When does the duty to provide a seaworthy vessel in charterparty end?

Under common law, the shipowner has duty to provide a seaworthy ship at the time of voyage in order to discharge his risk. If the goods are damaged by any causes, the shipowner is responsible for it as insurer. Notwithstanding, the shipowner may not be liable if he is protected by the exceptions. The vessel seaworthy begin at the time the good are on board until she ready to sail to sea[1]. For the example in case of McFadden v Blue starline after loading of cargo had been safely finished, the ship’s engineer opened a sluice door on watertight bulkhead and on closing it, fail to secure it suitably. It had been cause of percolating though and damaged the claimant’s cargo. It was judged that, as the defective closure of the sluice door occurred after the cargo had been loaded, it did not settle the breach of the cargoworthiness undertaking. Base on this case, it could be said that the responsibility of seaworthy ship is ended, when the cargo had been safely loaded.

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[1] John F Wilson, Carriage of  Goods by Sea(Pearson Education Limited,7th edn,2010)12

What is moral rights in intellectual property law?

Works of authors are not protected only by copy right but also moral rights[1] which are independent of the economic rights and grants the right to claim authorship of the work and object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation[2].However the author can waive such rights.[3]

France is first country where the Moral rights were recognized after that they were promulgated in Berne Convention[4]and then it has been ratified by several nations including German, China[5] and so on.

Nevertheless, the scope of moral right is not clear and is different with cultural conceptions of authorship .Under American law, moral right is protected though the judicial interpretation of several copy right, trademark, privacy and defamation statues and though the 17 U.S.C. §106A known as the Visual Artists Rights Act of 1990 (VARA)[6] which it seem to be inferior to the moral rights in French law[7].

In United Kingdom, the infringement of a moral right is considered as a violation of a statutory duty and will result in an award of damages under the Copyright, Designs and Patents Act 1988[8]. The right to object to false attribution is last for twenty years after the author’s death after the death of author, moral right usually are exercised by their heirs[9].Nonetheless, some kind of literary works is not protected by moral right for the example: Authors of copyright database ,there are no moral rights in respect of the database right[10].

Finally, even though in each country, the concept of moral rights are various in detail, the principal is still similar that is the moral right empowers the author to receive credit for her work when a work is copied, the right to anonymous as the author of a work and prevent her work from being changed without her consent.

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[1] Derive from the French term that is “droit moral”

[2] Berne Convention for the Protection of Literary and Artistic Works in 1886

[3] Swagateeka Patel,’Waiver of Moral Rights’<http://www.articlesbase.com/intellectual-property-articles/waiver-of-moral-rights-566425.html>accessed 14  November 2010

[4] William MacGrath, ‘Lecture International Copyright Law’(24 April 1998)

<http://www.taradji.com/color.html>accessed 14 Novermber 2010

[5] Uma Suthersanen,’Author's Moral Rights in UK and China’(School of African and Oriental Studies,14 January 2002)

< http://www.chinaiprlaw.com/english/forum/forum22.htm>accessed 14 November 2010

[6] Betsy Rosenblatt,’Moral Rights Basics’<http://cyber.law.harvard.edu/property/library/moralprimer.html>accessed 14 November 2010

[7] Thomas F. Cotter,’ Pragmatism,economics and the droit moral’

< http://cyber.law.harvard.edu/metaschool/fisher/integrity/Links/Articles/cotter.html >accessed 14 November 2010

[8] Lionel Bently and Brad Sherman,’Intellectual Property Law’(2 nd edn, Oxford university press 2004)231

[9] Copyright, Designs and Patents Act 1988 s.103

[10] David I Bainbridge,’Intellectual Property’(8 th edn,Pearson Education Limited 2010)280

 Link to Berne Convention for the Protection of Literary and Artistic Works click here

Link to Intellectual Property Office click here

 

Questions on bill of lading

Bill of lading (B/L) is a document which the carrier issue to a shipper. According to the British law, it can be categorize the Bill of lading into 3 significant figures that is 1) as receipt for goods shipped[1]2) as evidence of the contract of carriage[2]and 3) as a document of title[3]which are transferable by endorsement and grants lading holder to call the carrier to deliver the goods stated in the B/L.[4]

 This essay aims to consider the 3 important questions base on the English law as following:

1. Does the Nemo dat quod non habet maxim[5] apply on the B/L?

In nutshell, this maxim can be explained that a person does not have the proper right; he may not assign such right to another. This general principal is excepted in case of negotiable instrument[6] .The document of title which deem to be negotiable instrument must have a significant qualification that is the transferee may obtain  better right than transferor .[7]

2. The transfer of the B/L grants right to file suit to the transferee?

Following the Privity of Contract doctrine, the contract is only binding agreed parties, however the Carriage of Good by Sea Act 1992  section 2 (1) provide that the lawful holder of a bill of lading has the right to file suit[8]; accordingly ,the lawful transferee gains the right to litigate from L/C.

3. Does the title of goods transfer to the transferee at the same time which transfers the bill of Lading?

Bill of lading is document of title in meaning of possession of the goods, the lawful holder acquire only possession. The transfer of title of goods hinge on the sale contract and the Sale of Good Act 1979.

 Link to The Carriage of Goods by Sea 1992 here

Link to The Sale of Goods Act 1979 here

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[1] John F Wilson, Carriage of Goods by Sea(7th edn, Pearson Education Limited 2010)118

[2] John F Wilson, Carriage of Goods by Sea(7th edn, Pearson Education Limited 2010)129

[3] John F Wilson, Carriage of Goods by Sea(7th edn, Pearson Education Limited 2010)132

[4] Indira Carr, International Trade Law(4th edn, Routledge-Cavendish2010)182

[5] Translate into English as No one can give who does not possess

[6] Jstor,’the modern law review (September 1962)<http://www.jstor.org/pss/1092362>accessed 12 November 2010

[7] Ivamy.E.R.Hardy,Payne and Ivamy’s Carriage of Goods by Sea(13^th edn,Butterworths,1989)92

[8] East West Corp v DKBS 1912 [2003] 1 Lloyd’s Rep 239

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Strict compliance in Letter of Credit

Letter of Credit (L/C) is a financial and payment contract whose significant character is a bank guarantee and separates the sale or other contracts, although L/C is done so as to perform the obligation of the sale or other contracts.[1]L/C consist the 3 important principal as following:
1. L/C is separate transactions from the sales or other contract
2. L/C concern deal with documents, and not with goods, services and/or other performances to which the document may relate.[2]
3. Banks must strictly comply with L/C.
The aim of this essay is to explain what strict compliance is and how it can be applied to L/C.
Strict Compliance doctrine
Generally, banks must examine all documents stipulate in the Credit with reasonable care and be in compliance with the term moreover, the judgment in United Kingdom has created a fundamental principal of L/C that banks must observe strictly all document.[3] If bank make a payment for the error document, bank will be responsible for it

Relating Link here

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[1] Uniform Customs and Practice for Documentary Credits,2007 Revision,ICC Publication No.600(or called UCP600)Article 4 a.

[2] UCP Article 5

[3] Equitable Trust Co of New York v Dawson Partners (1926) 27 Ll LR 49 at p 52

CL on drug in Thailand

The invention of drug is protected by the patent law which authorizes the patent holders to monopolize their production and set their price. On the other side, the patients need the drug to recover their paint and to live longer.If the price of drug is very expensive,they may stop taking it.That mean they must accept their suffer or death. Hence, It is necessary for the government to have the mean to address this problem. One method is Compulsory Licence (so call “CL”).
CL is abbreviated from Compulsory Licence whose definition is not stated in the Agreement on Trade-Related Aspects of Intellectual Property (Trips)[1] or Doha declaration on Trips and Public Health[2], However it can be implied that compulsory licensing is when a government allows someone else to produce the patented product or process without the consent of the patent owner. It is one of the flexibilities on patent protection[3].
Trips is binding Thailand as WTO member to protect the intellectual property. However ,Thailand is consider to not comply with Trips in using CL because Thailand has been exercised CL on 3 formulas, that is Efavirenz, Kaletra (anti-HIV),Combination between Lopinavir and Ritonavir(anti-HIV) and Clopidogrel (heart disease) and have plan to utilize CL on the other formulas whereas Abbott (Provider company which is the patent holder of Kaletra )has retaliated Thai government by withdrawing the 7 drug’s application .[4]The significant issue which should considered is that although the exercising of CL can solve the expensive price of drug but it impede incentive to create innovation in the long run. Hence CL on drugs is difficult to find the middle way between the patients and the provider companies.

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[1] See Trips Article 27(2 )Link here

[2] See paragraph 6 of Doha declaration on TripsLink here

[3] <http://www.wto.org/english/tratop_e/trips_e/public_health_faq_e.htm>

[4] <http://unitcost.fda.moph.go.th/cl/news_detail.php?id=249&type=5>

What is European Union(EU)?

EU is collective European countries.its significant character is "supranational trait" that is to say they assemble in order to creat the internal institutions which have power above the souverignity of members states ,for instance :European Parliament,Council of Ministers and European Commission .The detail is explained as following:
1.European Parliament whose members are democratically elected by direct universal suffrage. It represents the people of the Member States and they serve for 5 years terms.their mission is to draft the EU law such as directive ,regulation and so on.2.Council of Ministers whose members derive from ministers and representatives from each EU nations.Its task is to provide EU policy and direction.
3.European Commision is EU's executive body support the interest of EU as entire.It is responsible for drafting  proposals for new EU laws and examine that EU's members respect EU treaties.
Here relative websit.

Can an arbitral award from China be enforced in Hong Kong ?

Although the sovereignty of Hong Kong has been returned to the Mainland China, The conflict of legal system is still significant problems which affect to commercial transaction.One of the essential commercial question is whether an arbitral award from the China can be enforced in Hong Kong or vise versa.

Following the Memorandum of Understanding on Arrangement concerning Mutual Enforcement of Arbitration Awards between the Mainland and the Hong Kong SAR admit an arbitral award from Hong Kong is enforceable in the mainland China.                                                                                

(2)the ground that the court will review the award ,is stated in The Memorandum of Understanding on Arrangement concerning Mutual Enforcement of Arbitration Awards between the Mainland and the Hong Kong SAR article 7 (1)-(5) such as

“(1)A party to the arbitration agreement was, under the law applicable to him, under some incapacity, or the arbitration agreement was not valid under the law to which the parties subjected it, or ,failing any indication thereon, under the law of the place in which the arbitral award was made;”

Moreover, following the second paragraph of article 7 of the above mentioned Memorandum of Understanding provide the court can review on ground of contrary to the public interests of the mainland China.

Link to Hong Kong Journal

What is CISG

Convention on Contracts for the International Sale of Goods (CISG) was drafted by United Nations Commission on International Trade Law (UNCITRAL) in order to unify the international commercial law .CISG was improved from Uniform Law on the International Sale of Goods(ULIS) and Uniform Law on the Formation of Contracts for the International Sale of Goods which swere not successful as they were not  reconized by international trade society and were not Convention.
CISG does not consist the detail of all substance 's trading practice but its purpose is to provide the fundamental right and duty between buyer and seller and restitution which harmonize deference of all kind of legal systems. CISG has 101 article which  can  be separated into 4 part as following:

Part I - Sphere of Application and General Provisions (Articles 1-13)

Part II - Formation of the Contract (Articles 14–24)

Part III - Sale of Goods (Articles 25–88)

Part IV - Final Provisions (Articles 89-101)

The significant character of CISG is regulating base on the principal of freedom of contract.Hence the parties in contract may change the provision of CISG or agree not to use CISG within

each national public order.[1]

Here relative link

[1][1] M.J.Bonell,Introduction to the Convention, in Commentary on the international Sales Law-The 1980 Vienna Sales Covention,p 13(C.M. Binaca & M.J.Bonell eds. 1987

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