law复习题集答案解析

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 ofinternational law.The Dutch law scholars subscribes to the view that International law came exclusively from natural law. Natural law tradition persisted throughout the 18th

3、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 displaced

4、 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 evidenced

5、 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 mon reason might have thoug

6、ht 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 Legislation

7、at p.1)Write a mentary on various approaches to defining maritime law from a public as well as a private law perspectiveand 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 includes t

8、he regulation of safety, environment and labour. Private Maritime law is broadly divided into 2 kinds. One kind, referred to as admiralty law by mon lawyers, is directly related to shipping operations. The other kind is mercial maritime law. Subject matters such as collision and salvage belong to th

9、e 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 parative analysis ofthe concepts of sovereignt

10、y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 munity of people can exercise. Sovereignty is the highest form of power and it is so stro

11、ng 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, and with regard to othe

12、r 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 and strucrtures.2. mar

13、ine scientific research3. the protection and preservation of the marine environmentQ4:What arethe 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 Pollution by Noxious L

14、iquid 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 Regulations for the Pr

15、evention 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 regulations and standar

16、ds 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) equipment, clean ballast, preve

17、ntive 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 contract.”State with reasons

18、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 are offer, acceptance an

19、d 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 there was no considerati

20、on, 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 the minds.Q6:Explain the

21、 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 started for some time af

22、ter the master submit the "Notice of handling ready" to the charterer or his agentand will be ended after the pletion 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, for which the ow

23、ner 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 pletes loading or discharging before the laytime has expired.Arrived ship到达船舶“Arrived ship” shall mean a vessel arrive

24、d 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 arrived ship when it ar

25、rived 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 discharge. Q7:Charlie Ch

26、arterer 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 theCrude Oil Wash原油洗. It was revealed that Owen had bareboat chartered out the Load on Top to Donald Demiser. In the c

27、ircumstances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 which if breached can

28、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 remedy for a breach of

29、 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, owen need to pay the ext

30、ra 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 mercial maritime law and Practice to transfer title from buyer to seller and is the only such device availab

31、le in international trade.Write a mentary 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 shipper acknowledging that goods

32、 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 bill of lading is a negotiable

33、 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 mercial maritime law and practice to transfer title from buyer to seller. However, not all bills of lading are transferable. To

34、 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 privity of contract. In the bill

35、 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 as between the carrier and the

36、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 Bills of lading which stated the

37、 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 forged bills of lading. It was

38、 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 upon the rules, there are differen

39、t implications for different parties, which are involved. Its not only a device used in mercial 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 for clarify the liability.Q9:Explai

40、n 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 responsibilities and abilities of the c

41、arrier 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.For example, “Maruienne” in the l

42、oading period, the crew of the captain's 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 sail when sailing before and

43、 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 carrier employed

44、person at fault, the carrier can still exemption, only the carrier's 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,

45、 and if you can not 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 parative analysis of the doctrines of subrogation代位求偿学说andabandonment in the law of marine insurance and explain their r