Conflict of Laws and Choice of Law
“Proper law” is the decision as to which territorial law is to govern the contract, defines the obligations of the contractual parties and determines whether the contract is valid and legal. It also determinates the effects and conditions of discharge. Selection of the “proper law” to adjudicate the marine contract is a difficult task in Admiralty Jurisdiction because the issue of whether enforcement of the maritime lien is allowed by international law may turn on interpretaion of the law of the country where the litigation is. So, the question is over the priority of the law where the lien was created (lex loci), as opposed to the law of where the court exercising jurisdiction (lex fori).
The answer is found in the application of a multiplicity of contract analysis process. The court will weight and analyze all related factors between the transaction and the respective legal systems by a case-by-case analysis. The factors may include: (a)the need of the international system; (b)the protection of justified expectation; (c)ease in determination and application of the law to be applied; (d)relevant policies of other interested states; (e)the place of the wrong; (f)the law of flag; (g)the allegiance or domicile of the injured party; (h)the law of forum; (i)the place of the contract; (j)the allegiance of the defendant shipowner and so on. The prefect decision will result from a balance between the relevant factors.
However, the US courts will choose the factors which could be applied to protect the American. If the relevant factors direct to select international law, the case may be dismissed on the grounds of forum non conveniens. If the choice of law is to apply the US law, the court will retain jurisdiction. The reason for this is that Federal Maritime Lien Act is used to protect Americans, not the foreigners.
Read more about this topic: Maritime Lien
Famous quotes containing the words conflict of, conflict, laws, choice and/or law:
“Another danger is imminent: A contested result. And we have no such means for its decision as ought to be provided by law. This must be attended to hereafter.... If a contest comes now it may lead to a conflict of arms. I can only try to do my duty to my countrymen in that case. I shall let no personal ambition turn me from the path of duty. Bloodshed and civil war must be averted if possible. If forced to fight, I have no fears from lack of courage or firmness.”
—Rutherford Birchard Hayes (1822–1893)
“This conflict between the powers of love and chastity ... it ended apparently in the triumph of chastity. Love was suppressed, held in darkness and chains, by fear, conventionality, aversion, or a tremulous yearning to be pure.... But this triumph of chastity was only an apparent, a pyrrhic victory. It would break through the ban of chastity, it would emerge—if in a form so altered as to be unrecognizable.”
—Thomas Mann (1875–1955)
“Among the laws controlling human societies there is one more precise and clearer, it seems to me, than all the others. If men are to remain civilized or to become civilized, the art of association must develop and improve among them at the same speed as equality of conditions spreads.”
—Alexis de Tocqueville (1805–1859)
“Nobody is so constituted as to be able to live everywhere and anywhere; and he who has great duties to perform, which lay claim to all his strength, has, in this respect, a very limited choice. The influence of climate upon the bodily functions ... extends so far, that a blunder in the choice of locality and climate is able not only to alienate a man from his actual duty, but also to withhold it from him altogether, so that he never even comes face to face with it.”
—Friedrich Nietzsche (1844–1900)
“The most absurd apology for authority and law is that they serve to diminish crime. Aside from the fact that the State is itself the greatest criminal, breaking every written and natural law, stealing in the form of taxes, killing in the form of war and capital punishment, it has come to an absolute standstill in coping with crime. It has failed utterly to destroy or even minimize the horrible scourge of its own creation.”
—Emma Goldman (1869–1940)