Answer

Essay 1: Liabilities of the Master

The shipmaster is liable for breach of Articles 76 and 77 because the ship he controlled engaged in oil exploration against the law. Article 76 provides that the continental shelf is a distance of 200nm from the baseline (UN General Assembly, 1982). Additionally, Article 77 provides various rights that the coastal state has over the continental shelf. One of the rights is that it is only the coastal state with the right to explore and exploit natural resources within its continental shelf.  However, in the present case, the master of MV Bourne breached Article 76 because he sailed a distance of 370 nm, which is more than 200nm. Additionally, under Article 77, the master is liable because his vessel engaged in the exploration of seabed for oil 380nm from the baseline, which is a right of the coastal state and not of the shipmaster.

The roles of Articles 55 and 56 are to enumerate the legal position and the rights, jurisdiction, and responsibilities of the coastal state in relation to the exclusive economic zone. According to Article 55, the exclusive economic zone is the area that goes beyond and adjacent to the territorial area as defined by art 76 (200nm) (UN General Assembly, 1982). On the other hand, Article 56 gives the coastal state the right to both explore and exploit its natural resources discovered under its territorial waters, the master of MV Bourne liable for an offense under Article 55 and article 56 because he engaged in the production of a grade of natural bio water, which is a right only granted to the coastal state and not the shipmaster.

According to Article 33, a state is granted the right to punish any vessel and shipmaster who infringes on its laws, customs, and regulations. However, the Article states that the contiguous territory does not exceed 24nm (UN General Assembly, 1982). In the present case, the master of MV Bourne opened up a casino at a distance of 40 miles from the baseline. As such, the master is not liable for the breach of the provisions of Article 33 and the coastal state cannot punish him for infringement of its laws, fiscal, immigration, and customary laws because he sailed and opened a business 40nm from the baseline whereas the state has jurisdiction for only 24nm from the baseline.

Article 19 provides a definition of innocent passage as any form of vessel passage, which does not compromise aspects such as good order, peace, and security of the coastal line. However, the passage of any ship is considered to breach the peace, good order, or security of the coastal State if the vessel engages in activities that violate international law or prejudice the defense and security of the coastal states. The master of MV Bourne breached Article 19(2)(c), because he engaged in the broadcasting of propaganda against the de-facto leader of the Straits of Rocky, which can be construed as prejudicing the defense or security of the state, thus, not an innocent passage.

The classification societies have the instrumental role of establishing and maintaining technical standards for both the construction and operations of vessels. The aim of such a role is to make sure the design and workings of vessels are in accordance with international standards based on their class (Bruyne, 2014, p.181). In the present case, MV Threadstone lost its classification after a crack was found on the main deck because the classification society found its technical and design features not in accordance with the standards set by their class, hence, not seaworthy. The classification societies are key to ensuring that ships continue to meet the parameters and set standards, thus, maintain sanity and safety in maritime transport (Bruyne, 2014, p.181).

Essay 2: Provisions of the Maritime Labor Conventions 2006

The following are the mandatory areas that must be inspected based on the Marine Labor Convention of 2006:

Fulfillment of Agreement Between Shipowner and Seafarer

According to Regulation 5.3, each of the member states is required to establish effective systems for inspection, monitoring, and the enforcement of labor-supplying responsibilities. States are required to ensure that they enforce the provisions of the Convention, especially those applying to the operation and practices of both seafarer recruitment and placement services. Such services should be established via systems of inspection and monitoring with the ultimate aim of making sure that any breaches of licensing and other requirements of operation are realized and rectified (International Labor Conference, 2006). Additionally, a mandatory inspection of the labor supply responsibilities should focus on establishing whether the terms of shipowners’ agreements with the seafarers have been fulfilled without exception.  However, other inspections related to the working and living conditions of the seafarers.

Working and Living Conditions of Seafarers

            It is mandatory under Appendix A5-1 of the Convention for the working and living conditions of the seafarer to be inspected and approved by the flag state before a ship is certified to operate in any international waters. Some of the aspects that must be inspected in this regard include the minimum age of the seafarers, medical certification, the different technical qualifications of the seafarers, and any employment agreements with the seafarers. Additionally,  the hours of work/rest, manning levels of the ship, nature of accommodation, and onboard recreational facilities are mandatory areas for inspection by the flag state (International Labor Conference, 2006). Moreover, it is required that inspections should be done on the nature of food and catering, measures to ensure health and safety, and the presence of onboard medical care. Furthermore, inspections are mandatory for procedures for addressing complaints aboard the ship and how wages shall be paid.

Presence of Key Supplies

Based on Standard A3.2  titled “Food and Catering,” inspections should be conducted, and frequent documented assessments carried out on board ships to ensure that the vessels have enough and quality supplies of food and drinking water. Additionally, the inspection will be to evaluate whether all spaces and equipment used in the ship for the storage and handling of food and drinking water are clean. Moreover, such an inspection is required to make sure that any equipment used for the preparation and service of meals is in accordance with the standards set out in the Convention (International Labor Conference, 2006). More importantly, the inspections shall make sure that seafarers below 18 years are not employed to work as cooks in the ship. Moreover, during such an inspection, it is established whether the cooks who have been contracted for work aboard the ship are trained, qualified, and competent.

Maritime Labor Certificate and Labor Compliance

Under standard A5.2.1, inspections are required to be conducted at the port by authorized officers who shall come on board and require the shipmaster to produce and maintain the required documents such as the maritime labor certification and declaration of maritime labor compliance. The aim of this initial inspection is to make sure that no documents are falsely maintained and that the documents produced contain all required information under the Convention (International Labor Conference, 2006). Additionally, the inspection will seek to ensure that the working and living conditions in the vessel are in conformity with the requirements of the convention. In this inspection, those tasked with the duty shall ensure that the working and living conditions are not so defective such that they may constitute a clear and imminent danger to the safety, health, and security of seafarers (International Labor Conference, 2006). Moreover, the inspectors should establish whether the deficiencies realized constitute a serious breach of the Convention’s requirements such as the rights of the seafarers.

Essay 3: The Law of Contracts and the Law of Torts

1. Elements Required for The Formation of Contract

Offer

In shipping law, one of the key elements that must exist for the contract to be valid is offer. An offer is something that demonstrates an intention and objectively manifests the willingness of the offeror to be bound by his/her words or conduct. In Stover v Manchester City Council [1974],  the court held that an offer is made with the intention that the offeror will be bound by it if accepted by the offeree. Offers may either be through word of conduct. However, offers in shipping contract must be distinguished from invitations to treat as was the position in Partridge v Crittenden [1968] and Carlill v Carbolic Smoke Ball Company [1893].

Acceptance

A valid and enforceable shipping contract must have the element of acceptance, which is a final and unqualified expression of assent to the terms and provisions of an offer. Although an offer may be accepted through actions, it may also be via the conduct of the parties. Acceptance only becomes legal if it is communicated to the offeror (McKendrick, 2014, p.34). As was stated in Henthorn v Fraser [1892], acceptance by post occurs when the acceptance letter is posted. However, in the case of an email, and acceptance is valid after the email is received by the offeror (Entores v Miles Far East Corp [1955]).

Consideration

The legal rule is that any promise made is not binding in a contract unless there is support in the form of consideration. Consideration is generally defined as something of value that the parties exchange to make their promises enforceable (McKendrick, 2014, p.32). In most cases, consideration is something of a detriment to the promiser and of benefit to the promisor. As was the position in Byrne v Van Tienhoven [1880], consideration ought to be sufficient though not necessarily adequate. Additionally, past consideration is no good consideration.

Intention

            A contractual intention is one of the key elements that need to be present for a shipping contract to be enforceable. Any agreement that is made without an intention to create any legal relations will not be binding on the parties (McKendrick, 2014, p.34). However, in normal commercial shipping transactions, a presumption exists that parties have the intention to create legal relations. Nevertheless, as the Court opined in Edwards v Skyways Ltd [1964], the onus of rebutting the presumption of legal relations lies on the party who disputes the existence of such relations.

1. Elements to Be Proved for Successful Claim Under Tort of Negligence

The modern law on the tort of negligence was established in Donoghue v Stevenson [1932] where the court established the “neighbor principle” and three conditions that must be met for a claimant to successfully prove the tort of negligence.

Duty of Care

The claimant must prove to the court that the defendant owed him/her a duty of care. The duty of care was crystalized in the Caparo Industries Plc v Dickman [1990] where the Court established a threefold test for the duty of care. The first step is to establish whether the defendant’s conduct was reasonably foreseeable. Additionally, the claimant and the defendant must be in a relationship of proximity. Finally, the claimant must prove that imposing liability and duty of care on the defendant would be not only fair and just but also reasonable. In the recent case of Robinson v Chief Constable of West Yorkshire Police [2018], the UK Supreme Court found that police had a duty of care on a passer-by.

Breach of the Duty

Upon the establishment of the duty of care, the claimant must also demonstrate that such a duty was breached by the defendant. An objective test is used to establish whether the defendant’s conduct was below that of a reasonable man. In Bolam v Friern Hospital Management Committee[1957], the Court held that in specialized professions, a reasonable person would be someone with similar skills and competencies in the profession. However, recently in Montgomery v Lanarkshire Health Board [2015], the UK Supreme Court argued that the defendant must have been expected to perform his/her task with reasonable skills and competencies.

Loss/Damage from the Breach

For claimants to be successful in their tort of negligence, they must show that the breach occasioned them loss/damages. Specifically, they must show that if not for the defendant, they would not have experienced such harm. In the asbestos case of Barnett v Chelsea & Kensington Hospital Management Committee [1968], the “but for” test of causation was established. Specifically, a causal link between the defendant’s conduct and loss to the claimant must be established for the claimant to successfully prove the existence of the tort of negligence.

Essay 4:

Functions of the Bill of Lading

The bill of lading has three key functions of providing evidence for receipt of goods, acting as documentary evidence for a contract of carriage, and providing a title for the goods described in such a bill. The functions of the bill of lading were well stated by an eminent judge in the English Court of Appeal in The Delfini [I990] where the Court stated that the bill of lading is seen by some people as a document of title. Additionally, he argued that in addition to other functions such as acting as a receipt for the goods and evidence of the carriage contract between the shipper and the shipowner, the bill of lading also serves other purposes. One of the key functions of such a bill is that it symbolizes the constructive possession of goods, which when used can enable the transfer of such constructive possession either via endorsement or another transfer (Ahmadi, Elsan, and Noshadi, 2017, p.188). Additionally, according to the Court in the case, a bill of lading; although incapable of directly transferring property in the goods, is critical in the process of passing property in the goods from one party to the other. As such, the bill of lading has the function of acting as a receipt showing the description of the volume and weight of goods, representing goods shipped, hence, evidence of the contract of carriage, and a document of title representing a constructive possession of the goods.

Role of P&I Clubs in Marine Industry

Protection and Indemnity (P&1) clubs in the marine industry serve the role of providing appropriate insurance cover to the seafarers. Notably, in the marine industry, especially the shipping industry, the three critical elements are the ship, the seafarers, and the cargo. However, three elements are exposed to different types of risks, which exposes the shipowner to make possibilities of monetary losses (Maitland, 2019, p.23). For instance, if a ship is involved in an accident or is damaged from environmental conditions, then the shipowner is likely to undergo costs of repairing the ship or providing compensation to seafarers who might have got injured or lost their lives (Huybrechts and Nikaki, 2016, p.267). The P&I clubs chip in to provide compensation through insurance programs that cover the various risks and hazards they may be encountered in shipping. Some of the liabilities that are covered by P&I Clubs include personal injuries or even deaths to the crew or passengers. Additionally, repatriation and stowaways are covered by most P&I insurances. Moreover, any cargo claims emanating from loss or damage are covered such as that the shipowner does not need to suffer economic losses from such a risk. Moreover, P&I clubs are vital in providing insurance for liability emanating from collision and damages occasioned to the ship by fixed or floating objects (Huybrechts and Nikaki, 2016, p.267). Furthermore, the P&I Clubs have the role of posting bonds for members or ships when under arrest and disseminating information to members, which may help in observance of legal regulations and standards (Maitland, 2019, p.25). Shipowners can sit pretty knowing that any incidences and losses that may arise during shipping are well covered by the P&I clubs.