JSE-The Japan Shipping Exchange, Inc.

GUIDE to TOMAC ARBITRATION

CERTIFICATIONS AND ISSUE RULINGS FOR ARBITRATION

Certifications and issue rulings are not required for all arbitration proceedings. However, when certifications or issue rulings would be useful to undermine the Respondent's arguments, or to support your own assertions, such certifications and issue rulings can be obtained by application to TOMAC. With respect to the sort of dispute where, for instance, two vessels have collided and the request is for a finding on the quantum of damages, or a finding on salvage fees, etc., both parties have an interest in obtaining a ship appraisal and in such a case the appraisal fees are often split evenly between the parties.

1. Issue Ruling

(1) Issue Ruling Request Form

ISSUE RULING REQUEST FORM (Sample)

Day/Month/Year

To: TOMAC

Party name:

We hereby request an issue ruling with regard to the following:

Following a request from Shipper Nippon Co., Ltd., we undertook to transport 2,000 tons of steel plate on board the S.S. A Maru from loading port B. By agreement, the vessel was to arrive at loading port B within working hours on 1 April 1994, but after the A Maru had completed her previous voyage and was making way for port B, she ran into heavy weather and as a result arrived at the port B anchorage at 1750 hours on 1 April 1994. Because the Shipper was prepared for stevedorage at wharf C of port B, the Shipper argued that the A Maru had not arrived and had thereby breached the agreement. Consequently, the Shipper made a claim for delay damages. The Shipowner argued that the vessel arrived in accordance with the agreement but was prevented from berthing by the port captain because of the on-coming dusk. Consequently, the Shipowner replies that they have no liability.

The contract of carriage in question is attached hereto, we hereby request your issue ruling with regard to the issue of whether it can be said that, based upon the attached contract of carriage and the facts as described above, the S.S. A Maru arrived in time on 1 April 1994 at port B in accordance with the agreement.

Attachments:: Voyage Charterparty for the S.S. A Maru dated 10 March 1994; Notice of Readiness (NOR) issued by the S.S. A Maru at 1750 hours on 1 April 1994 for arrival at Port B.

Explanation of Issue Ruling Request Form

The dispute between the parties concerned the issue of whether a vessel is deemed to have arrived where there was a contract obliging the vessel to arrive at a certain port within working hours and be prepared to unload, but where the vessel, having arrived at the port near dusk, temporarily anchored because of the oncoming darkness. In this sort of case an unbiased third party is necessary and the matter can be referred to TOMAC.

This sort of request for ruling on a particular issue is called an issue ruling. TOMAC takes the reference and appoints several neutral and fair experts from its Panel of Arbitrators. These experts conduct an investigative inquiry, and depending upon the circumstances may take statements from the party that made the request or other parties, and finally the experts issue a ruling. Although there is no set form for requesting an issue ruling, please refer to the sample. With regard to particular issue ruling requests, the party making the request provides a concise description of the issue ruling request, clarifies the issues for ruling, and when there are documents to be attached provides a table of contents as well as signing or stamping.

(2) Issue Ruling

ISSUE RULING (Sample)

The undersigned rule as follows in regard to the item referred for ruling on (day/month/year) by ____________________________, the party requesting the ruling:

[Issue Referred For Ruling]
Our company, the party requesting a ruling on the instant issue, on behalf of Nippon Co., Ltd., undertook to transport on the S.S. A Maru a 2,000 ton cargo of steel plate from port B to discharge at the port of Yokohama, Japan. Although the S.S. A Maru was to arrive at port B within working hours on 1 April 1994, the S.S. A Maru, after completing her previous voyage, was on her way to port B when she encountered heavy seas and as a result arrived at the port B anchorage at 1750 hours on 1 April 1994. The Consignee claimed damages from the delay, arguing that they (the Consignee) had scheduled stevedorage at wharf C in port B and that the A Maru had breached the agreement. To this the Shipowners countered that they were completely free of liability on the grounds that they arrived at port B in compliance with the agreement and the reason that they did not berth was that they were prohibited from doing so by the port captain due to the oncoming dusk. We have attached hereto the contract of carriage in question. We respectfully request a ruling on the issue of whether it can be said, in the light of the above facts and the contract, that the S.S. A Maru arrived at port B in accordance with the agreement.

Attached Documents:
Voyage Charter Party for the S.S. A Maru dated 10 March 1994
Notice of Readiness from the S.S. A Maru dated 1 April 1994 and timed 1750 hours.

[Appraisal]
Although the clause in the attached voyage charter party for the A Maru regarding her arrival at port B provides that the A Maru is to arrive at port B within working hours on 1 April 1994, it does not require that she be berthed. At that stage it was nothing more than the Consignee's hope that the A Maru berth at wharf C, and we find that the contract made no such requirement. We further find that the arrival time of 1750 hours of the S.S. A Maru was within the working hours of port B which end at 1800 hours. We therefore appraise that the A Maru arrived at port B in compliance with the contract on 1 April 1994.

Day/Month/Year

TOMAC: Appraiser (Signature); Appraiser (Signature); Appraiser (Signature)

Explanation of Issue Ruling Form

The issue ruling form provides the resulting issue ruling in a form responding to the issue ruling request and the issues in question, and when necessary the reasoning which led to the ruling made. The issue ruling form is signed by the appraisers who made it.

Issue rulings are made by scholars and specialists in the field and of course the issue rulings they produce can be attached as evidentiary documents to support the arguments in the arbitration applications and defences.