Critical Analysis of Public Policy Considerations in Maritime Law

This report provides a critical analysis of the role of public policy in international maritime law. It examines how courts consider public policy alongside precedents and statutes when making decisions. The report discusses the evolution of judicial approaches, highlighting key cases such as Richardson v Mellish, Hedley Byrne Heller, and NYK v Karageorigis, which demonstrate the influence of policy considerations in areas like tort law and asset seizure. The analysis explores the debates surrounding the use of public policy, contrasting views on its necessity and potential risks. It also covers the importance of policy in cases with limited precedents, such as Masefield v Amilin and Fionna Trust v Privalov, and the efforts to align English law with international practices. The report concludes that courts judiciously incorporate policy considerations, especially where relevant rules are formulated and where there are few or no precedents.

Running head: INTERNATIONAL MARITIME LAW
International Maritime Law
Name of the Student
Name of the University
Author Note

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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
judges1. 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 precedents2.
However such consideration is only done by the courts to a limited extent. In the case of Fender
v St John Mildmay3 it had been ruled by Lord Atkin that in clear cases where detriment to the
1 Silas Beckwith, An Introduction to the English Legal System, Postgraduate Diploma in Maritime Law , 2013
2 Hollick, Ann L. US Foreign Policy and the Law of the Sea. Princeton University Press, 2017.
3 [1938] AC 1

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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 high4. 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 decision5. A
distinctive case where a significant role had been played by policy consideration is the case of
Hedley Byrne Heller6. The question before the House of Lords in this case was deciding the
4 Shafir, Eldar, ed. The behavioral foundations of public policy. Princeton University Press, 2013.
5 Chen, Lung-chu. An introduction to contemporary international law: a policy-oriented perspective. Oxford
University Press, 2014.
6 [1964] AC 465

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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 Ltd7 and White v Jones8. The cases
drifted from the traditional view which had been provided by the case of Donoghue v Stevenson9
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 Karageorigs10 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 Phoenix11 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.
7 1994 UKHL 5
8 1995 UKHL 5
9 1932 AC 522
10 [1975] 3 AII E.R. 282 (C.A.)
11 [2006] FCA

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A new rule had been formulated by Lord Rix in the case of Masefield v Amilin12 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 Privalov13 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
12 [2011] EWCA Civ 24
13 [2007] EWCA Civ 20

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parliament to identify what approach is best for the common good of the public and to ensure
such good through appropriate enactments14.
14 Hunter, Floyd. Community power structure: A study of decision makers. UNC Press Books, 2017.

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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