Modern Maritime Law, Volume 1: Jurisdiction and Risks

425 Pages·2014·1.41 MB·English

by  Aleka Mandaraka-Sheppard

MODERN
MARITIME LAW
THIRD EDITION
VOLUME 1: JURISDICTION AND RISKS
Aleka Mandaraka-Sheppard
MARITIME AND TRANSPORT LAW LIBRARY
Modern Maritime Law: Volume 1: Risk and Liability in Air Law
Jurisdiction and Risks by George Leloudas
third edition (2009)
by Aleka Mandaraka-Sheppard
The Evolving Law and Practice of
(2013)
Voyage Charters
Modern Maritime Law: Volume 2: edited by D. Rhidian Thomas
Managing Risks and Liabilities (2009)
third edition
by Aleka Mandaraka-Sheppard The International Law of the Shipmaster
(2013) by John A. C. Cartner, Richard P. Fiske
and Tara L. Leiter
Carriage of Goods by Sea Land and Air: Uni-Modal (2009)
and Multi-Modal Transport inthe 21st Century
edited by Baris Soyer and Andrew Tettenborn The Modern Law of Marine Insurance
(2013) edited by D. Rhidian Thomas
(2009)
Freight Forwarding and Multimodal Transport
Contracts The Rotterdam Rules: A Practical Annotation
second edition by Yvonne Baatz, Charles Debattista,
by David A. Glass Filippo Lorenzon, Andrew Serdy,
(2012) Hilton Staniland and Michael Tsimplis
(2009)
The Law of Yachts and Yachting
by Filippo Lorenzon and Richard Coles Contracts of Carriage by Land and Air
(2012) second edition
by Malcolm Clarke and David Yates
Marine Insurance Clauses (2008)
fifth edition
by N. Geoffrey Hudson, Tim Madge Legal Issues Relating to Time Charterparties
and Keith Sturges edited by D. Rhidian Thomas
(2012) (2008)
Pollution at Sea: Law and Liability Bills of Lading and Bankers’
edited by Baris Soyer and Andrew Tettenborn Documentary Credits
(2012) fourth edition
by Paul Todd
Contracts of Carriage by Air (2007)
second edition
by Malcolm Clarke Liability Regimes in Contemporary Maritime Law
(2012) edited by D. Rhidian Thomas
(2007)
Place of Refuge: International Law and the
CMI Draft Convention Marine Insurance: The Law in Transition
by Eric Van Hooydonk edited by D. Rhidian Thomas
(2010) (2006)
Maritime Fraud and Piracy Commencement of Laytime
by Paul Todd fourth edition
(2010) edited by D. Rhidian Thomas
(2006)
The Carriage of Goods by Sea under the
Rotterdam Rules General Average: Law and Practice
edited by D. Rhidian Thomas second edition
(2010) by F. D. Rose
(2005)
International Carriage of Goods by Road: CMR
fifth edition War, Terror and Carriage by Sea
by Malcolm Clarke by Keith Michel
(2009) (2004)
M O D E R N
M A R I T I M E L AW
THIRD EDITION
Volume 1: Jurisdiction and Risks
ALEKA MANDARAKA-SHEPPARD
Alan Van Praag – Contributor to
Rule B Attachment under US law
Third edition published 2013
by Informa Law from Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Informa Law from Routledge
711 Third Avenue, New York, NY 10017
Informa Law from Routledge is an imprint of the Taylor & Francis Group, an Informa business
© 2013 Dr Aleka Mandaraka-Sheppard
The right of Dr Aleka Mandaraka-Sheppard to be identified as author of this work
has been asserted by her in accordance with sections 77 and 78 of the Copyright,
Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or utilised
in any form or by any electronic, mechanical, or other means, now known or
hereafter invented, including photocopying and recording, or in any information
storage or retrieval system, without permission in writing from the publishers.
While every effort has been made to ensure that the information contained in this
book is correct, neither the author nor Informa Law can accept any responsibility
for any errors or omissions or for any consequences arising therefrom.
Trademark notice: Product or corporate names may be trademarks or registered
trademarks, and are used only for identification and explanation without
intent to infringe.
First edition published by Cavendish Publishing Limited 2001
Second edition published by Routledge-Cavendish 2007;
reprinted by Informa Law 2009
Published by permission of the Incorporated Council of Law Reporting for
England and Wales, www.iclr.co.uk
Only European Union legislation printed in the paper edition of the
Official Journal of the European Unionis deemed authentic
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Mandaraka-Sheppard, Alexandra, 1949–
[Modern maritime law and risk management]
Modern maritime law / Aleka Mandaraka-Sheppard, Alan van Praag
contributor to Rule B attachment under US Law. – Third edition.
pages cm. – (Maritime and Transport Law Library)
Revision of the author’s Modern maritime law and risk management.
Includes bibliographical references.
1. Admiralty–Great Britain. 2. Risk management–Great Britain. I. Title.
KD1833.M36 2013
343.4109′6–dc23
2013011843
ISBN: 978–0–415–83516–9 hbk
ISBN: 978–0–415–84320–1 set
EISBN: 978–1–31588–705–0 ebk
Typeset in Plantin
by Florence Production Ltd, Stoodleigh, Devon
Knowing the law is the beginning of a battle;
knowing how to apply it is winning the battle;
and knowing how to practise risk management
is winning the war.
To my son Emmanuel-John Sheppard and to the young
generation of shipping law and practice
This unique title examines in depth issues of jurisdiction, maritime law and practice
from a modern perspective and highlights the importance of risk management with
a view to avoiding pitfalls in litigation or arbitration and minimising exposure to
liabilities.
The third edition has been fully revised and restructured into two self-contained
volumes, the first covering jurisdictional issues and risks and the second exploring
the diverse aspects of maritime law, risks and liabilities. The book continues to provide
succinct analysis of the key principles and precedents of maritime law, a detailed
account of important decisions, and incorporates developments in regulation, Codes
of good practice and international Conventions.
This first volume tackles a wealth of complex jurisdictional aspects, ranging from
the enforcement of maritime claims to a detailed analysis of the conditions of arrest
of ships, including reconsideration of wrongful arrest, beneficial ownership, forum non-
convenience and limitations upon the jurisdiction of the English courts.
Key features of Volume One:
• expert analysis of the very latest case law, including noteworthy cases in
international jurisdictions.
Highlights important recent changes and developments in:
• piercing the corporate veil – State immunity;
• conflict of laws and jurisdictions;
• stay of proceedings for breach of jurisdiction or arbitration agreements;
• issues arising from tiered dispute resolution clauses;
• anti-suit injunctions;
• the EU jurisdiction scheme and the Review of the Brussels I Regulation.
New Chapter on Freezing Injunctions as compared with the US Rule B Attachment.
This book serves as an invaluable reference for lawyers, academics, and a host of
shipping and risk management professionals worldwide.
FOREWORD TO
THE FIRST EDITION
The Rt Hon. The Lord Mustill
of Pateley Bridge
Anyone with knowledge of the boundless enthusiasm and apparently inexhaustible
energy displayed by Dr Aleka Mandaraka-Sheppard in the conception and evolution
of the London Shipping Law Centre is unlikely to be surprised at her successful
achievement of another daunting goal, namely to publish a new and comprehensive
work on shipping law.
There is of course nothing radical in itself about the idea of a modern work in this
field. As the author rightly acknowledges, several valuable works on individual aspects
of the general topic have been published in recent years, but there has long been the
need for a comprehensive work from which both the student (at various levels) and
the practitioner can gain a general perspective as well as concrete and detailed
information. Perhaps the late Professor Cadwallader, to whom the author pays
tribute, could if spared have tackled the task, but his former student has produced a
volume of which he would have been proud, the more so given the striking expansion
in volume of the law relating to ships and the sea that has occurred since his day.
Even a glance at the table of contents will show the extent of the author’s grasp of
contemporary legal issues, and the thoroughness with which they have been explored.
In addition to the general merits of this book, there is one particular theme that
calls for particular mention. That is, the emphasis laid on risk management. In recent
years this has become a commonplace of business law and practice in many areas,
but with a few notable exceptions it has been an absentee from study and practice in
the maritime world. Fortunately this is now changing, and Dr Mandaraka-Sheppard’s
focus on the subject will, it may be hoped, stimulate interest and promote a wider
appreciation of its cardinal importance.
Shelves now groan under the weight of legal textbooks, and inches of shelf-room
are at a discount, but place must be made for Modern Maritime Law, whose dimensions
belie its approachability while evidencing its scope. This is a book for the library, the
study and the office. I welcome it, and am sure that readers will do the same.
M.J. Mustill
June 2001
vii
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FOREWORD TO
THE SECOND EDITION
The Rt Hon. The Lord Clarke of
Stone-cum-Ebony
This is by any standards a magnum opus. Seven years have passed since Michael
Mustill wrote the foreword to the first edition of Modern Maritime Law. He paid tribute
to the boundless enthusiasm and apparently inexhaustible energy displayed by Dr
Aleka Mandaraka-Sheppard in the preparation of the first edition.
Both the enthusiasm and the energy are evident again in the preparation of the
second edition. I cannot pretend that I have read every word of its 1,000 pages. It
would have been impossible to do so in the time available. However, those parts that
I have been able to absorb have persuaded me, and I am sure will persuade students
and practitioners in maritime law in the future, that this is a vital work for everyone
interested in shipping law to have on their shelves. It has a breathtaking range. Try
as I might, I have not been able to think of anything like it. Having spent some five
years as the Admiralty judge and having before that practised for many years at the
Admiralty and Commercial Bar, I am delighted that Aleka has had the time and energy
to produce a second edition of her great work.
Like Michael Mustill, I am particularly struck by her focus on risk management,
especially in the context of the management of ships and the ISM Code. The
importance of risk management was brought home to me when I had the privilege
of conducting the Thames Safety Inquiry and then the Formal Investigation into the
collision between the Marchioness and the Bowbelle with its consequent loss of life. I
hope that this book will help to underline this aspect of the legal responsibilities of
ship-owners, managers and charterers alike.
Finally, I especially appreciate the section on Admiralty Jurisdiction and Procedure,
because it brings back many happy days in front of the then Admiralty judge, Mr
Justice Brandon, in the 1970s, when the likes of the present Admiralty judge, Mr
Justice David Steel, and I were kept on our mettle by the intellectual rigour of the
judge.
Future practitioners will have the great benefit of Dr Mandaraka-Sheppard’s book
with which to educate future Admiralty judges.
Sir Anthony Clarke
August 2007
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