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Nelfi Amiera Mizan (Class D)

UTS 2612- Trade and Shipping Law


Tutorial 6 - Week 7 - Review Questions
1. What is the law of the sea? What did the law of the sea
convention accomplish?
The Law of the Sea Treaty, formally known as the Third United Nations
Convention on the Law of the Sea, or UNCLOS III, was adopted in 1982.
It refers to a body of international law dealing with navigational rights,
mineral rights, and jurisdictions over coastal waters and international
law regarding relationship between nations. Its purpose is to establish
a comprehensive set of rules governing the oceans. It requires parties
to the treaty to adopt regulations and laws to control pollution of the
marine environment.
Besides, Law of the Sea had establishes specific jurisdictional limits on
the ocean area that countries may claim such a 12-mile territorial sea
limit and a 200-mile exclusive economic zone limit.

2. How are dispute settled in municipal courts? Compare and


contrast inpersonam and In rem jurisdiction.
Dispute may be settled in municipal court by the types of jurisdiction
that the court had over a party such as in personam and in rem
jurisdiction.
For an in personam jurisdiction, it refers to the jurisdiction over person.
It gave the court power to decide matters relating to natural or juridical
person who physically present within the forum state. A municipal
court have in personam jurisdiction when there is consent given to
decide on the matters. Consent can be given through 4 ways which
are:
i)
By the individual appearing in court after a suit has commenced
ii)
By a party agreeing to the personal jurisdiction of a particular
court in a forum selection clause in the contract

iii)

By a party appointing an agent within a state to receive service


of process on his behalf
iv)
By physically presence within the forum state
For an in rem jurisdiction, it refers to In rem jurisdiction refers to
jurisdiction over property. It can be define as a power of a court to
determine the ownership rights of persons as to property located
within the forum state.
For example, when the property being sued, the owner will come and
represent the property. Thus, consent may be granted when the owner
is physically presence.
However, if the owner did not show up, the property can be auction.

3. What is sovereign immunity, what are the various types of


sovereign immunity, how do you waive it, what is anti-suit
doctrine, process of enforcement of foreign judgment in
Malaysia?
Sovereign or state immunity doctrine refers to doctrine which domestic
court must refuse to hear cases against foreign sovereigns because of
deference or respect to their roles as sovereigns. All of the officials of
government are considered as foreign sovereign such as member of
consulate.
There are 3 types of sovereign immunities:
i)

Absolute sovereign immunity


A state is absolutely immune and cannot be brought before
foreign court no matter what activities it involved in or what
injuries it may cause. States need immunity when they are only
involved in tax collection, law enforcement, and national
defense. However this rule is only effective until 1950s.

ii)

Restrictive sovereign immunity.


A state is immune from suit in cases involving injuries that are
the result of its governmental actions. A state is not immune

when the injuries result from a purely commercial or


nongovernmental activity. This this the current rule in world
today.
iii)

Effect of waiver of sovereign immunity by a state.


Waivers by states are valid. It may be an express waiver at the
time the suit is brought, a waiver made in advance in a contract
clause or an implicit waiver made by bringing or participating in
a suit. The waiver must be knowingly made.

Anti-suits doctrine is an injunction issued by a litigants home country


forbidding the litigant from proceeding with a suit in a foreign court. It
is used by the home country of the litigant to stop him from bring up
the case.
Before a foreign judgment can be enforceable, it has to be registered.
The registration of foreign judgments is only possible if the judgment
was given by a Superior Court from a country listed in the First
Schedule of the REJA.
Those countries include the United Kingdom, Singapore, New Zealand
and India.
To register a foreign judgment under the REJA, the judgment creditor
has to apply for the same within six years after the date of the foreign
judgment. Any foreign judgment coming under the REJA shall be
registered unless it has been wholly satisfied, or it could not be
enforced by execution in the country of the original Court. If the
judgment is not from a country listed in the First Schedule to the REJA,
the only method of enforcement at common law is by securing a
Malaysian judgment.
This involves suing on the judgment in the local Courts as an action in
debt. Summary judgment procedures (explained above) may be used
to expedite the process.

4. What is CISG? Explain the scope of the CISG, contract


formation under the CISG?
CISG refers to United Nation Convention on Contracts for the
International Sale of Goods.
Art 2 - It does not apply to:

consumer sales
sales by auction
sales on execution or otherwise by authority of law
sales of stocks, shares, investment securities, negotiable
instruments or money
sale of ships, vessels, hovercraft or aircraft
sale of electricity

Art 3- Neither does it apply to:

manufacturing contracts, where the party ordering the goods


supplies a substantial part of the material
contracts, where labor or other services is the preponderant part
of the obligations

Art 4- It does not govern:

matters of validity, at least not as a rule


matters concerning the right to the property of the goods
product liability

Contract Formation
Offer and Acceptance
The CISG follows the mirror image rule the offer and
acceptance must match in order to establish a contract
Any non-matching response to an offer operates as a rejection
and becomes a counter-offer, creating many offer/counter-offer
situations during which companies must negotiate, but during
which there is no actual contract.
Writing
Art 11- A contract of sale need not be concluded in, or
evidenced by, writing and is not subject to any other
requirement as to form. It may be proved by any means,
including witnesses.

Time
No "Mailbox Rule": So; Acceptance becomes effective only when
it reaches the offeror. Offers, rejections, and revocations also
only become effective upon reaching appropriate recipient.

5. How do you arrest a vessel in Malaysia? Compare that with


arresting a vessel in USA.

Section 21 (4) of SCA 1981


In the case of any such claim as is mentioned in section 20(2),
(a) the claim must arises in connection with a ship
- The claim brought under this provision must arise in connection with
a ship and not the maritime properties such as cargo or freight.
(b)the person who would be liable on the claim in an action in personam
(the relevant person)
- This states the requirement of personal liability of owner in
procedural theory, where that the ship is arrested to induce her
owners to appear and answer for their personal liability.
- In The Steven C (1992), it is said that the purpose of the
requirement is to preserve the general rule of Admiralty where an
action in rem cannot be maintained when there is no liability in the
owners.
- The purpose of this requirement is to identify the person in
connection with an offending or sister ship action.
(c) the relevant person must be the owner or charterer, or person in
possession or in control of the ship when the cause of action arose
- The word owner is referred to in the provision in contradistinction
to beneficial owner
- General rule In The Evpo Agnic (1988) concluded that owner
has a different meaning from beneficial owner and that owner

must mean the registered or legal owner as opposed to someone


with equitable property in the ship.
The Ohm Mariana (1993), the Singapore Court of Appeal held that
registration of a ship being only prima facie evidence of ownership
is therefore not conclusive as to true ownership of the ship. This is
because sometimes the real owner of the ship is not the registered
owner as they had failed to fulfill some registering requirements.

(d)an action may be brought


- The expression an action may be brought has been interpreted to
refer to the time when a writ in rem is issued.
- The time an action is brought therefore means the time admiralty
jurisdiction is invoked.

(e) Against that ship, if at the time when the action is brought the
relevant person is either the beneficial owner of that ship as respects
all the shares in it or the charterer of it under a charter by demise
- The time frame
The relevant person must be beneficial owner or demise charterer
at the time the action is brought.
The Monica S (1968), concluded that the time the action is brought
refers to the time the writ in rem is issued, rather than the time the
writ is served or the time the vessel is arrested.
-

Beneficial ownership of the ship


Beneficial ownership is not statutorily defined, thus it must be
referred to the case of The St. Merriel (1963), which states that the
beneficial owner is the true owner of the ship (relevant person), the
person with a right to sell all her shares, as opposed to the person
who has beneficial possession or control over her.
However, in The Ursula Andrea (1973), it does not restricted to legal
or equitable ownership of the ship, but also encompassing a person
who, whether he was legal or equitable owner or not, lawfully had
full possession and control of the vessel, and by virtue of such
possession and control, had all the benefit and use of her which a
legal or equitable owner would ordinarily have.

Determining beneficial ownership


The principles to be applied to determine beneficial ownership can
be extracted from various sources of law, including, principles of

trust and equity, principles relating to fraudulent conveyances to


delay or defeat arrest of vessel, principles relating to the piercing of
the corporate veil and principles of law relating to transfer of goods
and principles of estoppels. The relevance of the principles
applicable would naturally depend on the facts of the case.
(f) or
- The word or appears between the provisions for offending and
sister ship arrest and it is clear that in respect of a single cause of
action, admiralty jurisdiction may be invoked against either the
offending or sister ship but not both.
- S 21(8) repeats this principle by permitting only one ship to be
served with a writ or arrested in respect of one claim.
(g)any other ship of which, at the time when the action is brought, the
relevant person is the beneficial owner as respects all the shares in it
- Any other ship refers to a ship other than the offending ship. This
other ship, known as the sister ship, which must be owned by the
relevant person of the offending ship at the time the action, is brought.

6. What is the process of registering a vessel in Malaysia?


The process of registering a vessel in Malaysia must conform to several
sections stipulate in the MSO.
Under Section 11, for a ship to be a Malaysian ship it must be owned by
(a) A Malaysian citizens or
(b)If a corporation, the corporation must fulfill requirements such as
being registered in Malaysia, principle office situated in Malaysia,
management was mainly carried out in Malaysia, majority of

shareholders are Malaysian citizens and majority of directors are


Malaysian citizens.
The formalities for registering a ship are stated in Sections 16-24 of the
MSO.
s. 16 Application for the registration of Malaysian ship
s. 17 Survey and measurement of ship
s. 18 Marking of ships
s. 19 Rules as to name of Malaysian ships
s. 20 Entry of particulars in Register Book
s. 21 Evidence on first registry
s. 22 Certificate of registry
s. 23 Documents to be retained by registrar
s. 24 Port of registry