Case 1:23-cv-00445 Document 1-10 Filed 12/08/23 Page 1 of 21 PageID #: 217

IN THE MATTER OF AN ARBITRATION

UNDER
THE INTERNATIONAL ARBITRATION ACT (CAP.143A)

Between:

CH OFFSHORE LTD.

…Claimants/Owners
And

MEXISHIP OCEAN CCC S.A DE C.V.

…Respondents/Charterers

"M LUISA" (ex “TURQUOISE”)

Bareboat Charter Party dated 21 May 2021

_______________________________

STATEMENT OF CLAIM
AND
APPLICATION FOR A FINAL PARTIAL AWARD

(Amendment No.1)

Amended as deleted and underlined in black on 12 June 2023

pursuant to the Order of the Tribunal dated 5 June 2023

_______________________________

A. INTRODUCTION

1. This is the Claimants’ Statement of Claim and Application for a Partial Award in the
above captioned arbitration. There is appended to these submissions a three bundles of
documents to which reference is made in these submissions in the form [SOC/page
number], [SOC(2)/page number] and [MI/page number].
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2. The matters pleaded pursuant to Amendment No.1 have arisen since the issue of the
Statement of Claim and Application for a Final Partial Award served on 14 December
2022, the leave for such amendments having been allowed by the Tribunal pursuant to
the “Tribunal’s Amended Order on Claimant’s Application for an Interim Mandatory
Injunction to Re-deliver the Vessel “M Luisa” (Ex Turquoise) to the Claimant” re-dated
5th June 2023. References will be made herein to the Statement of Defence served on 13
February 2023 [SOD].

B. BACKGROUND

2.3. The Claimants, CH Offshore Ltd. (UEN number 197600666D) (“Owners”), are a
company incorporated under the laws of the Republic of Singapore and the registered
owners of the vessel the “M Luisa” IMO number 9380221, formerly known as the
“Turquoise” (the “Vessel”).

3.4. The Respondents, Mexiship Ocean CCC S.A De C.V. (“Charterers”), are a company
incorporated under the laws of Mexico.

4.5. Pursuant to an amended BIMCO BARECON 2017 form (the “BBC”) dated 21 May
2021 [SOC/1], the Vessel was bareboat chartered by the Owners to the Charterers. The
BBC also incorporates the terms of a Financial Lease Agreement dated 21 May 2021
(the “FLA”) [SOC/25] translated by a certified translator [SOC/69] and a Supplemental
Agreement dated 21 May 2021 (the “Supplemental Agreement”) [SOC/82].
Collectively these documents are referred to herein as the “Charterparty”.

5.6. Clause 39 of the BBC and Clause 1 of the Supplemental Agreement provides that the
terms of the BBC take priority and prevail over any ambiguity, discrepancy or conflict
with any other documents including the Supplemental Agreement and FLA.

6. As on the date of this application, the Charterparty is continuing, and the Vessel remains
on charter to the Charterers.

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C. THE CHARTERPARTY

7. The BBC, to which the Owners will refer as necessary, provides materially as follows:

Box 17:

“Charter hire (state currency and amount) (cl.2, 10 and 15)

(i) Charter hire: USD6,000/- (United States Dollars Six thousand only) per day
nett to Owners, inclusive of mud tanks plant facility fitted onboard.

Grace period of 30 calendar days at zero charter hire to Charterers.

Standby Charter hire rate of USD3,500/- (United States Dollars Three

Thousand Five Hundred only) per day nett to Owners to apply:
i) Before commencement of operations.
Standby Charter hire to be applicable after 30 day grace period until
commencement of operations.
ii) During any vessel breakdown periods up to a maximum of 30 calendar
days
This standby charter hire is to be paid direct to Owner’s bank account as per
box 20.”

Clause 10 (Redelivery):

“At the expiration of the Charter Period the Vessel shall be redelivered by the
Charterers and taken over by the Owners at the port or place stated in Box 12 at such
readily accessible safe berth or mooring as the Owners may direct.

The Charterers shall keep the Owners informed of the Vessel’s itinerary for the voyage
leading up to redelivery and shall serve the Owners with the number of days
approximate/definite notices of the Vessel’s redelivery stated in Box 13.

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The Charterers warrant that they will not permit the Vessel to commence a voyage
(including any preceding ballast voyage) which cannot reasonably be expected to be
completed in time to allow redelivery of the Vessel within the Charter Period and in
accordance with the notices given. Notwithstanding the above, should the Charterers
fail to redeliver the Vessel within the Charter Period, the Charterers shall pay the daily
equivalent to the rate of hire stated in Box 17(i) applicable at the time plus ten (10) per
cent or the market rate, whichever is the higher, for the number of days by which the
Charter Period is exceeded. Such payment of the enhanced hire rate shall be without
prejudice to any claims the Owners may have against the Charterers in this respect. All
other terms, conditions and provisions of this Charter Party shall continue to apply.

Subject to the provisions of Clause 13 (Maintenance and Operation), the Vessel shall
be redelivered to the Owners in the same condition and class as that in which it was
delivered, fair wear and tear not affecting class excepted.

The Vessel upon redelivery shall have her survey cycles up to date and class certificates
valid and unextended for at least the number of months agreed in Box 6(ii) free of any
conditions or recommendations. If Box 6(i) is not filled in, then six (6) months shall
apply.”

Clause 13(f) (Flag and Name of Vessel):

“During the Charter Period, the Charterers shall have the liberty to paint the Vessel in
their own colours, install and display their funnel insignia and fly their own house flag.
The Charterers shall also have the liberty, with the Owners' prior written consent, which
shall not be unreasonably withheld, to change the flag and/or the name of the Vessel
during the Charter Period. Painting and re-painting, instalment and re-instalment,
registration and re-registration, if required by the Owners, shall be at the Charterers'
expense and time.”

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Clause 13(g) (Changes to the vessel):

“Subject to subclause 13(b) (New Class and Other Regulatory Requirements), the
Charterers shall make no structural or substantial changes to the Vessel without the
Owner’s prior written approval. If the Owners agree to such changes, the Charterers
shall, if the Owner so require, restore the Vessel, prior to redelivery of the Vessel, to its
former condition.”

Clause 14:

“14. Inspection during the Charter Period

The Owners shall have the right at any time after giving reasonable notice to the
Charterers to inspect the Vessel or instruct a duly authorized surveyor to carry
out such inspection on their behalf to ascertain its condition and satisfy
themselves that the Vessel is being properly repaired and maintained or for any
other commercial reason they consider necessary (provided it does not unduly
interfere with the commercial operation of the Vessel).
The fees for such inspections shall be paid for by the Owners. All time used in
respect of inspection shall be for the Charterers’ account and form part of the
Charter Period.
The Charterers shall also permit the Owners to inspect the Vessel’s class
records, log books certificates, maintenance and other records whenever
requested and shall whenever required by the Owners furnish them with full
information regarding any casualties or other accidents or damage to the
Vessel.”

Clause 15:

“15. Hire
(a) The Charterers shall pay hire due to the Owners punctually in accordance
with the terms of this Charter Party.
(b) The Charterers and Owners shall set up a trust fund as joint signatories. In
addition, parties shall set up a joint USD bank account with an international

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bank also as joint signatories. The charter hire in relation to the Charterer’s
Charter with Charterer’s client (“Client Charter Hire”) will be paid into the
joint bank account. The trust fund will dictate that the Charter hire in
relation to this Charter will be paid to the Owner from this joint bank
account before any other deductions from the joint bank account are made.
However, in the event that Client Charter Hire has not been paid into the
joint bank account for any reason or there are insufficient funds in the joint
bank account for payment of the Charter hire, the Charterer is still liable for
the Charter hire payable to the Owner and shall make prompt payment to
the Owner. Charter hire shall be paid continuously throughout the Charter
Period. In the event that the trust fund is not set up in time 45 days after
commencement of end client operations, charterers are to make charter hire
payments to owner’s account as per box 20.
(c) Payment of hire shall be made to the Owners’ bank account stated in Box
20.
(d) All payments of Charter hire and any other payments due under this Charter
shall be made without any set-off whatsoever and free and clear of any
withholding or deduction for, or on account of, any present or future income,
freight, stamp or other taxes, levies, imposts, duties, fees, charges,
restrictions or conditions of any nature. If the Charterers are required by
any authority in any country to make any withholding or deduction from any
such payment, the sum due from the Charterers in respect of such payment
will be increased to the extent necessary to ensure that, after the making of
such withholding or deduction the Owners receive a net sum equal to the
amount which it would have received had no such deduction or withholding
been required to be made….”

Clause 32 (Repossession):

“In the event of the early termination of this Charter Party in accordance with the
applicable provisions of this Charter Party, the Owners shall have the right to repossess
the Vessel from the Charterers at its current or next port of call, or at a port or place
convenient to them without hindrance or interference by the Charterers, courts or local
authorities. Pending physical repossession of the Vessel, the Charterers shall hold the

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Vessel as gratuitous bailee only to the Owners. The Owners shall arrange for an
authorised representative to board the Vessel as soon as reasonably practicable
following the termination of this Charter Party. The Vessel shall be deemed to be
repossessed by the Owners from the Charterers upon the boarding of the Vessel by the
Owners' representative. All arrangements and expenses relating to the settling of wages,
disembarkation and repatriation of the Crew shall be the sole responsibility of the
Charterers.

Part V Clause 3:

“Upon termination of this Charter Party for any reason whatsoever the Charterers shall
immediately arrange for the deletion of the Vessel from the Bareboat Registry.”

Box 26:

“Dispute Resolution (state 33(a), 33(b), 33(c) or 33(d); if 33(c) is agreed, state
Singapore or English law; if 33(d) is agreed, state governing law and place of
arbitration) (Cl.33)
(d) English law. Arbitration in Singapore via SIAC rules. One Arbitrator
English Language.”

Clause 33:

“33. BIMCO Dispute Resolution Clause 2017

(d)* This Charter Party shall be governed by and construed in accordance with
the laws of the place mutually agreed by the Parties and any dispute arising out
of or in connection with this Charter Party shall be referred to arbitration at a
mutually agreed place, subject to the procedures applicable there.”

8. Furthermore, Article III of the FLA provides for hire payments to be made “monthly in
advance”.

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9. The trust fund mentioned in Clause 15(b) of the BBC was not set up. Hence, the
Charterers are required to make hire payments to the Owners’ account as identified in
Box 20, which in turn refers to the bank details as set out in the Owners’ invoices. In
fact, all of the hire payments that the Charterers have made were made directly to the
Owners’ account [SOC/86 – 88].

D. OUTSTANDING HIRE

10. The Vessel was delivered to the Charterers on 2 June 2021 at Tuxpan De Rodriguez
Cano, Mexico [SOC/89]. Pursuant to Box 17 of the BBC, the grace period of “30 days
at zero charter hire” commenced therefrom.

11. By agreement, the standby charter hire rate of USD 3,500 per day (the “Standby Rate”)
started running from 10 September 2021. It was further agreed between parties that the
Standby Rate would continue to run until the Vessel sailed out of Tuxpan port to
commence operations, after which, the full charter hire rate of USD 6,000 per day would
then apply (the “Full Rate”). [SOC/91]

12. On 19 January 2022, the Vessel sailed out of Tuxpan [SOC/93 & 94]. Accordingly, the
Full Rate started running from this date and hire continues to be payable by the
Charterers to the Owners at this rate.

13. On 18 May 2022, the Charterers acknowledged and accepted that a debt was due and
owing to the Owners on that date in the sum of USD 824,333.25 and proposed a payment
plan that was not acceptable to the Owners [SOC/97]. This was the outstanding sum
due and owing to the Owners on 2 May 2022. This can be seen reflected in the Owners’
statement of account dated 13 December 2022 [SOC/99]. This sum remains unpaid.

14. As set out at paragraphs 25 to 26 below, the Charterparty was terminated on 13 April
2023.

14.15. Pursuant to the latest statement of account dated 9 June 2023 [SOC(2)/10] mentioned
above [SOC/99] (the underlying invoices referred therein are exhibited at [SOC/100 –

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116] and [SOC(2)/3-6 & 9]), including hire that has accrued since 2 May 2022, the total
unpaid hire up to 13 April 2023now amounts to the sum of USD 2,108,333.25 USD
2,726,333.25 due and owing by the Charterers to the Owners (the “Outstanding Hire”)
which will continue to accrue thereafter.

15.16. Despite the Charterers’ repeated requests for payment of the Outstanding Hire, the
Charterers have to-date failed to make payment of the same. This failure amounts to a
breach of, inter alia, Box 17 and clause 15 of the BBC, and Article III of the FLA.

16.17. The Owners hereby apply for a Partial Award in respect of the Outstanding Hire, whilst
requesting that the Tribunal retains its jurisdiction to deal with any other disputes that
may arise under the Charterparty in due course, including but not limited to, any further
outstanding or unpaid hire installments.

17.18. This Partial Award is requested pursuant to the Tribunal’s jurisdiction under Section
32.5 of the SIAC Rules (2016) which entitles the Tribunal to make separate Awards on
different issues at different times.

E. THE OWNERS’ RIGHT TO INSPECT THE VESSEL ON NOTICE

18. Pursuant to Clause 14 of the BBC, the Owners are entitled to inspect the Vessel during
the charter period after giving reasonable notice.

19. In or around April 2022, the Owners requested the Charterers to allow its
representatives to board the Vessel to inspect and ascertain the Vessel’s condition in
order to satisfy themselves that the Vessel was being properly repaired and maintained.
[SOC/117 – 121 & SOC/122 – 126] However, in breach of Clause 14 of the BBC, the
Charterers have to-date failed to allow any inspection.

20. The Owners hereby apply for a declaration that:-

(i) The Owners have the right after giving reasonable notice to the Charterers to
inspect the Vessel or to instruct a duly authorised surveyor to carry out such an

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inspection on their behalf to ascertain its condition and satisfy themselves that
the Vessel is being properly repaired and maintained or for any other commercial
reason, provided it does not unduly interfere with the commercial operation of
the Vessel;

(ii) That all time used in respect of the inspection mentioned at paragraph 20(i)
above shall be for the Charterers’ account and shall form part of the charter
period; and

(iii) That the Charterers are required to permit the Owners to inspect the Vessel’s
class records, log books certificates, maintenance and other records whenever
requested and shall whenever required by the Owners furnish them with full
information regarding any casualties or other accidents or damage to the Vessel.

21. The Owners request this declaratory relief pursuant to the Tribunal’s interim powers
pursuant to Section 30.1 of the SIAC Rules 2016.

22. The Owners are mindful of the principles set out in Rolls-Royce Plc v Unite the Union
[2009] EWCA Civ 387 which are applicable to the exercise of the Tribunal’s discretion
in granting declaratory relief. In this respect:-

(i) A declaration is requested on the basis that there is a real and present dispute
between the parties as to the existence or extent of a legal right between them.
This concerns the Owners’ contractual right to inspect the Vessel;

(ii) A declaration is also the most effective way of resolving the issue. The Owners
are requesting a straightforward declaration of its contractual rights as contained
in Clause 14 of the BBC. The Owners are advised by their Mexican counsel that
a declaration of these contractual rights, issued by the Tribunal, would be readily
enforceable through the Mexican Courts; and

(iii) Damages would be an inadequate remedy. This is because the Charterparty is

continuing and, in order for the Owners to assess whether their asset is being

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properly repaired and maintained in accordance with the terms of the

Charterparty, they require access to the Vessel. Furthermore, damages would be
an inadequate remedy as there is a risk that the Vessel will be damaged beyond
economic repair and, in any event, there are concerns as to whether the
Charterers would ultimately be able to satisfy an award in damages issued
against them.

F. BACKGROUND TO THE TERMINATION OF THE CHARTERPARTY AND

THE CHARTERERS’ FAILURE TO REDELIVER THE VESSEL

19. The Charterparty was for a period of “18 MONTHS PLUS 2 EXTENSIONS OF 6
MONTHS EACH”. Box 18 of the BBC required the Charterers to declare any extensions
“six (6) months prior to completion of firm period”. Box 10 and Clause 10 required the
Charterers to keep the Owners informed of the Vessel’s itinerary leading up to
redelivery and serve compliant redelivery notices 6 months in advance. [SOC/1]

20. The Vessel was delivered to the Charterers on 2 June 2021 (SOC §10; SOD §8) and
went on-hire on 10 September 2021 when the renewed Class Certificate was obtained.
[SOC/89-92] Accordingly, the initial 18-month period ended on 2 December 2022, or
alternatively on 10 March 2023 at the latest.

21. On 7 February 2023, the Owners wrote to the Charterers via their respective appointed
solicitors to remind the Charterers of their obligation to redeliver the Vessel upon the
completion of the charter period. This message also noted that the Charterers have not
exercised an option to extend the charter period. [MI/3] The Charterers did not respond
to this message.

22. On 22 March 2023, the Owners wrote to the Charterers again via their respective
appointed solicitors stating that the Charterers were in breach of the Charterparty in
failing to redeliver the Vessel upon the completion of the charter period. This message
also noted again that the Charterers have not exercised their option to extend the charter
period and had not served any compliant redelivery notices. The Charterers were asked

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to advise when they intended to redeliver the Vessel. [MI/4]. The Charterers did not
respond to this message.

23. On 5 April 2023, the Owners wrote to the Charterers giving three banking days’ notice
pursuant to Clause 15(e) of the BBC to remedy their non-payment of the hire instalment
that fell due on 31 March 2023. [MI/6]

24. On 6 April 2023, the Charterers responded alleging, inter alia, that the Owners were
responsible for the lack of payment of hire and stated “Should you terminate the
contract, losses will be increased and will be claimed to you.”1 [MI/8]

25. On 13 April 2023, the Owners wrote to the Charterers accepting the Charterers’
repudiatory and/or renunciatory breaches of the Charterparty, as identified therein, as
terminating the Charterparty. The Owners also, and/or in the alternative, exercised their
right to terminate the Charterparty in accordance with Clause 15(e) and/or 31(a) of the
BBC. This message read as follows:-

“To Mexiship Ocean CCC S.A. De C.V.

From CH Offshore Ltd

Dear Sirs,

Re: TURQUOISE (now known as M LUISA) (the “Vessel”) – charterparty dated 21

May 2021 (the “Charterparty”)

NOTICE OF TERMINATION

A total amount of US$ 2,828,333.25 in outstanding hire is now due and owing to
Owners. This does not include the uplift (of the higher of 10% or the market rate)
for the number of days the charter period was exceeded, which is also due and
owing to Owners and shall be calculated in due course. Your failure to pay hire due

1 Sections of messages which may attract privilege have been redacted.

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and owning under the Charterparty is part of a pattern of repeated and consistent
non-performance of your hire obligations and is wholly inconsistent with your
fundamental obligation under the Charterparty which requires regular payments of
hire monthly in advance. This leads to the inevitable conclusion that you have no
intention to clear off the arrears or to pay hire in the future in accordance with that
obligation, all of which is reinforced and confirmed by your failure to pay anything
in response to our notice served on 5 April 2023.

Further and/or alternatively, you have materially failed to comply with other
fundamental terms of the Charterparty. These failures include, without limitation,
making structural and/or substantial changes to the Vessel without Owners’
approval and failing and/or refusing to allow Owners reasonable access to inspect
the Vessel.

You have also failed to redeliver the Vessel to Owners upon the expiry of the
maximum permitted charter period. This is compounded by the fact that you failed to
respond to our messages, sent via legal counsel, on 7 February 2023 and 22 March
2023, in which we reminded you of your obligation to redeliver the Vessel upon the
completion of the charter period and to serve compliant redelivery notices.

The aforementioned notices and failures, amongst others (including failures of

which we are not currently aware), evince a clear intention by Charterers to no
longer be bound by the terms of the Charterparty.

In the circumstances, we hereby accept the repudiations as aforementioned, and/or

your continuing renunciation as aforesaid, as terminating the Charterparty. Without
prejudice to that we hereby exercise our right to terminate the Charterparty in
accordance with clause 15 (e) / 31(a) of the Charterparty.

We hereby require the Vessel to be returned to us immediately, at Dos Bocas,

Tabasco, in the same condition in which it was delivered (in accordance with Clause
10 and 13(g)). You are also required to immediately arrange for the Vessel to be
deleted from the Bareboat Registry in accordance with Part V, Clause 3. You must

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also take all necessary steps and render any necessary assistance to Owners for the
Vessel to be re-registered and re-flagged with the Singapore Flag at Charterers’
expense and time in accordance with Clause 13 (f) and perform all acts necessary
required to cancel the Temporary Import Permit of the Vessel and facilitate its legal
return out of Mexico. Should you fail to comply with any and/or all of these
obligations, Owners shall claim all resulting costs, losses and damages from
Charterers.

We reserve all of our rights and remedies including in respect of accrued hires and
all costs/expenses/delays which may occur as a result of your failure to comply with
the Charterparty.” [MI/9]

26. Hence, the Charterparty was terminated on 13 April 2023. Despite this, the Charterers
have wrongfully failed and/or refused to redeliver the Vessel to the Owners. To-date,
the Charterers wrongfully remain in possession of the Vessel.

27. The Owners have written to the Charterers on numerous occasions requesting that the
Charterers deliver up the Vessel and informing the Charterers that the Owners were
ready to take over possession:-

(i) On 18 April 2023 the Owners wrote to the Charterers stating, inter alia, that:

“Charterers are required to redeliver the Vessel into Owners’ possession

immediately. Owners are ready to take over possession of the Vessel. Please
advise by return Charterers’ proposals as regards the timing and place of the
handover.” [MI/10]

(ii) On 19 April 2023, the Charterers responded stating, inter alia, that:

“We would like to make you aware that we have already taken steps to address
the issues with the vessel. Specifically, we are currently carrying out dry-dock
to the M. Luisa Ex Turquoise, and we have spent now over 4 million dollars in

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addition to the expenses outlined before, the claims that we are currently
addressing in arbitration.” [MI/11]

(iii) On 21 April 2023, the Owners wrote to the Charterers stating:

“Reference to our earlier email dated 13 April 2023 sent to your good company,
Mexiship Ocean CCC, to notify termination of Turquoise/Luisa Charterparty.
This is a gentle reminder on Turquoise/M. Luisa redelivery arrangement.
We are ready to takeover the vessel and waiting your prompt reply.
Kindly please revert with acknowledgement upon receipt of this email.”
[MI/12]

(iv) The Owners wrote similar messages to the Charterers on 27 April 2023 (1st
Reminder) [MI/15], 4 May 2023 (2nd Reminder) [MI/16], 14 May 2023 (3rd
Reminder) [MI/17], 25 May 2023 (4th Reminder) [SOC(2)/7] and 8 June 2023
(5th Reminder) [SOC(2)/8].

(v) The Owners’ solicitor also wrote to the Charterers’ solicitor on 26 April 2023.
This letter requested that the Charterers comply with the following obligations
which were referred to therein as the “Redelivery Obligations”:-

(a) Immediately redeliver the vessel at Dos Bocas, Tabasco;

(b) Ensure that the Vessel is in the same condition in which it was
delivered in accordance with clause 10 and 13(g) of the BBC;

(c) Immediately arrange for the Vessel to be deleted from the Bareboat
Registry in accordance with Part V, Clause 3 of the BBC;

(d) Take all necessary steps and render any necessary assistance to the
Owners for the Vessel to be re-registered and re-flagged with the
Singapore flag, at the Charterers’ expense and time in accordance with
Clause 13(f) of the BBC; and

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(e) Perform all necessary acts required to cancel the Temporary Import
Permit of the Vessel and facilitate its legal return out of Mexico.
[MI/13]

28. The Owners understand that the Charterers are now receiving hire under a sub-contract.
However, the Charterers have no right to the continued possession of the Vessel and
have failed to pay any hire to the Owners for over a year.

G. CHARTERERS’ BREACHES

29. In breach of the aforementioned provisions of the Charterparty, the Charterers have
failed and/or refused to:-

(i) Redeliver the Vessel into the Owners’ possession (Clause 10 and 32 of the
BBC).

(ii) Pay hire at the higher of the Full Rate plus 10% or the market rate from the latest
date the Vessel should have been redelivered, being 2 December 2022, or
alternatively 10 March 2023, in accordance with Clause 10 of the BBC.

(iii) Redeliver the Vessel in the same condition and class in which it was delivered
(Clause 10 and 13(g) of the BBC).

(iv) Arrange for the Vessel to be deleted from the Bareboat Registry (Part V, Clause
3 of the BBC); and

(v) Take all necessary steps and render any necessary assistance to the Owners for
the Vessel to be re-registered and re-flagged with the Singapore flag, at the
Charterers’ expense and time in accordance with Clause 13(f) of the BBC.

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H. OWNERS’ CLAIMS FOR REDELIVERY OF THE VESSEL AND

HIRE/DAMAGES

30. The Owners seek a Partial Final Award in the following terms:-

(i) An order that the Charterers by its directors and/or servants and/or agents and/or
employees and/or otherwise howsoever deliver-up vacant possession of the
Vessel to the Owners or their duly authorised agents in the same condition and
class in which the Vessel was delivered forthwith and, in any event, within five
(5) calendar days from the date of the Order/Award, by allowing the Owners to
take delivery of the Vessel at a readily accessible safe berth or mooring at Dos
Bocas, Tabasco;

(ii) An order restraining the Charterers from putting the Vessel out to sea and/or
dealing and/or otherwise interfering with the Vessel and/or any equipment on
board and/or belonging to the Vessel, save strictly for the purpose of
repositioning the Vessel to comply with the delivery-up orders at (a) above;

(iii) An order that the Charterers forthwith and, in any event, within 5 calendar days
of the date of the Order/Award arrange for the Vessel to be deleted from the
Bareboat Registry in Mexico;

(iv) An order that the Charterers takes all necessary steps and render any necessary
assistance to the Owners for the Vessel to be promptly re-registered and re-
flagged with the Singapore flag at the Charterers’ expense and time;

(v) In the alternative, the Owners seek a declaration to same effect as set out at (a)
to (d) above;

(vi) An order that the Charterers are to pay the Owners’ costs for seeking a
mandatory injunction for the redelivery of the Vessel.

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31. The Owners also claim hire at the higher of the Full Rate plus 10% or the market rate
from the latest date the Vessel should have been redelivered by the Charterers, being 2
December 2022, or alternatively 10 March 2023, in accordance with Clause 10 of the
BBC up until the date the Vessel is redelivered back in the Owners’ possession and
control and/or alternatively damages arising from the Charterers’ wrongful failure
and/or refusal to redeliver the Vessel and/or breach of bailment and in detinue and/or
conversion for its wrongful use of the Vessel. This claim shall be quantified after the
Vessel is redelivered back into the Owners’ possession and control, and the Owners
reserve the right to make any further corresponding amendments to this Statement of
Claim as may be required.

32. Further or in the alternative, in the event the Charterers fail to redeliver the Vessel in the
same condition and class in which it was delivered and/or fail to un-reverse any
unauthorized changes made to the Vessel by the Charterers, in breach of Clauses 10 and
13(g) of the BBC, the Owners claim all resulting costs, losses or damages. This claim
shall be quantified after the Vessel is redelivered back into the Owners’ possession and
control and the Owners have had an opportunity to assess its condition, and the Owners
reserve the right to make any further corresponding amendments to this Statement of
Claim as may be required.

I. LEGAL PRINCIPLES FOR THE MANDATORY INJUNCTION SOUGHT

33. The Tribunal has the power to issue a mandatory injunction as a final remedy under
Section 12(5)(a) of the Singapore International Arbitration Act (“IAA”); this being an
order that the High Court of Singapore can order under section 18, read with paragraph
14 of the First Schedule of the Supreme Court of Judicature Act 1969.

34. The relevant principles for a mandatory injunction order, which is akin to a decree for
specific performance, are as follows:2

(i) Whether damages would be an adequate remedy;

2 Lee Chee Wei v Tan Hor Peow Victor [2007] 3 SLR(R) 537 at [53]

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(ii) Whether the person against whom the relief of specific performance is being
sought would suffer substantial hardship; and

(iii) Whether if under all the circumstances it is just and equitable to do so.

35. Damages would not be an adequate remedy. The Charterers are wrongfully depriving
the Owners of the possession and use of the Vessel. The Charterers have no right to the
continued use of the Vessel and it would be inequitable for the Charterers to be permitted
to continue to use the Vessel for its own benefit and profit to the Owners’ detriment and
expense.

36. Damages may be difficult to quantify, prove and/or enforce against the Charterers in
Mexico. In The Laemthong Glory (No 2) [2004] EWHC 2738 the English court accepted
that the "evaluation of damages for detention of (a ship) is never a straightforward
matter" and that the difficulty of enforcing judgments in the Yemen in that case “meant
that damages ... would not be an adequate remedy”. Similar principles apply here.

37. Furthermore, there are good grounds to believe that the Charterers would be unable to
satisfy a claim in damages. The Owners have previously made an application for
security for costs on the basis that there is no financial information available on the
Charterers and that it does not appear to own any tangible assets. The Charterers failed
to produce any evidence of financial position in the context of that application and the
Tribunal found that there is “every reason to believe that, if and when the Respondent
might be required to pay the Claimant’s costs, it will be unable to do so". Hence, an
award in damages is also likely to be financially ineffective.

38. A mandatory injunction will not cause the Charterers any hardship as the Charterers
have no right to the continued use and possession of the Vessel in any event.

39. It is also just and equitable for the Tribunal to grant a mandatory injunction so as to
return the Vessel into the possession of its rightful owner. The Charterers is currently
holding the Vessel under Clause 32 as a gratuitous bailee and its continued failure to
deliver up the Vessel on demand to the Owners, as bailor, is inconsistent with the

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Owners’ rights as the registered owner entitled to immediate possession, and thus the
Charterers are also liable in conversion of the Vessel.

40. The mandatory injunction is also urgent. The Vessel is a depreciating asset, and the
Owners are being deprived of its use as a means of creating revenue. The Owners are
losing substantial revenue on a daily basis and, for the reasons set out above, the Owners
have reason to believe that the Charterers will be unable to satisfy an award in damages
against them.

23.41. The principles applicable to the Tribunal’s discretion in granting declaratory relief are
set out in Rolls-Royce Plc v Unite the Union [2009] EWCA Civ 3873. They are:- (a)
there is a real and present dispute between the parties as to the existence or extent of a
legal right between them; (b) that a declaration is the most effective way of resolving
the issue; and (c) that damages would be an inadequate remedy. These factors weigh in
favour of granting the Owners the relief sought.

J. AND THE OWNERS CLAIM:

24.42. The Owners claim:

(a) The sum of USD 2,108,333.25 USD 2,726,333.25 being the Outstanding Hire
due and owing by the Charterers as a debt, or alternatively in damages up to 13
April 2023.

(b) The declaration set out at paragraph 20 above.

(b) The relief specified at paragraphs 30-32 above.

(c) Interest pursuant to the International Arbitration Act at such rate, with such rest
and for such period as the Tribunal considers appropriate.

(d) Costs.

3 As followed by the Singapore Court of Appeal in Tan Eng Hong v Attorney-General [2012] 4 SLR 476

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25.43. The Owners request that the Tribunal issues a Partial Award in respect of the above
matters and retains its jurisdiction to determine any future disputes that may arise under
the Charterparty. The Owners reserve their right to amend this Statement of Claim as
necessary in due course.

Served this 14th day of December 2022 by Campbell Johnston Clark, solicitors for the
Claimants

-Sgd-
………………………………………………
Campbell Johnston Clark Singapore LLP

Re-served this 12th day of June 2023 by Campbell Johnston Clark, solicitors for the Claimants

………………………………………………
Campbell Johnston Clark Singapore LLP

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