Question 1 Mock Exam autum 2009 Can the owner of the coffee claim - - PDF document

• Dr. juris Morten Kjelland (UiO, Nifs),

Maritime Law 2009 1

• Dr. juris Morten Kjelland

Mock Exam autum 2009

• including some methodological aspects, and

an overview of writing paper process

• Can the owner of the coffee claim compensation from Happy

Golucky (HG) for the damage caused to the coffee sacks?

Question 1

• MC § 161

MC distinguish between two situations:

• Ground of liability of HG: collision liability

No contract between the coffee owner and the HG Starting point is thus Maritime Code (MC) chapter 8, § 161

Both ships are to blame One ship is to blame

• Can the owner of the coffee claim compensation from Happy

Golucky (HG) for the damage caused to the coffee sacks?

Question 1

• MC § 161

MC distinguish between two situations:

• Ground of liability of HG: collision liability

No contract between the coffee owner and the HG Starting point is thus Maritime Code (MC) chapter 8, § 161 When both vessels involved are to blame → liability will be apportioned between them in proportion to their fault To claim the whole amount from HG – "one to blame situation"?

A look at some papers

• writing exercise and reflections

Papers

Page 2 + 30 + 18 (+ 9)

• HG's causual and blameworthy behaviour was the misinter-

pretation of the radar bearings by the officer of the watch

• nboard HG

Question 1

• The problem in this case is how the wrongful stowage impacts

in the situation → The infringement of the seaworthiness act to be considered negligence on the part of the Bad Luck (BL) The reder of HG is liable pursuant to MC § 151  Was the contribution of BL so large that the actual damage could not be regarded as a result in legal sense of the HG's act?  If HG is still considered responsible for the damage, is the present situation a so called "both to blame situation"?

A look at some papers

• writing exercise and reflections

Papers

Page 2 + 19-20 (+ 34)

• Dr. juris Morten Kjelland (UiO, Nifs),

Maritime Law 2009 2

Question 1

 Was the contribution of BL so large that the actual damage could not be regarded as a result in legal sense of the HG's act? The HG argued that the damage resulted from the bad stowing of the inflammable cargo on deck - and that HG was not to blaim for this Therefore: we must consider whether the link between the colli- sion and the damage was interrupted by the wrongful stowing Clarification: is the collision and the damage – which was caused by HG negligently – still causal for the damage: without collision there had not been a fire and no firefighting?

Question 1

 Was the contribution of BL so large that the actual damage could not be regarded as a result in legal sense of the HG's act? The next step: Is the causal contribution of HG too remote (because BL's contribution could be considered the only decisive one)? My opinion: It is not unforeeseeable that a collision could lead to higher damage because of dangerous goods and bad stowing

• n the other ship → foreseeable damage

Summing up so far: HG is to blame for the collision damage – even though BL sailed with a risk (I assess it's contribution to be 50 %)

A look at some papers

• writing exercise and reflections

Papers

Page 30 + 19-20 (+ 38)

Question 1

• Now we take a look at the consequences for our second question …

Questions to answer: Does this 50 – 50 % responsibility for the damage lead to a both to blame collision? Or: is HG still the

• nly responsible party for the collision so that BL's contribution

is only a recourse action relevant? The answer depends on how to read MC § 161 – is the decisive point who caused the  If HG is still considered responsible for the damage, is the present situation a so called "both to blame situation"?

collision itself the damage

?

Question 1

• Now we take a look at the consequences for our second question …

Questions to answer: Does this 50 – 50 % responsibility for the damage lead to a both to blame collision? Or: is HG still the

• nly responsible party for the collision so that BL's contribution

is only a recourse action relevant? The answer depends on how to read MC § 161 – is the decisive point who caused the  If HG is still considered responsible for the damage, is the present situation a so called "both to blame situation"?

collision itself the damage

Question 1

• Now we take a look at the consequences for our second question …

Questions to answer: Does this 50 – 50 % responsibility for the damage lead to a both to blame collision? Or: is HG still the

• nly responsible for the collision so that BL's contribution is
• nly a recourse action relevant?

MC § 161: "damage" is relevant and decesive → is does not matter that the collision itself was just caused by HG, when the damage was caused by both HG and BL.  If HG is still considered responsible for the damage, is the present situation a so called "both to blame situation"? Summing up: It is a "both to blame" collision → this means that the cargo owner can claim 50 % from HG

• Dr. juris Morten Kjelland (UiO, Nifs),

Maritime Law 2009 3

A look at some papers

• writing exercise and reflections

Papers

Page ? (39 + 20)

• Can the owner of the coffee claim compensation from Bad Luck

(BL) for the damage caused to the coffee bags based on unseaworthiness or other negligence?

Question 2

• It does not matter if it is
• Ground of liability of HG: collision liability

Contractual relationship between the cargo owner (here: the coffee owner) and the BL

General cargo transport (MC § 275) Charter party transport (MC §§ 347 and 383)

• MC § 275, a precondition for claim is loss because of cargo damage

Question 2

Both is given without doubt

Papers

Page 13 + 50 (9 + 3)

• MC § 275, a precondition for claim is loss because of cargo damage

Question 2

• Additionally there must be negligence of the carrier

Both is given without doubt Taking the results from question 1, BL was negligent because of the infringement of the Seaworthiness Act Both BL and HG negligently caused the damage → a case of "combined causes" pursuant to MC § 275 III → BL is liable to the extent the loss is attributable to his neglect = 50 % (see the answer to question 1) Reverse burden of proof: BL must prove the neglect of HG to protect himself

• MC § 276 I – fire exception

Question 2

The fire exception in number 2 applies because it was no personal neglect of the shipowner regarding the bad stowing (and thus the the fire)

• MC § 276 II – exception from the exception

The shipowner is prevented from relying on it because of MC § 276 II The vessel was initially unseaworty: the inflammable cargo made the voyage a greater risk than usual The carrier is also responsible for negligence of a person "for whom the carrier is responsible" → he delegated the supervision of the loading

• Summing up/concluding

Question 2

BL will be liable for 50 % of the loss

Papers

Page 50-51 + 14 (+ 58)

• Dr. juris Morten Kjelland (UiO, Nifs),

Maritime Law 2009 4

• Can the crew members of Bad Luck who assisted in the fire

fighting, claim salvage award from Bad Luck?

Question 3

• MC § 441 (and § 450)

A salvage operation is defined here (in MC § 441) There must have been a successful salvage operation The "no cure no pay principle", codified in MC § 445 The salvage was only successful with respect to the vessel MC § 450: the salvors’ endevours must exceed the duties they could reasonably be expected to undertake The GENERAL preconditions for reward is given

• Can the crew members of Bad Luck who assisted in the fire

fighting, claim salvage award from Bad Luck?

Question 3

• MC § 448 – more than one salvor

It is possible to have more than one salvor They must share the award, see MC § 446 But… MC § 450: HG could be deprived the reward because he made the salvage operation "necessary", see MC § 450 III The decission is somewhat discretionary

+ It is reasonable, since he was 50 % responsible

• On the other hand: HG should not be deprived totally since the kind of collision is

unusual (provide an incentive to possible salvors)

• Summing up/concluding

Question 3

Happy Golucky should get some salvage award from Bad Luck

A look at some papers

• writing exercise and reflections

Papers

Page 31-32 + 40 + 24-26 (+ 4)

• Explain whether and, if so, to what extent the different insurances

may offer cover under the circumstances described above.

Question 4

• NMIP § 12-1

The starting point for liability of the hull insurer The assured has in general a right to claim costs for repair actually done (damage to the vessel = in the scope of hull insurance) The "pay to be paid" principle applies

Question 4

• NMIP § 3-25

Has BL lost his right to the repair cost related to the bad stowing? The bad stowing = an infringement of safety regulations pursuant to NMIP § 3-25 The term "safety" is defined in NMIP § 3-22, and must be inter- preted quite broadly (thus every safety regulations, international, national and local, is regarded)

→ The Seaworthiness Act is contained by definition without problems

Identicifation between the assured (BL) and his servants? See MC § 3-36? No: the notion ”connection with his servics as a seaman” also include the stowing of cargo anboard (a part of making the ship seaworthy and thus a part of the service of a seaman). The owner can claim the repair costs.

• Dr. juris Morten Kjelland (UiO, Nifs),

Maritime Law 2009 5

A look at some papers

• writing exercise and reflections

Papers

Page 27-28 + 33 (+ 10)

• Salesform 1993: three stage inspections of the vessel during the sale

Number 2

• question 1: "inspection without opening up"
• Clause 4 b) provides that "the buyer shall inspect the vessel

without opening up and without cost to the sellers" Means that there is no dismantling of the engine or other parts The purpose of these kinds of inspections, is to assess to the actual condition of the vessel (according to which the potential buyer decides whether to confirm the sale or not) The inspection can be done while the vessel is in a dry dock The vessel's logs should be available for the buyer during the inspection

• Jurisdiction clause

Number 2

• question 2: jurisdiction clause v. choice of law clause

Regulates the place where a dispute is decided when it comes to legal proceedings Could be limited to just stating the country (for example England),

• r the place within the country (e.g. London)

This means: English courts in London are the ones which should be adressed when going to court. "Arbitration clause" = a special type of jurisdiction clause → regulates also who should decide over disputes arising.

• Jurisdiction clause

Number 2

• question 2: jurisdiction clause v. choice of law clause

Jurisdiction clauses have their limitation in national legislation, as well in Civil procedure Acts as in special codification like MC § 310 Could be set aside if they seem unreasonable Jurisdiction clauses are important regarding the outcome of a dispute Even though the contract form is the same, the interpretation could vary significantly English judges: "four corner rule": wording, not the intention, is the most important factor Norwegain judges: look more to the intention, are more likely to "correcting" the wording of a document

• The choice of law

Number 2

• question 2: jurisdiction clause v. choice of law clause

Regulates which coutry's law is to apply For example Norwegian law

A look at some papers

• writing exercise and reflections

Papers

Page 37 (+ 16)

• Dr. juris Morten Kjelland (UiO, Nifs),

Maritime Law 2009 6

Case-based exercises

 argumentation (pro and con)

• In general
• The link & interaction between the legal rules and the given facts

A good paper is featured by thorough discussions Perspective: Be the laywer for both parts – discuss both pro AND con to balance your argumentation (avoid the your paper is “taking a list”) The rules determine which elements in the givens facts that are relevant, and it what way/direction. Use the given facts in the exercise text; no need for summaries. If the text is unclear (or insufficient): Make it clear (or sufficient) by making an assumption/premise for your further discussion

Page 2-3, 46-47

Interaction between the rules (interpretation) and the facts (application).

• P. ?

(+ 4)

• P. 4, 9 + 48
• P. 30+31

Case-based exercises

– the interaction between interpretation and applying the rule

Interpretation (”theory”) Applying (given facts) “Summary”, speculation etc. Too much “theory”

Case-based exercises

 argumentation (pro and con)

• The facts are to be used, not just mentioned (as a sum up)
• How to do it – some guidelines (just a proposal)

To make a real argumentation, you have to use the facts … The examiner has the exercise text – no need for a sum up of the story itself … Start the argumentation with one of these words or expressions:

Since …. Because … Inasmuch as … As … This will ”force” you to USE the facts (= right) NOT just mention them (= wrong)

Not so good: “The crew member Peter could have avoid the danger by some simple and cheat precautions. This indicates he acted negligently.” Good: “Since the crew member Peter could have avoid the danger by some simple and cheat precautions, his omission indicates negligence.” Page 39 (quest 2) + 40 + 45-46

Page 30

Case-based exercises

 argumentation (pro and con)

• Some central elements

Presentation of the condition, Including the legal grounds/sources

PAPER MC § 418 establish a set of conditions, that all must be completed. …

Case-based exercises

 argumentation (pro and con)

• Some central elements

PAPER

Presentation & explanation of the factor, including the legal grounds

One factor is about the tortfeasors possibility to avoid the risk. The easier/cheaper it is to prevent the damage, the more is expected from the tortfeasor. See e.g. Stryn Ski-center (Rt. 2000 p. 1991).

Presentation & explanation of the factor, including the legal grounds

Since the crew member Peter easily, and with-

• ut any cost, could have closed the slippery

ladder for the passengers, he had an effective alternative act.

The application/use of the factor – related to the actual case

Firstly there must be “fault or neglect of the carrier”. This expresses the culpa prerequisite, which is developed by interaction between High Court and the legal theory (doctrine). We need to discuss several factors in a complex, discretionary consideration.

The factor – how it “turned out”

The argument indicates that Peter has acted negligently.

Case-based exercises

 argumentation (pro and con)

PAPER

The next factor (in the same way) … Presentation & explanation, and the legal basis The application/use of the factor – related to the actual case

A third factor is about breach on other rules. If the tortfeasor had infringed a rule of safety, it can indicate negligence. See e.g. xxxx-case. Since Peter acted against the maritime safety rules, his behaviour seems to be diverge from the expected from a reasonable person in the same situation.

The factor – how it “turned out”

Also this argument support that he acted negligently.

And so on … Part-conclusion: Is the condition meet or not (yes or no)?

The negligence condition is met. The next prerequisite is that … [same approach]

• Dr. juris Morten Kjelland (UiO, Nifs),

Maritime Law 2009 7

 Description of the parts in the conflict  Conclusion  Clarify, limit and raise the main question(s) and the legal basis to answer it/them.  Argumentation (pro and con)

Case-based exercises

– main points & stages in the paper

 Clarify the claim(s)

   

 Description of the parts in the conflict  Conclusion  Clarify, limit and raise the main question(s) and the legal basis to answer it/them.  Argumentation (pro and con)

Case-based exercises

– main points & stages in the paper

 Clarify the claim(s)

   

Case-based exercises

 conclusion

PAPER

The conclusion is the last stage. 1 sentence is necessary – and sufficient! No repetitions of the discussion above.

Conclusion: The shipowner is upheld.

When formulating the conclusion: let the subject be to claiming part Final conclusion: Is the claiming part upheld or not (yes or no)?

Page 4 (+ 9)

Mode of expression

• and some final remarks …
• Use the sources of law. NB!

Writing papers

Be precise.

• When quotating statutes (or other sources):

Find the relevant ”keywords” – do not quote the text in full.

• Use of case law

It is OK to use the nick name (it is not necessary to remember the references). Describe just what is necessary of the facts (including the result), to understand to legal relevance of the judgement. Remember to answer ths question: What is this judgement telling us? Is it expressing a general understanding of the statutes, or do we have to compare differences and similarities in the facts? (Textbook p. 10 + 30-31) Textbook

• p. 30

(+ 34) Textbook pp. 9-10, 40

Other general points

Theoretical exercises

– mode of expression/presentation

Write easy/plainly – give a concise answer (to the point) Use short and clear sentences; cut the redundant ”word flow”

Page 31-32 Page 39-40

• Dr. juris Morten Kjelland (UiO, Nifs),

Maritime Law 2009 8

• Dr. juris Morten Kjelland

Mock Exam autum 2009

• including some methodological aspects, and

an overview of writing paper process