Petitioner Memorial

IN THE HONBLE
SUBJECT MOOT COURT, SSLG
JNU, JAIPUR

SEEDLING SCHOOL OF LAW & GOVERNANCE

JAIPUR NATIONAL UNIVERSITY

CASE CONCERNING THE COMPROMIS

Vito Corleone Ltd

[Applicant]
VERSUS
Don Bosco Pvt Ltd
[Respondent]
ON SUBMISSION TO THE HONBLE HONBLE
SUBJECT MOOT COURT, JNU JAIPUR
MEMORIAL OF PETITIONER
Submitted to:

Submitted by:

Mr Rahul Srivastava

Yesha rahu

Asst. Professor

B.A.LL.B (Hons)
VIII sem (IV year)

Petitioner Memorial
TABLE OF CONTENTS
INDEX OF AUTHORITIES.....03
Statutes..03
Cases referred.03
JURISDICTION.04
STATEMENT OF RELEVANT FACTS...05
QUESTIONS PRESENTED..08
ARGUMENTS ADVANCED....10
PRAYER12

Petitioner Memorial
INDEX OF AUTHORITIES
Statutes
o Carriage of Goods by Sea Act 1971
Cases referred:

Fetim B.V. -V- Oceanspeed Shipping

Sunrise Maritime -V- Uvisco
Royal Exchange Shipping Co Ltd Vs Dixon
Nicholas V. Marsland
Greenock V Caledonian Rly

Petitioner Memorial

JURISDICTION
The present petition will to the Subject Moot Court, SSLG, JNU, Jaipur as both the parties
agreed in to contract for any dispute arising will be governed by English law.

Petitioner Memorial
STATEMENT OF FACTS
1. Jack owns a vineyard in Kent, United Kingdom. On the 20 th January, 2014 he sold
200,000 bottles of Medway Wine on CIF terms to Sabrina who is the Managing
Director of a wine wholesale business called Vito Corleone Ltd.. The goods were to
be shipped from Southampton, UK, to Singapore.
2. Jack entered into a contract with Don Bosco Pvt Ltd for the carriage of the wine. The
contract was to be governed by English law and any disputes arising thereof were to
be referred to the Subject Moot Court, SSLG, JNU, Jaipur
3. Don Bosco Pvt Ltd time chartered the vessel from Atlantis and was operating the
vessel as a liner vessel on a UK to Singapore route.
4.

The bottles of wine were put into containers and were shipped from Southampton by
Don Bosco Pvt Ltd, who issued a clean bill of lading for them, naming Jack as the
shipper and Vito Corleone Ltd as the consignee.

5.

Jack presented the documents which included the bill of lading to Vito Corleone Ltd
who accepted and paid against them. The box entitled the Carrier on the front of the
Bill of Lading was signed by Don Bosco. However, there was a clause which was
printed in bold letters on the front of bill of lading stating that the bill of lading could
only take effect as a contract with the owners of the vessel and further details were on
the back of the bill of lading. However, the print on the back of bill was almost
illegible. In addition, another clause on the front of the bill stated that all the claims in
respect of goods shipped in or out of Singapore were subject to The Hague Rules.

6.

Two of the containers were stowed on deck on appropriate stacking shoes for the
carriage of containers. However, this was not mentioned on the bill of lading.

7.

During the voyage, due to severe weather conditions, the containers which were
stored on deck were lost overboard.

8.

On the day the vessel arrived in Singapore, a new duty was introduced whereby any
wine being brought into Singapore had to be paid $25 per bottle before being
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Petitioner Memorial
discharged. As this was a new requirement the Master of the vessel paid the duty and
gave instructions that upon discharge the goods were to be put into storage and only
released upon reimbursement of the duty by Vito Corleone Ltd.
9.

Vito Corleone Ltd now wishes to claim from Don Bosco Pvt Ltd; (a) the consignment
without reimbursing the duty already paid by the master of the ship. (b) damages
under the bill of lading for the loss of the two containers, as the insurance has refused
their claim for the loss.

10. Don Bosco Pvt Ltd claim that they are not liable as per the clause which was printed
in bold letters on the front of bill of lading stating that the bill of lading could only
take effect as a contract with the owners of the vessel and further details were on the
back of the bill of lading. Further, the goods could be released on reimbursement of
the duty paid.
11. As negotiations between Vito Corleone Ltd and Don Bosco ended in failure, both
parties agreed to refer their respective claims to the Subject Moot Court, SSLG, JNU,
Jaipur by a Special Agreement (Compromis) dated 02 March 2016. The Compromis
asked the Court to resolve the issues set out in paragraphs 9 and 10 above. The Teams
are to prepare arguments as applicant and respondent

Petitioner Memorial
QUESTIONS PRESENTED
Issue I: Whether the Respondent is liable for the lost cargo?
Issue II: Whether The master of the ship is obliged to release the cargo
until the duty is paid?

Petitioner Memorial
ARGUMENTS ADVANCE
Issue I: Whether the Respondent is liable for the lost cargo?
The Carriage of Goods by Sea Act, 1992 creates a relationship of privity between a carrier
and the parties to a contract for the carriage of goods by sea. In law, the Respondent was the
carrier, as evidenced by their signature on the front of the Bill of Lading, irrespective of the
text on the front of the Bill and the nearly illegible details on the back purporting to limit its
scope and application. In the alternative, even if there is no relationship of contractual privity
between the Respondent and the Applicant, the Applicant can sue in tort for negligent
carriage of the cargo.The clean Bill of Lading issued in this case created the presumption that
the goods would be stored below deck. The Carriage of Goods by Sea Act 1992 has provided
such a position to the bill of lading consignee or endorsee that it has given him rights and he
has also got liabilities for the cargo in the contract of the carriage. The Carriage of Goods by
Sea Act, 1992 creates a relationship of privity between a carrier and the parties to a contract
for the carriage of goods by sea.
In Fetim B.V. -v- Oceanspeed Shipping ("The Flecha") [1999] 1 LLR 612 Moore-Bick J held
that the owners were the contracting carrier in a bill of lading contract as the demise and
identity of carrier clause on the back of the bill clearly indicated that result, even though
another company was described as the carrier on the front of the bill.
Unreasonably and in breach of its obligations, the Respondent stored the goods above deck,
leading directly to the loss suffered by the applicant. That the goods were stored above deck
constituted a fundamental breach of the contract of carriage. Therefore, the Respondent
cannot invoke to its benefit any of the limitations in the contract or the Hague rules.
Where the goods are stowed on deck but there is no mention in
the bill of lading to that effect, in that case the Rules are applied.
Alternatively, the subject being difficult clearly if the bill of
lading does not in fact state that the goods are stowed on deck but
simply gives the carrier carefulness so to do.
A special care needs to be taken on the part of the carrier when the
goods are stowed on deck and have always been treated as a very
serious form Stag Line Ltd v Foscolo, Mango & Co.
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Petitioner Memorial
Furthermore, this will increase a usual right of repudiation of the
contract was measured in Kenya Railways v Antares Co Pte Ltd.
The carrier is allowed to carry cargo on deck if he fulfilled the
requirement of the clause providing in the bill of lading and the
shipper doest have any objection, Encyclopaedia Britannica v
Hong Kong producer in which the bill authorised the carrier to
stow the cargo on deck, unless shipper informs carrier in writing
before the delivery of goods to carrier that he requires under
deck.'
In the above problem, the goods are damage by sea water when
arrived at destination; the carrier will not escape from his liability
because Art I (c) is not applicable as it states that the cargo is
being carried on deck but the Clause 13 says that , it may be so
carried but not the way it being so carried. In view of the fact that,
no carrier can tell from the bill that the cargo was being carried
below deck or on deck. On the other hand, if the carrier wants to
take a benefit from Art I (c) in order to avoid their action, then it
will be necessary to contain an express statement in the bill that
the goods have been stowed on deck. If the carrier decided to
carry cargo or pallet on deck without the consent of the shipper, in
that case the carrier was not allowed to take advantage from the
defence afforded by The Hague Visby Rules, and in exacting the
limitation of liability provision.
In any event, the poor weather conditions that led the goods being
swept overboard were entirely foreseeable and did not constitute
an Act of God or other other form of excluded liability under the
Hague-Visby rules. The bill of lading must be read contra
proferentem -- any onerous terms excluding liability would need
to have been made clear to the Applicant The Respondent bears
the burden of proof in establishing that the ship was seaworthy.
There is no evidence on the record that the ship was seaworthy.
The Respondent cannot avail itself of any defence of due
diligence in the absence of The Respondent cannot rely on the
clause on the bill of lading that states it can only take effect as a
contract with the owners of the vessel. The identity of carrier
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Petitioner Memorial
clause is presumptively invalid as it is contrary to article 3(8) of
the Hague Visby Rules. The charterer is a joint carrier with the
owner of the ship, and as such, bears responsibility for the safe
delivery of the cargo. Article 3(8) states that any clause purporting
to relieve the carrier of liability for loss or damage to cargo is null
and void.
The Master of the ship must immediately and unconditionally release the consignment
because: The Master had no right to impose a maritime lien on the applicants goods. Indeed,
in refusing to relinquish possession of the consignment, the Master may be liable in tort for
conversion. There was no mention of a lien clause in the bill of lading or the charterparty.
Neither can the Respondent avail themselves of the common law possessory lien as they are
not a common carrier. Alternatively, if there was a lien clause in the charterparty, it would not
be binding on the holder of a bill of lading unless it were explicitly incorporated into the bill
of lading. The failure to deliver the consignment is a fundamental breach of the contract of
carriage.

PRAYER
In the light of the facts stated, issues raised, authorities cited and arguments advanced, it is
most humbly prayed before this Honorable Supreme Court that it may be pleased:

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Petitioner Memorial
To immediately ask the master to release the consignment and respondent to be held
liable for lost cargo
Any other order it deems fit in the interests of justice, equity and good conscience.
All of which respectfully submitted by the Petitioner.

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