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Admiralty Law
Admiralty Law
Admiralty law, which is also called maritime law, is a body of both domestic and private international law that governs marine offences and malpractices (Jason, Chuah, 2011). The law governs marine activities like, commerce, shipping, seaman, cargo and passengers towage, peers, wharves, docks, insurance, maritime lines and inland waters (Schoenbaum, Thomas, Jessica, and McClellan 2012). This law is different from the law of the sea which is the body of public international law that governs navigational rights, mineral rights, jurisdiction of coastal waters, and international relations. The major role of admiralty law is to govern the relationship between private and public enterprises that operate ships or all kinds of vessels on the sea (Schoenbaum, Thomas, 2011). Admiralty laws bind the ship owners to take the responsibility of taking reasonable care for passengers injured while on the ship, and also take liability for damage of cargo or the ship itself while on shipment. All involved bodies in shipment of cargo like banks and vendors find a way through the admiralty courts to sue or file a lien against the ship owner to ensure that he/she pays them incases where they loan money or provide the goods or fuel (Costello, Kevin, 2010).
From the facts in the essay non-cargo related liabilities which arise include, injured seaman, ship collisions, and maritime pollution.
The case provides that the master and the crew of the seeker were rescued by a passing passenger ferry which was moving to the nearby Isle of Wight. Due to collision both ships also were damaged badly whereby the seeker was extensively damaged losing all its cargo and Tripoli was also damaged but some cargo were recovered.
Another non-cargo liability is pollution of the marine water. Tripoli was carrying harmful drugs pesticide and when they collided some containers with the pesticides fell into the sea hence polluting the environment
Ship collation is another liability that must be prosecuted. Tripoli lost control due to double wave and collided with seeker ship causing an accident.
The police closed off the beach area preventing people from reaching to a local sea-front café. This could are trespass on the property of the hotel and the police are liable to answer. The above information is heavily evidenced and supported by the case that prevailed between HYPERLINK “http://www.admiraltylawguide.com/circt/1stpaparo.pdf”Paparo verses M/V ETERNITY, First Circuit Court of Appeals, January 5, 2006 , Longshore & Harbor Workers’ Act also the case between Boating and PWC (Personal Watercraft, Jetski) Accidents has got valuable information to support the argument above on non-cargo liabilities.
How should any of the injured parties affect their claim?
Garnat trading & shipping (Singapore) pte ltd & an or v baominh insurance corporation [2011] ewca civ 773: court: court of appeal (civil division) (england and wales)
Alongshore & Harbor Workers’ Act:
This case which occurred in January 2011 supports the following argument.
Under admiralty the ship owner is under the obligation to take care and provide medical care, free of charge to a seaman injured while working for the ship until the seaman attains maximum medical improvement. The obligation to take care of the sea man includes providing medical care or medical devises that will in one way or another try to improve his ability to function. Passengers who are injured while aboard on the ship may effect their claim by suing the ship owner since he owes them a duty of reasonable care (Maraist, Frank, Thomas, Galligan, and Catherine, Marist. 2010).
The injured passengers may effect their claim against the ship owners given that they have been injured by negligence of third party. If the passengers manage to prove that the ship owner was negligent then their claim is admissible by court (Force, Robert, Yiannopoulos, and Martin Davies2008).
Any one party who feels that mutiny or any other form of crime has been conducted on his/her and has tangible evidence then he is permissible to sue the offender before admiralty courts. Alleged violation of rules governing the shipping lane, rights-of-way maritime contracts and commerce by one party provides a basis for the offended party to seek a court order / hearing for protection of his/ her rights (Robertson, David, Steven, Friedell, and Michael, Sturley 2008).
UK case admiralty case in the link below has best lessons to draw from concerning salvage costs of the vessel. Its verdict is interesting and can greatly help in future decisions on such cases.
HYPERLINK “http://www.paclii.org/fj/cases/FJHC/2000/204.html” CKP Fishing Company Ltd v Owners of Motor Vessel Woo Yang [2000] FJHC 204; HBG0001J.1998S (20 January 2000) ADMIRALTY – Arrest of Ships- Priority ranking on sale for salvage costs of the vessel
Salvage claims can be made by the ship owner if admiralty laws are met. One crucial point under salvage is that the ship owner has the first priority to salvage the vessel and its goods. But if the owner of the thing which have been lost does not wish to salvage the cargo and the ship does not cause any risk to the environment, he has the right to deny somebody else to salvage the goods (Darlington, Sarah, and James, Turner, 2007). In cases where the owner of the cargo intentionally abandons his claim to property, the salvage crew may be given the right to keep the property according to admiralty law within that jurisdiction.
Before the claim for salvage award is made the following two conditions must prevail/met. First, the goods must be in peril and second the salvager must be working in a voluntary capacity and not in the line of duty (Robertson, David, Steven, Friedell, and Michael, Sturley 2008)..
Financial institutions that lend money to purchase ships, seamen who have due wages, vendors who supply ship with necessities like fuel and stores have a lien against the ship to guarantee their payment. Incase the ship fails to pay it is arrested or seized to enforce the pay. This action of enforcing alien is conducted by admiralty courts (Mandaraka-Sheppard, Alexandra, 2007).
When a person other than the owner rescues property that gets lost at the sea, the rescuer has the right to claim a salvage award on the saved property. Salvage claims apply only to property since life has no salvage. All mariners have the right to save lives of other in peril.
Critically evaluate the extent to which the LOF 2000 facilitates salvage claims.
UK Admiralty Law: Is the Principle of The Amerique Applicable to All Types of Salvage Cases : HYPERLINK “http://admiraltymaritimelaw.blogspot.com/2010/01/uk-admiralty-law-is-principle-of.html” http://admiraltymaritimelaw.blogspot.com/2010/01/uk-admiralty-law-is-principle-of.html
The above UK admiralty case has got rich information and it helped me in critically evaluating and coming up with this argument on LOF2000 and salvage claiming.
Lloyd’s open form of salvage agreement is the most widely used salvage contract and it incorporates the principle of “no cure-no pay”. LOF 2000 comprises of a single sheet of paper containing a box lay out where essential information like the mane of the ship and the identity of the salvage contractor will be inserted. Just below the layout box on the opposite side of the document, there is a clause with twelve letters and two information notices (Darlington, Sarah, and James, Turner, 2007).
LOF document is an advancement of LOF 1995 and it has addressed important points concerning salvage payment and claim. LOF 2000 was forms by a group of experts including, shipping insurance, legal communities and numerous organizations whose concerns were on salvage claims under LOF. Current issues over salvage claims have been addressed in this form and they include;
Property liable for the payment of salvageStewart verses Dutra Construction admiralty case which took place in February 22, 2005 where Jones act was used to solve the case. (Jones Act) provides important information that supports my argument which follows.
Initially, in the English law personal effects and baggage belonging to passengers’, master and the crew of the ship were not regarded as liable to pay for salvage. Instead only passenger’s baggage stowed in the hold and not required on voyage was recognized for salvage.The international salvage convention wanted to alter that but Lloyds form working party agreed that for the sake of LOF personal effects should be exempted from payment of salvage. These exemptions should also include private motor vehicle accompanying the passenger together with its contents.LOF 2000 provides such a provision (Darlington, Sarah, and James, Turner, 2007).
Currency of award
Parties to LOF have been in many years had it possible to select the currency in which salvage remuneration should be paid. However, LOF has provided that incase there is no agreed currency of payment then remuneration should be paid in pounds steering. Despite this fact many people find it easy to pay using us dollar hence LOF 2000 provides that if there is no alternative currency is agreed upon salvage remuneration can be made via US dollars. (Schoenbaum, Thomas, Jessica, and McClellan 2012)
Duty to co-operate
Alof2000 obliges the owners and masters to cooperate with salvors in certain important respects. Salvage personnel must be provided with full information so that salvage operation is done properly to avoid dangers of human life, property and the surrounding which such cargoes may cause. The information the salvors must be provide with include, plans, stability data and any relevant information (Robertson, David, Steven, Friedell, and Michael, Sturley 2008).
Rights of termination:
LOF 1995 clause 4 gave the ship owner the right to terminate the LOF when no reasonable prospect leadind to salvage award missed. LOF 2000 conferrers the similar right to the salvors that previously lacked the mandate to terminate an LOF contract. This makes the ship owner and the salvors to be equal so that they have equal bargaining power on salvage award (Schoenbaum, Thomas, Jessica, and McClellan 2012).
Deemed performance
LOF2000 provide the provision of giving a practical solution to the difficulty of knowing when the salvage services can be claimed to be complete. Once the salvaged property has been kept save or taken to the agreed place of safety the salvors have a right to treat their services as done if; continued skilled salvage services are not necessary to avoid the property becoming lost or significantly further damaged. And they are not required by any authority, agency or government to remain in attendance to satisfying their requirements (Robertson, David, Steven, Friedell, and Michael, Sturley 2008).
LOF 2000 provides the platform where contracts and salvage are recorded. Under this contracts, compensation is based on the no cure no pay principle. This implies that if the salvor does not salvage anything then they will not be paid. However, special compensation is made to the salvos for ma king efforts to save the environment or property even though in vain.
LOF 2000 contains articles13 and 14 as a reference in English law. Article 13 details salvage claim by salvos while article 14 details compensation criteria for the salvers. All this is prepared to make compensation award and salvage claim easy and faster (Mandaraka-Sheppard, Alexandra, 2007).
LOF2000 in a way gives the salvos more powers in the present than it was in the past. The rights which ship owners enjoyed in determining the compensation award of salvage and termination of contract are now confirmed to salvers. This has improved salvage claims significantly and has as well solved many conflicts between passengers and the salvos. (Mandaraka-Sheppard, Alexandra, 2007).
Cited work
Schoenbaum, Thomas, J., Jessica, L, McClellan: Admiralty and maritime law; St. Paul,Minn.: West Group, 2012 5th ed. Hornbook series KF1104 .S36 2012 .print
Schoenbaum, Thomas J: Admiralty and maritime law. ; St. Paul, Minn.: Thompson/West, 2011,5th ed. Practitioner Treatise Series: Law Reserve: KF1104 .S36 2011. print
Costello, Kevin: The Court of Admiralty of Ireland, 1575-1879: Dublin: Four Courts, 2010,KDK768 .C67 2010
Maraist, Frank, L., Thomas,C., Gilligan, Jr., and Catherine M. Marist. Admiralty in a nutshell, St Paul, Minn.: Thomson/West, 2010: 6th ed. West nutshell series: Law Reserve KF1105 .M342010
Force, Robert, A.N. Yiannopoulos, and Martin Davies: Admiralty and maritime law:Washington, DC: Beard Books, 2008, KF1104 .F672 2008
Robertson, David W., Steven F. Friedell, and Michael F. Sturley : Admiralty and maritime law in the United States: cases and materials: Durham, NC: Carolina Academic Press, 2008, 2nd ed.Law Reserve KF1103 .R63 2008
Cremean, Damien J., Admiralty jurisdiction: law and practice in Australia, New Zealand, Singapore and Hong Kong’, Annandale, N.S.W.: Federation Press, 2008: 3rd ed.: Foreword byDavid Steel: KVC350 .C73 2008
Derrington, Sarah C., and James M. Turner “The law and practice of admiralty matters” Oxford;New York: Oxford University Press, 2007: KD1819 .D47 2007
Mandaraka-Sheppard, Alexandra “Modern maritime law and risk management London; NewYork: Rutledge-Cavendish, 2007, 2nd ed. KD1833 .M36 2007
Jason, C., T., Chuah : Law of International Trade (4th Edition) 2011
UK admiralty law: is the principle of the Amerique applicable to all types of salvage cases: HYPERLINK “http://admiraltymaritimelaw.blogspot.com/2010/01/uk-admiralty-law-is-principle-of.html” http://admiraltymaritimelaw.blogspot.com/2010/01/uk-admiralty-law-is-principle-of.html
Garnat trading & shipping (Singapore) Pte ltd & Anor v Baominh insurance corporation [2011] Ewca civ 773: court: court of appeal (civil division) (England and Wales)
HYPERLINK “http://www.paclii.org/fj/cases/FJHC/2000/204.html” CKP Fishing Company Ltd v Owners of Motor Vessel Woo Yang [2000] FJHC 204; HBG0001J.1998S (20 January 2000) ADMIRALTY – Arrest of Ships- Priority ranking on sale for salvage costs of the vessel
HYPERLINK “http://www.paclii.org/fj/cases/FJHC/2002/31.html” Jeyang International Company Ltd v Owners of the Motor Vessel Kao Ya No 1 and Kao Ya No. 137 [2002] FJHC 31; HBG0009J.2001 (30 September 2002)ADMIRALTY – Arrest of Ships- claims giving rise to a maritime lien take priority over claims under mortgages; crew’s claim for wages rank in priority to mortgagee
ADMINISTRATIVE POLICIES
ADMINISTRATIVE POLICIES
CASE ANALYSIS
MGT 498
** Your paper should reflect your very best effort, demonstrating the completion of most core requirements in a business degree.
CASE ANALYSIS FORMAT
** Paper must be typed and double spaced
** Cover page:Case name (company)
Course Name/Number (MGT 498)
Semester/Year
Listing author’s name
** Include a Table of Contents
** Paper must be typed using word processing – double space
** Length of paper will vary, but complete a thorough analysis.
** Paper must be written as single external analysis
** Narrative should support and explain the meaning, relevance, and conclusions of charts/graphs/matrixes
** All charts/graphs/matrixes must be presented in Appendices in APA7 format
** Submit ONE copy of the paper on the assigned due date via Sakai & in LiveText
** Timeliness is crucial; NO excuses and NO exceptions concerning due date
Each paper should include the following tools to help in analyzing, evaluating and
recommending:
IFE&EFE
SWOT Matrix
TOWS Matrix
SPACE Matrix
Porter Model
Financial Ratios
Conclusions and recommendations
** These are tools in the Strategic Planning Process, not substitutes for
integrating analysis and intuition.
** Although this is a case analysis, all papers will be written using APA7 format
Administrative Law. Procedural Fairness
Administrative Law – Procedural Fairness
Name of Student
Name of Institution
Administrative Law – Procedural Fairness
The Migration Act sets out the responsibility of the Refugee Review Tribunal (RRT) in a simple and precise manner – offering a review process that is just, fair, fast, and economical. In addition, the Act stipulates that the RRT should not be bound by the rules of evidence, legal forms or any other technicalities in carrying out its responsibility. The RRT should strictly operate based on substantial justice and the circumstances and merits of the case at hand. Although the legal forms or technicalities such as those dominating the Evidence Act do not bind the RRT, the common practice has seen the tribunal bound by its legal forms and technicalities. These developments arose after certain common law principles were codified in the Migration Act. These are principles touching on procedural fairness and more so the hearing rule.
The amendments to the Migration Act brought on board several provisions that require all relevant sections therein exhaustively to state the elements of the hearing rule of natural justice in light of the matter under consideration. In effecting the codification, the Memorandum attached thereto explained that the inclusions were meant to get rid of the legal uncertainties arising from the use of non-codified common law principles while not interfering with the decision-making procedures, which should be efficient, fair, and legally certain.
The Government of Australia in 2008 established an alternative review process to facilitate the determination of unauthorized maritime arrivals who sought review of administrative decisions that denied them the grant of protection visa. This alternative process ceased to exist in 2012. The striking thing about the review mechanism was the requirement for the application of the definitions in the Refugee Convention outlined in the Migration Act. However, this requirement did not stress the adherence to procedural fairness rules codified in the Act – the common law principles were to apply generally.
The Hearing Rule
As part of the rules of natural justice, the hearing rule stipulates that any person who feels adversely affected by any administrative decision should be allowed an opportunity to be heard, be informed of the substance of their case, and be allowed an opportunity to reply to answers given by the hearing body (Banister n.d.). Going by the common law, it is not mandatory to give an oral hearing to the adversely affected person as a measure of complying with the hearing rule principle. However, the Migration Act makes it a mandatory requirement for Tribunal to give the applicant an oral hearing. The oral hearing can only be dispensed with under three circumstances. The first circumstance is where the applicant agrees not to attend the oral hearing. The second circumstance is where the tribunal can reach a decision in the favor of the applicant by relying solely on the papers. The last circumstance is where the applicant does not respond to an invitation to comment on certain information provided pursuance to the Migration Act.
The oral hearing is to be structured in a precise way as provided in the Act. The first requirement is for the hearing to be conducted in private though videoconferencing and telephone could be used where appropriate. Before the hearing proceeds, the applicant is required to take an oath of affirmation. In addition, the tribunal could bring on board an interpreter to aid the proceedings especially where the applicant speaks a foreign language not understood by the tribunal. Failure by the court to hire an interpreter or to allow the applicant enough time to make submissions or give evidence on issues touching on the matter under review is an outright breach of the obligations of hearing (Banister, n.d.).
The other power bestowed on the tribunal is to summons anyone to appear before it and produce documents. However, this authority can only be applied where the person is within the borders of Australia. The power has been exercised in most cases when the tribunal requires certain documents in the possession of the Department. Further, the applicant should be the only party to the proceedings of the tribunal. In giving evidence, the applicant is not to be represented by counsel or any other person. In addition, the applicant should not conduct any examination or cross-examination in the proceedings. These provisions eliminate legal forms and technicalities. However, it has been common for applicants to bring on board legal representatives and migration agents before the tribunal to assist them in the proceedings. A possible explanation for this is that the court recognizes that the applicant should seek assistance so that he or she can benefit fully from the opportunity to present arguments and give evidence (Banister, n.d.). Situations may arise where the applicant lacks the capacity to make sense of the proceedings and complex law and facts involved in the case.
The applicant’s counsel could help make suggestions to the tribunal about issues that ought to be brought to its attention and which the applicant does not comprehend. The counsel should do so through oral and written submissions. Where a witness appears before the tribunal, the evidence should be taken under oath or affirmation. Such a witness or legal representative cannot be examined or cross-examined by the applicant. The RRT is not an adversarial body; it is inquisitorial. Its failure to conduct an inquiry into a fact whose existence is obvious and largely linked to the results of the matter could be deemed a jurisdictional error. However, it is not the duty of the tribunal to frame the applicant’s case or modify it in any way whatsoever. The tribunal should decide the case based on the applicant’s presentation.
Adverse Information
The Migration Act prescribes how adverse information should be put to an applicant. Adverse information is any information that wholly or partly would guide the court in affirming the application. The Act sets out what qualifies for adverse information. Precisely, the Act provides that the tribunal is obliged to give applicants written particulars of adverse information and invite applicants to respond to or comment on the same. The tribunal must give clear particulars to the applicant. Secondly, the client understands the relevance of the information to the proceedings at hand and the consequences thereof.
Certain information is exempted from the range of adverse information. The first category is information that does not entail the applicant specifically but as a member of a class of persons. The second category is information provided by the applicant to aid in the application. The third category is written information given by the applicant in the previous proceedings. The third category is any non-diclosable information. General country information that could guide the tribunal in reaching a determination and which is deemed adverse should not necessarily be put to the applicant. On the contrary, common law does not exempt country information from the list of adverse information.
The High Court determined in PlaintiffM61/2010E v Cth of Australia that the determination of refugee status for maritime arrivals should follow the Maritime Act in addition to the common law principles of procedural fairness. The same position was taken in SAAP v MIMIA. In the latter case, the applicant was unable to read and understand English because that was a foreign language. Moreover, the applicant was in immigration detention. The tribunal put the evidence of the applicant’s daughter orally to the applicant at the hearing with the applicant’s consent. On appeal, it was held that the applicant had failed to comply with the provisions of the Act by failing to put the daughter’s evidence in writing.
Ms. Lat’s Case
The scenario provided reveals outright denial of procedural fairness as far as the hearing rule principles mentioned above are concerned. The tribunal did not adhere to its obligations under the Act, which revolve around offering a review process that is just, fair, fast, and economical. The tribunal leaned more on the meaning of refugee as applied in the refugee status determination, that is, the requirement of a well-founded fear of persecution. The determination itself is not a problem; the manner in which the determination was reached is.
Ms. Lat could have been allowed an opportunity to bring on board a legal representative owing to the fact that the matter at hand involved complex questions of law and fact. As it turned out, Ms. Lat was not endowed with the capacity to unravel the kind of proof needed for her case despite having undergone through persecution in Suma. The counsel would have availed all evidence in weighty proportions to push Ms. Lats’s case to success. In addition, the tribunal was in possession of adverse information – recent reports to the UN from an independent agency in Suma that detailed measures the Suman government had taken to protect ethnic Gonstrianians – but it did not invite Ms. Lat to respond to or comment on the same. There is minimal doubt that the trial was swayed by this piece of information in making its determination of the case.
The tribunal is inquisitorial by its very nature. It is suspicious why the member did not ask Ms. Lat anything about the persecution claims. The social and political circumstances in Suma were at the heart of the hearing, but the member ignored the same. In addition, the country information was critical to the determination of the case, but the member questioned nothing about such information. The inquisitorial nature of the tribunal becomes questionable due to such deliberate ignorance. Ms. Lat is not acquainted with the tribunal processes. Consequently, she could not know the kind of information the tribunal needed to make a fair and just determination. The situation worsens further because the Department furnished the tribunal with all relevant information it needed to determine the case.
In conclusion, the tribunal was in breach of the hearing rule principles of natural justice. The decision, therefore, should be quashed. Ms. Lat may not have proven a well-founded fear of persecution, but she deserved to be heard in a procedurally fair way. The tribunal should not have overstepped its statutory obligations in dispensing with cases in a just, fair, fast, and economical way.
Reference
Banister (n.d.) Natural Justice.