law复习题答案(28页).doc

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1、-Q1:According to Churchill and Lowe, “there are signs that the age of positivism实证主义 is passing, and that the rigour苛刻 with the positivist theory tested putative rules of law被公认的法则 against the recorded practices of States is giving way to让路 an altogether looser approach to determinations决心 of normat

2、ivity规范性”Write a critique评论 of the above statement with particular reference to the role of jus naturale自然法 in the evolution of international law.The Dutch law scholars subscribes to the view that International law came exclusively from natural law. Natural law tradition persisted throughout the 18t

3、h century, although the most influential writers, such as Wolff and Vattel, attached to customary law an importance equal to that of natural law. But natural law, as a political doctrine（学说）, was losing its influence in the course of struggles against royal absolutism, and was being steadily displac

4、ed by political theories based upon the notion of consensual（在两愿下成立的，交感性的） government, exemplified by Rousseaus “social contract”. In international law this development found expression in the rise of the positivist school, which regarded the voluntary assumption of obligations by States, as evidenc

5、ed by their practice and contained in the rules of customary and treaty law, as being of more immediate importance than the dictates(指令) of natural law.The positivist approach, with its emphasis upon what States actually do rather than upon what Greeks, Romans, Prophets and common reason might have

6、thought that States should doPositivism remains the official creed(信念) of international lawyers, and the place from which we must begin.Q2:“The diversity多样性 of opinion on what is maritime law is a matter of terminology术语 and semantics语义论 rather than one of perception理解.” (Mukherjee, Maritime Legisla

7、tion at p.1)Write a commentary on various approaches to defining maritime law from a public as well as a private law perspective and by reference to different legal systems.Public Maritime law is generally divided into 2 parts-public international law and regulatory maritime low. The latter mainly i

8、ncludes the regulation of safety, environment and labour. Private Maritime law is broadly divided into 2 kinds. One kind, referred to as admiralty law by common lawyers, is directly related to shipping operations. The other kind is commercial maritime law. Subject matters such as collision and salva

9、ge belong to the former; and those such as carriage of goods by sea and marine insurance belong to the latter kind. Some subject matters such as general average, arrest of ships and maritime liens and mortgages do not neatly fit into any such categorization.Q3:Write a comparative analysis of the con

10、cepts of sovereignty主权, sovereign rights主权权利 and jurisdiction司法权、管辖权 in reference to the legal regimes政体 of maritime zones under UNCLOS.Sovereignty in general international law can be described as the highest form of power that a community of people can exercise. Sovereignty is the highest form of p

11、ower and it is so strong and so high in international law and cannot be push through.Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, a

12、nd with regard to other activities for the economic exploitation of the zone, such as the production of energy from the water currents and winds.Jurisdiction as provided for in the relevant provision of this convention with regard to:1. the establishment and use of artificial islands, installations

13、and strucrtures.2. marine scientific research3. the protection and preservation of the marine environmentQ4:What are the Annexes附加物 to the MARPOL Convention? Describe briefly the main features特点 of Annex I.Annex1 Regulations for the Prevention of Pollution by OilAnnex2 Regulations for the Control of

14、 Pollution by Noxious Liquid Substances in BulkAnnex3 Regulations for the Prevention of Pollution by Harmful Substances Carried by Sea in Packaged FormAnnex4 Regulations for the Prevention of Pollution by Sewage from ShipsAnnex5 Regulations for the Prevention of Pollution by Garbage from ShipsAnnex6

15、 Regulations for the Prevention of Air Pollution from ShipsEach annex goes into the very details of the standards and regulations made in the conference against the pollution of a single specific kind of cargo. For example, annex 1 is mainly about oil pollution especially from tankers. The majority

16、regulations and standards were made for tankers.Operational Discharge Standards; annex 1 includes all the details of the regulation and standards against oil pollution mainly from tankers, most of which is operational discharge standards. ODMACS (oil discharge monitoring and control system) equipmen

17、t, clean ballast, preventive measures relating to spills; the annex also paid much attention on the provision of ODMACS and the implement of clean ballast water and preventive measures relating to spills.Q5:“Consensus ad idem意思一致 and consideration约因；对价 are the two most important elements of a contra

18、ct.”State with reasons whether you agree with this statement and explain the meanings of these terms.I agree. A contract is defined as an agreement between two or more parties that is legally binding. In order for an agreement to be legally binding there must exist three essential ingredients that a

19、re offer, acceptance and consideration.Consensus ad idem means the meeting of the minds which is and objective test and evidenced by the behavior of conduct of the parties to the transaction.Consideration is an exchange of promises or mutual passing of a gain and a detriment between the parties.If t

20、here was no consideration, the transaction might fall within the law of gifts or estates, but is not a contract. Consensus ad idem is where negotiations take place through a process of offers and counter-offers. The contract is concluded when a final acceptance is reached evidenced by a meeting of t

21、he minds.Q6:Explain the following terms in the context of voyage charters:Laytime装卸时间 Laytime shall mean the period of time agreed between the parties during which the owner will make and keep the vessel available for loading, or discharging without payment additional to the freight.Laytime will be

22、started for some time after the master submit the Notice of handling ready to the charterer or his agent and will be ended after the completion of loading/discharging cargo.Demmurage滞留费 “Demmurage” shall mean an agreed amount payable to the owner in respect of delay to the vessel beyond the laytime,

23、 for which the owner is not responsible. Demmurage shall not be subject to laytime exceptions. Dispatch速遣费“Dispatch money” or “Dispatch” shall mean an agreed amount payable by the owner if the vessel completes loading or discharging before the laytime has expired.Arrived ship到达船舶“Arrived ship” shall

24、 mean a vessel arrived at the port or the berth which is specified in the contract.If the voyage charter party is a “Port Charter”, the vessel will be deemed to an arrived ship when it arrived at the designated port.If the voyage charter party is a “Berth Charter”, the vessel will be deemed to an ar

25、rived ship when it arrived at the designated berth.Notice of readiness装卸准备完成通知书“Notice of readiness” shall mean the notice to charterer, shipper, receiver or other person as required by the charterparty that the vessel has arrived at the port or berth, as the case may be, and is ready to load or dis

26、charge. Q7:Charlie Charterer contracted with Owen Owner to acquire the vessel Load on Top顶部装载 for a voyage charter. On the date of delivery, Charlie discovered that the vessel put at估量为 his disposal was the Crude Oil Wash原油洗. It was revealed that Owen had bareboat chartered out the Load on Top to Do

27、nald Demiser. In the circumstances情况 what legal remedies法律救济 are available to Charlie?1, the character of this case: Hedging, owen is breach of fraudulent to Charlie. A condition is a major term of a contract; its breach therefore has more drastic consequences. There are so-called fundamental terms

28、which if breached can bring the contract to an end. A fundamental breach is a breach that goes to the root of a contract. In this case, since in voyage charter, specific ship is identified by two parties, so owen change the identified ship is a fundamental breach.2, how to remedies:Regarding to The

29、remedy for a breach of condition, damages and rescission are available. If Charlie wants to continue the contract, he can use crude oil wash, but owen need to pay the damages for the damage suffered by charlie. If Charlie does not want to continue the contract, he can get recession. At this time, ow

30、en need to pay the extra cost of change the ship, such as market price change. All damages base on the predicted loss related to charlies trade contract.Q8:“The bill of lading is nothing more than a device used in commercial maritime law and Practice to transfer title from buyer to seller and is the

31、 only such device available in international trade.Write a commentary on the above statement by reference to a recent case.The normal meaning of the “Bills of lading” is a document evidencing the loading of goods on a ship, it is a receipt signed by or on behalf of the carrier and issued to the ship

32、per acknowledging that goods described in the bill of lading have been shipped in a particular vessel to a specified destination, or have been received in the shipowners custody for shipment. It is also regarded as memorandum of the terms and conditions of the contract of carriage. As most modern bi

33、ll of lading is a negotiable instrument that endorsement can transfer the right of title of the said good from one holder to another for valuable consideration, the B/L is regarded as a device used in commercial maritime law and practice to transfer title from buyer to seller. However, not all bills

34、 of lading are transferable. To impart transferability to a bill of lading, it must be drafted as order bills. Upon endorsement, the endorsee takes the place of the original party to the bill of lading, and will be sue and be sued on all the terms, express and implied in the bill of lading despite p

35、rivity of contract. In the bill of lading, it also indicates the terms for transporting and the apparent condition of goods that will clarify the liability of the carrier and shipper, it can be treated as conclusive evidence as between the carrier and a receiver and as at least prima facie evidence

36、as between the carrier and the shipper, as to the number, weight or quantity and apparent order and condition of the cargo on loading. In the case of Motis Exports Ltd v/s Dampskibsselskabet AF 1912 Aktieselskab Akteiselskabet Dampskibsselskabet Svendborg (2000) the cargo was under the Maersk Line B

37、ills of lading which stated the carrier shall have no liability whatsoever for any loss or damage howsoever caused to the goods while in its actual or constructive possession before loading or after discharge over ship rail, or if applicable, on the ship ramp. The carriers released the goods against

38、 forged bills of lading. It was held that the delivery against an original bill of lading is obligatory and hence, delivery against a forged bill of lading will not be construed in favour of the carrier.ConclusionHence, bills of lading play a very important part in international trade. Depending upo

39、n the rules, there are different implications for different parties, which are involved. Its not only a device used in commercial maritime law and practice to transfer title from buyer to seller; it is also the contract of carriage that a prima facie evidence as between the carrier and the shipper f

40、or clarify the liability.Q9:Explain by reference to two lading cases the interrelationship相互关系 between Article III Rule 1 (requirement for seaworthiness适航性) and Article IV Rule 2 (catalogue of exceptions免责条款) of the Hague-Visby Rules.In Hague-Visby Rules, The article 3 rule 1 talking about the respo

41、nsibilities and abilities of the carrier to ensure the seaworthiness while the article 4 rule 2 illustrate the several situations of immunity. It seems two rules are conflict but it clearly regulate the rights and responsibilities of the carrier, inhibiting the emergence of some unnecessary disputes

42、.For example, “Maruienne” in the loading period, the crew of the captains orders in accordance with the blowpipe to melt water in the ice baking to result of fire, which had scuttled the ship, cargo severely damaged in the end. The court held that, in this case, the carrier does not “caution” in the

43、 sail when sailing before and make the ship seaworthy, it is not according to the Hague Rules exemption.Hague Rules Seventeen exemption provisions in the exemption, including a fire, but the actual fault or privity of the carrier caused otherwise. I refer to the carrier where the carrier, the carrie

44、r employed person at fault, the carrier can still exemption, only the carriers own fault or privity of circumstances that can not be exempt. According to the Hague Rules, regardless of the exemption, the premise must be the carrier has been careful handling make the ship seaworthy, and if you can no

45、t do this, even if the conditions can not meet the exemption exemption. The case that this is the case.“ Maruienne”轮在装货期间，船员依照船长的命令用吹管烘烤融化水管中的冻冰，结果引发火灾，不得不将船舶凿沉，货物严重受损。法院认为，在该案中，承运人没有“谨慎处理”在开航前和开航时使船舶适航，因此不能依海牙规则免责。 海牙规则规定的十七项免责中包括了火灾免责，但由于承运人实际过失或私谋所造成者除外。这里的承运人指承运人本人，承运人的雇用人有过失的，承运人仍可以免责，只有在承运人本人有

46、过失或私谋的情况下才不能免责。根据海牙规则，无论何种免责，其前提都必须是承运人已经“谨慎处理”使船舶适航了，如果做不到这一点，即使符合免责的条件也不能免责。本案即属于这种情况。Q10:Write a comparative analysis of the doctrines of subrogation代位求偿学说 and abandonment in the law of marine insurance and explain their relationship to partial局部的 and total losses.Subrogation is a right of action

47、. It is happened in the case of insured object had damaged due to the third party. Typically, subrogation occurs when an insurance company which pays its insured client for injuries and losses then sues the third party which the injured person contends caused the damages to him/her within the damage

48、. The establishment of Subrogation needs three factors:1, assured has right of claim to damage caused by the third party2, insured has obligation to pay compensation for the damage, and he has already paid it to assured.3, the profit of subrogation acquired by insured cannot beyond the compensation paid to assured, otherwise, insured should pay the extra profit back