September, 2017 Susan Hawker HST LAW MODULE Session 1 September, 2017 Susan Hawker

What are we looking at? English law The common law v codified law Is there any international law? Private and public law Public international law

IMO/ILO Conventions The 4 key IMO conventions -The SOLAS Convention 1974 -MARPOL (1973, and Protocols of 1978, 1997 -STCW (and Manila 1995-2010 Amendments) -The Salvage Convention 1989 The ILO’s Maritime Labour Convention 2006

Why English law? More freedom of contract in the commercial contracts -Unfair Contract Terms Act 1977 does not apply -No good faith -No Uniform Commercial Code (US) -No Vienna Sales Convention (most countries) -Party autonomy

Do not be daunted! What is the “two handed” approach of English law lawyers…? What is the “culture” of English law? What is the jurisprudence of a jurisdiction? What are the expectations of society?

Basic questions to ask When was the case decided… we must look at the judgement/decision (“decision” in the HL/SC) against the backdrop of the prevailing judicial and legislative climates. In which court is the judgment/decision?

The court hierarchy We are especially in interested in HL/SC decisions as an appeal may only be heard by this final court “with leave”, from either the HL (or SC) or the CA. This will only be given where there is a serious/difficult issue of law and/or public policy to be determined. We are, then, also especially interested in CA judgments, as this is where most cases will finish, and thus is where most law is developed.

Where to start What is the cause of action/the wrong? What are the elements of the wrong? What is the contentious issue?

The main legal private law wrongs Contract Tort… which is a civil/private wrong, e.g. -Negligence: The Nicholas H [1995] 3 All ER 307 HL - Debt/conversion: The Vistafjord [1988] 2 Lloyd’s 343 -Trespass to person or property -The Occupiers’ Liability Act 1957 -The economic torts Vicarious liability… be careful with this one!

Be careful of trade practice! Incoterms… not primary law under English law Neither is the UCP 600! Shipbrokers… not “agents” and not in a contract with their owners/charters… so how to get paid? -Soft law, e.g. market reputation -Equity: The Vistafjord… the estoppel shield -The Contracts (Rights of Third Parties) Act 1999 Why fix through a shipbroker?

Bringing a claim The in personam action: the Civil Procedural Rules 1998 (CPR) The in rem action for maritime liens and statutory liens: the Arrest Convention 1952 Why might the parties incorporate an arbitration clause into their contract? The Arbitration Act 1996 Mediation… growing!

The Vistafjord The O has a claim in debt: the sword Entitled to your common law remedy Common law remedy is damages But the owner had done well Equity may fill in the gaps The equitable shield was successfully raised

Equity Supplements not supplants the c/l Goes hand in hand with the c/l Come to equity with clean hands Is at the discretion of the court

What you can get with Equity Specific performance Injunctions: think Mareva (freezing order)! Recisison of contract (when: think!) Tracing assets The constructive trust: think Sanix Ace The beneficial owner (think in rem action)

Well done for getting through it all! What a lot that was! Well done for getting through it all!