Posted by: Nandang Sutrisno S.H., M.H., LLM., Ph.D. | 2nd Jul, 2013

BAHAN KULIAH HHI DAN H.PERDAGANGAN INTERNASIONAL

PENGANTAR WTO

Responses

Dalam prinsip National Treatment, setiap negara anggota WTO berkewajiban untuk memberikan perlakuan yang sama terhadap produk sejenis baik yang diproduksinya di dalam negeri maupun yang berasal dari impor negara anggota WTO lainnya.
Untuk masyarakat yang mempunyai kesadaran yang tinggi akan mencintai dan menggunakan produk dalam negeri, ini akan menjadi hal yang sangat positif untuk kemajuan ekonomi dan sosial di dalam negara tersebut. Untuk masyarakat yang kurang bahkan tidak mencintai produk dalam negeri dan masih beranggapan produk luar negeri dengan merk ternama lebih baik dan prioritas utama dalam hidupnya maka akan menimbulkan dampak negatif yang dapat melemahkan produk dalam negeri sendiri berakibat ekonomi tidak berkembang dengan baik karena apresiasi dari masyarakat sendiri kurang. Saya ambilkan contoh negara yang saya cintai dan saya tempati yaitu Indonesia, dimana masyarakatnya tidak semua sadar untuk mencintai dan memakai produk dalam negeri dengan alasan kualitas produk dan gengsi mereka untuk tampil mewah,dan memakai produk Indonesia merupakan hal yang mempangaruhi pamor mereka untuk berpenampilan mewah. Negara atau pemerintah menurut saya harus ikut campur dalam masalah ini demi kemajuan produk-produk buatan Indonesia. Saya pribadi national treatment melemahkan produk Indonesia sendiri karena pola pikir mayoritas masyarakat indonesia sendiri yang kurang mencintai produk dalam negeri.
nama; Elwindhi Febrian
NIM: 10410661
makul: HHI (a)

Dalam kasus Kebijakan Minyak dan Gas RI diprotes WTO sangatlah bertentangan dalam kebijakan produksi dalam negeri hal ini dikarenakan WTO menginginkan agar setiap proyek memiliki komponen peralatan produksi dari luar negeri dan hal ini sangatlah bertentangan dalam memajukan produksi dalam negeri hal ini sesuai dengan Peraturan Menteri nomor 15 Tahun 2013 tentang Penggunaan Produk Dalam Negeri pada Kegiatan Usaha Hulu Migas. Dalam Permen ESDM tersebut, setiap kontraktor, Produsen Dalam Negeri, dan Penyedia Barang dan/atau Jasa yang melakukan pengadaan barang dan/jasa pada kegiatan Usaha Hulu Minyak dan Gas Bumi, wajib menggunakan, memaksimalkan dan memberdayakan barang, jasa serta kemampuan rekayasa dan rancang bangun dalam negeri yang memenuhi jumlah, kualitas, waktu penyerahan dan harga sesuai dengan kententuan dalam pengadaan barang dan/atau jasa.
Diatur juga pelaksanaan pengadaan barang dan/atau jasa wajib menggunakan buku APDN sebagai acuan untuk menetapkan strategi pengadaan serta menetapkan persyaratan dan ketentuan pengadaan.
Padahal aturan ini untuk mendorong industri migas khususnya produksi peralatan dalam negeri menjadi lebih berkembang, dan DMO agar suplai bahan baku mineral di dalam negeri tetap terjamin
WTO selama ini hanya menguntungkan negara maju(amerika,jepang,uni eropa,kanada dan lain lainnya) namun tidak untuk negara berkembang seperti indonesia hal ini karena hanya dibanjiri gugatan oleh WTO yang dalam hal ini indonesia tidak mempunyai kebijakan untuk kebijakan kuota ekspor dan impor oleh WTO semakin membuat negara Indonesia seperti tidak punya kendali lagi untuk mengatur perdagangan dalam negeri. Padahal sebagai negara berdaulat, pemerintah berandil besar menetapkan setiap kebijakan yang mendorong petani maupun pedagang lokal yang artinya masyarakat indonesia sudah dicekoki produksi-produksi luar negeri dan perlu diketahui indonesia sangatlah tidak beruntung masuk sebagai anggota WTO
alangkah baiknya indonesia keluar sebagai anggota WTO hal ini sangat menguntungkan dan melindungi pruduksi dalam negeri

nama: wiku yulianto
NIM: 10410495
mata kuliah: Hukum dan Hubungan internasional

Eksistensi dan Tujuan Hukum Perdagangan Internasional), terungkap beberapa tujuan. Bidang hukum perdagangan internasional ini yang terdengar sangat positif, yaitu antara lain,
Mensejahterakan negara-negara (dan warga negaranya). Yang ditekankan disini adalah bahwa untuk mencapai tujuan positif tersebut mau tidak mau harus dibarengi dengan pemahaman terhadap hukum perdagangan itu sendiri. Artinya, masyarakat atau negara yang tidak mengetahui aturan-aturan hukum perdagangan internasional janganlah berharap dapat mengambil manfaat dari hukum perdagangan internasional.
upaya-upaya pengaturan perdagangan internasional sedikit banyak bergantung pada peran organisasi internasional baik yang sifatnya antarnegara, misalnya WTO, maupun yang sifatnya privat, misalnya Kamar Dagang Internasional (International Chamber of Commerce).
Upaya organisasi internasional hingga dewasa ini lebih banyak pada upaya harmonisasi hukum dari pada upaya unifikasi hukum. Upaya ini tampaknya wajar dilakukan mengingat perkembangan hukum perdagangan internasional yang cukup progresif. Upaya mengkristalisasi aturan hokum perdagangan internasional dalam Suatu dokumen perjanjian internasional yang sifatnya stabil dan berlaku lama tampaknya sangat sulit. Tujuan akhir dari hukum perdagangan internasional sebenarnya adalah tujuan dari eksistensi hukum perdagangan internasional itu sendiri. Dari pernyataan saya tersebut, saya ingin bertanya kepada Bapak Nandang, bahwa bagaimanakah pengaturan atau dasar hukum dari kebijakan impor secara yuridis? Bagaimana pemecahan masalahnya jika suatu negara ingin meminimalisir hortikultura impor atau barang impor demi kesejahteraan negaranya tersebut dengan mencintai produk dalam negeri? Bagaimana kebijakan dalam WTO dalam menangani masalah tersebut?
Nama: Ya'qud Ratih Sekar
NIM: 11410635
Matkul: HHI (kls A)

Eksistensi dan Tujuan Hukum Perdagangan Internasional), terungkap beberapa tujuan. Bidang hukum perdagangan internasional ini yang terdengar sangat positif, yaitu antara lain,
Mensejahterakan negara-negara (dan warga negaranya). Yang ditekankan disini adalah bahwa untuk mencapai tujuan positif tersebut mau tidak mau harus dibarengi dengan pemahaman terhadap hukum perdagangan itu sendiri. Artinya, masyarakat atau negara yang tidak mengetahui aturan-aturan hukum perdagangan internasional janganlah berharap dapat mengambil manfaat dari hukum perdagangan internasional.
upaya-upaya pengaturan perdagangan internasional sedikit banyak bergantung pada peran organisasi internasional baik yang sifatnya antarnegara, misalnya WTO, maupun yang sifatnya privat, misalnya Kamar Dagang Internasional (International Chamber of Commerce).
Tujuan akhir dari hukum perdagangan internasional sebenarnya adalah tujuan dari eksistensi hukum perdagangan internasional itu sendiri. Dari pernyataan saya tersebut, saya ingin bertanya kepada Bapak Nandang, bahwa bagaimanakah pengaturan atau dasar hukum dari kebijakan impor secara yuridis? Bagaimana pemecahan masalahnya jika suatu negara ingin meminimalisir hortikultura impor atau barang impor demi kesejahteraan negaranya tersebut dengan mencintai produk dalam negeri? Bagaimana kebijakan dalam WTO dalam menangani masalah tersebut?
Nama: Ya'qud Ratih Sekar
NIM: 11410635
Matkul: HHI (kls A)

Untuk Elwindhi febrian:
Intervensi pemerintah tidak bisa dalam bentuk larangan impor produk asing karena melanggar prinsip protection through tariff, dll. Bisa dilakukan melalui:
1. Kampanye untuk membeli produk dalam negeri (Indonesia);
2. Meningkatkan daya saing produk dalam negeri melalui berbagai cara, misalnya dengan training, magang, kerjasama bisnis dengan mitra asing, dll.
3. Menggunakan instrumen hukum remedi perdagangan yang tidak bertentangan dengan peraturan WTO.

Untuk wiku yulianto:
1. Memang seperti itulah ketika Indonesia menjadi anggota WTO, maka konsekuensinya setiap tindakan, kebijakan dan peraturan atau hukum Indonesia harus konsisten dengan ketentuan WTO. Mengharuskan pemakaian produk dalam negeri tidak sesuai dengan prinsip proteksi melalui tarif, National Treatment, dan TRIMs.
2. Dalam WTO ada larangan restriksi kuantitatif, sehingga benar konsekuensinya Indonesia sulit melakukakan kontrol. Yang bisa dilakukan adalah mendayagunakan mekanisme remedi perdagangan atau safeguard, antidumping dan antisubsidi.
3. Indonesia keluar dari WTO, bukan solusi yang baik untuk saat ini.

Untuk Ya’qud Ratih Sekar:
1.Pengaturan atau dasar hukum dari kebijakan impor diatur sendiri oleh negaranya masing-masing, tetapi tidak boleh bertentangan dengan peraturan WTO.
2. Untuk meminimalisir hortikultura impor atau barang impor demi kesejahteraan negara, Indonesia bisa menerapkan kenaikan tarif bea masuk, dan mengkampanyekan untuk mencintai produk dalam negeri, tetapi tidak boleh melarang atau membatasi kuota.
3. Indonesia bisa menciptakan kebijakan dan pengaturan yang kreatif tetapi tidak melanggar peraturan WTO.

Berbicara mengenai perdagangan internasional dan WTO baik secara materil maupun prosedural, yang terbesit dalam pikiran saya adalah problematika umum dalam pelaksanaan perdagangan bebas. Dimana kita hidup di Indonesia yang didalamya terdapat nafas-nafas ekonom tradisional dan disisi lain Indonesia juga merupakan anggota dari WTO. Tidak perlu membuka mata lebar untuk melihat kepincangan situasi pasar dan ekonomi negeri ini. Sederhana saja pak, berangkat dari realitas ini, apakah Kata “bebas” yang menggandeng kata perdagangan itu bermakna sebebas-bebasnya atau ada keterbatasanya? Bagaimana argumentasi bapak, mengenai implikasi perdagangan bebas ini terhadap nilai mutually benefited, independensi pengambilan kebijakan dalam bidang perekonomian, nilai kreatifitas, produktifitas dan inovasi untuk industri dalam negeri? Kemudian, dalam penyelesaian sengketa keputusan dispute settlement body/DSB, ketika pelanggaran aturan WTO dilakukan oleh negara anggotanya yang tidak konsisten maka konsekuensinya negara tersebut harus segera mengoreksi kesalahannya dengan melakukan harmonisasi peraturan dengan aturan WTO. Apabila masih melanggar aturan WTO, maka harus membayar kompensasi atau dikenai “retaliasi”. Nah bagaimana ketentuan pelaksanaan mengenai retaliasi tersebut? Apabila terdapat sengketa perdagangan antara negara anggota WTO dengan negara non-anggota WTO, begaimanakah ketentuan tentang pelaksanaan retaliasi tersebut? Demikian tanggapan dari saya, atas ketersediaan Bapak dalam membagi ilmu saya ucapkan terimakasih.
IFFATUL IZZAH (11410382)
HHI (KELAS: A)

Salah satu prinsip dasar yang diterapkan WTO adalah, Perlakuan Nasional (National Treatment). Dengan kata lain bahwa suatu negara tidak diperkenankan begitu saja memperlakukan secara diskriminasi atau mendiskriminasi antara produk impor dengan produk dalam negeri (produk yang sama). Yang terjadi di negara-negara berkembang termasuk Indonesia, masih banyak barang-barang impor produksi asing yang beredar dipasar-pasar ekonomi lokal, padahal sudah ada aturan mengenai pembatasan impor yang diperbolehkan WTO. Banjirnya komoditas produksi asing dalam pasar lokal akan membuat pelaku ekonomi lokal terpukul dengan penurunan harga dan trend konsumsi pasar yang akan membuat permintaan produk lokal menurun bahkan mati di dalam pasar negeri. Apalagi negara-negara berkembang merupakan pasar yang harus mengkonsumsi produk-produk asing buatan negara-negara maju yang mengalami overproduction, sehingga pasar domestik akan terus dipaksa membeli komoditas asing. Di satu sisi juga, WTO juga tidak melarang negara-negara untuk membeli produk asing. Lalu dengan adanya hal seperti itu, apa yang seharusnya dilakukan untuk memberikan perlindungan terhadap kepentingan nasional terutama bagi Negara-Negara berkembang seperti Indonesia?

Nama : Marina Pravitasari
NIM : 11410104

Kondisi perekonomian dunia sebenarnya fleksibel. Banyak permasalahan global yang melibatkan antar negara. Mengenai perjanjian-perjanjian dagang maupun kesepakatan dalam organisasi internasional sebenarnya mampu mengatasi permasalahan krisis ekonomi. Namun dengan berkembangnya zaman banyak problem yang meningkat. Sayangnya negara-negara maju berdiri dengan tujuan terselubung untuk bangsanya sendiri. Kerjasama hanya formalitas. Sehingga negara-negara berkembang harus pintar-pintar dalam mengatasinya agar tidak semakin tertingggal.

CHAPTER 15

In international sales, because of the long periods during which the cargo is in transit and the location of the seller and the buyer in different countries, problems arise when it comes to payment, since a simultaneous exchange of goods to the buyer (importer) with one hand, and take money from the buyer with the other. Ideally, the exporter would prefer to be paid for the goods as soon as they are put on board the ship. Financially, it is best if capital tied in the goods is released at the earliest opportunity, so that uncertainty about whether payment will be received on arrival at the destination is removed.
Payment can be effected in a number of ways. The degree of risk, be it from the seller’s perspective or the buyer’s, is dependent on the mode of payment. Which method is used is guided by factors such as the bargaining strengths of the parties to the sale contract, the economic climate in the importing and exporting countries, the political stability of the countries affecting the sale transaction, and the degree of trust and confidence of each party in the other. Payment may be affected by:
A. Open Account;
B. Bill of exchange;
C. Documentary;
D. Letter of credit (also known as credit).

A. Open Account.
Parties to a sale contract may agree to payment by cash on order. This type of arrangement exposes the buyer to maximum risk, since he parts with the cash before delivery. The parties may agree to payment on sight of documents. On presentation of documents, the buyer remits money to the buyer, using telegraphic transfer or mail transfer.
Where the exporter is unsure about the financial health of the importer, he could arrange for the payment in cash against document, or on delivery. This way, he protects himself from the financial disasters of the importer. In rail and road transport, it is collecting cash on delivery (COD) of goods at destination. Cash on delivery can also be used where the buyer collects goods from the seller’s premises, as in ‘ex works’ contracts.
B. Bills of exchange
A negotiable instrument, which evidences an obligation to pay money by one party to another, has the following characteristics. First, it is transferable by delivery and with the transfer, rights embodied in transferred, such that the transferee can enforce them in his own name. Secondly, where the transferee takes it good faith and for value, he takes it free of any defects of title of the transferor.
The bill of exchange is an autonomous contract and is not affected by breach in the underlying contract that resulted in the creation of a bill of exchange. Because of these characteristic, bills of exchange are treated as cash.
C. Documentary Bill
The parties may agree to effect payment through documentary bills. Here, the seller (drawer) draws a bill of exchange on the buyer (drawee) and attaches this to the bill of lading. The advantage for the seller is that on acceptance of the bill of exchange by the buyer, money can be obtained by the seller, before the maturity date of the bill of exchange, by selling it at a discount (discounting) to a bank. As for the buyer, he obtains credit until the bill of exchange’s maturity date. A major disadvantage for the seller, however, with a documentary bill, is that the buyer may not honour the bill of exchange, in which case, the party to whom the seller discounted the bill of exchange would have recourse to him. In the event of dishonor of the bill of exchange by the buyer, the property remains with the seller and the buyer is required to return the bill of lading to the seller according to s 19(3) of the Sale of Goods Act 1979.
D. Letters of credit
Letters of credit (also known as documentary credits or commercial credits) are better alternatives to a documentary bill. Depending on the type of the credits, they offer the seller (beneficiary of a credit arrangement) greater security. Their popularity in international commerce has led judges to describe them as ‘the life blood of international commerce’. Their origins have been traced to various ancient cultures such as that of Rome, Egypt and China.
Under a documentary credit, the buyer (applicant) agrees to pay the seller (beneficiary) using a reliable paymaster-generally, a reputable bank in the seller’s country – who pays against the presentation of stipulated documents that comply with the terms of credit.
The Documentary credit arrangement is advantageous to bot seller and buyer. The seller has he assurance that he will be paid by a bank, a reliable and solvent paymaster in his own country as soon as he presents the stipulated documents to it. If necessary, he will also be able to use the documentary credit arrangement (using special transferable or back-to-back credit) to obtain goods from the manufacturer. Localization of the financial transaction, as in a confirmed letter of credit, will enable the seller to sue the bank in his own country should it, for instance, refuse to honour the credit on presentation of the documents specified in the contract of sale. The buyer can raise funds from the bank on the strength of documents, thus alleviating the need to have sufficient funds to pay the seller.
Fundamental to letters of credit are two characteristic which establish their importance in international commerce. These are:
A. The autonomy of letters of credit
B. The doctrine of strict compliance

Name : Muhammad Yasir Sirodj
NIM : 11410082
Subject : International Trade Law (International Program)
Resume of Chapter 7 : BILLS OF LADING AND COMMON LAW
By Muhammad Yasir Sirodj (11410082)
It is probable that a proportion of bills of lading issued in the UK is likely to be governed by the liability regime of the Hague-Visby Rules, the product of an international convention to redress the imbalance caused by the extended use of, and tolerance towards, exculsion clauses operating in favour of shipowning interest. Common law implies number of obligations on the part of both the shipowner (or carrier) and the shipper. The parties can be lessen the liability imposed by these implied undertakings, or exclude the altogether with the aid of contractual stipulations need to be expressed in clear languange, since lack of clarity will attract the application of the common law implied undertakings to the contract of carriage.
The shipowner is under an implied obligation at common law to:
1. Provide a seaworthy ship.
2. Proceed with due dispatch.
3. Carry the cargo to the agreed destination without deviation.
4. Use due care and skill in navigating the vessel and in carrying the goods.
Seawothiness
Common law places the shipowner under an implied warranty to supply a ship that is fit dor its purposes. The meaning of seaworthiness is a two-fold at one. It refers to both the physycal state of the ship and its fitness for receiving the cargo – that is, cargoworthiness. As for the ship’s physical state, it must be fit for the purpose of the voyage to be undertaken. That is, the ship must be fit in design and structure. The shipowner is free to contract out of the implied undertaking of seaworthiness. The stipulation however needs to be express, clear and ambigous. A clearly worded clause exempting liability for unseaworthiness may therefore be rendered totally or partially ineffective when read in the context of the whole agreement. The court came to the conclusion that though clause 1 excluded seaworthiness in clear languange, the combined effect of clause 2 meant that the shipowner could exclude liability only if he could show that he had taken reasonable measures to provide against unseaworthiness.
Due Dispatch
Common law implies that the voyage must be prosecuted with due dispatch, that is the vessel will proceed on the voyage, load and discharge at the time agreed. In the absence of express agreement or agreement implication, the law implies the performance of the voyage within reasonable time. What is reasonable inffered in relation to what can reasonably be expected from the carrier under the actual circumtances at the time of performance.
Deviation
Under common law, the shipowner is under an implied obligation to carry the cargo to the agreed destination directly without any deviation. The shipowner is presumed to take the direct geographical and safe route to the port of discharge. Where does not take the direct route to the port of destination, evidence may be adduce to show that the route that he took is the normal customary route. the rule that the ship must not deviate is, however, not that strict, and common law does allow the ship to depart from the direct geographical route in the following circumtances:
1. For saving human life
2. For the prosecution of the voyage or the safety of the adventure
Negligence
There is an implied obligation in every contract of affreightment, according to Lord Mcnaghten in the Xantho, that the shipowner will use due care and skill in navigating the vessel and carrying the goods. There is also a duty, according to Willes J in Notara V Handerson, on the part of the master representing the shipowner to take reasonable care of the goods entrusted to him, not merely in doing what is necessary to preserve them on board the ship during the ordinary incidents of the voyage, but alsoin taking reasonable measures to check and arrest their losses, destruction pr deteriation, by reason of accident.
Shipowner Immunities
The shipowner is free to negotiate the terms of sea carriage. It is not unusual for bills of lading not governed by Carriage of Goods by sea act 1971 to include an extensive list of exception clauses in a bill of lading.
Common Law Exceptions
In the absence of express stipulations in the contract of carriage, common law implies the following exclusions:
1. Act of God
2. Act of Queens enemies
3. Inherent vice
Contractual Exceptions
The parties, as stated earlier, under ealier, under English law are free to negotiate the terms of carriage. It is usual to find a long list of exemption clauses that relieve the shipowner of liability, for instance, in the event of negligence of the ship’s crew, collisions, strikes, perils of the sea and strike. Some of them are:
Peril of the sea
The court interpreted perils of the sea reffered as any damage that has been caused by storms, sea water, collision, standing of perils that are peculiar to the sea or to the ship at the swa and which could not have been avoided by the exercise of reasonable care.

Arrest or Restraint of Princes
Is a excluding liability for the loss or damage due to arrest or restraint of princess, rulers and people has been interpreted to apply to a number of situations.
Hostilities or Riots
Is a kind of perils which means relieving the shipowner of liability in the event of damage caused to riots or other commotions.
Strikes
It is a common to find clauses exempting liability in the event of strikes, intrepreted as concerted stoppage of work by men done with a view to improving their wages or conditions.
Latent Defects
Means that a defect that could not be discovered on such an examination that a reasonably skilled man would make.
Fire
Means that protection from losses or damage due to fire under s 186 of the merchant shipping act 1995.
Other Terms in Bills of Lading
Apart from terms considered above, the bill of lading normally contains terms relating to loading, freight, and liens. In the absence of express terms, common law or statute may be relevant in determining the extent of the rights and liabilities of the parties to the contact of carriage.

Civil jurisdiction
Introduction
The jurisdiction of the English courts to entertain civil proceedings is now governed primarily by EC regulation 44/2001 on jurisdiction and the recognition and enforcement of judgment in civil and commercial matters, which is commonly known as the Brussels I regulation. The regulation consist of preamble followed by 76 articles arranged in eight chapters and six annexes. Chapter I defines about the material and scope of the regulation, in chapter II about basic rules on the existence of direct jurisdiction are specified by Arts 2-24. Chapter III provides for the recognition and enforcement in each member state of judgments given by the courts of the member of the states. Chapter IV provides for the enforcement in a member state of authentic instrument drawn up or registered , and court settlement approved in other member state. Chapter V lays down rules for the determination of domicile person for the purpose of the regulation.
The defendants Domicile
The principle connecting factor used by chapter II of regulation 44/2001 is the defendants domicile the institution of the proceedings. Actually the basic rules are subject to the exceptions specified in the remaining provisions chapter II. The rationale of the general rule in favour of the defendant’s domicile was considered in hande TMCS , where the European court explained that the rules reflect the purpose of strengthening the legal protection of persons established within the community, and rest on a assumptions that normally it is in the courts of his domicile that a defendant can most easily conduct his defense.
Submission by appearance
Article 24 of the regulation confers the jurisdiction , additional to that derived form other provisions and court of a member state before which the defendants enters an appearance without contesting its jurisdiction , unless another court has exclusive jurisdiction by virtue of subject under art 22. This applies regardless of the domiciles of the parties, and even if the parties had previously concluded an agreement designating some other court as exclusively competent in accordance with Art 23.
Ordinary contract
For present purpose ordinary contract refers to any contract other than those excluded from or subjected to special rules by the regulation (contracts relating to matrimonial property or succession on death; insurance , consumer and employment contracts and tenancies of land. Article 5(1) of the regulation confers jurisdiction on the English courts, in matters relating to an ordinary contract, where the defendants is domiciled in another member state and the place of the performance obligation in question in England.

Tort claims
By article 5(3) of the regulation , the English courts have jurisdiction to entertain an action in tort against a defendant domiciled in another member state if the harmful event occurred or may occur in England. But it is not enough that the claimant suffered in England loss consequential on an initial injury sustained else where ( whether by the claimant himself or by an associated person, such as a sister company). It is now clear that art(5)3 extends beyond tort, to cover other liabilities which are not contractual matters within the scope of art 5(1), such as restitutionary obligation which are unconnected with any contract, or which arise from invalidity of a contract and claims arising. Moreover, where a claimant is entitled to frame his claim alternatively in contract and tort , his claim in torts falls within art 5(3).

Ancillary jurisdiction
The regulation recognizes the desirability , in the interests of the sounds administration of justice and of reducing the risk of conflicting judgments, for related disputes to be decided together in a single proceedings. Co-defendants is a person domiciled in a member state may be sued (art 6(1)). Third parties is a person domiciled in a member of state may also be sued as the third parties in third part proceedings art 6(2). Counterclaims is a person domiciled in a member state may also be sued art 6(3).
Jurisdiction clause
Article 23 of the regulation authorities parties to existing or potentially disputes to enter into agreement designating the courts or courts which will be competent to determine such disputes. Such agreement are generally referred to as jurisdiction clauses. Article 23 is a complex provision, which regulates both of the formal and essential validity of jurisdiction clauses their effects. In general, it give exclusive effect to a valid jurisdiction clause. Although the wording of art 23 refers only agreement which choose courts of member states, the European court accepted that art 23 give rise to an implied reflex effect which, derogating from the generally mandatory character of chapter II of the regulation, enables a member state to permit its court to decline jurisdiction .
Insurance, Consumer and Employment contract
In order to protect the party who is expected to be economically weaker and less experienced in legal matters than the others party to the contract, chapter II of the regulation lays down special rules on jurisdiction in respect of insurance contract, consumer contract and contact employments. Accordingly these provisions offer the weaker party (the policyholder, consumer or employee) a wide choice of for a in which to sue the stronger party, while limitating those in which the stronger party can sue the weaker party an in many case invalidity contarcs agreement. Moreover, in the case of insurance and consumer contracts , the protectively policy is reinforced by art 35, which prevents the recognition and enforcement of judgments under chapter III where the original court accepted jurisdiction in contravention of the protective provisions.
Simultaneous actions
Chapter II of the regulation frequently gives a plaintiff a choice of member states in which to sue. Hence in order to reduce the risk of irreconcilable judgments being given by the court of different members states, and also to increase co-ordination in the exercise of judicial functions within the community so as to promote litigational economy and avoid waste, sanction 9 (arts 27-30) of chapter II regulates the problem of proceedings simultaneously pending in the court of different member states in respect of similar or related disputes.
Interim relief
Article 31 of the regulation enables to applications to be made the court of a member state for such provisional, including protective, measures as may be available under the law of that state, even if under the regulation the courts of another member state have jurisdiction as to the substance of the matter. This provision confers an additional jurisdiction , limited to provisional measures. Article 31 applies whether the substantive has already been commenced or is to be commenced subsequently , and extends to cases where the substantive proceedings are to be conducted before arbitrations.
Conclusion
This chapter has addressed the direct jurisdiction of the English courts in civil and commercial matters and has focused on the Brussels I regulation . the regulation also deals with the recognition and enforcement of judgments, and this aspect consider in chapter 18. Meanwhile, chapter 17 focus on choice of law in respect of contract under the Rome regulation , and in respect of Torts and restituionary obligations under the Rome II regulation

Name: Nabhani Yustisi
ID: 11410386
Subject: International trade law

MARINE INSURANCE

SCOPE AND NATURE OF MARINE INSURANCE CONTRACTS
The law elating to marine insurance is contained in the Marine Insurance Act 1906. A marine insurance is “a contract whereby the insurer undertakes to indemnify the assured, in a manner and to the extent agreed, against marine losses, that is to say, the losses incident to marine adventure”. A marine adventure here is “where any ship, goods, or other movables are exposed to maritime perils”, that is, “perils, consequent on or incidental to the navigation of the sea, that is to say, perils of the sea, fire, war perils, pirates, rovers, thieves, captures, seizures, restraints and detainments of princes and peoples, jettison, barratry, and any other perils, either of the like kind or which may be designed by the policy”.
Obtaining marine insurance cover
The interested party will normally instruct an insurance broker (regarded as the assured’s agent) and provide him with details about the cargo, the voyage, date of shipment, name of vessel and also state other requirements, such as the amount of cover, the kind of cover. The broker will put all this information on a document known as a slip, and take it to the underwriters. Where an underwriter is willing to accept the risk, he will ‘write a line’ on the slip. He may underwrite the entire risk or only part of the risk, in which case he will write the percentage of risk he is willing to underwrite. The first underwriter is usually known as the lead underwriter. The broker will then have to approach other underwriters until the entire risk is covered. Once the entire risk is covered, the insuranced will receive a cover note from the broker. The cover note will be a closed cover where the insured has provided all the details pertaining to the subject matter. Where the information is incomplete, the cover note will be an open cover note and the insured has to provide further details. As for the insurance policy, it is normally issued and signed subsequently. It normally takes time for the policy to be issued and it is uncommon for a seller, in order to ‘facilitate business’, when required to tender documents, as in a CIF contract or in a letter of credit arrangement, to tender cover notes, certificate of insurance or a letter of insurance.
Payment of premium
Premium is payable against the issue of the policy unless the parties have made other arrangements. The insurer normally looks to the broker, even though he is the agent of the assured, for the payment of the premium, and the broker, according to s 53(1), ‘is directly responsible to the insurer for the premium’. The origin of this particular rule is traceable to a time when underwriters preferred to deal with brokers they could trust.
Different kinds of policies
Voyage policy and time policy
A voyage policy is a policy for a particular voyage, in other words, the subject matter is insured for a voyage, for instance from Istanbul to Southampton. While, a time policy is a policy that insures the subject matter for a fixed time, for instance, where the ship, Benedict, is insured for two years, commencing at noon on 16 June 2004. Normally, hulls are insured under time policies. It is also possible to have mixed policy, where the policy covers a particular voyage and runs for a specified period, for instance, where a vessel is insured for a voyage from Singapore to Portsmouth and for 30 years after her arrival at Portsmouth.
Valued policy and unvalued policy
A valued policy is one where the agreed value of the subject matter is specified (s 27(2) of the MIA). The value agreed between the insurer and the assured does not, however, necessarily reflect the actual or real value of goods. The agreed value is in excess of the real value, it would be advisable for the assured to disclose this to the insurer. By contrast, in an unvalued policy, in the absence of express provision, the value of the subject matter is left to be calculated by applying the rules set out in s 16 of the MIA. In an unvalued policy, the profit margin will not be included. As a consequence, unvalued policies are not common use. Merchants prefer valued policies, due to the scope for including the profit margin.
Floating policy and open order
A floating policy is useful where several consignments of cargo are sent over a period and the insurer does not have all the details, such as the names of the vessels on which the consignments are to be shipped and the dates of the shipments at the time of taking out the policy. The names of the ships, dates of shipments, and the values of the shipments will be declared by the assured as and when the goods are shipped. On declaration of the values, the amount of cover available on the floating policy will be reduced by that amount, and when the declared values add up to the original amount, the policy will be run off or written off. The problem of floating policy is that once the amount is exhausted, cover ceases immediately and the assured might suddenly find that some of the cargo is not cover. To minimize inconvenience (for example, continuous monitoring of declarations to ascertain whether the agreed amount is exhausted), the practice emerged of providing cover where a further floating policy was not taken out. This arrangement came to be known as open cover. Open cover is similar to a floating policy, in that the insurer agrees to insure the goods of the assured. The open policy is not a policy; it is simply an arrangement where the insurer undertakes to issue policies, floating or specific, when required by the assured. Open cover is extremely popular in the insurance market, due to its flexibility, and is said to have replaced floating policies.
PRINCIPLES OF MARINE INSURANCE LAW
A contract of utmost good faith
It means that the insurer and the assured are placed under an obligation to disclose information that is likely to affect the judgment of the other.
Insurance interest
It means that the person for whose benefit the insurance policy is affected has or expects to acquire an insurable interest in the property.
Subrogation and double insurance
It means that the insurer settles the assured’s claim, he is subrogated to all the rights and remedies of the assured in relation to the subject matter. The insurer takes the place of the insured, and can exercise any rights and remedies the insured has in respect of the loss for which the insurer has paid out. The origins of the doctrine of subrogation are uncertain. Regardless of its origins, it must be pointed out that subrogation ensures that the insured is not overcompensated (does not make a profit out of his loss, which leads us as a matter of course to double insurance). It is possible that the cargo is insured with two insurers, for example, where the cargo is insured by the shipper as well as the consignee.
Assignment
Assignment of the policy does not follow passing of property as a matter of course but MIA allows assignment of the policy as long as the policy does not expressly forbid assignment.
WARRANTIES ON THE PART OF THE INSURED-IMPLIED AND EXPRESS
Warranties are undertakings on the part of the insured that some particular thing shall or shall not be done, or that some condition will be fulfilled, or that a particular state of affairs does or does not exist and are construed strictly. Where there is a breach of a warranty, the insurer is not liable as from the date of the breach.
Implied warranties (seaworthiness, legality)
The fulfillment of the warranty is a condition precedent to the liability of the insurer. The implied warranty of seaworthiness placed the cargo owner in an onerous position, since he has no way of knowing whether the ship can withstand the perils of the journey, is in a fit state of repair, is manned properly and so on. There is also an implied undertaking that the adventure insured is a legal one. Where the adventure is illegal, the policy will be unenforceable.
Express warranties
Express warranties must be included in, or written on, the policy. However, where they are contained in a document other that the policy, then that document must be incorporated by reference in the policy (s 35(2)). For instance, a warranty that the ship will sail before a certain date.
DEVIATION
It is expected that the vessel will proceed on the voyage on the usual or customary course, or the course specifically designated for the voyage (s 46). Where the vessel deviates from the voyage contemplated, without any lawful excuse, the insured loses cover from the moment of deviation. Deviation is excused by s49(1)(a)-(g):
a. Where authorized by any special term in the policy;
b. Where caused by circumstances beyond the control of the master and his employer;
c. Where reasonably necessary in order to comply with an express or implied warranty;
d. Where reasonably necessary for the safety of the ship or subject matter insured;
e. For the purpose of saving human life, or aiding a ship in distress where human life may be in danger;
f. Where reasonably necessary for the purpose of obtaining medical or surgical aid for any person on board the ship;
g. Where caused by the barratrous conduct of master or crew, if barratry is a per insured against.
LIABILITY OF INSURER
Doctrine of proximate causation
According to s 55(1) of the MIA, ‘the insurer is liable for any loss proximately cause by a peril insured against’ unless the policy provide otherwise. In other words, or should look to the proximate cause and not the remote cause establish the liability of the insured on the policy (causa proxima non remota spectatur).
Types of losses
Total loss
According to s 56(2), a total loss can be an actual total loss or a constructive total loss.
Actual total loss
Under s 57(1), a claim for total loss arises: (a) where the entire subject matter is destroyed; (b) where the subject matter is destroyed to an extent that it ceases to be a thing of the kind insured; (c) where the insured is irretrievably deprived of the subject matter. An obliteration of marks, due to peril insured against which renders the goods unidentifiable, will not give rise to a claim for actual total loss. It will give rise only to a claim for partial total loss (s 56(5)). Where the insurer pays for total loss, he becomes entitled to take over the interest of the assured in whatever may remain of the subject matter (s 79).
Constructive total loss
A constructive total loss covers (according to s 60(1)): (a) where it is reasonable to abandon the subject matter insured, since actual total loss seems to be unavoidable; or (b) where the cost of preserving the subject matter insured from actual total loss is far in excess of the value of the subject matter.
Partial loss
According to s 56(1), a loss that is not a total loss is a partial loss. So, for instance, where 20 crates of a cargo of 100 crates of whisky are lost, there is a partial loss.
INSTITUTE CARGO CLAUSES (A), (B) AND (C)
Institute Cargo Clauses (A)
- ‘All risks’ of loss of or damage to the subject matter insured (Doctrine of proximate causation applies);
- Covers general average and salvage charges;
- Covers assured against such proportion of liability under contract of affreightment ‘both-to-blame collison’ clause;
-
Institute Cargo Clauses (B)
- Loss and damage reasonably attributable to:
• Fire or explosion
• The vessel or craft being standed, grounded, sunk or capsized
• Overturning or derailment of land conveyance
• Collision or contact of the vessel, craft or conveyance with any external object other than water
• Discharge of cargo at port of distress
• Earthquake, volcanic eruption or lightning
Loss or damage to the subject matter caused by:
• General average sacrifice
• Jettison
• Entry sea, lake or river water into vessel, craft, hold, conveyance, container liftvan, or place of storage
(Doctrine of proximate causation applies)
Total loss
• Of any package lost overboard or dropped during loading or unloading from vessel or craft
(Doctrine of proximate causation applies)
- Covers general average and salvage charges
- Covers assured against such proportion of liability under contract of affreightment ‘both-to-blame collison’ clause
Institute Cargo Clauses (C)
- Loss and damage reasonably attributable to:
• Fire or explosion
• The vessel or craft being standed, grounded, sunk or capsized
• Overturning or derailment of land conveyance
• Collision or contact of the vessel, craft or conveyance with any external object other than water
• Discharge of cargo at port of distress
Loss or damage to the subject matter caused by:
• General average sacrifice
• Jettison
(Doctrine of proximate causation applies)
- Covers general average and salvage charges
- Covers assured against such proportion of liability under contract of affreightment ‘both-to-blame collison’ clause

MARINE INSURANCE

SCOPE AND NATURE OF MARINE INSURANCE CONTRACTS
The law relating to marine insurance is contained in the Marine Insurance Act 1906. A marine insurance is “a contract whereby the insurer undertakes to indemnify the assured, in a manner and to the extent agreed, against marine losses, that is to say, the losses incident to marine adventure”. A marine adventure here is “where any ship, goods, or other movables are exposed to maritime perils”, that is, “perils, consequent on or incidental to the navigation of the sea, that is to say, perils of the sea, fire, war perils, pirates, rovers, thieves, captures, seizures, restraints and detainments of princes and peoples, jettison, barratry, and any other perils, either of the like kind or which may be designed by the policy”.
Obtaining marine insurance cover
The interested party will normally instruct an insurance broker (regarded as the assured’s agent) and provide him with details about the cargo, the voyage, date of shipment, name of vessel and also state other requirements, such as the amount of cover, the kind of cover. The broker will put all this information on a document known as a slip, and take it to the underwriters. Where an underwriter is willing to accept the risk, he will ‘write a line’ on the slip. He may underwrite the entire risk or only part of the risk, in which case he will write the percentage of risk he is willing to underwrite. The first underwriter is usually known as the lead underwriter. The broker will then have to approach other underwriters until the entire risk is covered. Once the entire risk is covered, the insuranced will receive a cover note from the broker. The cover note will be a closed cover where the insured has provided all the details pertaining to the subject matter. Where the information is incomplete, the cover note will be an open cover note and the insured has to provide further details. As for the insurance policy, it is normally issued and signed subsequently. It normally takes time for the policy to be issued and it is uncommon for a seller, in order to ‘facilitate business’, when required to tender documents, as in a CIF contract or in a letter of credit arrangement, to tender cover notes, certificate of insurance or a letter of insurance.
Payment of premium
Premium is payable against the issue of the policy unless the parties have made other arrangements. The insurer normally looks to the broker, even though he is the agent of the assured, for the payment of the premium, and the broker, according to s 53(1), ‘is directly responsible to the insurer for the premium’. The origin of this particular rule is traceable to a time when underwriters preferred to deal with brokers they could trust.
Different kinds of policies
Voyage policy and time policy
A voyage policy is a policy for a particular voyage, in other words, the subject matter is insured for a voyage, for instance from Istanbul to Southampton. While, a time policy is a policy that insures the subject matter for a fixed time, for instance, where the ship, Benedict, is insured for two years, commencing at noon on 16 June 2004. Normally, hulls are insured under time policies. It is also possible to have mixed policy, where the policy covers a particular voyage and runs for a specified period, for instance, where a vessel is insured for a voyage from Singapore to Portsmouth and for 30 years after her arrival at Portsmouth.
Valued policy and unvalued policy
A valued policy is one where the agreed value of the subject matter is specified (s 27(2) of the MIA). The value agreed between the insurer and the assured does not, however, necessarily reflect the actual or real value of goods. The agreed value is in excess of the real value, it would be advisable for the assured to disclose this to the insurer. By contrast, in an unvalued policy, in the absence of express provision, the value of the subject matter is left to be calculated by applying the rules set out in s 16 of the MIA. In an unvalued policy, the profit margin will not be included. As a consequence, unvalued policies are not common use. Merchants prefer valued policies, due to the scope for including the profit margin.
Floating policy and open order
A floating policy is useful where several consignments of cargo are sent over a period and the insurer does not have all the details, such as the names of the vessels on which the consignments are to be shipped and the dates of the shipments at the time of taking out the policy. The names of the ships, dates of shipments, and the values of the shipments will be declared by the assured as and when the goods are shipped. On declaration of the values, the amount of cover available on the floating policy will be reduced by that amount, and when the declared values add up to the original amount, the policy will be run off or written off. The problem of floating policy is that once the amount is exhausted, cover ceases immediately and the assured might suddenly find that some of the cargo is not cover. To minimize inconvenience (for example, continuous monitoring of declarations to ascertain whether the agreed amount is exhausted), the practice emerged of providing cover where a further floating policy was not taken out. This arrangement came to be known as open cover. Open cover is similar to a floating policy, in that the insurer agrees to insure the goods of the assured. The open policy is not a policy; it is simply an arrangement where the insurer undertakes to issue policies, floating or specific, when required by the assured. Open cover is extremely popular in the insurance market, due to its flexibility, and is said to have replaced floating policies.
PRINCIPLES OF MARINE INSURANCE LAW
A contract of utmost good faith
It means that the insurer and the assured are placed under an obligation to disclose information that is likely to affect the judgment of the other.
Insurance interest
It means that the person for whose benefit the insurance policy is affected has or expects to acquire an insurable interest in the property.
Subrogation and double insurance
It means that the insurer settles the assured’s claim, he is subrogated to all the rights and remedies of the assured in relation to the subject matter. The insurer takes the place of the insured, and can exercise any rights and remedies the insured has in respect of the loss for which the insurer has paid out. The origins of the doctrine of subrogation are uncertain. Regardless of its origins, it must be pointed out that subrogation ensures that the insured is not overcompensated (does not make a profit out of his loss, which leads us as a matter of course to double insurance). It is possible that the cargo is insured with two insurers, for example, where the cargo is insured by the shipper as well as the consignee.
Assignment
Assignment of the policy does not follow passing of property as a matter of course but MIA allows assignment of the policy as long as the policy does not expressly forbid assignment.
WARRANTIES ON THE PART OF THE INSURED-IMPLIED AND EXPRESS
Warranties are undertakings on the part of the insured that some particular thing shall or shall not be done, or that some condition will be fulfilled, or that a particular state of affairs does or does not exist and are construed strictly. Where there is a breach of a warranty, the insurer is not liable as from the date of the breach.
Implied warranties (seaworthiness, legality)
The fulfillment of the warranty is a condition precedent to the liability of the insurer. The implied warranty of seaworthiness placed the cargo owner in an onerous position, since he has no way of knowing whether the ship can withstand the perils of the journey, is in a fit state of repair, is manned properly and so on. There is also an implied undertaking that the adventure insured is a legal one. Where the adventure is illegal, the policy will be unenforceable.
Express warranties
Express warranties must be included in, or written on, the policy. However, where they are contained in a document other that the policy, then that document must be incorporated by reference in the policy (s 35(2)). For instance, a warranty that the ship will sail before a certain date.
DEVIATION
It is expected that the vessel will proceed on the voyage on the usual or customary course, or the course specifically designated for the voyage (s 46). Where the vessel deviates from the voyage contemplated, without any lawful excuse, the insured loses cover from the moment of deviation. Deviation is excused by s49(1)(a)-(g):
a. Where authorized by any special term in the policy;
b. Where caused by circumstances beyond the control of the master and his employer;
c. Where reasonably necessary in order to comply with an express or implied warranty;
d. Where reasonably necessary for the safety of the ship or subject matter insured;
e. For the purpose of saving human life, or aiding a ship in distress where human life may be in danger;
f. Where reasonably necessary for the purpose of obtaining medical or surgical aid for any person on board the ship;
g. Where caused by the barratrous conduct of master or crew, if barratry is a per insured against.
LIABILITY OF INSURER
Doctrine of proximate causation
According to s 55(1) of the MIA, ‘the insurer is liable for any loss proximately cause by a peril insured against’ unless the policy provide otherwise. In other words, or should look to the proximate cause and not the remote cause establish the liability of the insured on the policy (causa proxima non remota spectatur).
Types of losses
Total loss
According to s 56(2), a total loss can be an actual total loss or a constructive total loss.
Actual total loss
Under s 57(1), a claim for total loss arises: (a) where the entire subject matter is destroyed; (b) where the subject matter is destroyed to an extent that it ceases to be a thing of the kind insured; (c) where the insured is irretrievably deprived of the subject matter. An obliteration of marks, due to peril insured against which renders the goods unidentifiable, will not give rise to a claim for actual total loss. It will give rise only to a claim for partial total loss (s 56(5)). Where the insurer pays for total loss, he becomes entitled to take over the interest of the assured in whatever may remain of the subject matter (s 79).
Constructive total loss
A constructive total loss covers (according to s 60(1)): (a) where it is reasonable to abandon the subject matter insured, since actual total loss seems to be unavoidable; or (b) where the cost of preserving the subject matter insured from actual total loss is far in excess of the value of the subject matter.
Partial loss
According to s 56(1), a loss that is not a total loss is a partial loss. So, for instance, where 20 crates of a cargo of 100 crates of whisky are lost, there is a partial loss.
INSTITUTE CARGO CLAUSES (A), (B) AND (C)
Institute Cargo Clauses (A)
- ‘All risks’ of loss of or damage to the subject matter insured (Doctrine of proximate causation applies);
- Covers general average and salvage charges;
- Covers assured against such proportion of liability under contract of affreightment ‘both-to-blame collison’ clause;
-
Institute Cargo Clauses (B)
- Loss and damage reasonably attributable to:
• Fire or explosion
• The vessel or craft being standed, grounded, sunk or capsized
• Overturning or derailment of land conveyance
• Collision or contact of the vessel, craft or conveyance with any external object other than water
• Discharge of cargo at port of distress
• Earthquake, volcanic eruption or lightning
Loss or damage to the subject matter caused by:
• General average sacrifice
• Jettison
• Entry sea, lake or river water into vessel, craft, hold, conveyance, container liftvan, or place of storage
(Doctrine of proximate causation applies)
Total loss
• Of any package lost overboard or dropped during loading or unloading from vessel or craft
(Doctrine of proximate causation applies)
- Covers general average and salvage charges
- Covers assured against such proportion of liability under contract of affreightment ‘both-to-blame collison’ clause
Institute Cargo Clauses (C)
- Loss and damage reasonably attributable to:
• Fire or explosion
• The vessel or craft being standed, grounded, sunk or capsized
• Overturning or derailment of land conveyance
• Collision or contact of the vessel, craft or conveyance with any external object other than water
• Discharge of cargo at port of distress
Loss or damage to the subject matter caused by:
• General average sacrifice
• Jettison
(Doctrine of proximate causation applies)
- Covers general average and salvage charges
- Covers assured against such proportion of liability under contract of affreightment ‘both-to-blame collison’ clause

ADLINA AMALIA
10410759

CHAPTER 5
TRANSPORTATION OF GOODS BY
SEA – CHARTERPARTIES

INTRODUCTION
As seen in chapter 1, under a contract for sale on cost,insurance,freight (CIF) terms, the seller is responsibility for arranging transport of cargo from his country to the buyers . Even where the sale is not CIF terms, transport is still an integral part os an international sale transaction .For instance, in a free on board (FOB) contract,the buyer mau arrange transport,or he may ask the seller to arrange transport on his behalf. Depending on the amount of cargo,a number of options are cargo is insufficient to fill the entire cargo space of a ship,it is normal for the shipper to find space on a liner service and obtain a bill of lading – a document that the seller is obliged to tender to the buyer in a CIF cintract .where the shipper is the buyer,he is also likely to obtain a bill of lading which ,due to its versatility , can be used to sell the goods on to a third party or used as security for raising money to finance the sale. In a trip charter , the contract is for a voyage on time charter terms thereby providing a minimum/maximum period for the voyage. The contract between the character (one who charters the ship) and the shipowner is known as a charterparty. In english law, there is no requirement that it be in a written form.
A number of standart charter forms are available – some for use with all corgoes, and some for special cargoes, such as grain.of course, the parties may vary the charterparty clauses,should they wish to. It is not unusual to find amendements or additional clauses,since some of the standart charterparties drafted in the early part of the 20th century do not reflect the current trade practice. Term expressed in the charterparty,provided it is governed by english law, are subject to rules of interpretation of contract term and general principles of English contract law.

TYPES OF CHARTERPARTIES
Charterparties are classified into there (basic) types : voyoge charterparties, time charterparties and demise charterparties. A brief description of these types is given below. However, only the voyage charterparty is examined in this chapter. The others are the scope of this book, since they are concerned with the hire, amployment or lease of the vessel.

VOYAGE CHARTERPARTIES
Under a voyage charterparty , the shipowner agrees to charter the vessel to the charterer for one or more specified voyages. The shipowner in a voyages charterparty undertakes to transport the goods to the port(s) specified in the charterparty. The charterer undertakes to provide the specified cargo and pay for the services either as a lump sum for the voyage , or in terms of the amount and type of cargo carried.

TIME CHARTERPARTY
Under a time charterparty, the charterer hires the vessel for a specified period of time. The are also a number of standart time charter forms- the most well known of these are BALTIME (baltic and international maritime conference uniform time charter). Since the emphasis of time charterparties relates to the vessel,they are beyond the scope of this book and therefore not examined in this chapters.
DEMISE CHARTERPARTY
Also knoen as a bareboat charterparty , in this type of charterparty, the shipowner passes possession and control of ship to the chartener. The chartener is responsible for manning, equipping and insuring it.
COMMON LAW IMPLIED OBLIGATIONS IN A VOYAGE CHARTERPARTY
On the part of the shipowner, common law implies that he will :
a. Privide a seaworthy ship
b. Proceed with due dispatch
c. Carry the cargo to the agreed destination without deviation , and
d. Use due care the skill in navigating the vessel and carrying the goods.

The scope of these undertakings and the effect of the breach of these term are considered in chapter 7 below. For the charteners part , common law implies that he will:
A. Nominate a safe port ,and
B. Not ship dangerous goods without disclosure

Nomination of a safe port
Safe port was defined in leeds shipping v societe francaise bunge(the eastern city). It is difficuld to construct a priori an exhaustive list of situations likely to fall within the definition provided in the eastern city, the matter is one of fact and has to be decided in the light of factors such as the vessels manoeuvrability and availibility of weather report. Disturbances of a political nature may also render a port unsfe . in ogden v graham, in the event of a temporary abstacle, the master will be expected to wait for a reasonable time until it is removed or has abated. In grace v general steam navigation Co Ltd(the sussex oak). On arrival , in the face of obvioud danger, if the ,master enters the port, the safe would have broken the chain of causation. Wheather the voyage charter allows the chartener to nominate another port, in the absence of an express term. Where ports are sparse (as is in certain parts of the world), the shipowner will be able to discharge the goods at a port that is a fair distance from the port originally nominated.
A question that vexed shipping lawyers until recently is the scope of the safe port undertaking ,that is, when should the port be safe and for what length of time ? in other words, is safety of the port an absolute continuing obligation , that is, from the moment of its nomination and its expected safety from the moment of its arrival to its departure? Clarification about the scope was provided by the house of Lords in Kodros Shipping Corp v Empressa Cubuna de Fletes(the Evia no 2). On the facts of the case , the court held that there was no breach of the safe port obligation. Basrah was a prospectively safe port at the time of nomination and she was trapped in Basrah due to an abnormal accurrence, In a case decided in 1983. The standart for establishing whether a political risk renders a part unsafe seems to be that of the reasonable shipowner or master as indicated by K/S Penta Shipping A/S v Ethiopian Shipping Lines Corp (the saga cob). In other words ,if a political risk, the port would be unsafe. This right to damages is not affected where a shipowner will not be succesful with his claim for damages where the chartener is able to show that the acceptance on the part of the shipowner of the nomination amounted to a waiver.

COMMON LAW IMMUNITIES
Common law implies a number of immunities that operate in favour of the shipowner in charterparties . the shipowner is not liable for loss or damage to cargo that is caused by :
a. An act of God
b. An act of the Queen’s enemies , and
c. Inherent vice

USUAL EXPRESS TERMS
The charterparty will contain a number of clauses ,including introductory clauses identifying the vessel’s identity ,its cargo capacity ,the time from when performance of the charter is to start and cancellation clause .
Express terms relating to the position of a ship on the date of the charter has important consequences .In Behm v Burness. The clause was held to be a condition , since charterers use the position of the ship on the date of the charter to calculate the time of he ship’s arrival at the port of loading and inaccurate statement in respect of position would underseems ,, will be construed as condition. For instance , in Maredelato Compania Naviera SA v Bergbau-Handel Gmbh (The Mihalis Angelos), Change in cargo will mean change in freight rates,aand the charterer will be required to pay the market rate of freight for that cargo . the charterparty , as stated earlier ,usually specifies the laydays/laytime ,that is, a period of time agreed for the purposes of loading or discharging of cargo from the ship. In the absence of a term on laydays in the charterparty , it will be implied that the operations of loading and discharge are carried out within a reasonable time,taking into account the circumstances of the case such as facilities available at the port,the custom of the port ,etc. It is therefore common practice to insert a demurrage clause in the charter,a clause that fixes the ammount of damages payable for exceeding the laydays.
The courts will normally respect the sum stipulated in the demurrage clause,unless it is so high as to be unconscionable in keeping with the general approach in english law to liquidated damages and penalties. Demurrage runs continuosly.it will accrue despite strikes,bad weather ,etc,unless the demurrage clause is worded to take account of these events. So where,after completion of loading and within the laytime,the charterer detain terms about seaworthiness ofthe ship and deviation, which may displace the common law implied obligations where clearly worded.
Clauses exempting the carrier from liability for loss or damage to goods due to events such as the negligence of the master of crew,storms,strikes,wars and ice are also commonly found in charterparties.Jurisdiction, arbitration and applicable law clauses are also not uncommon. Where the standart form does not provide for these,it may well be in the the parties interests to come to an agreement on choice of law and choice of jurisdiction to avoidnasty surprises in the course of resolving disputes.
CONCLUSION
As stated in the introduction to this chapter,even where goods are transported under a voyage charter,it is commonplace for the charterer to obtain bills of lading from the master regardless of whether or not the is on CIF terms.the bill of lading’s pivotal role in international commerce is due to characteristics peculiar to it. The next four chapters therefore concentrate on the characteristics of a bill of lading ,common law as it affects bills of landing and the international conventions that determine the responsibility and liabilities arising under a bill of lading.

FURTHER READING
Baker,’The Safe port obligation and employment and indemnity clauses’(1988) LMCLQ 43.
Baker and David ,’The politicaly unsafe port’ (1986) LMCLQ 112
Baughen, shipping law 3rd edn,2004,Cavendish Publishing
Boyn,Burrows,and Foxton (eds),Scrutton on Chapterparties and Bills of Lading,20th edn,1996,Sweet and Maxwell
Colinvaux, et al , Cerver’s Carriage by Sea ,2 vols,13th edn,1982,Stevens.
Cookeet al,Voyage Charter ,3rd edn,2007 ,LLP.
Davenport,’Unsafe ports ,again’(1993) LMCLQ 150.
Herman ,and Goldman,’The master’s negligence and charterer’s warranty of safe port/berth’(1985) JMLC 441
Hibbits ,’The impact of the iran-iraq cases on the law of frustration of charterparties’(1985) JMLC 615
Powles,’Sea ports ang voyage charterparties’ (1987) JBL 491
Reynolds ,’The concepts of safe port’ (1974) LMCLQ 179
Tetley,Marine Cargo Claims ,4th edn ,2008,Blais
United Nations Conference on Trade and Development ,Charterparties: A Comparative Anlisys (report by UNCTAD secretariat),TD/B/C4/ISL/55,27 June 1990
Wilson,Carriage of Good by Sea,6th edn,2008,Longman.

Subject: International Trade Law – IP Class
SUMMARY OF CHAPTER 12
“INTERNATIONAL CARRIAGE OF GOODS BY ROAD”
By: Nadya Ramadhany Ruray (11410183)

A. INTRODUCTION
The beginning of enactment in the field of International Carriage of Goods by Road was standardised in 1956 with the Convention on the International Carriage of Goods by Road (“CMR”). It was drafted by the United Nations Economic Commission for Europe (ECE) in Geneva. The parties of CMR, consist of ECE and non-ECE member countries.

B. INTERPRETATION OF THE CMR BY THE ENGLISH COURTS
English courts have such a sensitive attitude when it comes to the interpretation of international convention. In relation to the CMR, only a commentary based on conference papers is available and it is still debatable whether this has a status similar to that of official documentation. The courts may also consider foreign decisions, depending on the jurisdiction, the status of the court within the foreign jurisdiction, and how far the existed reasoning in the judgement (common law system), but still these decisions may almost to be little use in the concensus.
Lord Salmon stated that ou courts (English courts) would no doubt follow it for the sake of uniformity which is the object of the convention to establish. But no such corpus exists. He argued that if being any uniform corpus of law relating to convention, the disharmony rules, different interpretations have been produced by the courts of different member countries concerning the supposed meaning of the various Articles in the convention. Our courts are therefore thrown back on their own resources. We must rely n our own methods of interpretation.

C. SCOPE OF APPLICATION
The CMR comes into operation when:
• There is a contract of carriage of goods by road for reward;
• The goods are carried on vehicles;
• The place of taking over and the place didignated for delivery specified in the contract are situated in two different states; and
• The place of taking over or the place of delivery is contracting state.
There is obviously international element in the scope of CMR’s operation, that is carriage from one country to another is essential for applicability of the CMR. Shall be noted that the CMR’s applicability is triggered by the contract. The actual arrival at its international destination is an irrelevant factor. The goods must be carried by vehicles which are defined as by Art. 4 of the Convention on Road Traffic. The CMR applies only to carriage of goods. Goods however are not defined. The courts might look to their domestic legislation for a definition.

Combined Transport
The CMR with some hesitation, can be said to be innovative in providing for combined transport. According to Art. 2, where goods are carried on a vehicle that is loaded on to another mode of transport, such as ship or an aircraft, the convention applies to the entire voyage. Where combined transport is used and the goods are unloaded for any reason, for example, for loading on to the other mode of transport, for pruposes of conveniences, then the CMR may will not apply.
The liability of the carrier by road shall be determined in the manner in which the liability of the carrier by other means of transport would have been determined if a contract for the carriage of the goods alone had been made by the sender with the carrier by the other means of transport in accordance with the conditions.
Article 2 of the CMR Convention was considered by the English courts in Thermo Engineers v Ferry masters. The case involved the carriage of a steam exchange heater from Aylesbury to Copenhagen with the sea voyage starting at Felixstowe subject to a bill of lading. The heaterm carried on a trailer, hit the deck head during loading and was damaged. The court had to decide whether liability was to be calculated in terms of the Hague Visby Rules. According to Neill J, the proviso to Art 2 applies only where the loss, damage or delay:
• Occurs when carriage by the other means pf transport starts;
• Is not caused by an act or omission of the carrier; and
• Is caused by an event that could only have occured in the course of and by reason of the other mode of transport.

D. CONTRACTING OUT
The parties are not free to contract out of the provisions of the CMR. Where a contract of carriage contains a term that directly or indirectly derogates from the terms of the convention, it will be null and void (Art, 41(1)). The convention does no provide a list of the kind of clauses that would be regarded as inappropriate, but Art 4(2) states that a clause shifting the burden of proof or a benefit of insurance in favour of the carrier will be null and void.

E. DOCUMENTARY RESPONSIBILITIES
The cosignment note plays an important role in the CMR. It must be in theree original copies; the first is to be handed to the sender, the second to accompany the goods, and the third to be retained by the carrier. The note must be signed by the sender and the carrier, such as the place of taking over of the goods, the date of the cosignment note, name and address of the sender, etc.

F. ELECTRONIC DATA INTERCHANGE (EDI) AND THE CMR
There is no provision regarding electronic documents in the CMR. It is doubtful whether an electronic equivalent of a consignment note will suffice for the purposes of the convention, Art 5 requires the note to be signed and expects the signature to be either printed or stamped depending on the local law. In the stict sense, be construed as printing or stamping, though the acceptance of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce worldwide will ease the use of electronic documents including electronic signature.

G. CARRIER’S LIABILITY AND RIGHTS
Roadworthy Vehicle
There is no provision which specifically states that the carrier is to provide a road worthy side. Art 17(3) which states that the carrier can not escape liability under the CMR by reason of the vehicle’s defective condition in the performance of the carriage, even in the case of hired vehicle, its defective condition arising from the wrongful acr or neglect of the persons from whom he has rented the vehicle or their servants or agents will not lessen his liability.

Period of Responsibility
The carrier is responsible for the goods from the time when he takes over the goods to the time of delivery. Loewe’s commentary that taking over occurs when the carrier assumes control of the goods and delivery, when he relinquishes control by placing them at the consignee’s disposal.

Liability for Loss, Damage and Delay
The general defences are laid down in Art 17(2) according to which the carrier is relieved of liability where the loss, damage or delay is caused by:
• Wrongful act or neglect of the claimant;
• The claimant’s instructions given otherwise than as a result of a wrongful act or neglect of the carrier;
• Inherent vice; and
• Circumstances which the carrier could not avoid and the consequences of which he was unable to prevent.

Carrier Liability and ‘Cash on Delivery’
The carrier may be required to collect ‘cash on delivery’ charges. This normally be included in the cosignment note. Were the carrier to deliver the goods without collecting the charges, he will be liable to the sender. The CMR does not define cash. The issue of whether a cheque or draft is sufficient may depend on domestic law.

Liability Amount
The CMR adopts a complex formula for calculating compensation payable by the carrier. In the event of total or partial loss, the amount payable is calculated by reference to the value of goods at the place and time which the goods were accepted for carriage. The value is determined from the commudity exchanger price or the current market price.

Availability of Limitation
The defences and limits of liability provided by the CMR are available to the carrier where a claim arising under the contract of carriage is founded extra-conractually, for instance, in tort or bailment. The same applies to the carrier’s agents, servants and those whose services he uses for the performance of the carriage.

Loss of limitation of liability
The provision relating to exclusion and limitation of liability provided by the CMR is lost where the damage is caused by the carrier’s wilful misconduct or default on his part, which according to the law of the court seised of the case, is regarded as equvalent to wilful misconduct. This is also the case where wilful misconduct or default is committed by the carrier’s servants, or agents, or by any other persons whose services he makes use of in the performance of the carriage acting within the cope of their employment.

Carrier’s Rights
Other than the right to freight, charges, expenses incured in following instructions,etc, the CMR gives the carriers rights to sell the goods, dispose of the goods, or unload them in specific circumstances. The carrier can sell or dispose of the goods without awaiting instructions, where:
• They are perishable; or
• Their condition warrants auch a course; or
• The storage expenses would be out of proportion to the value of the goods.

H. SENDER’S RESPONSIBILITIES AND RIGHTS
Dangerous Goods
The sender is under an obligation to inform the carrier of the dangerous nature of the goods and precautions that need to be taken in respect of those goods. Dangerous goods are not defined by the CMR. At common law, dangerous goods include not nly goods that are instinsically dangerous (for example: dynamite), but also the cargo that may create a haxardous situation (for example: grain). The information of the dangerous nature of the goods would be entered on the cosignment note.

Packing
The sender is responsible for ensuring that the goods are adequately packed. If the goods are defetively packed, then the sender is liable to the carrier for damage to persons, equipment or other goods. This applies only where the defective packing was not apparent to the carrier. However, the defective packing is apparent and the carrier did not make any reservations, then the risk lies with the carrier. It must be noted that the carrier is responsible for checking the packaging of the goods.

Customs Formalities
Documents needed for customs, and other formalities at the frontierm are the responsibility of the sender.

Choice of Route
The CMR does not make any special provision on the chouce of route. At common law, the route to be folloed is the usual route, which is direct geohraphical route unless it is customary for the trade to use another route.

Modification of Contract
The CMR allows the sender to modify the contract. According to Art 12(1), the sender can ask the carrier to:
• Stop the goods in transit;
• Change the place at which the delivery is to take place; or
• Deliver the goods to a cosignee other than the one indicated on the cosignment note.
The carrier is obliged to carry out there instructions only if it is possible for him to do so, that is the carrying out of the orders does not interfere with his normal working, or affect senders or consignees of other consignments, or result in division of the cosignment.

I. CONSIGNEE’S RIGHTS AND RESPOSIBILITIES
The consignee has the right to demand delivery of the goods and the consignment note (second copy) on arrival of the cargo at its destination against a receipt. The CMR does not state whether the receipt needs to be signed. Presumably, this will depend on the practices in the trade.

Modification of Contract
The consignee has the right to modify the contract where:
• The sender gives the right of disposal to the consignee; or
• The consignee obtains the second consignment note on arrival of the goods.

Freight and Supplementary Charges
The responsibility for paying freight and other charges to the carrier is generally a matter of agreement between the parties. The consignee, when he demands delivery of the cargo on arrival, may find he is liable to pay the charges to the carrier shown due on the consignment note. This applies even where the sender may have agreed to pay them. If there is a dispute, the carrier can refuse delivery until some form of security is furnished by the cosignee.

J. PROCEEDINGS
By Whom
There is no clear indication as to who is entitled to sue tje carrier under the convention. Article 7(3) states that the carrier is answerble to the person entitled to dispose of, the goods for failure to omit to include the paramount clause as required by Art 6(1). Article 13(1), on the other hand, gives the consignee the right to sue in the event of delay or loss of cargo. Different jurisdictions have come to different solutionsm guided by their national law, when it comes to the question of who has the right to sue the carrier under the CMR.

Against Whom
The carriers against whom an action can be brought for loss, damage or delay. There are the first carrier, the last carrier or the carrier who was perfoming the portion of carriage when the event causing the loss, damage or delay occured. “First carrier” suggests that the carrier must be the first to be physically involved in carrying the goods and excludes the carrier is one who has contracted with the sender. As for the last carrier, this should cause no proble where the goods are delivered.
The last carrier should be the one who is meant to deliver the goods even if he never accepted the goods or the cosignment note, since the CMR is modelled on the CIM Rules (Art 55(3)).

Jurisdiction
The CMR allows the plaintiff to bring his action in an appropriate court in the country where:
• The defendant is ordinarily resident;
• The defendant has his principal place of bussiness ;
• The branch or agency through which the contract of carriage was made ;
• The goods were taken over by the carrier; or
• The place designated for delivery is situated.

Arbitration
Under the CMR, the parties are free to agree to submit their dispute to arbitration as long as the clause in the contract imparting competence to the arbitration tribunal provides that the tribunal is to apply the CMR (Art 33). Whether a choice of law clause that attracts the application of the CMR is sufficient to fulfill the requirements of Art 33.

Time Limitation
The period of limitation for bringin an action under the CMR is one year, unless it is wilful misconduct in which case it is three years. The limitation period applies to all actions, whether they be brought in contracy or in tort, and applies to claims by and against carriers. It would be possible for the parties to agree to extend the time limits imposed by the CMR after the claim has arisen.

K. CMR-THE FUTURE
The CMR can be said to be disappointing. It is inexhaustive and central concepts are left undefined with the result that courts often resort to domestic law. For instance, delivery, central to carriage of goods, is undefinded; and liability for loss or damage to goods occuring prior to taking over and delivery is not dealt with in the CMR. It is fair to question the usefulness of international conventions in standardising the law.

Name: Muhammad Yasir Sirodj (International Program)
NIM : 11410082
Class : International Trade Law

Resume of Chapter 7 : BILLS OF LADING AND COMMON LAW
By Muhammad Yasir Sirodj (11410082)
It is probable that a proportion of bills of lading issued in the UK is likely to be governed by the liability regime of the Hague-Visby Rules, the product of an international convention to redress the imbalance caused by the extended use of, and tolerance towards, exculsion clauses operating in favour of shipowning interest. Common law implies number of obligations on the part of both the shipowner (or carrier) and the shipper. The parties can be lessen the liability imposed by these implied undertakings, or exclude the altogether with the aid of contractual stipulations need to be expressed in clear languange, since lack of clarity will attract the application of the common law implied undertakings to the contract of carriage.
The shipowner is under an implied obligation at common law to:
1. Provide a seaworthy ship.
2. Proceed with due dispatch.
3. Carry the cargo to the agreed destination without deviation.
4. Use due care and skill in navigating the vessel and in carrying the goods.
Seawothiness
Common law places the shipowner under an implied warranty to supply a ship that is fit dor its purposes. The meaning of seaworthiness is a two-fold at one. It refers to both the physycal state of the ship and its fitness for receiving the cargo – that is, cargoworthiness. As for the ship’s physical state, it must be fit for the purpose of the voyage to be undertaken. That is, the ship must be fit in design and structure. The shipowner is free to contract out of the implied undertaking of seaworthiness. The stipulation however needs to be express, clear and ambigous. A clearly worded clause exempting liability for unseaworthiness may therefore be rendered totally or partially ineffective when read in the context of the whole agreement. The court came to the conclusion that though clause 1 excluded seaworthiness in clear languange, the combined effect of clause 2 meant that the shipowner could exclude liability only if he could show that he had taken reasonable measures to provide against unseaworthiness.
Due Dispatch
Common law implies that the voyage must be prosecuted with due dispatch, that is the vessel will proceed on the voyage, load and discharge at the time agreed. In the absence of express agreement or agreement implication, the law implies the performance of the voyage within reasonable time. What is reasonable inffered in relation to what can reasonably be expected from the carrier under the actual circumtances at the time of performance.
Deviation
Under common law, the shipowner is under an implied obligation to carry the cargo to the agreed destination directly without any deviation. The shipowner is presumed to take the direct geographical and safe route to the port of discharge. Where does not take the direct route to the port of destination, evidence may be adduce to show that the route that he took is the normal customary route. the rule that the ship must not deviate is, however, not that strict, and common law does allow the ship to depart from the direct geographical route in the following circumtances:
1. For saving human life
2. For the prosecution of the voyage or the safety of the adventure
Negligence
There is an implied obligation in every contract of affreightment, according to Lord Mcnaghten in the Xantho, that the shipowner will use due care and skill in navigating the vessel and carrying the goods. There is also a duty, according to Willes J in Notara V Handerson, on the part of the master representing the shipowner to take reasonable care of the goods entrusted to him, not merely in doing what is necessary to preserve them on board the ship during the ordinary incidents of the voyage, but alsoin taking reasonable measures to check and arrest their losses, destruction pr deteriation, by reason of accident.
Shipowner Immunities
The shipowner is free to negotiate the terms of sea carriage. It is not unusual for bills of lading not governed by Carriage of Goods by sea act 1971 to include an extensive list of exception clauses in a bill of lading.
Common Law Exceptions
In the absence of express stipulations in the contract of carriage, common law implies the following exclusions:
1. Act of God
2. Act of Queens enemies
3. Inherent vice
Contractual Exceptions
The parties, as stated earlier, under ealier, under English law are free to negotiate the terms of carriage. It is usual to find a long list of exemption clauses that relieve the shipowner of liability, for instance, in the event of negligence of the ship’s crew, collisions, strikes, perils of the sea and strike. Some of them are:
Peril of the sea
The court interpreted perils of the sea reffered as any damage that has been caused by storms, sea water, collision, standing of perils that are peculiar to the sea or to the ship at the swa and which could not have been avoided by the exercise of reasonable care.

Arrest or Restraint of Princes
Is a excluding liability for the loss or damage due to arrest or restraint of princess, rulers and people has been interpreted to apply to a number of situations.
Hostilities or Riots
Is a kind of perils which means relieving the shipowner of liability in the event of damage caused to riots or other commotions.
Strikes
It is a common to find clauses exempting liability in the event of strikes, intrepreted as concerted stoppage of work by men done with a view to improving their wages or conditions.
Latent Defects
Means that a defect that could not be discovered on such an examination that a reasonably skilled man would make.
Fire
Means that protection from losses or damage due to fire under s 186 of the merchant shipping act 1995.
Other Terms in Bills of Lading
Apart from terms considered above, the bill of lading normally contains terms relating to loading, freight, and liens. In the absence of express terms, common law or statute may be relevant in determining the extent of the rights and liabilities of the parties to the contact of carriage.

INTERNATIONAL MULTIMODAL TRANSPORT

Multimodal also called as combined or intermodal transport, means door to door carriage using two or more modes of transport. The growth of multimodal happened because of the existence of single transport document such as bill of lading and multimodal transport document. Multimodal transport not regulated in International convention. The lack of multimodal transportation regulation is affecting to the commerce itself. Here will be discussed about the legal problem faced by cargo interest.
Freight forwarder has capacity to sorting out the liability of the various parties involved in multimodal transportation. The transport document issued by the forwarder should indicate the capacity, whether the forwarder as agent or principal. To know the capacity, we can see from some factors, such as the type of document, the charge, the language used by the forwarder and the consignor, the deal, and the usual capacity of the forwarder.
If there is a damage or loss, the freight forwarder acting as agent cannot be sue, but freight forwarder can be sue for not exercising due care and skills in carrying out his duties as agent. However, if the freight forwarder acts as principal then the consigner can sue them, because of the loss or the damage of the goods.
The freight forwarder as an agent will be expected to exercise the reasonable skill and care in perform in his duties. The agent must express the authority given to him. However, the performance of forwarder is reasonable or not depends on the instruction from his principal. If there is no instruction from the principal, the agent still have to act in the best interest of his principal, and its reasonably for the agent. The forwarded can be sue by his principal if do negligent or fraud. For the payment along the sail or voyage, the agent doesn’t have any personal liability to the carrier for freight charge, customs duties, etc, unless there is establishment custom. The agent has right to get indemnified for the expenses while perform the duties from his principal. The agreed remuneration must be paid by the principal to the agent.
UNIFICATION EFFORTS BY THE INDUSTRY
BIFA already made standard terms for multimodal carriage by drafting the Standard Trading Condition for use by its member. The drafting include about the responsibility and liabilities of the company. The members of BIFA are responsible for handling 80% of the overall business. The forwarders who are not members of BIFA use their own terms which, by and large, are not as favorable as the condition. Standard Trading Condition (hereinafter condition) made by BIFA, for use of member need to be incorporated into the contract.
Here, will be discussed about the responsibility, liability, and the right of forwarder. The responsibility of the forwarder is when the goods while in their control. The forwarder has to keep the due care of the goods from the point of receipt to the point of delivery. Forwarder has responsibility for los and damage. However, forwarder is not liable for the loss and damage caused by specific event, such as strikes, lock out, stoppage or restrain of labor. Forwarder has right like other businessman in the business activity, where they have to get payment. However, there is no specific regulation about how much the payment, in Condition only require the customer to pay all sums as and when they are due in cash or as otherwise agreed. Where if the forwarder is no paid, they can hold the goods and document till the sums due are paid by the customer or owner. Beside, the responsibility, liability, and the right of forwarder, there is responsibility, liability of the consignor. The consigner is responsible for providing accurate and adequate description of the goods and must pack the goods adequately, mark and label the goods properly. When, they applied the Condition, the cargo owner must institute proceeding within nine months of the event giving rise to a cause of action. The jurisdiction under the English court and the law that will be used is England law.
FIATA NEGOTIABLE MULTIMODAL BILL OF LADING
The regulation of FIATA Bill is applied when the parties agree to contract on these terms. The terms assume that the freight forwarder is the principal. The principal govern carriage of all types of cargo, including live animals. FIATA also regulate about the responsibility, liability and the right of freight forwarder. Freight forwarder has responsible for the cargo from the moment he takes the goods in his charge to the time of delivery. Forwarder has right to choose the method of transportation, the route and the procedure of handling and storage of the goods. For, the responsibilities of consigner is to accurate description, marks, quantity, weight, etc, of the goods and the consigner remains liable to the freight forwarder for any loss or damage he may suffer even though the document is transferred to the consignee.

Choice of Law

Introduction
In English litigation relating to contracts, choice of the applicable substantive law is now governed largely by EC Regulation 593/2008 on the Law Applicable to Contractual Obligations, which is usually referred to as the Rome I Regulation. From an English viewpoint, the Regulation is equally applicable whether the foreign connection is with another EC country (such as France), or with a country external to the European Community (such as the USA), or even with another part of the United Kingdom (such as Scotland).
The Rome I Regulation does not contain a definition of a ‘contractual obligations’. The material scope of the Rome I Regulation is, however, restricted to a limited extent by Art 1 (2)-(3), which excludes certain types of transaction, certain terms and certain issues from the ambit of the Regulation, thus remitting them (in the absence of other EC legislation) to the traditional conflict rules of the court seised. As regards types of transaction, the Regulation has almost entirely eliminated an important exclusion formerly made by Art 1 (3) and (4) of the Convention, which had referred to contracts of insurance (other than reinsurance) covering risks situated within the European Community. Whatever the type of contract, Art 1 (2)(e) excludes the validity and interpretation of arbitration or jurisdiction clauses from the scope of the Rome I Regulation.
By Art 23, the Rome I Regulation gives way to other Community legislation which, in relation to particular matters, lays down conflict rules relating to contractual obligations. By Art 25, the Rome I Regulation does not prejudice the application of international conventions to which one or more member states were parties when the Regulation was adopted, and which lay down conflict rules relating to contractual obligations. Under the Rome I Regulation, most issues relating to a contract are governed by a single law, which the Regulation refers to as the law governing or applicable to the contract but which may more conveniently be referred to by the traditional English term, ‘the proper law of the contract’.

The Proper Law – Express Choice
Under the Rome I Regulation, as under the traditional English law, the proper law of a contract is determined primarily by reference to any express agreement on choice of law concluded by the parties to the contract. Any express choice of law will usually be made by a clause contained in the contract as concluded, but Art 3 (2) permits an express choice to be agreed on after the conclusion of the contract, though such a subsequent choice will not prejudice the formal validity of the contract, nor adversely affect the rights of the third parties. A very minor restriction on the effect of an express choice is imposed by Art 3 (3), which specifies that where all other elements relevant to the situation at the time of the choice are located in a country other than the country whose law has been chosen, the choice of the parties shall not prejudice the application of provisions of the law that other country which cannot be derogated from by agreement. Thus in Caterpillar Financial Services v SNC Passion Cooke J explained that the terms of Art 3 (1) give the parties a freedom to choose the applicable law to the agreement which they are making.

The Proper Law – Implied Choice
In the absence of an express choice, Art 3 of the Rome I Regulation directs the court to consider next whether an implied choice of law by the parties can be discovered. The factors which may amount to a clear indication, warranting the recognition of an implied choice, cannot be definitely listed, but it is in principle unlikely that a sufficiently strong indication will have escaped attention up to the present date. The relation between connected contracts must not, however, be given a weight beyond the needs of the commercial situation. In any event, as the Court of Appeal recognized in Samcrete v Land Rover, a choice otherwise implied my be negated by the negotiations leading to the contract, as where a guarantor deletes from the form proffered by the other party a clause expressly choosing the same law as governs the main contract under which the obligation guaranteed arises.

The Proper Law – Closest Connection
In the absence of any valid express or implied choice by the parties, the proper law of a contract is in most cases determined in accordance with the default rules lain down by Arts 4 and 5 of the Rome I Regulation. Is it evident that in this respect the provisions of the Regulation have been drafted much more elaborately than those of the Convention. The main effect of Art 4 of the Rome I regulation is to provide in most cases for a rebuttable presumption in favour of the law of the characteristic performer’s residence, which may be displaced by establishing clearly a manifestly closer connection with another country. Another English ruling under the Convention which appears to remain applicable under the Regulation is that, in the case of a contract whereby money is invested in a company, whether by the issue of shares or the repayment of the loan.
Unlike the Convention, the Regulation does not provide for severance between parts of a contract in the absence of an express or implied choice by the parties. As regards the concept of habitual residence, while Art 19 of the Rome I Regulation defines the concept in the case of a company and of an individual acting in the course of his own business, no definition is offered in respect of an individual who is not acting in the course of his own business.

Particular Issues
The Rome I regulation takes pains to make clear that most types of issue relating to a contract are governed by the proper law. Article 10 (1) subjects questions of essential validity or formation to the actual or putative proper law; the putative proper law being the law which would be the proper law if the contract or term in question were valid. As regards formation, an exception is made by Art 10 (2), by which a party may rely upon the law of his habitual residence to establish that he did not consent, if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the actual or putative proper law. As regards formalities, Art 11 lays down a rule of alternative reference reflecting a policy of validation.

English Public Policy and Overriding Mandatory Rules
The Rome I Regulation derogates from its main rule, referring most contractual issues to the proper law, by making important exceptions in favour of the public policy or overriding interests of the forum country. The public policy proviso specified by Art 21 of the Regulation refers primarily to the rare cases where the relevant foreign rule departs so radically from English concepts of fundamental justice that its application would be intolerably offensive to the English judicial conscience, even where all the connecting factors are with the country of the rule. Art 21 of the Regulation also appears to maintain the operation of the traditional English rules which are designed to prevent the English courts from encouraging or requiring parties to perform acts abroad whose performance would contravene the criminal law of the country where the performance would take place.
The first of these traditional rules applies where the parties’ actual common intention at the time of contracting was that the contract should be performed by means of an act done in defiance of a known criminal prohibition imposed by the law of the country where the act was intended to be performed. The second rule relating to criminal prohibitions applies where there was no such guilty intention but, unknown to the parties, there in fact existed at the time of contracting, or there came into force between the time of contracting and the time for performance, in a country where the contract necessarily required and act of performance to be done, a criminal prohibition against the doing of that act.

Certain Particular Types of Contract
• Consumer contracts
Art 6 of the Rome I Regulation lays down special conflict rules for certain consumer contracts. With regard to the definition of a protected consumer contract, to which Art 6 applies, the Rome I Regulation departs from the Rome Convention and adopts a definition similar in many respects to that used by Art 15 of the Brussels I Regulation.
Unlike the definition used by the Rome Convention, the definition specified by the Rome I Regulation makes no reference to the supply of goods or service. Since this, a sale of financial instruments or securities is no longer excluded by the primary definition. Like the Rome Convention, the Rome I Regulation insists on imposing a territorial requirement for the application of the consumer-protective provisions, designed to ensure that the consumer is guaranteed the protection offered by the law of his country of habitual residence only in cases where the contract or the supplier has a sufficient connection with that country. Perhaps the most disappointing feature of the Rome I Regulation is its failure to offer any protection to the 'mobile' consumer, who contacts abroad in circumstances where it would be unreasonable to subjective supplier to the law of the consumer's residence.

• Contracts for the Carriage of Passengers
Articles 5 (2) and (3) of the Rome I Regulation apply to contracts for the carriage of passengers. These provisions are new. Under the Rome Convention contracts for the carriage of passengers were treated as ordinary contracts, governed by Arts 3 and 4. In the case of the contract for the carriage of passengers, Art 5 (2) of the Regulation permits the parties to choose the proper law in accordance with Art 3, but restricts the range of laws of the following countries: the passenger's habitual residence; the carrier's habitual residence; the carrier's place of central administration; the place of departure; and the place of destination. In the absence of such a choice, Art 5 (2) provides a presumption in a favour of the law of the passenger's habitual residence, provided that either the place of departure or the place of destination is situated in that country.

• Employment Contracts
The contract must create a lasting bond which brings the worker to some extent within the organisational framework of the employer's business, so that the concept does not extend to a contract for professional services, such as those of an architect or lawyer, engaged as an independent contractor to carry out a particular task. Article 8 (2)-(4) of the Rome I Regulation determines the proper law of an employment contract in the absence of a choice of law made by the parties in accordance with Art 3. The reference in Art 8 (2) to the country in which or, failing that, from which the employee habitually carries out his work in performance of the contract is evidently designed to adopt the approach followed by the European Court under the Brussels Convention and the Brussels I Regulation. In any event it seems clear that, in view of its purpose, Art 8 extends to claim for unfair dismissal or in respect of unlawful discrimination in relation to employment, despite the statutory character of such rights, and that it overrides any self-limiting territorial rule contained in legislation which creates such claims.

• Insurance Contracts
The Rome I Regulation applies to all types of insurance contract. The regulation applies both to life insurance and to non-life insurance, and also to reinsurance. It applies large risk and to mass risk. In the Regulation, Art 7 (2) lays down specific rules for determining the proper law of an insurance contract covering a large risk, whether the risk is situated in Europe or elsewhere. Article 7 (3) of the Rome I Regulation specifies the rules for determining the proper law of an insurance contract covering a mass risk. This Art allows the parties a limited freedom to make an express or implied choice of the proper law in accordance with Art 3. Moreover, Art 7 (4) of the Regulation specifies some additional rules which apply to insurance contract covering risk for which a member state imposes an obligation to take out insurance.

Torts and Restitutionary Obligations
The Rome I Regulation (on contractual obligations) is complemented by the Rome II Regulation, which deals with choice of law in respect of torts and restitutionary obligations. By Art 1 (1), the Rome II Regulation applies, in situations involving a conflict of laws, to not-contractual obligations in civil and commercial matters; but not, in particular, to revenue, customs or administrative matters, nor to the liability of the state for acts and omissions in the exercise of state authority. Chapter II (Articles 4-9) of the Rome II Regulation deals with choice of law in respect of torts. Moreover, particular rules for certain torts are laid down by Arts 5-9 of the Rome II Regulation.
The Rome II Regulation also deals with restitutionary obligations. Restitutionary may arise without there being any wrongful act on the part of the defendant, and that a restitutionary obligation is designed to restore or transfer to the claimant a benefit which has been obtained by the defendant, rather than to compensate the claimant for an injury or loss which has been suffered by the claimant. Moreover, Art 11 deals with non-contractual obligations arising out of acts performed without due authority in connection with the affairs of another person. On the other hand, Art 12 applies to non-contractual obligations arising out of dealings prior to the conclusion of a contract, regardless of whether the contract was actually concluded or not.

Name : Armeilia Handayani
Student Number : 11410486

The law relating to international rail carriage is to be found in the Convention on International Carriage by Rail (COTIF). Harmonisation in respect of international rail carriage was acheived as far back as 1890 with the Connvention internationalesur le transport de marchandise par chemin de fer. This convention created an Administrative Union served by the Central Office for the International Carriage by Rail formed in 1893. Periodic amendments were made to the convention at carious revision conferences. At the eighth revision converence held in 1980, however, substantial reforms regarding the institutional provisions found in the original convertion were undertaken leading to the creation of the Inter-Governmental Organisation for the International Carriage by Rail (OTIF). The aim of OTIF is to promote, improve and facilitate, in all respects international traffic by rail. Part of its remit is to establish systems of uniform law including contract of international carriage of goods, dangerous goods and passengers by rail. The Uniform Rules Concerning the Contract for the International Carriage of Goods by Rail (CIM). Were attached as appendix to B to COTIF 1980. COTIF 1980 underwent periodic revisions. However, in the mid 1990s the OTIF undertook a amajor programme to revise COTIF and Vilnius Protocol 1999 presented a new version of COTIF 1999. The reason for this new version was to better reflect the developments in rail carriage brought about by privatisation and the changing market structures in rail transportation. As with COTIF 1980 the new version of the CIM Rules are attacjed as Appendix V to COTIF 1999. The Vilnius Protocol came into force on July 2006. The UK is a party to this Protocol and has implemented it.
There is no special provision regerding the interpretation of the convention. Though the text is available in German English and French language, the French text is to prevail (Art 45, COTIF 1999). In the event of ambiguity, the courts will look to the French text for guidance – a step commonly resorted to in other transport conventions, such as the Convention for the Unification of Certain Rules Relating to International Carriage by air 1929. OTIF does produce a bulletin that reports decisions from various courts. This may also aid in achieving a uniform interpretation of the convention.
The CIM Rules come into operation where there is a contract for the carriage of goods for reward in the following situation:
• When the place for taking over the goods and place designated for the delivery are located in two different member states;
• When the place of taking over and place designated for delivery of goods are located in two different states, one of which is a member state and the parties agree that the contract is to be subject to the Rules;
• When the international carriage subject to a single contract involves a road or inland waterway element as a supplement as a supplement to carriage by rail;
• Where complementary services by sea or inland waterway are provided and these are included in the CIM list of maritime and inland waterway services.
The CIM Rules however do not recognise as international carriage that is performed between stations situated in the territory of neighbouring states, state X and state Y, where the station llocated in the neighbouring state Y is not operated by that state or entities from state Y but by entities belonging to state X. Such carriages will be subject to national law.
While a through consignment note covering the entire carriage was necessary for bringing the carriage within the ambit of CIM 1980, the CIM Rules do not impose such a requirement. Nonetheless, a consignment note does play an important role in the CIM Rules since it is viewed as providing documentary proof (even if refutable) of conclusion and the content of the contract of carriage and the taking over of the goods.
In CIM 1980 the status of the carrier was broadly comparable to that of the common carrier at common law, thus reflecting the role of the railway as provider of public services. The CIM Rules however do not impose such an obligation on the carrier and the agreement between the carrier and consignor is viewed as a consensual one. For the purposes of the CIM Rules refers to the contractual carrier. It doesn’t however include a substitute carrier who is defined under a separate provision has entrusted in part or in whole the performance of the carriage by rail.

INTERNATIONAL CARRIAGE OF GOODS BY AIR
The law relating to the international carriage by air of cargo, pessengers, and luggage is to be found in two distinct sources that is Montreal Convention 1999 and a network of legal instrument commonly known as the Warsaw System. Yhe Montreal convention 1999 is largely a tidying up exercise of fregmentation of law found in Warsaw system, exemined in the following section. It consolidates and modernises the warsaw system needed adn reflects the liability scheme adopted by the Warsaw Convention as amanded by the Hague Protocol as further amanded by Montreal Additional Protocol no.4. a knwoledge of the warsaw system is therefore necessary in order to understand the liabilty scheme adopted by Montreal convention, besides providing guidence on how the provisions of this new convention are likely to be interpreted by the courts. Further, it must be noted that not all parties to the various instruments found in the warsaw system have as yet ratified the Montreal Convention. Hence a carriage by air from a state that has ratified the Montreal Convention 1929 willbe governed by the letter. This chapter therefore starts with an examination of the Warsaw system.
The Warsaw System consists of the following legal instruments :
• Warsaw system 1929
• Warsaw convention as amanded by the hague protocol
• Guadalajara Convention
• Warsaw convention as amandedat The Hague and by the Guatemala Protocol
• Montreal Additional Protocol No 1 1975
• Montreal Additional Protocol No 2 1975
• Montreal Additional Protocol No 3 1975, and
• Montreal Additional Protocol No 4 1975
Scope of application of the warsaw system convention
Both amanded and unamanded version apply to international carriage of cargo, passengger, and lugage perforrned by aircraft for reward (art1). In the absence of a definition of aircraft, presumbly all airbone crafts,whether powered engines or not, such as aeroplane, helicopters, gas ballon, and gliders come within their ambit. Though performance for rewaerd is another requirment for applicabilty, Art 1(1) does not rule our gratuitos carriage altogether, since it states that the Warsaw Convention applies equally to gratuitos carriage by aircraft performed by an air transport undertaking.
International carriage is defined in Art 1(2) of the amanded versiaon as:
“..any carriage in which, according to the agreement between the parties, the place of departure and the place destination, whether or not thre be a breake in the carriage or a transshipment, are situated either within the territories of two High Contracting Parties or within territory of a single High Contracting Party if there is any an agreed stopping place within the territory of another state, even if that state is not a High Contracting Party, carriage between two points without an agreed stopping place within the territory of another state is not international carriage for the purposes of the convention”.
According to the above definition, an agreement to carry goods in the situations listed below will be international :
• Goods carriage from a place of departure in state X to a palce of destination in state Y where both states are paries to amanded version of the convention.
• Goods carriage from a place of departure in state X to a place of destination in the same state with an agreed stopping place in state Z. Whether state Z is s party to the convention would not be relevant.
Air waybill and Negotiabilty
Unlike a bill of loading, an air waiy bill is not a document of tittle. However, according to Art 15(3) of the amnded version, an air waybill may be negotiable (that is transferable). There is no practice to issuing a negotiable ai waybill in Britain but, were it to become a costum in the trade, it would be recognised under english law. The advantages of a negotiable air waybill are difficult to see.
Electronic Data Interchange (EDI) and The Warsaw Regime
Given the ever increasing use electronis data interchange and the discussion about electronic bills of loading, an important issue is the applicabiltiya of the warsaw regime electronic equivalents of air consignment notes/air waybills. As for the unamanded versian,Art 6 requires that the consignor and carriage sign the air waybill. The signature of the carrier may be stamped and that of the consignor stamped or printed.
Carrier Liability
Both under the unamanded and amanded version of the Warsaw Convention, the carrier is prima facie liable for loss or damage to cargo (art 18(1) or damage occasioned by delay (Art 19), unless he can show that hen his servants or his agents took`all necessary measures to avoid damage the damage, or that it was impossible for him or them to take such measures (Art 20). All necessary measures, if construed literally, does not provide the carrier with a defence, for it the carrier had taken all necessary measures there would have been no damage or loss.
• Period of resposibility regulated in Article 18(1).
• Liabilty limits regulated in Article 22(2).
• Payment of interest regulated in Article 22(4).
• Loss of limit of liability regulated in Article 22 and 25.
• Availability of limitation to parties other than carrier more spicific regulated in Article 22 in respect of loss or damage to the goods is available to the carrier`s servants or agents under article 25(1) of the amanded version provided they act within the scope of their employment.
Consignor`s Responsibilties and Rights
The consignor is responsible for ensuring the the details entered on the waybill are correct under Art 10(1) of both versions of the convention. Where the carrier suffers damage as a result of the incorrect, irreguler or incomplete particulars and statements, the consignor must idemnify the carrier under Art 10(2).
Consignee`s Responsibilities and Rights
On arrival at the destination, the consignee, by handing over his copy of the waybill, can be demand delivery of the goods provided he pays the charges and complies with the delivery conditions set out in the waybill (Art 13(1)), as long as the consignor ha not exercised his rights under Art 21(1). It is not clear what is meant by chargers in the context of Art13(1). Presumbly, itbrefers to freight that may be payable on collection. However, where the arraengement is for the consignor to pay the freight, then he will bw liable to the carrier.
Proceedings
1. Choice of forum, both version of the Warsaw Convention content a provision specifiying the places where a plaintiff may bring an action for damages againts the carrier, Article 28(1) states thet the plaintiff has the option of bringing an action for damages in the territory of one of High Contracting Parties, in a court having jurisdiction at one of the following places :
• Where the carrier is ordinarily resident; or
• Where the carrier has his princapl palce of business; or
• Where the carrier has an establishement by which the contract has been made; or
• At the place of destination.
2. Arbitration, parties are free to agree to submit diputes relating to carriage of goods either before or after the damage accurs. The arbitration however must be conducted at one of the fore specified inArt 28(1) (Art 32). Article 32 does not state whether the arbitration agreement must be in writing apart fro saying that carriage of goods arbitartion clauses are allowed.
3. By Whom, the cognsinor and the consignee have a right of action aaints the carrier under the amended and unamended version of the Warsaw Convention (Art 14).
4. Time limtation, an action for damages will be time barred if it is not brought within two years (art 29(1)). Time starts to run from the date of arrival at the dstination, or from the date on which the aircraft ought to have arrived, or from the date the carriage stopped.
The Montreal Convention
The Warsaw regime had been questioned for quite a while due to the complexity brought about by the co-existance of the Warssaw Convention 1929 and the Warsaw Convention as maended by the Hague Protocol 1955, along with the four Montreal Protocls. Attention to the shambles of the Warsaw system was continously drawn by academic writers.
The Monteal Convention has so far received well over eighty ratifications and there is no doubt that over time it will come to replace the Warsaw regime in its entirety. Nevertheless decisions under the Warsaw regime will continue to play arole in the future in aiding the intepretation of those provisions of the Montreal Convention that are similar, if not identical, to those found in the Warsaw System.

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