Research Paper on "Case Briefings"

/>

It was being used for bunkering activities and was operating by filling fishing boats and other smaller crafts which worked close to the shore.

At the moment it was discovered and confiscated, The Saiga was out of the Guinea economic zone boundaries and it was located in the Exclusive Economic Zone of Sierra Leone. Also during the taking over, two sailors sustained injuries. The Saiga was later returned to Guinea.

2. Procedures

Notification of Special Agreement: A decree was made by the International Tribunal for the Law of the Sea (ITLOS) to let the ship and its sailors go free. This occurred after the payment of U.S. $400,000 by Saint Vincent and the Grenadines (SVG) and it was confirmed via a credit letter.

Provisional Measures: The captain of the Saiga was imprisoned by a Guinean court with the Guinean Court of Appeal giving a similar verdict. It sentenced the captain to six months imprisonment and also slammed a fine of 15,354,040,000 Guinean francs. It ordered that the fine must come from his personal finances. The Guinean Court of Appeal equally seized all the goods on the ship, which amounted to 4941 metric tons of petroleum and kept the vehicle under custody irrespective of the fine.

Document released by Saint Vincent and the Grenadines: SVG informed the Guinean authorities of its hearing at the ITLOS which follows the United Nations Convention of the Law of the Sea. Later, ITLOS give a decree which restricted the Guinean authorities from making decisions of their own on the owner, crew, clients or the captain of The Saiga.

Counter-Release from the Guinean authorities

Response released by Saint Vincent and the Grenadines.

Rejoinder released by the Guinean authorities.

ITLOS finally ruled for Saint Vincent and ordered the liberation of the ship and its sailors.

3. Issues

Was there an infringement of the border laws when The Saiga was discharging petroleum to boats in the waters of the Exclusive economic zone of Guinea?

Has Guinea contravened the UN Convention, Article 292 by their refusal to immediately release The Saiga and its sailors especially after payment of fine?

4. Holdings

UNCLOS (United Nations Convention on the Law of the Sea) stipulates that a verified connection must exist between the ship and its operating country. It further states that other countries are not permitted to contest the authority of the operating country's control.

A country need not use all its available solutions in filing a court case which doesn't benefit it. A country of operation has total control over everybody, be it foreigners or natives, who operate on its ships. The United Nations Convention on the Law of the Sea often refers to the ship as a group which the captain and crew members are included in.

5. Reasoning/ dissenting

International law allows a country which was harmed in anyway as a result of misdeeds from another country to demand compensation from the other country for the destruction caused. "Reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed."

Differing views were brought forward based on the Merchant Shipping Act of Saint Vincent and the Grenadines in line with the laws of the Convention. It was made clear that, on the day of the incident (28th October 19997), The Saiga wasn't free to bear the flag of SVG as its license has become invalid and it hasn't made appropriate arrangements towards securing another licence from the law enforcement agencies of Saint Vincent and the Grenadines.

CASE 3-4 Shell V. R.W. Sturge Ltd.

1. Facts

The stakeholders of the London's Lloyd's had formally approved a number of selective setting conditions which allowed only the English courts to preside over and settle all forms of legal cases between themselves and the company. When a suit was filed by the stakeholders against the company asking the court to cancel their association because the company has sold securities without obtaining appropriate approvals from its home city of Ohio (this happened immediately after the company was almost bankrupt and ordered the stakeholders to donate towards bringing it out of the red), the court promptly threw out the case based on the aforementioned selective setting conditions. The investors re-filed their case for an appeal.

2. Procedures

The suing party claimed that the defending party infringed on Ohio's securities regulations via its sale of unconfirmed and unobligated securities. They wanted the court to cancel their contracts and remove the added clauses, returning them to their initial statements and they even pledged to donate whatever income acquired to the government.

The defending party stated that the setting/location was inappropriate to preside over the case.

The court went the way of the defence.

The suing party re-filed their case for an appeal.

3. Issues

Choice of Forum Clause (The Forum Selection Clause): The suing party, Shell, enjoined the court to cancel its contracts in accordance with the Ohio securities regulations. The defending party filed a counter-motion aimed at dismissing the case due to the disallowed venue clause under Rule 12(b)3 of the Federal Rules of Civil Procedure as the selective setting conditions the plaintiff signed transferred all rights of hearing to the British courts.

Choice of Law Clauses: The suing party contested by pointing out that the selected setting conditions doesn't allow them enjoy the benefits of the Ohio securities regulation and that the Ohio public laws are of a far greater importance than the selective setting conditions.

4. Holdings

With the results of previous cases playing a part, the court favoured the stance of the defendants and supported the validity of the selective hearing terms as its implications.

It turned down the plaintiff's demands because they had several opportunities under the English regulations to win their case and there was no indication of bias in the English courts.

Due to the nature of this case as it involves countries and also due to the plentiful openings available under British regulations which do not oppose the Ohio securities laws, the suing party weren't able to convince the court.

5. Reasoning/ dissenting

An agreed selective hearing condition involving international bodies must be upheld always except if and only if

• The suing party proves conclusively that upholding these conditions would be irrational

• The condition are rendered useless due to unethical actions

Selective hearing conditions are often upheld mostly due to predictability and orderliness.

CASE 6-7 Libyan Arab Foreign Bank vs. Bankers Trust Company

1. Facts

A freezing order was placed on the funds available to the Bankers Trust Company by the US President, Ronald Reagan. An attempt was made to withdraw money by the Libyan Arab Foreign Bank.

The relevant law covering the account happened to be the English law which was accepted between 1973 and December 1980. However, the law was totally overhauled as at the time when the account in question was created.

The occurrence in which the law guarding a contract could be modified is seen in James Mill & Partners, Ltd. v. Whitworth Street Estates, Ltd.

2. Procedures

The Queen's Bench Division Commercial Court supported the stance of the Libyan Arab Foreign Bank as the Bankers Trust Company has to remit a sum of $292 million to them.… READ MORE