SWAMI VIVEKANAND SUBHARTI UNIVERSITY

MEMORIAL ON THE CASE

Bayview Motors Ltd. v Mitsui Marine and Fire Insurance

SUBJECT: GATT AND W.T.O

Submitted To:- Submitted By-

Mr. Anushka Ahlawat

Asst.Prof B.A. L.L.B

8th Semester

SARDAR PATEL SUBHARTI INSTITUTE OF LAW

IN THE HONABLE ENGLISH COMMERCIAL COURT

Memorial on behalf of Respondent 1

 Bayview Motors Ltd..…….……………………………… Appellant

Vs.

Mitsui Marine and Fire Insurance ..…………………………..Respondent

Memorandum on behalf of the Respondent

TABLE OF CONTENT
Memorial on behalf of Respondent 2
CONTENTS Pg. No.

1. List of Abbreviations 04
2. Index of authorities 05
3. Statement of jurisdiction 06
4. Facts of the Case 07
5. Issues presented 08
6. Arguments 09-11
7. Prayer 12

Memorial on behalf of Respondent 3

 List of Abbreviations

A.I.R All India Reporter

B/W Between

H.C. High Court

Hon’ble Honorable

i.e., That is

No. Number

Sec. Section

U/S Under Section

V/S Versus

Memorial on behalf of Respondent 4

 Index of authorities

Books

GATT AND WTO

Cases Cited

Links Referred

 onlinedmc.co.uk

 http://www.manupatra.com

Statement of Jurisdiction

Memorial on behalf of Respondent 5

The Appellant has approached the Hon’ble English Commercial Court .

FACTS OF THE CASE

Memorial on behalf of Respondent 6

Bayview Motors were car dealers based in Providenciales, in the Turks & Caicos
Islands. In 1997, they bought two consignments, each of six vehicles, from Toyota
in Japan. These consignments were duly shipped from Japan to Santo Domingo, in
the Dominican Republic, from where they were to be transhipped to the Turks &
Caicos. The first consignment arrived on 11 August 1997 and was held back by
Customs because neither the bill of lading nor the cargo manifest stated that the
cargo was for transhipment (a requirement of Dominican Customs regulations).
This omission was rectified in a couple of days, or at the latest, by 30 September.
The second consignment arrived on 14 September 1997. This time all the
documents were in order, but the shipment was impounded nevertheless.

The cars were initially held in a fenced compound in the port controlled by
Customs. Despite Bayview’s efforts, they were never released. In November,
Bayview learnt that the cars had been removed from the compound about a month
earlier and distributed to Customs Officers, their friends and relations. The
Director of Customs subsequently claimed that the cars had been abandoned. Mr
Justice David Steel, hearing the case at first instance, dismissed this excuse as
"transparently bogus". There was no legal justification for refusing the release of
the vehicles. The only inference which could be drawn was that the Customs
officials had manufactured a situation in which they could assert that the vehicles
had been abandoned.

Bayview claimed under their insurance, which was on Mitsui's standard marine
policy form. This named the Japanese port where the transit began, identified
Santo Domingo as the port "arrived at/transhipped at", and left a box labelled
"thence to" blank. The cover also incorporated Institute Cargo Clauses (1/1/63)
(‘ICC’) "All Risks"), which contain the following transit clause:
"1. This insurance attaches from the time the goods leave the warehouse or place of
storage at the place named in the policy for the commencement of the transit,
continues during the ordinary course of transit and terminates on delivery:
(a) to the Consignees' or other final warehouse or place of storage at the destination
named in the policy;
(b) to any other warehouse or place of storage, whether prior to or at the
destination named in the policy, which the Assured elect to use either:
(i) for storage other than in the ordinary course of transit; or
(ii) for allocation or distribution;
or
(c) on the expiry of 60 days after completion of discharge overside of the goods
hereby insured from the oversea vessel at the final port of discharge, whichever
shall first occur."

Memorial on behalf of Respondent 7

The cover was also, by clause 12, "warranted free of capture, seizure, arrest,
restraint or detainment, and the consequences thereof…"

Mitsui argued that the losses occurred after cover had ended under clause 1(a) or,
alternatively, after the 60-day period under clause 1(c). In any case, the loss was a
"seizure" and therefore an excluded peril by reason of the FOC ("free of capture")
warranty.

ISSUES RAISED

Memorial on behalf of Respondent 8

Whether the defendant were not shy of taking points in defense of the
claim there pleaded case raised the following issue

(a)did the claimants have an insurable interest in the cars

b) did the claimants have title to sue under the policy?

Arguments

Memorial on behalf of Respondent 9

 The defendant insurers resisted the claims on a number of grounds; in particular
that
(i) cover terminated when the vehicles were discharged from the two vessels
because the quay at Santo Domingo was "the final place of storage" within the
meaning of clause 1(a)of the Institute Clauses;
(ii) no loss in the form of an actual or constructive total loss of the cars occurred
until they were removed from the car park, which took place more than 60 days
after the discharge of the cars at Santo Domingo;
(iii) the cars were "confiscated" by the Dominican customs authority because, in
purported contravention of Dominican law, the cars had not been declared for
transshipment at their respective loading ports; such confiscation amounted to a
"seizure" which was an excluded or excepted peril under the terms of the insurance
cover

Memorial on behalf of Respondent 10

 Prayer for Relief

In the light of facts stated, issues raised and arguments advanced it is humbly submitted to the
Hon’ble ENGLISH COMMERCIAL COURT to adjure and held –

The Appeal should be dismissed.

Pass any other order which the court seems to deem fit in the light of justice equity and good
conscience.

All this is humbly submitted by

(Counsel of Respondent)

Anushka Ahlawat

Memorial on behalf of Respondent 11