1.Outline the two main sources of law in the Australian legal system.

Ans:
(1)The Common Law: This is judge-made case law, which arises from the decisions of the
courts. This forms through the “Doctrine of Precedent” under which the courts follow prior
decisions of superior courts.In Australia the High Court, which is the highest, court in the
country. The lower courts in each hierarchy of courts must follow the Superior Courts.
(2)Statute Law/Legislation: The laws made by Parliament and this law is statute law. The
primary legislation as passed by Parliament is called an Act (eg. The Navigation Act 2012 .
The important point in terms of the national legal system is that statute law will always
override the common law, so if the government disagrees with the direction the decisions of
the courts are taking, they can be overruled by statute.
In developing statute law, it is not uncommon to find associated regulations sitting under
Acts. These regulations are known as delegated legislation as they are authorised by a
government Minister or government organisation under the authority of an overriding Act.
In Australia the Marine Orders are a form of delegated legislation.

2. Are contract law and tort law considered areas of civil or criminal law?
Ans:
Civil law the governing interactions between parties, is very important to the commercial
operation of ships. After all most business dealing such as selling or transporting goods
involve agreements and interactions between parties such as companies and individuals.
Therefore, it area of civil law:

3. Explain what a contract is. Explain the difference between express and implied terms
of a contract. Give examples.

Ans: Contracts are agreements between two or more parties which are legally enforced.
When a contract is entered into, it is assumed that the parties to it were aware of and made
allowances for the legal consequences of any breach of conduct. If an agreement is not a
contract, there is no redress in the event that either party failing to carry it out. On the other
hand, when there is a contract, any breach will give rise to a legal remedy.
Examples of contracts include: Crew Agreements, Charter Parties, Bills of Lading, Contracts
for Carriage, Supply of Bunkers, Towage, Pilotage and in some cases Salvage.
Two types of contracts or their terms:
(1)Express: These may be in writing The terms and conditions are set out and agreed by all
parties in the contract. Example: an Insurance Policy.
(2)Implied: Terms and conditions may not be written down but are understood to exist. For
example, when you purchase a plan ticket to travel from one place to another, basically I
have enter into a contract with the train company to carry me so far as I have paid a fare. But
I don’t get a written condition as to the driver’s license, the roadworthiness of the train, etc.
these terms of contract are all implied.
4.How can a contract end (be discharged)?
Discharging a Contract:
By agreement: If both parties agree to end the deal.
By performance: After performing, fulfilling the contract.
By breach: Breaching of an essential term by any means by any party.
By impossibility: When there is frustration and it is impossible to perform the contract.
For example, an act of God may have destroyed the object of the contract.
Alternatively the injured party can find redress from courts:
By equitable remedies issued at the discretion of the court:
5. What are the essential requirements to make a contract valid?
Ans:
Elements of a Valid Contract
Generally, in Australia there are certain elements required to make a contract legally valid.
Offer:Somebody must offer something to someone else. It could be money for goods, money
for service or service for goods. Parties must be clear as to who is offering what and to
whom. An offer must be a clear, Acceptance
Acceptance:validates the contract; it gives it life. The party accepting must accept
unconditionally all the terms and conditions.
The OFFERER can terminate his offer at any prior to acceptance (called revocation) by
communicating this to the other party.
OFFER and ACCEPTANCE together are described as AGREEMENT. It is not enough
to say that you find the offer to be "agreeable"; you must "accept" the offer
Consideration :You must give something and receive something in return. Otherwise, it will
be a gift. What you give/receive could be money, services, goods or indemnity. This is called
CONSIDERATION. Consideration must have some real value.
Intent to be legally bound
Social arrangements:are generally presumed as NOT having an intention to be legally
binding while commercial arrangements are generally presumed as having an intention to be
legally binding. Example: agreeing to provide a ship to lift a cargo at 7am on Saturday).
Genuineness:It should be genuine. Contracts may be unenforceable if the parties have not
genuinely agreed to its terms by:
Mistake: A contract requires a meeting of the minds. If one or both parties have been
mistaken about an element of the contract, then there is no meeting of the minds. However,
that does not necessarily mean that the contract is void. Mistakes are of three kinds; common,
unilateral or mutual.
Misrepresentation: Misrepresentation is when one of the parties to a contract made a wrong
statement about some material element of the contract and, because of this statement, the
other party entered into the contract. Contract law treats fraudulent misrepresentation
differently from innocent misrepresentation. A misrepresentation could arise of fraudulence,
negligence or innocence.
Undue influence or duress: A contract could be void if a party to contract enters it not under
their own free will or enters due to the power of influence of the other.
Capacity to contract:Prisoners, drunken persons, bankrupt persons, legally insane persons
and those younger than 18 do not generally have capacity to contract, ie. they cannot enter
into a contract. Only certain company officers will have capacity to bind a company to
contracts.
Legality: Illegal acts cannot be agreed to a contract. Examples; contracting to carry illicit
substances.With some exceptions, most contracts do not have to be in writing to be legally
binding,

The court may require Specific Performance: This means a court order to the breaching
party to perform his or her part of the bargain rather than just pay damages. This is done
generally where “substantial performances” has taken place.

By Injunction Order: Apply for an injunction where a direct order is required to stop a party
from continuing an ongoing breach.
By Claiming Damages: claiming damages is to compensate for loss. The sum of damages
awarded is intended to place the damaged party in the same position he would have been had
the contract completed successfully. It is not to punish the other party. Damages, which are
not directly linked with the breach, are considered REMOTE and will not be recoverable.

6. Before the tort of negligence can be established, a claimant must be able to show that
four elements are present. Name and describe these elements, providing illustrations of
each.
Ans: The tort of negligence to be established, four elements must be shown by the claimant.
A duty of care: The person who causes the damage must be shown to owe a duty of care to
the person injured or damaged. In various contexts a ship owner or master may owe a duty of
care to employees, to charterers, to stevedores, to other vessels and to bystanders.
A breach of the duty of care by their actions: (or lack of actions). Before deciding whether
the duty of care has been breached it is necessary to decide what standard of care the
defendant is to be judged by, then whether the defendant has fallen below that standard.
Every defendant must be judged by the same standard – that of the ‘reasonable person in the
shoes of the defendant’.
Damage to the plaintiff: arising from the breach of the duty of care. Damage may be an
injury, physical damage to property or economic loss. Before a defendant can be found liable
by the courts for the claimant’s loss, it must be satisfied that it was a breach of care that was
responsible for the loss, rather than some other circumstance over which the defendant had no
control.
A reasonable connection (Remoteness): There must be 'sufficient causal connection'
between the defendant's breach and the loss claimed. Eg. A man is on his way to a meeting to
become a partner in a business which is later highly successful. He misses the meeting and
misses the partnership because, while crossing the street, he is hit by a car. On these facts, he
could well sue for personal injury, medical and associated expenses etc., but the claim for
millions of dollars forth missed business opportunity would probably fail under the doctrine
of 'the remoteness of damage'.

7. There are two quite distinct reasons for carrying out marine accident investigations.
Describe these. Indicate which body (in Australia) would conduct each of these.
Ans:
The Purpose of Investigations There are two quite distinct purposes for carrying out
investigation into marine accidents or incidents.
(1)To determine whether there have been breaches of safety and/or anti-pollution legislation
and, if appropriate, to prosecute those responsible. In addition to any prison sentence and/or
fines imposed by the relevant court on those found guilty, there is a real possibility that
anyone found guilty will have his/her certificate of competency suspended or cancelled.
AMSA and law enforcement authorities involved.

(2)The second purpose of investigation is “to determine (the marine accident or incident’s)
circumstances, identify any safety issues, and encourage relevant safety action. The aim is to
prevent the occurrence of other accidents and incidents, rather than to assign blame or
liability.
The Australian Transport Safety Bureau (ATSB) is an independent Commonwealth
government statutory agency. The Bureau is managed by a Commission and is entirely
separate from transport policy makers, industry operators, and transport regulators such
as the (AMSA).
The ATSB's function is to maintain and improve safety and public confidence in the
marine, aviation and rail modes of transport through excellence in:
• independent investigation of transport accidents and other safety occurrences
• safety data recording, analysis and research
• fostering safety awareness, knowledge and action.

Other maritime nations have similar arrangements.

8. Outline the master's responsibilities for reporting accidents/serious incidents to

AMSA.
Reporting accidents and incidents
The master of a ship, operator, agent, or pilot of a ship, must report all accidents and serious
incidents to AMSA as per the below table (set out by AMSA). Penalties exist for non-
compliance.
Reported
What’s required Which law applies
by
The owner or master of an applicable vessel Sections 185 and 186 of
Owner,
must report certain marine incidents to the Navigation Act
master
AMSA. 2012 (Navigation Act)
The owner or master of a domestic
commercial vessel must report certain marine
incidents to AMSA. Sections 88 and 89 of the Marine
Note that if you comply with reporting Owner, Safety (Domestic Commercial
obligations arising under the Navigation Act master Vessel) National Law Act 2012,
it will also in most cases—if not all—comply Schedule 1 (National Law)
with similar obligations under the national
law.
Vessel operators of prescribed ships or
Section 107 of the Occupational
units—for example Australian ships, offshore
Vessel Health and Safety (Maritime
industry units—on international or interstate
operator Industry) Act 1993 (OHS(MI)
voyages must report incidents and dangerous
Act)
occurrences to AMSA.
Responsible for safety of passengers/crew/cargo/ship/environment
Subject to international conventions & laws of flag state, port state & potential state of
citizenship
Front line decision maker
Owner's/operator's front line representative & (in certain circumstances) their agent
Expectations from owner, charterer, operator, crew, pilots, other parties.

1. Submit an incident alert (Form 18) - As soon as reasonably practicable after becoming
aware of the incident.
2. Submit an incident report (Form 19) - Within 72 hours after becoming aware of the
incident.
9. How does an IMO convention become enforceable in Australia?
Ans:
The convention has to be passed into national legislation before any government enforces a
convention. For example, when the AMSA (Australia's national maritime regulator) holds up
a ship for contravention of SOLAS requirements, it is not enforcing SOLAS. It is enforcing
the Navigation Act 2012 and the Marine Orders which are the Australian laws which contains
the terms of SOLAS. This applies to all other national enforcement of international
conventions.

10. Describe the process that is likely to be followed before a convention can be
amended by the IMO.

Ans: Amendments may proposed by a Contracting Government and circulated before

consideration at the IMO. Originally amendments to conventions were then adopted if there
was a two-thirds majority vote by Contracting Governments present and voting.
These days most amendments occur through the tacit acceptance procedure. Instead of
requiring acceptance by a specified number of states before changes can be made, an
amendment will enter into force on a specified date unless objections are received from an
agreed number of Parties.

11. 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?
Ans:

(MARPOL) is the main international convention concerning prevention of pollution of the

marine environment by ships. It encompasses both operational and accidental pollution.
Further developments have taken place so that MARPOL today comprises six Annexes:
Annex I - Regulations for the Prevention of Pollution by Oil
Annex II - Regulations for the Control of Pollution by Noxious Liquid Substances in Bulk
Annex III - Prevention of Pollution by Harmful Substances Carried by Sea in Packaged
Form
Annex IV - Prevention of Pollution by Sewage from Ships
Annex V - Prevention of Pollution by Garbage from Ships
Annex VI - Prevention of Air Pollution from Ships

All ships engaged on international voyages (except very small ones) must carry on
board valid international certificates which indicate that the ship complies with the
requirements of MARPOL.
12. List and define the various terminology used in UNCLOS.
ANS: All vessels masters need to be aware that their rights and obligations, and the laws they
must comply with, vary as their ship moves around the globe. The zones through which a
ship passes, and the associated obligations, are defined by The United Nations Convention on
the Law of the Sea (UNCLOS).The United Nations Convention on the Law of the Sea
UNCLOS seeks to establish "a legal order for the seas and oceans which will facilitate
international communication, and will promote the peaceful uses of the seas and oceans, the
equitable and efficient utilization of their resources, the conservation of their living resources,
and the study, protection and preservation of the marine environment".

Internal waters:Are all those enclosed within the baseline.They are part of a state’s national
waters 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 seas: Can generally extend from the baseline up to 12 miles to seaward.
Territorial seas 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.
Innocent Passage: Passage may be taken to mean traversing a territorial sea area without
entering internal waters. It may include drifting and anchoring in circumstances such as 'acts
of god' and distress. It does not include fishing etc. Passage may be considered innocent
when it does not involve acts prejudicial to the relevant coast state.
A contiguous zone: May be claimed for a further 12 miles beyond the limits of the territorial
sea. Within this zone the coastal state may detain vessels which they have reasonable grounds
to suspect are about to breach customs, immigration or health regulations. This includes
suspected smugglers and ships carrying noxious or dangerous substances/waste. It may be
thought of as a buffer zone to protect territorial seas. Australia has claimed a contiguous zone
extending up to 24 miles from the baseline.
An exclusive economic zone (non-geological) May also be claimed to extend up to 200
miles from the baseline. Within the EEZ the coastal state has natural resource exploitation
rights and duties. 500 metre safety zones may be set up around offshore installations etc.
The continental shelf of a state: Is a geological feature that is considered legally able to
extend to a maximum of 350 miles (with some further requirements). The coastal state has
exclusive rights to the mineral resources within the continental shelf.
Archipelagic waters: A state made up of an archipelago of islands may draw straight
baselines joining the outermost points of the islands, subject to certain requirements, making
water between the islands Internal Waters. However, in order to facilitate trade, all states
enjoy a right of innocent passage through these waters subject to the state's right to designate
'sea lanes' giving them status similar to that of territorial seas.
High seas: Areas of the seas falling outside all the above categories are known as high
seas. Freedom of the high seas extends to all states and includes freedom of navigation and
freedom to fish and carry out scientific research. As elsewhere, there is a duty to render
assistance to those in distress on the high seas.
Freedom of the high seas does not extend to trade in slaves or drugs, piracy, seizure of ships
or unauthorized broadcasting. Enforcement of UNCLOS provisions in these areas is granted
by the rights of visit, seizure, arrest and hot pursuit.
Legal action against a ship or individual on the high seas can generally be brought on the
authority of the flag state or the state of the individual’s nationality.