'63. The Tribunal's Findings. Having carefully considered the evidence presented, the Tribunal finds that Clause 8A of the Conditions of Contract of the Vessel Charter Hire Agreement imposes a clear obligation on the Respondent to commence the payment of charter hire to the Claimant from the time of "delivery" of the vessel to the Respondent. The Tribunal further finds that the key terms and conditions for "delivery" of the vessel are those set out in Clause 1 of the Conditions of Contract of the Vessel Charter Hire Agreement.

64. Both parties accept that the [vessel] arrived at . . . Port on 9 July 2004. Where the parties differ is on the issue of whether the vessel was "delivered" for purposes of the Vessel Charter Hire Agreement as from that date.

65. As for the Respondent's first point, its position is that physical "arrival" and legal "delivery" of the vessel are two different concepts and that simply because the vessel has arrived at port does not mean that it has been automatically "accepted" by the Respondent. The Tribunal finds that this distinction has merit to the extent that the vessel has physically arrived but has failed to meet the terms and conditions for delivery as specified in the Vessel Charter Hire Agreement. Whether in fact this was the case requires a careful examination of the arguments advanced by the Respondent.

66. The Respondent's second point is that the Claimant should have issued a "notice of readiness" upon physical arrival of the vessel or, more broadly, carried out a delivery protocol or performed some other act to effect delivery. The Tribunal finds nothing in the Vessel Charter Hire Agreement which requires the Claimant to deliver a "notice of readiness" to the Respondent or to implement any protocol or perform any other act in order to complete "delivery" as asserted by the Respondent. Nor has sufficient evidence been adduced by the Respondent to support its claim that "international practice" would require a mandatory condition of this kind in this case. Accordingly, the Tribunal finds that this leg of the Respondent's argument has no merit. The consequence of this finding is that "delivery" of the vessel under the Agreement would be effected by physical delivery in conformity with the conditions for delivery as specified in the Vessel Charter Hire Agreement.

67. As for the Respondent's third point, the Tribunal notes that Clause 7E of the Conditions of Contract of the Vessel Charter Hire Agreement provides as follows: "The Vessel and all equipment, plant, consumables and spare parts at any time required for its operation, shall be imported into China on a temporary basis for the Charter duration…" [Emphasis added.]

68. From this provision, it seems clear that when the parties negotiated the Vessel Charter Hire Agreement they knew that, for certain reasons of PRC regulation, the [vessel] would be treated as "cargo" or "goods". The Respondent says that as "cargo" or "goods" the vessel required a bill of lading issued at the port of departure and signed by the captain of the vessel. Since the [vessel] did not have a bill of lading, "delivery" could not be effected. . . . The Claimant says that in fact the [vessel] did not require a bill of lading for delivery to the Respondent. It claims that the Respondent's assertion is a "fallacy". . . .

69. The Respondent, having raised the point, has the burden of proof. In the Tribunal's opinion, it has failed to discharge its burden to adduce convincing evidence that a bill of lading was required for the entry of the [vessel] into China and that without one "delivery " of the vessel could not be effected. In arriving at this finding, the Tribunal is heavily influenced by the testimony on cross-examination of Respondent's witness . . . [This witness] who handled the formalities for the entry of the [vessel] into China, testified that on 8 July 2004, prior to the arrival of the vessel at . . . Port, his company issued a "xiao ti dan" ("small bill of lading") or "delivery order" for the vessel in order to enable it to clear PRC Customs. On this basis, Customs clearance was in fact effected. . . . Accordingly, we find that the Respondent has failed to make a convincing case that the lack of a bill of lading for the [vessel] prevented its delivery on the Vessel Charter Hire Agreement on the date of its physical arrival at . . . Port.

70. The Tribunal now turns to the fourth argument advanced by the Respondent. This is Respondent's key argument and it revolves around the two documents - the "Pre-Inspection Certificate Before Loading" and the "No Wood Package Certificate" - which it says the Claimant, as a matter of PRC law, was required to obtain but failed to do so. As a consequence, the Respondent says, the "conditions for delivery" specified in Clause 1 of the Conditions of Contract of the Vessel Charter Hire Agreement were not met. Moreover, the Respondent says, failure to obtain these certificates meant that clearance of the vessel by PRC Customs could not take place.

71. We first address the argument that Claimant's alleged failure to produce the two certificates meant that the "conditions for delivery" were not met.

72. The Tribunal accepts, at least in principle, that if the two certificates were in fact required by PRC law as a pre-condition for the entry of the [vessel] into China, then the failure to obtain such certificates would prevent "delivery" of the vessel in accordance with Clause 1 of the Conditions of Contract of the Vessel Charter Hire Agreement. Clause 1 explicitly provides that the vessel shall be "properly documented" and "seaworthy" and "in every respect ready for service" at the time of delivery. If these requirements are not met, we agree with Respondent's argument that delivery as a legal matter cannot take place. Similarly, we also agree with Respondent that failure to comply with the provisions of Clause 15 of the Conditions of Contract, requiring that the vessel be in compliance with national and local regulations pertaining to health and safety, would also prevent effective delivery of the vessel under the Vessel Charter Hire Agreement. In our view, lack of required health and safety certificates would mean that the vessel was not "properly documented". On both points the Tribunal finds the teaching in the Madeleine and the Derby instructive.

73. In order to succeed with this part of its case, however, the Tribunal is of the view that the Respondent would need to adduce sufficient proof that (1) the two documents were in fact required by PRC law and (2) if they were required, it was Claimant's fault in not obtaining them. In both respects, we find that the Respondent's case fails.

74. On the first point, the Tribunal notes that the Respondent has offered remarkably little proof that the two documents were in fact legally required for the [vessel]. The Respondent has provided copies of the relevant legislation, but these were not accompanied by any explanation or formal legal opinion or expert evidence of any kind. Further, the witness testimony of the Respondent's own witnesses showed that the relevant regulations underpinning the documentary requirements alleged by the Respondent are obscure, and their operation and application are not well understood in China, even among experts in the field. . . . Finally, the two documents were in fact not actually required when Chinese Customs finally granted customs clearance for the [vessel] on 23 July 2004. Even more telling is the fact that the vessel was ultimately cleared by PRC Customs without either of the two certificates being produced. It appears that the "No Wood Package Certificate" for the [vessel] was never obtained at all. No "Pre-Inspection Certificate" was ever obtained. What was finally issued was an exemption certificate. . . . Based on the foregoing, the Tribunal finds that evidence of the legal necessity of the two certificates is at best ambiguous.

75. As regards the second point, the Tribunal notes that the keystone to the Respondent's case is the assumption that it was the Claimant's responsibility to obtain the two certificates and that it failed to do so. The Tribunal disagrees. Clause 7E of the Conditions of Contract of the Vessel Charter Hire Agreement provides as follows: "Charterer shall arrange all clearance, importation and exportation requirements, work and residence permits - with assistance of Owner's site staff, if required - and pay all import and export duties inclusive of VAT, import licenses, operating licenses, dredging and/or dumping licenses and any other associated costs. That are necessary for reason of this Charter [sic]. In case import duties/VAT can be replaced by a bond or bank guarantee, Charterer will issue this bond or bank guarantee and bear the charges thereof." [Emphasis added.]

76. Clause 7E is clear that "the Charterer" - that is, the Respondent - has the responsibility "to arrange" all clearance and import requirements including all licences. Neither party has contested that this language would include the two certificates in issue. The parties have taken different positions, however, on the meaning of "shall arrange".

77. Clause 17 of the Conditions of Contract provides that the English version of the Vessel Charter Hire Agreement is controlling. The Oxford English Dictionary (Extended Fourth Edition) states that "to arrange" means to "plan the details of (a future event); organize in advance." The Merriam-Webster Collegiate Dictionary (Tenth Edition) states that "to arrange" means "to make preparations for", "to put in proper order", and "to bring about" some thing or event, such as "arranged to have a table at the restaurant". Therefore, the word "arrange" in the context of Clause 7E must be understood to impose a substantive obligation on the Respondent to make preparations for, to organize and to bring about some thing. That "thing" was of course in this case the issuance of the two certificates in issue. Accordingly, the Tribunal finds that the Respondent had an obligation to "arrange" for and obtain the two certificates. To the extent that they were not obtained in a timely fashion, this was a breach of Respondent's obligations under the parties' agreement and cannot be attributed to the fault of the Claimant.

78. The Tribunal notes that neither party appears to have been aware of the alleged requirement for the two certificates at the time the Vessel Charter Hire Agreement was signed. Indeed, according to the testimony of the Respondent's witness [a Chinese employee of Respondent in charge of importation], the Respondent itself only became aware of the alleged requirement for the two certificates on about 15 July 2004. . . . In any case it was not until this time that the Claimant became aware of the alleged requirement for the certificates. . . . Furthermore, the argument that the failure to produce the two certificates prevented "delivery" of the vessel was not made until the commencement of these arbitration proceedings. . . . These facts suggest that the two certificates - and the alleged legal requirement that they be obtained as a condition to delivery of the vessel - were not even contemplated by the parties at the time the vessel arrived on 9 July 2004. As a result, it is difficult in such case to see how the lack of the certificates could be grounds for refusing to accept delivery of the vessel on 9 July 2004.

79. In view of the foregoing, the Tribunal finds that the Respondent has failed to meet its burden of proof that the two certificates were in fact required in order to effect delivery of the [vessel] or that, if they were required, the failure to obtain them was attributable to any fault by the Claimant. Under the circumstances, the Tribunal finds that the Claimant did everything that it was required to do under the Vessel Charter Hire Agreement to effect delivery of the vessel as from the date of the vessel's arrival on 9 July 2004. Accordingly, the Tribunal finds that the [vessel] shall be deemed to have been delivered on 9 July 2004 and the Respondent's obligation to pay charter hire shall commence from that date.

80. We turn now to consider the Respondent's argument that the Claimant's alleged failure to provide the two certificates prevented Customs clearance of the [vessel]. First, we note as an initial matter that it is common ground between the parties that the PRC Customs cleared the [vessel] on 23 July 2004. Although the formal entry permit was not issued until December 2004, the Respondent has accepted, during questioning in the course of the Second Hearing, that the vessel should be treated as having been cleared by Customs from 23 July 2004. . . .

81. In the course of these proceedings the Respondent asserted on several occasions that Customs clearance was a precondition for lawful "delivery" of the vessel. . . . No reference however was made, at any time, by either one of the parties, to specific articles of the Customs Law of the PRC. In order to clarify the legal basis for this position, the Tribunal wrote to the parties on 3 August 2007 and requested them to comment on the provisions of Articles 23 and 37 of the Customs Law of the PRC.

Article 23 provides: "All import goods, throughout the period from the time of arrival in the territory to the time of Customs clearance…shall be subject to Customs control."

Paragraph 1 of Article 37 provides: "Without the approval of Customs, the goods under Customs control must not be opened, picked up, delivered, forwarded, changed, repacked, mortgaged, transferred, changed identification, transferred for other use or disposed of for other purposes." [Emphasis added.]

82. In its reply of 14 August 2007, the Respondent confirmed its position that without Customs clearance the [vessel] was "prohibited to be delivered by the Claimant to the Respondent" and that this was the effect of the cited provisions. . . . The Claimant, however, rejected this position. . . .

83. The Tribunal repeats that the Agreements are governed by Hong Kong Law, but accepts that PRC Customs law may have prohibited the physical delivery of the [vessel] prior to Customs clearance on 23 July 2004. However, that does not mean that delivery of the vessel, for purposes of the Vessel Charter Hire Agreement, could not have taken place. This is especially so in the circumstances of this case. For the purposes of the Charter Hire Agreement, "delivery" was effected when the terms and conditions for delivery as specified in the Agreement were met. The fact that the vessel could not be physically handed over to the Respondent until it was cleared by PRC Customs is not relevant. This is particularly so here where the reason why Customs clearance allegedly could not be effected was due entirely to the fault of the Respondent itself.

In this respect, it should further be noted that Article 24 of the Customs Law of the PRC provides that declaration of import goods shall be made to the Customs by the Consignee. The Consignee in this case is the Respondent. This obligation is in line with the contractual obligation of the Respondent as stipulated in Article 7E in the Charter Hire Agreement, as discussed above.

84. Based on the foregoing the Tribunal finds that the Claimant is entitled to charter hire for the [vessel] for the period from 9 July 2004 to 11 August 2004 in the amount of . . .'