SYMBIOSIS LAW SCHOOL, PUNE- INTERNAL NOVICE MOOT SELECTION 2022-23

Participant Code: 22010126241,

22010126242

SYMBIOSIS LAW SCHOOL, PUNE

SYMBIOSIS NOVICE MOOT SELECTION 2022-23

BEFORE THE HON’BLE

CITY CIVIL COURT OF GORN

ORIGINAL JURISDICTION
ORIGINAL SUIT CIVIL WRIT PETITION NO. 346/2022

IN THE MATTER OF STRICT LIABILITY & NEGLIGENCE

AND

PROVISIONS OF INDIAN CONTRACT ACT, 1872

GREENHEARTS ASSOCIATION & ORS…………………………..……PETITIONERS

V
M/S ROYAL YATCHES AND VESSELS INC…………………………. RESPONDENTS
ALONG WITH

MR. X………………………………………………………………...PETITIONER
V

M/S ROYAL YATCHES AND VESSELS INC……….………………….. RESPONDENT

BEFORE SUBMISSION TO HON’BLE PRINCIPLE JUDGE AND HIS COMPANION

JUDGE OF THE HON’BLE COURT OF GORN

Memorial on Behalf of the Petitioner

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TABLE OF CONTENTS

Table of Contents ....................................................................................................................... 1

Index of Authorities ................................................................................................................... 2
List of Abbreviations ................................................................................................................. 4
Statement of Jurisdiction............................................................................................................ 5
Statement of Facts ...................................................................................................................... 6
ISSUES RAISED ....................................................................................................................... 8
Summary of Arguments ............................................................................................................. 9
Arguments Advanced............................................................................................................... 11
Issue 1: Whether M/s Royal Yatches & Vessels Inc. is strictly ........................................... 11
liable for the pollution caused at Midgard Islands. .............................................................. 11
|1.1| Essentials of Strict Liability are Fulfilled ................................................................. 11
|1.2| Liability under Merchant Shipping Act 1958 ........................................................... 14
Issue 2: Whether M/s Royal Yatches & Vessels Inc. has committed a breach of contract
and is liable to pay damages for the same. ........................................................................... 16
2.1) Breach of contract ..................................................................................................... 16
(2.2) Force Majeure clause does not apply ....................................................................... 18
Issue 3: Whether M/s Royal Yatches & Vessels Inc. is Negligent and is liable to pay
compensation for the damages caused to the environment. ................................................. 19
|3.1| Existence of Duty of Care ......................................................................................... 20
|3.2| Breach of Duty .......................................................................................................... 21
|3.3| Consequential Damages ............................................................................................ 21
|3.4| Liability to Pay under Polluter Pays Principle .......................................................... 22
Issue 4: Whether Mr. X can claim unliquidated damages for the breach of contract .......... 22
|4.1| Strict Liability under Common Carriers ................................................................... 23
|4.2| Section 73 of Indian Contract Act 1872 ................................................................... 25
PRAYER .................................................................................................................................. 29

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INDEX OF AUTHORITIES

CASES

A.P. Pollution Board v Prof. M.V. Nayadu, AIR 1999 SCW 434 ........................................................ 22
Blyth v Birmingham Waterworks Co, (1856) 11 Ex 781, 784 ........................................................ 20, 21
Coggs v Bernard, (1703) 2 Ld. Raym. 909........................................................................................... 23
Donohue v Stevenson, (1932) AC 562 .................................................................................................. 20
Energy Watchdog and Ors. vs. Central Electricity Regulatory Commission and Ors. (2017) 14 SCC
80 ...................................................................................................................................................... 18
Enviro Legal Action v. Union of India, (2011) 8 SCC 161 ................................................................... 22
Forward v Pittard, (1785) 1 TR 27 ...................................................................................................... 23
Gill v Manchester Ry Co, (1873) LR 8 QB 186.................................................................................... 24
Gisburn v Hurst, (1709) 1 Salk 249 ...................................................................................................... 23
Hadley v Baxendale, (1854) 9 Exch 341 .............................................................................................. 25
Hajee Ismail & Sons v Williams & CO., ILR (1918)41 Mad 709 ........................................................ 27
Hobbs v London, (1875) LR 10 QB 111 ............................................................................................... 28
Ibid ........................................................................................................................................................ 18
Ismail Sait & Sons v Wilson & Co. AIR 1919 Mad 1053 ..................................................................... 28
Jeet Kumari Poddar v Chittagang Engineering and Electrical Supply CO Ltd, (1946) ILR 2 Cal 433
.......................................................................................................................................................... 20
Kenneth Builders and Developers Private Limited and Ors. v. Delhi Development Authority, (2016)
13 SCC 561 ....................................................................................................................................... 18
Koufos v Czarnikov, (1969) 1 AC 350 .................................................................................................. 26
Lakhichand v GIP Railway, (1911) 14 Bom LR 165: ILR 37 Bom 1 .................................................. 24
London Passenger Transport Board v Upson, (1949) AC 155 (HL) .................................................. 21
MC Mehta v Union of India, AIR 1987 965 ......................................................................................... 22
McMahon v Fields, (1881) LR 7 QBD 591 .......................................................................................... 28
Monarch SS Co Ltd v Karlshamns Oliefabriker, 1949 AC 196 (HL)................................................... 26
Mors v Slue, (1672 ) 1 Vent. 190, 238 . ................................................................................................ 23
MSC Mediterranean Shipping Company S.A. v Cottonex Anstalt [2016] EWCA Civ 789 .................. 17
MSK Projects (I) (JV) Ltd v State of Rajasthan, (2011) 10 SCC 573 ................................................... 27
New India Assurance Co. Ltd. v. Zuari Industries Ltd., (2009) 9 SCC 70 ........................................... 13
Nugent v Smith, (1876) 1 CPD 423 ....................................................................................................... 23
Poonam Verma v Ashwin Patel, AIR 1996 SC 2111 ............................................................................ 20
Reed v Lyons, (1947) AC 157 at 173 (HL) ..................................................................................... 11, 12
Rickards v Lothian, (1913) AC 263 (PC ............................................................................................... 14

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Rylands v Fletcher (1868) LR 3 HL 330 ........................................................................................ 11, 12

Simpson v London & North Western Railway Co (1876) LR 1 QBD 274............................................ 25
The Divisional Controller, KSRTC v. Mahadava Shetty, (2003) 7 SCC 19 ......................................... 19
Union of India v B. Prahlad & Co, AIR 1966 SC 395 ......................................................................... 27
Union of India v Steel Stock Holder’s Syndicate, (1976) 3 SCC 108 ................................................... 27
Victoria Laundry (WIndosor) Ltd v Newman Industries Ltd, (1949) 2 KB 528 (CA) .......................... 27
Vishwanath v Amarlal AIR 1957 MB 190 ............................................................................................. 28
Vitol S.A v Norelf Ltd, 1996 AC 800: (1996) 3 WLR 105 (HL) .......................................................... 17
White & Carter (Councils) Ltd. v McGregor, [1962] AC 413 ............................................................. 17

STATUTES

Environment Protection Act, 1986, No. 29 § Section 5 (e), Act of Parliament, 1986 (india) .............. 12
Indian Contract Act, 1872, 39, NO. 9, Acts of Imperial Legislative Council, 1872 (India) ................. 16
Indian Contract Act, 1972, No. 9, 73, Acts of Imperial Legislative Council, 1872 (India) .................. 25
Merchant Shipping Act, 1958, 352H (f) (1) , No. 44, Ministry of Shipping, 1958 (India) .................. 15
Merchant Shipping Act, 1958, 352-I (1), No. 44, Ministry of Shipping, 1958 (India) ......................... 15
Merchant Shipping Act, 1958, 352-I (2) (a), No. 44, Ministry of Shipping, 1958 (India) ................... 15
Merchant Shipping Act, 1958, 352J, No. 44, Ministry of Shipping, 1958 (India) ............................... 15

OTHER AUTHORITIES

National Oceanic and Atmospheric Administration, U.S. Department of Commerce, NOAA’s Oil Spill
Response Understanding Tar Balls,
https://response.restoration.noaa.gov/sites/default/files/tar_balls_NOAA_2010.pdf Last Visited 4-
01-202 ............................................................................................................................................... 13
Safety Data Sheet, Mercuria Energy America, Issues on 1st January 2020 .......................................... 12
Samir Mehta v Union of India, 2017 SCC OnLine NGT 1314............................................................. 14

BOOKS

Harold Shepherd & Harry W. Wellington, Contracts And Contract Remedies 805 (4th Ed. 1957 ...... 16
Murray Pickering, The Remoteness of Damages in Contracts, (1986) 31 Mod LR 203 ...................... 25
Stephen A. Smith, Atiyah’s introduction to law of contracts [(6th ed. 1995), Pg 201] ......................... 16

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LIST OF ABBREVIATIONS

ABBREVIATION ACTUAL TERM

& AND

AIR ALL INDIA REPORTS

CO. COMPANY

HON’BLE HONOURABLE

ICA INDIAN CONTRACT ACT

LTD LIMITED

M/S MESSRS

MSA MERCHANT SHIPPING ACT

ORS OTHERS

PPP POLLUTER PAYS PRINCIPLE

SCC SUPREME COURT CASES

SC SUPREME COURT

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STATEMENT OF JURISDICTION

The petitioners have moved to the Hon’ble City Civil Court of Gorn under Section 9 of the

Code of Civil Procedure, 1908. The Hon’ble CIty Civil Court of Gorn the country of Krypton

has jurisdiction to hear the instant matter.

Section 9 of the Code of Civil Procedure, 1908, states;

Courts to try all civil suits unless barred:

The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits

of a civil nature excepting suits of which their cognizance is either expressly or impliedly

barred.

Explanation I: As suit in which the right to property or to an office is contested is a

suit of civil nature, notwithstanding that such right may depend entirely on the decision of

questions as to religious rite or ceremonies.

Explanation II: For the purposes of this section, it is immaterial whether or not any

fees are attached to the office referred to in Explanation I or whether or not such office is

attached to a particular place.

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STATEMENT OF FACTS
[A] PARTIES TO THE CASE

PETITIONER RESPONDENT

GREENHEARTS ASSOCIATION & ORS. M/S ROYAL YATCHES & VESSELS INC.
ALONG WITH MR. X
[B] BACKGROUND OF THE CASE

Mr. X, a permanent resident of Gorn, entered into a contract with M/s Royal Yatches &
Vessels Inc., for the supply of a consignment of certain manufacturing parts. The same was to
be transported through the waters, and the process of entering into a contract complied with
all the legal procedures and formalities. Tentative Dates for the delivery were shared and a
liquidated damages clause was added for up to Rs. 10,00,000/. Furthermore, a force majeure
Clause also existed.

[C] FACTUAL MATRIX

June 5th At the onset of the monsoon, Cleopatra, carrying the consignment of dates, broke down
2022 due to usual wear and tear.

It was then tugged to another ship Vikrant, operated by the same agency as Cleopatra,
for taking it to the repair harbor. The size of Vikrant was disproportionately smaller than
that of Cleopatra. However, according to experts, it was capable to tow a ship similar in
weight and measurement to Cleopatra in ideal circumstances.

It was unmanned and there was no person on the ship to define its course.

June 6th A major storm broke on June 06, 2022, causing the tug connecting the two ships to break
2022 off. Due to this, Cleopatra drifted away, carrying all the consignments.

It eventually got struck at the Midgard Islands, which was famous for its beaches.

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June Mr. X intimated the non-receipt of the consignment to M/s Royal Yatches & Vessels Inc.
11th
2022
In response, M/s Royal Yatches & Vessels Inc. stated that the consignments could not be
delivered owing to a heavy storm.

July 1st Cleopatra became a spot of local attraction, and the beach became full of garbage from
2022 Cleopatra and litter from the people visiting it. The pollution and the occurrence of the
tar balls affected the flora and fauna of the area, along with the livelihood of fishermen,
which were prominent in that area.

Greenhearts Association, an NGO working for Environment rights, accused M/s Royal
Yatches & Vessels Inc of negligence causing the alleged spill leading to pollution. M/s
Royal Yatches & Vessels Inc. in response to it, stated that “Cleopatra did not pose any
threat to the coastal environment” and that “It (Cleopatra) had run out of fuel the day it
got struck by the storm, making it impossible for it to cause any pollution at the beach
due to spillage of oil”.

Despite attempts by the Navy and Coast Guard to pull Cleopatra away from the beach
where it was stuck in the sands, the ship continues to lie on the beach.

[D] ACTION BY THE PARTIES

Greenhearts Association, filed a suit for strict liability against M/s Royal Yatches & Vessels
Inc. seeking compensation for the damages caused to the livelihood of fishermen and the
environment due to its alleged negligence by Cleopatra.

Mr. X filed a suit against M/s Royal Yatches & Vessels Inc. for recovery of damages on
account of breach on the part of M/s Royal Yatches & Vessels Inc, seeking unliquidated
damages of Rs. 35,00,000/-.

The City Civil Court of Gorn, decided to hear both matters together, and the same shall be
heard on January 8th, 2023.

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ISSUES RAISED

ISSUE 1: WHETHER M/S ROYAL YATCHES & VESSELS INC. IS STRICTLY LIABLE

FOR THE POLLUTION CAUSED AT THE MIDGARD ISLANDS.

ISSUE 2: WHETHER M/S ROYAL YATCHES & VESSELS INC. HAS COMMITTED
BREACH OF CONTRACT AND IS LIABLE TO PAY DAMAGES FOR THE SAME.

ISSUE 3: WHETHER M/S ROYAL YATCHES & VESSELS INC. IS NEGLIGENT AND IS
LIABLE TO PAY COMPENSATION FOR THE DAMAGES CAUSED TO THE ENVIRONMENT.

ISSUE 4: WHETHER MR. X CAN CLAIM UNLIQUIDATED DAMAGES FOR THE BREACH
OF CONTRACT.

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SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER M/S ROYAL YATCHES & VESSELS INC. IS STRICTLY LIABLE FOR THE

POLLUTION CAUSED AT THE MIDGARD ISLANDS.

It is humbly contended before the Hon’ble City Civil Court of Gorn that M/s Royal

Yatches and Vessel Is liable to pay for strict liability. Spillage of oil by Cleopatra, which

has been established through proximate cause, has caused environmental hazard that has

effected the local citizens, fishermen, flora and fauna in Athens Beach. All the essentials

of strict liability are met and the respondent and are strictly liable for the damage caused.

Furthermore, they haven’t followed the precautionary principle.

ISSUE 2: WHETHER M/S ROYAL YATCHES & VESSELS INC. HAS COMMITTED BREACH OF

CONTRACT AND IS LIABLE TO PAY DAMAGES FOR THE SAME.

It is humbly Contended before the Hon’ble city civil of Gorn that M/s Royal Yatches &

Vessels Inc, has committed a breach of contract under section 39 of the Indian Contract

Act, 1872. As M/s Royal failed to deliver the consignments on the agreed time and did

not make an attempt to recover the consignments from the shore of Midgard islands

shows, through conduct that they have no intentions of completing the contract, which

leads to the repudiatory breach of contract. Since there is a repudiatory breach of contract

the plaintiff can end the contract and claim damages for the same. Finally, this case does

not attract force majeure because since the essentials are not met and Vis major cannot be

claimed as a defence as the intervening event was foreseeable.

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ISSUE 3: WHETHER M/S ROYAL YATCHES & VESSELS INC. IS NEGLIGENT AND IS LIABLE

TO PAY COMPENSATION FOR THE DAMAGES CAUSED TO THE ENVIRONMENT.

It is humbly submitted before the Hon’ble City Civil Court of Gorn that M/s Royal Yatches

& Vessels Inc. was negligent and is liable. Firstly the defendants owed the legal duty of due

care towards the environment. Secondly there was a breach of duty of care as they did not

take reasonable care to stop the pollution to environment. Finally, the defendants are liable to

pay for the consequential harm suffered by the plaintiff.

ISSUE 4: WHETHER MR. X CAN CLAIM UNLIQUIDATED DAMAGES FOR THE BREACH OF

CONTRACT.

It is humbly contended before this Hon’ble City Civil Court that Mr. X can claim

Unliquidated Damages in the form of special damages for breach of contract by M/s Royal

Yatches & Vessels Inc under Section 73 OF the Indian Contract act 1872 and strict liability

of common carrier. It has been established that cleopatra was a common carrier, which is

strictly liable for damage to goods during transit. Duty of care has been established, along

with how it has been breached. The rule laid down in Hadley v Baxendale, under Section 73

of ICA is satisfied which makes the respondent liable to receive special damages.

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ARGUMENTS ADVANCED

ISSUE 1: WHETHER M/S ROYAL YATCHES & VESSELS INC. IS STRICTLY

LIABLE FOR THE POLLUTION CAUSED AT MIDGARD ISLANDS.

1. It is humbly contended before this Hon’able City Civil Court that Royal Yatches &

Vessels is strictly liable for the damage caused by Cleopatra, a ship owned and operated

by it. This contention is sought to be proved by way of analogy on grounds: |1.1|

Essentials of Strict Liability are met, |1.2| Liability under Merchant Shipping Act, 1958

|1.1| ESSENTIALS OF STRICT LIABILITY ARE FULFILLED

2. Strict Liability has its origin in the landmark judgement of Rylands v Fletcher1 where it

was laid down, by Blackburn J, “The rule of law is that the person who, for his own

purpose, brings on his land and collects and keeps there anything likely to do mischief if

it escapes, must keep it in at his peril; and if he does not do so is prima facie answerable

for all the damage which is the natural consequence of its escape.”2

3. The essentials for making one liable under the Doctrine of Strict Liability in Read v

Lyons3. They are 1. Non-natural use of land, 2. Escape of Hazardous Substances from

the land.

1
Rylands v Fletcher (1868) LR 3 HL 330
2
Ibid
3
Reed v Lyons, (1947) AC 157 at 173 (HL)

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|1.1.1| PRESENCE OF A HAZARDOUS MATERIAL

4. A person who brings dangerous substances upon premises and carries on a dangerous

trade with them is liable if, though without negligence on his part, these substances

cause injury to persons or property in their neighbourhood.4

5. Hazardous substance is any substance or preparation which, by reason of its chemical or

physio-chemical properties or handling, is liable to cause harm5 Hence, heavy fuel oil,

which is generally used in cargo ships, is also classified as a hazardous material as

recognized by a Safety Data Sheet of Mercuria6, which lists out the hazards. Hence it is

something that needs to be handled with extra care and precaution, because, its escape

may cause harm to the environment and people.

6. It has been stated that the oil spill which resulted in tar balls affected the flora and fauna

of the area, along with the livelihood of the fishermen. Additionally, the beach became

full of garbage from Cleopatra, which leads to loss and damage to the environment and

public property and mischief.

1.1.3 ESCAPE OF DANGEROUS SUBSTANCE

7. The “escape” of a dangerous substance forms an integral part of Strict Liability. In Read

v Lyons & Co.7, it was ruled that there can be no strict liability without the escape of a

dangerous substance. Independent expert reporters ascertained that the oil spill occurred

from Cleopatra. Act of god cannot be claimed as discussed in Issue 3. The factual matrix

for the same can be seen by establishing a Proximate Cause.

4
Supra Note 1
5
Environment Protection Act, 1986, No. 29 § Section 5 (e), Act of Parliament, 1986 (India)
6
Mercuria Energy America, Safety Data Sheet, Issues on 1st January 2020
7
Supra note 3

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|1.1.3.1| Proximate Cause

8. Proximate cause is not caused which is nearest in time or place. But is the active and

efficient cause that sets in motion a chain of events that brings about the ultimate result

without the intervention of any other force.8

9. It has been stated that Cleopatra ran out of fuel the day it got struck by the storm, which

is highly improbable given that it was a 15-day trip and the ship broke down on 5th June,

which is the 9th day of the journey. Cleopatra, it has been given, broke down due to

usual wear and tear, which occurs due to normal use and does not include the

consumption or depletion of the fuel oil as a whole.

10. During a storm, huge walls of water driven by powerful winds slam into ships which

batter away at the ship leading to instability. Additionally, since it was unmanned and

broken down, there was not a single crewman present to mitigate and lessen the damage

to the ship. This instability most likely led to an oil spillage.

11. According to an article by National Oceanic and Atmospheric Administration defines tar

balls as little, dark-colored, pieces of oil that are often remnants of oil spills the gradual

formation of Tar Balls through a process known as weathering, which varies depending

upon the temperature. 9

12. Hence, with the application of logical acumen and the Proximate Cause, it can be

proved that the tar which appeared on Athens Beach on 1st July can be traced back to

8
New India Assurance Co. Ltd. v. Zuari Industries Ltd., (2009) 9 SCC 70
9
National Oceanic and Atmospheric Administration, U.S. Department of Commerce, NOAA’s Oil Spill
Response Understanding Tar Balls,
https://response.restoration.noaa.gov/sites/default/files/tar_balls_NOAA_2010.pdf Last Visited 4-01-2023

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Cleopatra and that there was an escape of a Dangerous Substance, that is, oil from the

ship.

|1.1.2| NON-NATURAL USE OF LAND

13. In Rickards v Lothian10 emphasis was laid on the ‘non-natural’ use of land to consist

and compose of strict liability. The major criteria to define a non-natural use of land

according to Lord Moulton is an element of increased danger to others.

14. Land extends to the sea bed as well. The fact that an unseaworthy ship is being used to

transport consignments which may cause harm to the environment, marine life and the

like, is unnatural use of the land itself.

15. As all the essentials are met it can be concluded that Royal Yatches & Vessels is liable

under strict liability.

|1.2| LIABILITY UNDER MERCHANT SHIPPING ACT 1958

1. The 1992 CLC and Fund Conventions were brought into Indian Law by The

Merchant Shipping Act (MSA) as amended in 2002 and 2003. If a country is a

signatory to a treaty signed and ratified but has not been enacted, it can still be used,

as done in Samir Mehta11 case. Hence, ship can be defined as anything that is a sea

going vessel.

2. Pollution damage has been described as loss or damage caused outside the ship by

contamination resulting from the escape or discharge of oil from the ship under the

MSA 1958. 12 Furthermore, The owner of a ship is liable for any pollution damage

10
Rickards v Lothian, (1913) AC 263 (PC)
11
Samir Mehta v Union of India, 2017 SCC OnLine NGT 1314
12
Merchant Shipping Act, 1958, 352H (f) (1) , No. 44, Ministry of Shipping, 1958 (India)

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caused by oil that has escaped or been discharged from the ship as a result of the

incident.13

3. Litter has been discharged by Cleopatra on the beach and with logical acumen, it has

been deduced that there has been an oil spill that led to the formation of tar balls.

Hence, Cleopatra has caused pollution damage to the environment and is liable for the

damage caused by the oil spill.

4. The defense available to civil liability for oil pollution damage has been elaborated in

Section 352-I of MSA14, which states that acts caused by war, civil war, a natural

phenomenon of exceptional and inevitable character, omission or wrongful act of

government, or negligence of the government or caused by the plaintiff themselves.

The respondents have claimed the defence of unprecedented natural phenomenon,

which has been discredited in Issue 3 of the memorial.

5. In addition to this, the owner of the ship cannot limit their liability under 352J as the

exception, which states that the owner would not be liable if the pollution damage

occurred as a result of their own personal act or omission with the intent to damage,

or recklessly and with the knowledge that such damage would probably result.15 M/s

Royal Yatches & Vessels are liable for negligence and recklessness, as elaborated in

Issue 3 of the memorial.

13
Merchant Shipping Act, 1958, 352-I (1), No. 44, Ministry of Shipping, 1958 (India)
14
Merchant Shipping Act, 1958, 352-I (2) (a), No. 44, Ministry of Shipping, 1958 (India)
15
Merchant Shipping Act, 1958, 352J, No. 44, Ministry of Shipping, 1958 (India)

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ISSUE 2: WHETHER M/S ROYAL YATCHES & VESSELS INC. HAS COMMITTED A

BREACH OF CONTRACT AND IS LIABLE TO PAY DAMAGES FOR THE SAME.

16. It is humbly contended before the Hon’ble City Civil Court of Gorn that M/s Royal

Yatches & Vessels Inc. has committed a repudiatory breach of contract. This Contention

submission is sought to be proved by way of twofold arguments: |2.1| Breach of

Contract |2.2| This case does attract the force majeure clause.

2.1) BREACH OF CONTRACT

17. A breach of contract occurs when a party thereto renounces his liability under it, or by

his own act makes it impossible that he should perform his obligations under it, or

totally or partially fails to perform such obligations.16

|2.1.1| REPUDIATORY DAMAGES

18. A breach of contract occurs when a party thereto renounces his liability under it, or by

his own act makes it impossible that he should perform his obligations under it, or

totally or partially fails to perform such obligations.17 Section 39 of the ICA, 1872 has

laid down breach of contract as one where a party has refused to perform or disabled

himself from performing the contractual obligations, i.e., repudiation.

19. Where one party to a contract indicates by words or through conduct that he does not

intend to perform his obligations, he is said to have repudiated the contract by his

actions 18 According to the doctrine of ‘anticipatory breach’, the innocent party, under

such circumstances, has a choice to make. Such party may either choose to accept the

16
Harold Shepherd & Harry W. Wellington, Contracts And Contract Remedies 805 (4th Ed. 1957)
17
Indian Contract Act, 1872, 39, NO. 9, Acts of Imperial Legislative Council, 1872 (India)
18
Stephen A. Smith, Atiyah’s introduction to law of contracts [(6th ed. 1995), Pg 201]

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repudiation and sue for damages or continue to keep the contract alive even if the party

at breach has no intention of performing his obligations19

|2.1.1.1| Breach through conduct

20. It is sufficient that the communication or conduct to clearly or unequivocally convey to

the repudiating party that the aggrieved party is breaching the contracts.20

21. It can be seen that the defendants had no intention of fulfilling the contract, as they are

not taking any measures to remove the consignment and deliver the goods to the

plaintiff.

22. Therefore, from the perspective of a reasonable person, the respondents have shown

intention through conduct to abandon and not fulfill the conditions of the contract.

Hence, there is a breach of contract on the behalf of the defendants.

|2.1.2| DAMAGES

23. There has been a repudiatory breach the innocent party has a choice of either treating the

breach as ending the contract or affirming the contract so it continues. Previously, the

courts have said an innocent party can make its decision in its own commercial interests

and have no duty to take the other party's interests into account.21

24. Therefore, the plaintiff contends to claim the liquidated damages of 10,00,000/- that was

agreed upon by both parties while signing the contract. Furthermore, the plaintiff

contends to claim unliquidated damages under section 73 of the Indian contract Act,

1872, this claim will be further elaborated in Issue 4.

19
White & Carter (Councils) Ltd. v McGregor, [1962] AC 413
20
Vitol S.A v Norelf Ltd, 1996 AC 800: (1996) 3 WLR 105 (HL).
21
MSC Mediterranean Shipping Company S.A. v Cottonex Anstalt [2016] EWCA Civ 789

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(2.2) FORCE MAJEURE CLAUSE DOES NOT APPLY

25. The force majeure clause in a contract relieves one or both parties of the contract from

the liability to perform the contractual obligation in the occurrence of an intervening

event that makes it impossible to fulfill the necessities of the contract.

(2.2.1) FORCE MAJEURE CLAUSE IS NOT ATTRACTED IN THE CASE

26. A standard Force majeure clause existed in the contract that was signed by M/s Royal

yatches & Vessels and Mr. X. Force majeure events are governed by section 32 of the

Indian contract act, of 1872, although it hasn’t been specifically mentioned as it has

been stated by the SC in Energy Watchdog v Central Electricity Regulatory

Commission22.

27. The essentials for invoking force majeure in a contract are as follows: 1) The

Intervening event must have been unforeseeable by both the parties in the contract.

(2)The intervening event makes the event wholly impossible.23

(2.2.1.1) The Intervening event was Foreseeable

28. The test of foreseeability at the time the contract was entered into is one of the

fundamental factors for establishing the defence of Force Majeure.24 The intervening

event here is the storm that broke on June 6th, 2022. This event was foreseeable as the

ship started its journey in the onset of monsoon, it was held that the krypton experienced

22
Energy Watchdog and Ors. vs. Central Electricity Regulatory Commission and Ors. (2017) 14 SCC 80
23
Ibid
24
Kenneth Builders and Developers Private Limited and Ors. v. Delhi Development Authority, (2016) 13 SCC
561.

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all different weather conditions in their extreme condition. Owing to the long history of

these climate variations, we can conclude that this event could be foreseeable.

(2.2.1.2) The Intervening event does not make the event impossible to complete.

29. The intervening event as defined in the above paragraph did not make it impossible to

complete the contract, due to a major storm the tug connection broke causing Cleopatra

to drift away. Cleopatra eventually got struck at the Midgard islands carrying all the

consignment with it. The consignment which was on the ship was intact and was not

harmed. Therefore, we can conclude that the storm did not affect the consignment that

would make it impossible to complete.

|2.2.1.3| Discrediting Vis Major

30. In The Divisional Controller, KSRTC v. Mahadava Shetty25, the SC ruled that not all

natural occurrences are covered by Acts of God to release the parties from contractual

obligations, and that relief may be declined if there was a reasonable possibility that the

parties could have anticipated the threat. The Act of God defence is inapplicable since it

has been given that it was the onset of monsoon and hence, the storm is foreseeable.

ISSUE 3: WHETHER M/S ROYAL YATCHES & VESSELS INC. IS NEGLIGENT AND

IS LIABLE TO PAY COMPENSATION FOR THE DAMAGES CAUSED TO THE

ENVIRONMENT.

31. Negligence is the breach of duty caused by the omission to do something which a

reasonable man, guided by those considerations which ordinality regulate the conduct of

human affairs wold do, or doing something which a prudent and reasonable man would

25
The Divisional Controller, KSRTC v. Mahadava Shetty, (2003) 7 SCC 197

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not do.26 The definition involves three constituents of negligence: 1) A legal duty to

exercise due care, 2) Breach of said duty, and, 3) consequential damage27

|3.1| EXISTENCE OF DUTY OF CARE

32. The existence of duty to take care is essential before a person can be held liable for

negligence.28 The general principle for establishing a duty of care is the principle of

foreseeability and proximity.

|3.1.1|FORESEEABILITY:

33. The principle of foreseeability states that the duty of care is to avoid acts or omissions

which can be reasonably foreseen to cause damage to other persons. However, this duty

is not owed to everyone, but only to people closely and directly affected by one’s act. In

this case, the M/s Royal Yatches & Vessels owed a duty of care to use a ship that was

seaworthy and to ensure proper steps in mitigating the damages after the breakdown of

the ship to the general public.

|3.1.2| PROXIMITY:

34. The principle of proximity means “legal cause,” or the cause that the law recognizes as

the primary cause of the injury, as established in Donohue v Stevenson29. it is an action

that produced foreseeable consequences without intervention from anyone else. A

defendant in a negligence case is only responsible for those damages that the defendant

could have foreseen through his actions. The events are reasonably foreseeable as

elaborated in Issue 1

26
Blyth v Birmingham Waterworks Co, (1856) 11 Ex 781, 784
27
Poonam Verma v Ashwin Patel, AIR 1996 SC 2111
28
Jeet Kumari Poddar v Chittagang Engineering and Electrical Supply CO Ltd, (1946) ILR 2 Cal 433
29
Donohue v Stevenson, (1932) AC 562

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|3.2| BREACH OF DUTY

35. A defendant breaches such a duty by failing to exercise reasonable care in fulfilling the

duty. In other words, the breach of a duty of care means that the person who has an

existing duty of care should act wisely and not omit or commit any act which he has to

do or not do as said n in the case of Blyth v. Birmingham Waterworks Co, (1856)30. In

simple terms, it means non-observance of a standard of care.

36. The standard to determine whether a person is guilty of negligence is to apply the

conduct of a prudent man in the given situation, i.e. that skill, care, diligence, and the

like, however it may vary from case to case. A reasonable man takes into consideration

the common negligence in human behaviour and will also account for the same while

making a decision.31

37. The respondents have not exercised reasonable care by not performing the required and

basic maintenance of Cleopatra before the voyage. Furthermore, the subsequent

decisions made after the ship broke down did not observe standard care as, the human

negligence and dynamic environment were not considered while towing of the ship,

which could only be done so by Vikrant in “ideal circumstances”

|3.3| CONSEQUENTIAL DAMAGES

38. It should also has to be proved that the failure of the defendant to exercise reasonable

care resulted in damages to the plaintiff to whom the defendant owed a duty of care. The

fact that the ship was not appropriately maintained and was due care was not taken to

mitigate the damages makes the respondents liable for consequential damage. The

30
Supra Note 27
31
London Passenger Transport Board v Upson, (1949) AC 155 (HL)

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negligence of the respondents has resulted in pollution of the beach because of the

garbage from Cleopatra and has affected the livelihood of the fishermen prominent in

that area.

|3.4| LIABILITY TO PAY UNDER POLLUTER PAYS PRINCIPLE

39. In civil law, pollution is a tort that is committed against the community as a whole.32

Polluter pays principle (PPP) was first applied and defined in Indian Council for Enviro

Legal Action v. Union of India33. It was laid down that, “The polluter is liable to pay the

cost to the individual sufferers as well as the cost of reversing the damaged ecology.”

After further development, it is now considered as a part of the environmental law of the

country by the SC.34

40. In Samir Mehta v Union of India35, is a case of accidental oil spill and pollution, caused

as the ship was not in a seaworthy condition. The National Green Tribunal, relied on the

damage caused due to the oil spill to apply the Polluter Pays Principle.

41. Cleopatra too, was operated even though it was not in a seaworthy condition and, not

only the flora and fauna have been damaged but also the livelihood of fishermen has

been affected due to the pollution caused by Tar Balls on the beach, which can be

attributed from Cleopatra. Hence, M/s Royal Yatches & Vessels Inc. is liable under the

Polluter Pays Principle to the fishermen as well as the public in general.

ISSUE 4: WHETHER MR. X CAN CLAIM UNLIQUIDATED DAMAGES FOR THE

BREACH OF CONTRACT

32
MC Mehta v Union of India, AIR 1987 965
33
Enviro Legal Action v. Union of India, (2011) 8 SCC 161
34
A.P. Pollution Board v Prof. M.V. Nayadu, AIR 1999 SCW 434
35
Supra Note 13

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42. It is humbly contended before this Hon’able City Civil Court that Mr. X can claim

Unliquidated Damages for breach of contract by M/s Royal Yatches & Vessels Inc. This

contention is sought to be proved by way of analogy on grounds: |4.1| Strict Liability of

Common Carrier, |4.2| Section 73 of Indian Contract Act 1872

|4.1| STRICT LIABILITY UNDER COMMON CARRIERS

43. Any person who undertakes to carry goods for everyone without discrimination, for

hire, is said to be a common carrier.36 Carriers by water are masters or owners of ships,

whether they are regular packet ships or ships carrying general freight. Hence,

Cleopatra, being a cargo ship carrying goods, for hire, under the control of Royal

Yatches & Vessels can be classified as a common carrier.

44. In Mors v Slue37, the strict liability of a common carrier was established, which stated

that, even though there was no suggestion of negligence on part of the defendant, they

were held liable. The same was reiterated in Coggs v Bernard38. A person is strictly

liable for damage to goods damaged under the care of a common carrier, except in the

cases of Acts of God or the actions of enemies of the king.39

|4.1.1| DEFENSE OF ACT OF GOD

45. ‘Act of god’ are those acts caused by elementary forces of nature and is not connected

with the agency of any man or other cause40 In this case the storm occurred after the

ship broke down due to usual wear and tear, which removes the possibility of the act of

god being the proximate cause. Hence, this defense does not apply to the respondents.

36
Gisburn v Hurst, (1709) 1 Salk 249
37
Mors v Slue, (1672 ) 1 Vent. 190, 238 .
38
Coggs v Bernard, (1703) 2 Ld. Raym. 909
39
Nugent v Smith, (1876) 1 CPD 423
40
Forward v Pittard, (1785) 1 TR 27

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|4.1.2| DUTY OF CARE AS COMMON CARRIER

46. If the carriage is to be transported by water, then utmost care must be taken to provide a

ship that is suitably equipped for the voyage; to guard against all injuries incident to the

property from the effects of a storm or bad air, and another such foreseeable

phenomenon. Every carrier is bound to use all the diligence that prudent and cautious

men, would apply to prevent damage to the property in their care.41

47. In Forward v Pittard, the defendant agreed to transport the goods between two towns,

and while in transit, the goods were stored temporarily in a barn, which caught on fire,

even though there was no fault of the defendant and the plaintiff goods were destroyed.

The defendants were held liable as it was held that the common carrier had an obligation

under the contract to provide reasonable care and skill.

48. Hence, in our case the respondents had an obligation under the contract to provide

reasonable care and skill while transporting the consignments in Cleopatra, including

Mr. X’s.

49. Cleopatra was not adequately equipped and prepared for the voyage and is not

seaworthy, as it broke down due to usual wear and tear.

50. Further, there was gross inefficiency in taking care of consignments after the ship broke

down. When a cargo ship breaks down, the first action to be taken is the transfer of the

consignments to a safer place. In addition to that, Cleopatra was tugged by Vikrant, a

disproportionately smaller ship, which can tow Cleopatra only in ideal conditions.

41
Gill v Manchester Ry Co, (1873) LR 8 QB 186; Lakhichand v GIP Railway, (1911) 14 Bom LR 165: ILR 37
Bom 1

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Furthermore, Cleopatra was unmanned during the towing, which is gross negligence on

the part of M/s Royal Yatches & Negligence.

51. Hence, M/s Royals Yatches & Vessels is strictly liable, and unliquidated damages for

the same can be claimed.

|4.2| SECTION 73 OF INDIAN CONTRACT ACT 1872

52. Section 73 of the Indian Contract Act 1872 elaborates on compensation by the way to

special damages.42

|4.2.1| SATISFACTION OF RULES IN HADLEY V BAXENDALE

53. Two rules of Hadley v Baxendale43: rising naturally in the course of things from the

breach (foreseeability) and the party knew at the time of contract as likely to result from

the breach (knowledge)

54. First, is objective as it makes the liability depend on reasonable foresight of a person

that will naturally result from a breach in contract. Second, is subjective, as, the extent

of liability depends on the knowledge of the party at the time of the contract and

probable breach of the same.44

55. Knowledge: In Simpson v London & North Western Railway Co. 45, it was held that if

the special circumstances are already within the knowledge of the party breaking the

contract, the formality of communicating the same is not necessary. In M/s Royal

Yatches & Vessels, while didn’t explicitly mention the use of manufacturing parts, it

42
Indian Contract Act, 1972, No. 9, §73, Acts of Imperial Legislative Council, 1872 (India)
43
Hadley v Baxendale, (1854) 9 Exch 341
44
Murray Pickering, The Remoteness of Damages in Contracts, (1986) 31 Mod LR 203
45
Simpson v London & North Western Railway Co (1876) LR 1 QBD 274

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can be logically inferred that the items in the consignment are used to manufacture

certain things, which he will have a contract to sell. Thus, they had implied knowledge

about the special circumstances concerning the consignments.

56. Foreseeability: In Monarch SS Co Ltd v Karlshamns Oliefabriker46, it was held that

there must be reasonable foreseeability applied by the party breaching the contract while

performing it. The respondents could have foreseen the situation, given the onset of the

monsoon, and should have equipped Cleopatra accordingly. However, it can be inferred

that such care was not taken.

|4.2.2| THE REMOTENESS OF DAMAGE:

57. The damages that occur must not be remote and the principles set by Hadley v

Baxendale are used to determine the remoteness of damage. In Koufos v Czarnikov47, it

was held that, if loss sufficiently flows from the breach of contract, and that loss is kind

that is reasonably regarded to have been in contemplation.

58. In the present case, the fact that damage caused by the storm has delayed the transit of

goods, leading to inordinate delay due to gross negligence and recklessness of the

respondents. The loss suffered in the form of loss of profits, and other pecuniary costs

naturally flow from the breach of contract.

59. The fact that there was knowledge and foreseeability and the breach of contract

naturally led to loss by the plaintiff means that special damages exist and can be claimed

by Mr. X.

46
Monarch SS Co Ltd v Karlshamns Oliefabriker, 1949 AC 196 (HL)
47
Koufos v Czarnikov, (1969) 1 AC 350

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|4.2.3| DELAY IN TRANSIT

60. In Union of India v Steel Stock Holder’s Syndicate48, the defendant was held liable for

inordinate delay of goods, due to gross negligence. In our case, the respondents have

been delayed the delivery of goods, due to gross negligence, and are liable to recover

interest on the money by way of damages for the loss. for the same.

61. The goods were purchased by the party for his own business for a particular purpose

which the sellers were expected to know and if any loss resulting from a delay in

supply, the sellers would be liable for the same, provided they had knowledge that such
49
loss was likely to happen. The foreseeability has already been shown in the above

argument.

62. Further, the SC reiterated that the loss of expected profit attributed to a breach of

contract is recoverable.50 Hence, the expected profit from the final product made with

the manufacturing parts can be claimed as special damages in our case.

|4.2.4| DETERIORATION OF GOODS DUE TO DELAY

63. There have been cases where the defendants were held liable to the extent to which the

value of goods had diminished.51 The word deterioration does not only imply physical

damages to the goods but it may also mean loss of special opportunity for sale.

64. “Almost all sales transactions which fail to go through the normal yardstick for working

out the yardstick for working out the sum of money to which the aggrieved party is

entitled is the difference between the contract and market prices.”52 It is not necessary

that the plaintiff should have bought goods from elsewhere and only then claim the

48
Union of India v Steel Stock Holder’s Syndicate, (1976) 3 SCC 108
49
Victoria Laundry (WIndosor) Ltd v Newman Industries Ltd, (1949) 2 KB 528 (CA)
50
MSK Projects (I) (JV) Ltd v State of Rajasthan, (2011) 10 SCC 573
51
Union of India v B. Prahlad & Co, AIR 1966 SC 395
52
Hajee Ismail & Sons v Williams & CO., ILR (1918)41 Mad 709

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difference. The same has been reiterated in Ismail Sait & Sons v Wilson & Co.53 and

Vishwanath v Amarlal54

65. In this case, there has been a depreciation of the manufacturing goods, which are to be

further processed. Hence, M/s Royal Yatches & Vessels Inc has to provide for the

difference in the price of the contract and market price.

|4.2.5| INCONVENIENCE CAUSED BY BREACH OF CONTRACT

66. Inconvenience caused by the breach may be considered. In Hobbs v London55, the

defendant was not held liable for the inconvenience caused due to the probable

consequence of the breach of contract. However, this decision was criticised and

damages were allowed in McMahon v Fields56

67. In our present case, Mr. X suffered the inconvenience due to the breach of contract, as

there was not only a delay of goods but also the same was not intimated to him. This

forced Mr. X to obtain the manufacturing goods from elsewhere on short notice, causing

inconvenience due to a breach of contract.

53
Ismail Sait & Sons v Wilson & Co. AIR 1919 Mad 1053
54
Vishwanath v Amarlal AIR 1957 MB 190
55
Hobbs v London, (1875) LR 10 QB 111
56
McMahon v Fields, (1881) LR 7 QBD 591

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PRAYER

Wherefore in the light of issues raised, arguments advanced and authorities cited, the

Petitioners respectfully requests this Hon’ble Court to adjudge and be pleased to:

• HOLD that M/s Royal Yatches & Vessels Inc. is strictly liable for the pollution

caused at Midgard islands.

• DECLARE M/s Royal Watches & Vessels Inc. liable for breach of contract and

provide adequate compensation for the damage caused to the environment.

• HOLD M/s Royal Yatches & Vessels liable for negligence causing damages to the

environment and pay compensation for remedial restoration of the same.

• DECLARE that Mr. X is entitled to claim unliquidated damages worth Rs. 35 lakhs

for the losses incurred due to the non-delivery of the consignment from M/s Royal

Yatches & Vessels.

AND/OR
Pass any other order it may deem fit, in the interest of Justice, Equity, and Good Conscience

All of which is respectfully submitted

On Behalf of the Petitioner

Counsel for Petitioner

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