1.3 Methodology
The present thesis uses the doctrinal legal method, where legal arguments are taken into consideration and weighed against each other.(1) Blume, Retssystemet og juridisk metode, 106. This includes weighing all relevant legal sources, such as the law, international regulation, case law, legal considerations of justice and soft law. Even though no formal hierarchy exists between these legal sources, formalised sources attach a higher degree of legal value.(2) Ibid., 120. Thus, the regulations and case law are given priority over soft law instruments such as maritime companies’ own ship recycling policies.
The thesis will primarily be centred around tort law liability, especially English Tort Law. The reason being that a claim from shipyard workers would be non-contractual towards any other party than that of their immediate employer, i.e. the shipyard.
The reason for especially focusing on English law is first of all that the leading case at the moment (and to be finally decided later) is based upon an English law duty of care. Even where the case is not to be decided under English law, but Bangladeshi law, it is suggested that the duty of care is not materially different between the laws of those two systems.(3)Begum v Maran (UK) Ltd (Rev1) [2021] EWCA Civ 326 paragraph 123. Another example of English law’s prevalence was also found in Okpabi v Shell(4)Okpabi and others v. Royal Dutch Shell Plc and another, [2018] EWCA Civ 191.,which held that the English decision Chandler v Cape(5)Chandler v Cape Plc [2012] EWCA Civ 525. was applicable to the case, which was decided according to Nigerian law. Both of which were about the parent companies’ liability for the conduct of a subsidiary in relation to personal injury and environmental damage respectively.
However, even where international private law points to the law of the land where the harmful event occurred, English law and precedent will still be of relevance. This is because many of the developing countries in which the harmful events are often taking place have developed their legal systems on the same foundations as those of their former colonials.(6) Van Dam, above no. 9, 237. Thus, English law plays a significant role in many maritime disputes in regard to ship recycling, which is often conducted in former English colonies, but also shipping in general, where English law seems to be one of the primary and preferred choices of law. Some scholars even argue that tort law is universal in nature and thus that the choice of law question is less dominating.(7) Ulfbeck, above no 9, sec. 5.2. Secondly, the international nature of shipping(8) Falkanger, Brautaset, and Bull, above no 1, 27. makes it natural to include international law, such as English law.(9) Ibid., 28.