Section 1 Flashcards
Differences between express and implied contracts.
Express - Contract is in writing, the terms and conditions are set out and agreed by all parties in the contract. E.g. Insurance Policy
Implied - Terms and conditions are not written down but are understood to exit. E.g. The vessel is seaworthy.
Differences between conditions, warranties and innominate terms in a contract.
Condition, is part of the contract that the parties think is important and has to be performed. Thus, a condition becomes the most important part of a contract.
Warranty - a term of the contract that is written as a promise or guarantee. If one party breaches a warranty, the innocent party may sue for damages but isn’t allowed to terminate the contract.
Innominate / Intermediate terms are somewhere between a condition and a warranty. An important innominate term, such as one that if breached would deprive one of the parties of the substantial benefit of the contract, means it is a condition that allow the innocent party to terminate the contract and find other alternatives. But if the breach did not substantially deprive the innocent party of the whole benefit of the contract, then it is treated as a warranty which do not justify termination of contract.
Describe Doctrine of Judicial Precedent.
All other courts have to follow the decision made by the superior court.
The advantages are stability, predictability and the efficiency in the legal system.
The limitations are inflexibility, uncertainty and unjust outcomes.
What is Alternate Dispute Resolution.
Alternative Dispute Resolution (ADR) is used to describe processes, other than a judicial process, in which an impartial person voluntarily assists those who end up in a dispute to resolve the issues and arrive at an amicable solution.
The main types of ADR:
- Negotiation
- Mediation
- Conciliation
- Arbitration.
Multiple ADR methods are used since it can be quicker, more efficient, and less expensive than litigation and long-drawn judiciary process.
Define tort of negligence.
Occurs when a person causes damage to another person through recklessness or carelessness.
4 Conditions:
1. The existence of a duty of care.
2. A breach of that duty of care.
3. Loss to the plaintiff due to the breach
4. A reasonable connection (Remoteness).
Essential requirement for a contract to be legally valid.
7 Conditions:
1. Offer
2. Acceptance
3. Genuinesness
4. Consideration
5. Status
6. Legally
7. Possibility of performance
How can one party be discharged of a contract?
- By agreement: If both parties agree to end the deal.
- By performance: After fulfilling the contract.
- By breach: Breaching of a condition by any party.
- By impossibility: When there is frustration and impossible to perform. E.g. an act of God may have destroyed the object of the contract.
- By operation of law or any changes in Law: No person can be held to a contract if, since acceptance, there has been some radical changes which affects the contract.
What are the possible remedies in case there’s a breach of contract?
- A lawyer would look for a clause in the contract that decides what happens if there is a breach.
- Equitable remedies
- An Injunction Order
- By Claiming damages
Describe the international conventions that are designed to prevent pollution from ships, and those that are designed to ensure adequate funds are available to clean up the results of pollution and compensate those suffering damage from it. What evidence must be carried aboard a ship to show that it complies with these conventions?
- The International Convention on Civil Liability for Oil Pollution Damage (CLC) 1969 and 1992
- The International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971 and 1992
- The International Convention on Civil Liability for Bunker Oil Pollution Damage 2001
- The International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea 1996 (HNS)
- The Oil Pollution Act 1990 (OPA90) (USA only)
Certificates:
- CLC Certificate
- Certificate of insurance or other financial security in respect of civil liability for bunker oil pollution damage
List and define the various terminology used in UNCLOS.
- Internal Waters, are part of a state’s national waters within the baseline and under its jurisdiction. Foreign vessels only have the right of innocent passage in limited circumstances such as distress, force of weather or break-down. National laws may be enforced on foreign vessels within internal waters.
- Territorial Sea, can extend from the baseline up to 12 miles to seaward. Which are also part of the state’s national waters, so ships using them are subject to certain elements of local legislation, but foreign flag vessels here have much broader rights of innocent passage.
- Archipelagic Waters, a limit around a group of islands in which legislations are similar to that of territorial seas.
- Contiguous Zone, extends beyond 12 miles limits of the territorial sea. Within this zone the coastal state may detain vessels which are suspected to breach customs, immigration or health regulations. This includes suspected smugglers and ships carrying noxious or dangerous substances/waste. Australia has claimed a contiguous zone extending up to 24 miles from the baseline
- An Exclusive Economic Zone (EEZ) may be
claimed up to 200 miles from the baseline. Within the EEZ the coastal state has natural
resource exploitation rights and duties. Australia’s EEZ is defined in the Seas and Submerged Lands Act 1973, and generally extends the full 200 miles from the baseline, except where there is a special agreement or potential delimitation with other countries. - Continental Shelf, is a geological feature that may extend to a maximum of 350 miles. The coastal state has exclusive rights to the mineral resources within the continental shelf. Within the continental shelf, 500 metre safety zones may be set up around offshore installations etc. The limits of Australia’s Continental Shelf are generally the same as the EEZ, except where it has
submitted scientifically supported details of an extended continental shelf to the UN Commission on the Limits of the Continental Shelf. - High Seas, fall outside all the previous categories.
▪ Freedom of the high seas extends to all states and includes freedom of navigation, freedom to fish and carry out scientific research, to lay cables and pipelines, to build artificial islands and other installations.
▪ There is a duty to render assistance to those in distress on the high seas. High seas
However, the freedom of the high seas does not extend to:
▪ Trade in slaves or drugs,
▪ Piracy,
▪ Act of seizure of ships or unauthorised broadcasting
There are two quite distinct reasons for carrying out marine accident investigations.
Describe these. Indicate which body (in Australia) would conduct each of these.
- The first purpose is to determine whether there have been breaches of safety or anti-pollution legislation and to prosecute those responsible.
- The second purpose is to determine the circumstances, and to identify any safety issues, and to encourage relevant safety action to prevent the occurrence of similar accidents and incidents.
- Australian Maritime Safety Authority (AMSA)
- Australian Transport Safety Bureau (ATSB), will forward information to IMO within 6mths.
AMSA Form 18 - Incident Alert (Within 4hrs)
AMSA Form 19 - Incident Report (Within 72hrs)
