Understanding of Maritime Law - Assignment Example

Maritime Law or shipping law is a field of law which has its origins from Roman and Ancient Greek laws. According to Allsop (2006) maritime and admiralty jurisdiction is a law body that has roots in public international law, laws of nations, international commerce, civil law and international agreement. It has rich and vibrant content. It’s an obscure or arcane branch of law to the people whose legal thinking is informed solely by human activities which is based on land. It is central to the country’s economic life and accounts for a significant portion of the universe’s maritime task by value and volume. It is a branch of law that has a lot of public importance to a given island continent and lays responsibility for and claims over large marine areas which include the Antarctic sea. It is maritime affairs law. Modern Maritime Law is mainly focused on two streams of Law; national and international law. International law governs the relationship between nations and forms an international framework that is required to conduct international shipping. National Law which can also be referred to as domestic law is the nation law for instance Australian national Law. National Law governs Australian citizens in their day to day activities such as driving a car, signing up a mobile phone from a contractor and buying an electric appliance among others. It therefore regulates the relations that exist between members of a society (COMLAW, 2009). International laws are the ones that exist between sovereign nations or states. It governs the way nations relate with each other. It provides a systematic framework that is required for international relations (Birnie & Boyle, 2002). A treaty is a form of consensus that is drawn between countries that is binding at the international law level. It has been noted that there are instances in which international organizations are parties to treaties. There are numerous terms used interchangeably for treaties; protocol or convention or exchange of letters or covenant. An agreement is only deemed as a treaty when it binds the countries that form it at an international law level (Bundock, 2007). Treaties can be viewed as bilateral or multilateral. Bilateral treaties are those which exist between two countries for instance Australia and any other country. An example of a bilateral agreement is the aviation agreement that exists between the United States and Australia. Multilateral treaties are those which exist between three or more states (Marc, 1997). An example of multilateral treaty is the United Nations Charter. Multilateral treaties are usually formed under auspices of international organizations for instance the International Labour Organization or the United Nations. ‘SPREP’,(the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region) is an example of a regional multilateral treaty. It is noted that ‘declarations’, for instance the Declaration that exists on Rights of the Child are taken up by UN General Assembly. The aforementioned declaration is however not a treaty since they are not binding by reason of their being taken up. Declarations may be utilised in the negotiation of certain UN conventions for instance the United Nations Convention that exists on Child Rights. They may also aid in treaty interpretation for example Declaration on Principles of International Law that concern Friendly Relations and Co-operation that exist among various States (1970). Treaties are usually formed in the event a problem cannot be solved by a single country for example migratory fish stocks and ozone depletion. Among the areas covered by treaties are; defence and security, civil aviation, nuclear non-proliferation, health arrangements, technological exchanges, shipping and social security, postal, maritime delimitation agreements that are geared towards the establishment of universal standards to take care of civilians in war. The power to sign treaties is vested with the executive within Section 61 as stipulated in the Australian Constitution (Daniel, 2007). Legislation takes two forms; subordinate/delegated and Statutes/Acts legislation for instance by-laws, rules and regulations. Delegated legislation is referred to as legislative instruments. Among the legislative instruments in Australia include: commencement notices, subordinate laws, approved forms, disallowable instruments and notifiable instruments (COMLAW, 2009). Statute law takes effect in the event a motorist gets a ticket when the motorist parks on the wrong side of the road. The ticket is issued since the motorist has violated a number of legislations. The two kinds of statutes are those enacted by a state parliament and those by commonwealth statutes. An Acts’ predecessor is a Bill which is passed by the Members of parliament in both the Senate and House of Representatives. Acts in use may be amended by Acts which are formulated in the future and are known as amending Acts. The original act is known as the Principal Act (if it is concerned with any particular area of law) so as to separate it from future amending Acts. For instance, the Firearms Act 1977 (SA) is known as a principal Act and as such has been amended by numerous Acts that include Firearms Amendment Act 1986 and also the Statutes Amendment Act 1997. However, an amending Act does not normally give reference to the principal Act which it rectifies. This is because an amending Act can amend more than a number of Acts. Acts of this nature are referred to as omnibus Acts (Schofield, 2005). The amendment of Acts may include the substitution of entire paragraphs or words and also the addition of sections and even the changing of short titles of particular Acts. For instance the Civil Liability Act 1936 (SA) was previously referred to as the Wrongs Act 1936 (SA), until it was further amended by the section 5 of Reform (lpp Recommendations) Act 2004 (SA). Acts are able to repeal one another which mean that they are able to nullify themselves. A consolidation on the other hand is a statute which is able to repeal an existing law on a given subject and then later re-enact its provisions while incorporating all its respective amendments. Australian jurisdictions have formed complete consolidations of different statute laws. For instance the following are South Australian consolidations: 1837- 1936 consolidation, 1837 – 1975 consolidation and the following are Commonwealth consolidations: 1901-1911 consolidation, 1901-1935 consolidation, 1901-1973 consolidation among others. Consolidations are vital since they enable a researcher to be able to look up legislation on differing subjects at different historical points in time (Mandaraka, 2007). Acts are cited with a short title which is followed by the year of enactment and lastly the jurisdiction. Examples of important Acts are Carriage of Goods by Sea Act 1991, Marine Insurance Act 1909, Navigation Act 1912 and Admiralty Act 1988. Policy is a statement that relays governmental intention and is a precursor to law. The public policy constitutes rules and principles that pertain to morality or justice that serve the economic, social or political interests of a particular place. Public policy can be categorized into two broad groups. The first category is based on substance procedure distinction. Substantive public policy is based on an arbitral award whereas the other forms; procedural public policy is based on the procedural pursuant on which an arbitral award is based (Birnie & Boyle, 2002). Public policy may pertain to many or one nation. In the event that it’s based on a single nation then it’s referred to as national public policy and multinational policy when based on numerous nations. When it’s based on the international community, it is referred to as transnational public policy. National public policy is also divided into international public policy and domestic public policy. Domestic public policy applies territorially since it only applies to relationships or transactions that do not involve foreign elements. International public policy applies extra territorially in that it applies to relationships or transactions that involve foreign elements. It is noted that both methods of public policy categorization can operate concurrently. Maritime policy covers a range of subjects. It may relate to objectives of socio-economic nature which may include; the improvement of people’s working conditions or the protection of their environment. It may also be inclusive of economic and commercial activities which may involve shipping. Public policy is a line of action mitigated by government designed to achieve specific results. Non governmental organizations also have policies; however, they cannot call on legal coercion or public resources in a similar manner (Bridgman and Davies, 2004). Law is a crucial aspect of public policy. This implies that law is inclusive of specific legislation defined more broadly by provisions of international and constitutional laws. For instance there are several ways in which law is able to influence the manner in which survivors of violence against women are taken care of and hence the service they receive. On the other hand, legislation picks out areas that research grants are funded and determines the size of funding that is too allocated. It therefore follows that public policy debates take place over funding and legislation. An example of international law categorized under UNCLOS is as follows; individuals of a nation cannot fish anywhere the wish. They can be arrested in the coastal waters of a foreign country for illegal fishing or find that their ships are denied passage through the waters of archipelagos. In the first instance their apprehension and prosecution may involve national law. The offender may be prosecuted in the national courts of the country that alleges a breach of its laws. If the issue remains unresolved, it may be taken up at the international level by the governments concerned. References Australian Law Reform Commission (1996). ALRC Report 33Civil Admiralty Jurisdiction. Retrieved March 5, 2011 from http://www.austlii.edu.au/au/other/alrc/publications/reports/33/ Bennett, H. 2006, The Law of Marine Insurance, 2nd edn, Oxford University Press, Oxford. Birkland, T.A. 2001, An Introduction to the Policy Process: Theories, Concepts, and Models of Public Policy, M.E.Sharpe, Inc., New York. Birnie, P.W. & Boyle, A.E. 2002, International law and the Environment, 2nd edn, Oxford University Press, Oxford. Blay, S., Piotrowicz, R. &Tsamenyi, M. 2005, Public International Law: An Australian Perspective, 2nd edn, Oxford University Press, Sydney. Bridgman, P. & Davis, G. 2004, Australian Policy Handbook, 3rd edn, Allen &Unwin, Crows Nest. Bundock, M. 2007, Shipping Law Handbook, 4th edn, Informa Law, London. Chisholm, R. &Nettheim, G. 2002, Understanding Law, 6th edn, Butterworths, Chatswood. Churchill, R. R. & Lowe, A.V. 1999, The Law of the Sea, 3rd edn, Manchester University Press. Cremean, D.J. 2008, Admiralty Jurisdiction: Law and Practice in Australia, New Zealand, Singapore and Hong Kong, 3rd edn, The Federation Press, Annandale. Daniel Hochstrasser, “Choice of Law and “Foreign” Mandatory Rules in International Arbitration’ (1994) 11 Journal of International Arbitration 57, 67 Davies, M. & Dickey, A. 2004, Shipping Law, 3rd edn, Law Book Company, Sydney. Gold, E. 2007, Gard Handbook on Protection of the Marine Environment, 3rd edn, Gard AS, Arendal, Norway. Hendriske, M.L., Margetson, N.H. &Margetson, N.J. 2008, Aspects of Maritime Law: Claims under Bills of Lading, Kluwer Law International, The Netherlands. Institute of Chartered Shipbrokers 2010, Marine insurance, Witherby& Co Ltd, London. Institute of Chartered Shipbrokers 2010, Shipping business, Witherby& Co Ltd, London. Institute of Maritime Law 2008, Southhampton on Shipping Law, Informa Law, London. Jervis, B.G. 2007, Reeds Marine Insurance, Informa Law, London. Mandaraka-Sheppard, A. 2007, Modern Maritime Law: and Risk Management, 2nd edn, Routledge-Cavendish, London. Marc Blessing, “Choice of Substantive Law in International Arbitration (1997) 14 Journal of International Arbitration 39, 61 Schofield, J. 2005, Laytime and Demurrage, 5th edn, Lloyd's Shipping Law Library, London. Singapore Logistics Association. 2006, The Practitioner’s Definitive Guide: Multimodal Transport, Singapore Logistics Association, Singapore. Todd, P. 2007, Bills of Lading and Bankers’ Documentary Credits, 4th edn, Informa Law, London. White, M.W.D. 2007, Australasian Marine Pollution Laws, 2nd edn, The Federation Press, Sydney. Read More