Maritime Law Building Blocks - Coursework Example

Maritime law building blocks () (Assignment) Student: Student ID: Lecturer: Subject: Course: Due Date Word Count Abstract The shipping industry features in the 21st century as the most competitive, efficient, environmental friendly and economical means of transport for goods around the globe. The Australian economy is presented as having a relatively high dependence on the shipping industry. This translates into risks of an equal measure. The characteristic globalization of the contemporary international and national commerce requires and efficient transport system which is equally sustainable. This could not be were it not for the shipping industry (Kassem 2006). The role of the shipping industry in international economy is only effective with continuous regulation which ensure compatibility with advancements in the industry and changes in the global trade. The regulations are for the purposes of ensuring safety and secuity of the vessels, the cargo and crew, control, and environmental friendliness. as such, the Australian Navigation Act cannot operate singly. Its concepts are ingrained in international shipping regulations and practice which borrows heavily from European traditional maritime coutries such as the United Kingdom. These countries have developed their maritime laws with time. Given this background, this paper seeks to illuminate on the building blocks of the Austalian law. It shall focus on the UK Merchant shipping Act of 1995 to establish the Australia Law’s buiding blocks or concepts. Contents Abstract ii Contents iii A “ship”: The Merchant Shipping Act, 1995 1 Jet Ski and mobile off-shore drilling unit 4 References 6 A “ship”: The Merchant Shipping Act, 1995 Definition of terms presents legal practitioners with difficulties especially with respect to the literal rule used to derive literal meanings of the terms. The contemporary view is to define a “ship” regarding it as an ordinary English word (Marsden et al 2003, pp. 3). Such a view sidelines judicial interpretations which explore the characteristics of a “ship” and the implications thereof (Hart 2006, pp. 3). However, the literal rule indicates the need for a judge to consider what a term implies in legislation rather than they may mean (Slapper & Kelly 2009, pp. 82). As such, a judge is required to interpret terms in legislations using their literal meaning- the plain every day meaning. The Merchant Shipping Act of 1995 Section 313 (1) defines a ship as any vessel used in navigation. According to the Act, a ship denotes “every description of vessel used in navigation” (Marsden et al 2003, pp.3; Great Britain 1995. pp 2). Taking into consideration the definition in the 1992 International Convention on Civil Liability for Oil Pollution Damage, the Act points to the definition as comprising any vessel or any sea-borne boat of whatever type. This is in Part IV, Chapter III. As such, the definition of a ship takes a two-stride approach. To begin with, the Act provides that a ship has to be a vessel. Secondly, it has to be involved in navigation. From the first stroke, a vessel may refer to any object capable of being used in water transport. This may include ships, water crafts, seaplanes, yatchs, and any other capable of off-shore operations. This is an inclusive aspect of the definition. Differentiation has been demonstrated in various cases such as R v Goodwin (2006), Steadman v Scofield (1992) and Wells v Owners of Gas Float Whitton (1897) (Grant 2006, pp 3). These cases were built on interpretations linked to various legislations. In R v Goodwin, the Appeal Court may have made reference to Steadman v Scofield (1992) in which the court ruled on the question of what constituites a vessel. A speed boat had collided with a jet ski to which effect the plaintiff claimed negligence after 3 years. Reasoning from section 8 of the Maritime Conventions Act, 1911 the defendant argued that the claim was statute barred. This section indicates that there should be no claim against a vessel or its owners and crew for damage to another if the claim begins two years past the date of the injury. The consideration of the collinding elements as vessels, so that the legislation would be effected by the defence, was enhanced by section 172 of 1894. This defines a vessel as any “ship or boat or any other description of vessel used in navigation” (Hart 2006, pp. 2). However, the judge ruled that the colliding vessels were not “vessels” ponting out that a “vessel” is hollow. As such, a vessel can only be considered a “vesssel” if it were a craft larger than rowing boats. This indicates a course of classsification of ships. This is taken care of in Chapter XXI , part II of the Act with respect to registration regulations. These regulations may provide for registration of any class or ship description The definition of a ship must come with the use in navigation to be complete. Marsden et al (2003, pp. 4) argue that the expression of navigation is important in the definition. As such, navigation is an inclusive term for any water-borne vessel presenting interpretation with a list that is not exhaustive. This is applied for the purposes of limiting liability with regard to the owners or masters of a sea-going ship. The all incluive application is spurred by section 182(2) of the Merchant Shipping Act, 1995 enforcing the 1976 Convention on Limitation of Liability for Maritme Claims. This Convention limits liability with reference to a sea going vessel. Paragraph 2 of Article 1 reads “the ship owner shall mean the owner, charterer, manager and operator of a seagoing ship”. This implies the notion of water-borne vessels whether sea going or not or any structure meant for sea transport as a ship or as a part of one. However, practice and interpretition has set an informing precedence in contemporary definition. in R v Goodwin, the Appeal was backed on the interpretation that navigation entails purposeful sailing. As such, a vessel is a ship if it is oriented for movement from one place to another. Granting the appeal, the judge pointed out to the focus on business purposes. the judge’s view was that section 58 of part III of the Act focused on shipping done for business and not pleasure. In addition to this, navigation is a calculated nautical science or an art intended to move ships from a place to another over waters. This emphasizes that the phrase “used in navigation” be considered as implying transport on waters to and for an intended destination and purpose (Grant 2006, pp. 3). Navigation should thus not be considered as being synonymous with movement. This paper is of the opinion that navigation should not be construed under intention of movement and directions. That is, it should not be defined along economic purposes leaving out other purposes such as leisure and fun. This opinion is informed on the need to consider the definition of a key component of the Act- the Convention that a ship is any sea-going vessels. With regard to sea-going the paper argues that any vessel or structure that can be sea-borne be recognized as a ship. In deed they are all registered under part II of Chapter 21 of the Act. What this part offers are provisions for categorization when it points to classes, and small ship. In the Supplemental Her Majesty may provide for registration in “relevant possessions of ship other than small ships…” Jet Ski and mobile off-shore drilling unit Given that, by the Act, a ship describes any vessel used in navigation, this paper is of the opinion that a jet ski is a ship and may be treated so by any interpretation. However, the paper is faced with the dilemma facing numerous legal practitioners in the application of literal rule. Treating the Act’s definition of the ship in the two strokes, there are several observations: vessel, and navigation. A jet ski qualifies to be ship for being a vessels and being used in navigation. The main issue of concern revolves around the term “navigation”. In R v Goodwin 2005 there was a crash between two jet-skis off Weymouth. A rider crashed into another leading to serious injuries on the other. The defendant was taken to bar under Section 58 which regulates masters of UK ships. The defendant was convicted given that the vessel had been used in navigation. An appeal of the same reconsidered the definition of the jet-ski pointing out the convicting section 58 only applied to sea-going vessels and the jet had only been off Weymouth (Slapper & Kelly 2009, pp. 83; Ashford 2006, pp. 65). The Court of Appeal ruled that being off Weymouth did not mean sea-going. This was in consideration of other aspects such as whether the vessel was a ship. It should be considered a ship considering the following factors. To begin with, it is a vessel made for sea-borne activities. This considers both economic and non-economic sea-borne activities. The crew or owners have a purposeful venture and therefore have a course of direction. Finally, jet skis are not covered in the laws regulating boats. They should thus fall under regulations of ships. Mobile off shore drilling units may also be defined as ships, just like the jet skis. However, there are difficulties defining it under the Merchant shipping Act 1995, due to its prerequisite focus: ‘vessel’, ship and ‘used in navigation’ (Mandaraka-Sheppard 2007, pp. 18). The structure of the drilling unit disqualifies it from being a ship, a boat or a water craft. The 1976 Convention prohibits Courts from its provisions for ‘any sea-borne vessel’ to ships made for drilling or adapted for the same (Britannia News Conventions 2011, pp. 4). The Convention classifies it as a floating platform made for natural resources exploring. As the paper had pointed out earlier the main stay of the ‘ship’ definition is in ‘used in navigation’. The unit is made for navigation, being mobile. It has to cross waters purposefully and do the drilling off-shore. This is unlike on-shore drill structures and off-shore fixed structures such as oil rigs. Given such an orientation, it may fit the description of a ship as any sea-borne vessel. However, such as drill will spend much of its time while off-shore stationary or fixed and not navigating. This makes it fall under the fixed structures which are excluded from the scope of the 1976 Convention (Simon 2008, pp. 77). In addition to this, it also falls out of 1989 Salvage Convention enacted in the 1995 Act. The Salvage Convention scope omits permanent or floating platforms or mobile off-shore drilling units when they are engaged in the exploration of sea-bed resource. To sum up, whereas this paper has defined a jet ski in the category of ships, it is of the view that oil drills do not qualify to be described as ships. References Ashford, M. 2006. A Jet Ski; Vessel, Boat or Ship? R v Goodwin (2006) 1 Lloyd's Rep 432. Australian & New Zealand maritime law, vol. 20, pp. 64-68. Available at https://maritimejournal.murdoch.edu.au/index.php/.../article/.../43 accessed on 2 March 2012 Britannia News Conventions. 2011, June. The Convention on Limitation of Liability for Maritime Claims (LLMC), 1976. Britannia News Conventions , pp. 1-10. Available at www.britanniapandi.com/download.cfm?docid=08B73EDC-66CB... Convention on Limitation of Liability for Maritime Claims, 1976, London, 19th Nov 1976 Grant, B. 2006. What is a “ship”: R v Goodwin in the Court of Appeal. Web Journal of curent legal issues. Web Journal of Current Legal Issues. http://webjcli.ncl.ac.uk accessed 2 March 2012 Great Britain. 1995. Merchant Shipping Act 1995 : Chapter 21. HMSO, London. Available at http://www.worldcat.org/title/merchant-shipping-act-1995-chapter 21/oclc/33215507&referer=brief results accessed 2 March 2012. Hart, R. 2006. A ship is a ship is a ship . Jones Fee barristers anf solicitors, vol 2, no. 2 , 1-4. Available at http://www.jonesfee.co.nz/documents/JonesFee/pdfs/September_06.pdf accessed 2 March 2012. International Convention on Civil Liability for Oil Pollution Damage, 1992, German Association for Transport Law, http://www.transportrecht.org/dokumente/HaftungsUe_engl.pdf accessed 2 March 2012 Kassem, A. 2006. The Legal Aspects of Seaworthiness. Swansea University, Swansea. Available at http://discovery.ucl.ac.uk/6988/1/6988.pdf accessed on 2 March 2012 Mandaraka-Sheppard, A. 2007. Modern Maritime Law 2nd Ed. Routledge- Cavendish, New York. Marsden, R., Gault, S., Hazelwood, S., & Tettenborn, A. 2003. Marsden on collisions at sea. Sweet & Maxwell, London. Merchant Shipping Act 1995, UK Legislation. http://www.legislation.gov.uk/ukpga/1995/21/contents accessed 2 March 2012 R v Goodwin. 2006. 1 Lloyd's Rep 432 Simon, D. 2008. The ’ship’ at the mercy of English law. Mountbatten Journal of Legal Studies, vol. 12, no. 2 , 72-95. Slapper, G., & Kelly, D. 2009. The English Legal System 2009/2010. Routledge-Cavendish, New York. Steadman v Scotield 1992. 2 L10yds Rep 163 Read More