Admiralty Law as a Combination of Domestic Laws - Coursework Example

Admiralty Law This law sets the rules and procedures that govern the issues of carriage of passengers and cargos in the high seas and any navigable waters (Ian, 2007 p9). This law provides the rights and the remedies to all those individuals who encounter injuries within the seas and the inland navigable waters. The nature of the rights and remedies, as well as the repercussion of the claims greatly differs, based on who presents the claims, and the nature of such presented claims. For example, the claim that a passenger presents have very different remedies, from such claims presented by the members of the crew (Charles, 2008 p11). Admiralty Law is very dynamic and amorphous, in that it changes the nature of defenses issued, through incorporating into the defense system some defenses that are not stipulated in the common laws, or by removing some standing laws that previously guided this practice. Consequently, the in-depth knowledge of Admiralty Law is necessary for any individual wishing to raise a claim under the law (Frakes, 2003 p22). This law consists of a combination of domestic laws governing the internal maritime activities and the private international laws, which guides the activities and the interactions of private entities that are operating within the seas (Eliot, 1963 p20). The component o this law are major international treaties which have been enacted in the recent decades, to guide the relationships and business undertakings between countries and the private entities on the seas. The flag that a ship flies in the high seas determines under which jurisdiction of the law such a ship falls. The jurisdiction of the ship, and thus all the consequent cases arising from its activities and interactions with others fall with the country that the flag possessed by the ship belongs. However, the substance and the authenticity of such flag is a paramount issue, in Admiralty Law, in that some ships may fly flags that do not truthfully reflect the country they emanate from (Davis, 2008 p10). In our case, O charted its ship, the Costa Lotta, to go and carry a consignment of crude oil from Greece to the UK. The vessel was to carry the cargo that belonged to VC, which is domiciled to Greece, without any of its business operations in the UK. During the process of transporting the crude oil, the vessel, Costa Lotta developed a problem, which arose from bad weather in the Mediterranean, when it was near the coastline of Italy. As a result of this problem, the cargo that was carried by the vessel got damaged, losing substantial of the crude oil into the sea. The master of the ship sought help from a salvage company, since the ship had been refused to dock in any port of Italy. With the assistance of the salvors, the remaining cargo of crude oil was salvaged, and the salvors helped in the clean up procedure that saw the clearance of the oil that spilled into the sea. Having been assisted, the savors are seeking compensation for helping salvage the cargo held by Costa Lotta. On its part, O, the company that owns the Costa Lotta is avoiding the salvors, by failing to compensate them for their salvage mission. More to this, O has gone ahead and sold Costa Lotta, the vessel that was salvaged to Bruno. This makes the subject of dispute in this case unavailable. The master of the vessel was arrested and detained in France, required to explain the incidence that led to the sea pollution, which affected the coastline of France, rendering it inappropriate for visit by tourists. On the other hand, VC, the company that owned the cargo that was being transported by Costa Lotta has failed to complete the payment. VC argues that the loss of cargo that was incurred by the company should be set off against the remaining payment to O. Additionally; VC argues that the loss occurred due to the incompetence of the master of Costa Lotta. Thus, there are many legal issues underlining this case, which can be traced to the Admiralty Law. The first legal issue is whether O will succeed in raising a claim against VC, so that it can receive the remaining payment that VC ought to have paid, which was due the moment the vessel sailed from Greece, and what procedure it shall follow. Additionally, a legal issue arises, regarding whether the salvors will be in a position to wage a successful claim against O, from the payment of fee arising from the salvage of its vessel. In considering whether O will succeed in raising a claim against VC, it is essential to consider the duties and rights of the carrier under the Admiralty Law. Under this law, a carrier refers to the owner of a ship or the vessel, or the charter who enters into a contract with a shipper for the shipment of a cargo (Eliot, 1963 p28). The carrier is required to undertake various duties and liabilities under the Admiralty Law. The carrier is responsible for the handling and loading of the cargo into the vessel or the ship that will be used for transport. It is also the responsibility of the carrier to handle the storage, carriage and the custody for such goods as are entrusted to him by the shipper (Charles, 2008 p23). The discharge of such cargo is also entrusted with the carrier, where they take charge of ensuring that the cargos they carry have been successfully transited from the shippers point to their point of destination. In executing such duties and responsibilities, the shipper is however entitled to certain rights and exceptions that limit such responsibilities of the carrier, placing the burden on the owner of the cargo. Thus, loss or damage of goods in the seas is the most fundamental element that is handled by the Admiralty Law, seeking to resolve the disputes that arise between the shipper and the carrier of the cargo, which are most of the times common and inevitable. Such is the substance of this case, which seeks to understand who bears the responsibility for the loss in cargo that occurred, and thus whether the shipper, VC, is liable to complete the payment to O, the carrier. The responsibility of the carrier extends to the ship, where he is supposed to exercise due diligence in ensuring the sea worthiness of the ship. Under this responsibility, the carrier is supposed to ensure that the vessel or the ship he is extending under a contract to ship cargo from the shippers point to their destination is seaworthy. This means that such a vessel should be free from any physical or mechanical problems, which can make it faulty, and thus fail to perform as expected. The other responsibility held by the carrier is to ensure that he has equipped the ship with all the relevant tools and equipment, necessary for its sea journeys. Granting the ship all the supplies, such as fuel is the other responsibility held by the carrier. Additionally, the carrier should ensure that the vessel is well manned with enough and trained crewmembers, who undertakes all the roles that are necessary for the whole transit journey of the cargo (Eliot, 1963 p32). Therefore, in our case, if the shipper, VC, can prove that there was a breach of duty and responsibility on the side of the carrier, O, to ensure the seaworthiness of the ship, then he may default on the remaining payment. However, if the loss did not emanate from the failure of the carrier to ensure the sea worthiness of the vessel, then the shipper is liable to complete the payment (Connor, 2004 p7). The other legal responsibility that could be borne by the carrier, in this case, O, would emanate from his responsibilities as regards the cargo. In engaging in a contract to charter vessel to VC, to have his crude oil transported from Greece to UK, O assumed the responsibility over the cargo, which includes handling and loading the cargo into the vessel. Under this responsibility, then, O should ensure that no damage occurs to the cargo during the process of handling and loading it to the vessel, as any damage arising from this point becomes his liability and not of the shipper (Sohmer, 2007 p68). Additionally, the carrier is responsible for carrying, caring for, and keeping the cargo in a safe condition, throughout the whole transport journey, up until the cargo is delivered to the destination specified by the shipper. In our case, the cargo that was being shipped by the vessel Costa Lotta did not arrive at its destination in good conditions, as the cargo got damaged and most of it spilled over into the sea. However, determining who was responsible for the loss and damage is the substance of this case. The master of the vessel, bases this loss on bad weather, while the shipper, VC, blames the loss and damage on the incompetence of the master of the vessel. This way, determining the actual cause of this incident serves to determine on whom the responsibility falls, thus determining whether VC should complete the pending payment or O should take the loss as his responsibility. Another aspect of Admiralty Law that is important for this case is the aspect of notification of loss, as stipulated by this law. The law requires that such a notice of damage or loss should be given to the carrier at the port of discharge in form of writing, before or at the time of the removal of goods from the vessel of transit (William, 1996 p22). On the event, that such notice is not made at that particular time, then it is assumed that delivery occurred, and thus the carrier is under no more obligations to care for such goods. Thus, in this case, VC should have served O a written notice of loss of goods just before the goods were dispatched from the vessel, so that the responsibility of such loss would fall on O. Another important aspect is that of presenting the case for damage or loss in form of a legal suit before the law. For the liability of any loss or damage to occur on the carrier, then such a loss or damage must be presented as a legal suit against the carrier, before a court of law within a period of one year from when the goods were delivered or when they should have been delivered to their destination (Eliot, 1963 p23). On the event, that this does not happen then the carrier is relieved of the liability in respect to this loss or damage. Thus, O can be relieved of the liability for the loss of VC’s cargo that occurred; if VC did not present the suit within the stipulated time. However, most important is the fact that, even though the shipper may have failed to grant the carrier a notice of loss or damage within the stipulated time, the shipper can still wage a legal suit against such loss and damage, provided that it happens within one year from when the consignment was to be delivered (Charles, 2008 p28). When the loss and damage of the cargo for transit has occurred, and the necessary legal suit is staged against the carrier of such goods, then, both the carrier and the shipper should present each other with all the requisite facilities, for the purpose of tallying and inspection. This is meant to enable the actual loss that occurred on the cargo that was in transit to be assessed and evaluated, based on the actual facilities that were the basis of that contract (Davis, 2008 p12). If the facilities necessary for assessing the damage have been tampered with, then the substance of the case is lacking, making it impossible for a successful legal suit to be undertaken. In our case, the requisite facilities for the evaluation and inspection in this case include the Costa Lotta vessel that was used to transport the cargo, and the crude oil, which was being transported. However, the carrier, who had charted the vessel for the shipment of the crude oil have already sold the vessel to Bruno. If such an act occurred within the period in which the legal suit was amenable to be presented against O by VC for the loss of crude oil, then the requisite facilities for inspection would be lacking, making such a suit unsuccessful. A major aspect of the case, as falls under the admiralty law is the aspect of uncontrollable causes of losses, which could have caused the damage or loss in the cargo under transit. According to the provision of this law, any loss or damage resulting from such causes shall not be the responsibility of the carrier or the ship (Connor, 2004 p12). The elements considered under this aspect of law include any act of God, act of war, an act of the public enemy, and fire, unless it is caused by the fault of the ship, for which the carrier is responsible. Additionally, any such losses emanating from accidents, dangers and perils of the sea can never become the responsibility of the carrier or the ship (Frakes, 2003 p35). In a case, where a legal suit is filed against such damages and losses by the shipper of the cargo against the carrier or his ship, then the responsibility of proving that such loss occurred as a result of the factors falling under uncontrollable causes of loss lies with the carrier. However, it is worth noting the fact that, any loss that could arise as a result of the carrier trying to save lives or property cannot be a liability of the carrier or the ship (Eliot, 1963 p39). Therefore, based on the above provisions of the Admiralty Law, the case of O v VC requires undergoing several tests of threshold, to be able to determine whether O can wage a successful case against VC for the breach of the remaining payment. To start with, for O to succeed in such a case, then he have to prove that the loss and damage that occurred was not as a result of any negligence in fulfilling his duties and liabilities regarding the cargo and the seaworthiness of the ship. Secondly, O has to prove to the courts that the loss that occurred on the crude oil that was being transported resulted from any of the various factors under the uncontrollable causes of loss. In this case, since the cause of the loss is attributable to bad weather, then O can succeed in the case by proving that such loss did not occur out of any other cause but bad weather, which they had no control over. If O can manage to prove to the courts that the loss did not emanate from any of his fault or any factor that he could have control over, then he can succeed in the legal suit to have VC compelled to pay for the remain part of payment, as per the agreement. Thus, the success of the case between O and VC is all-dependent on the ability of O to defend the loss and damage that occurred, basing it on the natural factors occurring on the sea. The procedure that O should follow in raising a legal claim against VC will include establishing personal jurisdiction over VC. This will entail ensuring O serves VC with the process, according to the establish laws, without the any violation of the rules or the due process (Charles, 2008 p30). Having established the admiralty jurisdiction of the courts on the case, then the process of assessing and evaluating the loss and damage that was suffered follows. This entail considering all the facilities that can give information on the magnitude of the loss suffered, such as the vessel that was involved in that transit, as well as the cargo that was being transported. Having assessed the damage, then the normal court procedure for civil cases will follow, where the claimant, in this case O, presents a case against VC for the breach of payment of the remaining payment. Both O and VC then gets an opportunity to defend their positions, with O defending the fact that the loss and damage that occurred was a consequence of factors that would not be controlled (Salih, 1998 p93). After the successful defense of each party regarding their stand, then the case is left with the judges to determine whether VC is liable to pay the remaining amount. However, if VC succeeds to show that the loss emanated from the negligence of O, and the faulty conditions of the vessel he presented for the contract, then O loses the case. It will therefore be upon the judges to determine whether the loss incurred can be offset with the payment not remitted. How the salvors can recover the reward for their services The substance of the second case regards how the salvors can recover the compensation for salvage services they offered to the vessel owned by O. Under the Admiralty Law, anyone involved in the salvage of a ship or a vessel in the seas whenever there is an emergency is entitled to a reward, notwithstanding that they may engaged in such acts of saving the vessels at their own volition, without being contracted to do so (Frakes, 2003 p40). According to the law, the compensation granted to such services is normally higher than the value of labor involved, in that it is offered to motivate the mariners to volunteers in the acts of saving lives and property in the seas, in the events of emergencies. However, it is worth noting that saving the lives of people who could have perished on the sea does not qualify as salvage, as all mariners are duty bound to save the lives of the people at any time during emergencies, without any expectation of a pay. There are various requirements regarding the thresh hold that should be met by any act of salvaging life or property, to have such services warrant rewards, as stipulated by the law. The first requirement is the fact that the incident involving the vessel or the ship to be salvaged must be a serious accident or peril, under which the vessel could not have been saved, unless through the services of the salvors (Davis, 2008 p13). Thus in making any claim for the reward for the offer of salvage services, the salvor must show that if it were not for their services, then the lives or the property involved in the case could not have been salvaged. The other important requirement for any act of saving a ship on the seas to qualify as salvage services is the fact that such acts of saving the lives or property on a vessel should be voluntary. Thus, there should not be any legal obligation on the side of the salvors to undertake the salvage services; otherwise, their services do not qualify for any reward (Charles, 2008 p35). The other requisite qualification for such services is the fact that the salvors must have saved all or part of the property in the vessel that underwent the peril. On the event, that such property is abandoned by the master, the crew, or the agents of the carrier, then any salvor can salvage such property and hold it. In case the owner of such property or cargo wishes to repossess it, then, he can claim it from the salvor, subject to the payment of a reward for the salvage services, as may be deemed appropriate by the both parties involved (Ian, 2007 p13). Another important consideration for any act of saving the property from a vessel or ship in peril is to qualify as salvage under certain conditions of the vessel and the property salvaged. The salvaged property must be on water or on the beach in order for saving to be considered as an act of salvage. An important consideration is the fact that any act of the crew or licensed public employees who include the firefighters does not qualify for claim of an award (Eliot, 1963 p41). The reward granted to the salvors is never more that the value of the property that was salvaged. However, under special circumstances, for example, when the cargo was completely abandoned, then, the reward offered can be higher than 50% (William, 1996 p21). The cargo and the ship are used as the elements to be considered when valuing the property, so as to determine the value of reward that the salvage services should be granted. The labor involved in the salvage services is an important consideration, as is the skills applied in salvaging the property (Connor, 2004 p13). The award should also consider the value of the resources that were applied by the salvors, and the danger exposure, that such resources incurred. The greater the risks and the higher the value of the property that was used in salvaging the property, then, the higher such reward should be, as granted to the salvors (Salih, 1998 p91). The most applied mode of resolving salvage cases is arbitration, where both the parties mutually agrees on the nature of the circumstances and the danger that the vessel and the property were exposed to, and thus the value of the reward deemed appropriate. However, this does not eliminate the rights of the salvors to seek for compensation of their services through the courts. In our case, the salvors are seeking compensation from O, for the salvage services offered in saving part of the crude oil that was being transported by the vessel chartered by O. Instead of complying to pay for such reward, O is avoiding the salvors. More to this, O has already sold the vessel that was salvaged to Bruno, who is not aware of the dispute between O and the salvors. In such a case where the owner of the ship is not willing to compensate the salvors for the services offered in salvaging the property, then the salvor has no other option than to seek legal redress (Madsen, 2003 p25). Therefore, in our case, the salvaging company that helped in saving the property of Costa Lotta will take the action of raising a legal suit against O. Having raised such a legal claim, then it is upon the courts to determine the value of the reward that the salvaging company should be paid. In determining such reward, the courts will consider the value of the crude oil that was salvaged by the salvaging company. Additionally, the courts will also consider the value of the vessel that was involved as well as the risks under which search salvage services were offered (Davis, 2008 p15). The skills and labor involved will be the other consideration that the courts will make, owing to the fact that the salvaging company helped the master and the crew of the vessel to clear the spilled oil, to avoid the possible environmental pollution that could have arose as a result of such spillage. Based on these factors, the courts will determine the reasonable value that should be paid to the salvors, and require that O pays such a reward. The role of LOF in international salvage LOF refers to a form of salvage agreement, where the roles of the salvor are defined. The LOF defines the duties and responsibilities mainly as salvaging property. However, in doing this, the salvor is also required to ensure that they protect the marine environment (Sohmer, 2007 p79). In its role as setting the terms for salvage agreement, LOF plays a role of providing for the requisites and the necessary considerations that should be made in determining the value of reward that should be offered to a salvor, on the event of a successful salvage services. The most important role that LOF plays is that it sets the standards for payment of salvage reward for salvage services, most recently including the compensation for such services even when there is no value salvaged in the salvage attempt undertaken. This way, the LOF agreement helps to save on the time that could be wasted by the owners of ships and cargos, negotiating with salvators, and thus wasting a lot of time in establishing commercial contracts (Charles, 2008 p38). Thus, the agreement effectively allows the salvage of sea vessels and their property under emergencies, as the salvators are assured of their reward, as stipulated trough the LOF. Since LOF provides that the determination of the value of reward for the salvage services be undertaken after the salvage mission is complete, it eliminates the possible delays that could be involved in such commercial bargains. The role played by this agreement is most vital and have been successful over the years, with only an average of 100 cases annually, being resolved under arbitration, while majority are resolved through mutual consensus, applying the principles of LOF agreement. The value of salvage award payable is set by an arbitrator, who is skilled in the LOF agreement, thus ensuring that the decision reached is fair to all. This helps to save time and other expense that could be involved in administering such cases through the courts (Madsen, 2003 p16). Paramount is the roles played by LOF in helping preserve and conserve the marine environment. The agreement provides that any salvor involved in salvaging any oil cargo on the seas is amenable to be paid for the salvage reward, even though the value of such cargo does not meet the expenditure incurred in salvaging the property. This is guaranteed through its principle of safety net provision (Charles, 2008 p35). Additionally, any salvor involved in the practice of helping mitigate the effect of marine pollution by oil cargos are guaranteed up to 15% increase in the pay of the salvage reward. This has gone a long way in motivating the salvators to indulge in the process of environmental conservation in the seas and the navigable waters, reducing marine pollution significantly (Frakes, 2003 p45). The effect of the application of criminal law in the regulation of ship source pollution There has been a recent phenomenon to apply criminal law under the regulation of ship source pollution, whereby the discharge of oil or other noxious substances from a vessel becomes a criminal offence (Sohmer, 2007 p73). According to these provisions, if the discharges are minimal, it will not be considered as a criminal offence, unless the minimal discharge is repetitive, causing pollution to the waters. Such discharge of pollutants is considered a criminal offence, on the event that the individuals involved does this negligently and careless. More to this consideration is the intent of such discharges. If the discharge is intentional, then it falls under a criminal offence, for which the individual is liable for penalties (Charles, 2008 p29). The exceptions provided for such criminal responsibility is in the event of discharges from warships or vessels owned by the government and used for other purposes, other than commercial (Frakes, 2003 p48). Another exception so applied is a discharge undertaken, when the life of the people or the vessel itself is in danger. The criminalization of the ship source pollution is beneficial in helping lower the chances of marine pollution, by instilling the sense of responsibility and sensitivity to the environment, on the mariners. Since the criminal penalties are based on the carelessness and negligence of the mariners in causing environmental pollution, then, this is a necessary legislative action towards effective environmental conservation. References Charles, B., 2008, U.S. Navy Salvage Engineer's Handbook. Naval Sea Systems Command. 10-38. Connor, J. 2004, Why the Full Extent of the Admiralty Jurisdiction of the Federal Courts has yet to be explored. 6-14. Davis, J. 2008, High Tech Cowboys of the Deep Seas: The Race to Save the Cougar Ace. Wired Magazine. 11-15. Eliot, M. 1963, The Two Ocean War. Little, Brown and Company. 19-44. Frakes, J. 2003. The Common Heritage of Mankind Principle and the Deep Seabed. Wisconsin International Law Journal. 21-49. Ian, T., 2007, Salvage, A personal odyssey, Seafarer Books, Sheridan House. 9-17. Madsen, D. 2003, Resurrection: Salvaging the Battle Fleet at Pearl Harbor, US Naval Institute Press. 14-32. Salih, K. 1998, Islamic Maritime Law – An Introduction. Leiden, Netherlands: Brill Publishers. 90-94. Sohmer, T. 2007, Admiralty and Maritime Laws in the Mediterranean Sea. Medieval Encounters. 60-82. William, M., 1996, Modern Marine Salvage, Cornell Maritime Press. 20-25. Read More