LLM Carriage of Goods by Sea
Preparation of Answers
Write no more than 4,500 words (including footnotes and headings). There is no need for a separate bibliography if all books and articles are referenced in footnotes.
assessed on the basis of:
1. research skills in identifying and accessing appropriate legal sources, where appropriate using electronic resources;
2. knowledge and comprehension of the subject;
3. ability to analyse and evaluate relevant legal materials, including international conventions, statutes, case law and standard form contracts;
4. ability to apply sea carriage principles, with appropriate legal authorities, in the solution of complex practical problems in their commercial context;
5. ability to draft sound legal advice based upon such problems, using word processing in formal work; and
6. ability to display clarity and objectivity in their writing.
Grade Mark Criteria
1 1%-19% fails to identify the relevant legal issues or understand most of the relevant law.
2 20%-47% demonstrates fundamental deficiencies in identifying or understanding the relevant law.
3 48%-49% makes a genuine attempt to answer the question by making legal analysis and shows some knowledge of the relevant law but either (a) fails to identify or deal with a significant number of key legal issues; (b) does not show an understanding of the underlying principles; (c) is largely unable to apply the law to the facts of a problem; or (d) the written communication is unclear and incoherent.
4 50%-64% identifies the key legal issues and deals with them in an acceptable fashion. S/he demonstrates adequate knowledge of the relevant law, at least partial understanding of the underlying principles and/or policy issues and partial ability to apply the law to a factual problem. The written communication is clear and coherent.
5 65%-74% The same as for 4 but also (a) deals with most of the key legal issues in an orderly, logical fashion; (b) s/he makes accurate and frequent reference to relevant legal authorities; (c) s/he shows a substantial understanding of the basic principles and/or policy issues as well as good ability to apply the law to a factual problem; and (d) s/he makes well-reasoned arguments in respect of some key legal issues.
6 75%-84% The same as for 5 but also (a) there is substantial evidence of close critical understanding of the law, its content, policy context and/or its application to new situations; and where relevant (b) there is evidence that the student has synthesised a variety of different legal sources.
7 85%+ The same as for 6 but also (a) the knowledge of the law is profound, detailed and complete; (b) the understanding and/or application of the law and its basic principles and policies is incisive, creative and original; and (c) the ability to analyse a factual problem in accordance with legal knowledge is advanced.
In particular, all sources must be fully acknowledged.
You will also need to use the printed “Course Materials” for access to any standard form contracts to which reference is made (I will attach this separately on Monday).
Submission of Answers
You may care to consult my “LLM Legal Writing guide” attached.
I request particularly that you read the “LLM Carriage Takeaway Exam General Feedback Information 2015” attaches, which is based on my feedback to students on their performance in previous takeaway carriage exams (including common errors).
You are a lawyer asked to advise Brislaw Shipping. You have received the following communication from its Legal Department.
To: Legal Adviser
St Lucia Law
31 October 2015
We would like you to provide us with some preliminarylegal advice, based on the attached information, about a number of potential disputes concerning the Australian registered shipsBrislaw1 and Brislaw2, owned by us. We are aware that the full facts and documentation may not all be available, but for now you are asked to proceed on the basis of the facts and documentation provided. If there is any ambiguity, do the best you can with the material and indicate what other information you would need and how it would affect your advice.
For your guidance I have providedtwo Attachments (with sub-attachments), which summarise the available facts and information as we know them.
Please advise on the legal issues. You are not asked to advise on any matters of procedure or enforcement (e.g. arrest), or on detailed issues of evidence, or commercial practice, or details of foreign law. We are not sure if it is relevant, but we understand that Australia is a party to the Hague-Visby Rules, like New Zealand and the UK, but we have no information on Vietnam (and we assume that she is not party to any carriage convention). Please concentrate on the basic legal issues under the various carriage contracts and on the information available.
Although you are instructed to advise Brislaw Shipping, I would emphasise that we want a balanced view of the legal position affecting all parties mentioned.
As we are under pressure in the Office, it is important that you do not exceed 4500 words, including any footnotes. You may be able to complete it in less! We appreciate that you cannot cover all matters in equal detail, so please ensure you deal with the main issues, giving full reasons for any conclusions. Obviously, where appropriate, we would expect you to give the legal authority for any statements of law, e.g. the relevant case or statutory provision.
Attachment No. 1
Available Facts and Information
Unfortunately, we are still awaiting full information and documentation. Please work from the information available below and in Attachments 1.1-1.6.
As we understand the position, when Brislaw 1 arrived in Haiphong there was a shortage of rice for export and, after some delay, Binge was able to ship only 20,000 tons, although the agreed laytime was exceeded by 4 days. During the loading operation, the master apparently noticed that some of the rice was damp, but received assurances from Binge (see Attachment 1.4). Two identical bills of lading were issued (see Attachment 1.3 for one of them).
Binge kept one of the bills itself, and apparently indorsed the other one and transferred it toPontinental, a trading company with Brisbane facilities. After we allowed Binge and Pontinental’s surveyor to inspect the cargo on discharge, they appear to think there is some damage to it (see email received by us in Attachment 1.5) They have not yet formally presented the billsin Brisbaneto obtain delivery of the cargo, and we have been asked by Tradox not to deliver until their claims have been met (see Attachment 1.6).
Can you try to sort out this legal mess by clarifying who can claim what, from whom, and where?It is a bit complicated, I know, but do the best you can at this stage!
Attachment No. 1.1
Fixture confirmed on unamendedNYPE 1993 for 24 months, as per previous emails for our vessel Brislaw 1 to yourselves, Tradox, as time charterers.
Brislaw Legal Department
I confirm that a fixture with Binge, as voyage charterersand Tradox as disponent owners of Brislaw 1, on basis of previous emails and your amendment below.
Tradox Chartering Dept
Thanks for your email of 29 August with all the details of the fixture to shipa cargo of 25,000 tons of bagged rice at Haiphong for delivery in Brisbane. Basis Gencon 1994, including cl 2, 7 and 8, subject to following and logical amendments.
• Cl.19 to read “Law and ArbitrationAny dispute arising under the charterparty to be referred to arbitration in London.”
• Cl.7 Demurrage at $10,000 per day.
Head Chartering Office
Attachment No. 1.3 (Face)
Shipper CP BILL OF LADING TO BE USED WITH CHARTERPARTIES
Vessel Port of loading
Port of discharge
Shipper’s description of Goods. Gross weight
10,000 tonnes bagged rice
Shipper’s load stow and count
Freight payable as per
CHARTERPARTY dated3 September 2015…………
FREIGHT ADVANCE Received on account of freight:
…… Freight prepaid …………………..
SHIPPED at the Port of Loading in apparent good order and condition on board the Vessel for carriage to the Port of Discharge or so near thereto as she may safely get the goods specified above.
Weight, measure quality, quantity, condition, contents and value unknown.
IN WITNESS whereof the Master or Agent of the said Vessel has signed the number of Bills of Lading indicated below all of this tenor and date, any one of which being accomplished the others shall be void.
FOR CONDITIONS OF CARRIAGE SEE OVERLEAF
Freight payable at
Freight prepaid Place and date of issue
3 September 2015,Haiphong
Number of original Bs/L
Binge Shipping Agencies
As agent for and on behalf of Master
Attachment No. 1.3 (Reverse)
CP BILL OF LADING
(1) All the terms and conditions liberties and exceptions of the Charter Party, dated as overleaf, including the Law and Jurisdiction clause, are herewith incorporated.
(2) General Paramount Clause
The International Brussels Convention 1924 as amended by the Protocols signed at Brussels in 1968 and 1979 – the Hague-Visby Rules – shall apply to this contract.
Attachment No. 1.4
From: Binge [[email protected]]
Sent: 3 September 2015 0930
To: jo.nah @brislaw1.co.au
Subject: Brislaw 1 indemnity
Dear Captain Nah
I understand that you think that there may be some damp problems with the rice cargo currently loading. We have been assured by suppliers that this is perfectly normal for the climate and well within industry tolerances. None of us want the ship to be held up by letter of credit problems, so we would be obliged if you did not clause the bill with any reference to dampness, as this would be misleading and cause inconvenience for all.
As discussed over the phone, I confirm that in consideration of you issuing clean bills, Binge hereby agrees to indemnify you and Brislaw Shipping against all and any claims that may be made by any person as a result of you signing clean bills. Neither of us expects any problems at all, but this indemnity is governed by Australian law and subject to the jurisdiction of the Federal or Supreme Courts in Queensland.
Head Chartering Office
Attachment No. 1.5
Cargo Recoveries (Qld)
1 Graspem Street
30 October 2015
To: Brislaw Shipping,
We have been instructed by the insurers of the cargo rice lately laden on the Brislaw 1 for a voyage from Haiphong to Brisbane. The insurers have been authorised by cargo owners Binge and Pontinental(who received 10,000 tonnes each) to commence proceedings in their names against Brislaw Shipping.
Cargo surveyors have confirmed that the cargo of rice has been seriously damaged by water and is showing extensive white fungal growth (probably mildew). It is likely that the cargo is now worthless, but we are endeavouring to find a distressed cargo purchaser. Cargo owners and insurers hold the carrier liable for this loss which must have happened during the carriage, as the bills record shipment in good condition. We have not yet been able to present the bills and take delivery as we gather there is some problem with Tradox.
Before issuing proceedings we look forward to receiving your response on liability.
As you have probably gathered, we have demurrage and deadfreight claims in respect of the Haiphong voyage and wish to exercise our rights against voyage charterer Binge and bill of lading holder Pontinental. In the circumstances, please do not deliver the cargo until we instruct you otherwise.
Tradox Chartering Dept
Attachment No. 2
Auckland- Brisbane Shipment
Available Facts and Information
Unfortunately, we are still awaiting copies of the original carriage documentation. So it is necessary to work from the information available below (see Attachments 2.1-2.5). See in particular the Letter from Pontinental (Attachment 2.2); also the Booking Note (Attachment 2.3)and copy of Bill of lading (Attachments 2.4 and 2.5) enclosed with their letter.
We should note that in relation to Generator No 2, our surveyor believes that the lashings between the generator and the pallet were loose.
We should add that on arrival in Auckland, our agents Brislaw Agencies (NZ)have properly refused to deliver to Pontinental unless the bills of lading are produced.
Again, it’s a bit complicated but do your best in advising on the legal position in relation to potential cargo claims and where they may be brought.
Attachment No. 2.1 (Email from Brislaw)
Confirmed fixture for our container ship Brislaw 2on unamendedNYPE 1993 for 6 months, as per last fixture for Brislaw 1.
Brislaw Legal Department
Attachment No. 2.2 (Letter from Pontinental)
123 King St
26 September 2015
To: Brislaw Shipping,
You shipped on Brislaw 2 three very large and complex electrical generators (worth $150,000 each) on a voyage from Brisbane to Auckland in New Zealand and covered by three bills of lading. For your information, we attach a copy of one of the three bills of lading issued (all were identical as you know).
You have so far refused to deliver the cargo to us, despite the fact that we have shown to Brislaw Agencies (NZ) three delivery orders issued by Tradox Agencies. Although we cannot at the moment produce the original bills of lading as they appear to be stuck in the banking system, you know that we are the named consignee. We have appointed a surveyor who has reported to us with the following information.
Despite the shipper requesting underdeck stowage (see Booking Note attached), we now understand that Generator No 1 was shipped on deck and suffered from sea water rusting.
Generator No 2, which was shipped underdeck, was badly damaged on discharge. Our surveyor ascertained from the master that it had shifted when the ship made a heavy contact with the Brisbane quayside during berthing in heavy weather.
Generator No 3, also shipped underdeck, was being unloaded by a shore crane when it was negligently dropped onto the quay by the crane driver and was seriously damaged.
In the light of the above we give notice that we are seriously considering legal action against Brislaw, Tradox, or Binge – or all three.
Attachment No. 2.3 (Booking Note)
Agents BRISLAW LINER BOOKING NOTE
Brislaw Agencies (NZ)
24 Port Road, Auckland Place and date:10 September 2015
Carrier (full style and address)
Brislaw Shipping, Titanic Road, St Lucia, Queensland Time for shipment (about)
Port of loading
Port of discharge
Merchant* (full style and address)
24 Port Avenue, Port of Brisbane.
Merchant’s representatives at loading port (full style and address)
Binge Agencies (Brisbane), 24 Port Road, Brisbane
Container No./Seal No. Marks and Numbers (if available)
Number and kind of Packages; description of cargo
Three (3) Alstom Electrical Generators (model Al25XXX) to be in three (3) open top containers, with plastic shrink wrap covering
Gross weight, kg
9000 kg each Measurement, m3
Freight details and charges
Special items, if agreed
Request goods to be shipped underdeck
Freight (state pre-payable or payable at destination)
It is hereby agreed that this Contract shall be performed subject to Carrier’s standard BL terms terms which shall prevail over any previous arrangements and which shall in turn be superseded (except as to deadfreight) by the terms of the Bill of Lading.
Ian Solvent Signature (Carrier)
Attachment 2.4 (Bill – Face)
Shipper COMBINED TRANSPORT BILL OF LADING
Notify Party (see clause 22)
PontinentalLtd123 King St, Auckland and
Bank of Auckland, 999 Queen St, Auckland
Place of receipt Applicable only when document used as Multimodal Transport B/L. (see clause 1)
Vessel Port of loadingPort of discharge
BRISLAW2 Brisbane Auckland
Place of delivery Applicable only when document used as Multimodal Transport B/L. (see clause 1)
Marks and Nos. Number and kind of packages; description of goods Gross weight Measurement
Container No IND14614, Seal 141414 9000 kg
1 x 20 ftopen top container with plastic shrink wrap covering
Said to Contain One (1) Alstom Electrical Generator (model Al25XXX)
Cargo is carried on deck entirely at shipper’s risk
Above particulars as declared by Shipper, but without responsibility of or representation by Carrier (see clause 14)
SHIPPED, as far as ascertained by reasonable means of checking, in apparent good order and condition unless otherwise stated herein, the
total number or quantity of Containers or other packages or units indicated in the box entitled “Carrier’s Receipt” for carriage from the Port of
Loading (or the Place of Receipt, if mentioned above) to the Port of Discharge (or the Place of Delivery, if mentioned above), such carriage
being always subject to the terms, rights, defences, provisions, conditions, exceptions, limitations, and liberties hereof (INCLUDING ALL
THOSE TERMS AND CONDITIONS ON THE REVERSE HEREOF NUMBERED 1-26 AND THOSE TERMS AND CONDITIONS CONTAINED IN THECARRIER’S APPLICABLE TARIFF) and the Merchant’s attention is drawn in particular to the Carrier’s liberties in respect of on deck stowage
(see clause 18) and the carrying vessel (see clause 19). Where the bill of lading is non-negotiable the Carrier may give delivery of the Goods
to the named consignee upon reasonable proof of identity and without requiring surrender of an original bill of lading. Where the bill of
lading is negotiable, the Merchant is obliged to surrender one original, duly endorsed, in exchange for the Goods. The Carrier accepts a duty
of reasonable care to check that any such document which the Merchant surrenders as a bill of lading is genuine and original. If the Carrier
complies with this duty, it will be entitled to deliver the Goods against what it reasonably believes to be a genuine and original bill of lading,
such delivery discharging the Carrier’s delivery obligations. In accepting this bill of lading, any local customs or privileges to the contrary
notwithstanding, the Merchant agrees to be bound by all Terms and Conditions stated herein whether written, printed, stamped or
incorporated on the face or reverse side hereof, as fully as if they were all signed by the Merchant.
IN WITNESS WHEREOF the number of original Bills of Lading stated on this side have been signed and wherever one original Bill of Lading
has been surrendered any others shall be void.
Carrier’s Receipt (see clause 1 and 14). Total numberof containers or packages received by Carrier.
Three(3) Freight payable at
Prepaid Place and date of issue
Brisbane 17 September2015
Number of original Bs/L
Attachment No. 2.5 (Bill Reverse)
Terms and conditions of carriage
Multimodal transport bill of lading
“Carriage” means the whole or any part of the carriage, loading, unloading, storing, warehousing, handling and any and all other services whatsoever undertaken by the Carrier in relation to the Goods.
“Carrier” Brislaw Shipping of Titanic Road, St Lucia Queensland, Australia.
“Container” includes any container (including an open top container), flat rack, platform, trailer, transportable tank, pallet or any other similar article used to consolidate the Goods and any connected equipment.
Freight” includes all charges payable to the Carrier in accordance with the applicable Tariff and this bill of lading.
“Goods” means the whole or any part of the cargo and any packaging accepted from the Shipper and includes any Container not supplied by or on behalf of the Carrier.
“Hague Rules” means the provisions of the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25th August 1924 and includes the amendments by the Protocol signed at Brussels on 23rd February 1968, but only if such amendments are compulsorily applicable to this bill of lading. (It is expressly provided that nothing in this bill of lading shall be construed as contractually applying the said Rules as amended by said Protocol).
“Holder” means any Person for the time being in possession of this bill of lading to or in whom rights of suit and/or liability under this bill of lading have been transferred or vested.
“Merchant” includes the Shipper, Holder, Consignee, Receiver of the Goods, any Person owning or entitled to the possession of the Goods or of this bill of lading and anyone acting on behalf of such Person.
“Multimodal Transport” arises if the Place of Receipt and/or the Place of Delivery are indicated on the reverse hereof in the relevant spaces.
“Ocean Transport” means the same as Port-to Port Shipment.
“Package” where a Container is loaded with more than one package or unit, the packages or other shipping units enumerated on the reverse hereof as packed in such Container and entered in the box on the reverse hereof entitled “Carrier’s “Receipt” are each deemed a Package.
“Person” includes an individual, corporation, or other legal entity.
“Port-to-Port Shipment” arises when the Carriage is not Multimodal.
“Subcontractor” includes owners, charterers and operators of vessels (other than the Carrier), stevedores, terminal and groupage operators, road and rail transport operators, warehousemen and any independent contractors employed by the Carrier performing the Carriage and any direct or indirect Subcontractors, servants and agents thereof whether in direct contractual privity or not.
“Terms and Conditions” means all terms, rights, defences, provisions, conditions, exceptions, limitations and liberties hereof.
“US COGSA” means the US Carriage of Goods by Sea Act 1936.
“Vessel” means any water borne craft used in the Carriage under this Bill of Lading which may be a feeder vessel or an ocean vessel.
2. Carrier’s Tariff
The terms and conditions of the Carrier’s applicable Tariff are incorporated herein. Attention is drawn to the terms therein relating to free storage time and to container and vehicle demurrage or detention. Copies of the relevant provisions of the applicable Tariff are obtainable from the Carrier upon request. In the case of inconsistency between this bill of lading and the applicable Tariff, this bill of lading shall prevail.
The Merchant warrants that in agreeing to the Terms and Conditions hereof he is, or has the authority to contract on behalf of, the Person owning or entitled to possession of the Goods and this bill of lading.
4.1 The Carrier shall be entitled to sub-contract on any terms whatsoever the whole or any part of the Carriage.
4.2 The Merchant undertakes that no claim or allegation whether arising in contract, bailment, tort or otherwise shall be made against any servant, agent, or Subcontractor of the Carrier which imposes or attempts to impose upon any of them or any vessel owned or chartered by any of them any liability whatsoever in connection with the Goods or the Carriage of the Goods whether or not arising out of negligence on the part of such Person, and, if any such claim or allegation should nevertheless be made, to indemnify the Carrier against all consequences thereof. Without prejudice to the foregoing every such servant, agent, and Subcontractor shall have the benefit of all Terms and Conditions of whatsoever nature herein contained or otherwise benefiting the Carrier including clause 26 hereof, the law and jurisdiction clause, as if such Terms and Conditions (including clause 26 hereof) were expressly for their benefit and, in entering into this contract, the Carrier, to the extent of such Terms and Conditions, does so on its own behalf, and also as agent and trustee for such servants, agents and Subcontractors.
4.3 The provisions of the second sentence of clause 4.2 including but not limited to the undertaking of the Merchant contained therein, shall extend to all claims or allegations of whatsoever nature against other Persons chartering space on the carrying vessel.
4.4 The Merchant further undertakes that no claim or allegation in respect of the Goods shall be made against the Carrier by any Person other than in accordance with the Terms and Conditions of this bill of lading which imposes or attempts to impose upon the Carrier any liability whatsoever in connection with the Goods or the Carriage of the Goods, whether or not arising out of negligence on the part of the Carrier, and if any such claim or allegation should nevertheless be made, to indemnify the Carrier against all consequences thereof.
5. Carrier’s Responsibility: Port-to-Port Shipment
5.1 Where the Carriage is Port-to-Port, then the liability (if any) of the Carrier for loss of or damage to the Goods occurring between the time of loading at the Port of Loading and the time of discharge at the Port of Discharge shall be determined in accordance with any national law making the Hague Rules compulsorily applicable to this bill of lading (which will be US COGSA for shipments to or from the United States of America) or in any other case in accordance with the Hague Rules Articles 1-8 inclusive only.
5.2 The Carrier shall have no liability whatsoever for any loss or damage to the Goods while in its actual or constructive possession before loading or after discharge, howsoever caused. Notwithstanding the above, in case and to the extent that any applicable compulsory law provides to the contrary, the Carrier shall have the benefit of every right, defence, limitation and liberty in the Hague Rules as applied by clause 5.1 during such additional compulsory period of responsibility, notwithstanding that the loss or damage did not occur at sea.
5.3 Where US COGSA applies then the provisions stated in the said Act shall govern before loading on the vessel or after discharge therefrom, as the case may be, during Carriage to or from a container yard or container freight station in or immediately adjacent to the sea terminal at the Port of Loading and/or Discharge. If the Carrier is requested by the Merchant to procure Carriage by an inland carrier in the United States of America and the inland carrier in his discretion agrees to do so, such carriage shall be procured by the Carrier as agent only to the Merchant and such carriage shall be subject to the inland carrier’s contract and tariff. If for any reason the Carrier is denied the right to act as agent at these times, his liability for loss damage or delay to the Goods shall be determined in accordance with clause 6 hereof.
5.4 In the event that the Merchant requests the Carrier to deliver the Goods:
(a) at a port other than the Port of Discharge; or
(b) (save in the United States of America) at a place of delivery instead of the Port of Discharge, and the Carrier in its absolute discretion agrees to such request, such further Carriage will be undertaken on the basis that the Terms and Conditions of this bill of lading are to apply to such Carriage as if the ultimate destination agreed with the Merchant had been entered on the reverse side of this bill of lading as the Port of Discharge or Place of Delivery.
6. Carrier’s Responsibility – Multimodal Transport
Where the Carriage is Multimodal Transport, the Carrier undertakes to perform and/or in his own name to procure performance of the Carriage from the Place of Receipt or the Port of Loading, whichever is applicable, to the Port of Discharge or the Place of Delivery, whichever is applicable, and, save as is otherwise provided for in this bill of lading, the Carrier shall be liable for loss or damage occurring during the Carriage only to the extent set out below:
6.1 Where the stage of Carriage where loss or damage occurred is not known.
The Carrier shall be relieved of liability for any loss or damage where such loss or damage was caused by:
(i) an act or omission of the Merchant or Person acting on behalf of the Merchant other than the Carrier, his servant, agent or Subcontractor,
(ii) compliance with instructions of any Person entitled to give them.
(iii) insufficient or defective condition of packing or marks,
(iv) handling, loading, stowage or unloading of the Goods by the Merchant or any Person acting on his behalf,
(v) inherent vice of the Goods,
(vi) strike, lock out, stoppage or restraint of labour, from whatever cause, whether partial or general,
(vii) a nuclear incident,
(viii) any cause or event which the Carrier could not avoid and the consequences whereof he could not prevent by the exercise of reasonable diligence.
(b) Burden of Proof
The burden of proof that the loss or damage was due to one or more of the causes or events specified in this clause 6.1 shall rest upon the Carrier. Save that if the Carrier establishes that, in the circumstances of the case, the loss or damage could be attributed to one or more of the causes or events specified in clause 6.1(a)(iii), (iv) or (v), it shall be presumed that it was so caused. The Merchant shall, however, be entitled to prove that the loss or damage was not, in fact, caused either wholly or partly by one or more of these causes or events.
(c) Limitation of Liability
Except as provided in clauses 7.2(a), (b) or 7.3, if clause 6.1 operates, total compensation shall under no circumstances whatsoever and howsoever arising exceed USD 500 per package where Carriage includes Carriage to, from or through a port in the United States of America and in all other cases 2 SDR per kilo of the gross weight of the Goods lost or damaged.
6.2 Where the stage of Carriage where the loss or damage occurred is known. Notwithstanding anything provided for in clause 6.1 and subject to clause 18, the liability of the Carrier in respect of such loss or damage shall be determined:
(a) by the provisions contained in any international convention or national law which provisions:
(i) cannot be departed from by private contract to the detriment of the Merchant, and
(ii) would have applied if the Merchant had made a separate and direct contract with the Carrier in respect of the particular stage of the Carriage during which the loss or damage occurred and received as evidence thereof any particular document which must be issued if such international convention or national law shall apply; or
(b) in case of shipments to or from the United States of America by the provisions of US COGSA if the loss or damage is known to have occurred during Carriage by sea to or from the USA or during Carriage to or from a container yard or container freight station in or immediately adjacent to the sea terminal at the Port of Loading or of Discharge in ports of the USA; or
(c) by the Hague Rules Articles 1-8 only inclusive where the provisions of clauses 6.2(a) or (b) do not apply if the loss or damage is known to have occurred during Carriage by sea; or
(d) if the loss or damage is known to have occurred during Carriage inland in the USA, in accordance with the contract of carriage or tariffs of any inland carrier in whose custody the loss or damage occurred or, in the absence of such contract or tariff by the provisions of Clause 6.1, and in either case the law of the State of New York will apply; or
(e) where the provisions of clause 6.2(a), (b), (c) and/or (d) above do not apply, in accordance with the contract of carriage or tariffs of any inland carrier in whose custody the loss or damage occurred or in the absence of such contract or tariff by the provisions of clause 6.1.For the purposes of clause 6.2 references in the Hague Rules to carriage by sea shall be deemed to include references to all waterborne Carriage and the Hague Rules shall be construed accordingly.
6.3 If the Place of Receipt or Place of Delivery is not named on the reverse hereof the Carrier shall be under no liability whatsoever for loss or damage to the Goods howsoever occurring:
(a) if the Place of Receipt is not named on the reverse hereof and such loss or damage arises prior to loading on to the vessel; or
(b) if the Place of Delivery is not named on the reverse hereof, if such loss or damage arises subsequent to discharge from the vessel, save that where US COGSA applies then the provisions stated in said Act shall govern before loading on to and after discharge from any vessel and during Carriage to or from a container yard or container freight station in or immediately adjacent to the sea terminal at the Port of Loading and/or Discharge.
6.4 Amendment of Place of Delivery
In the event that the Merchant requests, and the Carrier agrees to amend the Place of Delivery, such amended Carriage will be undertaken on the basis that the Terms and Conditions of this bill of lading are to apply until the goods are delivered to the Merchant at such amended Place of Delivery.
7. Compensation and Liability Provisions
7.1 Subject always to the Carrier’s right to limit liability as provided for herein, if the Carrier is liable for compensation in respect of loss of or damage to the Goods, such compensation shall be calculated by reference to the invoice value of the Goods plus Freight and insurance if paid. If there is no invoice value of the Goods or if any such invoice is not bona fide, such compensation shall be calculated by reference to the value of such Goods at the place and time they are delivered or should have been delivered to the Merchant. The value of the Goods shall be fixed according to the current market price, by reference to the normal value of goods of the same kind and/or quality.
7.2 Save as is provided in clause 7.3:
(a) Where the Hague Rules apply hereunder by national law by virtue of clause 5.1 or clause 6.2(a) the Carrier’s liability shall in no event exceed the amounts provided in the applicable national law. If the Hague Rules Article 1-8 only apply pursuant to clauses 5.1 or 6(c) the Carrier’s maximum liability shall in no event exceed GBP 100 per Package or unit.
(b) Where Carriage includes Carriage to, from or through a port in the United States of America and US COGSA applies by virtue of clauses 5.1 or 6.2(b) neither the Carrier nor the Vessel shall in any event be or become liable in an amount exceeding US$500 per Package or customary freight unit.
(c) In all other cases compensation shall not exceed the limitation of liability of 2 SDR per kilo as provided in clause 6.1(c).
7.3 The Merchant agrees and acknowledges that the Carrier has no knowledge of the value of the Goods and higher compensation than that provided for in this bill of lading may be claimed only when, with the consent of the Carrier, the value of the Goods declared by the Shipper upon delivery to the Carrier has been stated in the box marked “Declared Value” on the reverse of this bill of lading and extra freight paid. In that case, the amount of the declared value shall be substituted for the limits laid down in this bill of lading. Any partial loss or damage shall be adjusted pro rata on the basis of such declared value.
7.4 Nothing in this bill of lading shall operate to limit or deprive the Carrier of any statutory protection, defence, exception or limitation of liability authorised by any applicable laws, statutes or regulations of any country. The Carrier shall have the benefit of the said laws, statutes or regulations as if it were the owner of any carrying ship or vessel.
8.1 The Carrier does not undertake that the Goods or any documents relating thereto shall arrive or be available at any point or place at any stage during the Carriage or at the Port of Discharge or the Place of Delivery at any particular time or to meet any particular requirement of any licence, permission, sale contract, or credit of the Merchant or any market or use of the Goods and the Carrier shall under no circumstances whatsoever and howsoever arising be liable for any direct, indirect or consequential loss or damage caused by delay. If the Carrier should nevertheless be held legally liable for any such direct or indirect or consequential loss or damage caused by such alleged delay, such liability shall in no event exceed the Freight paid for the Carriage.
8.2 Save as is otherwise provided herein, the Carrier shall under no circumstances be liable for direct or indirect or consequential loss or damage arising from any other cause whatsoever or for loss of profits.
8.3 Once the Goods have been received by the Carrier for Carriage the Merchant shall not be entitled neither to impede, delay, suspend or stop or otherwise interfere with the Carrier’s intended manner of performance of the Carriage or the exercise of the liberties conferred by this bill of lading nor to instruct or require delivery of the Goods at other than the Port of Discharge or Place of Delivery named on the reverse hereof or such other Port or Place selected by the Carrier in the exercise of the liberties herein, for any reason whatsoever including but not limited to the exercise of any right of stoppage in transit conferred by the Merchant’s contract of sale or otherwise. The Merchant shall indemnify the Carrier against all claims, liabilities, loss, damages, costs, delay, attorney fees and/or expenses caused to the Carrier, his Subcontractors, servants or agents or to any other cargo or to the owner of such cargo during the Carriage arising or resulting from any stoppage (whether temporary or permanent) in the Carriage of the Goods whether at the request of the Merchant, or in consequence of any breach by the Merchant of this clause, or in consequence of any dispute whatsoever in respect of the Goods (including, but without restriction, disputes as to ownership, title, quality, quantity or description of and/or payment for the Goods) involving any one or more party defined herein as the Merchant as between themselves or with any third party other than the Carrier and the liberties provided for in clauses 19 and 20 shall be available to the Carrier in the event of any such stoppage.
8.4 The Terms and Conditions of this bill of lading shall govern the responsibility of the Carrier in connection with or arising out of the supplying of a Container to the Merchant whether before, during or after the Carriage.
9. Notice of Loss, Time Bar
Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the Carrier or his agents at the Place of Delivery (or Port of Discharge if no Place of Delivery is named on the reverse hereof) before or at the time of removal of the Goods into the custody of the Merchant or if the loss or damage is not apparent within three days thereafter, such removal shall be prima facie evidence of the delivery by the Carrier of the Goods as described in this bill of lading. In any event, the Carrier shall be discharged from all liability whatsoever in respect of the Goods unless suit is brought within one year after their delivery or the date when they should have been delivered.
10. Defences and Limits for the Carrier
The Terms and Conditions of whatever nature provided for in this bill of lading shall apply in any action against the Carrier for any loss or damage whatsoever and howsoever occurring (and, without restricting the generality of the foregoing, including delay, late delivery and/or delivery without surrender of this bill of lading) and whether the action be founded in contract, bailment or in tort and even if the loss or damage arose as a result of unseaworthiness, negligence or fundamental breach of contract
11. Shipper-packed Containers
If a Container has not been packed by the Carrier:
11.1 This bill of lading shall be a receipt only for such a Container;
11.2 The Carrier shall not be liable for loss of or damage to the contents and the Merchant shall indemnify the Carrier against any injury, loss, damage, liability or expense whatsoever incurred by the Carrier if such loss of or damage to the contents and/or such injury, loss, damage, liability or expense has been caused by all matters beyond his control including, inter alia, without prejudice to the generality of this exclusion.
(a) the manner in which the Container has been packed; or
(b) the unsuitability of the Goods for carriage in Containers; or
(c) the unsuitability or defective condition of the Container or the incorrect setting of any thermostatic, ventilation, or other special controls thereof, provided that, if the Container has been supplied by the Carrier, this unsuitability or defective condition could have been apparent upon reasonable inspection by the Merchant at or prior to the time the Container was packed.
11.3 The Merchant is responsible for the packing and sealing of all shipper-packed Containers and, if a shipper-packed Container is delivered by the Carrier with its original seal as affixed by the Shipper intact, the Carrier shall not be liable for any shortage of Goods ascertained at delivery.
11.4 The Shipper shall inspect Containers before packing them and the use of Containers shall be prima facie evidence of their being sound and suitable for use.
12. Perishable Cargo
12.1 Goods, including Goods of a perishable nature, shall be carried in ordinary Containers without special protection, services or other measures unless there is noted on the reverse side of this bill of lading that the Goods will be carried in a refrigerated, heated, electrically ventilated or otherwise specifically equipped Container or are to receive special attention in any way. The Merchant undertakes not to tender for Carriage any Goods which require refrigeration, ventilation or any other specialised attention without giving written notice of their nature and the required temperature or other setting of the thermostatic, ventilation or other special controls to the carrier. If the above requirements are not complied with the Carrier shall not be liable for any loss of or damage to the Goods howsoever arising.
12.2 The Merchant should note that refrigerated Containers are not designed
(a) to freeze down cargo which has not been presented for stuffing at or below its designated carrying temperature and the Carrier shall not be responsible for the consequences of cargo being presented at a higher temperature than that required for the Carriage; nor
(b) to monitor and control humidity levels, albeit a setting facility exists, in that humidity is influenced by many external factors and the Carrier does not guarantee the maintenance of any intended level of humidity inside any Container.
12.3 The term “apparent good order and condition” when used in this bill of lading with reference to goods which require refrigeration, ventilation or other specialised attention does not mean that the Goods, when received were verified by the Carrier as being at the carrying temperature, humidity level or other condition designated by the Merchant.
12.4 The Carrier shall not be liable for any loss or damage to the Goods arising from latent defects, derangement, breakdown, defrosting, stoppage of the refrigerating, ventilating or any other specialised machinery, plant, insulation and/or apparatus of the Container, vessel, conveyance and any other facilities, provided that the Carrier shall before and at the beginning of the Carriage exercise due diligence to maintain the Container supplied by the Carrier in an efficient state.
13. Inspection of Goods
The Carrier shall be entitled, but under no obligation, to open and/or scan any Package or Container at any time and to inspect the contents. If it appears at any time that the Goods cannot safely or properly be carried or carried further, either at all or without incurring any additional expense or taking any measures in relation to the Container or the Goods, the Carrier may without notice to the Merchant (but as his agent only) take any measures and/or incur any reasonable additional expense to carry or to continue the Carriage thereof, and/or to sell or dispose of the Goods and/or to abandon the Carriage and/or to store them ashore or afloat, under cover or in the open, at any place, whichever the Carrier in his absolute discretion considers most appropriate, which sale, disposal, abandonment or storage shall be deemed to constitute due delivery under this bill of lading. The Merchant shall indemnify the Carrier against any reasonable additional expense so incurred. The Carrier in exercising the liberties contained in this clause shall not be under any obligation to take any particular measures and shall not be liable for any loss, delay or damage howsoever arising from any action or lack of action under this clause.
14. Description of Goods
14.1 This bill of lading shall be prima facie evidence of the receipt by the Carrier in apparent good order and condition, except as otherwise noted, of the total number of Containers or other packages or units indicated in the box entitled “Carriers Receipt” on the reverse side hereof.
14.2 No representation is made by the Carrier as to the weight, contents, measure, quantity, quality, description, condition, marks, numbers or value of the Goods and the Carrier shall be under no responsibility whatsoever in respect of such description or particulars.
14.3 The Shipper warrants to the Carrier that the particulars relating to the Goods as set out on the reverse hereof have been checked by the Shipper on receipt of this bill of lading and that such particulars, and any other particulars furnished by or on behalf of the Shipper, are adequate and correct. The Shipper also warrants that the Goods are lawful goods, and contain no contraband, drugs, other illegal substances or stowaways, and that the Goods will not cause loss damage or expense to the Carrier, or to any other cargo during the Carriage.
14.4 If any particulars of any Letter of Credit and/or Import License and/or Sales Contract and/or Invoice or Order number and/or details of any contract to which the Carrier is not a party, are shown on the face of this bill of lading, such particulars are included at the sole risk of the Merchant and for his convenience. The Merchant agrees that the inclusion of such particulars shall not be regarded as a declaration of value and in no way increases Carrier’s liability under this bill of lading.
15. Merchant’s Responsibility
15.1 All of the Persons coming within the definition of Merchant in clause 1 shall be jointly and severally liable to the Carrier for the due fulfillment of all obligations undertaken by the Merchant in this bill of lading.
15.2 The Merchant shall be liable for and shall indemnify the Carrier against all loss, damage, delay, fines, attorney fees and/or expenses arising from any breach of any of the warranties in clause 14.3 or from any other cause whatsoever in connection with the Goods for which the Carrier is not responsible.
15.3 The Merchant shall comply with all regulations or requirements of customs, port and other authorities, and shall bear and pay all duties, taxes, fines, imposts, expenses or losses (including, without prejudice to the generality of the foregoing Freight for any additional Carriage undertaken), incurred or suffered by reason thereof, or by reason of any illegal, incorrect or insufficient declaration or by reason of any illegal, incorrect or insufficient declaration, marking, numbering or addressing of the Goods, and shall indemnify the Carrier in respect thereof.
15.4 If Containers supplied by or on behalf of the Carrier are unpacked at the Merchant’s premises, the Merchant is responsible for returning the empty Containers, with interiors clean, odour free and in the same condition as received, to the point or place designated by the Carrier, within the time prescribed. Should a Container not be returned in the condition required and/or within the time prescribed in the Tariff, the Merchant shall be liable for any detention, loss or expense incurred as a result thereof.
15.5 Containers released into the care of the Merchant for packing, unpacking or any other purpose whatsoever are at the sole risk of the Merchant until redelivered to the Carrier. The Merchant shall indemnify the Carrier for all loss of and/or damage and/or delay to such Containers. Merchants are deemed to be aware of the dimensions and capacity of any Containers released to them.
16. Freight, Expenses and Fees
16.1 Full Freight shall be payable based on particulars furnished by or on behalf of the Shipper. The Carrier may at any time open the Goods or Container(s) and, if the Shipper’s particulars are incorrect the Merchant and the Goods shall be liable for the correct Freight and any expenses incurred in examining, weighing, measuring, or valuing the Goods.
16.2 Full Freight shall be considered completely earned on receipt of the Goods by the Carrier and shall be paid and non returnable in any event.
16.3 All sums payable to the Carrier are due on demand and shall be paid in full in United States currency or, at the Carrier’s option, in its equivalent in the currency of the Port of Loading or of Discharge or the Place of Receipt or of Delivery or as specified in the Carrier’s Tariff.
16.4 The Merchant’s attention is drawn to the stipulations concerning currency in which the Freight is to be paid, rate of exchange, devaluation, additional insurance premium and other contingencies relative to Freight in the applicable Tariff. In the event of any discrepancy between Freight (incl. charges etc) items in the bill of lading and any Carrier invoices, the latter shall prevail.
16.5 All Freight shall be paid without any set-off, counter-claim, deduction or stay of execution at latest before delivery of the Goods.
16.6 If the Merchant fails to pay the Freight when due he shall be liable also for payment of service fee, interest due on any outstanding and/or overdue sum, reasonable attorney fees and expenses incurred in collecting any sums due to the Carrier. Payment of Freight and charges to a freight forwarder, broker or anyone other than the Carrier or its authorised agent, shall not be deemed payment to the Carrier and shall be made at the Merchant’s sole risk.
16.7 Despite the acceptance by the Carrier of instructions to collect Freight, duties, fees, demurrage/detention and costs and expenses from the shipper or consignee or any other Person, then, in the absence of evidence of payment (for whatever reason) by such shipper or consignee or other Person when due, the Merchant shall remain responsible for and for the payment of such Freight, duties, fees, demurrage/detention and costs and expenses on receipt of evidence of demand within the meaning of clause 16.3
16.8 If the Carrier, at its sole discretion, grants credit on any sums payable to the Carrier, the terms and conditions applicable to any credit (Credit Terms) are available from the Carrier or his authorised agents. The applicable Credit Terms will automatically apply to any granting of credit by the Carrier, unless otherwise agreed by the Carrier.
The Carrier shall have a lien on the Goods and any documents relating thereto for all sums payable to the Carrier under this contract and for general average contributions to whomsoever due. The Carrier shall also have a lien against the Merchant on the Goods and any document relating thereto for all sums due from him to the Carrier under any other contract. The Carrier may exercise his lien at any time and any place in his sole discretion, whether the contractual Carriage is completed or not. In any event any lien shall extend to cover the cost of recovering any sums due and for that purpose the Carrier shall have the right to sell the Goods by public auction or private treaty, without notice to the Merchant. The Carrier’s lien shall survive delivery of the Goods.
18. Optional Stowage, Deck Cargo and Livestock
18.1 The Goods may be packed by the Carrier in Containers and consolidated with other goods in Containers.
18.2 Goods, whether packed in Containers or not, may be carried on deck or under deck without notice to the Merchant unless on the reverse side hereof it is specifically stipulated that the Containers or Goods will be carried under deck. If carried on deck, the Carrier shall not be required to note, mark or stamp on the bill of lading any statement of such on-deck carriage. Save as provided in clause 18.3, such Goods (except livestock) carried on or under deck and whether or not stated to be carried on deck shall participate in general average and shall be deemed to be within the definition of goods for the purpose of the Hague Rules or US COGSA and shall be carried subject to such Rules or Act, whichever is applicable.
18.3 Goods (not being Goods stowed in Containers other than flats or pallets) which are stated herein to be carried on deck and livestock, whether or not carried on deck, are carried without responsibility on the part of the Carrier for loss or damage of whatsoever nature or delay arising during the Carriage whether caused by unseaworthiness or negligence or any other cause whatsoever and neither the Hague Rules nor US COGSA shall apply.
19. Methods and Routes of Carriage
19.1 The Carrier may at any time and without notice to the Merchant:
(a) use any means of transport or storage whatsoever;
(b) transfer the Goods from one conveyance to another including transshipping or carrying the same on a vessel other than the vessel named on the reverse hereof or by any other means of transport whatsoever and even though transshipment or forwarding of the Goods may not have been contemplated or provided for herein;
(c) unpack and remove the Goods which have been packed into a Container and forward them via Container or otherwise;
(d) sail without pilots, proceed via any route, (whether or not the nearest or most direct or customary or advertised route) at any speed and proceed to, return to and stay at any port or place whatsoever (including the Port of Loading herein provided) once or more often, and in any order in or out of the route or in a contrary direction to or beyond the Port of Discharge once or more often;
(e) load and unload the Goods at any place or port (whether or not any such port is named on the reverse hereof as the Port of Loading or Port of Discharge) and store the Goods at any such port or place;
(f) comply with any orders or recommendations given by any government or authority or any Person or body or purporting to act as or on behalf of such government or authority or having under the terms of the insurance on any conveyance employed by the Carrier the right to give orders or directions.
19.2 The liberties set out in clause 19.1 may be invoked by the Carrier for any purpose whatsoever whether or not connected with the Carriage of the Goods, including but not limited to loading or unloading other goods, bunkering or embarking or disembarking any person(s), undergoing repairs and/or drydocking, towing or being towed, assisting other vessels, making trial trips and adjusting instruments. Anything done or not done in accordance with clause 19.1 or any delay arising therefrom shall be deemed to be within the contractual Carriage and shall not be a deviation.
20. Matters Affecting Performance
If at any time Carriage is or is likely to be affected by any hindrance, risk, danger, delay, difficulty or disadvantage of whatsoever kind and howsoever arising which cannot be avoided by the exercise of reasonable endeavours, (even though the circumstances giving rise to such hindrance, risk, danger, delay, difficulty or disadvantage existed at the time this contract was entered into or the Goods were received for Carriage) the Carrier may at his sole discretion and without notice to the Merchant and whether or not the Carriage is commenced either:
(a) Carry the Goods to the contracted Port of Discharge or Place of Delivery, whichever is applicable, by an alternative route to that indicated in this bill of lading or that which is usual for Goods consigned to that Port of Discharge or Place of Delivery. If the Carrier elects to invoke the terms of this clause 20(a) then, notwithstanding the provisions of clause 19 hereof, he shall be entitled to charge such additional Freight as the Carrier may determine; or
(b) Suspend the Carriage of the Goods and store them ashore or afloat upon the Terms and Conditions of this bill of lading and endeavour to forward them as soon as possible, but the Carrier makes no representations as to the maximum period of suspension. If the Carrier elects to invoke the terms of this clause 20(b) then, notwithstanding the provisions of clause 19 hereof, he shall be entitled to charge such additional Freight and Costs as the Carrier may determine; or
(c) Abandon the Carriage of the Goods and place them at the Merchant’s disposal at any place or port which the Carrier may deem safe and convenient, whereupon the responsibility of the Carrier in respect of such Goods shall cease. The Carrier shall nevertheless be entitled to full Freight on the Goods received for the Carriage, and the Merchant shall pay any additional costs incurred by reason of the abandonment of the Goods. If the Carrier elects to use an alternative route under clause 20(a) or to suspend the Carriage under clause 20(b) this shall not prejudice his right subsequently to abandon the Carriage.
21. Dangerous Goods
21.1 No Goods which are or which may become of a dangerous, noxious, hazardous, flammable, or damaging nature (including radioactive material), or which are or may become liable to damage any Persons or property whatsoever, and whether or not so listed in any official or unofficial, international or national code, convention, listing or table shall be tendered to the Carrier for Carriage without previously giving written notice of their nature, character, name, label and classification (if applicable) to the Carrier and obtaining his consent in writing and without distinctly marking the Goods and the Container or other covering on the outside so as to indicate the nature and character of any such Goods and so as to comply with any applicable laws, regulations or requirements. If any such Goods are delivered to the Carrier without obtaining his consent and/or such marking, or if in the opinion of the Carrier the Goods are or are liable to become of a dangerous, noxious, hazardous, flammable or damaging nature they may at any time or place be unloaded, destroyed, disposed of, abandoned or rendered harmless without compensation to the Merchant and without prejudice to the Carrier’s right to Freight and, the Carrier shall be under no liability to make any general average contribution in respect of such Goods.
21.2 The Merchant warrants that such Goods are packed in a manner adequate to withstand the risks of Carriage having regard to their nature and in compliance with all laws, regulations or requirements which may be applicable during the Carriage.
21.3 The Merchant shall indemnify the Carrier against all claims, liabilities, loss, damage, delay, costs, fines and/or expenses arising in consequence of the Carriage of such Goods, and/or arising from breach of any of the warranties in clause 21.2 including any steps taken by the Carrier pursuant to clause 21.1 whether or not the Merchant was aware of the nature of such Goods.
21.4 Nothing contained in this clause shall deprive the Carrier of any of his rights provided for elsewhere.
22. Notification and Delivery
22.1 Any mentioning in this bill of lading of parties to be notified of the arrival of the Goods is solely for information of the Carrier. Failure to give such notification shall not involve the Carrier in any liability nor relieve the Merchant of any obligation hereunder.
22.2 The Merchant shall take delivery of the Goods within the time provided for in the Carrier’s applicable Tariff. If the Merchant fails to do so, the Carrier may without notice unpack the Goods if packed in containers and/or store the Goods ashore, afloat, in the open or under cover at the sole risk of the Merchant. Such storage shall constitute due delivery hereunder, and thereupon all liability whatsoever of the Carrier in respect of the Goods or that part thereof shall cease and the costs of such storage shall forthwith upon demand be paid by the Merchant to the Carrier.
22.3 If the Goods are unclaimed within a reasonable time or whenever in the Carrier’s opinion the Goods are likely to deteriorate, decay or become worthless, or incur charges whether for storage or otherwise in excess of their value, the Carrier may at his discretion and without prejudice to any other rights which he may have against the Merchant without notice and without any responsibility attaching to him sell, abandon or otherwise dispose of the Goods at the sole risk and expense of the Merchant and apply any proceeds of sale in reduction of the sums due to the Carrier from the Merchant in respect of this bill of lading.
22.4 Refusal by the Merchant to take delivery of the Goods in accordance with the terms of this clause and/or to mitigate any loss or damage thereto shall constitute a waiver by the Merchant to the Carrier of any claim whatsoever relating to the Goods or the Carriage thereof.
22.5 The Carrier may in his absolute discretion receive the Goods as Full Container Load and deliver them as less than Full Container Load and/or as break bulk cargo and/or deliver the Goods to more than one receiver. In such event the Carrier shall not be liable for any shortage, loss, damage or discrepancies of the Goods, which are found upon the unpacking of the Container.
23. Both-to-Blame Collision Clause
23.1 The Both-to-Blame Collision and New Jason clauses published and/or approved by BIMCO and obtainable from the Carrier or his agent upon request are hereby incorporated herein.
24. General Average and Salvage
24.1 General average to be adjusted at any port or place at the Carrier’s option and to be settled according to the York-Antwerp Rules 1994, this covering all Goods carried on or under deck. General average on a vessel not operated by the Carrier shall be adjusted according to the requirements of the operator of that vessel.
24.2 Such security including a cash deposit as the Carrier may deem sufficient to cover the estimated contribution of the Goods and any salvage and special charges thereon, shall, if required, be submitted to the Carrier prior to delivery of the Goods. The Carrier shall be under no obligation to exercise any lien for general average contribution due to the Merchant.
24.3 If a salving ship is owned or operated by the Carrier, salvage shall be paid for as fully as if the said salving ship belonged to strangers.
25. Variation of the Contract
No servant or agent of the Carrier shall have the power to waive or vary any Terms and Conditions of this bill of lading unless such waiver or variation is in writing and is specifically authorised or ratified in writing by the Carrier.
26. Law and Jurisdiction
Whenever clause 6.2(d) and/or whenever US COGSA applies, whether by virtue of Carriage of the Goods to or from the United States of America or otherwise, that stage of the Carriage is to be governed by United States law and the United States Federal Court of the Southern District of New York is to have exclusive jurisdiction to hear all disputes in respect thereof. In all other cases, this bill of lading shall be governed by and construed in accordance with English law and all disputes arising hereunder shall be determined by the English High Court of Justice in London to the exclusion of the jurisdiction of the courts of another country.
LEGAL WRITING FOR LLM STUDENTS
(ANSWERING LAW EXAM PROBLEMS AND ESSAYS)
What follows is a set of hints which may be used by students, whether in tutorials, exams or moots, when answering typical common law questions. Heading 1 deals with the traditional legal “problem” which consists of a set of unlikely facts and the request to give advice to one or more of the parties. Heading 2 is concerned with typical “essay” questions where students will be asked to discuss or comment upon a statement or quotation.
I have concentrated on the need to acquire a clear and logical approach, combined with the sort of legal technique that would be expected when writing a legal opinion for a professional client. I have selected maritime law as an area from which to provide illustrations, but most of the examples would apply equally to other LLM subjects. Note, however, that as a commercial law subject it may supply fewer opportunities to include wider social comment than perhaps might be the case, e.g. with Criminology (but see further 1.1.21 and 2.1.2, below). The guidelines are designed to help you to avoid the perennial faults in student answers. You must remember that there are no absolute rules about legal writing. You must develop your own legal techniques and style in due course.
1. ADVICE ON ANSWERING LEGAL PROBLEMS
1.1 LEGAL TECHNIQUE
1.1.1. Read all of the problem thoroughly and identify potential legal issues.
1.1.2. You could make ‘catchword’ notes as you read through the problem, e.g. “(1) Offer sub. details (2) withdrawal/waiver …”. Each word in the problem will normally have been put in for a reason. Quick notes like the above will help ensure that you do not forget any of the points you notice on first reading.
1.1.3. Next construct a plan. It is crucial that you organise your structure before you start writing. In many ways the structure is the most important part of producing a successful answer. But do not spend too much time constructing it, especially in an exam. The plan will usually list the legal points that need to be discussed (as in 1.1.2, above). I sometimes find it helpful in private law questions (where somebody is demanding recompense from another) to list the various claims that could be made. By “claims” I mean the particular remedies being sought by each of the parties. For instance, (i) P seeks to terminate the charter as a result of D1’s breach; and/or (ii) P seeks damages against D1 for $100,000 lost hire for breach of clause 4; and/or (iii) P seeks damages against D1 for $150,000 lost profit for breach of the safe port warranty in clause 5; and/or (iv) P seeks damages of $80,000 from D1 or D2 for delivery of cargo without production of a bill; and/or (v) D1 may seek to counterclaim $100,000 from P for repudiation. A similar list could be made for tort claims, e.g., (1) Ship B claims from Ship X for (a) repair costs, (b) wasted hire, (c) salvage payable; and/or (2) Ship X claims from Ship B for total loss; (3) Salvor Y claims from Ship B for Art. 14 special compensation; (4) Harbour Authority Z claims from Ship X for (a) damage to quay, (b) removing wreck of X; and/or (5) Crew of Ship X claim against Ship X and Ship B for injury. This list mirrors the way a practising lawyer would plead a case (identifying the various alternative ways of winning) and is a useful checklist to see, at the end, if you have dealt with all the relevant causes of action. Note that in the collision claim, I have also identified the possible defendants in the list. This is particularly important in complex casualty cases, where it is necessary to be sure who can sue whom and on the basis of which cause of action. Where there is a complex web of parties and transactions I nearly always find it necessary to draw a little diagram or picture showing the various links between them. Thus, in a charterparty case, I would put the shipowner at the top, with an interconnecting line to the demise charterer underneath, and then to the time charterer and so on. Where there was a bill of lading I would draw a line between the holder and the party which was the contracting carrier (e.g., shipowner or charterer). Where there was a possible action in tort against the performing carrier I might show this with a broken line. This would help me not to confuse the precise legal relationship which the charterer or shipowner had with the bill of lading holder.
1.1.4. You may not have all the facts you need. This is deliberate. You are entitled to say “more evidence is needed on [e.g.] custom.” You must then continue by saying how that evidence would affect your opinion. For instance, “If the evidence showed that Saturdays were a working day in that port, then that day might count towards laytime. However, if the evidence showed that Saturday did not count as a working day in that port, then …[etc.]”.
1.1.5. You may deal with the issues in any order, e.g. chronologically or by transaction. The use of subheadings is often helpful. But in any event use a logical order. For example you should deal with formation of contract before breach. The classic order for contract pleadings would be “Formation; terms; breach; remedies”. In tort cases, one would need to establish duty of care before breach of that duty, causation, apportionment, damages and limitation of liability.
1.1.6. You may give a brief introduction to the issues, of perhaps a couple of lines. Do not waste time at the start, as some students do, by giving a long, rambling introduction all about general issues of contract (or tort law) law. There is no point going on about a duty of care exists in a straightforward collision case. Your time is limited. Get straight to the heart of the problem – the substantive legal issues. Again, avoid reciting or paraphrasing the facts unnecessarily in the form an attempted introduction. A typically useless example of this would be “, as in “The charter offer came on the 13th. The next day P replied. D then answered by phone with queries about the vessel’s capacity…”. This does not advance the argument at all. The reader knows the story: you have to apply the law to the facts. You must, however, refer to the material facts during the course of your answer when distinguishing cases (see 1.1.17, below).
1.1.7. The form in which you should write is that adopted by the textbook writers. For common law legal issues, you should state a proposition of law; you should give the authority for that proposition; and you should then apply that proposition. Always check to see that you have Proposition; Authority; and Application. For example, “(Proposition) Any late payment of hire under a NYPE charterparty entitles the shipowner to withdraw the vessel for non-payment of hire… (Authority) (The Laconia). (Application) In the present case, there is an NYPE charterparty and…”. Note that the accepted style is simply to put the name of the case, underlined, in brackets after the proposition. [If you are using a word-processor then use italics, as the reason for underlining something in text is to give a formal instruction to a printer to put it in italics.] At this stage it is not really necessary to say anything more about the case (but see 1.1.16-1.1.17, below). The important point is that you have identified the proposition of law for which that case stands and that you have applied that proposition to the facts at hand.
1.1.8. Every piece of information will have some relevance. Ask yourself all the time “Am I answering the specific issues raised in this case as opposed to writing a general essay about charterparties?” Emphasise your points by quoting, if necessary, from the given facts e.g. “The statement ‘We acknowledge receipt of your payment…’ shows an intent to waive the late payment as…”.
1.1.9. Do not cite authorities for propositions of fact. A student who wrote, “A ship which arrives late can cause loss to a shipowner (The Johanna Oldendorf)” would be guilty of sloppy thinking, as legal authority is not needed for propositions such as “letters are often written on paper”.
1.1.10. Further, make sure the authority cited is relevant to your proposition. Although The Johanna Oldendorf mentions the requirement that an arrived ship must be in a port, at the immediate and effective disposition of the charterer, it was only the latter proposition for which it was authority, not the former. This is because the ship in the case was waiting in the port in any event so the court did not need to discuss the point. The authority for the requirement that a ship must be in a port was the later case of The Maratha Envoy. If you wish to extend the principle in a case to some new form of situation, then make it clear (i) you use the case by way of analogy and (ii) why the case should be applied to the new situation. Thus The Antares deals with the loss of the right to a time bar under the Hague-Visby Rules where there has been an unauthorised shipment of deck cargo. It does not apply directly to charterparty or Hague Rules cases, or to geographical deviations or to loss of the right to limit liability. It may be possible to extend it to such situations, but you have to explain why and how.
1.1.11. A fuller way of presenting the argument would be (1) Problem/issue; (2) Proposition; (3) Authority; (4) Application. That is you could first present the problem or issue that arises. In the example given in 1.1.7 the words “A late payment …” could be preceded by, “The issue is whether a delay in payment, however small, gives the shipowner the right to withdraw the vessel.”
1.1.12. Remember that each exam question is, in a sense, a vehicle for the display of your knowledge. This does not mean that you have to write long irrelevant essays on issues within the problem. You should use concise statements of law. Remember there is no answer to any of the problems, but there are issues which the examiner wants discussed. The problem will have been designed so that most of the issues could be decided either way: they will be on a razor’s edge. You may be entitled (and sometimes expected) to give advice in the alternative. For example, “If there was a payment on the 1st then there would be no right to withdraw. However, if it is held that the telex was not received until the 4th, the shipowner would be held to have waived its right.” But be sensible – only discuss reasonable alternatives, otherwise you could go on forever. It is one of the lawyer’s skills to separate the wheat from the chaff and to discard obviously weak arguments which might otherwise mask the stronger ones.
1.1.13. Do not discard issues simply because you think the answer is so obvious that it goes without saying. That does not mean that you must state trite law at great length. It does mean that you should always articulate reasons for each step of your argument. Thus in a problem which is clearly about redelivery (underlap or overlap) in a time charter, it would be a waste of time discussing fanciful ‘withdrawal’ problems not raised by the facts. What you should perhaps do is to state briefly: “There was a binding time charterparty made on the 10th, and the express terms of the charterparty did allow for a 5 day margin of tolerance for redelivery. There is no indication of any non-payment of hire, so the shipowner would not be entitled to withdraw the ship on that ground, but the real issue is the extent to which the shipowner could treat the orders of the charterer on the 4th to sail to New York as being a repudiation.”
1.1.14. Obviously if you have come to the conclusion that the contract is void in the second line you must not ignore the rest of the problem. Likewise you may take the view that, on the authorities, a particular argument is not open. But you should deal with it and explain why it is not open. Beware of giving “yes/no” answers which do not explain your reasoning, e.g. “In my view there was a concluded charterparty. It was not terminable for breach.” Or, “ The shipowner would not be entitled to limit liability.” Why? It is your explanation that is crucial.
1.1.15. Argue each hypothesis putting the strongest arguments on either side. Beware about forming an opinion yourself before you have put these strongest arguments forward in your own mind. Avoid what I call “plaintiffitis”. A problem may be about “a rich shipowner, D” and “an injured passenger, P1”, or the “innocent consignee of a bill of lading, P2.” Most students will assume that P1 and P2 are worthy plaintiffs in need of protection and who must inevitably be intended to win. It is not always as easy as that. The plaintiff might have a poor legal (or moral) case. Of course, this is not to say that the courts might not apply different standards in some cases (the “personal injury” factor seen in cases concerning limitation of liability), nor is it to say that the courts should not ignore the wider social context. The point is that legal advice may not be worth much unless it is balanced and recognises the real strengths and weaknesses of the client’s case. Therefore, argue each hypothesis putting the strongest arguments on either side. Be careful about forming an opinion yourself before you have put these strongest arguments forward in your own mind.
1.1.16. A problem may appear similar to the facts of a case which you have read. Do not be misled by this into writing everything that you know about this case. Almost certainly there will be subtle differences. It is those differences which you are required to identify and deal with. You should always be looking to distinguish cases. For example, “In The Laconia, there was a clear right to withdraw because payment had not been made on time. In this case, it appears that a part payment was made on time where the charterer had made a deduction in respect of breaches by the shipowner and, in any event, there is evidence that the shipowner waived its rights to withdraw by…”
1.1.17. It is not necessary to recite the facts of cases unless you are distinguishing them. Consider this extract. “The courts will construe the payment clause in a NYPE charterparty strictly, so that where a charterer makes a late payment the shipowner will normally have the right to withdraw. However, in that case there was no satisfactory evidence of waiver. In the present case, the fact that the shipowner allowed bills of lading to be issued and the ship to sail is clear evidence that there was waiver. Thus, in The MihaliosXilas it was held [etc.].” The first sentence, above, would probably be adequate if you wished to use The Laconiato support your case. If you wished to distinguish it, the relevant material facts must be set out and more relevant cases cited (if available).
1.1.18. However in conformity with the advice in 1.1.15 to put the strongest arguments either way you may feel it necessary to refute potential arguments that your case and The Laconiaare distinguishable. On the other hand if you wish to distinguish The Laconiathen something like the second or third sentences of the quotation in 1.1.17 would be necessary. It can be seen that a different technique is required when answering legal problems to that needed when writing legal essays. It is probably true that for the latter you need to show a much greater knowledge in depth of the cases, the arguments in them and their facts. You are expected to be critical about the law – its past and future developments. Although this knowledge is undoubtedly helpful when answering problems, what is needed there is a set of clear, concise propositions which can be easily applied.
1.1.19. An examiner is entitled to expect that you have a sound knowledge of the relevant authorities. At a more sophisticated level the choice of authority is important. Which are relevant or irrelevant? Be aware of the hierarchy of the courts. Strictly look for House of Lords decisions, then appellate courts (e.g. the Court of Appeal), and then courts of first instance. If the decision is only at first instance you might be able to persuade an appeal court that it was wrong. Again this level of argument would probably be beyond first year students: but you should at least be aware that decisions do carry different weight. Moreover, be alert to differences of opinion, particularly in the House of Lords, where one line of argument may support your case.
1.1.20. Be aware of which issues are settled law and which are open to argument. A point may be open either because there is no authority on it; or because there is no decision of a higher court (e.g. the House of Lords) on it; or because the higher court may be persuaded to change its mind. You can say, “There is Court of Appeal authority that a charterer is entitled to make a deduction from hire by way of set-off (The Nanfri), although this point is still open for the House of Lords to decide otherwise. In my submission, The Nanfri ought to be followed because…” Then you would set out your reasons why a court would or should follow the case.
1.1.21. It is in this way that you can be ‘critical’ in a problem by indicating where changes to existing authorities may realistically be expected. A ‘scissors and paste’ lawyer can only look to the past authorities, cut them out and stick them in some kind of order. A good lawyer has to develop critical faculties and look to the future to be able to anticipate the courts’ decisions. Do not worry about such matters yet. You must learn your craft stage by stage. Simply be aware of the critical ideal and look for obvious open points.
1.1.22. Do not worry too much if, in an exam, you have forgotten the name of the case. What really matters is that you have understood correctly the principles in that case. If you have correctly understood and applied the principles you will certainly pass, but may not get a merit (60%) or a distinction (70%). Strictly you should provide an authority for each proposition: otherwise the examiner may think that you are guessing.
1.1.23. You do not need to know dates or references to cases. If you cannot remember the full name give part of the name (e.g. the Maratha case). If you cannot remember the name you could say, e.g. “(the case about the Weser light ship)…”. Note again that case names are usually underlined and bracketed (when appearing in the form of authority for a proposition at the end of a phrase, or sentence, e.g. 1.1.20, above).
1.1.24. In an exam have a time plan for your answer, i.e. make sure that you cover all the relevant points within the time available. Beware of spending too much time on preliminary issues while failing to get to the heart of the problem. It is probably better to try to say something about each of the issues rather than ignoring some altogether. If you run out of time towards the end of the question you are probably entitled to go into note form. But do make sure that you have answered all the required questions, or all parts of the questions, in an exam paper. Every year students fail to heed this warning and throw away marks accordingly. In an exam where four questions must be answered it is not generally better to answer three good questions and then write a few lines on the fourth. It is normally better to produce, say, two good questions and two average questions. If you say nothing (or next to nothing) on the final question you have effectively lost 25% of the marks (even with a generous examiner).
1.1.25. Consider issues of evidence so far as you can. For example, who has the burden of proof on any particular question, e.g. who has the burden of proving intent or recklessness when considering the loss of the right to limit liability. You are not supposed to challenge the given facts (e.g., by saying that the ship could not possibly have taken such a course at that time of year. But where the facts are unclear you must indicate the relevance of the further information you need (see also 1.1.4, above) and how this would affect your opinion.
1.1.26. Usually, cases are used as authorities for propositions of law. At other times they may, however, be simply examples in which courts have treated the same factual situation in the same way. Thus, you should note that where a court is considering the construction of particular words in a particular contract, cases about the same or indeed identical words are, strictly speaking, only examples and not authorities. The charterparty frustration cases often provide good factual examples even though the principles are easily stated. For each contract must be interpreted according to its own circumstances and its own conditions. The same is true when considering the question of the intention of the parties. This will always vary from contract to contract. You should make this clear in your answer.
1.2. Writing Style
1.2.1. Remember that you are writing a legal opinion. Assume that it is for a client, e.g. as if you are a barrister who is giving an opinion to a solicitor. You should try to keep to the style of the textbooks.
1.2.2. Beware of using loose, vague, or slang language: for example, “the judgment of Dixon is the pits”, or “that argument of Gibbs was thrown out of the window in X v. Y”. Similarly, it is sloppy to say “Gibbs agreed with Stephen”. You should say “Gibbs CJ”, or “Stephen J”.
1.2.3. Do not use ‘don’t’, ‘can’t’ ‘wouldn’t’ etc.. And do not bother to make jokes or puns in exams. Usually they are rather silly, unfunny and unoriginal.
1.2.4. Slack writing often indicates slack thinking. Write in sentences and not in note form, as with e.g. the lazy “Could be offer/intention to treat = Contract” or “Can the plaintiff succeed – yes”. You are probably to be excused at the end of an exam paper (when you have run out of time) if you are forced to summarise the issues in note form, but this cannot apply to an assessment. Avoid tautology, e.g. “implicitly implied” and all the other potential grammatical errors – such as the absence of punctuation (a very common fault). Be aware of split infinitives such as “to boldly go” – although they are not as frowned on as before. Try to avoid long convoluted sentences full of sub-clauses. There are a number of general works on good English writing. Lawyers are often rightly criticised for their use of unnecessarily convoluted language. Many bodies have emphasised the importance of using “plain intelligible language”. Ask yourself whether it really does assist clarity to use words like “heretofore”. The key question with any piece of writing, particularly assessed work, is “ Would I have been happy to receive an opinion like this if I had been paying for it?”
1.2.5. You should have a clear, precise, coherent, writing style. That style cannot be taught instantly if you do not already have it. You may, however, develop one if you are patient and careful. Thus, tedious though it may be, you must reread each sentence you write and ask yourself whether that sentence conveys entirely and accurately your meaning. Is it ambiguous in any way? For example, most rules will be general and not absolute. This is why lawyers always seem to be cautious and use words like “may” or “it seems” or “normally”. It cannot really be emphasized enough how important a good writing style is to a lawyer. If you have made a good structure to your answer and have then written clearly and concisely you will probably be most of the way towards getting a good mark. It is assumed that you are intelligent enough to understand the bulk of the legal issues – you would not have been admitted to your law course otherwise.
1.2.6. Although you should perhaps be cautious that does not mean that you have to be over-cautious. You should put the strongest arguments on both sides of an issue and then come to a conclusion yourself. If you are asked to give an opinion for a client then the client will want one. You are perfectly entitled to say that there are difficult issues and that the case could be decided either way, but in the end you must come to a conclusion.
2. ADVICE ON ANSWERING LEGAL ESSAYS
2.1.1. There is a distinct difference in the technique required to answer an essay type question as opposed to a problem. Too often, so much attention is given to the “new” technique of answering problems that students forget how to deal with essays. The essay often gives much greater scope for critical analysis, i.e. going beyond a mere description of what the law “is” to what it “ought” to be. Admittedly, a good problem will require more than a display of “spotting the issues”, but there is no doubt that the essential quality for problem answering is the ability to identify legal issues and to apply the given law to them in a logical or coherent manner. There may not be much time for detailed analysis of what the judges should have decided in a particular case.
2.1.2. An essay question will want you to examine these critical issues, and will expect you to go beyond the merely descriptive, as in e.g., “There are five points about withdrawal for non-payment of hire. The first rule is… The second rule is…” or “There are five cases on deductions. In the first… In the second…”. All that is done here is to produce a list of rules or the facts of the cases (perhaps, if we are lucky, with some comment on what they held). The problem with this structure is that there is no real structure, just a ramble through some pre-prepared essay. The “case list” approach is always frustrating to the reader because little or no attempt is made to relate the cases to each other. If you are going to set out the case law, try to relate the cases to each other and to the question at all times. I have already indicated that in a problem, it is often not necessary to go into the facts of cases in any great detail (see 1.1.7, above). The advice about Proposition, authority and structure may be more useful or relevant in problems where you have to apply the principles to a specific set of facts. In the essay, you may go straight into the critical appreciation of the principle. For example, instead of “In the present case …”(see 1.1.7, above) you might need to say, “[T]he width of that general proposition can be applied to time charter cases, but is not without difficulty when it comes to deciding whether the right has been waived, or where a deduction has been made.”. You will always need to be asking yourself “why” questions, e.g. “…why does this doctrine exist…”, “…why have the courts taken a narrow role…”? You are not being asked to trot out a list of cases given in a textbook: there is no set answer that you can get “wrong”. Where appropriate, you can also bring in wider issues of social or economic concern. This broader vision is generally to be encouraged, but be careful that you do not stray too far from the particular question asked and its context. Are your comments (though valid in themselves) really relevant and not out of proportion compared with the rest of the answer?
2.1.3. The biggest fault, and the most common with essays every year, is that students answer their question, not mine. You must think about the exact question being asked – not the general one you prepared. Thus, in the sample question given below, if I had wanted you to write all you knew about “wreck” in 3000 words, I would have said so. Therefore, do not paraphrase the question, e.g. by shortening it to “The law of wreck”. Every word has been included in the question for a purpose, so that you may comment on it.
2.1.4. Below is a sample essay question concerned with the obscure law relating to wrecks. It does not matter if you know nothing about the area as the comments attached are of general relevance. Of course the amount of knowledge required will vary as to whether the question appears in an exam, or is an assignment that you do in your own time.
2.2. SAMPLE ESSAY QUESTION
“’The law relating to wrecks developed long ago to deal with problems which are not of relevance today. What we need is a modern codification of the law based on principles designed to meet the needs of the remaining years of this century.’
Is this a fair assessment of the present state of the law and a realistic aspiration for the future?”
2.3. SAMPLE ESSAY: EXAMINER’S COMMENTS
2.3.1. This was a fairly straightforward essay involving a quotation and a comment upon it. It is always necessary to consider both parts and to relate them. Therefore the structure of the answer should be governed more by the essay title than by your preconceived notions about the underlying topic. Thus issues about Wreck Administration, Wreck Ownership and Historic Wreck would all condition your structure, but should have been fitted in with my title, rather than vice versa. There was a view that it is wrong to use subheadings. This is nonsense and even the best judgments now use plenty of subheadings. Their use makes it easier for the reader to understand the structure of the essay, if there is one, and easier for you to see where discussions logically belong.
2.3.2. Students often feel the need to “describe” to me all the information they have learned. It is often a waste of time. What I want is analysis of the question and the issues and assumptions posed by it. Be prepared to dissect the question into its component parts “…wreck…long ago…relevance…modern codification designed…remaining years…fair assessment…realistic vision future” I have highlighted the crucial words which you will need to have constantly in mind.
2.3.3. Of course you will need to present certain descriptive material to support and supplement your argument. But you must make this work for you. At every line ask yourself whether what you are writing is relevant to the question. Often it only takes a small comment to show that you understand the relevance and connection and are not simply engaged on a scissors and paste exercise from the textbooks. This approach means that you may have to leave out something interesting about the topic. The knowledge of when to leave material out is as much part of intellectual analysis as deciding what issues to include. The scatter-gun effect may appear to be safe, but it is blindingly obvious that the student has not the mental discipline to take hard decisions and to recognise the relevant from the irrelevant. The classic fault is “listing” cases or statutory materials and then assuming that they are self evident without any form of explanation or comment. “Section ABC of the Navigation Act 1912 says…s.DEF says…Under s.GHI the receiver can…”. After a paragraph of such summaries the reader wants to know how all this information assists the argument. What does it have to do with “relevance” or “codification”? Always make sure you comment on the black letter law in the light of the essay title.
2.3.4. It is often helpful in essays (less so in problems perhaps) to have a clear introduction setting out how you propose to deal with the question. What are the crucial issues and in which order do you propose to deal with them. What assumptions does the question make? Can these be challenged right at the beginning? This question might have appeared unclear when it referred to a “realistic vision of the future”. Yet had one really been offered in the quotation? Sometimes the quotes are deliberately provocative, unbalanced or plain wrong. Now might be the time to deal with these issues. What should be avoided is the simplistic essay which describes everything of relevance to wreck and then asserts rather pathetically, “Thus it can be seen that wreck law is not relevant and needs to be codified…” This is fine as a conclusion summarising earlier comments. All too often it is the first and only time that the elements of the question have been addressed. There may have been a half hearted attempt at justification at the start of the essay, “I will set out the legal positions first and then comment upon them”. Again, fine providing that it is done: all too often it is not. Surely, in manyinstances it will be appropriate to comment as you go along, rather than attempting to leave everything to some sort of grand finale where it is hard to relate general comments to specific points made earlier.
2.3.5. Most students would identify the major drawbacks with the existing regime, e.g. the antiquated nature (in language and functions) of the Navigation Act 1912 (derived from the UK Merchant Shipping Act 1894), confusion over title issues and a piecemeal approach to historic/military wreck. Very few would consider tangential, but equally relevant, issues such as liability for wrecks which are navigational hazards. It is necessary to look to a wider context, if possible. What of international Conventions as opposed to domestic legislation? Have you checked to see if there is any overseas case law, e.g. from the USA? Why did the question refer to codification and not consolidation? What are the differences in approach which would result from taking each of these methods?
2.3.6. Questions inviting comment on reform are often badly answered because students are driven to incautious extremes which often display shallow thought. There is approach (i) which concludes that the whole area is a real mess or load of rubbish, so that we need to start all over again, or approach (ii) which adopts a complacent interpretation of history. The latter is an approach that assumes that all the past (with its obvious and rather amusing faults) has been leading up to the present, near perfect, position where all the main issues have been sorted out in a sensible and pragmatic way. It is a patronising and complacent view of history. The sad point is that students sometimes seem unable to grasp the unrealities of the former approach, or the narrowness of the latter. Sometimes it is necessary to be hard hitting and bold: sometimes caution is more appropriate. It is possible to produce “maybe” conclusions which go beyond the inability to express a decided view on anything.
2.3.7. Comments on proposals by others are often hard to handle, especially if they are by government departments or Commissions, because you may not have the background knowledge to challenge long thought out conclusions (and it all seems so obvious, somehow, the way they put it). But it can be done, for example by making the point that a Consultative Document was really a cost-cutting measure and was more significant for what it omitted then what it included. Is a free market analysis appropriate here? You are not expected to go into great details of possible reforms – constructing castles of sand can be risky – but you should at least give structured directions to the route that the law might sensibly take.
2.3.8. Overgeneralising can be annoying, e.g. “…most wrecks are of no value…”. This shows an absence of precision in writing (in that it fails to distinguish between a rusting hull and the cargo which may be in it) and is a classic example of assertion without justification. The writer did not mean exactly that. If it is true then it should be supported by suitable footnotes showing the source of the information – e.g. a survey by insurers. In the absence of that hard information a more accurate version might have been, “Even if shipwrecks and their cargoes have a market value in auction rooms the cost of raising most of them is so great that salving them is not an economic proposition. It must be noted that a number of cargoes (e.g. gold bullion) would retain their values and that the costs of recovery are declining.” This is rather longwinded, but is more accurate.
2.3.9. Often it is helpful to give quotations from judges or distinguished authors. If you do this, avoid dumping them in the middle of your answer without explaining their relevance – because it is not always evident how they support your argument. E.g., after a quoted passage add, “In other words Plod J supports the view that….”, or “the passage reveals that Blob J considered the underlying problem to be…”.
2.3.10. Finally, I offer some words of warning about how to make use of information and material you may find in books and articles, as students often have rather misguided ideas about “plagiarism”. Naturally, it is wrong to cheat by copying large chunks of other people’s work without attribution (i.e., without acknowledging the source). Plagiarism can result in failure, but some students are genuinely surprised when told that a passage has been “lifted” from elsewhere. They may assume that it is acceptable to produce a sort of edited “scissors and paste” answer, which sticks together pieces taken from various leading texts. There is the helpless reaction “Well, they are the experts not me, aren’t they?” Sometimes students take notes from a textbook and, later write up an essay using the summary they have made, but forgetting its source. The point is not so much about the substance of the writing, but its originality. You can only be judged on your own contribution. It is perfectly satisfactory to refer to the writers, but make sure that you always attribute each source and use quotation marks (“the correct view of the case law is…”) when using the exact words of an author. It is not satisfactory to say that you gave a general list, or bibliography, at the end of your piece containing all the sources considered by you. Specific page references should be given, in footnotes, at the place in the main text where you refer to a quotation. Further, you cannot escape the requirement to make due acknowledgement simply by paraphrasing what someone else has said (i.e. using the substance of someone else’s words, but altering a few words so that it is not a direct quotation). Of course, there comes a point when the paraphrase can be said to be so different to the source material that it is original in itself: a digest of existing thought can be useful in some circumstances. But the golden rule is that if you are in doubt about the originality of what you say, give an attribution (e.g. in a footnote) in the main text at every point where you use someone else’s work.
2.3.11. One way in which you can cultivate the habit of making proper attribution of sources is by the use of footnotes. You may think that footnotes are messy or look too technical, but they can serve useful functions. The footnote can contain the name of the author and exact source. There will not usually be time for this in an exam, but the proper use of footnotes can be very impressive in essay (and indeed, problem) assignments. It may be boring to have to write out the full title of the article or book and the correct page number, but to do so can help to convey the impression of good research and an attention to detail. If you are going to use footnotes, take the trouble to adopt a uniform style for references to books and articles, e.g. “See A. Sink, Textbook on Lighthouses (2nd. ed., 2007), at pp. 42-46”, or “See J. Onah, “Fish Law: Swimming in New Waters” (2008) 14 Fish Law Journal 93, 96”. There are many different styles of reference that can be used. Look at the differing styles used in your textbooks and in legal journals. The important point is to be consistent and accurate in your citations. Thus, the correct reference for the Lloyd’s Reports is “ 1 Lloyd’s Reports 123” not (2010) Vol. 1LRp.123”. Square brackets are used when the year is crucial to the reference: round brackets are used when the date is for information only, e.g. where the particular series is listed chronologically by volume number. Thus, you would cite the Law Quarterly Review as “(1994) 110 L.Q.R. 42” and the Commercial Cases as “(1906) 11 Com. Cas. 219”.
2.3.12. Footnotes may also be a useful way of relegating passages from the main text which are interesting, but which stop the flow of the argument. Footnotes can be overused in this way and there are examples in journals (especially in the US) where the footnotes take up more space on the page than the text itself. Such a practice may be evidence of the inability to identify and cut out irrelevant material. The use of footnotes is an advanced writing technique, which also enables the writer to make sure that sources are properly attributed. The keeping of exact records of sources is a good habit to cultivate, e.g. when writing dissertations or research degrees.
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