International Maritime Law for Political Policy- myassignmenthelp

Question: Discuss about theInternational Maritime Law for Political Policy. Answer: As stated by Beckwith (2013) public policy is a unsatisfactory and vague term which subsequently leads to error and uncertainty when they are applied to legal decisions made by the judges[1]. In the case of Richardson v Mellish [1824] it had been stated by Burrough J that it is never known where public policy consideration while making a legal decision would take the decision as it is a very unruly horse and drift the decision far from what can be considered as sound. It was held in the famous case of Egerton v Brownlow [1853] that public policy is often confused with what can be known as political policy. The body of principles which actually in a specific state underpins the legal system is the public policy. The paper presents a critical analysis on the consideration made by courts in relation to policies while making a decision. It would not be wrong to say that courts do not only base their decisions on the doctrine of stare decisis while making a judgment but also on public policies. The decisions of supreme courts are rarely without any controversy. The history of the judicial system has witnessed a significant debate over the appropriate role of courts in a democracy. In theory the judges are made immune from any kind of public opinion consideration when making a judicial decision. However there have been various instances where the evolving values and norms along with the emerging trends of the society has been a part of legal decisions. According to Hollick (2017) the judges may rely on policy considerations while making a decision where it is difficult for them to make decisions based on existing statues or precedents[2]. However such consideration is only done by the courts to a limited extent. In the case of Fender v St John Mildmay[3] it had been ruled by Lord Atkin that in clear cases where detriment to the public is significantly incontestable and where it does not rely on idiosyncratic inferences of specific minds public policies may be invoked. The policy arguments which are significant to the articulation of specific rule whole implementation goes beyond the parties to the case would be accepted by the court. Where such situation arise the courts generally looks to address a few question. These questions include will the decision have a detrimental effect on decision making, will high volume of cases result off of the decision, will the courts be able to handle the high volume of cases and the effect of the decision in relation to the cost of insurance of new risk. Contradicting the view discussed above it has been provided by Shafir (2013) that public policy consideration by the courts should never take place while making a judicial decision as the risk involved in the outcome is significantly high[4]. A policy in addition should never be considered in relation to decision making by isolating it from the actual statue or precedent identified in the case. The doctrine of stare decisis combined with the available legislation and the rules of statutory interpretation are in itself enough for the courts to make a appropriate decision in relation a any case. Moreover public policies are not always public opinion as they are drafted by a few minds who actually represent the society, thus the courts not only do not have any obligation to consider policies while making decision but also it is not appropriate for them to do so given their role in the democracy. However such ridged view cannot be strictly imposed in the modern day society where the courts on several instances have to consider policies in order to reach a correct decision[5]. A distinctive case where a significant role had been played by policy consideration is the case of Hedley Byrne Heller[6]. The question before the House of Lords in this case was deciding the liability which arose from a pure economic loss in the area of tort law. The basic idea in relation to the assumption of responsibility had been introduced by this case. The idea has also been developed in the case of Henderson v Merret Syndicates Ltd[7] and White v Jones[8]. The cases drifted from the traditional view which had been provided by the case of Donoghue v Stevenson[9] as stated that in order to close the flood gates a duty can be owed only within a special relationship. Relying upon such decision in the case of Henderson v Merret it was held that there was a special relationship and in White v Jones it was held that there was no relationship. In the famous case of NYK v Karageorigs[10] it had been argued by the defendant that there has never been a practice in England where the courts have seized the assets of the defendant prior to the judgment or to restrain the defendant from disposing them. The judges in this case provided that it is now time that the practices of the courts should be revised and the assets were attached prior to the judgment as there is a high risk that the debtor may dispose the assets before the decision is made. In the case of Kremikovtzi v Phoenix[11] it had been provided by Nadon J.A that Since I suspect that the issue before us is of some importance to the maritime community and, hence, that leave to appeal to the Supreme Court of Canada might be sought, it will be useful for me to elaborate as to why I believe Paramount was wrongly decided. To make it simple it had been provided by the judge in this case that where a previous case had not been able to consider an appropriate precedent or statutory provision the court may reasonably reverse a precedent where appropriate policy considerations exists. A new rule had been formulated by Lord Rix in the case of Masefield v Amilin[12] which was to be applied in situation where practical done for getting ransom will not automatically constitute an immediate actual loss. The prevailing public policy consideration as well as the historical context in relation to the payment of ransom was explored by the judge. The judge also considered the differences in public interest and moral imperatives where the intention behind the payment of ransom is to protect the life of the crew. In the case of Fionna Trust v Privalov[13] questions were raised against the common policy approach taken by the English courts in relation to the international commercial context. The attempt of the HOL was to establish conformity in practice of arbitration under other jurisdictions and English courts. It had been provided in the case by Longmore LJ that it is now high time to end the rule of existing precedents and make a fresh start. It had been agreed by Lord Hoffman that fresh start is justified by the development in the branch of law and in addition it had been stated by Lord Hope that the approach which the English courts have taken to the wording of arbitration clauses, is risking to isolate the English law from the approach which is taken internationally. It can be concluded by the above discussion that the court not only relies on precedent and statues while making a decision but also on policy considerations but only where a relevant rule has been formulated and a relevant meaning has been provided to a provision. It is also considered appropriate by the courts to take into consideration policies in those cases which have little or no precedent. According to Hunter (2017) it is the role of the judges to discuss and the parliament to identify what approach is best for the common good of the public and to ensure such good through appropriate enactments[14]. Bibliography Chen, Lung-chu. An introduction to contemporary international law: a policy-oriented perspective. Oxford University Press, 2014. Hollick, Ann L. US Foreign Policy and the Law of the Sea. Princeton University Press, 2017. Hunter, Floyd. Community power structure: A study of decision makers. UNC Press Books, 2017. Shafir, Eldar, ed. The behavioral foundations of public policy. Princeton University Press, 2013. Silas Beckwith, An Introduction to the English Legal System, Postgraduate Diploma in Maritime Law , 2013