Question 1 Mock Exam autum 2009 Can the owner of the coffee claim - PDF document

Question 1 Mock Exam autum 2009  Can the owner of the coffee claim compensation from Happy - including some methodological aspects, and Golucky (HG) for the damage caused to the coffee sacks? an overview of writing paper process  Ground of liability of HG: collision liability No contract between the coffee owner and the HG Starting point is thus Maritime Code (MC) chapter 8, § 161  MC § 161 MC distinguish between two situations : Both ships One ship Dr. juris Morten Kjelland are to blame is to blame Question 1 A look at some papers  Can the owner of the coffee claim compensation from Happy - writing exercise and reflections Golucky (HG) for the damage caused to the coffee sacks?  Ground of liability of HG: collision liability No contract between the coffee owner and the HG Page 2 + 30 + 18 (+ 9) Starting point is thus Maritime Code (MC) chapter 8, § 161  MC § 161 Papers MC distinguish between two situations : When both vessels involved are to blame → liability will be apportioned between them in proportion to their fault To claim the whole amount from HG – "one to blame situation"? Question 1 A look at some papers  HG's causual and blameworthy behaviour was the misinter- - writing exercise and reflections pretation of the radar bearings by the officer of the watch onboard HG The reder of HG is liable pursuant to MC § 151 Page 2 + 19-20 (+ 34)  The problem in this case is how the wrongful stowage impacts in the situation → The infringement of the seaworthiness act to be considered negligence on the part of the Bad Luck (BL) Papers  Was the contribution of BL so large that the actual damage could not be regarded as a result in legal sense of the HG's act?  If HG is still considered responsible for the damage, is the present situation a so called "both to blame situation" ? Dr. juris Morten Kjelland (UiO, Nifs), Maritime Law 2009 1

Question 1 Question 1  Was the contribution of BL so large that the actual damage  Was the contribution of BL so large that the actual damage could not be regarded as a result in legal sense of the HG's act? could not be regarded as a result in legal sense of the HG's act? The HG argued that the damage resulted from the bad stowing of the The next step: Is the causal contribution of HG too remote (because inflammable cargo on deck - and that HG was not to blaim for this BL's contribution could be considered the only decisive one)? My opinion : It is not unforeeseeable that a collision could lead Therefore : we must consider whether the link between the colli- to higher damage because of dangerous goods and bad stowing sion and the damage was interrupted by the wrongful stowing on the other ship → foreseeable damage Summing up so far : HG is to blame for the collision damage – Clarification : is the collision and the damage – which was caused by HG negligently – still causal for the damage: even though BL sailed with a risk without collision there had not been a fire and no firefighting? (I assess it's contribution to be 50 %) Question 1 A look at some papers  If HG is still considered responsible for the damage, is the - writing exercise and reflections present situation a so called "both to blame situation" ?  Now we take a look at the consequences for our second question … Questions to answer : Does this 50 – 50 % responsibility for the Page 30 + 19-20 (+ 38) damage lead to a both to blame collision? Or: is HG still the only responsible party for the collision so that BL's contribution is only a recourse action relevant? Papers The answer depends on how to read MC § 161 – is the decisive point who caused the collision itself the damage ? Question 1 Question 1  If HG is still considered responsible for the damage, is the  If HG is still considered responsible for the damage, is the present situation a so called "both to blame situation" ? present situation a so called "both to blame situation" ?  Now we take a look at the consequences for our second question …  Now we take a look at the consequences for our second question … Questions to answer : Does this 50 – 50 % responsibility for the Questions to answer : Does this 50 – 50 % responsibility for the damage lead to a both to blame collision? Or: is HG still the damage lead to a both to blame collision? Or: is HG still the only responsible party for the collision so that BL's contribution only responsible for the collision so that BL's contribution is is only a recourse action relevant? only a recourse action relevant? The answer depends on how to read MC § 161 – is the MC § 161: "damage" is relevant and decesive → is does not decisive point who caused the matter that the collision itself was just caused by HG, when the damage was caused by both HG and BL. Summing up : It is a "both to blame" collision → this means that collision itself the damage the cargo owner can claim 50 % from HG Dr. juris Morten Kjelland (UiO, Nifs), Maritime Law 2009 2

Question 2 A look at some papers  Can the owner of the coffee claim compensation from Bad Luck - writing exercise and reflections (BL) for the damage caused to the coffee bags based on unseaworthiness or other negligence?  Ground of liability of HG: collision liability Page ? (39 + 20) Contractual relationship between the cargo owner (here: the coffee owner) and the BL  It does not matter if it is Papers General cargo transport Charter party transport (MC (MC § 275) §§ 347 and 383) Question 2 Question 2  MC § 275, a precondition for claim is loss because of cargo damage  MC § 275, a precondition for claim is loss because of cargo damage Both is given without doubt Both is given without doubt  Additionally there must be negligence of the carrier Page 13 + 50 (9 + 3) Taking the results from question 1, BL was negligent because of the infringement of the Seaworthiness Act Both BL and HG negligently caused the damage → a case of Papers "combined causes" pursuant to MC § 275 III → BL is liable to the extent the loss is attributable to his neglect = 50 % (see the answer to question 1) Reverse burden of proof: BL must prove the neglect of HG to protect himself Question 2 Question 2  MC § 276 I – fire exception  Summing up/concluding The fire exception in number 2 applies because it was no personal neglect of the shipowner regarding the bad stowing (and thus the the fire) BL will be liable for 50 % of the loss  MC § 276 II – exception from the exception The shipowner is prevented from relying on it because of MC § 276 II Papers The vessel was initially unseaworty: the inflammable cargo made the voyage a greater risk than usual Page 50-51 + 14 (+ 58) The carrier is also responsible for negligence of a person "for whom the carrier is responsible" → he delegated the supervision of the loading Dr. juris Morten Kjelland (UiO, Nifs), Maritime Law 2009 3

Question 3 Question 3  Can the crew members of Bad Luck who assisted in the fire  Can the crew members of Bad Luck who assisted in the fire fighting, claim salvage award from Bad Luck? fighting, claim salvage award from Bad Luck?  MC § 441 (and § 450)  MC § 448 – more than one salvor A salvage operation is defined here (in MC § 441) It is possible to have more than one salvor There must have been a successful salvage operation They must share the award, see MC § 446 The "no cure no pay principle", codified in MC § 445 But… MC § 450: HG could be deprived the reward because he made the salvage operation "necessary", see MC § 450 III The salvage was only successful with respect to the vessel MC § 450: the salvors’ endevours must exceed the duties they The decission is somewhat discretionary could reasonably be expected to undertake + It is reasonable, since he was 50 % responsible - On the other hand: HG should not be deprived totally since the kind of collision is The GENERAL preconditions for reward is given unusual (provide an incentive to possible salvors) Question 3 A look at some papers - writing exercise and reflections  Summing up/concluding Page 31-32 + 40 + 24-26 Happy Golucky should get some salvage award from Bad Luck (+ 4) Papers Question 4 Question 4  NMIP § 3-25  Explain whether and, if so, to what extent the different insurances may offer cover under the circumstances described above. Has BL lost his right to the repair cost related to the bad stowing?  NMIP § 12-1 The bad stowing = an infringement of safety regulations pursuant to NMIP § 3-25 The starting point for liability of the hull insurer The term "safety" is defined in NMIP § 3-22, and must be inter- preted quite broadly (thus every safety regulations, international, The assured has in general a right to claim costs for repair actually national and local, is regarded) done (damage to the vessel = in the scope of hull insurance ) → The Seaworthiness Act is contained by definition without problems Identicifation between the assured (BL) and his servants? See MC The "pay to be paid" principle applies § 3- 36? No: the notion ”connection with his servics as a seaman ” also include the stowing of cargo anboard (a part of making the ship seaworthy and thus a part of the service of a seaman). The owner can claim the repair costs. Dr. juris Morten Kjelland (UiO, Nifs), Maritime Law 2009 4