LLM Carriage of Goods by Sea 2015

Takeaway Exam: Techniques of Common Law Legal Writing
For your guidance, I attach below some feedback comments given to students after previous “takeaway”
exam assignments, similar to the one that you will do this year. The aim is to ensure that you avoid
making the same mistakes! Obviously, the comments relate to different assignments (egconcerning floods
or the carriage of cars).

Introduction
The assignment was in two parts which required slightly different techniques of research and writing.
The first part [essentially requiring general advice to be given as to the possible effects of future
floods in the Brisbane river] required you to consider the application to a particular scenario of
certain standard form contracts along with the general law. It needed you to consider potential legal
issues for yourself by looking through the standard forms. The better answers made specific reference
to the numbered clauses in the standard forms, rather than to vague general concepts, and were
imaginative in their approach to the potential problems. Weaker answers tended to make reference to
general discussions in the textbooks, e.g. by discussing the “time lost” case law under the Gencon
charter – even though this wording did not appear in the 1994 form you were supposed to use. This
showed a failure to read the actual contract documents closely. Such answers were almost a general
essay produced as if there were no specific contract form that was used.
The second part of the assignment was a more typical legal problem [similar to the case studies we have
looked at in class], requiring identification of legal issues and the application of them to the given
facts. As is typical, it required students to disentangle the contracts and claims. Most students
managed to do this fairly well. It showed that they had concentrated on the given facts and read the
documents closely. Some weaker answers did not deal with the applicability of the Rules.
With both parts of the assignment there were many possible legal issues and arguments, some more
obscure than others. There were no set answers. I was looking for the ability to see the difficulties
and then to argue the possibilities. I did not expect students to identify, still less cover, all the
possible issues. If there were legitimate uncertainties about the facts, allowance was made, e.g. about
the precise effects of the flood. The better students really tried to think through what the possible
difficulties were.
The better students used headings which differentiated between the two parts of the assignment, and
within each part. In general students were quite good in using case law, although it was clear that
some had not read the cases which they cited.
I indicated in my LLM Legal Writing advice, on Blackboard, what I considered to be the appropriate
writing technique. In essence, this requires stating a proposition of law, giving the case authority in
brackets and then applying or distinguishing the case. One or two students took this too literally,
e.g. by having headings for “proposition”, “authority” and “application”. This system does not work
well, because the approach has to be applied to individual issues not to a collection of issues. The
sub-headings should refer to legal or factual issues (eg “Identity of the carrier” or “Floods and the
Gencon charter”).
Use of case law
Some students produced an answer that discussed the law, but gave no references at all to the source of
that law, e.g. they gave virtually no case references, despite the LLM Legal Writing advice, above.
Concentration on the case as the source of the rule also makes you focus on the material facts of that
case, in order to see if our own is different – so that you can “distinguish” the earlier case by
saying that its rule was not designed for the present circumstances (i.e. the material facts are
different).
[In a discussion about deduction from hire under a time charter] I would not expect to find, instead of
a reference to The Nanfria footnote giving a page of Wilson’s textbook. It is the case that is the
source of law not the commentary on it by a writer (if you were quoting directly from the writer this
could be added in the footnote). Likewise, if you were giving the meaning of “any other cause
preventing the full working…..”, the correct authority to support this should be given (e.g. The
Laconian Confidence), not the page of Wilson.
The problem required you to take existing law (e.g. on the application of the HVR) and to apply it to
the particular problems of a car carrier. This required you to consider the specific facts, e.g. the
relevance of the car ramp or the parking on deck. For the better student, it was necessary to look at
some judgments to see the potential arguments.
Other Issues
Repeating facts. A small number of students wasted space by repeating the facts of the problem, or
summarising them, almost as an introduction – but then did not go on to say how the particular facts
were relevant. There is little point in saying that the shipowner did this and the charterer did that
UNLESS, you directly relate those facts to the legal issues. Quoting from the relevant facts is vital,
however, as it shows you know how to apply the law. E.g. quoting “Cars 3-20 were driven to the bow
parking area of the main car deck which was open to the sea ” is of little use if you merely continue
by saying “ and a large wave crashed over Cars 3-20 causing their windscreens to be broken”, without
explaining what was the legal significance of the wave, or the positioning of the cars.
Reading the facts closely. A number of students were unclear about who the shipper of the cars was.
This was X, but the last part of the question considered rights and liabilities, so it was necessary to
be clear about whether you were talking about X or Y the indorsee, or Z the consignee.
Reading the documents. Some students had not read the specific clauses of the Gencon, or referred to
the specific clauses.
Researching the case law. The Time CP arrest issue required you to look for cases on arrest and hire.
Most students found some good examples, e.g. using the textbooks as a guide, but you could not answer
this point without that further research.
Checking the case law. Some students cited cases in support of propositions where it did not appear
that the case had actually been read – they had taken a summary from the textbook. Proper legal writing
requires you to check the authorities yourself, just to ensure that they do in fact support the
proposition that you cite.
Citing a statute or clause without explanation. E.g. “Cl. 3 of the bill refers to the principal place
of business of the carrier, therefore Australian law applies.” But this missed out the logical
connector “As Brislaw had a principal place of business in Queensland, Australian law was
chosen….”.Apply the law to our facts. Likewise, with “Delay 1”, it was not enough to say that the
charterer was liable for the delay. This may be the right conclusion, but you needed to say WHY, e.g.
by citing the relevant words of the clause and applying that to our facts.”
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