Seaworthiness in the Carriage of Goods BySea

I believed that for any students who is taking 'Carriage of Goods by Sea' this semester, it is very important to know the basic knowledge of the modules, of which one of it is the 'seaworthiness of the ship'.

I Started to learn a little through this Article-which I assume has all the major facts regarding on Unseaworthiness in brief.

http://www.1800jonesact.com/book/unseaworthy.html

At common law,the obligation of the owner to provide a seaworthy ship is absolute. It is defined as ‘fit to meet and undergo the perils of the sea and other incidental risks to which of necessity she must exposed in the course of a voyage’. It is then duty of the owner of the “vessel” to provide a safe place to work and violation of that duty can give rise to a claim or lawsuit by a worker who is injured due to the unseaworthiness of the vessel.  Unseaworthiness usually relates to conditions that could have been corrected or avoided by the company such as those caused by improper design, construction, inspection and maintenance of the work place.  The seaworthiness covers not only the physical state of the vessel but also the competence and adequacy of the crew, the sufficiency of fuel and other supplies, and the facilities necessary and appropriate for the carriage of the cargo. The method of loading the cargo, or the manner of its stowage, might be improper. For any of these reasons, or others, a vessel might not be reasonably fit for her intended service. 

The responsibilities of ensuring that a ship is safe to sail, does not mean to provide a perfect ship, but merely a ship of which reasonably fit for the purpose intended will be sufficient. The test of which is ‘reasonable for intended use’ is objective, in that the ‘vessel must have the degree of fitness which an ordinary careful and prudent owner would require his vessel to have at the commencement of her voyage having regard to all the possible circumstances of it.’ Therefore, there will be no particular standard set, but variable according to the nature of the voyage, type of cargo to be carried and the likely dangers to be encounter en route. In Burges v Wickham, the vessel might be unsuitable for the voyage, but if there was nothing further that the owners could do to make her fit for that voyage, then the implied warranty under the policy of insurance would not be broken. Unseaworthiness can only arise from defects affecting the safety of the vessel or those affecting the safety of the cargo. 

It is important to know which party shall be responsible for the unseaworthiness of ship when any accidents occur. These are ruled  under the rule of carriage of  goods by sea, which is Hague, Hague-Visby, Hamburg and Rotterdam. 

Other Online Resouces and References,

(1) http://www.atsealawyer.com/PracticeAreas/Unseaworthiness-Doctrine.asp

(2) www.mcgill.ca/files/maritimelaw/anticseaworthy.doc

(3)http://eprints.ucl.ac.uk/6988/1/6988.pdf

Raychelle, CM TAN

what kind of law student are u??

Quite an amount of interesting blogs were found this afternoon. One of them are lawactually.blogspot.com,

among all his post, the following is my favourite.

What kind of law student are (or were) YOU?

	What it really means	Burned by	Frequently Says	Try
The ‘I'm seriously conscientious-er’	You’re a caffeine-fuelled boffin.	Serious rejection – that one time.	“You’re so immature!”	Getting laid
The ‘Panicker’	You're mildly neurotic	That time you got things badly wrong	“OMG – I haven’t read all 8 chapters for tomorrow’s seminar!!!”	Taking a chill-pill
The ‘I'm at uni to have a good time-er’	You’re a lazy no-good waster who should have avoided getting into debt by omitting the whole uni experience	Lack of ambition and/or intelligence	“Screw this – I’m heading down the union!!”	Visiting the library / bribing or having sex with your lecturers
The ‘Dreamer’	I’m hoping to stay in academia all my life	Real life	“I don’t see the need for practical contextualisation at all.”	Waking up and smelling the coffee
The ‘Chancer’	You’ve lucked through everything so far in life and if it aint broke, don’t fix it.	Hard work	“I’m going to wing it in tomorrow’s seminar”	Actually working hard for once in your cheating life

which one are you pals???

SIAW CHIN TEE 

Speluncean Explorers

http://prawfsblawg.blogs.com/prawfsblawg/2005/08/revisiting_the_.html

This is a post regarding the speluncean exploreres. This has subject to much debates due to morality, society, humanity and the law. This blog is about whose opinions reader would join or present a different position entirely.
I came across this case during my first lecture of jurisprudence during my LLB final year.
This is a hard case, they are guilty in law, but in another point of view, they are just doing this to save each other by sacrifying one of their member.

In this case, I would join Judge Tatting. Clearly, we all live in a lawful society, law is abiding everyone of us. And killing is unlawful, so the statues need to apply in this case. But, the explorers are not willing to kill anyone if they are able to survive for 10 days. No one on the ground outside answer if it would be legally and or morally permissible to kill one among them to sustain the others. In my view, they are responsible for the killing as well, because they couldnt answer their question this makes them making decision on their own.

They kill because they want to survive, they kill because there is no other better option available. If they dont kill any of their member, they couldnt have survive until the rescuer reach them. So, if they are guilty for the murder after all, there is no different for them to die of starvation because at the end of the day, they still couldnt survive. They couldnt escape from the law.

On one hand, we are all bound by the law, on the other hand, we are human living in the society, bound with morality. It is harsh to make any decision. So, I would join Justice Tatting.

Know your right

Often we as a consumer do not know what our rights are exactly. Before I came across this, I thought we can only ask for a refund within 30 days of purchase. This is indeed a very good protection to the consumer because sometimes, I wont use or open up the goods I had bought until I really need to use them. 30 days is a short period, because I always dont open up the goods I bought until I really need to use them. So, it is possible that I only realise there is faulty with the goods after one month or more.
Therefore, knowing that I can still ask for a refund or a replacement within a 6 months period is really great. You can find their template letters in the website if you've bought goods within the last six month and if your goods are faulty six months after you purchased them.



http://www.bbc.co.uk/blogs/theoneshow/consumer/2009/07/03/sale_of_goods_act_letter_downl.html

Passing off and Community Trade Mark

Ive found this interesting article discussing passing off.
this is the link http://ipkitten.blogspot.com/2010/10/passing-off-and-ctm-three-questions.html

There are 3 questions being discuss.

The first one is
"In a case where a French company (hereinafter called 'the proprietor') owns a Community Trade Mark right, if the Community Trade Mark is threatened by infringement activities of a British company in the UK and then the proprietor sues before a CTM court in the UK, is it possible to claim the "Passing-off" right together with the CTM's right in order to prohibit the British company from using its mark in the UK?"


The second question
"If the Community Trade Mark is threatened by the infringement activities of the British company not only in the UK but also in France and then the proprietor sues before the CTM court in the UK, is it possible to claim the passing-off right together with the CTM's right in order to prohibit the British company from using its mark in France and the UK? That is, when passing off right is claimed together with the CTM right, is the "Passing-Off" right applicable in France as well as in the UK, althought France is not a common law country?


The third question
"If the Community Trade Mark is threatened by infringement activities in German company in the UK and then the proprietor sues before a CTM court in Germany, is it possible to claim the passing off right together with the CTM's right in order to prohibit the German company from using its mark in the UK? That is, does the German court have abililty to examine the existence of passing off right, although the Passing Off right is a right derived from the UK Common Law?


For question one, I would say it is possible to claim for passing off right together with the CTM's right in order to prohibit the British company from using its mark in the UK as long as the France company has a goodwill and reputation in the UK.

For question two, I would say no, based on the commentary i had studied. This is because, in order to sue for passing off, the country needs to recognise that there is a passing off. Since, France is not a common law country, they dont recognise this passing off. I hope there is some other law could explain futher in this situation. If there is an infringement, and no injunction is grant for the passing off, this would be so unfair to the proprietor.

Question three, it seems that this is a rather difficult question because some commentary say yes some say no. Iwill need to look up for more information because this is a broad topic. I hope that I will be able to study this in future in my course.

selling used item

There are alot of internet company that act as a market for people to sell their products online to people around the world. One of the most popular internet company is ebay : http://www.google.co.uk/search?hl=en&rlz=1G1GGLQ_ENUK370&defl=en&q=define:EBay&sa=X&ei=xzjdTMfDF8qXhQf2rb2sDQ&ved=0CBkQkAE

But, do you know that you might actually infringed copyright by selling your products in the ebay. This is an article which is quite interesting about this subject. http://www.trademarkandcopyrightlawblog.com/ The post which i came across was Joshua S. Jarvis, So You Think You Own That Software?

People will usually go onto ebay and bid for the product they want because they might not afford with the price of a new item or they cant find certain product in their country. At this point, ebay is just so convenient for buyer to buy any product from other country. However, end-user should make sure they did not infringe the copyright infringement law before they decide to sell their product on ebay. Otherwise, you wouldnt know when you will be given a notice saying that you had infringed certain copyright law.

As in the case UMG Recordings, Inc v Troy Augusto et al. This case has been appealed to the Ninth Circuit. In my view, Augusto bought the product from a record stores. If these CDs are solely for promotional purposes and not for sale, then Augusto would not be able to buy them in the first place. The case shouldnt be against Augusto for re-selling them in the ebay. The case should be against the record stores because they sold it to Augusto.

And so, we should really think twice before selling our products on ebay because we dont know when we will get sue by the copyright owner.

The Right to own DVD

A report article in the Malaysian paper, The Star, about penalties for having illegal DVDs, even for private use. Obviously, pirate copies of publicly-available films on DVD are clearly wrong. It must be unlawful to copy a DVD version of the film, to record it off-air or to use a camera to grab a copy in the cinema.

What about when the film is not available? That seems to be the argument in Malaysia. There's also an argument based on the price at which it's available. Of course, illegal copying of anything would disappear immediately if the anything were available free of charge. Film producers, and record companies, must set their prices at the level at which they expect to maximise profits. Just because one can't afford the DVD, or CD, doesn't mean one can procure an illegal copy.

Well, back in the days when where people taped the records because couldn't afford to buy it.There's the scarcity argument. The people who made the records could face prosecution but the fans who bought them did no legal wrong. Nearly everyone takes a much more prorietary view of their rights now: plus, record companies and film studios are rather bigger entities, with more shareholders to satisfy. The people who make copies of music and films that they cannot afford are and must always be infringers: they should never be criminals. People who make unlawful copies on a commercial scale are and must always be infringers: whether they are also criminals is another matter, and I would say let the industry enforce civil rights before hastening to criminalise the activity, which often forms part of a wider range of activities which is clearly criminal anyway and price the product to make it available to all!

=yinyen gan=

The new international student visa- has it achieved anything?

The new international Student visa application- has it achieve anything?does it  helps the economic crisis today?


With the proud academic reputation in United Kingdom,it is now recognized as one of the country has a largest student recruitment every year from all over the world.

That is also one of the reasons why I am obtaining my law bachelors degree here in the United Kingdom, and now as a postgraduate student for LLM.  International Students need visas to enter the country and for the period of stay anytime before completing their studies.

After I received my offer from the University, the first concern is to apply my student visa. I went on to prepare all the documents like how I used to do it three years back, but this time round, I was told that there is a new rule for visa applications.

During year 2010, UK immigration has announced full details of the UK student visa changes under Tier 4 of the points based system. The intention of the changes is to make it more difficult for bogus students from outside Europe to gain entry to the UK. This follows a review of the Tier 4 visa system in November 2009.

The points-based system was introduced to provide a rigorous system to manage legitimate access to the UK to work and study, with the ability to respond to changing circumstances.

One of the thing that confuses me is that the goalposts kept shifting all the time: last year saw the introduction of a points-based system, and this year's curveballs included scrapping the requirement for university visa letters in favour of electronically issued Confirmation of Acceptance of Study (CAS) numbers, possibly to thwart forgeries. Imagine trying to grapple with all this on top of the many other hassles associated with moving abroad.

Some of my fellow international students friends  are quite upset, it appears, over recent announcements that the student visa scheme will be reformed to make it harder for applicants to get permission to enter the UK.

It's not that I don't understand my peers' frustrations about not getting a fair shake. Like many of them, I also pour tens of thousands of pounds into the British economy every year to study a legitimate course at a well-regarded school. So I, too, am sick and tired of being interrogated like a suspect on UK Border Force every time I clear immigration at Heathrow, just because I have a Tier 4 permit in my passport. Trust me – it's a whole lot less entertaining when the questioning looks are being directed your way.

All this is provided that the new government does a better job of tightening the rules than the previous one, which made a hash of managing the visa regime. The Question is, whether it is really doing a better job or doesn’t improve anything just yet?

The Education sector in UK is undeniably one of the contributing source of income of the country. On 23 January 2009, Government figures from the Office for National Statistics showed that the UK was officially in recession for the first time since 1991. In My Opinion, are the restrictions that apply on students really helps in overcoming the recession today? It is true that the prospect of change should be welcomed, but that well if the aim of this constant tweaking – to filter out fraudulent applications – had been achieved. The key aim is that of restricting the inflow of people enrolling in non-degree courses ( and those who attend bogus colleges with the real purpose of finding a job)-should eliminated.

Immigrant workers as I already stated out in the previous post, will somehow affect the employment rate in the country. The locals will not get a job,unemployment rate increase-which impedes the economic growth during the economic crisis.

Hopefully, things will be different once the new rules kick in – though that remains to be seen. At least in mid of 2010, the UK economy is experiencing a minor growth already.

Raychelle. CM TAN

References from the Internet Articles, Sources :

•    http://www.zeenews.com/news632438.html 
• http://blog.internationalstudent.com/2010/02/student-visa-clampdown-confirmed-for-the-uk/
• http://www.globalvisas.com/uk_immigration/student_visa.html
• http://www.workpermit.com/news/2010-02-19/uk/new-uk-tier-4-student-visa-rules-details.htm
• http://www.immigrationmatters.co.uk/uk-suspends-tier-4-student-visa-applications-from-northern-india.html
• http://blog.internationalstudent.com/2009/07/new-uk-student-visa-rules/

3. 

R

Fair Trade Clothing Helps Poverty

People may be aware of fair trade coffee, but now some products clothing manufactures are ensuing fair wages and development help for growers of cotton. Transfair, a leader in fair trade certification; is now going to certify clothing products.

From Triple Pundit, writer Leon Kaye tells us what the certification does for the suppliers. There is a list of questions and answers about fair trade cotton.

According to Leon Kaye, cotton farmers in countries including Mali and India can earn up to 30 percent more on Fair Trade sales while garment workers earn a premium of up to 10 percent of the cost of the garment for community investment or a cash bonus.

In the UK, over 200 organisations have already joined the campaign. Globally, over 30 campaigns are working together in a Global Campaign for Action against Poverty.

Through fair trade, we trade justice, it is not a free trade but allowing poor countries to protect their own farmers and the environment, as well as an end to damaging rich country import tariffs and export subsideis. Beside, through fairtrade able to drop the debt by full cancellation of unpayable debts for the poorest countries. In addition, is it a better aid with an extra $50 billion in aid, and a binding timetable for all rich countires to spend at least o.7 of GDP assisting the world's poorest people, as well as an improvement in the quality of aid.

Overcoming poverty is not a gesture of charity. It is an act of justice. Therefore, proverty can be overcome if there is a fair global trade to benefit poor people and the environment and have a better future.

=yinyen gan=

Abortion in UK and Malaysia

An interesting topic was brought out by my fellow friend during tonight's dinner. A friend of mine had raised a question as to whether or not is abortion legal in Malaysia (we are both Malaysian) and I couldn't answer her at all because i personally never look into this issue before. I do have friends that had undertake abortion operation, however, they all went through it using 'back door'. So i assumed that it is illegal in Malaysia.

Nevertheless, i went on and did some research about it and in the meantime compare it with the Abortion in UK. 

Generally, Abortion is illegal in Malaysia UNLESS the termination is held to save the life of the woman, to preserve physical and mental health. I am surprise when i found out that termination of pregnancy is not allow to those victim who gets pregnant due to a rape. As a female myself, i couldn't imagine the pain of being raped and what's more is -- the need to carry the rapist's child for life. However, come to think of it, it could be argued that fetus/children is innocent in this case and their life shouldn't be taken away like that. It is indeed a very tough issue to decide, and it all depends on how people weighted it --The mother's condition or the baby's right to live. 

On the other hand, UK took a very different stand in abortion issue. Not only victim of a rape is allowed to undertake termination, if the mother doesn't feel like having the baby, she can also undertake the termination as long as the fetus is not up to 24 weeks (Human Embryology and Human Fertilisation Act 1990). 

'Abortion up to 24 weeks is also allowed if there is a substantial risk that the child when born would suffer "such physical or mental abnormalities as to be seriously handicapped".

An abortion must be agreed by two doctors (or one in an emergency) and carried out by a doctor in a government-approved hospital or clinic.' -- BBC ethnics

However, there are arguments about the legal time limit for abortion. There are suggestions that the parliament should amend the 1990 Act and cut down the 24 weeks of legal time limit to a shorter period, for example 16 or 20 weeks. The reason behind this is because there are studies shown that the survival rate of baby who born in 24 to 25 weeks have increase significantly, and the rate have not risen to those baby who born in 23 weeks or less. However, this is the PM David Cameron's decision as to whether or not he favors a cut. 

I personally hope that abortion in Malaysia can be legalised. From what I'd learned, if abortion is not legalised, there would be women anyway who might seek abortion at the hands of untrained people and by doing that putting their own life at risk. 

Not to forget, there is something far worst than abortion and it has been a pressing problem of unwed mother and infanticide in Malaysia. 

'Abandoned and left to die. This is the fate of an increasing number of unwanted babies that end up in toilets and rubbish bins among other places. A few are found dead while others are saved in the nick of time.'

SIAW CHIN TEE 

Scammers 'using' consumer laws

Consumer protection laws are being exploited as part of an elaborate new type of ticketing scam, the BBC has learnt. (more)

I came across this kind of ticketing scam sites , but didn't realise it was a deliberate clever scam. One may set up a website, offer tickets to all the big acts and take everyones money. Then a few weeks later send an email saying that the supplier let you down, and unfortunately the customer would not get the ticket.

Then the clever bit here is " due to us not using the merchant terminal that charged you anymore we are unable to issue a refund from our side. Ton ensure you get the refund owed please contact your card issuer and instruct them to perform a chargeback to retrieve the funds paid...unfortunately we are unable to return the money to you from our side by any means."

In otherwords the credit card companies foot the bill, as they will give you a refund, as per UK consumer laws. They even have the cheek to point you to Government websites advising you how to get your refund as you are protected under consumer laws. Sometimes I wonder whats the point of being squeaky clean, paying taxes and abiding by all the red-tape that businesses have to go through, when people can get away with this.

We should take precaution about the authenticity of ticket websites and carries a list of sites it suggests people should be wary of using. Beside, he government says anyone who thinks they have been a victim of any type of fraud or scam should report it to Action Fraud, a service run by the National Fraud Authority.

=yinyen gan=

Honour Killing

In yesterday's BBC news, Banaz Mahmod 'honour' killing cousins jailed for life. Back in 2005, Banaz Mahmod was seen by her father and uncles to have brought 'shame' to her family for leaving her violent husband and  later began a relationship with her boyfriend, Mr. Sulemani. Her father then swore to hunt her down and in 2006, Banaz was killed by 2 of her cousins who had willing to do the 'honour' for her father. Her father and uncle were jailed for life in 2007 whereas the cousins were in a run until recently they were tracked down by police and has been convicted since then.

The fact that 'honour killing' still exist today shocked me to bits. Majority of the children are loved and embraced carefully by the parents. It is hard to believe that there are human who actually kill their own children as this is beyond humanity and even animals do not do that. What is more pathetic is, not only it existed until today, it is also said to be underestimated by the government. In a 2008 article from BBC NEWS, report author Salam Hafez said that,

"This phenomenon is kind of being perpetuated within second and third immigrant generations. And it's a cultural thing, and it exists, and it's going on. We're talking about forced marriage, we're talking about ideals, and you know, largely, it's been overlooked."

fellow report autor James Brandon said that the government is still not taking honour crime seriously.

"Until this happens, the ideas of honour which perpetuate this violence will continue to be passed from generation to generation," he said, calling on religious leaders, local authorities and central government to work together to tackle the issue.

Clicking in to stophonourkilling.com, there are hundreds of cases involving honour killing. Hundreds and more of these beautiful girls were killed by their family for pursuing what they want and what they ought to have -- freedom for being love or love someone or even freedom for being themselves.

Honour killing is the murder of a person accused of 'bringing shame' upon their family. This often happens in South Asia and Middle East countries where the communities and families are dominated by men. However, mothers and sisters would also play a part in some of the crimes. There are a lot of things  that might constitute dishonor, it can be anything from wearing cloths or choosing a career which the family disapprove of, to fall in love with someone whom the family disapprove of.

Many of the guilty tried to justify their action to religious ground however this is not what it is. The key factor to honour killing are cultural and family tradition decision. It is more like the men in the family trying to stop women from having their own decision which i personally think it is full of selfishness and barbaric.

Come to the end of this, I hope there will be more legislation amended to cease this problem and hopefully more organisation such as the Forced Marriage Protection Order will be formed and more women will be freed in this sense.

I'm glad that i have a family that truly loves me and will never hurt me.

SIAW CHIN TEE

Counterfeit products?

Anyone have the experience buying counterfeit products such as medicine or device through online stores such as ebay or shops? Getting upset with it because does not worth the money you pay? Intellectual Property Law plays an important role in preventing the importation of merchandise that infringes in the UK. That is an important job for the economy as well as for the heath and safety of the public.

You can be pretty certain that a company that is willing to rip off a brand trademark not too scrupulous about health and safety requirements. There are lots of dangerous counterfeit products out there, and we should all thank to HM Revenue & Customs(HMRC), the Alliance Against Intellectual Property (IP) Theft and Medicines and Healthcare products Regulatory Agency for helping keep them out.

But there are also non-counterfeit products that nevertheless infringe someone's trademark, trade dress, or other intellectual property right. Those products may or may not present health and safety concerns as well. But they are legally different.

Specifically, a "counterfeit" product is one bearing a mark that is "identical to or substantially indistinguishable from a registered trademark" for example fake Gucci and Coach bags, HP ink cartridges or Nike shoes.

This is a picture of counterfeit batteries and these batteries are ripping off Duracell and should seize them as bring infringing. But, is this a counterfeit products issue? "Young Emperor" is not identical or indistinguishable from "Duracell". So how do we suppose to deal with it?

Actually, the label design can also be a trademarked device. In this case, beyond the Duracell name, the company all holds a trademark on the copper and black packaging a well.

Actually, CBP is on the right track about this and the folks at Duracell have been on the ball too. You need to understand that the label design can also be a trademarked device. Infringer who think they will avoid legal problems with minor changes to spelling or by avoiding the use of the brand name are often wrong.

An EU Regulation (1383/2003) authorises EU member states' customs authorities, such as HMRC, to detain goods thought to be counterfeit. The Regulation was implemented into UK law by The Goods Infringing Intellectual Property Rights (Customs) Regulations 2004 and worked well for many years with a procedure that was generally regarded as helpful to rights holders: HMRC would detain suspected counterfeit goods, contact the likely rights holder and the detention continued pending the rights holder's response. However, HMRC's rules, adopted in June 2009, now mean that HMRC will only detain goods for 10 days unless the rights holder takes court action. If the rights holder fails to take action within 10 days (or a further 10 days if requested), HMRC will release the goods.

I personally think the best way is to record your trademarks, copyrights, and other intellectual property with HMRC. Then work with HMRC to let the agency know what aspects of your products or packaging are protected.

Can you spot the fake one? Only one of these packets of batteries are genuine, but which one?

=yinyen gan=