'The Parties

1. The names and addresses of the parties are:

1.1. The Claimant is … a corporation existing and organized under the laws of [a country in the Americas] …

1.2 The Respondent is … a corporation organized and existing under the laws of [a country in South East Asia] …

2. The names and addresses of the parties' representatives are …

3. The contact details of the Sole Arbitrator are …

Factual Background

A. The [X] Contracts

4. On October 10, 2007, [an oil company in the Americas] ("[X]") awarded two service contracts to Claimant …, each in the form of a time charter for a fast supply boat of new construction to be used in connection with [X]'s offshore oil and gas exploration and production activities (hereinafter, "[X] Contract"; collectively, "[X] Contracts"). Ex. 8 and 10. (Throughout, exhibits will be referred to as "Ex. __", followed by a specific paragraph, section, or page number, if necessary.) One contract was awarded for Hull006, now known as the "[vessel A]". The other contract was awarded for Hull008, now known as the "[vessel B]". Originally, each [X] Contract required [Claimant] to supply a vessel for 1,826 days of service to commence on August 23, 2009.

B. The Shipbuilding Contracts

5.1. On November 22, 2007 [Claimant], as "Owner", and Respondent …, as "Builder", entered into two Shipbuilding Contracts containing identical terms; one for the construction and delivery of Hull No. 006 (the "Vessel"), hereinafter referred to as "the [vessel A]"; another for the construction and delivery of Hull No. 008 (the "Vessel") hereinafter referred to as "the [vessel B]". Ex. 22 and 23. Collectively, the [vessel A] and [vessel B] will be referred to as "the Vessels".

5.2. Each of the Shipbuilding Contracts defined the "Contract Price" to be a lump sum price of [amount] payable in two instalments: (1) the first instalment of 20% in the amount of …, payable within 30 days from the signing of the Shipbuilding Contract "within which time the Bank Guarantee for the balance of the Contract Price shall be put in place by Owner …" and (2) the "Final instalment" for 80% in the amount of … to be paid either upon "Acceptance" of the Vessel "or upon the Owner putting the Vessel to Commercial Use (as defined below) and shall be the subject of a Bank Guarantee put in place by the Owner (within 30 days from the date of signing of this Contract) at a Bank acceptable to the Builder". Ex. 22 and 23, Article 2.2.1. "Acceptance" is defined as the successful compliance by the Vessel with a "Check List" comprised of identified inspections, verifications and sea trials to be performed by [X]. Id., Article 1.1. "Bank Guarantee" is defined to mean the Banker's Letter of Guarantee "in the form and terms as acceptable to Builder's Bankers" for the amount of the Final instalment. Article 1.3.

5.3. Under the heading "Time and Place" for delivery, the Shipbuilding Contracts specify delivery "at the Builder's Shipyard at [port 1] on July 31, 2009". Article 7.1. [Port 1] is located on the Pacific coast … By contrast, "Exhibit H" to the Shipbuilding Contracts - also an attachment to the Contracts between [Claimant] and [X] - provides in Item A6 that the "Delivery Port, for the technical inspection (Check List)" shall be "[port 2] or [port 3]; according to [X] requirements." Ex. 22 and 23, "Exhibit H", Item A6. "Exhibit H" to the Shipbuilding Contracts also provides that Item A6 "is not part of the Builder's scope of work". [Port 2], where [X] required the technical inspections to be carried out, is located on the Gulf of Mexico.

5.4. The delivery date under each of the Shipbuilding Contracts is subject to postponement "due to causes which under the terms of this Contract" permit postponement. Article 7.1. The Shipbuilding Contracts permit postponement of the delivery date for force majeure events. Article 8. The Shipbuilding Contracts also permit postponement for any default by the Owner "as provided herein". Id., Article 11.3 (a). The Owner's default is defined as either the failure "to pay any instalment" due [to Respondent], an inability to pay debts as they come due, or the failure to take delivery of the Vessel without a valid or specific ground. Article 11.1.

5.5. The Shipbuilding Contracts provide for an adjustment to the Contract Price "by way of Liquidated Damages" if the delivery of the Vessel does not occur on the delivery date "as defined in Article 7 hereof". Liquidated damages accrue at US$1,000.00 for the first seven (7) days of delay and US$17,080.00 thereafter, subject to a cap of 5% of the Contract Price. Article 3.1.

5.6. The Shipbuilding Contracts contain an entirety clause: "This Contract contains the entire agreement and understanding between the Parties and supersedes all prior negotiations, representations, undertaking and agreements on any subject matter of this Contract." Article 19.2.

5.7. Any "modifications of and/or changes" to the Shipbuilding Contracts "are valid only if executed in writing and duly signed by all Parties". Article 20.2.

5.8. The Shipbuilding Contracts limit [Claimant]'s liability for any default in its performance as follows: "In any event and notwithstanding anything to the contrary in this Contract, in no circumstances shall the Owner be liable for any loss of profit, earnings or any special or consequential losses, damages or expenses whatsoever and howsoever arising." Article 11.4.

5.9. The Shipbuilding Contracts contain the following choice of law provision: "Notwithstanding its references to the taxation laws [at the place of performance], this Contract and all other agreements and amendments relating to this Contract shall be construed, interpreted and in all respects (including those of product liability) governed by the laws of the American state of Texas." Article 13 (1).

5.10. Article 13 of the Shipbuilding Contracts contains the following arbitration agreement:

4) In the event that the Parties hereto do not settle a dispute according to subparagraph (3) above and/or in the event of any other dispute of any kind whatsoever between the Parties and relating to this Contract or its rescission or any stipulation therein, such dispute etc. shall be submitted to arbitration under sub-paragraph (5) below.

5) The dispute shall be referred to a single arbitrator agreed between the parties or elected as per the Arbitration Rules of the International Chamber of Commerce (ICC).

6) Any such reference to the arbitrator shall, if related to delay, require such arbitrator to state in any award the number of Days (if any) by which the Delivery Date shall be extended by reason of the delay arising from the dispute or difference referred to the Arbitrator.

7) Any arbitration under this Article shall take place in Houston and in the English language. The arbitration shall be governed by Texan laws and the rules of the arbitration shall be the ICC Rules.

8) In the event of any dispute or difference arising or occurring prior to deliver[y] to and acceptance by the Owner of the Vessel being referred to arbitration, the Parties hereby acknowledge that time is of the essence in obtaining an award from the arbitrator on such dispute or difference and the Parties hereby agree that the arbitration shall be conducted expeditiously and that award of the arbitrator shall be final, conclusive and binding on the Parties.

Shipbuilding Contracts, Article 13.

C. Provision of the Bank Guarantees

6.1. [Claimant] timely paid the first instalment of 20% of the Contract Price under each of the Shipbuilding Contracts, but failed to provide the Bank Guarantees required under each of the Contracts within 30 days from the date of the Contract. [Claimant] and [Respondent] entered into a series of signed letter agreements extending the date for the Bank Guarantees. [The first] letter agreement, extending by 30 days, Ex. 32; [the second] letter agreement, extending to February 22, 2008, Ex. 37, following [Claimant]'s statement that the provision of the bank guarantees was "very close", Ex. 36; [the third] letter agreement extending to March 22, 2008, Ex. 41, following [Claimant]'s statements that it was "finalizing the details" on the bank guarantees, Ex. 48.

6.2. On May 20, 2008, [Claimant]'s Mr [R] wrote [to Respondent]'s Mr [N] conveying "apologies" for the delays in providing the guarantees, stating that [Claimant] was finding it "very expensive" to secure a bank guarantee to be in effect longer than a year and proposing for consideration the issuance of a bank guarantee covering the one-year period that would start August 15, 2008 until August 15, 2009. Ex. 54. On May 27, 2008, Mr [N] sent Mr [R] a proposed draft of a document titled "AGREEMENT AS TO BANK GUARANTEE" calling for a bank guarantee to be put in place for a period of one year from August 15, 2008 and for the period of any extension of the Shipbuilding Contracts. This agreement with minor revisions was executed by both parties and dated July 16, 2008. Ex.74. (Although the document refers to "the Shipbuilding Contract" and "a Bank Guarantee", the parties proceeded with a separate bank guarantee for each Vessel.)

6.3. On August 1, 2008, Mr [N] wrote [to] Mr [R] inquiring about the status of the Bank Guarantee, stating further: "As you can imagine we have just about exhausted all the funds for the project and need to get the construction funding underway." Ex. 83.

6.4. [Claimant] did not put the bank guarantees in place by August 15, 2008 as agreed. On September 4, 2008, Mr [N] wrote [to] Mr [R] urging that [Claimant] "move quickly to have you (sic) Bank Guarantee put in place as we are now funding the project out of our own funds and the contract is in breach". Ex. 102.

6.5. On September 19, 2008, [Claimant] provided [Respondent] with two (2) separate irrevocable standby letters of credit … for the [vessel A] and [vessel B] each in the amount of … (the amount of the "Final payment" under each of the Contracts) with an "issue" date of September 19, 2008 and "expiry" date of August 15, 2009. Ex. 104 and 105. Those letters of credit, however, were not acceptable to [Respondent]'s banker because the global financial crisis that ensued shortly thereafter raised concerns about the capacity of [the issuing bank] to meet the letters of credit. Ex. 117. [Respondent] was not able to draw on the letters of credit until March, 2009. [N] statement, paragraph 106.

D. Factors Delaying the Construction of Both Vessels

7.1. [Respondent] had not done business in [the country of performance] before and it was necessary to build shipyard facilities [there], to establish other infrastructure such as electrical services, employ qualified welders and other employees, and to arrange for the purchase and delivery of aluminium and other materials. [Respondent] experienced a number of delays and difficulties in establishing its operations in [that country]. These included delays in the completion of the construction shed, delays in connecting electrical services, delays in the delivery of aluminium supplies and the absence of a qualified work force in the [port 1] area. ... The lack of qualified workers prompted a [Respondent] supervisor in [the country] to describe the workmanship as "abysmal" and the productivity as "just above zero". …

7.2. [Respondent] also complained about the lack of funds during construction due to the absence of bank guarantees to secure construction financing from [Respondent]'s bankers. In a status report to [Claimant] dated April 15, 2008, [Respondent] described a number of factors delaying progress on the construction of the vessels. Ex. 182 ... Under the heading of "Financial Issues", [Respondent] complained that the delays in securing the bank guarantees had "put a great strain on the project as [Respondent] has had to fund the project out of its own funds" and that this had "slowed the whole project down". The same report described "Infrastructure Issues" (delays with shed construction, electrical installation and installation of overhead cranes), "Labour Issues" (unavailability of qualified aluminium welders and fabricators, delays in welder certifications and overall labour shortages), and "Material Issues" (difficulties sourcing aluminium, mechanical delays in offloading critical equipment) as factors contributing to the delayed construction of the vessels. Id.

7.3. In addition to these issues, there were a number of events prompting the assertion and acceptance of force majeure delay claims both by [X] under the [Claimant]/[X] Contracts and by [Claimant] under the Shipbuilding Contracts. These events included the outbreak of [disease] and resulting travel restriction imposed by the … government, storm damage and loss of electrical power from a tropical depression that struck [port 1], which forced the closure of [port 1] harbour, damage to the [vessel A]'s port inbound propeller during a sea trial, delayed aluminium shipments from [Respondent's country of operation], and [Respondent]'s replacement of PVC bilge line with metallic bilge piping as required by … the classification society. Rebuttal Declaration [Mr R], Ex. 440 …; Ex. 411-414 (force majeure letters).

E. Place of Delivery: [Port 1] or [Port 2]

8.1. During the discussions about the issuance of the bank guarantees in August, 2008, the parties discussed the place for the delivery of the vessels. The Shipbuilding Contracts specified delivery at [Respondent]'s shipyard in [port 1], on the Pacific coast, but [X] required that the speed tests and other aspects of the "technical inspection" occur in [port 2], on the Gulf of Mexico. In an email to [Claimant] dated August 28, 2008, Mr [N] of [Respondent] identified the potential conflicting interests posed by this configuration, namely, that [Respondent] required payment before surrendering possession of the vessels and [Claimant] required [X] to "sign off" before releasing payment for the vessels. Ex. 99. Mr [N] proposed that [Respondent] conduct the voyage at [Claimant]'s cost, a solution "that would lengthen the contract by about a month" with a consequent increase in interest on the construction financing. Id. The parties ultimately agreed that [Claimant] would cover the costs of the voyage to [port 2]. Supplemental Declaration of [Mr R], Ex. 457. Under this arrangement, [Respondent] would provide the captain and a company representative for the voyage. [Claimant] would provide the crew and reimburse [Respondent] for the fuel costs. Ex. 102.

8.2. The parties did not sign an amendment or modification to the Shipbuilding Contracts changing either the time or place for delivery of the vessels.

F. Delivery of [vessel A]

9.1. Pursuant these arrangements, [vessel A] sailed from [port 1] on October 25, 2009 with a crew furnished by [Claimant] and a captain furnished by [Respondent]. A [Respondent] representative was also present. The vessel arrived in [port 2] on November 19, 2009, a voyage of twenty-five (25) days. Ex. 443, paragraphs 147 and 149.

9.2. [Respondent] retained title and control of the [vessel A] because the Bank Guarantees had expired and the vessel was [Respondent]'s sole security for the final payment.

9.3. At the time of departure, there were a number of outstanding items that … the classification society had identified in its comments as conditions to the issuance of a Final Certificate for the vessel. Ex. 459. [The classification society] issued an Interim Certificate ... Ex. 443.

9.4. On December 4, 2009, [Claimant] issued a written notice to [X] stating [vessel A] was "ready for check list inspection" and requested that the inspection be performed on Saturday December 5, 2009. Ex. 326. Over the course of the next few days [X] conducted inspection tests and speed trials on the vessel. Ex. 329.

9.5. On the night of December 10, 2009, [Claimant] removed [vessel A] from the dock without [Respondent]'s knowledge or consent. Transcript 77. [Claimant]'s executive Mr [R] told [Respondent] representatives over the course of the next days that the vessel was undergoing the required [X] sea trials, and refused [Respondent]'s initial requests to return the vessel. Transcript 77-79. [Respondent] representatives testified that they saw and photographed [vessel A] transporting materials to and from the offshore platforms. ...

9.6. As reflected in an [X] report dated December 9, 2009, the results from the check-list inspection of [vessel A] conducted on December 7, 2009 yielded "satisfactory" results and the vessel was authorized to enter [X]'s offshore platform area. Ex. 348. In a December 15, 2009 memo to [Claimant], [X] stated that services were initiated under the [X] Contract for [vessel A] "at 22:45 on December 10, 2009". [X] issued a report estimating the money due [Claimant] under the [X] Contract for the period December 10-31, 2009, reciting "Official Contract Start 22:45". In "Amendment Agreement Number Two" to the [X] Contract for [vessel A] dated May 4, 2010, [Claimant] and [X] "acknowledge the service in the present contract started on December 10, 2009". Ex. 420.

9.7. On December 11, 2009, [Claimant] requested that [X] allow "48 hours of maintenance break, preferably on December 14 and 15 …". Ex. 338. On December 15, 2009, [Claimant] returned [vessel A] to [Respondent]. Transcript, pages 77-78.

9.8. The parties negotiated and arrived at agreement on the amount of the total final payments [Respondent] would receive before transferring title to [vessel A]. [Claimant] had transferred funds to [Respondent] for the Final instalment specified under Article 2.2.1 of the Shipbuilding Contract but had deducted [amount] representing 5% of the purchase price as liquidated damages and another [amount] for expenses [Claimant] claimed to have incurred. On or before December 22, 2009, [Claimant] paid [Respondent] these two items previously deducted, reserving its claim to liquidated damages, and reimbursed [Respondent] for the costs of the fuel consumed on the voyage from [port 1]. Ex. 365.

9.8[sic]. On December 22, 2009, [Respondent] issued the Declaration of Warranty for [vessel A] to be in effect for a period of 12 months. Ex. 460.

9.9. On December 22, 2009, [Claimant] notified [X] that "maintenance" on the [vessel A] had been completed and that "the vessel is now available to be back in service". Ex. 383.

G. Delivery of [vessel B]

10.1. The arbitral record contains no evidence of the dates that [vessel B] sailed from [port 1] or that it arrived in [port 2].

10.2. In an email dated February 18, 2010, a [Claimant] employee reported that [vessel B] had passed the [X] check list inspection "last night". Ex. 381.

10.3. On February 18, 2010, a [Claimant] employee reported that [vessel B] had been requested to move to the docks for water and bunkering and was expected to

receive "a cargo program shortly". Ex. 381.

10.4. By "Amendment Agreement Number Two" to the [X] Contract for the [vessel B], [Claimant] and [X] agreed that the contract is "to start on February 18, 2010". Ex. 422.

10.5. On February 22, 2010, [Respondent] issued the Declaration of Warranty for [vessel B] to be in effect for a period of 12 months. Ex. 461.

History of the Arbitration

11.1. On November 19, 2010, [Claimant] filed with the Secretariat of the International Court of Arbitration of the ICC (the "ICC Secretariat") a Request for Arbitration against [Respondent] dated November 17, 2010 pursuant to the arbitration clauses contained in Article 13 of each of the Shipbuilding Contracts.

11.2. On December 29, 2010, [Respondent] filed with the ICC Secretariat an Answer and Counterclaim dated December 23, 2010.

11.3. On February 8, 2011, [Claimant] filed with the ICC Secretariat a Reply to the Counterclaim dated January 31, 2011.

11.4. The parties did not agree on the nomination of a Sole Arbitrator. On February 17, 2011, at its session of that date, ICC International Court of Arbitration took the necessary steps for the appointment of the Sole Arbitrator and fixed the advance on costs subject to later adjustments.

11.5. On March 3, 2011, at its session of that date, the ICC Court of Arbitration appointed … as Sole Arbitrator in this matter ...

11.6. On March 7, 2011, the ICC Secretariat forwarded the file to the Sole Arbitrator.

11.7. On April 15, 2011, the Sole Arbitrator held a telephone conference with the parties to discuss a schedule for the proceedings.

11.8. On April 21, 2011, at its session of that date, the ICC International Court of Arbitration extended the time limit for establishing the Terms of Reference until June 30, 2011, pursuant to Article 18(2) of the ICC Rules of Arbitration.

11.9. On May 25, 2011, the Sole Arbitrator and counsel for both parties signed the Terms of Reference.

11.10. On May 27, 2011, the Sole Arbitrator issued the Provisional Timetable and Procedural Order No. 1, establishing a schedule for the preliminary proceedings and for the evidentiary hearing to commence October 17, 2011.

11.11. On July 25, 2011 the Sole Arbitrator issued Revised Provisional Timetable and Procedural Order No. 2, establishing a new schedule for the preliminary proceedings and for the evidentiary hearing to commence on November 28, 2011 in order to accommodate conflicts in the schedule of counsel.

11.12. On September 1, 2011, the Sole Arbitrator held another telephone conference with counsel to discuss various issues that had arisen regarding preparation of the case and the need [for] additional time in order for both parties to prepare their cases.

11.13. On September 2, 2011, based upon the telephone conversation with counsel, the Sole Arbitrator issued an email containing a revised schedule for the preliminary proceedings and scheduling the evidentiary hearing to commence on May 22, 2012.

11.14. On December 22, 2011, [Respondent] submitted its proposed Amended Statement of Counterclaim.

11.15. On January 17, 2012, [Claimant] submitted its Motion for Partial Summary Judgment on [Respondent]'s Counterclaims and its Objection to the Amended Statement of Counterclaim.

11.16. On January 24, 2012, the Sole Arbitrator held a telephone conference with counsel to discuss, among other things, [Respondent]'s request to submit its proposed Amended Statement of Counterclaim and to set a schedule for consideration of [Claimant]'s Motion for Partial Summary Judgment.

11.17. On January 31, 2012, the Sole Arbitrator issued Revised Provisional Timetable and Procedural Order No. 3, granting [Respondent]'s motion for leave to file an amended counterclaim, setting a date for a response to [Claimant]'s motion for partial summary judgment on the counterclaims, and confirming the schedule for the evidentiary hearing to commence on May 14, 2012.

11.18. On February 15, 2012, [Respondent] submitted its Submissions in Answer to [Claimant]'s Motion for Partial Summary Judgment on the Counterclaims.

11.19. On April 23, 2012, the Sole Arbitrator conducted another conference call with counsel.

11.20. On April 24, 2012, the Sole Arbitrator issued Revised Provisional Timetable and Procedural Order No. 4 addressing several procedural issues associated with the evidentiary hearing, including arrangements for the appearance of several witnesses at the evidentiary hearing by videoconference.

11.21. Prior to the evidentiary hearing, the parties submitted witness statements, rebuttal witness statement, a joint bundle of trial exhibits, and pre-hearing briefs.

11.22. The evidentiary hearing commenced … as scheduled on May 14, 2012. The hearing continued for five days, through Friday, May 18, 2012. The parties provided at the hearing a trial bundle of 456 exhibits comprising 2662 pages.

11.23. On May 25, 2012, the Sole Arbitrator issued Revised Provisional Timetable and Procedural Order No. 5, allowing [Claimant] until June 1, 2012 to submit additional witness statements and documents to address the issue of the location of the delivery of the Vessels under the Shipbuilding Contracts, establishing alternative dates to reconvene the evidentiary hearing for examination of witnesses on the additional evidence submitted by [Claimant], and setting a schedule for the post-hearing briefs and cost submissions.

11.24. On June 1, 2012, [Claimant] submitted the Supplemental Declaration of [Mr R] together with supplemental exhibits 458-485 dealing with the place of delivery of the vessels covered by the subject contracts.

11.25. By email dated June 5, 2012, counsel for [Respondent] stated that he did not wish to cross-examine Mr [R] on the supplemental evidence.

11.26. On June 29, 2012, both parties submitted post-hearing briefs. [Respondent]'s brief also included a submission on costs.

11.27. On July 5, 2012, the parties furnished to the Sole Arbitrator an agreed transcript of the evidentiary hearing comprising 474 pages.

11.28. On July 13, 2012, [Claimant] made its Submission on Costs.

11.29. On July 20, 2012, [Respondent] submitted a Response to [Claimant]'s Submission on Costs.

11.30. On July 20, 2012, counsel for [Claimant] stated that [Claimant] did not seek leave to formally reply to [Respondent]'s Response on Costs, but commented that [Respondent]'s Response included certain new cost items not previously submitted.

11.31. On August 26, 2012, the Sole Arbitrator declared the proceedings closed.

11.32. At its session of August 30, 2012, the ICC International Court of Arbitration extended the time limit for rendering the Final Award until October 31, 2012.

Authority of the Sole Arbitrator

12.1. The Sole Arbitrator has jurisdiction by virtue of the arbitration clause contained in Article 13 of each of the Shipbuilding Contracts, quoted above.

12.2. This arbitration is governed by the ICC Rules of Arbitration in force as from January 1, 1998.

Overview of the Claims, Defences and Counterclaims

13.1. [Claimant] seeks to recover liquidated damages for the delayed delivery of [vessel A] to [port 2] on December 22, 2009 in the amount of …, representing the cap on liquidated damages of 5% of the Contract Price specified in Article 3 of the Shipbuilding Contract.

13.2. [Claimant] seeks to recover liquidated damages for the delayed delivery of [vessel B] to [port 2] on February 22, 2010 in the amount of …, representing the 5% cap on liquidated damages.

13.3. [Claimant] also seeks an award of attorneys' fees under the Texas statute providing recovery of attorneys' fees in an action on a contract, pre-judgment interest as specified under Texas law, post-judgment interest, and its costs of arbitration under Article 31 of the ICC Arbitration Rules.

13.4. [Respondent] contends that no liquidated damages are due because the delivery of both vessels was timely after credit for force majeure delays. [Respondent] contends that the Shipbuilding Contracts specified delivery in [port 1] and the Vessels were delivered in [port 1] before the delivery deadlines specified in the contracts. [Respondent] also contends that it was entitled to an automatic postponement of the delivery dates under Article 11.3(a) of the Shipbuilding Contracts due to [Claimant]'s "default" of its obligations to provide Bank Guarantees under the contracts.

13.5. By way of further defence, [Respondent] contends that [Claimant]'s failure to timely provide acceptable Bank Guarantees hindered [Respondent]'s performance under the contracts and that under the "Prevention Principle" [Claimant]'s conduct precludes recovery of damages even if the vessels were delivered late.

13.6. [Respondent] asserts three counterclaims. [Respondent] asserts a counterclaim for breach of contract based upon [Claimant]'s failure to timely provide acceptable Bank Guarantees under both of the Shipbuilding Contracts and seeks to recover "direct" damages of [amount] for unpaid technical services and acceleration costs.

13.7. [Respondent] asserts a counterclaim for the tort of negligent misrepresentation based upon [Claimant]'s representations about its capacity to fund or provide security for the construction financing of the vessels and representations about its intention or willingness to provide security within 30 days after signing the contracts. By this counterclaim, [Respondent] seeks to recover [amount] for the "losses" [Respondent] suffered by entering into the Shipbuilding Contracts based upon the misrepresentations.

13.8. [Respondent] also asserts a counterclaim in tort for the conversion of [vessel A] when [Claimant] seized the vessel on December 10, 2009 without [Respondent]'s consent and in violation of [Respondent]'s ownership and right to continued possession of the vessel until paid. By this counterclaim, [Respondent] seeks an award of actual damages totalling [amount] for "loss of use damages" of [amount] and for legal fees of [amount] [Respondent] incurred in protecting its interest in the vessel when it had been taken by [Claimant]. [Respondent] also seeks an award of punitive or exemplary damages of [amount] for malicious conduct.

13.9. [Respondent] also seeks to recover its reasonable attorneys' fees and other costs pursuant to the ICC Rules of Arbitration.

[Claimant]'s Claim for Liquidated Damages on [vessel A]

14.1 [Claimant] contends that [vessel A] was delivered to [port 2] on December 22, 2009, 143 days after the Delivery Date of July 31, 2009 specified in the Shipbuilding Contract. [Claimant] credits [Respondent] with 109 days of permissible delays attributable to documented and allowed force majeure events, with the result that [vessel A] was delivered 34 days late. Ex. 440, Rebuttal Declaration of [Mr R]. [Claimant] calculates that under the formula contained in Article 3.1 of the Shipbuilding Contract, 34 days of delay would yield liquidated damages of [amount], exceeding the 5% cap on liquidated damages. Accordingly, [Claimant] seeks to recover liquidated damages for late delivery of [vessel A] in the amount of …, representing 5% of the Contract Price. [Claimant's] Post-Hearing Brief ...

14.2 [Claimant]'s calculation of liquidated damages on [vessel A] requires the acceptance of two propositions: (1) that liquidated damages are to be calculated on the basis of delivery at [port 2] without credit for the time it took to sail the vessel from [port 1] to [port 2], and (2) that the period for assessing liquidated damages should continue to run until December 22, 2009, the date [Respondent] issued the 12-month warranty on [vessel A].

14.3. The place of delivery - [port 1] or [port 2] - presents a threshold issue for the determination of the claims for liquidated damages. [Respondent] argues that [vessel A] was delivered in [port 1] on October 25, 2009, when [vessel A] departed with a [Claimant] crew for [port 2]. [Respondent] argues that Article 7.1 specifies [port 1] as the place of delivery and that no signed variation of this provision was effected as required by Article 20.2 for any modification or amendment of the Shipbuilding Contract. [Respondent] argues that its "initial delivery" of the Vessels in [port 1] fixes the date for delivery, rather than the "formal delivery" effectuated by the issuance of the Protocol of Delivery and Acceptance and other documents issued upon final payment, and that [Respondent]'s obligation to make this initial delivery in [port 1] did not change. [Respondent] Post-Hearing Brief ... [Respondent] also points out that Item A6 of "Exhibit H" to the Shipbuilding Contracts, specifying [port 2] as the "Delivery Port" for the [X] technical inspection and sea trials, is expressly excluded from "the Builder's scope of works", and did not affect or modify [Respondent]'s obligation to deliver the Vessels at its shipyard in [port 1].

14.4. [Claimant], on the other hand, argues that [vessel A] was delivered in [port 2] because [vessel A] had not been "completed" as required by the Shipbuilding Contract when it sailed from [port 1]; that the "Delivery Date" under the contract could not occur prior to the performance of the sea trials required by the Check List, which [X] required to take place in [port 2]; that the parties implemented an agreement to transport and deliver the Vessels to [port 2], under which [Respondent] maintained title and control to the Vessels; and that the Declaration of Warranty for [vessel A] dated December 22, 2009 fixes the delivery date "for purposes of the contract".

14.5. In ascertaining the intention of the parties, a court or arbitrator should examine and consider the entire writing and attempt to harmonise and give effect to all of the provisions of the contract so that none will be rendered meaningless. Coker v. Coker, 650 S.W.2d 391 (Tex. 1983), cited by [Claimant]. A construction of the Shipbuilding Contracts that required delivery of the vessels in [port 2] but failed to account for the voyage from [port 1] would render meaningless the provision of Article 7.1 designating [port 1] as the place for delivery and would vitiate the express contractual joinder of the "Time and Place" of delivery. A more reasonable and commercially sensible construction of the Shipbuilding Contracts for the purpose of assessing liquidated damages against [Respondent] would be to acknowledge the parties' arrangement for delivery of the vessels to [port 2] but to postpone the required delivery date for each vessel to account for the time it took to sail from [port 1] to [port 2]. Article 3 of the Shipbuilding Contracts dealing with the assessment of liquidated damages is expressly predicated on the failure to meet "the Delivery Date as defined in Article 7 hereof". Article 7.1, under the heading "Time and Place", specifies delivery "at the Builder's Shipyard at [port 1] on July 31, 2009". The parties in fixing the time for delivery necessarily took into account the place for delivery. It follows that a modification of the place for delivery should be reflected in a corresponding change in the time for delivery. Indeed, the parties addressed this very concept in their negotiations leading to their arrangement for [Respondent] to transport [vessel A] to [port 2] when Mr [N] wrote to Mr [R] that "this solution" - transporting the vessel to [port 2] at [Claimant]'s cost - "would lengthen the contract by about a month or so". Ex. 99; Supplemental declaration of [Mr R].

14.6. [vessel A] sailed from [port 1] on October 25, 2009 and arrived in [port 2] on November 19, 2009, a voyage of 25 days. Ex. 443 ... [Respondent] will be allowed credit of 25 days in assessing [Claimant]'s claims for liquidated damages.

14.7. [Claimant] claims liquidated damages on [vessel A] for delayed delivery on December 22, 2009. However, the evidence conclusively establishes [Claimant] commenced commercial use of [vessel A] on December 10, 2009. See the summary of evidence under the heading "Delivery of [vessel A]", supra. In his testimony at the evidentiary hearing, Mr [R] admitted that [vessel A] had been tendered to [X] for service on December 10, 2009, that [vessel A] had been put to commercial use during the period from December 10, 2009 until the vessel was returned to the dock on December 15, 2009, and that [X] had paid [Claimant] for service for the vessels for those days. Transcript, pages 75-79.

14.8. December 10, 2009, the date [Claimant] commenced commercial use of [vessel A], is the correct delivery date for the purposes of calculating whether liquidated damages are due. The final instalment on the vessel is due "upon the Owner putting the Vessel to Commercial Use". Article 2.2.1. In the event the Owner makes commercial use of [vessel A] before either "Acceptance" or full payment of the final instalment, [Respondent] is entitled to call upon "and encash" the Bank Guarantee. Id. [Respondent] could not call upon the Bank Guarantee in December, 2009 because it had expired. However, had the Guarantee been in place, [Respondent] would have been entitled to "encash" it notwithstanding the absence of formal "Acceptance" of [vessel A]. The Shipbuilding Contract does not allow [Claimant] to continue collecting damages for delayed delivery after [Claimant] has commenced commercial use of the vessel under the [X] Contract. This analysis reduces the delay of [vessel A] by another 12 days (December 10-December 22).

14.9. Rather than a delay of 143 days from the Delivery Date of July 31, 2009, as [Claimant] contends, the delivery of [vessel A] was delayed only 106 days, recognizing 25 days credit for the voyage and delivery on December 10 instead of December 22, 2009. After credit for the 109 days for acknowledged force majeure events there are no unexcused delays in the delivery of [vessel A]. [Claimant] is entitled to recover no liquidated damages on the [vessel A].

14.10. [Claimant]'s claim for liquidated damages on the [vessel A] is rejected.

[Claimant]'s Claim for Liquidated Damages on [vessel B]

15.1. [Claimant] contends that [vessel B] was delivered to [port 2] on February 22, 2010, 204 days after the Delivery Date of July 31, 2009 specified in the Shipbuilding Contract. Ex. 440, Rebuttal Declaration of [Mr R]. [Claimant] credits [Respondent] with 179 days of permissible delays attributable to documented and allowed force majeure events, with the result that the [vessel B] was delivered 25 days late. [Claimant] calculates that under the formula contained in Article 3.1 of the Shipbuilding Contract, 25 days of impermissible delay would yield liquidated damages of [amount], also exceeding the 5% cap on liquidated damages. [Claimant] seeks liquidated damages for late delivery of [vessel B] in the amount of …, representing 5% of the Contract Price. [Claimant] Post-Hearing Brief ...

15.2. For the reasons set forth in the discussion about [vessel A], [Respondent] is entitled to credit for the duration of the voyage from [port 1] to [port 2]. The voyage of [vessel A] took 25 days. The record contains no evidence of the dates on which [vessel B] sailed from [port 1] or that it arrived at [port 2]. In the absence of such evidence, it is reasonable to infer that the duration of the voyages of [vessel B] and [vessel A] would have been approximately the same. [Respondent] will be allowed credit on the delivery of [vessel B] of 25 days in assessing [Claimant]'s claim for liquidated damages.

15.3. By [Claimant]'s calculation, [vessel B] was delivered on February 22, 2010, the effective date of the warranties [Respondent] issued on [vessel B]. While that date fixes the Delivery Date for purposes of the warranty, it does not necessarily fix the delivery date for purposes of calculating liquidated damages. As discussed above in connection with [vessel A], [Respondent] is entitled to receive final payment when [Claimant] commences commercial use notwithstanding the absence of formal "Acceptance" of the vessel. The evidence establishes that [Claimant] put [vessel B] to commercial use on February 18, 2010. [vessel B] had passed the [X] check list the night before. On the morning of February 18, 2010, [vessel B] was sent to the dock for water and bunkering and [Claimant] expected the vessel to receive "a cargo program shortly". Ex. 381. This was consistent with an amendment to the [X] Contract calling for service of [vessel B] to commence on February 18, 2010. Ex. 422, "Amendment Agreement Number Two" to the [X] Contract for [vessel B].

15.4. After credit for acknowledged force majeure delays, the delivery of [vessel B] was timely regardless whether the vessel was delivered on February 18 or on February 22. Based on a delivery date of February 18, 2010, [vessel B] was delayed 175 days after allowing 25 days credit for the voyage from [port 1]. Based on a delivery date of February 22, 2010, the date [Claimant] contends to apply, [vessel B] was delayed 179 days after 25 days credit for the voyage from [port 1]. After credit for the 179 days for acknowledged force majeure events there were no unexcused delays in the delivery of [vessel B] on either date.

15.5. [Claimant]'s claim for liquidated damages on the [vessel B] is rejected.

15.6. Because delivery of the vessels has been found to have been timely, it is unnecessary to address with respect to either vessel [Respondent]'s assertions that [Claimant]'s failure to provide Bank Guarantees either entitled [Respondent] to an automatic postponement of the delivery dates under Article 11.3 of the contracts or precluded [Claimant]'s recovery under the "Prevention Principle".

[Respondent]'s counterclaim for breach of contract

16.1. [Respondent] contends that [Claimant] breached its express contractual obligation to provide acceptable Bank Guarantees to secure the final payment under each of the Shipbuilding Contracts. [Respondent] argues that the purpose of the Bank Guarantees was to enable [Respondent] to obtain from its bankers the necessary construction financing for the Vessels, as evidenced by the contractual requirement that the Bank Guarantees be "in the form and terms as acceptable to the Builder's Bankers". Article 1.3. [Respondent] contends that by virtue of [Claimant]'s failure to timely provide acceptable Bank Guarantees, [Respondent] was unable to obtain construction financing from its bankers and lacked the funds necessary to purchase essential equipment, hire enough qualified personnel or otherwise manage the project efficiently with the result that the construction of the vessels was substantially delayed.

16.2. [Respondent] seeks to recover alleged "direct" damages resulting from [Claimant]'s breach of contract in the total amount of …, representing (1) unpaid technical services costs incurred to support the project in the amount of …, and (2) "acceleration costs" incurred to mitigate the delays occasioned by [Claimant]'s breach of contract in the amount …

16.3. Article 11.4 of each of the Shipbuilding Contracts limits damages recoverable from [Claimant]: "In any event and notwithstanding anything to the contrary in this Contract, in no circumstances shall the Owner be liable for any loss of profit, earnings or any special or consequential losses, damages or expenses whatsoever and howsoever arising." Without determining the issue of breach, the application of the damages limitation clause of Article 11.4 is dispositive of [Respondent]'s counterclaim for breach of contract because the damages [Respondent] seeks to recover are "consequential" rather than "direct".

16.4. Courts applying the applicable Texas law construing similar damages limitation clauses have drawn a clear distinction between allowable "direct" damages and non-recoverable "consequential" damages: "Direct damages are those that flow naturally and necessarily from the breach. 'Direct damages compensate for the loss, damage, or injury that is conclusively presumed to have been foreseen or contemplated by the party as a consequence of the breach of contract or wrongful act.' [citation omitted] 'Consequential damages' are those which result naturally, but not necessarily, from the breach. Consequential damages must be foreseeable and must be directly traceable to the wrongful act and result from it." Tennessee Gas Pipeline Company v. Technip United States Corp. et al., 2008 Tex. App. LEXIS 6419 (Tex. App. - Houston [1st Dist.] 2008, writ denied) (emphasis added), a decision cited by [Respondent]. The Tennessee Gas Pipeline decision illustrates the strict standard imposed under Texas law to establish direct damages. There the court determined that several items of damages that "resulted naturally" from the breach were nonetheless "consequential" damages because they did not "necessarily" result from the breach. Id. at 23-25. Significantly, in upholding an award of project delay costs as direct damages, the court emphasized that those expenses "would not have occurred but for the breach". Id. at 20 (emphasis added).

16.5. [Respondent]'s claim for [amount] in unpaid "technical support costs" involves monies that [Respondent] advanced to the shipyard in [port 1] through [Respondent's affiliate], because the shipyard had no design facilities and lacked the administrative and technical support for the fabrication of the Vessels. [Mr N's] statement, paragraph 124. [Respondent] and [another] company each owned 50% of the shares of [Respondent's affiliate]. Under [Respondent]'s arrangement with [the other company], neither of those parties was to receive payment of sums due from [Respondent's affiliate] if the income from the project was insufficient to make the payment. [Mr N's] supplementary statement, paragraph 6. [Respondent] contends that the lack of bank funding substantially increased the costs of the project and as a result [Respondent] was unable to recover these costs "from the proceeds of the Contracts…". [Respondent's] Post-Hearing Brief ... These damages are the result of [Respondent]'s special arrangements with its affiliates in [the country of performance] and do not "flow naturally and necessarily" from a breach of [Claimant]'s obligation to provide the Bank Guarantees. Moreover, these damages appear to present, albeit indirectly, a claim for a "loss of profit" also excluded under Article 11.4 of the Shipbuilding Contracts.

16.6. [Respondent]'s claims for "acceleration costs" involve several categories of claimed costs "incurred by [Respondent] to mitigate the delays which had been suffered due to the lack of funding". [Respondent's] Post-Hearing Brief ... These are for (a) the cost of transporting and accommodating independent contractors from [a country in South East Asia], (b) the additional labour costs for engaging local workers in nightshifts, (c) flight and accommodation costs for [Respondent's] senior management to assist in the coordination of increased labour on the vessels, and (d) the cost of air-freighting electrical items and the engagement of related labour to mitigate delays.

16.7. Indisputably [Respondent] undertook to accelerate the pace of construction due to delays and incurred costs to do so. However, there were a number of other causes for the delays that would have led to the acceleration costs even if the Bank Guarantees had been in place. Numerous catastrophic events included hurricanes and tropical storms, later recognized as force majeure events, delayed construction on each vessel more than 100 days. From the outset of the project, [Respondent]'s operations in [the country of performance] were plagued by "Infrastructure", "Administrative" and "Labour" problems that delayed construction of the vessels, including delays in the construction of facilities, delivery of aluminium supplies, and connections to electrical services, and the lack of qualified workers in the [port 1] area. E.g. Ex. 135, 182. Increased acceleration costs may have "resulted naturally" from delay in providing acceptable Bank Guarantees, but it cannot be concluded that such damages resulted "necessarily" from the absence of timely Bank Guarantees, nor does the evidence establish that [Respondent] would not have incurred these acceleration costs "but for" the absence of the Bank Guarantees.

16.8. Because the damages [Respondent] seeks to recover by its counterclaim constitute "consequential" damages as excluded by Article 11.4 of the Shipbuilding Contract, the breach of contract counterclaim is rejected.

[Respondent]'s Counterclaim for Negligent Misrepresentation

17.1. [Respondent] asserts a separate counterclaim sounding in tort (damages for [sic] which would not be subject to the limitation Article 11.4 imposes on damages recoverable for breach of contract) based upon alleged misrepresentations of fact that induced [Respondent] to enter the Shipbuilding Contracts. The elements of a cause of action for negligent misrepresentation under Texas law are: (1) the representation is made by a defendant in the course of its business; (2) the defendant supplies "false information" for the guidance of others in their business; (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information; and (4) the claimant suffers pecuniary loss by justifiably relying on the representation. Federal Land Bank Ass'n v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991), a decision cited by [Claimant].

17.2. As summarized in its Post-Hearing Brief, [Respondent] relies upon the following representations of fact:

By its conduct in September to November 2007 outlined below, [Claimant] represented to [Respondent] that, as a fact:

(a) it had the present capacity to fund, or provide the required security for funding; and

(b) the present intention, or willingness, of providing security for funding promptly, and in any event by no later than 30 days after signing the Contracts.

[Respondent's] Post-Hearing Brief ...

17.3. [Respondent] alleges that it relied on these representations in entering into the Shipbuilding Contracts and seeks to recover [amount] representing the "losses" that it suffered by entering into the two contracts.

17.4. [Claimant] contends that [Respondent]'s counterclaim for negligent misrepresentation is barred by the two-year statute of limitation set forth in section 16.003(a) of the Texas Civil Practices and Remedies Code. [Respondent] responds that its counterclaim for negligent misrepresentation arises out of the same transaction made the subject of earlier pleadings and that its counterclaim is timely under the "relation back" doctrine under the Texas statutes. Sections 16.068 and 16.069, Texas Civil Practice & Remedies Code. The counterclaim for negligent misrepresentation arises out of the same transaction made the basis of earlier pleadings and will be treated as timely filed.

17.5. However, the counterclaim fails on its merits. There is no tenable basis for the negligent misrepresentation claim as a separate cause of action independent of the claim for breach of contract. [Claimant]'s commitment to provide security for funding was expressly embodied in the contracts requiring [Claimant] to provide Bank Guarantees acceptable to [Respondent]'s bankers within 30 days of the signing of the contracts. Article 2.2.1. Any alleged losses resulted from [Claimant]'s failure to perform this obligation under the Shipbuilding Contracts rather than from the prior misrepresentation. The case is distinguishable on this ground from the decision in Mewhinney v. London Wineman, Inc., 339 S.W.3d 177 (Tex. App. - Dallas [5th. Dist.] 2011), cited by [Respondent]. Indeed, during the term of the Shipbuilding Contracts [Respondent] complained to [Claimant] about its failure to provide the Bank Guarantees as required by the Shipbuilding Contracts. In September, 2008, Mr [N] urged [Claimant] to "move quickly to have you (sic) Bank Guarantee put in place as we are now funding the project out of our own funds and the contract is in breach". Ex. 102 (emphasis added).

17.6. Because the alleged "pre-contractual representations" ([Respondent]'s Post-Hearing Brief, page 38) related directly to an express undertaking under the Shipbuilding Contracts - [Claimant]'s obligation to provide the Bank Guarantees -those representations were superseded by the Shipbuilding Contracts. The entirety clause contained in Article 19.2 of the Shipbuilding Contracts provides: "This Contract contains the entire agreement and understanding between the Parties hereto and supersedes all prior negotiations, representations, understandings and agreements on any subject matter of this Contract." (emphasis added).

17.7. [Claimant]'s alleged representation of "present intent or willingness" to provide security for funding within 30 days of signing amounts to no more than a promise of future conduct, albeit carefully pleaded as a statement of present intent, and cannot form the basis for a negligent misrepresentation claim. "Significantly, the sort of 'false information' contemplated in a negligent misrepresentation case is a misstatement of existing fact, not a promise of future conduct." Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex. App.-Houston [14th Dist.] 1999, pet. denied) (emphasis in original), as cited by [Claimant].

17.8. [Respondent]'s tort claims for negligent misrepresentation are also barred under Texas law because [Respondent] cannot establish that it suffered an injury that is distinct, separate and independent from its alleged economic losses recoverable under a breach of contract claim. See D.S.A., Inc. v. Hillsboro Indep. Sch. Dist., 973 S.W.2d 662, 664 (Tex. 1998), cited by [Claimant]. The Texas Supreme Court has explained that "[r]epudiating the independent injury requirement for negligent misrepresentation would potentially convert every contract interpretation dispute into a negligent misrepresentation claim". Fed. Land Bank Ass'n v. Sloane, supra. The losses for which [Respondent] seeks recovery are the types of economic losses otherwise recoverable under a breach of contract claim and may not properly be awarded for negligent misrepresentation.

17.9. [Respondent]'s counterclaim for negligent misrepresentation is rejected.

[Respondent]'s counterclaim for conversion of [vessel A]

18.1. [Respondent] asserts a claim in tort for conversion of [vessel A], commencing the night December 10, 2009, when [Claimant] surreptitiously seized [vessel A] and commenced commercial use of the vessel under the [X] Contract, until December 15, 2009, when [Claimant] returned the vessel to [Respondent]'s control at the dock. Because the Bank Guarantee had expired, the vessel was [Respondent]'s sole security for the final payment, and [Claimant] was aware that [Respondent] would not relinquish title over the vessel until it received final payment. Transcript, page 89.

18.2. [Respondent] seeks an award of actual damages totalling [amount] comprised of two elements. The first element is for alleged "loss of use damages" beginning on the evening of December 10, 2009 and ending at December 15, 2009 based on evidence [Respondent] presented of comparable daily charter rates at US$6,750.00 per day, for a total of US$33,750.00. The second element is for legal fees in the amount of … that [Respondent] incurred to [a law firm] in December, 2009 to protect its interest in [vessel A] after [Claimant] had seized and refused to return [the vessel]. Ex. 403.

18.3. [Respondent] also seeks an award of punitive or exemplary damages, alleging that [Claimant] had acted with malice because, among other things, [Claimant] seized and used the vessel with full knowledge that title remained in [Respondent] and that the vessel constituted [Respondent]'s sole security for payment, [Claimant] misrepresented to [Respondent's] representatives that [vessel A] was being used only for sea trials when in fact the vessel had been put to commercial use, and [Claimant] sought in these arbitration proceedings to recover liquidated damages for the days that [Claimant] wrongfully possessed [vessel A] and put the vessel to commercial use. [Respondent's] Post-Hearing Brief ...

18.4. [Claimant]'s conduct in seizing [vessel A] on December 10, 2009 and its use of the vessel until returned on December 15, 2009 constitutes wrongful conversion under Texas law. See Green Int'l v. Solis, 40 Tex. Sup. J. 610 (Tex. 1997), cited by [Respondent], defining conversion to be the wrongful exercise of dominion and control over another's property in denial of or inconsistent with his rights. The evidence conclusively establishes that [Claimant] put the vessel to commercial use under the [X] Contract. [Vessel A] had already been approved for service under the [X] Contract before December 10, 2009. [Claimant]'s contention that it was within its rights to seize the vessel in order to conduct sea trials cannot be squared with the evidence.

18.5. However, damages for conversion are "limited to the amount necessary to compensate the plaintiff for the actual losses sustained as a natural and proximate result of the defendant's conversion". United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147 (Tex. 1997) (emphasis added), cited by [Claimant]. [Respondent] suffered no "loss of use damages" as a result of the conversion. [Respondent]'s sole interest in retaining title and possession of [vessel A] was to secure payment. Although the seizure of [the vessel] potentially jeopardized [Respondent]'s prospects for payment while [Claimant] maintained possession, [Respondent] recovered the full amount of the final instalment, payment of a finance charge and applicable fuel costs. By contrast, [Respondent]'s retention of legal counsel in December 2009 in order to protect its interests in [vessel A] was a reasonable response to [Claimant]'s seizure of [the vessel]. The legal fees [Respondent] incurred in the amount of … represent actual losses sustained as a natural and proximate result of the conversion of [the vessel]. [Respondent] will be awarded [that amount] as its actual damages for conversion.

18.6. [Respondent] has asserted a claim to prejudgment interest under the provisions of the Texas Finance Code, section 304. Respondent's Post-Hearing Brief ... [Respondent] is entitled to recover pre-judgment interest on [the above-mentioned amount for legal fees] at 5% simple interest per annum from December 29, 2010, the date on which [Respondent] filed its counterclaim for conversion, until the date of this Final Award as provided in the Texas Finance Code.

18.7. [Respondent] is entitled to recover post-judgment interest on [the above-mentioned amount for legal fees] under the provisions of Texas Finance Code, section 304.005(a) at a rate of 5% simple interest per annum.

18.8. In order to recover punitive or exemplary damages, a plaintiff must present clear and convincing evidence of malice. Malice is defined under Texas law as "a specific intent by the defendant to cause substantial harm to the claimant." Tex. Civ. Prac. & Rem. Code Ann., section 41.001 (7). The evidence does not support the conclusion that [Claimant]'s seizure of [vessel A] was motivated by a specific intent to harm [Respondent]. It appears that [Claimant] seized [the vessel] on the night of December 10, 2009 to avoid breaching the [X] Contract, which required [the vessel] to be in service by December 10, 2009. Once it had commenced service under the [X] contract, [Claimant] requested a "maintenance break" to commence on December 14 or 15, and on December 15, 2009, [Claimant] returned [the vessel] to [Respondent]. [Respondent] retained possession of [the vessel] until fully paid. There is no evidence that [Claimant] exploited its temporary possession of [the vessel] to its advantage in the negotiations over the amount of the final payment. [Respondent]'s claim for punitive or exemplary damages is rejected.

Attorneys' Fees and Costs of the Arbitration

19.1. The Shipbuilding Contracts contain no provision dealing with the recovery or allocation of attorneys' fees or other costs relating to the arbitration. Because neither party has recovered on its breach of contract claims, Texas law provides no basis for the recovery of attorneys' fees by Tex. Civ. Prac. & Rem. Code Ann. Section 38.001 (allowing an award of attorneys' fees to a party who has recovered on a contract claim).

19.3. [Claimant]'s claims for liquidated damages have been rejected on both vessels. [Respondent]'s counterclaims for comparatively substantial amounts have been rejected in their entirety. [Respondent] has been awarded only a fraction of its claimed actual damages for conversion, and its claim for punitive or exemplary damages has been rejected in its entirety. Accordingly, pursuant to the discretion to allocate costs under Article 31 of the ICC Rules of Arbitration, each side shall bear its own attorneys' fees and the costs of the arbitration.

19.4. At its session of September 13, 2012, the ICC International Court of Arbitration fixed the costs of arbitration at [amount]. Each side has paid [amount] towards the advance on costs.

AWARD: For the reasons set forth above, the Sole Arbitrator renders his award as follows:

1. [Claimant]'s claim for liquidated damages on [vessel A] is rejected.

2. [Claimant]'s claim for liquidated damages on [vessel B] is rejected.

3. [Respondent]'s counterclaim for breach of contract is rejected.

4. [Respondent]'s counterclaim for negligent misrepresentation is rejected.

5. [Claimant] shall pay [Respondent] the sum of [amount to cover legal fees] as actual damages for [Claimant]'s wrongful conversion of [vessel A].

6. [Respondent] shall recover from [Claimant] pre-judgment interest on [the aforementioned amount] at 5% simple interest per annum for the period from December 29, 2010, the date on which [Respondent] filed its counterclaim, until the date of this Final Award.

7. [Respondent] shall recover from [Claimant] post-judgment interest on [the aforementioned amount] from and after thirty (30) days from the date of this Final Award until paid at 5% simple interest per annum.

8. [Respondent]'s counterclaim for punitive or exemplary damages for conversion of [vessel A] is rejected.

9. Each party shall bear its own costs, including costs of legal representation and costs of the arbitration.

10. All claims for relief not expressly granted above are hereby denied.'