The Applicable Laws in International Trade - Essay Example

International Trade Table of Contents Part 3 Introduction 3 Discussion 3 Conclusion 9 Part B 10 Legal Implication A 10 Legal Implication B 12 Legal Implication C 14 References 17 Bibliography 21 Part 1 Introduction The case scenario referred to in this context highlights upon the chances by which Emma can minimize her rate of loss making, by way of selling the remaining contents of her entire purchase. In this case, Emma purchased 3 containments of leather goods with 70 percentage of the payment along with insurance. However, on the way to delivery from John’s warehouse and Casablanca port, these three containments underwent significant amount of damage due to factors such as theft and climatic impacts. Correspondingly, when the situation has aroused on making a claim for the insured amount in correspondence to the losses incurred by Emma, the eventual happenings indicate that Abbe Insurers, the insurance company, have denied Emma for the payable because she has only paid 70 percentage of the total purchase amount. Subsequently, this discussion will focus on unfolding all the legal aspects regarding the terms mentioned within the Institute Cargo Clauses (A) 2009 and determining whether Emma will be liable for the insurance amount. Discussion The applicable laws in the aforesaid case scenario can be identified as the claiming policies mentioned within the Institute Cargo Clauses (A) 2009. This law was enacted as an international trade law with the prime intention of safeguarding the interests of both the insurance agencies as well as the buyers of the goods (Richards Hogg Lindley, 2009; Chuah, 2009). With reference to the referred case scenario, it is noteworthy that Institute Cargo Clauses (A) 2009 comprises of multiple sections based on the evaluation of which, the claimed amount can be ruled as deliverable or otherwise by the court. For instance, the guidelines concerning this law state that the insurance companies will have to provide a full coverage to any form of damage to the purchased or the transported goods, only if the damage conditions and the factors does not fall under the clauses 4, 5 6 and 7 (Hodges, 2013). Thus, it can be stated that if the reasons related to Emma’s loss does not coincide with these four mentioned clauses, she will be liable for the insurance amount from Abbe Insurers. The detailed explanations of these clauses have been provided in the later sections (Richards Hogg Lindley, 2009). Evaluation of Clause 4 of the Institute Cargo Clauses (A) 2009 Clause 4 comprises of multiple sub parts, each of which will be thoroughly evaluated henceforth, taking into consideration of Emma’s goods loss case. Section 4.1 The mentioned terms within section 4.1 states that the insurance company will not be liable to pay the insured amount for any loss or damage to the goods that have been insured if the damage appears to have been incurred intentionally. In simple words, based on the enquiry that will be conducted by the Abbe Insurers, if, by any means, Emma is found responsible for the loss due to her own intentions, she will not receive any claim amount from the insurance company. However, in the provided case, Emma cannot be held liable due to the fact that the loss had actually occurred because of inappropriate container sealing, theft and climatic impacts, which by no means can be considered as loss making intention by Emma (Richards, 2009). Thus, as per this particular clause, Emma possesses the full authority of making an insurance claim. Moreover, the company from which she bought the goods also cannot be held liable, as the theft happened after the containment left the company warehouse and reached the final drop point (Richards, 2009). Section 4.2 The insurance guidelines within section 4.2 states that the insurance company can be held liable for making a payment of 0.5% of the loss amount in cases when the goods being transported undergoes minimal amount of damage such as small leaks, wear and tear. This condition can however be identified as matching with the leather cargo being transported in the second container (Lloyds Market Association, 2009). As already mentioned in the provided case, the goods within the second cargo can be scheduled for further processing and finally, can be used for industrial usage. Hence, Emma, in this context, also holds the authority of making an insurance claim from Abbe Insurers. In this context, which Emma will have to ensure in this context, is that guidelines regarding this type of damage coverage have been mentioned within the insurance company’s policy list (Richards Hogg Lindley, 2009). Section 4.3 The guidelines within this section describes the terms related to the packaging of the goods that will be subjected to inland as well as the overseas transport. This guideline clearly states that the insured will not be liable for any sort of compensation, if he or she is found responsible of tampering with the packaging (Dunt, 2013). In this case also Emma holds the authority of making a coverage claim since the tampering of the packed leather goods within the three cargo holds were generally carried out by a third party, which included thieves and cold climate (Dunt, 2013; Lee, 2013). Section 4.5 The guidelines within this section describes about the terms of attainable insurance claim against the damages to the goods caused due to any sort of delay in the transport time. The coverage remains valid even if the delay is caused by the assured individual. In this context also, Emma holds the authority of making a claim against the goods that were damaged within the second container, as the delay was not caused by Emma herself (Pohjola 2014; Mitsui Sumitomo Insurance. Co. Ltd., n.d.). Section 4.6 This section states that the insurance company will not be held responsible for provision of any sort of claim to the assured party in case a financial or payment related default occurs from the side of the assured party. Further, in this case, the insurance agreement will gradually get terminated before the good gets loaded in the cargo ship. Thus, Emma holds the authority of claiming the insurance company for coverage, in the grounds that she has already paid for the insurance before the shipping process (Ernesto Solari Assicurazioni - Insurance Broker, 1986; University of Oslo Library, n.d.). Even though based on the guidelines mentioned within the section 4 of the Institute Cargo Clauses (A), 2009 it can be stated that Emma holds the authority of demanding a claim from Abbe Insurers, the sections 5, 6, 7 appear to be against Emma claiming for the damages. Section 5.1 Section 5.1 apparently describes about the norms regarding the insurance coverage for any sort of damage caused to the goods being shipped due to the unworthiness or malfunctioning within the transport vessel. In cases like these, the insurance company will not be held liable for payment of any sort of coverage for the damages incurred (Zurich, 2014; Chung Kuo Insurance Company, Limited, 1982). Section 5.2 This section comprises of guidelines regarding the chance of making an insurance claim in cases when the staff members within the transportation vessel are found incapable of handling the loaded cargo in an effective manner. In such cases of loss due to carelessness, the insurance company, to an extent, will be liable for paying a certain percentage of coverage against the goods that might get damaged within the voyage period (Zurich, 2014; Bundock, 2013). Sections Related to Change of Goods during Voyage The guidelines mentioned in the section related to change of goods during voyage apparently indicates that in cases of goods misplacement during the shipping period, the insurance company will be liable for covering up the loss but only at commercial and current market rates (Richards, 2009). It is also mandatory that the assured individuals provide a prior notice regarding the goods misplacement to the insurance company(s). However, this pact might only be applicable to the shipping companies. Thus, in the provided context, this policy will not be considered applicable for making the claim, since the leather product misplacement in Emma’s case took place before the containment got loaded in the carrier ships (Richards, 2009). Other applicable legal sections on behalf of Emma’s case are the section 6 and the section 7 of the Institute Cargo Clauses (A), 2009, which restricts her ability to claim for the damages. For instance, section 6 describes that under no circumstance, the insurance company should be held liable for providing coverage for the goods that gets damaged due to sudden arising of situations such as war or revolutionary movements. However, no such situations came up in this provided case. In addition, the direction also states that the coverage will not be effective under other harsh circumstances such as bombing or due to the use of other sorts of explosives, which was also not identified in the referred case scenario involving Emma as the plaintiff (Dabydeen, 2004). Even though it is notable in this context that in the case scenario, Emma has alleged losses owing to climatic conditions, which will be termed uncontrollable and might also be regarded as a sudden occurrence, which might limit her chances of claiming for the damages to a partial extent. To regain her claiming chances, Emma should emphasise the evidences, which shall be helpful in proving that climatic conditions were impactful owing to packaging errors or faults. Correspondingly, in section 7, the clauses mentioned emphasises regarding the provision of insurance coverage to the damaged goods. The guidelines indicate that the insurance company, under any circumstance, will not be held liable to any damage coverage claims made in cases where the employees go out on a strike. This type of situations is often encountered within the logistics and multiple other industries. Although this section finds much applicability within the provided case, but still Emma will not be able to use this context for making a coverage claim against her loss. The aspects of damage due to terrorism have also been included within this section, which again holds this section an inapplicable to Emma’s case scenario (Carr & Stone, 2013). However, to be mentioned in this regard, proving theft may be justifiable under this section, wherein she can claim for further investigation of the matter, which will in turn help her prove that she was not involved in the theft and that the incident occurred was an unintentional activity conducted by third party people. Hence, through this section, Emma can justify her stand and points concerning section 4.1 of the legislation. Apart from the section 4, 5, 6 and 7 as mentioned in the above parts of this discussion, section 8 of the act also holds essential stance within this international trade law. According to this law, the insurance and the shipment company will not be held liable for providing coverage for the loss incurred by Emma in case, the provided destination address by the insured individual does not match with the actual address of the destination point. Moreover, the insurance terms over the goods will also get lapsed in case a delay of 60 days takes place in the delivery of goods from the transit dock to the final destination (Bundock, 2013). Justifying that these exclusionary clauses are not applicable in her case, Emma can certainly plead for the damages from the insurance company. Conclusion The concluding points regarding whether Emma can claim for coverage can be decided by taking into consideration of all the above-mentioned points in precise. If the concluding points are perceived by taking into consideration only section 4, it can be stated that Emma does have a chance of making a claim and receiving coverage. However, if the remaining sections of 5, 6 and 7 are taken into consideration, in context to this provided case, it can be stated that Emma, by any means do not hold any chance of demanding a coverage from the Abby Insurers. Moreover, one crucial factor also needs to be taken into consideration that the remaining three cases do not find much applicability in the provided case, in turn boosting the chances of Emma in receiving a considerable amount of claim. As already mentioned in the policy guidelines of the international trade laws, apart from these four crucial sections, the insurance company will consider all other goods damaging factors to be brought under the coverage. Thus, as a final concluding statement to this provided topic, it can be stated that Emma, with all respect, is liable enough for attaining a full coverage from Abby Insurers. Part B In this paper, the objective is to analyse the legal implications and identify the legal obligations according to the scenario based on three different occurrences. Legal Implication A According to the given scenario, a voyage charter party took place between Tina and Michel, where Michel is the merchant and Tina is ship-owner. In lieu of charter party, the merchant, Michel had promised to pay a charge of around $2500 to the owner of the ship, i.e. to Tina, on failure to load or discharge the ship within the agreed time of ten (10) days. Notably, the expressed lay time in the charter party was for five days, subjected to 30% demurrage. However, it was observed that the ship had actually reached the loading berth on 3rd March. Accordingly, it becomes evident that a delay has taken place in the scheduled loading and unloading process if the counter-offer is to be considered as forming a valid contract between the parties. As per the case scenario, the operation was also observed to have extended until 20th March, making Michael liable of providing demurrage to Tina. Demurrage is considered as the compensation paid by the merchant to the ship-owner owing to the lengthened duration taken by the former to load or unload the goods. According to the observation, it has been identified that the contract between a ship-owner and merchandise can take place, based upon a couple of situations. Either the agreement can be performed through hiring the services of a ship for a certain period in order to carry certain number of cargoes or it can be a single voyage to carry a particular number of cargoes from one port to another. In this kind of agreement, the hirer may use the vessel in order to carry the cargoes for his personal use or on behalf of someone else (Abasins & et. al., 2013). In this case, it has been observed that the conflict has taken place due to delay in the loading process. As per the observation, it has been noticed that the merchandise needs to take all the responsibilities of loading in order to remove the cargoes from the vessel within the mentioned period of five days. Moreover, it has also been identified that merchandise’s responsibility is to pay the cost of demurrage after discharge of the cargo under the charter party. Besides, it is the merchant’s responsibility to pay the promised amount of 30%, according to time specifications in the charter party, until demurrage is removed (Abasins & et. al., 2013). After evaluating this case, it can be asserted that the merchant, Michel who has appointed Tina for the voyage, is certainly liable to pay compensation for the damage due to delay in the process. Thus, in this case, penalty will be chargeable. Moreover, it can be asserted that during the agreement between a merchant and the ship-owner, it will be essential for both the parties to remain conscious about the agreement. In this case, it is perceived that the merchant, i.e. Michel has promised to the ship-owner that he will pay the charges of the ship, on the basis of $2500 per day for the ten working days, as per the specifications of the charter party. However, according to the observation, the merchant has failed to meet the criteria characterised by time bound agreement according to the agreement. Thus, as a result, the merchant has to pay according to its promise, the specific periods, which is more than ten days. Apart from this, in this case the merchant has to pay a certain amount of penalty for violating the contractual agreement, which has directly affected to the ship-owner Tina (Meons, 1998). Legal Implication B According to the given scenario, it has been observed that MV Sugar, the ship or vessel engaged in a vessel chartering agreement, is liable for losing the bill of lading during its journey. The term ‘bill of lading’ refers to a complete list of a ships cargoes in the form of a receipt, which is given by the master of the ship to the person dispatching the goods on the time of its delivery. According to the case illustrated, it has been observed that the shipmaster has informed the merchant that it has lost its bill of lading during its journey. Correspondingly, it has been observed that the local bank has prepared to indemnify all the losses, whatever it has caused, if the ship-owner is prepared to deliver the goods to the merchant without presenting the bill of lading. However, as such incident might spare loopholes in the entire process of docking and unloading goods, from the end of both the merchant and the ship-owner, it is essential to take note on the possible legal consequences of the same. In general, bill of lading is regarded as the evidence for the contract of carriage. This contract instrument ensures that the list of contains, which has been voyaged by the cargoes, as delivered transparently to the merchant by the ship-owner. It also acts as a tracking mechanism to identify any discrepancy or forgery conducted during the voyage that may lead to damages to be borne by the merchant. Besides, the contract instrument also ensures the assistance involved risk in case of an international trade. At the same time, it has also been quite effective to recognize whether the sending authority of the goods has been able to perform the promises accordingly (Gard, 2009). With reference to the case scenario, it has been also identified that this contractual or negotiable instrument has been treated as a multi business operational instrument, which is usually used by trader who need frequent charter voyage. Thus, delivery should only be possible with the presence of original bill of leading. However, legislative policies also denote that Letter of Indemnity (LOI) can be used in absence of bill of lading. It is worth mentioning in this regard that if the bill of lading is found to be missing, certain legal obligations do apply for the shipmaster or ship-owner, responsible for docking the goods on time and as ordered (in terms of quality and quality both) to the merchant, as per the Bill of Lading Act 1855 (Legislation.gov.uk, n.d.). Notably, in such a situation, letters of indemnity is the only reliable instrument, which can provide assistance to the ship-owners’ in order to avoid the legal obligation (Shepherd, 2011). It has accordingly been observed that the ship-owner has to be careful before issuing a letter of indemnity, as in such case the ship-owner might have to pay for the damage amount claimed by the merchant or vice-versa, increasing chances of disputes amid the parties. On the contrary, it can also have risks involved in the process from the buyers’ point of view, wherein it has been observed that no particular proof or evidence exists to disregard misrepresentation of the goods by either of the parties quite rigidly (Shepherd, 2011). In this case, it has been perceived that during international trade processes, the bank authority willed to perform in the role of the guarantor in absence of the bill of lading. Correspondingly, as per the legal obligations applicable, the bank usually intends to take a list of goods that have been transported by the shipment during the voyages before the negotiable instrument issued. Subsequently, the bank shall be prepared to indemnify according to the list of goods. Moreover, bank shall also issue the ‘letter of credit’, which will assure the buyer about the payment of the goods with adequate transparency. In absence of bill of lading, the bank shall issue letter of indemnity in order to seek and ensure if any good has been misplaced or destroyed during the voyage through the shipment, based on which the ship-owner could be held liable to pay a damage compensation to Daniel, i.e. the merchant referred to in this case (Bethlehem, 2009). Concerning the case scenario, it can be asserted that in absence of the bill of lading, the ship-owner will be liable to pay for the damages if Daniel, i.e. the merchant complains for the same, to have occurred during the voyage by the ship-owner. On the contrary, it can be also asserted that the ship-owner will also be liable to pay certain amount of charges or fines if the buyer lodges any misrepresentation regarding the list of goods after the delivery of the same (United Nations Conference on Trade and Development, 2003). In this case, it can be apparently observed that if the ship-owner loses the bill of lading during the voyage or the shipment, it would be essential for the ship-owner to be careful about the reliability and validity of the list of goods and quality of the goods. Either wise, penalty shall be deemed chargeable on the seller in accordance with the damaging proportion of the goods. In this case, in absence of bill of lading, the letter of indemnity will help to identify the proportion of damages before paying the seller, which is actually performed by the bank. On the other hand, in absence of bill of lading, the letter of indemnity will help to identify whether charging or accusing any misrepresentation regarding the list of goods after the delivery is valid, holding the ship-owner liable for any discrepancy in the delivery services and protecting him from invalid allegations by the merchant, i.e. Daniel (Bethlehem, 2009). Legal Implication C In the referred case study, it has been observed that the contractual agreement of sale has been made for 30th April shipment and accordingly the bill of lading was issued on the same date. However, the records of the shipment later revealed that the voyage had actually taken place two days later, i.e. on 1st May, which caused delay in the cargo delivery process, causing damages to be borne by James, the merchant owing to the rapidly falling market prices of the goods. Investigation to the matter also revealed that the ship-owner was also aware of the tampering of the bill of lading, which makes his grievance against the ship-owner justifiable. Correspondingly, the case however revealed that payment was already made by James against the goods dispatched, which he would have withdrawn from provided he was aware of the tampering. As per the provided case study, James was later able to realise that the seller had intentionally conducted a fraud against him by tampering the bill of lading date, which was two days prior to the actual shipment of the cargo. Thus, in order to take legal initiatives, James can bring charges against the seller and sue him for tampering the bill of lading, treating it as a legal offence. According to the legal clauses and definitions applicable in this case, it is noteworthy that pre-dating on a bill of lading for more than a day is considered as an offence, categorised under fraudulency. As apparent in this case, it has been observed that the seller has manipulated the date on the bill of lading for more than a day. Subsequently, James will enjoy the benefit of suing the seller along with the ship-owner, who was aware of the misconduct on the mentioned grounds. However, claim for insurance benefits by James might not be entertained, as it has been observed that insurance companies do not entertaining on tampering or fraudulency conducted by the seller or the ship-owner on the documentation of the voyage (Hawawy, 2013; Bhala, 2012). Correspondingly, as James is eligible to sue the seller as well as the ship-owner, the court may also want to know the exact amount of loss incurred by James owing to the delay and the fluctuation of the goods’ prices in the market. Nevertheless, James acceptance to the delivery prior to his identification of the forgery might adversely affect the amount of the compensation, otherwise payable to him (Kouladis, 2006). According to the analysis, it is prominent that James can accuse the seller and the ship-owner for compensation on the grounds of the damages caused due to the delay in shipment for more than one day. However, in this case, James will lose the privilege of enjoying the insurance benefits of the damages (Calle-cook, 2010). However, because James has already paid for the voyage and accepted the delivery before noticing the forgery in the shipment date and the date of bill of lading, he will have to bear the entire burden or risk of the shipment during the voyage on his own responsibility to claim for the damages that have taken place (Guzman & Pauwelyn, n.d.). References Abasins, V., & et. al., 2013. Liability in Time and Voyage Charterparty. DGS Marine Group. [Online] Available at: http://www.beo-pandi.com/assets/documents/pdfs/actual-circulars/2013-17-Liability-in-Time-and-Voyage.pdf [Accessed July 01, 2014]. Bethlehem, D. L. 2009. The Oxford Handbook of International Trade Law. Oxford University Press Publication. Bhala, R. 2012. Dictionary of International Trade Law. LexisNexis Publication. Bundock, M., 2013. Shipping Law Handbook. Taylor & Francis. Carr, I. & Stone, P., 2013. International Trade Law. Routledge. Chuah, J., 2009. Law of International Trade. Sweet & Maxwell/Thomson Reuters. 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