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    Copyright:

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    28 views14 pages

    Transpo Finals

    Uploaded by

    Rucheska Jacinto
    dsda

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    of 14
    ‘Special Contracts under Maritime Commerce 1. Charter Party 2.Loan on Bottomry and Respondentia L CHARTER PARTY CHARTER PARTY -contract whereby an entire ship or some rincipal part ofthe said ship, i lt bythe owner thereof toa ‘merchant or other person fora spectied time or use for the conveyance of goods, in consideration ofthe payment ofthe freight ~itisa document in itself andit does not refer to.a partyin a controversy. Simply put, iis in the nature ofa contract of lease, having forts object the whole or part ofa vessel <2 ship captain who entered into a charter party even against will ofthe owner willbe civily lable for damages tothe owner. Still, the contract is VALID. >Definition of Terms: 1. Thelay days~ the numberof days given to uunload/toad (this is free) 2. Theeextra lay days an extension (tis not for free). 3. Demurrage the penalty or fee forthe excess time spent in unloading and loading. 4. Primage —compensation or fee given tothe captain ‘or crew which is due to the special care of captain and crew toa particular cargo 5. Embargo — legal restriction of departure of vessels 6. Contract of towage— contract fora barge to be towed by 2 ship >Requistes of a Charter Party 1. Must be in writing, signed, and with the consent of _the parties(Art. 652) Except: if cargo delivered when cargo is already delivered or received without the Charter Party being signed, the stipulation should be interpreted ‘to be that contained in a bill of lading. (Art. 653) 2. Itrmust comply withthe appropriate formalities: ee me Aonnage of the vsse rigin of regis ilersioss ae fares ana z ort of Loading/Unloading 5: copcty andthe cage reed upon by the parties abe leaded 6 Frege theme 8. Lay days/ extra-laydays Hypo Question: The parties agreed to deliver cargo from point A to point 6, The Charter Party stipulated that there will bbe a demurrage. But when the cargo loaded and the vessel was in voyage, there was a deviation to point C, with a bill oF lading to that effect. Shall there be a payment of demurrage? -No. The SC held: since the goods were received although the Charter Party was not signed itis still valid, but the provision in the bill of lading will apply. Since the bill of lading did not contain a stipulation as to demurrage, then there is no demurrage esata “paste asa eecatatiaatiaetns whole (hence, “bare”) and need not provide that the crew is included because of the principle that the control of the crew is given to charterer, along with the navigation etc. He is ‘deemed the OWNER of the vessel and the EMPLOYER of the crew. «In case of doubt, the charter party is always presumed to be ‘a BAREBOAT charter party, and not affreightment. Hypo Question: A was part of the crew of a vessel. After 3 ‘months, the vessel was chartered. A was terminated by the charter. A is now claiming that he was terminated unlawfully. ‘Against who do you file the case? - The charterer. He has now the burden to prove that itis not, a bareboat charter party. (SC Case) b. Semen ace hires the vessel either for a ‘determinate period 6f time or per voyage or successive voyages 2 kinds: 1. Time voyage fixed time 2. Voyage per voyage or successive voyages ‘Grounds for rescission and at whose instance Difference between Bareboat and Affreight ment - Bareboat s a charter ifthe whole vessel while affreightment Isa charter of a part of the vess|. The former CONVERTS a common carrier into a private carrier since the whole vessel is hired, While i the latter itis not converted. > Significance of the conversion? ~There could be a stipulation limiting liability in case of ssnepiyensmoisimelincunes 20d itil bevalidinthecsseck, bareboat only and not inaffreightment. >Governing laws: 1 Common Carrier= Civil Code 2. Private Carrier~Code of Commerce. The moment the Common Carrier becomes a private carrier, the Code of Commerce will apply Obligations of the Charterer of the Vessel 1|AnchorizEscudero If the vessel is no longer seaworthy, the captain shall: (1) Logk for another vessel within the parameter of SOKM for ~the purpose of transferring the cargo and continue with the voyage. If he is indolent in searching for another vessel then he isliable for whatever damage that may occur. The cargo ‘owners will now have the-ight to look for another vessel at -the expense of the captain or the shipowner {2)iFhe cannot find another vessel, he may deposit the vessel> whieh is not seaworty >When can the Captain sell the cargo? -allowed in Charter Party but not in Loan on. Respondentia{oniy the owner) 1. Cargos under 665 and 666 if under special circumstances such as fornecessity, provision, food, and repair ofthe vessel, the captain can sell) but must pay the owner; ~ 2.. if the cargo is at the risk of deteriorating _ 3. If consignee cannot be found or refuses to claim the cargo. ____ 4 preserving the cargos more expensive than the value ersoitsee >Can a ship captain enter a charter party -Art.655,the ship captain can enter a charter party provided, inthe absence ofa ship agent, even fit isin contravention or aginst the instruction ofthe ship agent or owner~stilvaid> -But the owner may go against the ship captain for damages». Instances where the cargo made lable for freight, duties, taxes, duties, other expenses advanced and ought to be ‘eimbursed bythe shipper: 1. cargo was sold for the repairand the vessel reached” «the destination: J 2 when the vessel was repaired but after the repair “the cargo was not sold and the vessel reached the destination De rmaerace aa 94. fortuitous event Instances when cargo isnot liable to pay freight: 1. Inthe event of a shipwreck or the'stranding or the toss of the vessel (unless the vessels ultimately repaired and brought to its destination, in which case the cargo salvaged during shipwreck, will be ‘A charterer is deemed the owner of the vessel as a whole and should not accept cargo more than it can handle. Owner must respect the capacity of the vessel. Owner once he notices that cargoes were: IF ‘not dangerous, he can still optto deliver but ata-higher-“"" freight: In case of expiration of lay days, the cargo is not yet. ready for loading, then the vessel can leave without them. ease mes a private carrier, the Code of Commerce will apply > Grounds for rescission and at whose instance \ IL LOANS ON BOTTOMRY & RESPONDENTIA © — - SPECIAL kinds of loans involving Wessel bottomry) and cargo trespondentia). Because the vessel and consequently ey eas Wat the raeret Se Sea tess Gbyecs erode ate “parties can stipulate a higher interest since it isnot covered by the usury law unlike in simple loan, a contract of loan in the nature of mortgage @ dos ssoe fgaaaane = mcecrsnen (notarized). Bottomry Respondentia ce Cargo. — Extinguishment of obligation | Obligations paid only if the to pay when lost subject ‘Simple loan v. Loans on Bottomry and Respondentia, loans on Bottomry and Respondentia Bottomry: the collateral is, the vessel and ifit is lost the ‘obligation to pays ‘tinguished. Respondentia: the collateral Ls She aIge ‘Simple loan: obligation is not ext id upon lost of the ‘collateral, payment should bbe made at all costs 2|AnchorizEscudero -{fitis not stated specifically that the voyage is from point A to point 8 or one way, then the presumption is that it is two _ May (round trip). In order to limit coverage, it must be specifically stated to {the borrower is not Specifically st pone way. obligated to pay the loan if its not stated) L : : a 2. lender losses his preference of credit{LOB and LOR 's preferred over ordinary loans) —_Llssis due tothe inherent defect of the cargo 2 faut of borrower himelt é a ] 3 pltbiatnalegen te part of ha captain ofthe vessel © "4. ff damage was caused because the borrower was 5. good loaded is diferent from that designated in the contract >Rule in Obligation when it comes to General Average: expenses incurred to save cargo or vessel by jettisoning and lender OR owner benefitted from such, the lender shall be liable to the proportionate. ‘amount of his interest in General Average which may ‘take place in the goods in which the aah made. Example: Cargo worth 1M, loan on respondentia is 500k, General Average is 100k, How much should the lender pay? -his interest is one half. Then he should pay SOk HYPO: in the case of shipwreck, and the vessel is stranded but some of the goods were salvaged or recovered, there is hati aanasiadonetinsnn What is the basis of fetermining the payment of the borrower?~-Not the eriginal. -Law states that in shipwreck it is based on the value ‘of the goods saved minus the ex; >Where goods or vessel is covered by insurance: GRiif it is 100% covered by loan it cannot be covered by insurance’bécause there is.no more insurable interest on the part of the owner Siar © nsaance and 18/08 may co—ens but there shod detention of haa ae, Hono determine hale oth geo ‘O vessels 1M and subject to LO5/L08 for 700k, How much is nsUfable interest of insurance company? 300k only en HYPO: Before the vessel reached its destination in lloilo, the vessel sunk. a.ifiti¢aloanon bottomry: “There is no more obligation to stmnctinueenae a eee b. if respondentia! asia eae cargo was saved, then the borrower wil pay lesser expenses But ithe cargo was lost and vessel was saved, he obligation of the borrower to pay in respondent i extinguished “bottomiy, stent) >Order of preference if there are multiple creditors)" Rule 1: contracts or loans during voyage have preference over loans contracted before the clearing of the port for voyage Rule 2: The order of preference shall be inthe inverted order. based on the dates. Because if it were not for the latest loan, the vessel would have sunk and will be liable. There is presumption that the last loan saved the vessel. Last loan has, oPcireep cunt the catlez donna Rule 3: If several loans wee ten inthe same pot, then they have tobe paid proportionately, HYPO: For instance, in several loans on bottomry were contracted. Before the voyage, a loan in Manila for 20,000 was contracted. During the voyage, a loan in lloilo was contracted. Due to the necessity of major repairs, aloan was contracted in Cebu for 100,000. Upon arrival in the place of hetncienb ~~ clea scab 3s noonger seaworthy. The vessel was then sold for The creditors are now asking for them to be pai ‘Manila —loan for 20,000 before voyage Hoilo~ loan for 10,000 during the voyage Cebu— loan due to need of major repairs for 100,000 DO - discovered that vessel is no longer seaworthy, s0 it was sold for 110,000. What isthe order of preference? Apply Rule 1 The loan contracted in Iloilo has preference Manila because it was contractedi@RiBalthe 3[AnchorizEscudero ‘Apply Rule 2: The loan contracted in Cebu wastatestthem it has preference over the loan in toile, So 100,000 will be paid to the creditor in Cebu. The remaining 10,000 will be paid to the creditor in ito ‘Apply Rule 3: Assuming that nthe same port in Cebu, there were 3 loans were contracted with3 different creditors, what 's the order of preference? it must be paid fopeHionataly to the amount of the loan Note: The rule that when the collaterals ost, the ‘obligation of the borrower to pay is extinguished ‘only apples to risks due to( MARINE PERILS ot NATURAL DEFECT, MALICE, NEGLIGENCE, BARRATRY, then the obligation still subsists. aw >Effect of loan obtain thru where the borrower was able to, get a loan morethan the value of the vessel: For instance, the vessel is worth SOM. but because of fraud, you were able to get a loan for 70M. cae en | one ea < “Yes, provided that the ship captain is - within the,cesidence of the ship agentor the ship = 2asthathelsauthorized todaso: *Residence here, se (place of abode) but may be i 5 BiSidalthe residence of the ship >What if ship captain i ‘owner or ship agent? -Yeshecanstllan enter into alean of battomnry @ (1) if it is connected to his| {ocvoyage such as inthe case of the provision of the Geshe cares (2) ifthe ship captain is inwhich case the loan will be i Accidents in Maritime Comm ges al Under Stress lision Shipwreck » expenses and damages of the vessel orto the cargo. ° >2 meanings of Average: > Who will shoulder loss in damages and expenses? Identify what kind of average first. Pein = Petty and ordinary-expenses or expenses incidental tonavigation:(pilotage, lighterage, inspection, health, maritime fee) - important thing to determine is the kind of \averagebecause ifitis an average then the next thing you should think of is "whorwil_ “Ordinary expense ‘Average © Provided under 807 Provided under 806 | 2Shipowner wil bear the loss | -The person to bear the loss would depend upon nich are portofndvigatin. we [eset eietah eee os shouldered by the ship owner Gear pasaee Una Substitution ofthe captain who | person who owns the aes ennimnasr ose mciege ieee eaetereie arene reece, ath 41 AnchorizEscudero What are the 2 kinds of average? ses or damages in the urse of voyage which does ire to the benefit of the __common interest. tis only particular to the person who owns: the thing: if it is an expense on th shippthen the shipowner will bear the loss; itis an expense on te cargDpthe owner | ofthe cargowillbear the loss. Specific instances: 1. expenses for the inherent defect ofthe cargo/force— ‘sAmajeure. Reason: it does not inure to the benefit of ‘other persons. Example: Guimaras mangoes (which are still good within 5 days) deteriorated because ‘they were delivered only after 10 days. The expenses for the loss willnot benefit other persons other than the owner ofthe cargoes. He cannot compel others to contribute to the average 2. damage to the hull, rigging, arms, and equipment 3. expenses fr the wages, victuals, or provisions of the vessel or crew in case of legitimate g of the vessel provided that it age it ‘qupenticiame, itisa 96 not simple. i doesnot know the reason why ths so, (Ameren corporation ‘example) Ex: American corporation loaded equipment and agricultural machineries on a German vessel for Russia but during the voyage, a war brought out in Russia and Germany, so the vessel decided to go to Philippine port to seek refuge. Who would bear the expenses while in the Phils? General ot 12 Particular only, the a (because of war,and _sgsafety to the vessel only andnot the» ‘the latter isa legal’ — wanenobuesselehall Eee aST TREAT apennence dasaeps 007A, rene SE wher eT ed son: wereeit not coer thing would fetal laste» >REQUISTTES of gene ners: CDS“ OG A captain was sailing then al of a reece vessel? Isita valid average? No, itis not. Imminent and certain but is merely based. “on speculation) 2. Part of the vessel or cargo or both must be EET Uat Weta a vase buttecace of storm the logs broke free causing them to all from the vessel and asa result the vessel stabilized and saved the vessel from capsizing. Is the owner of the logs entitled tocaim reimbursement from all who benefitted? No, he isnot entitled on the. ground that itis not considered a general average since there was NO deliberate Sacrifice but only an accidental jettison. 3. Sacrifice {sacrifice _would make the average 9 general average ifthey » Sacrifice was not successful. -Q Part ofthe cargo valued at PSOM was jettisoned and the rest ofthe cargo was, saved as well asthe vessel. When the voyage was continued, the vessel sunk and the remaining cargo was savaged. Are those cargoes saved lable to pay the cargoes that were earlier sacrifice/jettisoned? Yes, partly. The sacrifice was still successful so that the voyage was continued although the whole voyage was not successfule Th 4 | follow, AY GA Tecoptain musta am oO. have an interest with a resolutiony'the minutes of which stall be entered in a logbook. Those who" @ rea et thes ted for the decision.and against it shall a ne (ES ‘ xd legal steps: ose who also be recorded. The scence ‘ajrity shall prevail, but the captain will ~ have thet ofthe. captain and the majority must be recorded in the logbook. Ifitis based on lack of “experienced, skill, or negligence, then:the “decision must When the cago is jettisoned, the captain shall determine __ which cargo shall be jettisoned and the order of the sar Thee of argo be jerrisonde: S|AnchorizEscudero (GENERAL RULE: Average pertains toexpenses or damage... neural the wove EXPN 1: in the course orgy te cargo is transferred to the barges or ighters sos tighten the vessel, this willbe considered asa general average EXPN 2 inthe case of vessels already anchored in the pir, stated catmaniaciseneiae neteesteral sinking OFOtEr boats andthe expenses willbe considered as an average evenif the vessels notin voyage» OObL TL Who are the people liable to contribute na general average .. (ina charter party)? Who are those who have -fited? ‘Those who have interest are th ner, tHe-éwner of the ‘cargo (in proportion to their intepest since some gargo are Tre exper than thers th Corowar and ern= “bottomry and gespondentia, (in proportion to the amount of their loans), asesmenasaicicmen duane the extent of the interest to know the contribution) IL. COLLISION sudden impact by 2 moving vessel, or by _ moving vessel and the other is stationary: The former is, = definition of colision while the latter refers to 826 ~speaks of liability incase of collision if only’ ‘who will shoulder the loss? The vessel GE fault shall shoulder repair of the vessel and loss of the cargo. ~ both of the vessels will be lable. Rule ‘on liability due fo damage on the VESSMeach on.will bear his: “own loss. Rule on liabiity due Cs of the eins oe debtor can pay for the obliga ‘est, oF the creditor can sue any solidary debtor for the whole sium, and the latter may demand from the others their proportionate share in the debt) particularly with respect to coll EX: vessel A collided with vessel B. A was proximate cause while B was the contributory cause Both are considered at fault regardless if proximate or contributory cause. ‘What if collision was due a ‘who was at fault? The owner of the vessel will suffer the loss pine nec ae than. 4. Zone! ~covers from all he tim the risk begins. 72. 2. el, 1egins up.to the time the risk i certain RS i from the time of collision is ceitain up tothe time of collision jp to the time ‘What isthe significance of these zones? To determine: shall bear the loss S. vessel whois faultless in the zone! change in course inthe 3" zone wil not be: liable ifthe deviation was made due to the feult ofthe vessel "at fault inthe 2% done >in order to pr ‘the cargo must be proved by a bill — of lading and that it must be inventovied_. >The limited lability rule also applies in collision, EX: Vessel A collided with Vessel B. Ifthe fault was on Vessel A, who will bbe liable? (Article 806). The hypothecary nature of lability is applied. Ifthe collision was thru aptain of Vessel A and as a result Vessel 8 was damaged, under the ules on collisionyA.is liable. Under the limited rule, ‘ue eres REIN ™ Heereecore >in order for aggrieved party to claim damages in collision, there must be therfiling ofa/protest within 24:hours! ‘Situations which need the fling ofa pratest: 1, SHAC shipwreck, ifvesset has gone thru a ‘hurricane or when the cargo_is believed to bein distress, arrival under stress, collision PN: the person gener hein of colison EXPN 2: if on gE corse his wishes to ‘sustain the actic — I EXPN 3:If the other vesseis nora Martie esi@h, 6|AnchorizEscudero ARRIVAL UNDER STRESS (Pa. Captain shoul GETERRARE during the voyageit__ there is a well-founded fear of seizure, privateers, and other eel a awel Sounded fear of sein (ina scenario where thee sa need torepairthe vessel” Is already loaded and the cargo should be ded from the vessel. Who will shoulder the expenses? ° “The owner of the vessel i the burpase isto preserve” ef pee = oa wi he inability to continue the voyage due to: =the owner of at ek of provisions tpP the cargo , (> 2 waved tarot staan eee pirates . ifthe reason (6 oaD both ofthe! Aq 3 Accidents ofthe sea disabling it to navigate ‘proportionally ¢ inability to continue voyage is due The custody ofthe cargo after temporarily unloaded is still : der ‘makes him liable in case of damages 1 Lsckof provisions due gE carey oriess. : according to usage and custém of the particular place, and= 4 {the cargo was alreadyidamaged (partly or wt the Be 2. __Rskof enemy isnot well known or manifesL4NOSHB _ festa ar of seizure by pirates and prvatesr) of vessel due to improper re paired prior to the voyage) 4 “Malice, negligence, lack of foresight or skill of the seaptainn MA be 7|AnchorizEscudero SHIPWRECK 1. expr te Sed fe _the loss of the vessel at sea as a consequence of its * unding. oF running against an object.in sear coast It When the vessel sustains injuries due to a marine perit ‘rendering her incapable of navigation. Injuries or loss suffered by the vessel because of the swallowing by the waves, or grounding or running an object in the sea, rendering itincapable for navigation. @D ‘the wreck was due tomalicejnegigence oF lackof sil of the captain, the own A i fer the dam isto the: as a ing that there was no malice, negligence, lack of foresight, o lack of skill onthe partofthe captainiOtherwise, indemnity may be demanded from him. Lapin ill epersonai able Hf theres matic, pes. lack of foresight, lack of skill the ves ‘owas insane agaied. ene The rules on collision or allusion as may be pertinent cah equally apply to shipwrecks SALVAGE LAW (ACT NO. 2616) 2 concepts of atvage: + ne person renders to the owner of a ship 2 60045, By is own labor, greservi the goods or the ship, "which the owner or those entristed with the care of them, weavesitbspat pelt vediin whole or in part from impending'sea peri, or such property recovered from actual perl or los, asim cases relic, ovrecapture 5) [2 SALVAGE CLAIM: Valid salvage Object must have bee! ful total om partial 9 ¢ law, has an interest in-the— property. Tiss called (LIEN) butt never goes, in the absence ofa contract expressly made, uport the idea of debt, A salvage, in view of mari Pero, property is lost, he must bear his share owners (CREB sawace: Tr 3. Flotsam or Flotsam goods which lost spon the sea stencstonen! we Persons who ha reward for salvage: onan saved C2 _ Person who tommenced te saagein spt of “opposition ofthe Captain or his representative (F3- _Inaccordance with Section 3 ofthe Salvage Law,a person who fails to deliver a salvaged vessel or cargo to the Collector of Customs soods cast nto the sea tied toa. 50 eee ound again by the owners cargo which is abandoned and” ¢ FE a V CPS OT bi ETI ESS, The intention of tod a Charge atl scertamed. tice in charge left with the intention of returning, or of procuring assistance, the property is NOT DERELICT But they qu the property with the intention of inal leaving, te BERELICT> and a change of their intention and an attempt to return will NOT CHANGE its nature BARRIOS VS GO THONG =when the contracted created it one SJ aragr oh ta aera he exclusion ofthe crew of said vessel, may be entitled to _temuneration Salvage Law (Act No. 2616), Section 1 provides: “When incase of shipwreck, the vessel or its cargo shall be beyond the control of the crew, or shal have been abandoned by them, and picked up and conveyed toa a place by other persons, the latter shall be entitled to. ica forthe salvage”. The fllowing are entitled toa reward: ° /_ those who assist in saving a vessel or its cargo from eae shall be entitled to a reward. (© @) the compensation allowed to persons by whose assistance a ship or her cargo has been saved, in whole or in _part, from impending perilon the se, orn recovering such Three elements are necessary to a valid salvage claim, namely: BlAnchorizEscudero (1) —_amarine peri (2) service voluntarily rendered when not required as an existing duty or from a special contract, and (3) success in whole or in part, or that the service rendered contributed to such success. The distinction between salvage and towage is of importance to the crew of the salvaging ship, for the following reasons: If the contract for towage isin fa towaee,) ‘then the crew does not have any interest or rights in the- remuneration pursuant to the contract, But ifthe owners of Mirena el ar of (ha pln meat salvaging ship Is entitled to salvage, and can lookto the. salvaged vessel for its s {ULES ON SALVAGE REWA\ T The rewardis fixed by t cof agreement or where the latter is excessive 2 he absence The reward should constitute asufclent forthe outlay and effort of the salvos and Should be liberal enough to induce other to render services ilar esnergences in the future tS cam beng mode wtin3 ants trom Publication), the proceeds after deducting expenses and the salvage claim, sh In 3 yea dlaim if within 3 |. salvgrs, who shal divide it equitably and the other half to the ‘SALVAGE TOWAGE ‘government x “a Ifa vessel is the salvor. the reward shall be Asto law “Special law = Act

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