Mary Thien Hoang’s Post

⚖️ Duty to Mitigate or Duty to Act Reasonably? When a person suffers a legal wrong, they are not entitled to sit back, let damage accrue and then recover all the damage in money from the defendant. They must take steps to avoid or mitigate the loss. Donaldson MR’s observation in "Sotiros Shipping Inc v. Sameiet Solholt [1983] 1 Lloyd’s Rep 605 [at 680]" had been prominent for some time: “A plaintiff is under no duty to mitigate his loss, despite the habitual use by lawyers of the phrase ‘duty to mitigate’. He is completely free to act as he judges to be in his best interests”. The requirement of ‘reasonableness’ was added to the said formulation by several subsequent authorities. “Heydon JA explained in Sherson & Associates Pty Ltd v Bailey [2000] NSWCA 275 at [77]”. Therefore, it is argued by Professor JW Carter, in Contract Law in Australia (8th ed, 2023, JW Carter Publishing) at [35-35]: “While it is frequently said that the plaintiff is subject to a ‘duty’ to mitigate, this is apt to mislead; there is no positive duty to mitigate but a ‘duty’ not to act unreasonably”. In the same vein, The High Court of Australia recently held that: “loss which is due to unreasonable or improvident actions of the plaintiff is generally disregarded by application of the rules of mitigation of loss” “Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17 at [120]” #contractlaw

The recent Supreme Court ruling has potentially bolstered the legal powers of freight carriers. In a landmark decision, the Court ruled in favor of carriers, affirming their right to enforce arbitration agreements under the Federal Arbitration Act. This could significantly impact how disputes are resolved in the freight industry, shifting many legal battles away from courtrooms and into arbitration, a process generally seen as faster and less costly. For freight carriers, this decision is a win, providing them with a stronger legal framework to handle disputes. However, for employees and smaller businesses, this could mean a tougher battle when disagreements arise, as arbitration often limits the scope of legal recourse available. The long-term effects of this ruling will unfold as the industry adapts to this new legal landscape. Read the full article at https://lnkd.in/eP-jHwk2

👉 TDM #Maritime #Law #Arbitration: Procedural and Substantive Issues - free excerpt https://lnkd.in/gCPkA58

Reps push for new law to curb illegality in maritime sector #houseofreps #maritime #law #businessday https://lnkd.in/dgHSUNdP

In recent weeks the U.S. Supreme Court has fundamentally changed the ways that laws are interpreted and enforced by federal agencies. These decisions will have far-reaching impacts on heavily-regulated sectors, such as the U.S. maritime industry, potentially altering the balance of power between stakeholders and federal regulators, writes Jeff Vogel of Cozen O'Connor. #maritime #shipsandshipping #law #legal

English Supreme Court says court can't overturn award on issue of law not put to tribunal. England's highest court gives important guidance on the limits to a s69 challenge (appeal on point of law). In short, the court can't: (i) decide a question of law which the tribunal was not asked to (and did not) determine; and (ii) make new findings of facts. My Herbert Smith Freehills colleagues James Doe, Liz Kantor and Stephanie Lam consider the decision. #arbitration #disputeresolution #awards #ArbitrationAct #law #lawyers #hsf

This case illustrates the complex relationship that can exist between proceedings brought against two different sea carriers arising out of the same event. French Courts addressed the following question: how can judgments issued in one of the proceedings be used in the other proceedings? Read more in our latest blog from Antoine Guillemot. #Reedsmith #Shipping https://lnkd.in/eGmyTttW

Bombay High Court Rules on Gold Smuggling: Dismisses Ownership Claims, Upholds Absolute Confiscation, and Highlights Smuggling Deterrence and Procedural Compliance as Paramount Court’s Decision: The Bombay High Court dismissed the writ petitions filed by the petitioners against the confiscation orders. The court: Upheld the findings of the adjudicating authority, Commissioner (Appeals), and revisional authority under the Customs Act. Found no procedural lapses or violation of natural justice. Concluded that the confiscation of gold bars and the associated penalties were proportionate and necessary to deter smuggling. This decision reinforces the principle that courts should not interfere with well-supported factual findings by lower authorities unless a clear case of perversity or procedural violation is established. Court’s Reasoning: Ownership Claims: The court noted that the invoice was not presented at the time of seizure, undermining its credibility. The lack of payment evidence further weakened the ownership claim. Natural Justice: The authorities provided sufficient opportunities for the petitioners to present their case. The court found no procedural lapses or violations of natural justice. Contradictions: The petitioners provided inconsistent explanations, casting doubt on their credibility. Deterrence: The court endorsed the authorities’ view that strict action was necessary to deter smuggling, especially given the innovative smuggling method used. Proportionality: Considering the organized nature of the offense, the court held that absolute confiscation was proportionate and justified. Conclusion: The High Court dismissed the petitions, holding that: The confiscation was lawful and proportionate. The petitioners failed to establish any procedural lapses or disproportionality in the authorities’ actions. The findings of fact were supported by evidence and did not warrant interference. #BombayHighCourt #GoldSmuggling #CustomsLaw #JudicialDecisions #ProportionalityPrinciple #Deterrence #LegalJudgment #NaturalJustice #ConfiscationOrders #CustomsAct #RuleOfLaw #LegalUpdates

” Docket is a maritime term.A docket can be defined as “a piece of paper accompanying or referring to a package or other delivery, stating contents, delivery instructions, etc, sometimes serving as a receipt.” Why are we using maritime terms in court? According to Living in the Private, administrative courts are vessels in dry-dock. “Every court without a jury is an “administrative court” for legal fiction commerce offering a ‘dispute resolution service for consenting parties’. It conducts commerce in the international Admiralty Maritime Jurisdiction, which is the ‘law of the sea’, and it is a ‘vessel’ in dry-dock. The Admiralty Maritime sea jurisdiction ‘law of the sea’ has invaded the Common Law land jurisdiction ‘law of the land’ entering ports and extending inland via rivers and lakes. Therefore, freight carried by land, water, or air, is ‘shipped’. It is trans’ported’ through ‘loading docks’, sea’ports’ and air’ports’, ‘navigating’ ‘shipping lanes’ and ‘traffic islands’. ” ‘Administrative courts’ reflect their maritime roots in their layout and fittings. The courtroom is divided into two parts by a barrier know as the ‘bar’, resembling a ship’s outer railing. When someone crosses the ‘bar’ they enter the Admiralty Maritime jurisdiction of the court, becoming surety for a ‘vessel’ subject to commercial ‘levies‘ and ‘duties’ (penalties, fees, fines, taxes, charges, and so on). The ‘Judge’ does not sit judicially but as ‘corporate administrative officer’. The accused ‘vessel’ is placed in a ‘dock‘. ” ‘Administrative courts’ are for ‘vessels in commerce’, not for living men and women, unless you consent to ‘act’ as the ‘Master‘ (MR/MRS/MISS) of a ‘registered’ ‘vessel in commerce’ such as JOHN HENRY DOE.

A little late on the annoucement but still excited nonetheless! Thank you for all those who have subscribed and read (and engage) with The Shipping Lawyer newsletter. It's been great to cover all the topics in more depth than a usual LinkedIn post and connect with all those interested in the more nuanced issues of shipping and maritime. Stay tuned next week for an exciting announcement! #TheShippingLawyer