages and dead freight upon Zeus
& Co.?

IV.

Whether Zeus & Co. is entitled for compensation from Blue Star Lines for the
loss of goods?
NAND APARAJITHA & INDIAN GRACE v. ALIAKMON

V.

Whether NAND APARAJITHA and INDIAN GRACE are entitled to recover


remuneration for salvage assistance?
Xiang Ship Building Yard v. ALIAKMON

VI.

Whether Xiang Ship Building Yard is entitled to the ownership of ALIAKMON?

VII.

Whether Blue Star Lines is liable to paythe outstanding construction charges to


Xiang Ship building Yard?

VIII.

Whether Xiang Ship Building Yard is liable for breach of the ship building
contract?

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SUMMARY OF ARGUMENTS
I. The High Court of Scindia has jurisdiction over the present case.
The principle of conflict of laws allows this claim to stand. Genuine Link should be there
between the ship and the state and this present case no such link is present which in turn
means that the nationality of ship is not of Flag state. It being an in rem action it can be
brought if the ship is in the territorial jurisdiction of the court.
II. Blue Star Lines is responsible for the Violation of Charter party terms.
The charter is a port voyage charter. The vessel missed the tide which is the responsibility of
the ship owner under a voyage charter party. Even if be considered of a port charter party
then also Petra cannot be considered as the port area. The owners failed to make the vessel
available at the port of Minsk at the designated time.
III. Blue Star Lines is not entitled to the demurrage and dead freight.
No notice of readiness was served. It was merely a notice of arrival which was issued when
the vessel reached Petra. So the laytime never commenced, and it was the fault of the
shipowner that they failed to make the vessel available at the port on designated time by
missing the tide. Ships cargo space was not left empty. After ammunitions were loaded from
the port of Kripsto, the cargo was full. The owner is not entitled to claim dead freight.
IV. Blue Star Lines is liable to compensate the applicant for the loss of goods.
This is a voyage charterparty wherein the master is instructed by the shipowner. Under
Liberian Maritime Regulations the Master has overriding authority and discretion to take
whatever action he/she considers to be in the best interests of ship as whole. Since the master
was employed by the owners, they are liable for providing adequate compensation.

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V. NAND APARAJITA and INDIAN GRACE are entitled to remuneration for
salvage assistance rendered to ALIAKMON.
NAND APARAJITHA is entitled to Special damages payable to salvage volunteer despite
of unfruitful result. Service rendered by INDIAN GRACE is not towage but it is salvage.
Both of these vessels saved ALIAKMON from the unexpected peril for which they must
be remunerated.
VI. Xiang Ship Building Yard is entitled to the ownership of ALIAKMON.
Blue Star Lines has not yet paid the first instalment of the contract price. Besides this,
inclusion of a term like passage of property on payment of first instalment in the contract is
not in itself sufficient to pass the title of the property to the other party. In a contract like this
of sale of goods, the ownership cannot pass to the buyer until full payment has been made.
VII. Blue Star Lines is liable to pay the outstanding construction charges of
ALIAKMON to Xiang Ship Building Yard.
The respondent has not yet paid the contract price for the vessel constructed by the applicant.
The applicant, pursuant to the said contract, employed their materials and workforce and
constructed the vessel as per the design and specifications provided by the respondent. The
respondent has not made any payment for the same.
VIII. The applicant has not committed breach of contract and is thus, not liable to pay
to the respondent, any damages for the same.
The applicant has totally acted in accordance with design and specifications that had been
provided by the buyer. And so, the applicant should not be made liable for the fault of the
respondent.

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ARGUMENTS ADVANCED
I. The High Court of Scindia has jurisdiction over the present case.
[A]Action is not barred because of a separate suit has filed by applicant:A separate suit has
been filed by the Republic of Aaron in port of Shangze which is not barred by International
principles on conflict of law. The applicants have submitted to the Court's jurisdiction, as a
sovereign and the principle of waiver is effective where the sovereign himself invokes the
jurisdiction as a plaintiff or where he appears as a defendant without objection and fights the
case on its merits. Similar observations are to be found in Diceys Conflict of Laws where the
learned author states that in order to constitute waiver there must be an unmistakable election
to submit to the courts jurisdiction. And also in the case of St. George Shipping Co Ltd v MV
Irene P1, wherein the plaintiff has initiated preliminary claim against the defendants before
the competent court at Piraeus, Greece. Bombay High Court uphelded their right to initiate a
separate suit in Indian Jurisdiction and in the present case also Zeus and co. through The
Republic of Aaron has invoked jurisdiction which should be allowed to stand.
[B] There is no Genuine Link between the Flag state and ship:Article 91 of The United
Nations Convention on the Law of the Sea (UNCLOS), talks about the condition in which a
state grant its nationality to its ship, There must exist a genuine link between the State and the
ship. Genuine link from a semantic point of view would mean a connection with something
that is beyond ordinary but authentic and legitimate. In the present case also the ship YA
MAWLAYA is a ship with the flag of Liberia whereas it is owned by Blue Star lines a
company registered in Republic of Sparta and no facts are mentioned which suggests that
there is a Genuine Link between the ship and the state. Further, a foreign vessel, no matter
what flag she flies, owes temporary and local allegiance to the sovereign of any port to which
1

A.I.R. 1999 Bom. 280.

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she comes. Moreover, the persons in such a vessel likewise must obey the laws and
regulations of the port. Such jurisdiction is discretionary. Once a foreign vessel passes out of
territorial waters, she owes no further duty to the place, which she has left, unless there is a
hot pursuit. However, her conduct on the high seas or in foreign ports may subject her to
penalties on returning on a subsequent visit.
[C] It is an in rem action:The special requirements of an action in personam, namely, the
habitual residence or place of business of the defendant or the cause of action having their
nexus with England and Wales or the determination of a connected matter in the English
High Court or the submission of the defendant to the jurisdiction of that court, are not
applicable to a proceeding commenced as an admiralty action in rem. 2 As the court has
observed that when the action is in rem, whether or not the defendant resides or carries on
business, or the cause of action arose wholly or in part, within the local limits of its
jurisdiction. The admiralty jurisdiction of the High Court will be there. In the present case
YA MALWAYA is docked in the port of Neva in Scindia which is directly under the
jurisdiction of this court.
II. Blue Star Lines is responsible for the Violation of Charter party terms.
It is humbly submitted before the Honble Court that the charter party agreement entered into
between the applicant and respondent was that of a voyage charter. In Oldendorff (EL) & Co
GmbH v. Tradax Export SA (The Johanna Oldendorff)3, Lord Diplock divided the adventure
contemplated by a voyage charter into four successive stages:
(1)The loading or approach voyage, viz. the voyage of the vessel from wherever she is at the
date of the charter party or the conclusion of her previous fixture, if that is later, to the place
2

M.V. Elisabeth v Harwan Investment and Trading Pvt Ltd A.I.R. 1993 S.C. 1014.

[1973] 2 Lloyds Rep. 285,at p.305.

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specified as the place of loading i.e., there should be a Nomination of port of loading:An
approach voyage is defined as The preliminary voyage made from the vessels discharging
port under a previous charter party to the loading port or berth under a voyage charter. At
the time when the charter party was entered into, YA MAVLAYA was already performing
a voyage from Shebriniska to Kieve as envisaged under an earlier charter. As for nomination
of the port, in principle, the obligation to make the required nomination of a port or berth lies
on the charterer, but he is not obliged, when so doing, to consider either the convenience of
the owner or the expense of complying with the nomination. 4In The Vancouver Strike
Cases, 5Willmer L.J. said: it is well established that where a charterparty provides a choice
of named places for loading or discharge, the charterer is free to exercise his option as he
chooses, and in doing so is in no way bound to consult the convenience of the shipowners.
The charterers in this case, nominated Minsk as the port of preliminary voyage.
(2)The loading operation, viz. the delivery of the cargo to the vessel at the place of loading
and its stowage on board:In Evera SA Commercial v. North Shipping Co Ltd.6 Devlin J.
pointed out that A charterer manifestly wants, if he can get it, a fixed date for the arrival of
the ship at the port of loading. He has to make arrangements to bring down the cargo and to
have it ready to load when the ship arrives, and he wants to know, as near as he can, what
that date is going to be. The date of arrival for the ship was fixed on or before 1st Sept.2013.
The cargo of coal was transferred at the port of Minsk in accordance with this term of the
charter party. The cargo made available was also loaded into her holds at the port of Minsk.

Cooke Julian, &Ors.,Voyage charters, Informa Law from Routledge, 2014, p.117.

Reardon Smith Line Ltd. vMinistry of Agriculture, Fisheries and Food [1962] 1 Q.B. 42, at

p.110.
6

[1956] 2 Lloyd's Rep. 367.

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(3)The carrying or loaded voyage, viz. the voyage of the vessel from the place of loading to
the place specified in the charter as the place of delivery: The ordinary rule goes that once
the ship is loaded with the quantity of goods required under the terms of the charter party, the
owners are obliged to dispatch her promptly upon the voyage. 7 After following the order
from the charterer, the ship ultimately proceeded on her voyage to the port of Shangze.
(4)The discharging operation, viz. the delivery of the cargo from the vessel at the place of
delivery and its receipt there by the charterer or other consignee: The fact sheet states that
ship was en route Shangze, where the discharging operation was to be performed, though the
discharging operation could not be completed as the ship was arrested at the port of Catonia
where she took the port of refugee to save the ship from facing any damages due to rough
weather. But still, such an operation was stipulated in the charter party.
Now, in the category of voyage charters, it is a port charter. A berth is an individual loading
point on a jetty, wharf or in a dock system. 8 The Voylayrules 1993 define berth in the
following terms: BERTH shall mean the specific place within a port where the vessel is to
load or discharge. If the word BERTH is not used, but the specific place is (or is to be)
identified by its name, this definition shall still apply. In E L Oldendorff&CoGmbHv. Tradax
Export SA,9 Lord Diplock said: Where a single berth was specified in the charterparty as
being the place of loading or of discharge, the loading voyage or the carrying voyage did not
end until the vessel was at that very berth.
In a berth charter, the specified destination is reached when the vessel is in that berth and
does not need to move further to load or discharge. In a similar vein, in North River

Supra 4, p.213.

Schofield John, Laytime and Demurrage, Informa Law from Routledge, 2011, p. 78.

Supra 3.

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Freighters Ltd v. President of India10, Jenkins L.J. drew a distinction between port and berth
charters, Whereas in the case of a berth charter (that is to say, a charter which requires the
vessel to proceed for loading to a particular berth either specified in the charter or by the
express terms of the charter to be specified by the charterer) lay days do not begin to run
until the vessel has arrived at the particular berth, is ready to load, and has given notice to
the charterer in manner prescribed by the charter of her readiness to load.
The present case is comparable to The Happy Day 11case, where the vessel arrived off Cochin
with a cargo of wheat. It was a berth charter party. At the time of the arrival off the port, she
was unable immediately to enter the port because she missed the tide. Nevertheless the
master purported to give notice of readiness. She was only able to resume her voyage into the
port on the next tide, the following morning, berthing and commencing discharge the same
day No further notice was presented. However, discharge was very slow and it took exactly
three months from the date of her arrival off the port to be completed. It was found that the
charter party was a berth charter and therefore the notice of readiness given on arrival off
the port was invalid. Nevertheless, they also held that laytime commenced on the first
occasion on which it could have commenced, had a valid notice been presented.
Thus, in the present case also ship missed the tide which is the responsibility of the ship
owner under a voyage charter party. The coal was loaded at wharf, and the vessel was berthed
at Minsk, even the definition says that it is not necessary to use the term Berth. Moreover
even if the present case is to be considered of a port charter party then also Petra could not be
considered as the port area as fact sheet states that she waited at Petra for the next tide which
would enable her to enter the port area of Minsk which implies that Petra did not come
within the defined port area.Thus the notice of arrival issued by the shipowners at Petra,
10

North River Freighters Ltd vPresident of India[1955] 2 Lloyds Rep. 668, at p.679.

11

Glencore Grain Ltd vFlacker Shipping Ltd (The Happy Day) [2002] 2 Lloyds Rep. 487.

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which started the commencement of laytime period is invalid. And the owners failed to make
the vessel available at the port of Minsk at the designated time, as a result of which laytime
expired and the issue for claim of demurrage arose, as can be construed from the fact sheet.
In the present case the respondent cannot take recourse to the Near clause, stating Petra to
be the alternate port for disposal as this clause acts by providing an alternative specified
destination, which may take effect if certain conditions are met if the vessel concerned is
unable to proceed to its primary destination.12In Dahl v. Nelson13,the House of Lords held
that the term provided an alternativemethod of performance if arrival, loading or
unloading at the primary destination was prevented for an unreasonable time and possibly a
time which was so long as to make it impossible in the context of the charter as a whole.
Temporary obstacles such as low tides or, possibly ice would not generally permit the
alternative performance. In the present case the obstacle was temporary thus it did not give
the owners right to nominate another alternative port.
And there was even the absence of At any time of tide clause an approach is to be adopted
with regard to low or neap tides, at least tides encountered in the ordinary course of
navigation, 14unless the charter provides that the port shall be one which ships can reach at
any time of tide or contains a provision to similar effect, and even then a low tide would
usually result in a liability to pay damages rather than an entitlement on the owner to
discharge elsewhere. 15In the absence of such a term, the ship must await the required height
of tide, without liability on the charterer, unless to do so would result in delay for a period of
time which would be sufficient to frustrate the commercial purpose of the charter.
12

Supra 8, p.182.

13

[1880] 6 App. Cas. 38.

14

Per Lord Blackburn in Dahl v Nelson [1880] 6 App. Cas. 38, at p. 51.

15

Horsley v Price [1883] 11 Q.B.D. 244.

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III. Blue Star Lines is not entitled to the demurrage and dead freight.
The Voylayrules 1993 provide:NOTICE OF READINESS (NOR) shall mean the notice to
the charterer, shipper, receiver or otherperson as required by the charterparty that the vessel
has arrived at the port or berth as the case maybe and is ready to load or discharge.
It is humbly submitted that in the present case, no notice of readiness was served. It was
merely a notice of arrival which was issued when the vessel reached Petra. Petra was no port
and indeed, it cannot be said that after reaching Petra, the vessel was ready to load, i.e., the
laytime had commenced and the notice of readiness served. It is very common for berth
charters especially to incorporate always accessible/reachable on arrival terms allow for
notice of arrival to be given even if the berth is inaccessible. However, even with such terms
if the berth is in fact accessible the ship must proceed straight in to her berth to complete the
voyage before giving notice and in any case the vessel must still have arrived within the
port.16
Thus, Zeus and Company is not liable to pay damages for demurrages as in the first place the
notice of arrival is not valid for the commencement of laytime. It cannot be compared to
notice of readiness. So the laytime never commenced, and it was the fault of the shipowner
that they failed to make the vessel available at the port on designated time by missing the
tide. An owner has, at least in the absence of the express provision to the contrary in the
charterparty, no right to complain if the agreed port, dock or berth is not reachable on arrival
because of tides, weather or other natural hindrances or even because of entirely unexpected
human factors such as strikes or congestion; unless it is unsafe in which case, where safety is
impliedly (e.g. in cases other than that of a named location) or expressly warranted by the
charterer, there may be a breach by the charterer of a discrete term of the charterparty. 17
16
17

Bugden Paul, Demurrage Claims under Voyage Charterparties, Bugden & Co., 2012, p.2.
Ibid.

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Therefore, it is the respondent who failed to make available the vessel at the designated port
and the designated time and applicant cannot be held liable for demurrage in this matter.
As for claim for deadfreight, as stated in the fact sheet, the ship enrouted to Shangze with full
cargo on board as, full cargo was loaded, after ammunitions were loaded from the port of
Kripsto the owner is not entitled to claim dead freight, though the charterers instructed the
master to bring in the cargo so as to save from themselves from the claim it cannot be said
that the shipowners didnt knew of the same as in the voyage charter party the master is under
the authority of the owner and he sees as to the goods that are being carried, in case there had
been any objection the master had all the rights to cancel the voyage, which was not done in
the present scenario.
IV. Blue Star Lines is liable to compensate the applicant for the loss of goods.
The ship was under the command of the owner, and thus the contention that the master being
instructed by the charterers is not to valid.As proven earlier this is a voyage charterparty, the
master being instructed by the charterer is the special feature of the time charterparty as
opposed to a voyage charter party. Per Lord DiplockA time charter. . . is a contract for
services to be rendered to the charterer by the shipowner through the use of the vessel by the
shipowners own servants, the master and the crew, acting in accordance with such
directions as to the cargoes to be loaded and the voyages to be undertaken as by the terms of
the charter- party the charterer is entitled to give to them 18 Moreover in the case of Hill
Harmony19Lord Hobhouse explained, that the owner who, instead of time chartering his ship,
fixes her on voyage charters, is using the vessel to trade for his own account. He decides and
controls how he will exploit the earning capacity of the vessel, what trades he will compete
in, what cargoes he will carry. He bears the full commercial risk and expense and enjoys the
18

The Scaptrade [1983] 2 Lloyds Rep. 253, at pp. 256 to 257.

19

The Hill Harmony [2001] 1 Lloyds Rep. 147, at p. 156.

MEMORANDUM FILED ON BEHALF OF THE APPLICANTS

22
full benefit of the earnings of the vessel. Thus moving to the port of Kripsto though was
instructed by the charterer could not have been effected if the owner would have not agreed
to it.One of the holds of the vessel was lying empty.In order to exploit the space and earn
more freight, the owners took the risk of carrying ammunition which on being seized, they
want to escape liability.Therefore, it is pleaded that the applicant be paid the adequate
compensation by the owners of YA MAWLAYA for the loss of goods because this was not
the nominated port under the charterparty.
Furthermore, the vessel was carrying the flag of Republic of Liberia which means that it is
subject to the laws of that country. Per Rowlatt J, I do not think it could possibly be held that
it makes no difference under what flag a ship sails. The law of the flag is of direct importance
as affecting the status of the ship. It is also of importance in its collateral effects, as, for
instance, in determining the nationality and therefore to some extent the discipline and
morals of the crew and in many other respects.20 Regulation no. 10.296 of the Liberian
Maritime Regulations incorporates Masters duties and responsibilities. Clause (1) states that:
The Master has overriding authority and discretion to take whatever action he/she
considers to be inthe best interests of passengers, officers, crew,cargo, ship and the marine
environment. The master was employed by the shipowners in our case, thereby being an
agent of the respondent and the charterparty being a voyage party, makes the respondent
liable for loss of goods. Thus, it has to compensate the applicant for the same.
V. NAND APARAJITHA and INDIAN GRACE are entitled to remuneration for
salvage assistance rendered to ALIAKMON.
[A]NAND APARAJITHA should be paid special compensation for salvage assistance
rendered to ALIAKMON:It is humbly submitted before the court that the applicant is liable
20

Isaacs vMcAllum [1921] 3 K.B. 377 at p.386.

MEMORANDUM FILED ON BEHALF OF THE APPLICANTS

23
to be paid special damages by ALIAKMON as this concept is envisaged in Article 14(1) of
International Convention On Salvage, 1989: If the salvor has carried out salvage operations
in respect of a vessel which by itself or its cargo threatened damage to the environment and
has failed to earn a reward under article 13 at least equivalent to the special compensation
assessable in accordance with this article, he shall be entitled to special compensation from
the owner of that vessel equivalent to his expenses as herein defined.
Special compensation is available if the salvor has carried out salvage operations in respect
of a vessel which by itself or its cargo, threatened damage to the environment. Article 14(1)
entitles the salvor to special compensation, even if the salvage operation fails to prevent or
minimise damage to the environment. These provisions were considered by the House of
Lords in TheNagasaki Spirit21, which has also been accepted by the Apex court of India 22.
It is submitted that in the present case too such impending situations are there.
ALIAKMON is a bulk ship vessel which was sailing along the coast of Republic of Aaron
during its trial run when serious design and mechanical defects were noted by the engineers
of Blue Star Lines. Consequently, the vessel started taking in water and went into distress.
The people and marine life of the country was thus, under threat. Assistance was sought by
ALIAKMON from vessels in the vicinity, after which NAND APARAJITHA came to her
assistance. A hauser was connected and NAND APARAJITHA proceeded to tow the vessel
top safety. It was only when it entered the territorial waters of Republic of Sparta and
apprehensive of its own safety that it abandoned ALIAKMON. Being a bulk carrier vessel,
had the vessel drowned, it would indeed have been a serious threat to the people and marine
life of both the countries.

21

[1997] 1 Lloyds Rep 323, noted (1997) L.M.C.L.Q. 321.

22

Liverpool and London S. P. and I Association v M. V. Sea Success I and Another, (2004) 9

S.C.C. 512.

MEMORANDUM FILED ON BEHALF OF THE APPLICANTS

24
In such a serious situation of impending disaster, NAND APARAJITHA initially took the
effort to save the vessel and is thus, entitled to be paid for its labour. The rule already goes
that where doubt exists as to the value of the service, the court will resolve it in favour of the
salvor23. Keeping in mind the above convention and precedents, it is pleaded before the court
that NAND APARAJITHA should be awarded special damages for the services rendered.
[B] Service rendered by INDIAN GRACE is not towage but its salvage: Towage is one
form of marine assistance and salvage is a distinct form. Each operates under different rules
and produces potentially very different outcomes. 24 A salvor is generally a volunteer.25 Also
unlike salvage, which does not always depend upon a contract, towage services are always
rendered under a contract.26 In the present case, the service rendered by INDIAN GRACE is
voluntary service not pre-existing under any agreement. Towage and salvage are frequently
confused because salvage often includes the physical act of towing a distressed vessel out of
danger or back to shore for repairs. The main difference is that salvage always requires an
unanticipated peril at the time of rescue and towing is a propulsion service rendered
without such peril. 27 Even if a slight marine peril exists at the moment help arrives, then,
bylegal definition, the operation is salvage which entitles the salvor to claim a salvage award.
Therefore, it is pleaded before the Court that

NAND APARAJITHA and INDIAN

GRACE are entitled to remuneration for the salvage remuneration rendered by them to
ALIAKMON when it was faced by a situation of peril which was not in the anticipation of
any of the parties to the charter party agreement.
23
24

The EU (1853) 1 Ecc& Ad 63.


Quinn L. Vickey, Hard Aground: A Primer on the Salvage of Recreational Vessels,

U.S.F. Maritime Law Journal, Vol. 19, No. 2, 2006-07, p.331.


25

Sheppard MandarakaAleka, Modern Maritime Law Vol. 2: Managing Risks

AndLiablities, Informa Law from Routledge, 2013, p.583.


26

Ibid. p 582.

27

Supra 24.

MEMORANDUM FILED ON BEHALF OF THE APPLICANTS

25
VI. Xiang Ship Building Yard is entitled to the ownership of ALIAKMON.
The ship construction contract entered into between the applicant and respondent, dated 1 st
October, 2011, provided that the vessel would become the absolute property of the buyer
along with machinery, fittings and equipments earmarked for construction, upon the first
instalment of the purchase price being paid. But, Article XI clause (1) of the Norwegian Ship
Owners Association Form provides that: The Buyer shall become the owner of the Vessel
upon Delivery and Acceptance thereof.It is humbly submitted before the Honble Court that
Blue Star Lines has not yet paid the first instalmentof the contract price. Nothing in the facts
stated can be construed to mean that the applicant had received any amount of money from
the respondent. Besides this, inclusion of such a term in the contract is not in itself sufficient
to pass the title of the property to the other party.
In the case of Reid v. Macbeth,28 where a contract for the construction of a ship provided that
the vessel, as she is constructed and all materials from time to time intended for her
[wherever situated] shall immediately as the same proceeds become the property of the
purchasers, the House of Lords held that inspite of such sections in the contract, as a matter
of construction, such materials were still the property of the seller. The Earl of Halsbury, L.
C., expressed the view that those sections were intended by the parties to form a security,but
that which was sold was a complete ship.A shipbuilding contract is in principle a contract of
sale with the effect that the Norwegian Sale of Goods Act of 13 May 1988 (SA) applies to the
contractual relationship between the shipyard as seller and the customer as buyer. 29Article
XIX clause (1) of the NSA Form states that the validity and interpretation of the Contract and

28

[1904] A.C. 223.

29

Gosling James, Rebecca Warder (Editors), The Shipping Law Review, Law Business

Research Ltd, July 2014, p.404.

MEMORANDUM FILED ON BEHALF OF THE APPLICANTS

26
of each Article and part thereof shall be governed by the laws of the Kingdom of Norway.
Section 10 of the Norwegian Sale of Goods Act, 1988 provides that:
(1) If the seller has not been granted credit or deferral of payment, he is not obliged to hand
over the goods or any document or otherwise transfer control over the goods without
simultaneous payment of the price.
(2) If the seller is to ship the goods to another place, he may however not refrain from
shipping them but he may prevent the buyer from obtaining control over them until the price
has been paid.
Thus, it is humbly submitted that in a contract like this of sale of goods, the ownership cannot
pass to the buyer until full payment has been made. The NSA Form also incorporates the
same principle and the buyer is to become the owner of the vessel only after its delivery and
acceptance. As far as the registration of the ship is concerned, it is again not the final test to
determine the ownership. Evidence of ownership rests in the documents of registration of a
ship, to be found in the relevant ships registry. However, registration provides only prima
facie evidence of the registered owner being the true owner and it is not conclusive evidence
of ownership. The burden of proof shifts to the person alleging to be the owner.30
This burden of proof has been discharged in light of the arguments advanced above.
Therefore, Xiang Ship Building Yard must be declared the rightful owner of ALIAKMON.
VII. Blue Star Lines is liable to pay the outstanding construction charges of
ALIAKMON to Xiang Ship Building Yard.
It is humbly submitted before the Honble Court that the respondent has not yet paid the
contract price for the vessel constructed by the applicant. The applicant, pursuant to the said
contract, employed their materials and workforce and constructed the vessel as per the design
and specifications provided by the respondent. Moreover, work was speeded through upon
30

Supra 25, p.135.

MEMORANDUM FILED ON BEHALF OF THE APPLICANTS

27
the insistence of the respondent and the completed vessel was delivered on 1 st September,
2013.As per Article III clause (3) of the Norwegian Ship Owners Association Form, first
instalment of the contract price had to be paid three banking days after the contract was
entered into. But the respondent didnt make any payment to the applicant. For that matter,
thus, Xiang Ship Building Yard is entitled to the ownership of the vessel as well as the
outstanding construction charges to be paid by Blue Star Lines.
VIII. The applicant has not committed breach of contract and is thus, not liable to pay
to the respondent, any damages for the same.
As per the contract entered into between Blue Star Lines and Xiang Ship Building Yard, the
design and specification of the vessel had to be provided to the builder by the buyer. It is
most humbly submitted that the applicant have totally acted in accordance with whatever
design and specifications that had been provided by the buyer. And so, the applicant should
not be made liable for the fault of the respondent. Every other warranty, condition or
guarantee implied by the statute had already been expressly excluded from the contract.
Under the contract, the builder was to be held liable only for any kind of defective
workmanship or defect in materials. It is submitted that this is no case of use of defected
materials or defective workmanship. The builder acted on the demands of the buyer and thus,
it cannot in any case be held liable for the committing breach of contract.
Otherwise also, it is because of the fault of the buyer only that the vessel ALIAKMON went
in distress. Section 40 of the NSG Act states that:The buyer may claim damages for the loss
he sustains as a consequence of the lack of conformity of the goods, unless the seller proves
that the lack of conformity of the delivery is due to an impediment as mentioned in S. 27
above. The other rules of ss. 27 and 28 will similarly apply.The provision with regard to the
impediment in S. 27 is as follows:(3) The exemption from liability is effective for the duration

MEMORANDUM FILED ON BEHALF OF THE APPLICANTS

28
of the impediment. If the impediment ceases, the seller may be held liable if he is then obliged
to perform but fails to do so.
It is humbly submitted before the Honble Court that the defects found in the vessel are
because of the fault of the buyer itself, which was in the nature of an impediment that was not
foreseen by the applicant. The shipbuilding contract entered to in between the applicant and
respondent, inter alia provided that best endeavours had to be made for completing the
construction of the vessel by 1 st September 2013. It was pointed out by the Court of Appeal in
Little v. Courage Ltd (1995)31 that an undertaking to use ones best endeavours to agree
is no different from an undertaking to agree, to try to agree or to negotiate with a view to
reaching agreement; all are equally uncertain and incapable of giving rise to an enforceable
legal obligation. In Covington Marine Corporation and Others v. Xiamen Shipbuilding
Industry Co. Ltd 32 too (at page 757), the High Court (Langley J.) described it as trite law
that an agreement to agree is of no effect and clearly accepted that this principle is not
affected by the addition of language imposing upon the parties a commitment to use best or
reasonable endeavours to reach agreement.Therefore, when the respondent started insisting
on the delivery of the vessel before 1st September, 2013 due to their own apprehensions, work
was speeded through by the applicant. If it were not for this haste made by the buyer for their
own convenience, the situation would indeed have been otherwise. So, the applicant cannot
be held liable for breach of contract.

31

(1995) 70 P. & C. R. 469.

32

[2006] 1 Lloyds Rep. 745.

MEMORANDUM FILED ON BEHALF OF THE APPLICANTS

29

PRAYER
Zeus & Co. v. YA MAVLAYA
Wherefore, in the lights of facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed and submitted before the High Court of Judicature at Scindia
that it may be graciously pleased to exercise jurisdiction over the matter, and adjudge and
declare that:
a) The action is not barred before the High Court of Scindia.
b) Blue Star Lines must compensate Zeus & Co. for the loss of goods and violation of
charter party terms.
c) Zeus & Co. is not liable to pay any damages to Blue Star Lines in the nature of
demurrages and dead freight.
And pass any other order that it may deem fit against the respondent in ends of equity, justice
& good conscience.
All of which is most humbly and respectfully submitted.
Place: High Court of Judicature at Scindia
Date: -- /-- /20--

S/d
COUNSEL FOR THE APPLICANT

NAND APARAJITHA & INDIAN GRACE v. ALIAKMON


Wherefore, in the lights of facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed and submitted before the High Court of Judicature at Scindia
that it may be graciously pleased to exercise jurisdiction over the matter, and adjudge and
declare that:

MEMORANDUM FILED ON BEHALF OF THE APPLICANTS

30
a) NAND APARAJITHA and INDIAN GRACE are entitled to remuneration for
salvage assistance rendered to ALIAKMON.
And pass any other order that it may deem fit against the respondent in ends of equity, justice
& good conscience.
All of which is most humbly and respectfully submitted.
Place: High Court of Judicature at Scindia

S/d

Date: -- /-- /20--

COUNSEL FOR THE APPLICANT


Xiang Ship Building Yard v. ALIAKMON

Wherefore, in the lights of facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed and submitted before the High Court of Judicature at Scindia
that it may be graciously pleased to exercise jurisdiction over the matter, and adjudge and
declare that:
a) Xiang Ship Building Yard is entitled to the ownership of ALIAKMON.
b) Blue Star Lines is liable to pay the outstanding construction charges of
ALIAKMON to Xiang ship Building Yard.
c) Xiang ship Building Yard has not committed breach of contract and is thus, not liable
to pay any damages for the same.
And pass any other order that it may deem fit against the respondent in ends of equity, justice
& good conscience.
All of which is most humbly and respectfully submitted.
Place: High Court of Judicature at Scindia
Date: -- /-- /20--

S/d
COUNSEL FOR THE APPLICANT

MEMORANDUM FILED ON BEHALF OF THE APPLICANTS