ADM 1
When may a liability in tort arise? how can sue?
when one party's acts or omissions cause a loss for another party. Sue by proving: -duty of care was owed -breach of duty of care (negligence) -causation betweeen the negligent act and the loss without loss not being too remote. -amount of loss suffered.
counterargument to bad faith claim
when party truly believed, they did have a remedy in breach [objective reasonableness + subjective honesty]
Are more likely to not be deemed a
when they are not in navigation and are stationary
What is vicarious liability?
where a principal is vicariously liable for the acts of an agent carried out while the agent is acting agent on behalf of the principal.
What is the De minimis-notice?
where certain types of collusive behavior and agreeemnt will be exempt from TFEU Art 101 and thus not infringe competition regulation. -Horizontal agreements provided combined market share of the parties is < 10% unless the agreement involves hard core restriction. -vertical agreements provided if market share of the parties is < 15%.
who has jurisdiction if someone is murdered on a boat in the high seas
where the boat is flagged
Requirements Contracts
where the quantity term is measured by the buyer's requirements
debtor or creditor
who can file for reconstruction
person who brings work into existence, joint ownership allowed
who qualifies for copyright
If a buyer is deceased, it is likely that the contract _______ discharged.
will be
In what time frame must a complaint for Limitation of Liability be filed?
within 6 months after shipowner received written notice of claim
Maritime insurance contracts
within admiralty jurisdiction
case involving a contract to repair a vessel is
within admiralty jurisdiction
A shipper wishing to bring a claim against carrier for damage to cargo has how much time to file the lawsuit?
within one year of delivery
"Services" means...
work, labor, or services purchased or leased.
Can you have warships through innocent passage?
yes
If casino sails under its own power, is it a vessel?
yes
Someone that worked 100 % as a seaman is reassigned to a ship. Still seaman status?
yes
can you drive through someones CZ?
yes
can innocent passage within archipelagic waters (not sea lanes) be suspended?
yes (Art 52)
Can a danish owner register a vessel under a foreign flag if activity remains in Denmark?
yes according to DMSA, Sec. 17(5)
Can you have submarines through innocent passage?
yes but must be on the surface and show their flag (Art 20)
The most common example of police power is...
zoning
Areas of Dispute
~Misrepresentation ~Warranties ~Interference ~Safe Port / Safe Berth ~Demurrage & Detention
DOLSØY
→ MC § 275 Fuel oil delivered to two fishing vessels was contaminated. This resulted in damage and loss of income. The court held that the carrier has not been able to prove that the damage was not caused by the fault of neglect of his servants. = REVERSED BURDEN OF PROOF!
SUNNA
→ MC § 276 Chief officer fell asleep, vessel ran aground. Normally it would be navigational error(?), but this time the shipowner could not invoke that exemption because they should've been two people on watch according to an instruction. Initial unseaworthiness = LIABLE
TRINIDAD
→ MC § 276 Whether the act of turning on the wrong switch constituted a fault in the management of the ship or of the cargo. NOR SUPR COUR-> held that the light switch had probably been touched during the operation of the work lights at the port of discharge, and this constituted fault in the management of the cargo
'535' laws are associated with...
TREC
'1101' laws are associated with...
TRELA
Implied Warranty for Workmanlike Construction [aka implied warranty of habitability]
TWO Components: (1) Quality of work and materials meet average or reasonable standards for the trade (2) Requires that the home be suitable for occupation and provide inhabitants with a reasonably safe place to live without fear of injury to person, health, safety or property.
Goods
Tangible, movable personal property; doesn't include money, intangible property, or land
Silent as to a material term
Term may be implied from a gap filler. A gap filler is a term that a court supplies because it thinks that the parties would have agreed on this term if it had been brought to their attention or because it 'comports with community standards of fairness' Intent of parties is key factor
Additional Terms
Terms added to a contract
Course made good
That course which a vessel makes good over ground, after allowing for the effect of currents, tidal streams, and leeway caused by wind and sea
Safe speed
That speed of a vessel allowing the maximum possible time for effective action to be taken to avoid a collision and to be stopped within an appropriate distance
During the period after a real estate sales contract is accepted but before the delivery of the deed
That status of the contract is executory
Consideration
That there must be bargaining that leads to an exchange between the parties
What do larger numbers on buoys indicate?
That you are going farther in land and they reset at each new channel opening
When focusing on the movement of waste, need to look at:
The Basel Convention which prohibits trans boundary movement of hazardous waste to non-party states and non-OECD states. (issues is not everywhere is good at implementing and enforcing. ) EU Waste regulation which prohibits trans boundary movement of hazardous waste from EU countries to non-OECD countries.
Certainty and stare decisis vs fairness, which case shows this?
The Golden Victory [2007]
November 4, 1993
The Guidelines on the Enhanced Programme of Inspections during Surveys of Bulk Carriers and Oil Tankers was adopted on:
9
The International Maritime Dangerous Goods are classified into how many classes?
A system to report, analyze and follow-up non conformities, accidents and hazardous situations
The Safety Management System requires that the shipping company develops and implements:
Spill (to)
The accidental escape of oil, etc., from a vessel, container, etc., into the sea
International Safety Management
The acronym ISM means:
Roll call
The act of checking who of the passengers and crew members are present, e.g. at assembly stations, by reading aloud a list of their names
Station
The allotted place or the duties of each person on board
Leeway
The angular effect on the vessel's course caused by the prevailing wind
A loan quoted at 6% for 15 years on a $200,000...
The answer is D
bargained for exchange
The bargain theory of consideration does not actually require that parties bargain over terms. What is required [for consideration to exist] is that the promise and the consideration be in 'the relation of reciprocal conventional inducement, each for the other. Promise induced the detriment and the detriment induced the promise
Vendee
The buyer
Jane and bill divided 6- acre property into three 2- acre parcel lots (ABC). A and c can only access the public road through B.
The buyer of A and C will probably be granted an easement by necessity by court action
Receipt of goods
The buyer takes physical possession or control of the goods
Price
The consideration for a sale or contract to sell goods
Word of the court
The court can overturn the settlement of seamen. Maybe to fear or they got a lawyer after settlement etc.
Draft
The depth of water which a vessel draws
Target
The echo generated e.g. by a vessel on a radar screen
Cardinal points
The four main points of the compass, i.e. North, East, South and West; for the purpose of the SMCP the intercardinal points, i.e. Northeast, Southeast, etc., are also included
Convention
The international Convention for the Safety of Life at Sea, 1974, as amended.
A loan assumption might be desirable because:
The loan assumption is generally less costly than a new loan
Safety load
The maximum permissible load of a deck, etc.
Safe working pressure
The maximum permissible pressure in cargo hoses
Material Misrepresentation [RST §162]
The misrepresentation is material if (1) It would induce a reasonable person to assent OR (2) the maker knows it will induce the recipient.
Rig move
The movement of an oil rig, drilling platform, etc., from one position to another
Maintenance and Cure
The obligation of "maintenance" requires the shipowner to provide a seaman with his basic living expenses while he is convalescing Most calculate cost ashore, minority uses cost of living aboard ship "Cure" requires shipowner to pay medical expenses until "maximum medical improvement" is achieved M&C must be paid regardless of apportionment of fault or contributory negligence on P's fault
Legality
The offer and acceptance must be for a good or service that is considered legal. You cannot contract with someone to commit a crime or tort.
Definiteness
The offer must be so definite as to its material terms or require such definite terms in the acceptance that the performances to be rendered by each party are reasonably certain. [Sateriale v. Reynolds] NOTE* even though the parties have reached agreement, the agreement is void if the content of agreement is uncertain. (1) Look for the Material Terms: subject matter, price, payment terms, quantity, quality, duration and work to be done. (2) Then See If Terms of K Are Reasonably Certain: Terms of a contract are reasonably certain if: (1) they provide a basis for determining the existence of a breach and (2) for giving an appropriate remedy.
Acceptance
The offeree (not a third-party) must agree to the contract terms exactly as stated in the offer. This must be communicated in an appropriate time and manner. Acceptance is made when it has left the offeree.
Rejection
The offeree does not accept the terms of the offer.
Unilateral Contract
The offeree must accept by performing
Acceptance
The offeree must say or do something to accept
Firm Offer
The offeror states how long the offer will stay open before it is automatically revoked.
Revocation
The offeror withdrawals the offer with communication to the offeree before it's accepted.
Offeree
The person who receives a contractual offer
Quantum Meruit
The plaintiff gets "as much as he deserved."
Abandoning
The portectiong afforded to them as minors
Pleasure craft or aircraft are subject to admiralty jurisdiction?
only if they are operating on a waterway with commercial navigability.
2207(2) Non-Merchants:
only way for additional term to become part of k is if the offeror explicitly assents to it. AKA additions become a proposal for addition to the contract and must be accepted as if it were a self-standing offer. Stick with CL rule of needing affirmative assent.
illusory promise rule
The presence of an illusory promise does not destroy the possibility of a contract. it may create a unilateral contract, and the promisor who made the illusory promise can accept it by performance. [Marshall Durbin] [detriment was refraining from seeking employment at a time the company was in a bad place] therefore it was a unilateral contract and fulfilled specific performance.
intra-family promises and oral promises to convey land
The problems encountered in these situations may be surmountable if you can show foreseeable detrimental reliance.
What is important to consider when dealing with competition regulation?
The relevant market and market share.
Vendor
The seller
Who completes the Seller's Disclosure Notice?
The seller should be the ONLY one completing the seller's disclosure notice.
Speed of advance
The speed at which a storm centre moves
Boarding speed
The speed of a vessel adjusted to that of a pilot boat at which the pilot can safely embark / disembark
Search speed
The speed of searching vessels directed by the OSC
Demurrage
The sum a charterer agrees to pay for detaining the vessel for a period of time exceeding the laytime
In a residential lease with a "right of first refusal" provision:
The tenant has the right to match or better any offer the landlord receives to prevent the property from being sold to someone else
An abstract of title is a summary of what
The titile search found in the public record
In a net listing, the licensed holder is obligated to advise the property owner as to the license holder's ________ of a property when negotiating a listing.
opinion of the market value
Where are the rules for European competition found?
The treaty for the functioning of the EU; EU Regulations; Commission Guidelines
Express Contract
The two parties to the contract explicitly state all of the important terms of their agreement
Ton
The unit used to express the tonnage before the entry into force of the Convention of 1969.
Weather deck
The uppermost continuos deck fully or partially exposed to weather which may be wholly or partially used by passengers.
What instrument on the boat can you use to find distance?
The variable range marker
Ballast water
The water with its suspended matter taken on board a ship to control trim, list, draught, stability, or stresses of the ship.
Implied Contract
The words and conduct of the parties indicate that the parties intended to make an agreement
It clearly defines your job
There are four reasons to adopt the ISM Code; 1. It is a law 2. It protects the sea and the marine environment 3. It makes our ship a safer place to work 4. _____________________________________
Freedom of contract
There are responsibilities to those who create binding relationships
DOHSA CoA
There is a cause of action for the death of any person (and the exclusive remedy for persons other than a seaman) caused by wrongful act, neglect or default occurring on the high seas more than 3 miles from the shore of any state or the territories or dependencies of the US. Applies in foreign territorial waters as well as on the high seas. Applies only to maritime torts. If within 3 miles, Moragne wrongful death claim under GML available, see below.
Moragne WD Action
There is an action under general maritime law for wrongful death caused by (negligence?) or unseaworthiness in territorial waters. DOSHA was not intended to preclude the availability of wrongful death claims under GML in situations not covered by DOSHA. A Moragne action is ONLY available for deaths in territorial waters. DOHSA is the exclusive remedy for death on the high seas and is not supplemented by the general maritime law. either in rem or in personam
Two limits on Congress made by Supreme Court, that they will or not let you do (second)
They cannot exclude previous cases in federal court
May be liable for costs or damages,
Things to consider as a creditor when filing a petition for liquidation
The most common type of financing used in residential transactions is
Third Party Financing
If a violation of United States law is found, the vessel may be seized and the person on board may be prosecuted in American courts.
This applies to both U.S. and foreign flag vessels without regard to whether the vessel is bound for the United States.
Article 38 (1) of the Statute of the International Court of Justice (1946)
This article is the most authoritative enumeration of the sources of international law.
Shrubs from a property owner have grown over the last 20 years and now extended over onto a neighbors peoperty.
This extension is called an encroachment
A buyer and a seller enter into a real estate sales contract. Under the contract's terms, the buyer will pay the seller $450 per month for 8 years. The seller will continue to hold legal title to the property. The buyer will live in the poetry and pay all real estate taxes, insurance premiums and regular upkeep costs.
This is an example of a contract of deed contract.
A tenant received a job offer in another state and requested that the landlord allow her friend to take over her lease. The landlord agrees to allow the first tenant to sublet the apartment.
This is an example of assignment
A seller promises to sell his house and transfer title to the buyer, who promises to pay $125,000 for the house.
This is an example of bilateral contract
During a contract, a buyer lost his job. The seller decided they didn't want to sell after all, so the parties decided to terminate the contract.
This is an example of mutual agreement
An application should be filed by a Landowner to use state water to water his corps.
This is called doctrine of prior appropriation
Shrubs/tree limbs from an adjoining property are now growing in your property;
This is encroachment
Chain locker, collision bulkhead & gunware
This is not included in the "Guidelines on the Enhanced Programme of Inspection during Surveys of Bulk Carrier and Oil Tanker.
Rule 9. Pleading Special Matters (h)
This procedural rule may be used by a plaintiff to prevent a jury trial.
Fire safety training manual
This shall be written in the working language of the ship and shall be provided in each crew mess room and recreation room or in each crew cabin.
Domestic law, the nature of international law, principles of higher law
Three types of general principles
Jettison (to) (of cargo)
Throwing overboard of goods in order to lighten the vessel or improve its stability in case of an emergency
1 year
Time limit for maritime lien
EU: 10 years, may be renewed DK: no limit as long as still in use
Time period of tm
*What is the principle behind limitation of shipowner's liability for loss or damage?*
owner of the ship takes all the risk in putting to sea should not be liable for losses beyond the value of the vessel
what removed sharing of r and d for deep sea mining
part 11 fix
exceptions to SOF
part performance promissory estoppel
Mutual Mistake
parties each made a factual error about the meaning of a material term in the contract - renders K voidable Scrivoner's Error- when mutual mistake consists of failure of the written K to state accurately the actual agreement to the parties, reformation of the K to express the parties mutual intent is normally the remedy
benefit & a detriment
parties either do something they dont have to do or part with something they have a legal right to in order to obtain a benefit
Agreement to Agree
parties may be bound contractually when they have reached an agreement on at least the major provisions of agreement, even though they contemplate further negotiations on particular points.
Market Change
party use of dramatic changes in the market does not amount to economic duress.
what is not sufficient grounds for suspension of innocent passage?
passage of military ships
What is the meaning of the term "demurrage" in a charter party?
penalty payment when shipowner exceeds permitted laytime
In a __________ lease, the tenant's rent is based, in whole or in part, on the receipts of his or her business.
percentage lease
A lease that renews itself automatically for like periods of time is a(n) _________.
periodic tenancy
how to defeat excessive maritime claims
persistent objector
With an offer to purchase, the earnest money must be delivered to a
Title company or deposited in an escrow account within 2 business days
Muster (to)
To assemble crew, passengers or both in a special place for purposes of checking
"Connection with a vessel"
To be a seaman it is only necessary that a person have an employment related connection to the object of the enterprise in which a vessel in navigation is engaged. Need not relate to navigation, old rule. CONTRIBUTE TO THE MISSION A seamen can't "walk in and out of seamen status"
Stand by (to)
To be in readiness or prepared to execute an order; to be readily available
Quasi-Contract
To compensate a plaintiff
Close up (to)
To decrease the distance to the vessel ahead by increasing one`s own speed
Promissory Estoppel
To enforce the defendant's promise
RESPA is
To ensure that buyers have knowledge of all costs in purchasing a home
The purpose of the real estate settlement procedures act (RESPA) is
To ensure that buyers know all settlement costs that will be charged to them
Abandon vessel
To evacuate crew and passengers from a vessel following a distress
Embark (to)
To go aboard a vessel
Disembark (to)
To go from a vessel
Unpaid Consideration:
To have a valid option contract there MUST BE CONSIDERATION. Without consideration the offer to sell may be revoked at any time before acceptance. but might be able to use promissory estoppel substitute consideration and limit revocability of the offer. (Berryman v. Kmoch)
Drop back (to)
To increase the distance to the vessel ahead by reducing one's own speed
Harter Act
To lessen the advantages of foreign carriers congress adopted this act that requires the carrier to use due diligence in sending out a seaworthy vessel and holds the carrier responsible for its negligence in the handling of the cargo during voyage
Promulgated forms means...
To make known by open declaration; publish.
Refloat (to)
To pull a vessel off after grounding; to set afloat again
Inert (to)
To reduce the oxygen in an oil tank by inert gas to avoid an explosive atmosphere
Beach (to)
To run a vessel up on a beach to prevent its sinking in deep water
Proceed (to)
To sail or head for a certain position or to continue with the voyage
Moor (to)
To secure a vessel in a particular place by means of wires or ropes made fast to the shore, to anchors, or to anchored mooring buoys, or to ride with both anchors down
Let go (to)
To set free, let loose, or cast off (of anchors, lines, etc.)
Four Corners Doctrine - Classical View
Total Integration: Document is intended by parties to include all details of their agreement. Writing is complete based on self-sufficiency of the K - "the four corners."
Course of Dealing (Nanakuli)
Trade usage and past course of dealings between contracting parties may establish terms not specifically enumerated in the contract (price protection) so long as no conflict is created with the written terms. UCC §1-205 -course of dealing (how same parties have acted in the past) course of dealing = sequence of previous conduct between parties that can fairly be seen as establishing a common basis of understanding for interpreting their expressions and conduct
EU TM reg, Danish TM act, Danish mkting act, Danish company act
Trademark sources of law
Easnerst money being deposited with in escrow account with titile company is the 1st step in the
Transaction process
Shifting cargo
Transverse movement of cargo, especially bulk, caused by rolling or a heavy list
What does TFEU stand for?
Treaty on the functioning of the European Union. Also known as the Treaty of Rome.
Deceptive trade practices act violation may result in
Treble damages awarded to an injured party
Under the captive trae practices act DTPA, if a real estate professional knowingly deceives a client,
Treble damages may be awarded to the injured party
Capsizing
Turning of a vessel upside down while on water
Global (ex. IMO), Regional (ex. EU), National, (ex. flag states)
Types of public regulations in shipping
Public and private
Types of regulation in the shipping industry
Price, Credit, pure
Types of risk
UCC §2201 SOF
UCC applies where K is predominately for the sale of goods and over $500, even if the goods are worth LESS & services push K over $500.
Good faith
UCC standards. Duty implied in all kual dealings.
FHA loans include two mortgage insurance premiums that must be paid by the borrower. They are the:
UFMIP and Annual Premium
UK Bribery Act of 2010
UK anti corruption practice applies to bribing, requesting a bribe, or failing to prevent a bribe
28 USC §1333
US constitution gave the whole body of law to the Federal System
A "Section 502 Loan" is insured by the ________.
USDA
Jason Clause
Under a Jason clause in a bill of lading, general average is payable if it arises through negligence of the carrier for which he is exculpated by the Harter Act - for example, if damages result "from faults or errors in navigation or in management of the vessel". Basically: Jason clause says if the disaster was due to errors of navigation and the ship owner had seaworthy vessel, used due diligence, and it was properly equipped, then the general average will apply and cargo owner will have to contribute. Cargo owner always recovers 100%. When there is a collision and both vessels are at fault, the innocent cargo owner may recover his full damages from the non-carrying vessel (even if the non-carrying vessel is only, for example, 10% at fault).
9
Under what chapter in the SOLAS 74 as amended is the International Safety Management?
A contract in which only one party is obligated to perform is a________ contract.
Unilateral
If there is a ______ mistake over a simple error, then contract usually can be avoided
Unilateral
UTC
Universal Time Co-ordinated (ex GMT)
Form of strict liability
Unseaworthiness
Corbin/Modern rule of requirement/output contracts
Upholds these contracts on the theory that consideration could be found in the surrender of the buyer's privilege to buy elsewhere
What is a pon pon warning
Urgency
If all elements of a contract are present, the contract is generally termed...
Valid
Right-of-way powerboat crossing situation?
Vehicle on the starboard side has the right-of-way
VHF
Very High Frequency (30 - 300 MHz)
example of maritime claim
peru claims to have a TS of 100 nautical miles
________ is the right of the government to regulate and control the way land is used.
police power
Case to show written document v the substance of the transaction
Welsh development v Export Finance Co Ltd
treaties, customary law, and general principles
What are the three principle sources of law?
Emancipation
When a minor can be treated like an adult and their parents do not have to make legal decisions, the minor can make decisions on their own
Affreightment Contract
When a tug and barge are owned by the same person (or when either the tug or barge is bareboat-chartered to the same person) and are utilized, by contract, to tow cargo from one point to another.
Variable (of winds)
When a wind is permanently changing the direction from which it blows
Never
When are you allowed to throw plastic garbage overboard?
Executory Contract
When one or more parties has not fulfilled its obligations under the contract
Moragne damages available
When seaman killed in territorial waters, Moragne WD actions applies as well as Jones Act negligence. BUT Jones Act precludes recovery under the general maritime law for non-pecuniary loss sustained by seaman's survivors. A wrongful death action under the GML survives against the estate of a deceased tort-feasor. a. For seamen, limited to pecuniary damages: a. Loss of support; b. Loss of services; and c. Funeral expenses.
Payment
When the buyer transfers the agreed-upon consideration and the seller accepts it
Voidable Contract
When the law permits one party to terminate the agreement
Unlit
When the light characteristics of a buoy or a lighthouse are inoperative
Unenforceable Agreement
When the parties intend to forma valid bargain but some rule of law prevents enforcement
An owner builds a deck and permanently attaches it to a house.
When the property is sold, it will be transferred with the property with a conveyance deed
Mortgage liens are voluntary liens
Where mechanics liens are not
credit risk
possibility of loss occurring due to third party failing to meet contractual obligations, type of risk
behavioral theory
predicts how people respond to changes in laws, including legal sanctions and enforcement.
What is the principle called when a law of higher authority displaces a law of lower authority when the two laws generally cover the same subject but conflict with each other?
preemption
shareholders, debtors, suppliers (bunker), employees, contractors, charterers
Who can be considered stakeholders in maritime cases
A conveyance deed
Will transfer permanent fixed objects attached to a home
Does a major overhaul or refitting of a vessel, as apposed to mere repairs, takes a vessel out of navigation?
Yes. Only in the shipyard for a week it is still a vessel
remedies
You can affirm a contract and sue a tort for damages. You will get the worth of the contract.
court receives receipt for petition from creditor and court will fix a meeting between creditor and debtor where a decision on insolvency will be made
procedure to begin insolvency process
Promissory Estoppel Elements RST (2d) §90
promise clear and unambiguous on its terms reliance by the party to whom the promise is made (the reliance must be both reasonable and foreseeable); and the party asserting the estoppel must be injured by her reliance
termination by Destruction of Subject Matter [termination by operation of law]
You sell a music hall and it burns down
An owner within a cooperative own how many specific units?
Zero Units
Bilateral K
promise for a promise
What is a tort?
a civil wrongful act, intentional or unintentional, that results in harm to another, expose wrongdoer to civil liability
An abstract of title is:
a complete written history of title
Lloyd's of London got its name from what?
a london coffee house
RST2§26:
a manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making the manifestation does not intend to conclude a bargain until the maker has made a further manifestation of intent.
RST2 §133
a memorandum does NOT need to be made as a memorandum of a contract Minutes of a meeting or diary entry sufficient.
RST2 §132:
a memorandum may consist of several writings if one is signed and the others clearly relate to the same transaction. Comment c: even if no internal reference or physical connection, the documents may be read together if clearly related to same transaction and party to be charged acquiesced.
Ongoing expenses such as property taxes and property owner association fees that are divided between the buyer and the seller at closing are called __________.
prorations
Repudiation
a party can repudiate a contract where the other party has committed a material- and therefore total- breach of the contract by continually failing to make required payments.
objective theory of contracts and mutual assent
a party's intentions are measured by what a reasonable person in the position of the other party would have thought the first party intended based on their conduct and statements.
A vessel could be unseaworthy due to
a physical condition or due to crew incompetency.
parol Evidence Rule
a written contract embodies the complete agreement between the parties involved. The rule therefore generally forbids the introduction of extrinsic evidence (i.e., evidence of communications between the parties which is not contained in the language of the contract itself) which would change the terms of a later written contract.
A counteroffer is:
a) A rejection (b) A new offer (c) Able to be withdrawn prior to acceptance (d) All of the above D
The type of marine insurance that covers virtually any and all risk that the Hull Insurance does not is called what?
protection and indemnity
Liability of pilots
a. A pilot may be liable to third parties for damage caused by his negligence. b. In the absence of a valid contractual provision to the contrary, a pilot may be liable for damage to the vessel he was piloting. Pilots associations aren't held liable though
DOHSA Liability
a. Based on negligence. b. Based on unseaworthiness if the decedent was a seaman. i. DOSHA provides the exclusive remedy for unseaworthiness when a seaman is killed beyond three miles. c. Based on intentional conduct. d. Based on products liability.
________ of an offer means that the accepting party does so with no change to the contract whatsoever.
acceptance
When Is Acceptance Effective [mailbox]: Acceptance of an Option K:
acceptance effective not upon dispatch, but upon receipt by the offeror RST2§64(b)
A(n) ________ to a contract is an attachment that adds or further describes the rights and duties of the parties.
addendum
A(n) __________ to a contract is an attachment that adds or further describes the rights and duties of the parties.
addendum
What does the polar code mean for ship safety?
additional equipment, additional clothing, ship categories and training and certificate and manual.
OCS deems offshore platforms to be "ISLANDS" to which the law of the
adjacent state shall apply as the substantive law which will govern there to the extent such state law is not inconsistent with federal law
lower costs, tailor made arbitration
advantages of ad hoc
A written history of all instruments and happenings that may affect title is called:
an abstract of title
Charter
an agreement under which a shipowner places a ship at the disposal of another (lets other people use your ship)
Partnership
an undertaking in which all partners are personally, jointly and severally liable without limitation for the debts and obligations. managment is undertaken jointly
UN Global Compact
anti-corruption practice, sets principles
UCC § 2207 (1)
any 'expression of acceptance' or 'written confirmation' acts as an acceptance even though it states terms that are 'additional or different from' those contained in the offer. That expression of acceptance DOES NOT FORM K IF magic words...aka 'expressly made condition on assent to additional or different terms.' --Unless offeree uses an 'expressly conditional acceptance'
Classical Doctrine and Adequacy of Consideration
any detriment, no matter how economically inadequate, will support a promise provided that the detriment is in fact bargained for. [Williston]
what can you do in high seas
anything
fiscal
anything related to gov or business
protest of a bad faith manifestation (CL & UCC)
applies to BOTH parties, binds not only party seeking modification, but party trying to resist it. Think the nets in the Alaska case
types of passages
archipelagic sea lanes, innocent, transit
Oral contracts
are enforceable under admiralty law
Fixed structures
are not vessels.
"Preliminary to navigation"
are not within admiralty jurisdiction
- new types of maritime claims (ex. envi damage, unpaid insurance, wreck removal) - addition of counter security which required claimant to put up security to cover potential loss of defendant)
arrest convention of 1999 saw changes in what areas
UNCLOS art 94
article requires flag states to take steps to ensure vessels flying flag comply with international requirements
a seller's disclosure notice is not required
at a foreclosure sale
FASTE JARL
at departure from port the manning must be such that the voyage can be completed safely. The vessel ran aground due to an intoxicated chief officer, who had been drunk at departure. Hence the court ruled initial unseaworthiness.
Threat of criminal proceedings
attorney threat to institute criminal proceedings renders agreement unenforceable but may subject attorney to discipline
Laches
available for actions that do not have a specific applicable statute of limitations, such as a maintenance and cure claim. (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.
use of force in a maritime context- must be _________ as far as possible and, where force is unavoidable, it must not go beyond what is ________ and __________ in the circumstances
avoided, reasonable, necessary
A mortgage _________ provides its own funds for mortgage.
banker
Like a mortgage __________ is someone who processes, underwrites, closes and funds their own files in his or her name.
banker, a correspondent lender
territorial sea length
baseline to 12 nautical miles
Why is a salvage contract within the admiralty jurisdiction of the federal court?
because subject matter governs whether courts have admiralty jurisdiction over contracts
Application of Parol Evidence Rule and good faith
because the obligation of good faith is an implied term rather than an express one, the parol evidence rule will ordinarily be irrelevant to the issue of its existence and application -->MIGHT appear where offered evidence directly contradicts an EXPRESS term.
Only a broker may earn commission and only a _______ may sue to collect a commission.
broker
Pecuniary damages are best described as what?
can be quantified in monetary terms, loss of income, benefits, social security
the LHWCA employer ____ under 905(b) in a "dual capacity" as a "vessel" owner for negligence, if applicable if that fact scenario is present.
can be sued
The party who transports the goods from one destination to another is called what?
carrier
Private carriage is typically governed by what type of agreement?
charter party
The Latin term charta partita refers to what document?
charter party (a derived docment)
problem in south china sea
china made a 9 dash line and said they own all of it even though some of it belongs to Philippines and Vietnam
conditions
circumstances that cause something to happen Provisions
________ law is a body of law based on "common sense" and local custom.
common
A carrier that holds itself out to the general public to engage in carriage of passengers or cargo for hire is called what?
common carriage
________ law is a body of law based on "common sense" and local custom.
common law
If a seller is deceased, the contract is not necessarily discharged, and the sale can be __________ .
completed by the estate
archipelagic state
composed of many islands
Maintenance and cure
consists of medical care, and subsistence equivalent to that aboard the ship, as well as payment of certain lost wages through the conclusion of the voyage.
law enforcement zone
contiguous zone
all international water
contiguous zone, exclusive economic zone, high seas
A(n) __________ is a provision in a contract that requires that a certain act or event happens in order for the contract to be binding on the party.
contingency
innocent passage must occur in a _______________________ manner
continuous and expeditious
Policy in interpretation
courts struggle to reconcile (1) parties' intended meanings, (2) fair outcomes, and (3) creating incentives for parties to clarify intentions (balancing discouraging litigation with minimizing transaction costs)
innocent passage
cutting through someones TS
Beneficiaries
decedent's wife, husband, parent, child, or dependent relative
economic duress
deemed voidable not void Williston Elements: The party alleging economic duress must show that he has been the victim of a wrongful or unlawful act or threat, and Such act or threat must be one which deprives the victim of his unfettered will
why we don't sign the law of the sea at first
deep sea mining condition
How to make an advertisement an offer
definite, specified number/quantity, "first come first serve". Look at variables in pyramid.
Good Faith and Open Price Terms UCC §1-201(b)(20):
definition of good faith recognizes the obligations of both subjective honesty in fact and objective commercially reasonable behavior breach of duty of good faith shown through improper motive even though the prices set might appear to be objectively reasonable
What is required for a court to take admiralty jurisdiction over a contract?
depended on what the subject matter of the contract was; must be directly and intimately related to the operation of a vessel and navigation
A "safe berth / safe port" clause in a charter party typically contains what language?
depth of water, entry conditions, political situation
The requirements for a valid lease are, competent parties, let and take agreement, in writing and ________.
description of the property
Data Controller
determines purpose of processing
A contract is considered _________ when all parties have performed. This term is similar to 'fully executed'.
discharged
Covered under Jones Act or Maintenance/cure
dont have to be on a vessel
- exercise data processing according to good practice and use safe practices to acheive this - receive adequate consent from subject - provide info about collection to the subject - upon request inform subject if and where data is being processed
duties of data controller
In the event of default by the BUYER, the SELLER can choose to accept the buyer's _______ as liquidated damages.
earnest money
__________ is not a requirement of a valid contract.
earnest money
An example(s) of an appurtenance would be:
easements
Mutually exclusive regimes
either seamen or longshore/harbor workers
Recovery for...fright?
emotional damages available under JA
What is the Athens convention of 1974?
entry into force 1987 ratified by 35 states Art 3(1): The carrier shall be liable for damage suffered ... [by] a passenger ... if the incident which caused the damage ... occurred in the course of carriage and was due to the fault or neglect of the carrier or his servants or agents acting within the scope of their employment.
PERGAMOS
establishing that something is more probable than not is sufficient to exempt the carrier from liability = REVERSED BURDEN OF PROOF!
In real estate law, a(n)_______is the interest, or nature of the interest, a person has in real property.
estate
internal of baseline
everything on the inside of the baseline
Exclusive agency, __________, open listing, and net listing are four major types of listing agreements.
exclusive right to sell
Lecture 8
exercising legal rights in international enviornment
Outer Continental Shelf Lands Act
extend federal and state law
Wrongful or criminal deception intended to result in financial or personal gain is called:
fraud
When an individual owns real property, he or she is said to have a (n) __________ in that property.
freehold estate
The amount of money paid to the shipowner by the charterer under a time charter arrangement is called what?
freight
The charge for carriage and delivery of cargo is called what?
freight
At closing, the contract is:
fully executed
What is the term for a reckless disregard to the safety or care of others?
gross negligence
doesnt conform with article 4, deceptive, immoral, detrimental to earlier tm
grounds of rejection for trademarks
A worker is a "seaman" if
he is more or less permanently (30%+ of his work time) attached to and a member of the crew of a vessel in navigation
economics
help analyse the effectiveness of policies, and distribution of wealth and utility
Hoist
here: A cable used by helicopters for lifting or lowering persons in a pickup operation
Casualty
here: Case of death in an accident or shipping disaster
PMI is for ______ loans.
high LTV
The four types of statutory estates are community property, dower and curtesy, tenancy by the entirety, and _________
homestead
MAJORITY Definition of good-faith in UCC: §1-201(b) (20)
honesty in fact and the observance of reasonable commercial standards of fair dealing
The type of marine insurance policy that covers the vessel and its equipment is called what?
hull and machinery
73. Policies of marine insurance generally cover what 3 types of insurance?
hull and machinery, cargo insurance, protection and indemnity
goods
ident, as items sold under the contract
What did Goode say about codification of the commercial laws
if a century has elapsed without significant change we can assume it is time to replace the entire legislation and begin again
Under what circumstance would a court look very closely at the validity of a salvage contract if later a dispute arises over just compensation for salvage?
if a salvage contact is concluded while the vessel is in extremis and later there is a dispute over compensation
Mirror Image Rule [Classical Contract Law]
if an offeree's acceptance is not the mirror image of the offer it is essentially a counteroffer and not an acceptance so not valid contract - acceptance cannot add anything to the offer. (If say "I accept and..." then have rejected the offer)
Duress
illegal coercion, threats or acts that have powerful influence which preclude a party from exercising free will [RST of Ks §492 (b)] Any wrongful threat of one person by words or other conduct that induces another to enter into a transaction under the influence of such fear as precludes him from exercising free will and judgement, if the threat was intended or should reasonably have been expected to operate as inducement
Any man-made addition to land that is permanent, and is considered to become part of the land is known as a(n) __________.
improvement
Which of the following is a physical characteristic of land?
indestructability
Res ipsa loquitur
infer negligence from the unexplained happening of an event
What does equity offer in terms of remedies?
injunctions, specific performance, restitution (have suffered a loss for which compensation under damages is not available)
Territorial zone has __________ passage
innocent
there is no such thing as this for international air space
innocent passage
An example of "inherent vice" of a cargo could be?
insect eggs, metal rusting, cargos generating heat, discolor
An agreement (contract) for construction of or drilling operations on a fixed platform on the Outer Continental Shelf
is not a maritime contract
A contract for the sale of a vessel
is preliminary to navigation and therefore outside of maritime jurisdiction.
An agreement (contract) to transport manning supplies to and from an offshore drilling rig
is within admiralty jurisdiction
Once the limitation fund has been established, the court will take several specific actions that affect claims against the shipowner. What are these actions?
issue an injunction, establish a motion
*What is "common law" and what is the "common law" of admiralty and maritime matters?*
judge-made law, relies on judicial precedent to develop legal principles
RESPA prohibits ________, which is considered an abusive practice.
kickbacks
What governs the time limit for bringing suit?
laches
contiguous zone
law enforcement zone
Sanctions
legal penalties imposed by govs or intl organizations, driven by political situations, enable liabilities such as fines or imprisonment
The person acquiring the use (the tenant) is the ______.
lessee
The person giving use (the owner, or landlord) is the _______.
lessor
Requirements of a valid lease are: competent parties, _______, adequate consideration, legal purpose, and ________.
let and take agreement, description of the property
A ________ is an employment agreement between the seller and the broker.
listing agreement
A __________ is an employment agreement between the seller and the broker.
listing agreement
The __________ is the percentage of the lesser of the appraised value or sales price that the lender will loan.
loan-to-value ratio
There is no need for removal when the party removing is the ______
local defendant
What play an important role in determining whether admiralty jurisdiction exists in tort cases, and even indirectly, in contract cases.
locality
where baseline is drawn
low water mark
Describe what it means for a seaman to received "maintenance and cure"
maintenance is the right of a seaman to food and lodging, cure is the right of a seaman to obtain medical treatment and necessary medical expenses
Maritime jurisdiction includes
marine insurance; maritime contracts (depending upon their subject matter) and maritime torts (depending on their locale of occurrence).
What are the 3 main elements of a valid salvage claim?
marine peril placing property at risk of loss destruction or deterioration, salvage service must be voluntarily rendered and not required by an existing duty or special contract, efforts must be successful
An OCSLA case
may be brought in state court, but is subject to being removed to federal court under the Federal Question Jurisdiction removal provision.
Is aircraft subject to admiralty jurisdiction?
may be subject to admiralty jurisdiction if engaged on routes traditionally accomplished by vessels.
subjective theory of contracts and mutual assent
meeting of the minds that looks at actual intention of the party rather than the party's conduct
example of why a state might suspend innocent passage?
military exercises
The american view about military surveys is that if it is for a __________________ it is a survey. Chinese scholars say that navigation should not fall under military purpose because it is always necessary
military purpose
There are three main steps to analysing whether or not a court (forum state) has personal jurisdiction over a defendant called
minimum contacts
unilateral contract
modern view
What are the attractions of equitable remedies in commercial law?
more flexible equitable tracing rules, more generous limitation periods in equity rather than common law, potential for proprietary claim and thus priority over other creditors
A __________ is a pledge of real estate as security for the repayment of a debt.
mortgage
Navigability
must be used or capable of being used for the "customary modes of trade and travel on water."
To be found a seaman for Jones Act purposes, describe the seaman's connection to the vessel:
must have a connection to a vessel in navigation that is substantial in terms of duration and nature
for an island to form its own territorial sea and eez it must be
naturally formed, capable of sustaining habitation or economic life
Piers, wharves, bridges, jetties, ramps and other "extensions of land" are not within admiralty jurisdiction even if they are built over __________
navigable waters
How to obtain enforcement under §139:
need to show that by virtue of his reliance he suffered injury that will not be compensable on any other basis.
Employed by someone else, they are responsible for your
negligence
Longshore man can sue 3rd party for ___________ only
negligence under 905 (b)
A(n) ________ is a listing in which the real estate broker's commission is the difference between the minimum net established by the seller and the price that the buyer is willing to pay.
net listing
Because of potential ethical and legal issues, ________ are discouraged and subject to great scrutiny.
net listings
A counteroffer is rejection of the original offer coupled with a _______.
new offer
do you need permission for innocent passage
no
is there any suspension of archipelagic sea lane passage?
no (Article 44)
Aircraft through innocent passage?
no (national airspace)
What is art 107, TFEU about State Aid?
no aid granted that will distort competition threatening fairness. Purpose: to ensure that government interventions do not distort competition and intracommunity trade .
Internal waters _____ rights of access ___ innocent passage Access by ____________ only (except emergency)
no,no, permission
You cannot be a seaman on a ________
non-vessel
A(n) ________ occurs when a new contract is substituted for an existing one.
novation
What is the meaning of the term "laytime" in a charter party?
number of hours the shipowner is given to load or discharge cargo
OECD Bribery convention
obligations for participating countries to impose and enforce criminal penalties for bribing foreign officials
The French term __________ means a life estate that is based on the life of another.
pur autre vie
Action in rem
referred to the power of the court over certain property. In maritime cases this is generally the ship.
__________ implements the Real Estate Settlement Procedures Act.
regulation x
part 11 fix
removed sharing of r and d (deep sea mining)
right of access, right of rectification, right to deletion, right to restrict processing, data portability, right to object
rights of data subject
pure risk
risk of reduction in value of assets due to physical damage or loss
examples of internal of baseline
rivers
What is the purpose of the Block exemption for certain shipping consortia?
"For the purposes of the EU anti-trust rules, consortia are forms of operational cooperation between liner shipping companies with a view to rationalise costs" *must not the the objective to fixe prices
SUNNY LADY
"Reasonable fitness" to be expected, not perfection. In this case the cargo was damaged because someone put water into the wrong pipe. Fault in management. But the case focused on initial seaworthiness? At the commencement of the voyage, it was reasonable to expect that the defect would be remedied or neutralised during the voyage by use of means available on the ship. For that reason it is OK to leave the port with open hatches, if they are being closed before reaching open sea. It was considered a one-off mistake, the crew was considered generally competetnt so no initial unseaworthiness = NO LIABILITY
What is in place in Germany to implement good faith?
s.242 of the German Civil Code - obligation to execute contracts in good faith
Acceptance by Silence (classical doctrine)
"he who is silent does not give his consent"
What is the term used to describe the requirement that a salvage must be successful, at least in part?
"no cure, no pay"
Warranty of seaworthiness
"reasonable fit"
A seaman's employer has a duty to provide a vessel that is _________
"reasonably fit"
The maximum amount on behalf of any one license holder is...
$100,000
..., which means that both parties remain liable beyond closing for their representations made in the contract.
'Survive closing'
UCC SOF- Admissions Exception UCC 2201-(3)(b)
'common sense' argument that a party should not be liable to admit the making of a contract in a legal proceedings and yet avoid liability because of lack of a writing.
exceptions to adequacy of consideration
(1) Court will review equivalence of exchange under doctrine of unconscionability (2) Fairness of lawyers fees (3) When equitable relief such as specific performance is sought, detriment's inadequacy will be considered (4) Inadequacy might be evidence that detriment was not truly bargained for or may be evidence of fraud or other bad thing.
The broker may sue a ______ who has defaulted on a listing agreement.
seller
The least common form of mortgage financing is
seller financing
Option contract cannot be terminated by
(1) revocation (2) death of offeror / offeree (3) rejection [modern view]
(D) GPS
(Differential)Global (satellite) Positioning System
Unconscion + Fraud
(Quicken Loans- quicken had committed fraud, and resulting loan was unconscionable) You will not always be able to deploy both together, BUT TRY
Texas Veteran's Housing Assistance Program loans can be:
(a) FHA (b) VA (c) Conventional (d) Any of the above D
According to the Deceptive Trade Practices Act (DTPA), brokerage falls under the category of ________.
services
Uniformity
set of laws proposed for all states to adopt as written, for the purpose of their being more uniformity of laws from state to state.
The party whose goods are being transported by the carrier is called what?
shipper
A(n) ________ is a business venture that is owned by one individual.
sole proprietorship
what happened during negotiations for un convention on law of the sea
soviet submarine sunk and missing
transit passage
special passage for international straights
Bill is the buyer purchasing a property from Sally. All contingencies have been met and the parties are ready to close. One day prior to closing, Sally announces that she has changed her mind and is going to keep the property. Bill is determined to complete the purchase and acquire the property. The only default remedy in the contract that could result in Bill acquiring the property is___________________________.
specific performance
What is the purpose of a Clause Paramount on a Bill of Lading?
specifies law applied to contract of carriage
Most maritime cases can be heard in either
state or federal courts under the "saving to suitors"
avoid the mailbox rule
state that acceptance will not occur until received by the offeror. [this is better for offeror]. Will not apply if offeror has stated (expressly or implicitly) that he must receive the acceptance for it to be effective.
To determine what makes up the COGSA "package" what factor will courts look to?
statement on bill of lading as to how contents of the container are described
Compatibility(of goods)
states whether different goods can be stowed together in one hold
Which of the following requires a contract for the conveyance of real estate to be in writing to be enforceable?
statute of frauds
The federal maritime law comes both from
statutes passed by the Congress and from judge-made law
Tug/Tow warranty of workmanlike performance
stevedore/tow impliedly warrants that it will perform its services in a workmanlike manner; if breach of that warranty caused the vessel owner damages, the vessel owner may recover indemnification from the stevedore.
MINORITY Definition of good-faith
still have old definition of it just meaning 'honesty in fact', at least for parties who are not Article 2 merchants
Under s 42 of the Maritime Powers Act a maritime officer may
stop vessel and facilitate boarding
The term __________ is synonymous with contingent.
subject to
Name some of the other structures courts have found to qualify as vessels under the Jones Act?
submersible drilling barge, submersible oil storage facility, mobile drill platform with retractable legs, dredges
Changes in workers assignment may affect his/her status.
such person should not be denied seaman status if injured shortly after the reassignment
Jones Act, 46 U.S.C. § 30104
sue your employer for negligence (right of trial by jury)
Three types of treaty making processes within the US
- Art. II - Congressional Executive - Sole Executive
Diversity jurisdiction
- Choose to bring in a state or federal (diversity) - Value of at least $ 75,000 $ exclusive of interest and cost
In order to have a valid complaint for Limitation of Liability, the shipowner must deposit a sum of money called a "limitation fund" with the court. How much?
sum equal to value of its interest in the vessel and pending freight
Congress
- It empowered Congress to revise and supplement the maritime law within the limits of the Constitution (develop maritime law) - Admiralty and maritime jurisdiction on the lower federal courts
The T-47 Residential Real Property Affidavit is a notarized form that complements a _______ in a real estate transaction.
survey
"Goods" means...
tangible or real property purchased or leased for use.
islands that can't sustain life get
territorial sea
the line between national water and international water is between
territorial sea and contiguous zone
islands that can sustain life get
territorial sea contiguous zone and exclusive economic zone
Admiralty Extension Act
the admiralty and maritime jurisdiction shall extend to and include all cases of damage or injury, to persons or property, caused by a vessel on navigable waters, even though the damage or injury is done or consummated on land.
Since Denmark is a closed ship registry what must the company have?
the company must be primarily or secondarily accounted for in Denmark and completed ships with a gross tonnage of or above 20 engaged on international voyages.
For historically valuable shipwrecks, what special factor do courts look to when determining a salvage award?
the degree to which the salvors have worked to protect the historical and archaeological value of the wreck and the items saved
In marine insurance, the term "uberrimae fidei" refers to what?
the duty of utmost good faith, be truthful in information given
Urd II
the hatches had been closed after departure from Oslo, but in a faulty manner resulting in the sinking of the ship. The loss was considered to result from an error in the management of the ship
Exclusive federal admiralty jurisdiction over
- actions in rem (vessel) - generally salvage - general average, as provided by statute - Suits arising under the Limitation of Shipowners' Liability Act, the Ship Mortgage Act, the Suits in Admiralty Act (against the U.S. govt.), the Public Vessels Act (against the U.S. govt.), and the Foreign Sovereign Immunities Act ("FSIA")
What is the NYPE 1946 stating with regard to the condition of the vessel and suspension of hire?
- in thoroughly efficient state and classed -maintain her class for and during the service -in event of loss preventing payment of hire shall cease for the time thereby lost
What does the TTA, Sec 2 for tonnage tax regime state?
- it replaces ordinary tax obligation for company - taxable income calculated on the net tonnage of vessels - 10 year lock-in period (if later opt-out, 10 year cooling period applies) - all the company's vessels and assets that fulfill requirements must be covered under the election
a case involving a contract to build a vessel is
- not within admiralty jurisdiction. - "Contract made on land, to be performed on land." - Supreme Court has also held that the reasons for excluding ship construction contracts from admiralty jurisdiction apply even to agreements made after the hull is in the water
What are the key points to address/pay attention to with competition law?
-Abuse of Dominant position -Collusive behavior -Merger regulation -State Aid
What are the exemptions to collusive behavior under art. 101(3)?
-Agreement creates efficiencies -Consumers must be allowed to share the benefit -Agreement should not contain restrictions on competition beyond strictly indispensable restraints -Agreement must not eliminate competition all together
Under the DHAB 2016 what is said?
-Customers are obligated to provide all information and preparation of goods for handling. (11&15) -Period of liability is from the point the port operator takes over goods until time of their delivery. (19) -Port operators liability for fault or negligence is limited to 666.67 SDR per package or 2SDR per kilo (21) -Notice period must be withing 21 days and there is a 10 month time bar. (29 &30).
What are the tonnage tax regime general characteristics?
-Has to be related to 'maritime transport' -Ownership has to be connected to tax resident country -There is a lock-in period (ten years to choose or not choose) where switching to alternative tax regimes is not possible
What is difference betweeen CREWMAN A/CREWMAN B and SHIPMAN?
-Only covers crew management (Clause 4) -ship owner or manager as employer -"Cost plus fee", Clause 7 and 9 vs. "lump sum"
Abuse may consist of:
-application of unfair prices or trading conditions -limiting production to the prejudice of consumers -applying dissimialar conditions to equivalent transactions with other trading parties thereby placing them at a competitive disadvantage.
Why are ships registered?
-entry to ports -to hold people responsible -validation purposes -ensure that same ship isn't sold twice -*control of valuable/strategic assets for economic and political reasons -*safety and compliance reasons -*legal reasons
Three types of flag registry?
-open(panama &liberia) -closed (denmark) -international (DIS, NIS)
What is the Supplytime 2005 in regard to condition of vessel and suspension of hire?
-owners undertake that at date of delivery in a thoroughly efficient state of hull and machinery -exercise due diligence to maintain throughout the period of this charter pary -hire shall not cease in the event of the vessel being prevented from working as aforesaid as a result of: stress of weather or detention or damage by ice
What control is there in the contiguous zone?
-prevent infringement of its fiscal, immigration, sanitary of customs laws -punish such infringements
For insolvency time schedule look at lecture 10 synopsis
...
Veer out (to)(of anchors)
...To let out a greater length of cable.
If the loan factor is $5.53 on a $200,000 loan, taxes are $2400/year and insurance is $1800/year, what is the monthly PITI payment?
1,456
RESPA regulates closings on:
1-4 family residential properties with federally related financing
Element of a Contract
1. An agreement (through offer & acceptance), 2. Consideration, 3. Contractual Capacity; 4. Legality, 5. Genuine Consent, 6. Writing (if necessary under the Statute of Frauds)
28 U.S.C. § 1333: "[T]he district court shall have original jurisdiction, exclusive of the courts of the States, of:
1. Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. 2. Any prize brought into the United States and all proceedings for the condemnation of property taken as prize.
Who is a Jones Act Employer?
1. Luaritizen test for determining whether a particular ship owner should be held to be an employer for the Jones Act: (1) place of the wrongful act, (2) law of the flag, (3) allegiance or domicile of the injured seaman, (4) allegiance of the defendant ship owner, (5) place where the contract of employment was made, (6) inaccessibility of a foreign forum, (7) the law of the forum. This test is not exhaustive or mechanical. But Hellenic Lines situations
Locality test
1. Occurred on navigable waters 2. Presence or absence of vessel 3. Injury caused by a vessel or one of its appurtenances 4. Negligent or intentional act takes effect, not where the act occurred
Agreement
1. Offer 2. Invitation to Treat - a suggestion to someone else that they should make an offer. 3. Acceptance 0 must be in full
Termination of an Contract
1. Performance 2. Breach 3. Frustration 4. Agreement
3 Components of Harter Act
1. Prohibits carriers from incorporating certain exculpatory clauses into contracts of carriage 2. Provides certain defenses to the carrier 3. Requires the carrier to issue a bill of lading to the shipper upon request
Jones Act Wrongful Death
1. Provide the exclusive remedy for the wrongful death of a seaman in territorial waters. 2. Offers negligence remedy for death of a seaman on the high seas. a. Does not preclude recovery for seaman's wrongful death due to unseaworthiness under DOSHA. 3. Where it applies, the Jones Act allows recovery only for pecuniary loss and not for loss of society, etc. in wrongful death action.
Datum
1. The most probable position of a search target at a given time 2. The plane of reference to which all data as to the depth on charts are referenced. Derelict Goods or any other commodity, specifically a vessel abandoned at sea
Acceptance
1. Unconditional (must be a mirror image of the offer, and if conditions are added, they create a counteroffer); 2. Unequivocal, 3. Legally Communicated
Many things can be sources of CIL except:
1. jus cogens 2. general principles of law (from CALI)
Test for admiralty tort jurisdiction
1. occur on navigable waters 2. bear substantial relationship to traditional maritime activity 3. have a potentially disruptive impact on maritime commerce
Obligations of states under Intl Law
1. protection of diplomatic and consular personnel and premises (Iranian hostage case) 2. protection of aliens (Mexican jail case) 3. prevention of environmental harm to other states (Canadian mining)
2 part test for good/bad faith [Roth v. Sharon Steel 1983]
1.) A party may in good faith seek a modification when the 'unforeseen (might not be necessary see Man v. Midcontinent) economic exigencies existed which would prompt an ordinary merchant to seek a modification in order to avoid a loss on the contract 2.) Even where circumstances do justify asking for a modification it is nevertheless bad-faith conduct to attempt to coerce one by threatening a breach
territorial zone is _______ nautical miles from baseline
12
how most people divide TS and CZ
12 and 12
limit for your national water
12 nautical miles
the reality of your contiguous zone length
12 nautical miles
contiguous zone
12-24 miles from baseline
Exclusive economic zone
200 nautical miles from the baseline (Articles 55-75)
exclusive economic zone
200 nautical miles out
What is the angle definition of overtaking?
22.5° abaft her beam
distance between the natural entrance points should not exceed ___________ nm if it is to be a bay
24
how many nautical miles make up 1 long and lat degree
60
What is a hurricane warning and flag
64 knots and up
What's the maximum width of the boat trailer
8.5 feet
The Buyer and Seller Temporary Residential Lease forms are good for any period up to:
90 days
The Buyer and Seller Temporary Residential Lease forms may be used for a lease period not to exceed:
90 days
A valid lease can be executed by
A 44 year old woman who is physically handicapped
Sale
A contract in which ownership of goods transfers immediately from the seller to the buyer for a price.
Contract of carriage
A contract made by or on behalf of a carrier for the carriage by sea of a passenger or of a passenger and his luggage, as the case may be.
Adhesion Contract
A contract where one party has total control, the other party has little or zero liability
frustration of purpose
A court-created doctrine under which a party to a contract will be relieved of his or her duty to perform when the objective purpose for performance no longer exists (due to reasons beyond that party's control).
Damage control team
A group of crew members trained for fighting flooding in the vessel
Convoy
A group of vessels which sail together, e.g. through a canal or ice
Take off (to)
A helicopter lifts off from a vessel's deck
contract
A legally binding agreement
Foul (of propeller)
A line, wire, net, etc., is wound round the propeller
Maritime Liens
A maritime lien is a special property right in a vessel given to a creditor by law as security for a debt. Maritime liens are possible in both in rem and in personam proceedings. Liens are not effective until they are recorded, meaning others can get liens ahead of you if they are not recorded. If there is no preferred ship mortgage, then a lien can't be granted. A preferred ship mortgage is a ship mortgage that is recorded. A seaman's claim for personal injuries under the Jones Act is not subject to a lien. The US has not signed any of the three international lien treaties (pg. 8-5).
LSman suits against shipowners
A maritime worker (longshoreman) may sue a vessel owner under 905(b) for negligence. 905(b) is a maritime tort that must fall within maritime jx Must be a vessel for purposes of maritime jx - must be capable of navigation or its special purpose or use in the water. P gets a jury trial in a 905(b) action. Concurrent jx for a 905(b) action, so P can bring it in state or federal ct.
Net tonnage
A measure of spaces useful for the carriage of cargo or of passengers.
Gross tonnage
A measure of the total enclosed spaces of the ship.
Bill of landing
A multifunctional document including a contract of carriage which is also serves as a receipt by the carrier that it has received the goods
Aggravation of Original Injury
A negligent employer is liable not only for the initial injury but for subsequent negligent medical care necessitated by the original injury.
What is jurisdiction?
the power and authority of a court or judge to hear a case
elements of repudiation
the promisor must (1) clearly, unequivocally, and (2) voluntarily communicate an intention not to render the promised performance when it falls due
What is a key component for ship owners' economic models?
the residual value of vessel is key because this together with hire rates, opex and maintenance cost are what determine the benefit of recycling a vessel.
Preliminary Negotiation
A party desiring to reach a contract may make a statement which is not an offer but rather a solicitation of an offer with the other party Such statements cannot be accepted exchanging communications of a more or less detailed nature about the type of exchange of performances to which each would be willing to agree
Search pattern
A pattern according to which vessels and/or aircraft may conduct a co-ordinated search (the IMOSAR offers seven search patterns)
Carrier
A person by or on behalf of whom a contract of carriage has been concluded, whether the carriage is actually performed by him or by a performing carrier.
Borrowed Servant Doctrine
A person may be a member of the crew of a vessel, and therefore, a Jones Act seaman even though he is employed by an independent contractor rather than the ship owner. John Cooker is a chef. He works for Johnson Catering, which was hired by the Princess cruise to prepare their meals onboard the vessel Wanda. He burns himself with grease negligently left by Joanie Cleaner. He receives his paycheck from Johnson's. He is a Jones Act seaman.
Performing carrier
A person other than the carrier, being the owner, character or operator of a ship, who actually performs the whole or part of the carriage.
Survivor
A person who continues to live in spite of being in an extremely dangerous situation, e.g. a shipping disaster.
RST of Restitution §117 PRESERVATION OF ANOTHER'S THINGS OR CREDIT
A person who has preserved property, although without consent, is entitled to restitution if: (1) He was in, or had taken lawful posession of the property (2) It was reasonably necessary to take steps before contacting the owner (3) No reason to think owner wouldnt want him to act (doesnt matter what owner in fact wanted) (4) he intended to charge (5) the owner has accepted the property back
mental incapacity
A person- is suffering from "Insanity" or "was of unsound mind"- whose mental capacity is so deficient that she is incapable of understanding the nature and consequences of a K Rule- K is voidable by a person who due to mental illness or defect lacked the capacity to contract at the time of entering into the agreement OR can be affirmed by the mentally incompetent person during a lucid interval or upon recovery. Tests: [Traditional Test] Cognitive Test a person lacks capacity to enter into a K if the person is unable to understand the nature of the transaction or its consequences [Modern Test] Volitional Test looks to whether a person is unable to act reasonably in the transaction and the other party has reason to know of the condition [RST §15 also follows] Burden of Proof- is on party seeking to avoid the contract
Offer
A personal proposal by one party to another intended to create a legally binding agreement. There must be complete and definite terms.
Indestructibility is
A physical characteristic of land
Damage control plans
A plan showing clearly the boundaries of the watertight compartments, the openings therein with the means o closure and position of any controls thereof, and the arrangements for the correction of any list due to flooding.
Way point
A position a vessel has to pass or at which she has to alter course according to her voyage plan
What is the signal during restricted visibility for a power driven boat
A prolonged blast at an interval of less than two minutes
Distress alert (GMDSS)
A radio signal from a distressed vessel automatically directed to an MRCC giving position, identification, course and speed of the vessel as well as the nature of distress
Bill of sale
A receipt evidencing the transfer of ownership of goods
RST (Second) § 250. When a Statement or an Act Is a Repudiation
A repudiation is (a) a statement by the obligor to the obligee indicating that the obligor will commit a breach that would of itself give the obligee a claim for damages for total breach under § 243, or (b) a voluntary affirmative act which renders the obligor unable or apparently unable to perform without such a breach.
What is a securite warning
A safety warning
may invoke admiralty jurisdiction of the federal courts for claims against its employer, even for injuries on land.
A seaman
Lien
A security interest over an asset
Duration of Obligation
A shipowner is required to furnish M+C until the disabled person has been cured or the disability has been declared permanent. "Maximum Medical Improvement" No obligation to make disability payments for the rest of his life A shipowner's duty to furnish M+C continues from the date when the seaman leaves the ship to the date when a medical diagnosis is made that the seaman's injury was permanent and therefore incurable, even if that diagnosis shows that the injury was permanent immediately after the accident
How long is considered a short blast, or a prolonged blast?
A short blast is one second, prolonged blast is 4 to 6 seconds
Blast
A sound signal made with the whistle of the vessel
General emergency alarm
A sound signal of seven short blasts and one prolonged blast given with the vessel´s sound system
Laytime
A specified period of time where the charterer can perform its loading and unloading operations
statute of frauds
A state statute under which certain types of contracts must be in writing to be enforceable.
Illusory promises
A statement which appears to be promising something but which in fact does not commit the promisor to do anything at all. unrestricted right to cancel Ex: Right to Terminate [at-will]: Classical: party with termination right has not furnished consideration Modern: as long as terminating party has obligation to give notice, even if notice implied, this duty of notice itself furnishes consideration
Safety Management System
A structured and documented system enabling company personnel to effectively implement the company safety and environmental protection policy.
An abstract of title is
A summary of title search
Intermediate enhanced survey
A survey carried out either at the second or third annual survey or between these surveys.
Overall survey
A survey intended to report on the overall condition of the hull structure & determine the extent of additional close-up surveys.
Close-up survey
A survey where the details of structural components are within the close visual inspection range of the surveyor.
Leasehold
A tenants right to occupy real estate during the term of a lease, generally considered a personal property interest, although a long-term lease may be eligible for treatment as real property for financing purposes.
Express term
A term in a contract specifically agreed to by both parties
Construction Drawings
A type of drawings and other plans showing any subsequent structural alterations.
Disabled
A vessel damaged or impaired in such a manner as to be incapable of proceeding on its voyage
Polluter
A vessel emitting harmful substances into the air or spilling oil into the sea
Hampered vessel
A vessel restricted by her ability to manoeuvre by the nature of her work or her deep draft
Wreck
A vessel which has been destroyed or sunk or abandoned
Underway
A vessel which is not at anchor, or made fast to the shore, or aground
DEAD SHIP
A vessel which is withdrawn from navigation or devoted to a land-based use. Its function is so fundamentally changed that it has no further navigation function and will be considered to have "LOST" vessel status.
Void and Voidable
A void contract is one that is no longer valid and will not hold up in a court. A voidable contract is one where one or both parties have a right to terminate the contract without legal ramifications.
International voyage
A voyage by a ship entitled to fly the flag of one state to or from a port, shipyard, or offshore terminal under the jurisdiction of another state.
International voyage
A voyage within the area from a port in a country to a port outside such country or conversely.
Tension winch
A winch which applies tension to mooring lines to keep them tight
Disclaimer
A written clause in which the seller excludes or modifies its implied warranties
Charter Party
A written document that provides the contractual arrangements forgone party (the charter) to hire the carrying capacity of a vessel which is owned by another party
WDA Defined
A wrongful death action is brought for the benefit of the decedent's family and other dependents; the amount of recovery is determined by what the members of the protected class would have received from the decedent during his life. Brought by the "personal representative of the estate", which may include the spouse, the administrator, or the executor of the estate.
What are the Polar Class Certificates issued by the DMA and which is highest level?
A, B, C and A is the highest.
Who is covered by LHWCA?
A. LHWCA applies to "maritime workers" but not "members of the crew" 1. "Maritime workers" = longshoremen a. LHWCA is a no fault scheme. A worker's comp situation. 2. "Members of the crew" = Jones Act seamen a. Under the Jones Act, have to show liability: have to sue for negligence, or unseaworthiness
Poolcon A vs. Poolcon B
A: participants time charter vessels into pool which operates as a self-standing entity. B: modelled on widely-used agency agfeements where pool managers act as a vessel operator and undertake commercial management. (contracts are fixed)
Easterbrook (subtraction), [majority]
the term waiver should be interpreted traditionally (no reliance). A waiver is a subtraction and a modification is an addition. if something is taken out of the K, then use 2-209(4) but if something is added, it is excluded.
ad hoc arbitration
Abritation with freedom of contract where parties agree on appointed tribunal and procedural rules for disputes
________ of an offer means that the accepting party does so with no change to the contract whatsoever.
Acceptance
Overflow
Accidental escape of oil from a tank which is full because pumping was not stopped in time
When real estate is sold, any personal property that is to be conveyed is
Accomplished through an addendum
When additional land is deposited by a river running through an owners property this land has been acquired by
Accretion
consideration in unilateral k
there is no mutuality of obligation because one party is generally not bound to continue her performance
Merchant Shipping act
Act establishing captain as responsible for safe carriage of cargo, ship owner insured against maritime claims
detrimental reliance
Action taken in reliance on the promises or representations of another causing legal detriment 1) Reliance is presumed unless D proves otherwise (Greasley v Cook) Lodger taking care of elderly couple told he would have interest in property but claim failed due to insufficient nexus - had not relied on them to his detriment because had taken care of the couple out of friendship not on the promise of the interest.
Implied Contract
Actions & circumstances infer and define the terms of the contract; may be words, conduct, gestures; contracts are implied at law
A(n) _________ is an attachment that adds or further describes the rights and duties of the parties.
Addendum
2207(2) Merchants
Additional term is automatically a part of the contract. 3 exceptions: i. Expressly limits acceptance to terms in offer ii. Material alteration [most important, no concrete definition]use test for materiality Paul Gottlieb v. Alps. Below.-examples disclaimer of warranty & arb clause iii. Notification of objection in reasonable time
Congress has the power to enact legislation governing maritime matters by the power granted to it in what 2 clauses of the US Constitution?
Admiralty clause and commerce clause
The most common form of financing used by buyers is:
third party financing
Elements of a Valid Contract
Agreement Consideration Consent Capacity Intention Legality
Boarding arrangements
All equipment, such as pilot ladder, accommodation ladder, hoist, etc., necessary for a safe transfer of the pilot
If a broker receives more than one offer on a property:
All must be presented to the seller unless the seller has instructed the broker otherwise
If a broker receives more than one offer on a property:
All must be presented to the seller unless the seller has instructed the broker otherwise in writing
Due to the Human Rights Act 1998 what can companies now do?
Allowed to assert Human Rights
RST2 §32 and bilateral k
Ambiguity where offer is ambiguous, acceptance may occur by either promise OR performance --> continues earlier approach but adds that unless the language or circumstances indicate otherwise, it should be assumed that an offer may be accepted either by performance or a promise to perform. Exception. §32 not applicable when it is clear the offeror sought an act and only an act in exchange for her promise of performance
________ are changes that are made to the original contract, such as changes to the closing date or changes to the sales price, down payment and/or the amount financed.
Amendments
__________ are changes to details in the contract such as closing date, sale price, down payment, repair agreements, and removal of contingencies.
Amendments
Name a case for caveat emptor v good faith
American Capital Acquisition Partners v LPL
The United States criminal jurisdiction exists to prosecute crimes committed on any ___________, even while they are in foreign territorial waters where the local sovereign has not asserted its jurisdiction
American flag vessels
Explosives
An IMDG good which present a serious risk and shall be stowed in a magazine which shall be kept securely from detonators
A.744(18)
An IMO Resolution that gives detail on "Guidelines on the Enhanced Programme of Inspections during Surveys of Bulk Carriers and Oil Tankers."
Offer
An act or statement that proposes definite terms and permits the other party to create a contract by accepting those terms
There are a number of factors that help to determine a salvage award, list 3 of them:
time and labor expended, efficiency skill and energy undertaken, value of property risked or used by salvor, risk of salvage, value of property saved
Contract to sell
An agreement to transfer ownership in the future
What is a deferred consideration agreement?
An agreement where usually if a target is met then the initial purchasing price increases
Rendez-vous
An appointment between vessels normally made on radio to meet in a certain area or position
Comity
An association of nations for their mutual benefit., courtesy and considerate behavior towards others
Seemark
An elevated object on land or sea serving as a guide .....
Crash-stop
An emergency reversal operation of the main engine(s) to avoid a collision
Contribution and Indemnity
An employer who pays M+C is entitled to seek complete indemnity from a third party tortfeasor (including a prior employer) whose fault was the sole cause of the seaman's injuries. Or, if jointly negligent, only for the amount the third party is proportionately liable
A listing agreement is
An employment contract
Unlike sales contract a listing agreement is
An employment contract
Implied warranty
An implicit warranty obligation imposed by law on all sellers; includes implied warranty of title, implied warranty of fitness for a particular purpose, and the implied warranty of merchantability
Implied Warranty for Workmanlike Construction and Subsequent Users
An implied warranty of workmanlike construction extends to subsequent, 3rd party purchasers of a home
mutual assent
An offer and acceptance which together form the terms of a contract.
RST2§29:
An offer may be accepted only by a person in whom the offeror intended to create a power of acceptance.
Modern View and Unilateral contracts RST2§45
An offer may not be revoked when the offeree has accepted the offer by substantial performance.
Offers Made in Jest
An offer which the offeree knows or should know is made in jest is not a valid offer. Thus, even if it is accepted, no k is created. (Lucy v. Zehmer)
A seller, in exchange for some form of consideration (fee), gives the buyer the right to purchase the property at a preset price for a period of time. This is known as...
An option.
What does Art. 102, TFEU say about abuse of dominant position?
Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States.
Personal data
Any information relating to an identified or identifiable natural person or data subject/ enabling a third party to identify the data subject
processing
Any type of activity that concerns personal data (collection, registration, storage, alteration, use, disclosure)
Limited warranty
Any warranty that provides less protection than a full warranty; the warranty must be very specific and it must be called a "limited warranty."
Goods
Anything moveable, except for money, securities, and certain legal rights
Sediments
Are substances which have settled at the bottom of the ballast water's container.
Coastal state may: 'Take the necessary steps in its territorial sea to prevent passage which is not innocent'
Art 25(1)
* Drawing of boundaries * Environmental protection * Marine scientific research * Economic and commercial activities * Free navigation outside the territorial sea * Innocent passage for vessels allowed within the territorial sea * Transit passage through straits within the territorial sea
Aspects of unclos
A property owner wants to use water from a river that runs through the property to irrigation a corn field for beneficial use of the water.
Based on this fact, it can be assumed that this property owners state relies on the doctrine of prior appropriation
With community property it "cannot"
Be conveyed by one spouse only
A sewer system would NOT
Be included as a description of land like trees water hills, etc
Community property CANNOT
Be mortgaged or conveyed by one spouse without the consent of the other
When a property is destroyed by fire the seller will
Bear the loss
Why do technological development necessitate regulatory change?
Because need to reconsider regulatory and administrative issues like definition of a ship and flag state and liability issues.
prevents copying, allows companies to recover investments spent on development of products, provides competitive advantage
Benefits of IP
quick, cheap, voluntary, both parties can win, possible to maintain commercial relations and confidentiality
Benefits of settlements
A seller promised to sell and a buyer agrees to buy for a certain amount and out in writing; this is called a
Bilateral contract
What is difference between Board of Directors and Exec board?
BoD: supervise exec, overall management, ensure secure framework. Exec: day to day management
The promising note or financing instrument is the
Borrowers personal promise to repay the debt according to agreed terms
Consideration
Both parties must receive something of real financial value.
Under a contract of deed, the buyer has possession and maintains the property
But does not have legal title
The seller can provide the written disclosure of property condition to the buyer after the agreement is signed,
But the buyer the right to terminate the contract within 7 days after the receipt of the disclosure.
Price Protections Nanakuli
But the custom of "price protection," adequately proven by Buyer to be a trade usage in the local asphalt industry, can be construed consistently with this express price term. This is because the price protection trade usage "forms a broad and important exception to the express term, but does not swallow it entirely," and exceptions will be allowed if they don't totally negate the express term. Therefore, a reasonable jury could have found that the price protection, as a trade usage, was incorporated into the written agreement. the price protection term was so prevalent in the concrete trade that it was reasonable to find that the parties impliedly incorporated it into the contract. ^ was supported by D's past history of price protection
An option to buy contract allows the buyer to
Buy for a fixed price within a specified time period
Contract for deed the
Buyer does not receive legal title
Longshore and Harbor Workers
Cannot sue
Cargo and USW
Cargo itself not subject to doctrine of unseaworthiness RULE - Cargo storage gear (such as plastic sleeve of one of the boxes of sodas), but not the cargo itself, must be seaworthy.
ULLA DORTE
Cargo was contaminated by water due to improper closing of the hatches. In view of time of year and nature of the voyage, coverage of hatches was essential for the safety. The exemption relation to errors of management therefore applied, the fact that covering the hatches benefited the cargo was irrelevant!
Termination by Conditional Acceptance or Additional Terms
Claiming to accept but changing or modifying terms. Counter offer. Rejection. RST§60.
Describe the class ABCD and K fires.
Class A: combustibles and items that leave an ash when burned class B: flammable liquids class C: electrical energized fires class D metal fires class K: kitchen oil's and gas
Tug/Tow exculpatory clauses
Clause exculpating tug from damage to tow is invalid, but you can get around it by including the tug on the tow's insurance plan
Withdrawal
Clause permitting the owner to withdraw the vessel where hire payments are not made in accordance with the agreement but may not withdraw a vessel while cargo is on board
both to blame clauses invalid
Clauses in bill of lading by which carriers attempt to obviate indirect liability to cargo by providing that cargo should bear the costs of a collision where both ships are at fault (including claims of cargo paid by the carrying ship to the non-carrying ship) are invalid and unenforceable.
Icing
Coating of ice on an object, e.g. the mast or superstructure of a vessel
ISPS code
Code for port state control
1) article 51 of state rep, 2) article 52 threatening use of force
Coercion
What vessels does the Limitation of Liability Act apply to?
Commercial vessels and pleasure craft
What is the body of law developed in England and based upon "common sense"?
Common Law
In order for a contract to be valid and enforceable, both parties must be...
Competent
Price Fixing
Competitors agree to charge the same amount for a product or service
Briefing
Concise explanatory information to crew and/or passengers
Saving to Suitors Clause
Concurrent maritime jx between states and fed, to extent that exists 28 USC § 1333 gives exclusive jx in admiralty and maritime cases to the federal courts, "saving to suitor in all cases all other remedies to which they are entitled." If there's a maritime issue that can be resolved through the common law, you can bring it in state court
Can make federal law
Congress and Federal
What is a Becket line it used for?
Connecting two lines together
An exception or 'exemption' to CIL
Consistent Objector Rule
During option period a buyer terminated the
Contract for "any reason"
UCC §2201: Writing Requirement
Contract for sale of goods >$500 has writing requirement, falls under SOF
When Is Acceptance Effective [mailbox]: Acceptance dispatched before rejection
Contract is binding as soon as the acceptance is dispatched. Revocation does not undo acceptance.
New York Arbitration Convention of 1958
Convention requiring contracting states to recognize arbitration as binding and to enforce them
A suit for specific performance of a real estate contract asks for a
Conveyance of the property
Suit for specific performance asks for
Conveyance of the property
These members buy shares in a corporation and do not own specific units within a building...
Cooperative Owners
- element of originality - quality (functional object)
Copyright requirements
Initial course
Course directed by the OSC or other authorized person to be steered at the beginning of a search
modern doctrine and bilateral k
Courts have developed preference for bilateral contracts to avoid injustice of classical application
2209 Comment 2
DON'T NEED NEW CONSIDERATION UNDER UCC § 2209(1) BUT YOU DO NEED GOOD-FAITH
Established that state law applies if there is no well-established federal admiralty rule and there is no need to create one.
Default Rule
Failing to perform as agreed in a contract is considered to be in
Default by the party who fails to perform
Article 38 of Statute of ICJ
Definition of treaty: International conventions general or particular establishing rules for contesting treaties
UCC SOF- Partial Performance Exception §2201(3)(c)
Delivery & Acceptance Partial Payment of goods sufficient WINTERNITZ V. SUMMIT HILLS JOINT VENTURE- P entered into oral K with D on lease renewal. No renewal ever took place, though P had already made some payments—partial performance. No K b/c K wasn't in writing.
DSC
Digital Selective Calling (in the GMDSS system)
28 U.S.C. § 1332
Diversity jurisdiction
§ 1332
Diversity of citizenship
The TREC residential contract forms are:
Drafted by the Broker Lawyer Committee
Stripping
Draining tanks of the remaining cargo, water, etc.
- Continue the business - sell debtors assets - investigate transactions that may be set aside - investigate and approve creditors claims - prepare account of proposed distribution of funds for the approval of the court
Duties of trustee
What are fiduciary duties?
Duties owed from an agent to its principal
Debtor losses control of assets forming part of a liquidation estate. Unsecured creditors are prevented from enforcing their rights on the debtor. Insolvency estate is no longer bound to contracts. Secured creditors rights remain in tact
Effects of a liquidation order
Elmer Fleckenfleck, an agent with After Hours Realty, was preparing a contract. The seller told Elmer that he wanted to stay in the property for at least a week after closing. Elmer said that would be no problem and entered the following text to Paragraph 11: "Seller and Buyer agree that Seller will remain in the Property for 7 days after closing and funding." In this case, Elmer has:
Engaged in the unlawful practice of law
Contracts that can't be disaffirmed
Enlistment contracts, Marriage contracts, Educational loans, Insurance loans, medical care
The ________ ensures that all consumers are given an equal chance to obtain credit
Equal Credit Opportunity Act
The ________ ensures that all consumers are given an equal chance to obtain credit.
Equal Credit Opportunity Act
Leasehold estates:
Estate for years, period to period, and or estates at will
ETA
Estimated Time of Arrival
ETD
Estimated Time of Departure
Which authority proposes legislation, administers the competition legislation and enforces legislation?
European Commissions, Directorate-General for Competition (DG COMP)
Which authority decides on EU law disputes?
European Court of Justice
unilateral contract
traditional rule , delayed acceptance untill goods are delivered
Police power is an example of a governmental power
Example: zoning ordinances
In this type of listing, the seller agrees to list the property with only one broker during the listing term, with the provision that the seller can sell the property himself, without payment of commission.
Exclusive Agency
Contract
Exist to make business matters more predictable
Good Faith RST2 §205
Extends the duty of good faith and fair dealing to every contract.
courts divided over warranty
Extreme: Some courts dispensed reliance requirement completely if claimed warranty reflects reasonable expectations of buyer Extreme: Some courts require to prove reliance as an element of COA Intermediate: Any affirmations by seller relating to goods create a rebuttable presumption that the statements are part of basis of bargain but seller can rebut by clear proof that the buyer DID NOT RELY on the statements.
One of the parties to a joint tenancy dies. The deceased tenant's interest transfers to his heirs and not to the surviving joint tenants
FALSE
Texas Veteran's Housing Assistance Program loans can be:
FHA, VA, and convential
how us is a persistent objector to excessive maritime claims
FON Ops or state department podium
Rival theories about why states are bound to observe rules of intl law
FUNDAMENTAL RIGHTS (inherent rights; self-preservation, independence, equality, respect, intercourse) & POSITIVISM (values by which states have consented to be bound). Think slave cases.
The Special Provisions paragraph of the contract allows license holders to insert:
Factual business details, Statements not addressed in the contract, Information for which there is no TREC-promulgated addendum, lease or mandatory form
The special provisions paragraph can be used by the licensee to provide
Factual statements or business details
Laches
Failure to bring a legal claim in the proper, or a reasonable, time.
At law
Federal
Under the Constitution of the United States __________ are awarded jurisdiction over cases of admiralty and maritime matters. 28 USC § 1331
Federal Courts
A residential lease may contain a Right of...
First Refusal.
Head Charter
First charter party
Fire monitor
Fixed foam/powder/water cannon shooting fire extinguishing agents on tank deck, manifold etc.
...refers to the fact that land, and additions to the land, take long periods of time to pay for themselves.
Fixity
Considered not to be vessels
Floating construction platforms; floating rafts used for construction or repair of piers; docks, bridges, pipelines or other similar facilities; pontoon bridges; steel pontoon used for work in a shipyard; caisson constructed as part of bridge foundation; paint floats; fuel flat (depends).
Drifting
Floating, caused by winds and current with a determinable direction
Adrift
Floating, not controlled, without a clearly determinable direction
Statute of limitations
For a breach is 4 years
Option Contracts created by Consideration RST2§25
For an option to be binding, it must be supported by consideration given by the offeree.
Ultra Vires, Fraud, Coercion, conflict with jus cogens
Forms of invalidation for a treaty:
What was a possible example of collusion and for what reason?
General rate increases seen with Maersk, CMA CGM, Hapag-LLoyd, OOCL, Hanjin and Neptuen Orient Lines. Seen that there were possible coordination of prices and/or liner transport capacity.
Exclusive Liability of Employer
General rule that longshoreman can't sue employers for negligence. 905(a). Limited to comp benefits from the employer. BUT, longshoreman can sue employer for negligence if the employer is also the owner (or owner pro hac vice, such as bareboat charterer) of the VESSEL, and the longshoreman is injured on the vessel, which is on the water
GMDSS
Global Maritime Distress and Safety System
What case discusses constructive trusts?
Goldcorp exchange Ltd & Ors v Liggett & Ors
Implied Warranty of Fitness For A Particular Purpose
Goods are not fit for the buyer's particular purpose Different from implied merchantability: not limited to merchants warranty created only when the buyer relies on the seller's skill or judgment to select suitable goods and when the seller has reason to know of this reliance does not require showing that goods are defective - just show not fit for purpose *Most courts also hold that buyer's particular purpose must be one other than the ordinary use of the goods*
UCC SOF- Special Manufacture [UCC §2201(3)(a)]
Goods must be specifically manufactured for the buyer and not suitable to sale for others in the ordinary course of the seller's business.
assignments
transfer of contractual rights transfer of rights during a contract
marketing law
type of law provides limits to trying to win over customers
- Forward contracts - Future contracts - Swaps - Options
types of derivative contracts
Price risk
uncertainty in cash flows, type of risk
IMO-Class
Group of dangerous or hazardous goods, harmful substances or marine pollutants in sea transport as classified in the International Maritime Dangerous Goods Code (IMDG Code)
Analyzing whether CIL has been "generally practiced" (step 1 of 2)
Have international actors really followed the rule? has practice bene consistent? for a sufficient period of time?
Pitchpole
Headfirst
When dealing with recycling need to consider what?
Health and Safety Environment
Recover (to)
Here: To pick up shipwrecked persons
Full speed
Highest possible speed of a vessel
SOLAS
ISM-Code is part of __________.
under what circumstances will a jury not be available in an admiralty case?
If a case is brought in federal court just under maritime law, you do not get a jury trial.
Struck from company registry
If a debtor is an limited company what happens after liquidation
agreed route, date of settlement, contract size
Important info for FFAs
An option is:
unilateral contract
an option contract is:
unilateral contract
Seller is the lender
In a contract for deed
Moragne and State WD actions
In cases involving the death of nonseafarers in territorial waters, the Moragne wrongful death claim DOES NOT supply the exclusive remedy. State wrongful death statutes are applicable to nonseafarers' deaths within territorial waters, including the damages available under them.
Located
In navigational warnings: Position of object confirmed
Upper deck
In ships with side openings, the deck below the weather deck is:
Lecture 10
Insolvency
institutional arbitration
Institute assists in establishing a tribunal that arbitrates following institution rules. advantageous to parties without arbitration rules
Lecture 7
Intellectual property rights
The promise itself creates a manifestation of...
Intent
UCC §2204
Intent to Be Bound even if some terms left open CL: a bargain where there is a manifestation of mutual assent UCC: did the parties have intent to be bound even if some terms were left open
What case shows the red hand rule?
Interfoto Picture Library v Stiletto Visual Programmes
1) ordinary words, 2) intent, 3) purpose
Interpretation of treaty:
Regulations 3/19.3 and 3/19.5
It is mandated here that fire drills shall be conducted and recorded in accordance with the provision.
Other Maritime K Examples
K between seamen and vessel K for carriage of cargo or people K for shipping containers (function as the hold of the ship) K for stevedoring services BUT executory K's are NOT maritime K "Agency Contract's" MIGHT be maritime K's, a third party being involved doesn't override the nature/subject matter of the K
Best Efforts
K is still valid if one party's detriment is implied, but is not an explicit element of the K.
Output Contracts
K's where quantity term is measured by seller's output
Case for fiduciary duties?
Kelly v Cooper
Hot pursuit authority?
LOSC Art III
Detention
Legal remedy in the form of damages which are imposed on the charterer for exceeding laytime when demurrage has expired
A licensed agent may not give this type of advice...
Legal.
Scope of maintenance
Maintenance amount is calculated with regard to the seaman's living expenses, and not those attributable to other members of his family (so 1/2 of daycare because the other spouse is also responsible, but all of the rent because it's likely the seaman would pay that amount even if living alone).
Flooding
Major flow of seawater into the vessel
Exceeds the sum or value of $75,000
Matters between citizens of different States can be brought in federal courts if they
A voidable contract
May be disaffirmed by one party
Damage or destruction of a property under contract prior to closing:
May result in termination of the contract
Freight
Money paired for shipment of goods
Dredging (of anchor)
Moving of an anchor over the sea bottom to control the movement of the vessel
Does standard POOLCON wording guarantee compliance with competition law?
NO. Need to determine if joint venture (merger) or if cooperative agreement. look at market share, effect on trade and etc from Art 101.
Are green buoys and beacons odd numbers or even numbers?
Odd
Fume
Often harmful gas produced by fires, chemicals, fuel, etc.
Void agreement
One that neither party can enforce, usually because the purpose is illegal or one of the parties had no legal authority
Boating rules of the road acronym
Only new reels catch fish so purchase some often (overtaken, not under command, restricted in ability, constrained by draft, fishing, sailing, powerboat, sea/air, overtaking)
Cease and desist order
Order requiring that certain improper conduct be stopped
Consignee
Party to whom the goods are to be delivered
What is action, powerboats, head on?
Pass on starboard
What is the Danish Net Wage Regime? Seafarers Act
Persons domiciled in Denmark are fully liable to pay tax. Persons domiciled abroad working on board Danish ships are normally subject to limited tax liability in Denmark of income earned from work on board. The tax rate of seafarers subject to limited tax liability is 30 per cent.
ensures that ships themselves, as well as crew, are up to standards and capable of functioning while abiding any laws that may pertain
Port state control
Destination
Port which a vessel is bound for
2209(4) 's bases for thinking about how to validate a failed
Posner (reliance), [minority] Easterbrook (subtraction), [majority]
Jx and aviation torts
Possible in situations where the plane is performing a function that would otherwise be performed by a vessel
Rule 6
Prima facia speed law
An offer may be terminated at any time _______ acceptance by the offeree. a. Prior to b. After
Prior to
negotiation, signing, domestic ratification (2/3rds of senate
Process of creating a treaty
receiving the allegation, deciding whether to investigate, deciding how to proceed
Process of dealing with non compliance
court appoints one or more trustees. Creditors can have influence in this. If there are multiple creditors, they vote in proportion to their claim
Process of electing a liquidation trustee
Jx and products liability
Products liability claims have to satisfy nexus and locus tests Product must be salty Just being on a ship doesn't cut it, has to be something used for a traditional maritime activity (compass, life preserver..?)
Intangible property
Property you cannot touch, like rights to perform under a contract
decisions are binding for future cases, can fix imbalance between weak and strong commercial parties
Pros of litigation
State WD Statutes
Provide remedies for within territorial waters
who didn't sign the law of the sea after part 11 fix
us
Evidence of title, payoff statement are
Provided by the seller and given to escrow agent before closing
The Role of Contract Law
Provides a mechanism to deal with others
PA-system
Public address system: Loudspeakers in the vessel's cabins, mess rooms, etc., and on deck through which important information can be broadcast from a central point, mostly from the navigation bridge
The person who prepares an abstract of title for a parcel of real estate searches the
Public and then summary the events and proceedings that affect the title
3 questions:
Question 1: Does K Fall within SOF? Question 2: Is the K Reflected in Writing Sufficient to Satisfy SOF Question 3: Does This Fall Within One of the Exceptions to SOF that Permits Enforcement Despite Non-Compliance
A ________ is a deed with no guarantees or warranties.
Quitclaim deed
A lack of a reasonable alternative
RST §175: Indicates a number of possible reasonable alternatives availability of legal action, alternative sources of goods etc
Capacity
Refers to the legal ability to create a contract
Termination through Indirect Revocation [termination by operation of law]
Reliable 3rd party indicates to offeree that offeror is no longer willing to contract. Dickinson v. Dobbs.
Modern LHWCA: Concurrent Jx
Remember, this is workmans comp. There's fed and state options available Concurrent jurisdiction applies. State workers compensation laws can apply to land-based injuries covered by the LHWCA. A longshoreman injured on a pier can elect to proceed under state law or LSHWA. A longshoreman is precluded from obtaining both state and federal compensation benefits. Can file in both state compensation and federal forums, but can't obtain both benefit. The 1972 amendments take out the language of exclusive federal jurisdiction and provide support for concurrent state jurisdiction. LHWCA doesn't supplant/preempt state benefits, it supplements them.
- new - capable of industrial application - technical effect - reproducible
Requirements of patent
Requirements: - must be distinctive - able to be graphically represented
Requirements of trademark
If a minor disaffirms a contract after receiving benefits, _______ must be paid for the benefit.
Restitution
Discharge
Retaliation of work "I will fire you"
Terminating an Offer
Revocation, rejection, operation of law
And what is the entire anchor and chain called?
Rode
Preventers
Ropes or wires attached to derricks to prevent them from swinging during cargo handling operations
Slings
Ropes, nets, and any other means for handling general cargoes
What is a form of contract used to lay out the manager's responsibility?
SHIPMAN -have authority to decide on necessary actions -best endeavors in carrying out obligations -act consistently with principal's interest -may be "company" under ISM Code -perform all necessary obligations as stated in contract
Shall be fined under this title or imprisoned not more than ten years
Seaman's Manslaughter Act, 18 U.S.C. § 1115
A person who prepares an abstract of title
Searches the public records that may affect title summation
905(b) vessel negligence claim
Section 905(b) of the LHWCA also provides that persons covered by the Act who suffer an injury "caused by the negligence of a vessel" may bring an action for damages "against such vessel as a third party. ... The liability of the vessel ... shall not be based upon the warranty of seaworthiness or a breach thereof ... The remedy provided shall be exclusive of all other remedies against the vessel..."
A contract for deed is a method of selling real estate where the
Seller is also the lender
Implied warranty of title
Seller warrants that he or she has title to the goods and the right to transfer them; this is implied by law
Segregation(of goods)
Separation of goods which for different reasons must not be stowed together.
According to the Deceptive Trade Practices Act (DTPA), brokerage falls under the category of ________.
Services
Shipment contract
Shipping contract governed by the UCC where the seller's obligation is complete when s/he passes the goods to the common carrier for delivery. In this situation, if the goods are damage during shipment, the seller is not held responsible.
Broach
Sideways
...is a venture that is owned by a single individual.
Sole Proprietorship
Offeree
Someone who accepts the offer
Consideration
Something of value or something bargained for in exchange for a promise
Retreat signal
Sound, visual or other signal to a team ordering it to return to its base
Bill is the buyer purchasing a property from Sally. All contingencies have been met and the parties are ready to close. One day prior to closing, Sally announces that she has changed her mind and is going to keep the property. Bill is determined to complete the purchase and acquire the property. The only default remedy in the contract that could result in Bill acquiring the property is___________________________.
Specific Performance
Transit speed
Speed of a vessel required for the passage through a canal, fairway, etc.
Row 17
Stand on vessel shall keep her course and speed
Cannot make federal law
State
In law
State
State Jx: In personam
State courts have concurrent jx over in personam actions, because thats what the common law is/does A P in such cases - including ordinary maritime tort and contract cases - may elect to proceed in admiralty or to bring an ordinary civil action, either in state court or in federal court under diversity. States have the right to fashion common law remedies so long as they are consistent with concurrent federal rules, can't preempt federal maritime law
Legality of the Threat or Use of Nuclear Weapons
State practice but not opinion juris
What is the name of the multilateral treaty dealing with salvage? Has the U.S. ratified that treaty?
Statutory Law The International Convention on Salvage, ratified by the U.S. in 1991
The limit of a shipowner's liability will be measured by the value of what?
value of vessel and pending freight
opinio juris
Subjective element of customary law
Charitable Subscriptions
Suppose a person promises to give a specified sum of money to a particular charity. Such a promise would not ordinarily be enforceable, since a charitable donor usually does not "bargain for" anything in return for his promise, and therefore there is no consideration. The doctrine of promissory estoppel is being used with increasing frequency to enforce such promises of charitable subscription.
These rights allow an owner to develop the surface, and to use resources extracted from or near the surface including stone, gravel, water, and limestone.
Surface Rights
What types of brakes are used on a boat trailer?
Surge
Test for Materiality - 2 Prong Test
Surprise: under the circumstances it cannot be presumed that a reasonable merchant would have consented to the additional term. [only surprise was that they hadn't read the contract] Other things to consider here: repeat players, usage and trade, term has been traded a variety of times. More factors, stronger assessment. Hardship: look at whether the term would impose substantial economic harm on the non-assenting party. [Buyer never told seller] [parenthesis=Paul Gottlieb v. Alps]
If a property violates zoning, the owners must request a(n) ________.
variance
If property violates zoning, the owners must request a __________, which is permission to violate the rules.
variance
If the intended use of a property would be in violation of current zoning, the owners must request a ________, or permission to violate the rules.
variance
In the case of two agreements, written agreements will always take precedence over ______ in the event of conflict.
verbal agreements
What are the two types of collusive behavior?
vertical: Could be beneficial to customers and society horizontal: the hardest or the worst type to regulate (bad)
905(b
vessel negligence claim
constructive condition
viewed by the courts more as a promise doctrine of strict enforcement does not apply
Classical View and Unilateral Contracts
viewed the offeree's rendering of the requested performance as serving both as the consideration for the offeror's promise and as his acceptance of her offer. Offeree free to not perform at all, without liability, but once he has completed the performance as requested, the offeror's commitment is a binding one. Old Abuse: only pay upon completion, makes it unilateral, revoke on last day.
how us follows rules without being a party
we accept the TS CZ and EEZ as CIL
when can a state temporarily suspend innocent passage?
when it is essential for protection
General principles of construction
when meaning of terms are in dispute, courts interpret (1) objective is to align terms with parties' intentions (2) bargained-for/negotiated terms trump standardized terms (3) narrow evidence (express terms, course of performance) trumps broader evidence (course of dealing, trade usage
What are some types of contracts that are within admiralty jurisdiction of the courts?
Charter party, contract to provide supplies to a vessel, contract for carriage of goods, stevedoring contracts, marine insurance contracts (shipbuilding brokerage agreement)
Bareboat Charter
Charterer is responsible for everything
Demise Charter
Charterer not only leases carrying capacity of vessel but also control over management and navigation of vessel
Clipper was paying bonuses to employees from bahamas and had issues with employees reporting taxes to danish authority. Clipper listed tax consultants aurthur anderson as advisor to how to report taxes (scapegoat). several employees received prison time
Clipper case
CPA/TCPA
Closest Point of Approach /Time to Closest Point of Approach limit as defined by the observer to give warning when a tracked target or targets will close to within these limits
What is the notice and time bar for NSAB 2015?
Notice must be give in 7 days or the burden of proof shifts to the cargo owner. For claims not concerning damage or depreciation, notice must be within 14 days. Time bar is 1 year.
UK: 1 DK: 3
Number of arbitrators
State practice: duration and uniformity
Objective element of customary law
Destination contract
Shipping contract governed by the UCC where the seller promises to deliver specified goods to the buyer's destination. The seller retains title to the goods until delivery is complete.
When the title history of a parcel of land has been researched back to the original conveyance by the government, the history is said to go back to the __________.
Sovereignty of the soil
This space is where terms can be addressed that are not covered in standard contracts or addenda forms.
Special Provisions
Spill control gear
Special equipment for fighting accidental oil spills at early stages
Factual statements can be inserted in
Special par.11
What does Lord Ackner say in Walford v Miles about good faith?
The concept of a duty to carry on negotiations in good faith is inherently repugnant to the adverbial position of the parties when involved in negotiations. Each party is to pursue his or her own interest
compulsory composition or business transfer
The construction process must involve...
Earnest money is deposited in an escrow account when:
The contract is signed by all parties and acceptance is communicated
When a seller takes the earnest money as liquidation damages uner a promulgated contract,
The contract is void and both parties are released
Special trade
The conveyance of large numbers of special trade passengers by sea on international voyages within the area means:
If a homeowner fails to pay the real estate taxed on time the taxing authorities can impose a claim on the property.
This is called a lien
Launch (to)
To lower, e.g. lifeboats to the water
Stand on (to)
To maintain course and speed
Within 3 weeks, must forward the statement of assets and liabilities to creditors. Within 4 months, must forward a balance sheet and written explanation as to the reasons leading to the liquidation proceedings
Trustees administration of the estate
Trustee takes control of the debtors business and represents the estate in every respect. Trustee has almost unlimited power but is expected to act in the best interest of the estate and creditors
Trustees power and obligations
Tug knew or should have know
Tug is not responsible for accidents which occur as result of unseaworthiness of its tow; however, tug is responsible if the alleged unseaworthiness is so apparent that it would be negligent for tug to attempt to proceed. Although a barge being towed may get into trouble because of inadequate maintenance by its owner, the tug that has it under tow has a duty to prevent the barge from sinking, if it can.
TEU
Twenty Foot Equivalent Unit (standard container dimension)
Describe type 12345 lifejackets
Type one offshore, type two near shore, type three children's or sporting, type four throwable, type five special use.
Manufacturer/Dealer Rule
UCC §2-101:5- when a manufacturer sells its product to the public through a local dealer, the transaction is a sale, and the application of the Code is not avoided by describing the relationship as a 'sales distribution plan' Most distributorship agreements are likely to fall within the scope of Article 2. If so, obligations found in UCC §2305 & §2309 should eliminate most problems of lack of consideration or lack of mutuality.
Offers that dont make clear whether acceptance is through promise or performance
UCC&RST same: an order or other offer to buy goods for prompt or current shipment shall be construed as inviting acceptance either by a prompt promise to ship or by the prompt or current shipment of conforming or non-conforming goods, but such a shipment of non-conforming goods does not constitute an acceptance if the seller seasonably notifies the buyer that the shipment is offered only as an accommodation to the buyer.
The purpose of a special grant of admiralty jurisdictions to the federal courts to serve as both forums and interpreters of maritime law is to provide
UNIFORM rules of law for the business of shipping, to facilitate maritime commerce, and to apply uniform remedies for persons traveling or working on navigable waters in connection with these maritime activities
Instrumentality of injury
USW dependent on who's in charge of the condition that caused the injury If the shipowner was under a duty to make the instrumentality safe (as a cargo container), the claim is proper. If another party, such as a stevedore, was under a duty to make the instrumentality safe (such as a shoreside forklift), the claim is not proper.
Article 46
Ultra vires; someone without authority; violating law in a way that is manifest
Contribution
Under 905(b) a ship owner may not recover damages he had paid to a longshoreman from the longshoreman's employer under any theory of warranty, express or implied, in tort or contract. A negligent ship owner is liable to the injured longshoreman for the degree of fault that is not the longshoreman's own fault, including any percentage of fault attributable to the stevedore, if any, and the ship owner can't seek indemnity or contribution against the stevedore.
Harter Act
Under the Harter Act, the carrier (vessel and owner) is relieved of liability to the cargo owner for damages resulting "from faults or errors in navigation or in management of the vessel" so long as the ship owner exercised due diligence to make the vessel in all respects seaworthy and properly manned, equipped, and supplied.
Thinking about causation
Under the Jones Act the test of a jury case is simply whether the evidence the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. There's different causation requirements for USW and JA, JA requires "slight causation" and USW requires a beefier proximate cause In either case its not a heavy burden, but you need to show that there was some causation. The fact that scrap metal is not secured does not cause an injury incurred by throwing it overboard.
Comparative fault; Seamen's duty of care
Under the Jones Act, the seaman as well as the employer has a duty of reasonable care under the circumstances. P's recovery is reduced to the extent that he is negligent and that such negligence is responsible for the injury. Gautreaux holds that the rule for seamen is RPP. Seamen are obligated to act with ordinary prudence under the circumstances. The slight negligence standard only means that it is harder for defendants to get summary judgment than it would normally be. Seamen are obligated to act with ordinary prudence under the circumstances.
Products Liability and USW
Under the LHWCA, longshoremen may not bring actions for unseaworthiness (strict liability) against shipowners. Also may not bring 905(b) products liability actions. But could sue for negligent design, under which a shipowner would be liable in his capacity as manufacturer, designer, or distributor of a defective product.
Wages
Wages are a basic component of M+C. If a seaman is entitled to M+C, he is entitled to wages for the length of his contract. A seaman under contract for a year can collect a year's lost wages as part of maintenance.
Implied warranty
Warranty obligation implicitly imposed by law on all sellers
elements of consideration
Was there a benefit & a detriment? Was this a bargained for exchange?
Mediation
Way to solve a dispute by focusing on reaching an amicable solution rather than legal position
Judicial decisions and scholarly writing
What are the two subsidiary sources of law?
RST2 and bilateral k
Where there is a plausible argument that the offeror is attempting to elicit either bilateral contract or unilateral contract, we will assume that there is a bilateral contract.
Predominant Purpose Test
Whether a particular transaction is governed by the UCC rather than CL hinges on the predominant purpose of the transaction whether the k primarily concerns the furnishing of goods or rendering of services.
A mortgage or deed of trust usually includes an acceleration clause
Which if the property is foreclosed on, the lender has the right to declare the entire debt due and payable immediately
Short international voyage
Which of the following means an international voyage within the area of which a ship is not more than 200 miles from a port and which does not exceed 600 miles in length between the last port of call in the country in which the voyage begins and the final port of destination.
__________ occurs when an individual acquires title from the rightful owner through hostile, actual, and continuous occupation of the land for the statutory period.
adverse possession
The type of law that deals with the relationship between the parties to a transaction, sales agents and brokers is:
agency law
unenforcable contract
agreement that is o/n valid but which may not be enforceable due to defences. extraneous to k formation, statue of limitations, (S.O.L) ( Statute of Frauds)
What does pacta sunt servanda mean?
agreements must be kept
Pacta Sunt Servanda
agreements must be kept (treaties are based on good faith)
What is the purpose of EU merger regulation?
aims at avoiding the creation or extension of a dominant position capable of affecting competiton within the shipping sector in the internal market. Includes joint ventures and under some circumstances shipping pools.
Which kind of rights extend above the surface of property without limitation?
air rights
__________ extend above the surface without limitation.
air rights
what do we also use the divisions of the ocean for
air space
The agent must present ______ offers.
all
Estate for years, estate from period to period, and estate at will are
all examples of leasehold estate
________ are changes that are made to the original contract, such as changes to the closing date or changes to the sales price, down payment and/or the amount financed.
amendments
What is the geographical market and where could abuse occur?
an a area in which conditions of competition are sufficiently homgenous and can be distinguished from neighboring areas Abuse could occur in relation to ports and other essential facilities
RST2§58 (or 57)
an acceptance must be unequivocal and unqualified in order for a contract to be formed (Beastie Boys).
Material Benefit Rule
an advantage gained by entering into a contract that is essential to the performance of the agreement and without which the contract would not have been entered into. RST 86 adopts.
What is a contract and requirements for a valid one?
an agreed set of contractual terms governing the legal relationship between parties. I. Offer II. Acceptance
Collateral Contract Rule
an agreement is not fully integrated if the parties have made a consistent additional agreement which is either agreed to for separate consideration or is "such a term as in the circumstances might naturally be omitted from the writings" (R2d '216(2)
An agent should never discourage a client from consulting ______ for advice in a transaction.
an attorney
Earnest money is deposited in ________ when the contract is signed by all parties and acceptance is communicated.
an escrow account
termination by Offeror Revocation
an offer is generally freely revocable and can be countermanded by the offeror at any time before it is accepted by the offeree. Generally, notice of the offeror's revocation must be communicated to the offeree to effectively terminate the offeree's power to accept the offer. [can be indirect]. A revocation by the offeror does not become effective until it is received by the offeree. RST2 §42. Minority: several states have statutes making revocations effective upon dispatch.
Get injured on a vessel where he is not a crew member at - get maintenance/cure, but cannot sue based on ____________ because he was not injured on a vessel he was serving. Maybe Jones Act negligence claim if they can prove his employer was negligence for sending him over to the other boat.
an unseaworthy condition
What was the principle behind providing an injured seaman maintenance and cure?
ancient remedies going back to medieval sea codes and likely older than that
Implied Term
any term the court finds to be implicit in the parties' words or conduct even though not literally expressed by them [implied in fact] Made part of an agreement by operation of law not bc of the agreement between the parties themselves
what you can do in someones CZ
anything other than FISC
where in the constitution does one find the establishment of federal jurisdiction over admiralty?
article 3 section 2
UCC §2-316(3)
as is" disclaimer- no conspicuousness requirement but most courts agree one should be implied to carry out section's purpose of not surprising buyers
can you make innocent passage in a war ship
as long as you're not doing fight or gunnery operations
Limited Partnership (K/S)
at least two partners where one has to be liable without limitations where the others are only limited liable
What powers do federal courts have to settle salvage controversies?
award compensation, adjudicate disputes between rival salvors and enforce salvage contracts
STATUS
being an "employee" which is defined to include "any person engaged in maritime employment • Longshoremen or other person engaged in long shoring operations • Harbor worker • Ship repairman • Shipbuilding • Ship breaker • But not a master or member of a crew of any vessel
The document acknowledging goods have been shipped onboard a specific vessel bound for a specific destination and stating the terms of carriage is called what?
bill of lading
A ________ mortgage covers more than one property.
blanket
A(n) ________ mortgage covers more than one piece of property.
blanket
Knockout Rule:
both terms drop out and the duration of warranty would be determined by application of Article 2. underlying rationale is that it favors neither the offer nor the acceptance where the terms disagree
One of the earliest forms of marine insurance used around 2500 BC / BCE in the days of King Hammurabi of Babylon was called?
bottomry
All sides of a vessel
bow, port, starboard, aft
fines or imprisonment (criminal law), or can be remedied privately through injunctions and damages
breach in IP can lead to
anticipatory repudiation
breach in advance of performance— makes it clear by words or actions that she will breach when performance falls due before the time for performance, she (occur between the time that the contract is made and the time due for its performance)
What is an efficient breach of contract?
breach the contract simply because his profit from breach would exceed his expected profit from completion of the contract, and if damages are limited to loss of expected profit, there will be an incentive to commit a breach.
A mortgage _________ provides consumers with assistance securing hard-to-place or niche sources of mortgage money.
broker
A(n) __________ is an area of land separating one land use from another.
buffer zone
Transfer of ownership of the debtor's ongoing business or part of this business that maintains its identity; and which constitutes a financial entity organized for the purposes of carrying on financial activities
business transfer must include
The broker may sue a ______ who has defaulted on a buyer's representation agreement.
buyer
What does caveat emptor mean?
buyer beware
Checks and SOF
can count (if deal written on the memo line), but only against the party who has signed (including endorsement)
the problem with not being a party to the treaty
can't be part of law of the sea court
Will likely will not be defined as a vessel
capable of only limited movement over water
The definition of a bareboat charter is?
charterer hires ship and provides own crew ect.
The definition of a time charter is?
charterer hires the vessel for a fixed period of time
The definition of a voyage charter is?
charterer hires vessel to engage in one or more voyages to carry a cargo
The party that obtains use and service of the ship is called what?
charterer/shipper
When dealing with collusive behavior in Maritime transport, what is important to check?
check commission guidelines for effect on trade, relevant market, and horizontal agreeements.
when parties have purported to agree on a material term but left it indefinite
classical: Where you purport to agree but it is indefinite the agreement is void. modern rule: Agreement will be enforceable where parties have come up with an objective standard for determination ex: lease renewal
what was going on during the un convention on law of the sea
cold war
statute of limitations
collectors cannot attempt to collect debt after 4 years with written contract. 2 years with oral contract. That law pertaining to the period of time within which certain actions must be brought to court.
How is marine salvage different from land-based common law when it comes to saving the property of another?
common law never recognized the right to a reward by a volunteer who saved another's property, Maritime law however recognized that the salvor of property endangered on navigable waters earns a right to compensation from the owner
The five essential elements of a valid and enforceable contract are, Consideration, Offer and Acceptance, Legal purpose, In writing and __________.
competent parties
The only general rule is that to be maritime contract, the subject matter of the contract must be
directly and intimately related to the operation of a vessel in navigation
requires extensive agreement, no default position
disadvantages of ad hoc arbitration
Memorandum rules
does the signature need to be on the same paper/linking docs? Minority rule- require that signed writing reference unsigned doc Majority rule- signed and unsigned writing can be read together as long as they clearly refer to same transaction -Crabtree v. Elizabeth Arden
SITUS
employee whose disability or death results from an injury occurring upon the navigable waters of the United States
The proper defendant in an action for wrongful death under the Jones Act is what entity?
employer
What was the stated purpose behind enactment of the Limitation of Liability Act?
encourage shipbuilding and encourage investment in maritime ventures
A claim, lien, charge, or liability attached to and binding real property is a(n) ________.
encumbrance
Paris MOU
enforced over the EU and also Canada to make sure ships and crew are compliant with laws as well. Target ships by flag, age, and type
Distress/
here: The verbal exchange of information on radio from ship to shore Urgency traffic and/or ship to ship/ air craft about a distress / urgency situation as defined in the relevant ITU Radio Regulations
Stand clear (to)
here: To keep a boat away from the vessel
Resume (to)
here: To re-start a voyage, service or search
is there a high or low threshold for 'human habitation and economic life' in terms of islands? authority?
high, South China Sea Arbitration
Conditions for contribution for cargo loss
i. (1) there is danger to which both vessel and cargo are exposed; ii. (2) the danger is imminent and apparently "inevitable", which means there is no probably escape except by inflicting loss on one of the interests; iii. (3) there is voluntary sacrifice, such as jettisoning cargo or stranding the vessel; iv. (4) attempt to avoid the common peril is successful; and v. (5) the party seeking contribution from the owners of the other interests is free from fault.
When Is Acceptance Effective [mailbox]: Lost Acceptance
if acceptance is properly dispatched, mailbox rule applies and acceptance is effective at time of dispatch even if it is lost and ever received by offeror. Though formation happens offeror will frequently be discharged from performance. RST2§63.
UCC- NOM clause is ineffective
if it is contained on a form supplied by a merchant unless either (1) the party is also a merchant, or (2) the party has separately signed the NOM clause.[aka the non-merchant literally needs to initial right next to the clause]
Unilateral Mistake in Construction Bidding Case
if subcontractor mistakenly quotes to contractor, who relies in offer: Drennan [RST §45}: contractor is protected from revocation bc of reliance Florida Rule [Deprince Test]: party seeking to avoid must prove The mistake was induced by the party seeking to benefit from the mistake There is no negligence or want of due care on the part of the party seeking a return to the status quo Denial of release from the agreement would be inequitable, and The position of the opposing party has not so changed granting the relief would be unjust* DUTY TO READ? Can't unwind a unilateral mistake for failure to read without ambiguity, fraud or mutal mistake (Nauga v. Westel)
Impossibility
if the person or thing necessary for performance dies, is incapacitated, damaged or destroyed the duty of performance is excused [RST §§262, 263] MUST SHOW LITERAL IMPOSSIBILITY [RST1§455] AKA objective impossibility no one can do it vs. subjective I cannot do it
While almost anyone may be considered a salvor, when would there be an exception to this principle?
if the person/entity had a prexisting duty to undertake salvage efforts, if salvage efforts were preformed in regular line of duty and master/crew are generally exempt
Anticipatory repudiation may be rescinded
if the repudiation is retracted and notification of such retraction is given (1) before the other party materially relies on the repudiation or (2) indicates that he deems the repudiation to be final.
What is the reason the US Constitution did not give The Several States jurisdiction over admiralty and maritime cases?
if the several states regulated admiralty and maritime law it would defeat uniformity and consistency
Is pleasure craft subject to admiralty jurisdiction?
if they are in navigation or "give rise to hazards that potentially disrupt maritime commerce
Frustration of Purpose
if unanticipated events destroy the mutually agreed upon subject matter or purpose of the agreement the parties will be excused from performing their duties under the K If buyer is clear about purpose of K, unwind if purpose is gone (Krell v. Henry) RST §265: if something frustrates purpose after K is signed, buyer can unwind unless language indicates otherwise must be: Principal purpose Substantial frustration Basic assumption in the event Even if possibility foreseeable can be a basic assumption
UCC and good faith where the contract for sale calls for exclusive dealing
imposes best/reasonable efforts Courts Split: Minority: refuse to enforce such clauses on the ground of vagueness Others: treat clauses as the equivalent of 'good faith' Majority: define 'best efforts' in terms of reasonableness or diligence
Impracticability
impracticability argument for getting excused for express conditions is actually a more rigorous variable than how we see it traditionally--> excuse condition -->one of relatively strong excuses in this context
RST2 §136:
memo may be made "at any time before or after" contract formed; more persuasive the evidence is true, readier court will be to combine the writings in Crabtree fashion
Freight rate derivatives
method/tool for managing price risk in the freight mkt, value comes from future freight rates
Avoiding Enforcement - Defenses
minors mental incapacity intoxication duress undue influence actual fraud fraudulent misrepresentation Material Misrepresentation Fraudulent Inducement Fraud by silence/ fraudulent non-disclosure Unconcionability Unconscionability + Fraud Public Policy
Failing to uphold the duty of "utmost good faith" in a contract of marine insurance occurs in what two ways?
misrepresentation and non-disclosure
The four economic characteristics of land are: scarcity, fixity, situs and ________.
modification
Offer
the manifestation of willingness to enter into a bargain, which justifies another person in understanding that his assent can conclude the bargain. An offer is something that creates the power of acceptance.
Who can utilize the Limitation of Liability Act?
the owner of any vessel whether American or foreign (government vessels and operator under bare boat charter)
Two elements to establish Customary International Law (from Art38 of ICJ Statute)
the rule has (1) been followed as a "general practice", and (2) has been "accepted as law".
What is "pure" salvage?
the salvor is a volunteer
Maritime contracts
the subject matter of the contract must be directly and intimately related to the operation of a vessel and navigation; it is not enough that the contract relate in some preliminary (shoreside) manner to maritime affairs.
china's claim
they have used the 9 dash line for centuries so its cil
The most common type of financing (97%) is obtained from a ______ such as a mortgage company or bank.
third party
Escort
Attending a vessel, to be available in case of need, e.g. ice-breaker, tug, etc..
Punishing for being a dick about M&C
Attorneys fees are available if employer was CALLOUS and RECALCITRANT in (refusal to) pay M&C Punitive damages for the willful and wanton disregard of the maintenance and cure obligation are available as a matter of general maritime law.
Administration
The government of the state under whose authority of the ship is operating, with respect to a ship entitled to fly a flag of a state.
Administration
The government of the state whose flag the ship is entitled to fly.
Gross tonnage
The gross tonnage calculated in accordance with the tonnage measurement regulations contained in Annex 1 to the International Convention on Tonnage Measurement of Ships.
Air draft
The height from the waterline to the highest point of the vessel
Heading
The horizontal direction the vessel's bows at a given moment measured in degrees clockwise from north
Course
The intended direction of movement of a vessel through the water
What law are ships subjects to?
The laws of its flag state which exercises regulatory control and inspects, certifies and issues safety and pollution prevention documents.
What is the period of liability for a freight forwarder under NSAB 2015?
The moment the goods have been taken over until the moment they are delivered.
Bilateral Contract
The offense generally must accept by making a promise
A seller of coastal property abutting tidally influenced water must provide the ________.
Notice Regarding Coastal Area Property
What type of contract gives a buyer the right to purchase a property within a preset time period at a preset price?
Option Contract
When Is Acceptance Effective [mailbox]: Rejection sent before acceptance:
a rejection does not terminate the offeree's power of acceptance until receive, but any acceptance dispatched by offeree after rejection is sent is not effective unless the acceptance is received by the offeror before he receive the rejection. RST2§40
a counteroffer is:
a rejection, a new offer, able to be withdrawn prior to acceptance
"as is clause"
a rescission cannot be ordered to relieve a party who has assumed the risk in connection with the mistake
In marine salvage, what is meant by the term "gratuitous intermeddler?"
a salvor who acts without express or implied consent of the owner
an option is:
a unilateral contract
Unilateral K
a unilateral k is when one party commits herself to some performance if and only if the other party first 'accepts' by actually rendering his performance.
Allisions
a vessel colliding with a fixed structure
Posner (reliance), [minority]
a waiver is created when party that is seeking to have modification enforced relied on the modification. a seller can establish a waiver of NOM clause if it can show that it detrimentally relied on buyer's assurances.
Prejudgement interest
a. Important aspect of a damage award in marine casualty cases. P must ask for it to be awarded it. b. An element of compensation, not a penalty. c. In the discretion of the trial judge, but should be "exercised with a view to the right to interest unless the circumstances are exceptional." Usually only denied where a party "deprives himself of interest" - unwarranted delay by counsel, or when parties assert claims or defenses in bad faith.
USW applies to
a. The hull of a ship, the ship's cargo-handling machinery, hand tools aboard the ship, rope and tackle, and, in general, all sorts of equipment/appurtenances either belonging to the ship or brought aboard by stevedores. b. Cargo storage gear, but not the cargo itself, must be seaworthy. c. The crew of a vessel. d. A ship may be unseaworthy if it does not have certain types of equipment, such as maps or lifesaving gear. e. If the captain lacks training and permits, then the vessel is unseaworthy.
The law of finds
a. The law of finds, and not the law of salvage, applies to a wrecked vessel which has been abandoned - one to which the owner has no intention of returning. Under the law of finds (unlike in salvage), title to abandoned property vests in the person who reduces that property to his or her possession.
Marketing practices act
act that applies to public and comparable public activities to protect consumers, traders, and public interests
In Texas, real estate contracts are subject to satisfactory inspections.
false
What court has jurisdiction over the complaint for Limitation of Liability?
federal district court in admiralty jurisdiction
who has provided much of the substantive law of admiralty?
federal judiciary-federal admiralty judicial law
FISC
fiscal immigration sanitation customs
what we own in our exclusive economic zone
fish and oil
OCS: Workers injured on ________ structures in may enjoy the same remedies as workers on ships
floating or movable
in an archipelagic sea lane- aircraft may ________ and submarines may traverse ______________
fly, submerged
A "customary freight unit" describes what?
for goods unable to be shipped in boxes, bags ect. applies to bulk cargo, determined by calculations involving weight, cubic feet
Seaman's wages cannot be garnished expect
for the support of a spouse or minor child under an order of a court
________ is the legal procedure whereby secured property may be sold to satisfy a borrower's unpaid promissory note.
foreclosure
__________ is the process by which a lender exercises its power of sale under a mortgage that is in default.
foreclosure
Contract Implied in Fact
form of enforceable contract, based on tacit promise, one that is inferred in whole or in part from the parties' conduct, not solely from their words
what we did with dead bodies in sunk soviet ship
full military funeral with soviet flag and national anthem
Salvage law in the United States is based mostly on what two types of law?
general maritime law and customary international law
What are the 4 sources of substantive admiralty law?
general maritime law, federal statutes, international agreements and state law
Casino craft which are permanently moored to shore
generally not considered a vessel because they are withdrawn from navigation and are not capable of being navigated absent extraordinary measures being undertaken, even if they require a marine crew and are documented by the U.S. Coast Guard.
A vessel only temporarily out of navigation
generally will still be considered to be a vessel, such as a vessel in for repairs, unless it is so fundamentally changed that it is no longer capable of navigation
copyright
gives exclusive copying rights; protects unauthorized reproduction, distribution, presentation, performance of work
What does the act of salvage give to the person or entity that performs the salvage?
gives the right to a reward and so a maritime lien is created in the salved property
for hot pursuit first must be
good reason to believe ship has violated law of coastal state
How does s.22 of the Sale of Goods Act 1979 support Nemo dat quod non habet?
good which are sold by a person other than the owner, and without the owners consent, acquire no title to the goods
Under the Deceptive Trade Practices Act, __________ are defined as tangible chattels.
goods
Savings to Suitors Clause
granted jurisdiction to state courts to continue to hear admiralty matters, but there are some matters that are specifically reserved to the federal court system within admiralty jurisdiction.
color of lights shown on starboard and port?
green and red
List
here: Inclination of the vessel to port side or starboard side
Spreader
here: Step of a pilot ladder which prevents the ladder from twisting
Transit
here: The passage of a vessel through a canal, fairway, etc.
Transshipment (of cargo)
here: The transfer of goods from one vessel to another outside harbours
Which disclosure is provided to comply with federal requirements for properties built before 1978?
lead based paint disclosure
A(n) __________ is one that combines some of the elements of a sale with a lease.
lease purchase agreement
Economic theory on regulation
lecture 11
A(n) __________ description of property is a requirement for a valid deed.
legal
Is a Letter of Intent Binding?
letter of intent is binding if parties intended it to be binding (quake and corbin)
A seller choosing to receive a buyer's earnest money after the buyer defaults on a contract is an example of:
liquidated damages
General principles of law
listed third in ICJ as source of law
In personam action
means that the court has power over the person involved or the plaintiff must establish that the Court has personal jurisdiction over the defendant
A shipowner may limit its liability only if it can show the fault of the loss occurred without what?
privity or knowledge
The formal judicial proceeding to prove the validity of a will and to distribute the assets of a decedent's estate is calle
probate
The formal judicial proceeding to prove the validity of a will and to distribute the assets of a decedent's estate is called:
probate
UK: each party appoints abritator no later than 14 days after notice, the two appointed elect a third as chairman DK: same but time limit is 30 days
procedure for appointment of arbitrators
data processor
processes data on behalf of controller
Baird v. Gimbel Bros. [sub old rule]
promissory estoppel could not apply, because there was no binding promise of an irrevocable offer and there was no consideration for such a promise. Nor was court willing to treat subs bid as an option
A ________ is the borrower's unconditional promise to repay the lender.
promissory note
The fundamental interest at issue for determining the existence of admiralty contract jurisdiction is
protection of maritime commerce
What does Nemo dat quod non habet mean?
protects owner from losing property without fault
Longshore and Harbor Workers' Compensation Act
provides a comprehensive workers' compensation scheme for certain maritime workers who do not qualify as seamen.
RST1§45
provides protection to the offeree against revocation of an offer to enter into a unilateral contract when the offeree has relied on the offer by beginning the requested performance [Cook v. Caldwell banker]
Guiding principle in application of good faith
ps interest is internal to the understanding of the parties and good faith requires that d not exercise such discretion as it may have under the literal terms of the k to thwart ps expectation or purpose
whats wrong with the deep sea mining convention
we aren't going to give up all of our research and resources
Why do new routes opening constitute a closer look at risks?
weather could be different, limited established mapping, poor infrastructure means very limited scope of operations. International guidelines for such risk are available, but not accustomed to.
Forfeiture
when a contract has been substantially performed and the cost of rectifying the immaterial and nonwillful breach is disproportionately large in relation to the value of the benefit that full performance will confer on the plaintiff, diminution of the ultimate value of the performance may be a more appropriate measure of damages. courts less sympathetic with breach of express condition, more likely to work for constructive condition
Express warranty
Assurance of quality or performance explicitly made by the seller
What is equity?
Decisions are by the chancery court, much more discretionary. Have to come to equity with clean hands
1 U.S Code § 3
Definition of vessel
owner loses control, rep of the court serves arrest order on vessel/master and all vessel certificates are surrendered to authorities
Legal effects of arresting a vessel
Brussels I agreement (art 39)
EU agreement that requires courts to assist in enforcement of judgments from other EU states
What type of purpose must a contract have to be valid and enforceable?
Legal purpose.
If a contract is lacking ______, courts will not enforce it.
Legality
EU Sulphur Directive MARPOL Annex 6 IMO with Maritime environment protection comitee
Legislation on harmful air pollutants in shipping
Usury
Lending money at a rate higher than the state's maximum allowable rate
A buyer defaults on a contract and the seller chooses to receive the earnest money. This is an example of:
Liquidated damages
Implied term
"A major term in a contract, though not expressly agreed to considered to be essential to the performance of the contract"
The concept of "integration":
"A written document does not always represent a deal that the parties consider final. The writing may, for instance, be intended only as a tentative draft of their agreement. But if the parties do intend a document to represent the final expression of their agreement, the document is said to be an "integration" of their agreement. The parol evidence rule applies, as we shall see, only to documents which are integrations, i.e., final expressions of agreement.
Specific performance
"An remedy requiring the defendant to perform as promised under the contract; such as giving up real property, a service, or paying monetary damages."
Muster list
List of crew, passengers and all on board and their functions in a distress or drill
Express Conditions
MUST BE STRICTLY COMPLIED/STRICT PERFORMANCE UNLESS YOU GET AN EXCEPTION central obligation of the contract
The difference between a TREC-promulgated form and a TREC-approved form is that promulgated forms
MUST be used and approved forms MAY be used
An injured seaman is entitled to recover damages from the shipowner for what 4 things?
Maintenance and cure, lost wages, unseaworthiness and negligence
Consideration
"Both the offeror and offeree must give or receive something of value (eg. goods, money, labor) as a result of the transaction."
Death or destruction
"Death of the offeror or offeree, or the destruction of goods stated in the contract terms make the contract void."
State courts have concurrent jurisdiction with federal district courts to adjudicate admiralty claims to the extent that distinctive admiralty remedies are not involved and if not prohibited by statute.
"Savings to Suitors" clause of 28 U.S.C. 1333(1)
Counter-offer
"The offeree does not accept terms as offered, but proposes to amend those terms and enter in to a bargain thereon."
Capacity to contract
"The offeror and offeree must be over 18 years old, of sound mind and not bankrupt in order for the contract to be enforceable. The contract becomes voidable"
UCC
"Uniform Commercial Code"; governs sales of goods and contracts to sell goods in the future.
Federal wage statues protect foreign seamen serving aboard foreign-flag vessels
"When in harbor of the United States"
UCC definition of merchant
"a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction"
§90 of RST1
"a promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise."
NO ORAL MODIFICATION CLAUSES [NOM] (UCC § 2209 (2)
"a signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party" must be separately signed
Oral promises to charities not covered
"charitable subscription" means a written promise to a charity, and the rule that no reliance needs to be shown for a charitable subscription is thus generally not held to apply to an oral promise to make a charitable gift
Vessel - 1 U.S.C. § 3.
"every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation by water"
Admiralty Jx groundwork
"general maritime law" is judge made law, not statutory OJX in admiralty to federal courts, except saving to suitors clause
OCS: A member of the crew of a movable offshore structure may qualify for ____ status and the right to assert the usual seaman claims in admiralty jurisdiction
"seaman"
The seaman must be in ___________ at the time of injury or death to allow recovery.
"service of the ship"
Article 3
"sister ship" article, claimant may arrest an ship owned by same owner during maritime claim.
OCSLA provides that the law of the adjacent state is to be applied as
"surrogate federal law" to the extent that state law is not inconsistent with federal law.
Intellectual Property
"the ownership interest in creations of a person's mind: patents, trademarks, copyrights, trade secrets, etc."
A cup of water costs $1.50. The water costs is a dollar more than the cup. How much does the cup cost? $0.50 $0.25
$0.25
A yearly tax bill is $2400 and has not been paid. The property has sold and closing is July 30th. How much will be owed at closing for taxes? (Use a 365-day year, round to the nearest dollar and the seller pays for closing day.)
$1,387
If the loan factor is $4.49 and the loan amount is $357,500, taxes are $7300/year and the insurance is $3103 per year, what is the monthly PITI payment?
$2,472.09
If the loan factor is $4.49 and the loan amount is $357,500, taxes are $7300/year and the insurance is $3103 per year, what is the monthly PITI payment?
$2,472.09 Rationale: $357,500 / 1000 = 537.5 357.5 x 4.49 = $1605.18 Loan Payment (P&I) $7300 / 12 = 608.33 Taxes (T) $3,103 / 12 = 258.58 Insurance (I) Total = $2,472
The maximum amount per transaction for Real Estate Recovery is...
$50,000
A benefit of assuming an existing loan is that it is less expensive, generally costing less than _______.
$500
A carrier's liability for cargo damage will be limited to what amount unless the shipper declares a higher value?
$500
A seller of a coastal property abutting tidally influenced water must provide the ________.
Notice Regarding Coastal Area Property
Where Restitution is Appropriate when Services are NOT Requested (RST of Restitution §116)
(1) Acted unofficiously and with intent to charge (2) Services were necessary to avoid serious bodily harm or pain (3) Had no reason to think recipient would not consent, if mentally competent (4) It was impossible to give consent or consent was immaterial due to mental incompetence
Indefiniteness
(1) Agreement to Agree Formal K Contemplated (2) Where parties have purported to agree on a material term but left it indefinite. (3) Where parties are silent as to a material term and (4) Agreement to Agree on a Material Term What to do if you want to Cure Indefiniteness: indefiniteness can be cured by the subsequent conduct of the parties or by the subsequent agreement of the parties.
MODIFICATION, RECESSION, & WAIVER (UCC § 2-209: )
(1) An agreement modifying a contract within this Article needs NO CONSIDERATION to be binding. (NO PRE-EXISTING DUTY) (2) A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party. (REFERS TO NOM CLAUSE, READ WITH 2-209(4)) if the parties agree that any modifications must be in writing, then that provision will be enforceable under 2-209(2). This creates a Private Statute of Frauds re: future modifications. (3) The requirements of the Statute of Frauds section of this Article (Section 2-201) must be satisfied if the contract as modified is within its provisions. (4) Although an attempt at modification or rescission does not satisfy the requirements of subsection (2) or (3), it can operate as a waiver. even if the contract contains a NOM clause, under certain circumstances we can waive the clause and accept oral modifications (5) A party who has made a waiver affecting an executory portion of the contract may retract the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver. [promissory estoppel in a way. Connect this to RST§89
Seamen on American Vessels (wages)
(1) Exempt from federal overtime pay (2) Federal minimum wage under Fair Labor Standards Act apply
RST§110 Classes of K's Covered Under SOF
(1) Marriage (2) Year: requires a K to be in writing ONLY WHEN it cannot be performed within 1 year. [aka if a promise contained in a contract is incapable of being fully performed within one year, it must be in writing.] RST2§30. Majority - NOT subject to SOF f it is possible to be performed within one year K's of infinite duration not subject to SOF[majority] Freedman v. Chemical Construction Corp. Termination vs. performance: The fact that a contract may be terminated within a year is not sufficient to remove the contract from the requirements of the statute; only performance will do. (Without this distinction, the one-year provision of the statute of frauds would be judicially negated because any contract can be terminated within one year due to breach.) (3) Land (4) Executor (5) Surety (guarantee of another's loan) (6) Goods over $5K (UCC only, see below)
determining the materiality of a failure to fully perform a promise (suggestive factors, NOT BINDING)
(1) The extent to which the injured party will obtain the substantial benefit which he could have reasonably anticipated (2) The extent to which the injured party may be adequately compensated in damages for lack of complete performance (4) The extent to which the party failing to perform has already partly performed or made preparations for the performance (5) The greater or less hardship on the party failing to perform in terminating the contract (6) The willful, negligent or innocent behavior of the party failing to perform the greater or less uncertainty that the party failing to perform will perform the remainder of the K
RST (Second) §253(1) Effect of a Repudiation as a Breach and on Other Party's Duties
(1) Where an obligor repudiates a duty before he has committed a breach by non-performance and before he has received all of the agreed exchange for it, his repudiation alone gives rise to a claim for damages for total breach.
exceptions to PER
(1) agreement is not final (not integrated) (2) agreement is incomplete (partially integrated) use PE to supplement (3) agreement is ambiguous (multiple meanings) use PE to interpret meaning (4) agreement is invalid use PE to show lack of consideration, duress, fraud, etc. NOTE: court can probably look at PE to determine how integrated the K is NOTE: default rule, can be contracted around also, by merger/integration clause
Fraud by silence/ fraudulent non-disclosure
(1) d had knowledge of material facts the p did not have and could not have discovered by the exercise of reasonable diligence (2) d was under an obligation to communicate the material facts to the p (3)d intentionally failed to communicate material facts to p (4) p justifiably relied upon the d to communicate the material facts to the p (5) p sustained damages as a result of ds failure to communicate material facts to p
Fraudulent Inducement:
(1) d made false representations as a statement of existing and material fact (2) d knew the representations to be false or made them recklessly without knowledge concerning them (3) d made the representation intentionally for the purpose of inducing another party to act upon them (4) the other part reasonably relied and acted upon the representations (5) the other party sustained damages by relying upon the representations
exceptions to advertisement as not an offer
(1) if there is a particular number of units to sell or they will be sold in a particular manner, there may be an offer. Lefkowitz v. Great Minneapolis Surplus Store: Mink coat case (2) If an offer is conveyed by the objective reading of an advertisement, it does not matter that the advertiser may subjectively not intended it to constitute a binding offer (Izadi) (3) Unilateral advertisements have been held to constitute offers where they invite the performance of a specific act without further communication and leave nothing for negotiation. [Sateriale v. Reynolds]
The two elements of laches
(1) inexcusable delay ( in filing the suit) (2) prejudice to the defendant (prevents him from putting on a defence)
3 factors of the predominant purpose test
(1) language of the K, (2) the nature of the business of the supplier and (3) the intrinsic worth of the materials. [language of K is least important factor]
Admiralty Jx in Torts cases
(1) locus: the tort occurred on navigable waters or injury or damage which was sustained on land was caused by a vessel in navigable waters (2) nexus: the tort bore some relationship to traditional maritime activity. The nexus requirement is met when a potential hazard to maritime commerce arises out of an activity that bears a substantial relationship to traditional maritime activity
Counter Offer RST2§39
(1) same matter as the original offer but proposing a substituted bargain (2) An offeree's power of acceptance is terminated by his making of a counteroffer, unless the offeror has manifested a contrary intention or unless the counteroffer manifests a contrary intention of the offeree.
How usage of trade evidence can be allowed to modify a contract:
(1) the courts must allow a check on usage evidence by demanding that it be sufficiently definite and widespread to prevent unilateral post-hoc revision of contract terms by one party (2) Code requirements for providing a usage are "far less stringent." A usage of trade need not be well known, let along universal. It only needs to be regular enough that the parties expect it to be observed. (3) It is not necessary for both parties to be consciously aware of the trade usage. It is enough if the trade usage is such as to justify an expectation" of its observance (Summers
Navigable Waters
(1) the water is presently used or capable of being used for interstate maritime commerce: the transportation of goods or passengers by watercraft, (2) the water runs through two states or empties into the sea. Has to be navigable in fact for Mari jx, not historically navigable waterways that are only navigable during certain seasons of the year are still within the maritime jurisdiction of the federal courts
Minimum contacts
(1) whether the defendant had minimum contacts with the forum state in the sense that it purposely directed its activities toward the forum state or purposely availed itself of the privileges of conducting activities there (2) whether the plaintiff's cause of action arose out of or result from the defendant's forum-related contacts (3) whether the exercise of personal jurisdiction is "fair and reasonable."
Elements of a cause of action for a quasi-contract/restitution:
(1) Π has conferred benefit on Δ (with reasonable expectation of being paid) (2) Δ has knowledge of benefit (3) Δ has accepted or retained the benefit conferred (4) Circumstances are such that it would be inequitable for Δ to retain the benefit without paying fair value for it
Question 3: Does This Fall Within One of the Exceptions to SOF that Permits Enforcement Despite Non-Compliance
(1)Partial Performance Exception (2) Special Manufacture (3) Admissions Exception (4) Confirmation Between Merchant Exception (5) Promissory Estoppel Exception
Shrinkwrap
(Dell): The modern trend is to place the power of acceptance with the consumer, after he or she receives goods containing a standard form statement of additional terms and conditions, provided the buyer retains the power to accept or return the product. [Easterbrook]
Clickwrap
(Hines v. Overstock) Standard contract terms contained in a website or software and set up in a way that requires the user of the site or software to access the terms and to signify assent to them, usually by action such as clicking an "I agree" button before submitting order terms may be on the web page itself, found by clicking on a link, or in a pop-up window. analogous to a buyer signing a written standard form contract: terms are available at the time of contracting, and the buyer has a duty to read them. A clickwrap term may also be embedded in software that the buyer has purchased, either by downloading it or by buying a disk containing it. If the clickwrap term is in the software itself, the term may not have been available to the buyer at the time of sale. If that is so, it is similar in character to, and should be approached in the same way as a shrinkwrap.
The Special Provisions paragraph of the contract allows license holders to insert:
(a) Factual business details (b) Statements not addressed in the contract (c) Information for which there is no TREC promulgated addendum, lease or mandatory form (d) All of the above Correct answer: d
For tax prorations
(a) If taxes are not paid at or prior to closing the buyer shall pay for the current year (b) If taxes for the current year vary from the amount prorated at closing, the parties shall adjust the prorations when tax statements for the current year are available (c) The tax proration may be calculated taking into consideration any change in the exemptions that will affect the current year's taxes (d) All of the above D
An offer by a prospective purchaser can be terminated prior to acceptance due to:
(a) expiration of a specified time period (b) bankruptcy of either party (c) a change in the law that renders the contract illegal (d) all of the above D
Prof. Mayhew's Reasonable Expectations Test:
1) Adhesion K: so far only applies to insurance Ks 2)Ambiguity in language will be interpreted in light of the objective reasonable expectations of average insured 3)Reasonable expectations will be applied when insured didn't get full and adequate notification And provision is unusual or unexpected Policy provision effectively emasculates the apparent coverage 4) There must be actions by insurer to create objective impression that some activity will be covered 5) There must be reasonable reliance on the K by the insured
Exceptions to Parol Evidence Rule (RST 2d 214). Evidence is admissible to establish:
(a) whether the writing is an integrated agreement ('214(a) (b) whether the integration is complete or partial ('214(b)) (c) the meaning of ambiguous terms (or trade usage applied to otherwise clear terms) in the K ('214(c)) Some cts have stretched the doctrine to allow evidence to show that the plain words of the K are ambiguous. If they find ambiguity, they will then apply the same evidence to interpret the ambiguity However, other cts have held that if the terms are unambiguous, then evidence cannot be admitted (Hershon) (d) illegality, incapacity, fraud, duress, mistake, or other invalidating cause ('214(d)) for defenses, usually only applies to substantive uncon and sometimes mistake (e) ground for granting or denying rescission, reformation, specific performance, or other remedy ('214(e)) usually used to show that term was excluded because of clerical error - need clear and convincing evidence that term was meant to be included by both parties (f) the existence of collateral agreements - an agreement is not fully integrated if the parties have made a consistent additional agreement which is either agreed to for separate consideration or is "such a term as in the circumstances might naturally be omitted from the writings" (R2d '216(2)) (g) subsequent modifications to the K (look at modification rules)
Not under command
(abbr. NUC) A vessel which through exceptional circumstances is unable to manoeuvre as required by the COLREGs
Promissory Restitution
(exception to past consideration doctrine) Majority Rule: A moral obligation is not sufficient consideration for a promise. There must be some other preexisting obligation which will suffice as consideration. (Mills v. Wyman) Minority Rule: moral obligation is a sufficient consideration to support a subsequent promise to pay where the promisor has received a material benefit—although there was no original duty or liability resting on the promisor (Webb v. McGowin)
Cannot sue if:
- Giving notice or filling a claim less than 6 months - Sue in court within a year after the date of the injury or death - If not, they enforce the "contract"
Cannot sue if
- Giving notice or filling a claim less than 6 months- Sue in court within a year after the date of the injury or death - If not, they enforce the "contract
Limited Liability vs. Partnership
- LLC isn't directly liable on an individual basis. Combination of partnership and body corporate. Has to be registered. Can sue and be sued in its name. Has separate legal status. Perpetual succession. - Partnership has unlimited liability because its only two people. Can't be sued in his name. Max of 100 partners. Can't enter into contract in its name. No perpetual succession.
a chase in a hot persuit is not interrupted just because
-chase is continued by another vessel or aircraft -vessel being chased is out of sight -vessel being chased cannot be tracked by remote means
What does the IMO polar code do?
-covers all aspects of shipping in polar waters -ensure level playing field for safety in polar shipping -came into force Jan 1, 2017 -implementation in national states required and enforcement is up to the member staes
What are the claims under Burden of proof in the Athens convention?
-death of or personal injury to the passenger -cabin luggage -other luggage
When dealing with the Hague-Visby Rules (carriage of goods) what should one consider?
-does the vessel comply with IMO polar code -need to be careful with liability rules -ensure that don't initiate deviation by using the NSR so agree on before -allocate cost effectively
What is the Hong Kong Convention?
-vessels must maintain an inventory of Hazardous materials -vessels must be recycled at authorized facilities only -ship recycling facilities must recycle vessels in a safe and environmentally sound manner -Convention is not yet in force (expected 2020)
What is EU regulation on ship recycling?
-vessels under EU members' flags or operating under their authority -some hong kong convention rules on ship recycling are adopted -ship recycling facilities must be authorized by European commission *infringement is subject to fine equal to price of ship *'whistle-blower' mechanism
Last Shot Rule [Classical Doctrine]-
. (mere performance is assent to all terms in the counter offer) A party impliedly assented to and thereby accepted a counter-offer by conduct indicating lack of objection to it. [usually favors seller] Princess Cruises. &RST2§19
Walk out (to) (of anchors)
...To reverse the action of a windlass so as to ease the cable.
How many public members are appointed to the Lawyer-Broker Committee?
1
RST (Second) §251 When a Failure to Give Assurance May Be Treated as a Repudiation
1) Where reasonable grounds arise to believe that the obligor will commit a breach by non-performance that would of itself give the obligee a claim for damages for total breach under § 243, the obligee may demand adequate assurance of due performance and may, if reasonable, suspend any performance for which he has not already received the agreed exchange until he receives such assurance. (2) The obligee may treat as a repudiation the obligor's failure to provide within a reasonable time such assurance of due performance as is adequate in the circumstances of the particular case.
A seller of coastal property abutting tidally influenced water must provide the ________
Notice Regarding Coastal Area Property
What are the three main types of management?
1. Commercial managemnt 2. Technical operation 3. crew management
Remedies for Breach of Contract
1. Compensation 2. Specific performance 3. Rescind the contract
Requirements of Statehood
1. Defined territory 2. Permanent population 3. Government 4. Capacity to enter into relations with other states 5. Independence
Nexus Tests
1. Did the incident have a "potentially disruptive impact on maritime commerce?" 2. Does a substantial relationship exist between the activity giving rise to the incident and traditional maritime activity?
Who is a JASM?
1. Employee 2. Employment is in connection with a vessel or an identifiable group of vessels under common ownership, contributing to the function of the vessel or the accomplishment of its mission - must be substantial in duration and nature (30% of time on board vessel in navigation) 3. Vessel in navigation
Termination of an Offer
1. Lapse of time 2. Rejection of the offer 3. Offer revoked
Legality
1. Legality of form 2. Legality of purpose
Admiralty jurisdiction over workers engaged in offshore operations (OCS) depends upon three variables
1. The type of craft or structure involved (whether or not it qualifies as a "vessel"); 2. The status of the injured party (seaman, maritime worker or some other category); and 3. The location of the platform at the time of the injury (whether it is within or beyond (OCS) the limit of state jurisdiction).
Scindia: the three duties of vessels/shipowners in stevedoring situations
1. Turnover Duty duty of due care under the circumstances to turn over the ship and its equipment in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter, arising from the hazards of the ship's service or otherwise, will be able by the exercise of ordinary care to carry on cargo operations with reasonable safety to persons and property; as well as a narrow duty to warn of preexisting hazards on the ship 2. Active Duty Once cargo operations are under way, the ship owner must use reasonable care to prevent injury to longshoreman from hazards and equipment under the active control of the vessel during the stevedoring operation. 3. Duty to Intervene Once cargo operations are under way, the ship owner has no duty to exercise reasonable care to discover dangerous conditions that develop within the confines of the cargo operations that are assigned to the stevedore. But, if there is a latent condition that only the ship owner knows about that would not be apparent to the longshoreman, the ship owner has a duty to intervene.
Rights of sovereign states
1. equality with other sovereign states 2. freedom from outside interference 3. power to exercise jdx over states territory and nationals 4. immunity from the jdx in each others courts
The Texas Real Estate Broker-Lawyer Committee consists of...
13 members.
current statute giving the court admiralty jurisdiction?
1789 act of Congress, state courts were authorized to decide many, but not all, types of maritime cases
TRELA was established in...
1939
TREC was established in...
1949
law of the sea convention (_______)
1952
All sellers of homes built prior to ________ must provide a disclosure of their knowledge of possible lead based paint hazards.
1978
Berth
1: A sea room to be kept for safety around a vessel, rock, platform, etc.. 2: The place assigned to a vessel when anchored or lying alongside a pier, etc.
Cable
1: Chain, wire or rope connecting a vessel to her anchor(s) 2: (measurement),185.2 metres, i.e. one tenth of a nautical mile
Check (to)
1: To make sure that equipment etc. is in proper condition or that everything is correct and safe 2: To regulate motion of a cable, rope or wire when it is running out too fast
How many types of promulgated lease forms does TREC provide?
2
UCC SOF- Confirmation Between Merchant Exception [UCC § 2201 (2)]
2 Merchants. Merchant = someone who regularly deals with goods of a kind or holds OR holds self out as having particular skills or knowledge involved in a transaction • example: a farmer is not a merchant because does not know about selling because less transactions. Need written confirmation to be sent to the other party in a reasonable time after k was formed. Confirmation must be received by the party who must have reason to know of the confirmation's contents and then fail to object within ten days. Must be sufficient against the sender this means 3 requirements need to be satisfied (1) give evidence of k (2) sender signs & (3) quantity term there
Bilateral Contracts
2 promises (a promise in exchange for a promise); if the promises are broken, there may be responsibility if losses are incurred
if there is ____ nm or less between neighbouring countries, they get a _____nm territorial sea
20, 10
OCS
200 miles' outward
for there to be an international strait there must be less than _____ nm between two states
24
length limit of territorial sea and contiguous zone
24 nautical miles
where is save to the suitor originally found?
28 U.S.C. § 1333
before the law of the sea, under cil, you got about this many nautical miles
3
* Maximization * Equilibrium * Efficiency
3 fundamental concepts of economic behavior
Uniform statute of limitations (filing a suit)
3 years for suits "for recovery of damages for personal injury or death, or both, arising out of maritime tort. (exception for carriage of passengers on cruise ship)
Maritime Torts: SoL
3 years; DOES NOT apply to an action for maintenance and cure.
Removal must be accomplished within ____of service of the Petition.
30 days
The statute of limitations in Texas for break fo a written contract is
4 years
What is the storm warning
48 to 63 knots, flag with square
aritificial islands, installations in EEZ zone- may establish a safety zone of up to ______________
500 meters
Describe the proper anchor ratio for lunch or overnight or storm?
5:1, 7:1, 10:1
Of the 13 Lawyer-Broker Committee members, how many are appointed by TREC?
6
Of the 13 Lawyer-Broker Committee members, how many are members from the State Bar of Texas?
6
UCC §2-314 IMPLIED WARRANTY OF MERCHANTIBILITY
A 'merchant' who regularly sells goods of a particular kind impliedly warrants to the buyer that the goods are of good quality and are fit for the ordinary purpose for which they are used
Encroachment
A building or some portion of it— a wall or fence, for instance— that extends beyond the land of the owner and illegally intrudes on the land of an adjoining owner or a public street
merchant
A business or person who deals regularly in the sale of goods or who has specialized knowledge of goods.
Legal rights in a contract are shared equally between
A buyer and seller
During the option period,
A buyer may terminate the contract for any reason
International Tonnage Certificate (1969)
A certificate issued to every ship, the gross and net tonnage of which have been determined in accordance with the Convention.
Escape route
A clearly marked way in the vessel which has to be followed in case of an emergency
Anti-fouling system
A coating, paint, surface treatment, surface, or device that is used on a ship to control or prevent attachment of unwanted organisms.
Ownership
A collection of rights that allow the use and enjoyment of property
Union purchase
A common method of cargo handling by combining two derricks, one of which is fixed over the quay, the other over the hatchway
An abstract of title is:
A complete written history of title
What is a constructive trust?
A constructive trust is an equitable remedy resembling a trust imposed by a court to benefit a party that has been wrongfully deprived of its rights due to either a person obtaining or holding a legal property right which they should not possess due to unjust enrichment or interference
Seller is also lender in
A contract for deed
Fire patrol
A crew member of the watch going around the vessel at certain intervals so that an outbreak of fire may be promptly detected; mandatory in vessels carrying more than 36 passengers
Restricted area
A deck, space, area, etc., in vessels, where for safety reasons, entry is only permitted for authorized crew members
Safety Management Certificate
A document issued to a ship which signifies that the company and its shipboard management operate in accordance with the approved safety management system.
The Lead-Based Paint Disclosure is:
A federal requirement for residential property built prior to 1978
Actual Fraud:
A material misrepresentation of past or existing fact by the party to be charged, which: (1) Was false (2) Was made with knowledge or in reckless ignorance of the falsity (3) Was relied upon by the complaining party, and (4) Proximately caused the complaining party injury
Tonnage
A measure of the enclosed spaces of the ship measured on the mold lines, often used in the commercial and tax applications.
What are the elements of a valid contract?
A meeting of the minds, intent to be legally bound and consideration
Close-coupled towing
A method of towing vessels through polar ice by means of icebreaking tugs with a special stern notch suited to receive and hold the bow of the vessel to be towed
Bob-cat
A mini-caterpillar with push-blade used for the careful distribution of loose goods in cargo holds of bulk carriers
Fraudulent Misrepresentation [RST §164]
A misrepresentation is fraudulent if the maker intends his assertion to induce assent and Knows the assertion is not factual, Doesn't have the confidence he implies OR Knows he has no basis for his assertion.
Proximate cause and superseding cause
A negligent party can owe nothing in a lawsuit if there is an independent, intervening cause.
Indestructibility IS
A physical characteristic of land
Survival Action
A survival or survivorship action is for the recovery of claims the decedent could himself have asserted; the decedent's representative recovers for such items as pain and suffering before death, medical expenses and lost wages A survival action in a case of a death that takes place more than three miles from the shore of any state (or the territories or dependencies of the US) is preempted by DOSHA, and therefore decedent's representative may recover only pecuniary damages. Decedent's representative may not recover, for example, loss-of-society, survivors' grief, or decedents' pre-death pain and suffering damages.
employer
If trademark is created in the course of employment it belongs to the
No jury trial
Admiralty jurisdiction
Executive Jet Aviation
Admiralty jurisdiction was lacking because "the wrong did not bear any significant relationship to traditional maritime activity"
Acceptance
After an offer is made, the offeree now has the 'power of acceptance.' With this power the offeree can (1) accept (2) make a counter offer (3) reject (4) offer can terminate
Ship shall be upright
After loading is completed, what should be the condition of the vessel before she leaves port.
Judicial foreclosure allows property to be sold by court order
After the mortgagee has given sufficient public notice
Contract
Agreements between two or more parties that create obligations
These rights extend above the surface without limitation...
Air Rights
Doctrine of Error in Extremis
Allision = one ship running into a stationary ship There is a presumption of negligence against all parties participating in the management of the vessel when the vessel allides with a stationary object. BUT, doctrine of error in extremis if you make a mistake in a super extreme situation because you're trying to escape or fix it, its forgivable "Last clear chance" kind of rule where a navigator, suddenly realizing that a collision is imminent by no fault of his own, in confusion and excitement of the moment, does something which contributes to the collision or omits to do something by which the collision might be avoided, such act or omission is ordinarily considered to be in extremis and the ordinary rules of strict accountability does not apply.
Estate at will
An estate that give the lessee the right to possession until the estate is terminated by either party; the term of this estate is indefinite.
Estate for years
An interest for a certain, exact period of time in property that continues fro period to period- week to week, month to month, or year to year
Obstruction
An object such as a wreck, net, etc., which blocks a fairway, route, etc.
Option Contracts
An option contract is an offer + separate consideration to hold that offer open for a certain amount of time. It is an irrevocable offer. Essentially, a person pays for time to think about an offer.
Foul (of anchor)
Anchor has its own cable twisted around it or has fouled an obstruction
consideration
Anything of value (e.g., money, services, goods, promise) given to induce another person to enter into a contract. ALSO CALLED: Valuable Consideration
Encumbrance
Anything- such as a mortgage, tax, or judgment lien; an easement; a restriction on the use of the land; or an outstanding dower right- that may diminish the value or use and enjoyment of a property
What are the restrictions for CF numbers
At least 3 inches, contrasted to the color of the boat, on both sides of the bow
Pomerene Act
Applies to bills of landing covering interstate transport and shipments departing from US ports also applies to overland transports
What is the Danish Package Travel Act?
Applies to travel being part of a pre-arranged set of services with the description and minimum requirement being told. Example in change of port calls for a cruise.
The limitation proceeding establishes one forum for the resolution of claims. What are the 4 matters to be determined by the court?
Are the vessel and its owners liable at all? Can the owner in fact limit its liability to the value of the vessel and pending freight? What are the amounts of just claims against the shipowner? How the limitation fund should be distributed to the claimants
Harmful Aquatic Organisms and Pathogens
Are unwanted aquatic organisms or pathogens which, if introduced into the sea including estuaries.
Blind sectors
Areas which cannot be scanned by the radar of the vessel because they are shielded by parts of its superstructure, masts, etc, or shore obstructions.
Towage Contract
Arises when one vessel is employed to expedite the movement of another.
How can the right to limit liability be lost?
Art 13. damage resulted from an act or omission of the carrier done with the intent to cause such damage or recklessly and with knowledge that such damage would probably result.
innocent passage suspension will only take effect after having been duly published'
Art 25(3)
Grants Congress the power to "fine and punish Piracies and Felonies committed on the High Seas and offenses against the law of nations."
Article 1, Section 8, Clause 10
- there is another claimant - provided security is ineffective - claim is larger than originally thought
Article 3 (arrest convention 1954) allows for re-arrest of vessel if
owner puts up security for the claim (amount determined by court)
Article 5 regarding release of arrested vessel allows for release if
agreement to agree rule
Ask whether the parties intended to be bound when they agreed in principle or only if further negotiations proved successful (1) Where the contract was essentially final and the written contact was going to be simply an evidentiary memorial of the agreement - it is still enforceable (2)Where it appears that the parties did not intend to be bound until the contract was written - they are not bound
What are the five tiers of insolvency, highest creditors to lowest
Assets belonging to insolvent estate - assets subject to fixed charge, retention of title Expenses of insolvency Preferred creditors - employees Holders of floating charges Unsecured creditors - companies get a proportion equal to their debt.
What is the "real" concern with ship recycling?
Brand damage because if a vessel is sold it is hard to regulate as the company wanted rather than circumventing. This puts a considerable risk of damage to seller's brand/reputation.
- indecent mkting means - Hidden adverts - comparative adverts - discriminating adverts - adverts playing on fear
Breaches of good marketing practices
US control their own laws developed out of
British system.
An option to purchase contract allows
Buyer to buy for a fixed price etc.
What are the names of the promulgated lease forms?
Buyer's and Seller's Temporary Residential Lease
Name a case to show the courts views on unfair bargains v bad bargains
C & P Haulage v Middleton
Consideration Under UCC
CL rules govern. Firm Offer Rule additional exception to keeping offer open without consideration
CL and Charitable Subscriptions
CL some courts: Before the use of the promissory estoppel doctrine became widespread, courts enforced such promises of charitable contributions by finding consideration to be present. CL some courts: Some courts found an implied promise by the donee to use the gift for charitable purposes. CL some courts: Other courts found that the promises of other prospective donors to make donations were consideration for the particular donor's promise. these "consideration" theories were tenuous at best, since the prospective donor almost never truly "bargained" for his promise.
Contracts for carriage of goods by sea to/from the United States in foreign trade is covered by what law?
COGSA
If a Bill of Lading is issued as the contract of carriage between shipper and carrier what law will govern this relationship?
COGSA
Restitution without Promise
CREDIT BUREAU ENTERPRISES, INC. v. PELO (2000) Pelo threatened to kill himself and was involuntarily hospitalized. Pelo refused to sign release that would ensure payment from either him or his insurance until awoken at 5am by nurse. Few days later, hospital realized it didn't have authority to keep him, and he left. (1) Pelo was personally liable for bill b/c personal hospitalization order somehow suggests he was mentally impaired. (2) Doctor acted unofficiously with intent to charge (3) services were necessary (4) No reason to think recipient wouldn't want services, if mentally competent Impossible to give consent
Options for getting around M&C
Can K out of M&C Health plan can take the place of M&C obligations
Manufactured housing
Can be considered real property when proper paperwork is filed
Option Contract Termination
Can be terminated by (1) lapse of time (2) death of person or thing essential for performance of offered contract or (3) supervening legal prohibition
Prior to closing, severe damage to or destruction of a property under contract:
Can result in termination of the contract
Osceola CoA's
Can sue in personam for: a. Maintenance and cure. Seamen can't recover for injuries sustained through the negligence of other crew members beyond expense of maintenance and cure. b. Unseaworthiness Shipowner has a duty to provide a safe place to work c. Negligence (Jones Act) Can sue the vessel (in rem) a. By arresting the vessel
Two limits on Congress made by Supreme Court, that they will or not let you do (first)
Cannot destroy essential uniformity (uniform) law or betray
Rule P-53 of the Texas Department of Insurance states that Title Companies:
Cannot provide food and beverages for a picnic for a single firm, Cannot provide an annual party for a single firm, Cannot provide continuing education classes unless they charge the market rate for those classes
* safety : SOLAS, ISM (international safety management) * Security: ISPS (International Ship and Port Facility Code) * Maritime compliance: Maritime labour Convention * Environmental: Ballast Water Convention, EU Waste Management and pollution directives * others include ship construction
Categories of regulation in shipping
Modern definition of a contract
Centers on a promise; "A promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes a duty"
What does pacta sunt servanda allow?
Certainty and predictability
DOHSA Fundamentals
Comes into play any time there is a death more than a marine league away from shore (3 miles). Both DOSHA unseaworthiness and Jones Act negligence can offer a remedy for death of a seaman on the high seas. DOSHA only allows recovery of pecuniary damages. Punitive damages are not recoverable under DOSHA. DOSHA applies to maritime torts only, so maritime jurisdiction is required. Text of DOSHA found on pg. 4-127.
Everyone's fault is asset in the accident
Comparative fault
Mr. Longshore get hurt on the ship. Ship defendant get sued under 905 for vessel negligence. The injury was caused 1 % by the vessel (ship defendant) and employer 99 %.
Comparative fault is there. Ship must recover.
A percentage decrease or withdrawl of creditors claims against debtor
Compulsory composition may constitute....
What is the 2002 Protocol?
Compulsory liability insurance of passenger carriers -strict liability for "shipping incidents" up to SDR 250,000 -possibility of further liability for "shipping incidents" up to SDR 400,000 with presumption of fault -other incidents: negligence witt burden of proof resting on the passenger
Pilots
Compulsory pilots do not enjoy seamen status Pilot doesn't have a permanent attachment to a vessel or fleet of vessels. Go read Bach
Acceptance by Conduct 2207(3)
Conduct by both parties that recognizes the existence of a k is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. Terms of Contract by Conduct: terms consistent with those in which the writings of the parties agree, together with any supplementary terms incorporated under any provisions of the act. Supplementary term= gap-filler. Example=price term would be a reasonable price at the time of delivery.
Rule 19
Conduct of vessels in restricted visibility, safe speed
article 53 (compelling law)
Conflict with jus cogens
more difficult to maintain confidentiality and commercial relation, slow and expensive, unpredictable
Cons of litigation
nonbinding for future disputes, could end up a waste of time
Cons of settlement
...,defined as something given in exchange for a promise, is required in order for a contract to be valid and enforceable.
Consideration.
A contract to perform an unlawful act is
Considered a void contract
A(n) ________ is a provision in a contract that requires that a certain act or event happens in order for the contract to be binding on the party.
Contingency
_________ is a provision in a contract that requires that a certain act or event happens in order for the contract to be binding on the party.
Contingency
...is an agreement between two or more parties to do something or to refrain from doing something.
Contract
When an executory contract is in place and a zoning change takes place the
Contract becomes void
Void contracts
Contract does not exist at law
Before title passes the
Contract is in an executory status
Statute of frauds requieres
Contract to be in writing to be enforceable
Contracts for Maritime Insurance
Contracts for maritime insurance are within admiralty jurisdiction b/c they are intertwined with maritime activities, despite being made on land and performed (by payment of the loss) on land.
Mortgage loan originators can be broken down into three categories: mortgage bankers, mortgage brokers and ________
Correspondent lenders
What was the Costa Concordia grounding?
Costa Concordia struck a rock in the Tyrrhenian Sea tearing open a 160 ft gash on the port side of her hull. An order to abandon ship was not issued until over an hour after initial impact even though international maritime law requires all passengers to be evacuated with 30 minutes within an order. 6 hours to evacuate and not everyone made it off.
Federal Courts
Jurisdiction to hear federal matters, generally reserved maritime matters. Also, develop, approve, change and build up on maritime law/rule. Congress can come in and say no.
Doctrine of Inevitable Accident
Could the collision have been prevented by the exercise of ordinary care, caution and maritime skill? If not - if both colliding vessels were exercising the care, skill, and caution required by prudent navigation - the collision is the result of an inevitable accident, and neither vessel is at fault.
what do we do when interaction between 2209(4) and no waiver clause?
Court: no waiver clause is the equivalent of a private statute of frauds. AND secondly, a private statute of frauds is subject to all of the exceptions that the public statute of frauds is subject to. ex of exception: part performance parties behavior seems, at least in this narrow range of circumstances, to trump the NOM clause
Excuse to Avoid Disproportionate Forfeiture
Courts differ/will evaluate on facts- Will look at assets that will be forfeited vs. assets still owned sophistication + bargaining power of parties negotiating specific language of the K how and what is obtained by the non-breaching party
Adequacy of Consideration
Courts generally don't care; if a party bargains poorly, courts usually won't interfere; those who bargain take on the risk of their own errors; there are exceptions such as fraud, duress, etc.; the main concern is an exchange of mutual promises and obligations by the parties
Work Platforms
Courts recognize a distinction between "work platforms" that are designed for primarily stationary residence and true vessels. Three factors: i. Whether the structure was constructed to serve primarily as a work platform. ii. Whether or not the structure was moored or otherwise secured at the time of the accident. iii. Whether the transportation function of the structure went beyond theoretical mobility and occasional incidental movement. If hard to move, not often moved, restricted to incidental movement, made to serve/exploit individual locations, not a vessel.
Estates in real property are
Created by a deed and or a bill of sale
• Debtor accepts being insolvent • Debtor is under reconstruction • Debtor has stopped payments • Creditor has levied execution against the debtor for three months without recovering debt
Creditors may petition for liquidation if
25%
Creditors representing what percentage of the outstanding debt may file for stopping reconstruction
COW
Crude Oil Washing: A system of cleaning the cargo tanks by washing them with the cargo of crude oil during discharged
Paquete Habana
Customary law is a valid from of international and domestic law--it is binding. US courts have a duty to enforce customary law. There was consistant state practice and belief
What is the EU Regulation 1177 for passenger compensation?
Customers get compensation and rights for delayed and cancelled sailing to or from EU ports due to carrier's fault unless open ticket, no accommodation for poor weather or extraordinary circumstances.
This applies to the "Customs waters" of the United States, the United States Coast Guard may "go on board any vessel and examine, inspect and search the vessel and examine every part thereof and any person or cargo on board, and to this end may stop such vessel.
Customs Enforcement Statute
One conducted on a vessel arriving from or departing to a foreign country or international waters
Customs and Border Control search
The law that provides a cause of action for wrongful death of any person when it is caused or occurred more than 3 miles from shore is called what?
DOHSA
When a license holder is sued, it tends to be due to an action under the...
DTPA
Comparative fault
Damages under the Jones Act are allocated via a system of comparative fault. If an injured seaman is found to be 65% responsible for the accident that caused the injury, then he can only claim 35% of the damages the ship owner would normally be required to give. Doctrine of comparative fault applies in products liability suits under maritime jurisdiction, noting that the majority of courts have held comparative liability applicable in strict liability cases.
What is the most common anchor?
Danforth
Nature of goods and incompatible goods shall be segregated
Dangerous goods shall be loaded, stowed & secured safely & appropriately depending on the:
What is a partnership subject to?
Danish Act on Certain Commercial Enterprises
danish criminal justice act
Danish anti corruption practice applies to acts in dk or on dk flagged vessels, sec 122. says offering bribe is an offense
Who are eligible for the Danish Tonnage Tax regime?
Danish limited liability companies, foreign companies with permanent residence in Denmark, danish branches of EU companies.
What is the DTPA?
Deceptive Trade Practices Act
After an offer has been accepted by a seller, one of the first things done in the transaction process is that the earnest money is
Deposited in the escrow account by the b user or buyer agent
Accretion is land being acquired by
Deposits from a river and or stream
There are 3 basic inquiries to determine whether an incident will be within admiralty jurisdiction of the court. What are they?
Did the incident occur on navigable waters? Did the incident bear a substantial relationship to a traditional maritime activity? Did the incident have a potentially disruptive impact on maritime commerce?
Express Contracts
Direct statement by the parties of the promises made; may be oral or written; all important terms are expressly states between the parties
Minors may ______ contracts at their option.
Disaffirm
Which hole type is the most efficient?
Displacement hull
What is a Mayday signal
Distress
What are the 3 levels of federal courts?
District courts, court of appeals and the Supreme Court of the united States
May grant a party a right to a jury trial, even in federal court.
Diversity jurisdiction, the Jones Act (seamen) and Savings to Suitors
What certificates must be carried onboard a vessel to be in compliance?
Document of compliance(DOC) issued to the company. Safety Management Certificate (SMC) issued for compliant vessel. Valid for 5 years.
UCC §2-313 EXPRESS WARRANTIES
Does not require that the seller have the intent to create an express warranty [change from old times]
What should one consider when looking at the relevant product market?
Does the product qualify as a separate market qualifier? need to look at special features that might be presenting cross price elasticity (if one price changes, is the other option acceptable to interchange) banana market example.
Operational Negligence
Doesn't equate to USW An isolated, negligent act of another worker does not constitute unseaworthiness. Unseaworthiness does not arise until a negligent act becomes a "condition" of the ship, her appurtenances, her cargo, or her crew.
Requirements of signed writing in electronic transactions
Electronic Signatures in Global and National Commerce Act (colloquially known as "E-Sign"), "electronic" signatures must be recognized for statute-of-frauds purposes. UCC exception: Under UCC § 2-201( 2), a memorandum sent by one merchant to another may under certain circumstances be enforceable against the recipient, even though the latter did not sign it.
What instrument do you use to find your bearing?
Electronic bearing line
EPIRB
Emergency Position Indicating Radio Beacon
Jones Act Negligence
Employer as well as seaman has a DUTY of reasonable care under the circumstances. BREACH of that duty PROXIMATE CAUSE, just need a scintilla of evidence to show causation, featherweight burden of proof for showing proximate cause "a" cause, not "the" cause DAMAGES Limited to pecuniary damages, punitive not available
Option Contracts created by UCC [§2205]
Empowers an offeror to create an irrevocable offer for sale of goods without consideration BUT there are prerequisites: (1) Offeror must be a merchant (2) Offer must be in signed writing (3) If language of irrevocability is on a form supplied by the offeree the offeror must sign TWICE. Once to make the offer and must separately sign the clause providing for irrevocability (4) Writing must contain language for irrevocability (5) Period of irrevocability must not exceed 3 months. [if offer does specify time it will be limited to 3 months unless consideration has been given or it is renewed Drennan is a HUGE exception and trumps 2205 in a handful of cases
A claim, lien, charge, or liability attached to and binding real property is a(n) ________.
Encumbrance
bilateral or multilateral treaty or convention between jurisdictions
Enforcement of judgement in other jurisdiction usually requires
claimant can apply for court assistance in identifying the defendants assets and have them put under control of the court so it can auction them and pay claimant
Enforcement proceedings
If a seller will continue to occupy the property for one month after the closing, the buyer and seller should:
Enter into a Seller's Temporary Residential Lease
Leaking
Escape of liquids such as water, oil, etc., out of pipes, boilers, tanks, etc., or a minor inflow of seawater into the vessel due to damage to the hull
Evidence of title, a payoff statement, and an affidavit of title (if required) are all usually provided to the
Escrow agent before closing by the sellers
Earnest money should be deposited with
Escrow agent within two business days
Mitigate your damages
Even if someone hurt you, you always have a duty to. If you are the person that are injured, do what is reasonable possible to lessen your injury (feasible to do so)
How did Congress define a vessel?
Every description of watercraft or other artificial contrivance use, or capable of being used, as a means of transportation by water
Question 2: Is the K Reflected in Writing Sufficient to Satisfy SOF---What is Required to Satisfy Writing:
Evidence a contract for the sale of goods Be signed by the party to be charged AND Specify a quantity. *Thus, a memorandum is sufficient even though it omits other essential terms agreed upon. However, the contract is enforceable only as to the quantity *Though you need quantity absence of a material term does not ruin this. If there is no price courts may supply based on market information *writing requirement at a minimum here.
Exceptions to the Mailbox Rule RST2 §63(b)
Exception 1 Option Contracts: offeree must make sure offer is received. Once valuable consideration received you do not need protection from mailbox rule. Exception 2 Unauthorized Acceptance: Offeror says send by fedex and you send regular mail. Then you lose protection of mailbox rule. Acceptance not effective until receipt Exception 3 Schizophrenic Acceptance: If buyer sends both rejection and acceptance it depends on which one gets there first. If rejection first no contract If acceptance first, contract but doesn't begin until receipt not dispatch
This type of listing agreement is preferred by most brokers as it affords the greatest degree of protection in earning a commission during the listing term.
Exclusive Right to Sell
impossibility
Excuses both parties from their obligations under a contract if the performance has been rendered impossible by events occurring after the contract was formed
During the period after a real estate sales contract is signes, but before title actually passes, the status of the contract is
Executory
A contract that is binding on the parties, with one or more of the parties having contractual duties that have not yet been performed.
Executory Contract.
How is an agent's (person acting in favor of another) authority viewed?
Express vs. Implied Actual vs. Apparent (more important) As long as agent acted within his actual or apparent authority then the contract is binding, but principal could bring claim against agent if they feel the agency agreement was breached.
§ 1331
Federal Question
Some cases that can only be brought in federal court
Federal court
What court has jurisdiction over marine salvage matters?
Federal district courts
What is the dominant source of substantive admiralty law today?
Federal legislation (supreme court retains authority to review federal legislation)
Need for uniformity
Federal maritime law
Federal Courts have jurisdiction to hear
Federal matters
Allows a claim to be removed to federal court if there is diversity jurisdiction between the parties, or based on a question of federal law.
Federal removal statute
What are two circumstances that equity has crept into commercial law?
Fiduciary duties, constructive trust
Assessment of debtors liquidity (cash flow test)
Final decision on whether a party is insolvent is made using
Dispatch
Financial allowance that charterer may be entitled to when they complete loading or unloading in a period of time less than the specified laytime
Disclaimers for Implied Warranties UCC §2-316(2)
For Merchantability-"language must mention merchantability and in the case of a writing must be conspicuous For Fitness-must be in conspicuous writing and will be effective if it states that "there are no warranties which extend beyond the description on the face hereof" Difference-disclaiming for fitness of warranty can be less specific than that required for the implied warranty of merchantability but it must be in writing
USW is strict liability
For an unseaworthiness cause of action must prove that there was some condition on the ship that was not reasonably fit for its intended purpose. No actual or constructive notice of the condition to the ship owner is needed. RULE - Under the maritime law there is an absolute obligation to provide a seaworthy vessel, unrelated to the standard of ordinary care in a personal injury case.
Locus Test
For purposes of maritime location, appurtenances of the vessel, such as the gangplank, count as part of the vessel, even if they extend over the dock. The Admiralty Extension Act: damage done by a vessel in navigable waters subject to admiralty jurisdiction even if that damage is done on land. So the locus requirement is met if the negligence leading to P's accident took place on a vessel, even if the actual accident then occurred on land. Negligence on ship + accident on land = Mari Jx
All vessels of 500 gross tonnage and above
For whom is the ISM-Code Mandatory?
. ________ is the legal procedure whereby secured property may be sold to satisfy a borrower's unpaid promissory note.
Foreclosure
Article 49
Fraud
At closing, the contract is:
Fully executed
When a sale finally closes, the contract is said to be...
Fully executed.
Vienna Convention on the law of Treaties
Generally seen as an authoritative source on treaties (but never meant to be completely comprehensive)
How does competition regulation benefit society?
Given perfect competition, then you will arrive at the most optimal prices (equilibrium in the market). Without regulation could end up with monopoly or cartel that fixes a price at their own benefit. Then there is no other option but to buy from them lowering optimal choice/price.
Easements by necessity will be
Granted based on a landowner cannot be landlocked
RST2§79: Adequacy of Consideration
Gross inadequacy of consideration may be relevant to the application of other doctrines such as fraud, mistake, lack of capacity, duress, or undue influence. [see Dohrmann]
What are the four excepted sobriety tests for a BUI?
HGN, counting the fingers, Home packed, and the Macarena
The International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading is a really long title. The common name / short title of this convention is what?
Hague rules
Collision fundamentals
If two vessels collide, then their damages are allocated according to comparative fault, but damages for cargo and passengers can be determined by joint and several liability. The doctrine of General Average = everyone shares the loss with respect to the percentage owned (if I own 10% of the ship that sustains $10,000 in damage, I am responsible for $1,000 of that damage). If you have a collision w/ another vessel, there is a duty to stand by.
Statement of the parol evidence rule:
Having defined the concepts of "partial integration" and "total integration," we are now ready to state the parol evidence rule. The rule has, in effect, two parts, one dealing with partial integrations, and the other with total integrations. The rule provides as follows: Partial integration: When a writing is a partial integration, no evidence of prior or contemporaneous agreements or negotiations (oral or written) may be admitted if this evidence would contradict a term of the writing. Total integration: When a document is a total integration, no evidence of prior or contemporaneous agreements or negotiations (oral or written) may be admitted which would either contradict or even add to the writing.
If a piece of property is owned by joint tenants and one of them dies
His share of the property is passed to the survive owners immediately and not to his heirs
When focusing on recycling operation need to consider:
Hong Kong Convention, IMO guidelines, and EU regulation on ship recycling.
What case shows that there is not a fiduciary relationship in a distributorship? AS there are tow contracts between three parties
Hospital Products Ltd v United States Surgical Corporation
12 months
How long is the Special Trade Passenger Ship Safety Certificate valid?
3 months
How long should the IMDG goods marking last despite being immersed in the sea, and still be readable?
10
How many hours of rest is the minimum required in a normal day?
Minimum of two
How many inspections on the outside of the ship's bottom should be done during the 5-year period of the certificate?
Should not exceed 36 months
How many months should be the interval of the inspection of the ship's bottom during the 5-year certificate.
Mailbox Rule [only bilateral ks]
IF YOU ARE NOT FACE TO FACE an acceptance (by offeree) will in some circumstances be treated as effective as soon as it was dispatched by the offeree [this is different than an offer and a revocation*]
Termination by Illegality [termination by operation of law]
If you have offered to do something and it becomes illegal, then the offer terminates due to operation of law.
Injury to a truck driver walking on a ramp leading to a barge on navigable waters.
Jurisdiction was denied, see. Admiralty Extension Act.
EU directives, national law, administrative trademarks, court decisions
IP law has different levels and admin organizations
Trademarks
IP protection for the purpose of signaling quality and lowering searching cost to consumers; covers words, names, colors, designs, signs, etc.
Wage Penalties
If D fails to pay wages due P Seamen may recover double wages for each day that payment is delayed without sufficient cause. District courts do not have discretion to limit or adjust such a recover.
Mixed K's
If K is primarily maritime and the non-maritime aspects are incidental, qualifies for Mari jx Mari jx exists if the court can enforce the maritime provisions of the K without prejudicing the rest of it
Examples of where either statute might apply
If P brings suit against his employer under Jones Act but the court finds he is a longshoreman or harbor worker. If SoL has not run, he may claim benefits under LHWCA (or under state statute, if applicable). And if the court determine he IS a seaman under the Jones Act but is not entitled to recover (if perhaps the employer is free of fault), this does not bar a later claim for compensation under the LHWCA. a. If P claims benefits under LHWCA and the ALJ found he was a seaman, if the SoL has not run he may now sue his employer under the Jones Act. Same if ALJ finds he is a longshoreman/harbor worker but the federal court sets aside award of benefits on grounds that he is a seaman. If P recovers under LHWCA, cases have held that he is not estopped from claiming recovery under the Jones Act No need to accord finality to ALJ's finding re his status. One court has found, however, in such a case that P was as a matter of law not a seaman.
Doctrine of Divisibility
If a K is divisible, a court may allow recovery for the portions that the breaching party has completed. (1) must be possible to apportion the performance of the parties into corresponding pairs of part performance (ex: supposed to paint 20 sheds, but only paint 5) (2) must be proper to treat these pairs of part performance as "agreed equivalents."
Choice of Applicable Law
If a contract is "maritime and local", in the sense that application of state law would not disturb the uniformity of maritime law, state law may apply.
Seller Response to an Inquiry
If a seller responds to an inquiry from a customer about whether the seller has a particular quantity of items for delivery at a particular time, the seller's response with details of what she has for sale is likely to contain enough to be an offer.
Termination by Lapse of Time [implicit or explicit]
If a time limit set, the offer expires when the time is up RST2§41. If there is no time limit, the power of acceptance terminates "at the end of a reasonable time period." RST2§41(2).
Embeddedness
If a vessel is embedded in or attached to the land (river/sea bottom), title to it rests with the owner of the land
Option Contracts created by Part Performance in Unilateral K. RST §45.
If an offer for a unilateral contract is made, and part of the consideration requested by the offer is given or tendered by the offeree in response thereto, the offeror is bound by a contract, the duty of immediate performance of which is conditional on the full consideration being given or tendered within the time stated in the offer, or if no time is stated therein, within a reasonable time. RST2§45 offer that invites acceptance only by performance not by promise Comment d: in many cases beginning of performance by the offeree carries with it an express or implied promise [by offeree] to complete performance. [so is this basically a bilateral contract?]
liable for losses (liability regime depends on the jurisdiction)
If arrest of vessel is unlawful, arresting party may be
may still be liable for debt not covered by up to 30 years
If debtor is a natural person what happens after liquidation
Total integration
If document is intended by the parties to include all the details of their agreement, it is called a "total" integration.
Termination by Death or Incapacity of Offeror or Offeree [termination by operation of law]
If either offeror or offeree dies, or if either loses legal capacity to enter the contract the power to accept is terminated. This is so even if the offeree does not learn of the offeror's death or incapacity until after he has dispatched what he intends as acceptance. RST2 §48.
Cargo Loss
If extraordinary sacrifices are made or expenses incurred by a party, such as damage to vessel, cargo, or freight inflicted deliberately by the master or operator of the vessel, in order to avert an impending peril that threatens the entire voyage, the party suffering the loss has the right to contribution from all those who participate in the venture.
What is a manager's liability under SHIPMAN?
If manager fails to fulfill obligations, he will be liable in contract and/or negligence to Owners, and/or negligence to third party.
Limitations to Drennan Rule
If offeror subcontractor makes explicit that it is freely revocable, then court will respect that in most cases. Court on application of mistake doctrine harm falls on the party who made the mistake unless the party knew or had reason to know of the mistake bid shopping [trying to find another subcontractor who will do the work more cheaply while continuing the claim that the original bidder is bound] and bid chopping [attempt to renegotiate with the bidder to reduce the price] are mitigating factors
Acceptance by Performance
If offeror's offer proposes that the offeree accept by performing an act, rather than by making a promise. Such an offer looks to a unilateral contract. Classical: when an offer to unilateral contract is made, it can only be accepted by full performance. See Wormser. RST2§45: if offeree begins to perform, most courts treat the offer as having become temporarily irrevocable. The offeree receives an option contract. RST2§45.
Joint tenancy:
If one owner dies his share of his interest passes to surviving owners
For tax prorations:
If taxes are not paid at or prior to closing the buyer shall pay for the current year, If taxes for the current year vary from the amount prorated at closing, the parties shall adjust the prorations when tax statements for the current year are available, The tax proration may be calculated taking into consideration any change in the exemptions that will affect the current year's taxes
Partial integration
If the document is not intended by the parties integration
Stevedore's Lien cont.
If the longshore worker commences suit in timely fashion against the third party, the employer may assert a judicially-created lien against any recovery for the full amount of its compensation payments. The stevedore's lien is not reduced by the proportionate share of the longshoreman's expenses in obtaining recovery from the ship owner, the stevedore is entitled to be reimbursed for the full amount of the compensation payments.
Acceptance Method Unspecified
If the offer does not specify the mode of acceptance, the acceptance may be given "in any manner and by any medium reasonable in the circumstance" RST2§30(2) If promise OR performance invited, offeree can choose RST2§32.
A buyer is under contract to buy property and is now being relocated. Her friend offers to buy the property instead.
If the purchase contract allows, the friend can take over the buyer's contract rights by assignment
Criminality/Public Policy
If the terms of a contract require illegal behavior, or if they go against Congress' stated goals, it will be declared void.
Tug/Tow Liability to third parties
If there is an allision, it's the tugs fault if they are negligent. They are the active tortfeasor.
Old LWHCA stuff
If there's an injury on the water, that was exclusive federal jx. If on land, that was state jx. State law applied only landward of the Jensen line. If the injury of a non-seaman maritime worker occurred on navigable waters but arguably fell within the "maritime but local" exception, there is concurrent state and federal jx, and claimant's choice of federal or state remedy should be upheld. compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel).
This characteristic of land refers to the fact that land cannot be moved.
Immobility
Bait and switch
Improper business practice involving luring buyers to the store with an understocked, low-priced good and then redirecting them to a more expensive product
What is the Tonnage Tax regime?
In Denmark, a shipping company operated as a company can choose between two different types of taxation: ordinary corporate taxation or tonnage taxation. *tax payable is calculated on the basis of the tonnage of vessels with a minimum gross tonnage of 20. (tonnage x fixed amount).
12 degrees
In Intact Stability Requirement, the angle of heel due to the shift of grain shall not be greater than:
Contribution and Settlement
In a joint tortfeasor situation, if the P settles with one or more tortfeasor, the final judgment of liability against the non-settling tortfeasors is reduced by the proportionate share (%) of negligence attributable to the settling parties, and NOT reduced by the dollar amount of the settlement.
Pennsylvania Rule
In a maritime accident, if a vessel is guilty of any statutory violation it presumed to be at fault, and it has the burden to show not merely that her fault might not have been a cause but that it COULD NOT have been cause. must prove that there was actually no way that the ship (and its conduct) could have caused the accident. Where both parties to maritime collision are guilty of statutory fault, under the Pennsylvania Rule the court must find that the statutory fault of BOTH vessels contributed to the accident, unless it finds that the fault of either (or of both, for that matter) COULD NOT have been a cause of the collision. If neither vessel is exonerated from collision-causing statutory fault, comparative fault applies.
Identifiable group of vessels
In deciding whether there is an identifiable group (fleet) of vessels for seaman status determination, question is whether the vessels are subject to common ownership or control. Requisite link to a vessel or group of vessels is not established by vessels' mere use of the same hiring hall which draws from the same pool of employees. Fleet of vessels must be under common ownership or control.
What does Denning in J Spurling Ltd V Bradshaw state about good faith in contract?
In many civil law systems, and perhaps in most legal systems outside the common law world, the law of obligations recognises and enforces an overriding principle that in making and carrying out contracts parties should act in good faith
Officious Intermeddler Defense
In the context of unjust enrichment, a person who imposes an unsolicited benefit on another in the absence of emergency circumstances that would have justified the conferral of an unrequested benefit.
The buyer and the seller have an executory contract for sale of a property. The seller says the buyer can use the property as a shooting range. The buyer checked zoning and discovered that the special use is no longer lawful in that neighborhood.
In this case then, the contract is VOID
A contract for the conveyance of an interest in real estate or lease for a term of more than one year must be...
In writing.
A sewer system is NOT
Included in the descprition of land
What counts as "in service of the vessel?"
Includes shore leave. Any time seaman may be away from the ship but is subject to the "call of duty" The shipowner is responsible for sickness/injuries/death that occur between the date specified in the agreement for reporting to duty and the termination of the engagement. There is an exception for injury incurred otherwise than in the service of the ship, but this exception does not include shore leave - a sailor injured on shore leave is still entitled to maintenance and cure. Shore leave is an indispensable part of the maintenance of a functioning vessel. Vacations sever responsibility to the vessel. Not answerable to the call of duty.
The Jones Act Fundamentals
Incorporates the Federal Employees Liability Act. 3 yr SoL (for other than M+C). Ship owners are vicariously liable for medical malpractice subsequent to an injury/accident. Jones Act suits must be in personam. Negligence under General Maritime Law is a higher standard than in Jones Act cases. In Jones Act cases, the slightest bit of causation will make the ship owner liable. Jones Act cases get a jury trial, unlike the general maritime law.
Contribution and Indemnity Fundamentals
Indemnity If injuries sustained by longshoreman caused in whole or part by negligence of ship owner, injured worker may receive compensation under LHWCA from his employer AND may sue the ship owner. Employer may also sue the third-party tortfeasor (ship owner) to recover payments made to the employee under the LHWCA. Shipowner indemnifies stevedore
Which of the following is a physical characteristic of land?
Indestructability
This characteristic of land refers to the fact that land cannot be destroyed.
Indestructibility
Where are some of the biggest recycling yards at?
India, Bangladesh, Pakistan, china and turkey
consumer
Individual who acquires goods primarily for personal, family or household use.
Assignment transfers contract obligations to another party and releases the first party obligations
Is FALSE
Untreated
Is a charge for the use of money
Substantial Corrosion
Is an extent of corrosion such that assessment of corrosion pattern indicates a wastage in excess of 75% of allowable margins, but within acceptable limits.
Despite her best efforts, a licensee is unable to find a ready, willing and able buyer for seller. This would be considered a breach of contract between the broker and seller
Is false
The use of inclinometer to determine the listing and heeling
It does not belong to the grain loading information.
ISM code
It established a standard system for the safe management and operation of vessels and for pollution prevention.
Price Quotes
It is a frequent business practice for one person to request a 'quote' from another. Price Quote is typically an invitation to the buyer to submit an offer [prelim. negotiation] Sometimes, a price quote could be an offer if there is a clear quantity, addressed to a particular person, and is called the offer. However, if it reserves to the proposer the power to close the deal, it is not an offer.
What is Poolcon?
It is a standard agreement for the formation, administration and operation of pools. Designed for : international use, aligned with EU competition law framework, freedom of contract (rider clauses). *most used on tram pool in dry and liquid bulk trade. COA and spot market, possibly time charter.
To have sufficient intact stability & to provide adequate residual dynamic stability
It is required for a vessel to demonstrate by calculation at all times during voyage.
What is the NSAB 2000 and 2015?
It is the document for which all services rendered are subject to. Nordic Association of Freight Forwarders.
Promote high level of safety of ships and protect the crews
It is the main objective in the formulation of the IMDG code.
What is needed for practice to amount to usage. Cuncliffe-owen v Death and Greenwood
It must be certain, in the sense that the practice is clearly established, it must be notorious, well known to the market place and it must be reasonable.
Case for commercial reality v strict legal rights
James Finlay and Company Ltd v NV Kwik Hoo Tong Handel Maatschappij
Joe is an agent at Tried and True Realty. He gets a $150,000 offer on a property that is listed for $199,500. In a recent phone conversation, the seller told Joe he would accept no less than $185,000 for the property. Knowing the seller's "bottom line," what should Joe do with the offe
Joe should present the offer to the seller
Joe is an agent at Tried and True Realty. He gets a $150,000 offer on a property that is listed for $199,500. In a recent phone conversation, the seller told Joe he would accept no less than $185,000 for the property. Knowing the seller's "bottom line," what should Joe do with the offer?
Joe should present the offer to the seller
Personal injury to or death of seamen
Jones Act - 46 U.S Code § 30104 (this is why you cannot remove)
Accommodation ladder
Ladder attached to platform at vessel's side with flat steps and handrails enabling persons to embark / disembark from water or shore
Real property
Land, water, and minerals in the earth; airspace above the land; and things permanently attached to the land.
United Nations Convention on the Law of the Sea (UNCLOS)
Law composed of 9 annexes and 320 articles governing all aspects of ocean space
* changing behavior: in the form of sanctions and enforcement * Resolution of issues through bargaining to reach efficient contracts
Law provides incentives for...
The broker -
Lawyer committee drafts but does not publish forms
Which disclosure is provided to comply with federal requirements for properties built before 1978?
Lead-Based Paint Disclosure
_________ gives one possession and use of a property without ownership.
Leasehold estate
arrest asset to secure payment of a claim, if claim is not paid it may sell the asset
Lien holder has the right to...
sold
Lien stays attached to vessel even if it is
Texas is a
Lien theory state
When real estate taxes are not paid on time a
Lien will be filed by the taxing authority
- Preparation - Commencing proceedings - Exchanging written submissions - Preliminary hearing - Disclosure (UK/US) - Main hearing - Judgment - E.g. appeal - Enforcement
Life of a case in litigation
What are the limits of liability under Art 7 for Athens Convention?
Limit of SDR 46,666 per passenger per carriage. Loss of or damage to vehicle: 3,333 SDR Cabin luggage: 833 SDR Other luggage: 1,200 SDR
- exclusive performance doesn't apply to education or religious services - expires 70 years after death of owner - exhaustion through lawful assignment of copy
Limitations of copyrights
- term is 20 years - valid nationally - no experimental use by others allowed - third party right to use before date continues after patent is granted
Limitations of patents
Recovery under DOHSA
Limited to i. Loss of support ii. Loss of services of the deceased iii. Loss of nurture, guidance, case, and instruction iv. Loss of inheritance v. Funeral expenses May not include non-pecuniary and punitive damages: i. Survivor's grief, bereavement, and mental anguish ii. Loss of society and consortium iii. Decedent's pre-death pain and suffering
_______ are the rights to use water from a lake, ocean or sea on or next to property.
Littoral rights
LHWCA Fundamentals
Longshoremen can sue their employer as well as the ship owner under the LHWCA. Prior to 1972, the ship owner was liable for everything under the warranty of unseaworthiness. The 1972 amendments gave longshoremen better benefits but prevented them from bringing suits for unseaworthiness (they are only allowed suits for negligence). Longshoremen may still, however, use unseaworthiness as a standard for strict products liability cases.
S.S. Lotus
Lotus principle; extreme positivism; opino juris but not state practice
LINVIK
MC § 131, §§ 275-276 FIOS-clause = free in and out, stowed = charterer responsible for loading and NOT carrier. This result was not found to be in conflict with the mandatory rules. However, mandatory rules in §§275-276 as well as master's responsibility in § 131 = some responsibility anyway because of failure to supervise which resulted in initial seaworthiness. Because of that, the liability was shared.
GARDEN
MC § 131, §§ 275-276 Master's duty to plan and supervise loading, shared liability!
Asfar v. Blundell
MC § 260 Changed commercial character = freight did not have to be paid. ENGLISH LAW
HOEGH CARRIER
MC § 260 Freight had to be paid even if cargo was damaged. It still had some value, corresponding to freight.
MUNCASTER CASTLE
MC § 276 Carrier liable for shipyard's worker's negligence. "Due diligence with work of repair by whomsoever it may be done"
The Koningin Beatrix
MOB incident on Rosslare ferry where Master's decision to not lower lifeboat was correct but clear lack of alternative rescue procedures which was the issue in this case. *Good case for risk management considerations.
M&C and health plans
Maintenance: need not be paid concurrently with a disability plan pursuant to a collective bargaining agreement, unless the benefits are a form of "deferred compensation." Cure: employer incurs no further obligation to pay for medical treatment which has already been paid for by a welfare plan or by insurance pursuant to a collective bargaining agreement.
Merger Clause
Many writings contain a "merger" clause, i.e., a clause indicating that the writing constitutes the sole agreement between the parties. Such a clause will conclusively establish that the document is a total integration, unless the document is obviously incomplete, or the merger clause was included as the result of fraud or mistake, or there is some other reason to set aside the contract.
Contract to Lease/Charter a vessel
Maritime Charter with an option to buy: during the charter, maritime jx. When it becomes time to buy, if you could sever it and the only cause of action was for sale of a vessel, no maritime jx. If you pled it as a mixed contract, is maritime jx.
Contract for Repair of a Vessel
Maritime but contract to procure repair of a vessel (i.e. I hire you to find me a repair shop for my boat) = not maritime.
State law may be borrowed, when there is no specific need for federal uniformity under a given set of facts. Only apply to one area - "maritime but local" - only govern this little area of water
Maritime But Local
MMSI
Maritime Mobile Service Identity number
MRCC
Maritime Rescue Co-ordination Centre: Land-based authority responsible for promoting efficient organization of maritime search and rescue and for co-ordinating the conduct of search and rescue operations within a search and rescue region
London maritime arbitrators association (LMAA): industry standard, inexpensive, unless otherwise agreed upon it follows english law Society of maritime arbitrators NY(SMA): fast
Maritime arbitration institutes
Contract to Provide Catering to Ship
Maritime, providing necessities to a vessel
Exception to SOF- Part performance
May take a contract out of SOF if is asking for specific performance (equity) Unequivocal referable test: Performance must lead an outsider to naturally and reasonably conclude that the contract alleged actually exists. Consider 2 Factors: (1) Has party seeking enforcement obtained possession of the property (2) Whether the party has made valuable improvements to the property Beaver v. Brumlow: Mere payment of money is unlikely to be enough RST doesn't use unequiv. test - Action in Reliance; Specific Performance RST §129: cannot use SOF if it is established that the party seeking enforcement, in reasonable reliance on the K and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can only be avoided by specific performance.
Length of ship
Measured along the rabbet of the keel, from the fore side of the stem beneath the bowsprit to the afterside of the sternpost.
Ballast water management
Mechanical, physical, chemical, and biological processes, either singularly or in combination, to remove, render harmless, or avoid the uptake or discharge of Harmful Aquatic Organisms and Pathogens within ballast water and sediments.
- The mediators correspond with the parties to have them clarify the issues in dispute, e.g. through submission of position papers - A mediation meeting is held where parties can discuss the issues in the presence of the mediator
Mediation procedure
What are the principal heads of claim when trying to recover damages?
Medical expenses pain and suffering loss of amenity loss of earnings
If real consent is missing, there is no...
Meeting of the minds
Justifications for Non Performance
Mistake mutual/unilateral
The four economic characteristics of land are: scarcity, fixity, situs and ______
Modification
...refers to the fact that value is affected by man-made changes to the land.
Modifications
How maritime liens derive
Most maritime claims derive from tort, contract, or from peculiarly maritime operations, such as salvage, give rise to maritime liens. Not for personal injury USW yes
Dragging (of anchor)
Moving of an anchor over the sea bottom involuntarily because it is no longer preventing the movement of the vessel
1. Maintenance and cure 2. Sue your employer for negligence (Jones Act) 3. Sue your owner (employer) for vessel is always seaworthy
Multiple rights as a seaman
Case questioning 'temporary' in suspending innocent passage?
Mururoa Atoll France
K's for supplies
Must be for NECESSITIES, "coal that they might thereafter require" wasn't enough
is Writing Sufficient
Must be the signature of the party against whom the contract is enforced Agency- does the person signing have the authority? Express authority Implied authority- unspecified authority granted as a consequence of job description Sole proprietorship potentially different from corporation (what officers can sign?) Depending on jurisdiction, sometimes seller's trademark may constitute signature
Traditional Rule
Must create - Legal detriment to the promisee OR legal benefit to the promisor; Actually the legal detriment and benefit usually occur at the same time.
Rule 5
Must have a lookout
Rule 8
Must take Ample positive action to avoid accident
Rule 7
Must use equipment if you have it (radar)
The offer
Mutual understanding between parties; 1. Manifestation of Intent (Preliminary Negotiations vs. Intent to Offer); 2. Definite; 3. Communication
Consideration in bilateral k
Mutuality of Obligation
A sales contract establishes the legal rights and obligations of the buyer but
NOT the seller is FALSE
Whats a "maritime worker?"
NOT: a. Master or member of the crew of any vessel (seamen). b. Employees/officers of federal/state/foreign government. c. Any person engaged by the master to load or unload or repair any small vessel under eighteen tons.
What is the network clause?
NSAB 2015 Clause 2. The freight forwarder is liable for any loss, delay, damage or depreciation that might occur for the certain mode of transport or a particular means of transport agreed upon.
What is the Duty of Care?
NSAB 2015 Clause 6. "It is the duty of the freight forwareder to prove that, according to the contract, he has protected the customer's interests in a diligent manner."
Ordnance exercise
Naval firing practice
Rivers, streams, lakes and other bodies of water are within the jurisdiction if they are
Navigable waters
What is an example of an unintentional tort?
Negligence is an example of an unintentional tort
Estates are generally created by deed or lease and
Never by a bill of sale
When a party is considering consulting an attorney for advice in a transaction an agent should:
Never discourage the use of an attorney
Nexus Test
No admiralty jurisdiction for claims arising from airplane accidents unless the wrong bears a significant relationship to traditional maritime activities Executive Jet: No such significant relationship where land-based aircraft flying between points within the continental U.S. fell into navigable waters of Lake Erie but where an aircraft is considered to be "performing a function traditionally performed by water-borne vessels," the connection or nexus test may be satisfied Part of the question for nexus is whether it can effect maritime commerce
modern doctrine and Charitable Subscriptions
No reliance necessary in charitable subscription case: Although in most contexts promissory estoppel will apply only when the promisee relies to his detriment, the courts often do not impose such a detrimental reliance requirement where the promise is a charitable subscription, i.e., a written promise to make a charitable contribution. Thus § 90( 2) of the Second Restatement states that "a charitable subscription ... is binding under subsection (1) [which sets forth the promissory estoppel doctrine] without proof that the promise induced action or forbearance."
State JX: In Rem
No state jx for in rem actions In rem action was not known to common law, its an equitable thing, and maritime is the province of equity States can use forum non conveniens without preempting/altering federal maritime law, uniform application of FNC not necessary for maintaining Mari uniformity
Property Subject to Salvage
No structure which is not a ship or a vessel is a subject of salvage. However, this has been broadened to include a seaplane, which is designed for water use, fish trap frames, which are designed to float upon and be transported across a water surface, and even money found on a floating body, since the individual, prior to his death, had embarked upon a maritime adventure
Can the IMO enforce best practices for recycling?
No.
Classification Societies
Non governmental orgs. establish and maintain technical standards of construction and operations. Also provides certificates and conducts serveys
This characteristic of land refers to the fact no two parcels of land are the same.
Nonhomogeneity
What is an example of a real pool agreement?
Norient Product Pool ApS. Currently manages 101 product tankers.
What are contract terms for recycling normally based on?
Norwegian Sale form with amendments.
M&C Details
Not an exclusive remedy, can purse MC and other things simultaneously Charterers are only liable if P establishes existence of a demise charterer, who assumes full control of the vessel and with it owner's responsibility for maintenance and cure. Commuter seaman may recover for maintenance and cure depending on: (1) whether or not the seaman was on authorized shore leave when injured, and i. Irregular, incidental. Not just when off a regular shift. (2) whether or not the seaman was answerable to the call of duty. i. Legal obligation, bound to the vessel. $8 a day is a judicially recognized amount for maintenance M&C IS AVAILABLE TO SEAMEN, NOT LONGSHOREMEN
Oceanographic Research Personnel
Not covered by JA, but covered under general maritime law
Inoperative
Not functioning
Off station (of buoys)
Not in charted position
Contract to Contribute to Seamen's Union Pension
Not maritime
Contract for Construction of Vessel
Not maritime K for building a ship or supplying materials for her construction is not a maritime contract,
This doctrine holds that the United States is justified in exercising extraterritorial jurisdiction over a criminal offense which occurs even aboard a foreign vessel, when the conduct in question may have a substantial effect within the United States and the exercise of jurisdiction is not unreasonable.
Objective territoriality
data processing agreement
Obligations of processor towards the data controller
What is the red hand rule? how does this relate to good faith?
Obscenely harsh clauses have to be pointed out, if not then they are not valid
Four elements of a contract
Offer and acceptance Consideration Duties and enforcement Defenses
This term, often referred to as 'mutual consent' or 'meeting of the minds' is required for a contract to be valid and enforceable...
Offer and acceptance.
Counter Offer
Offer made by an offeree to his offeror relating to the same matter as the original offer and proposing a substituted bargain differing from that proposed by the original offer. The offeree's power of acceptance created by an offer will be terminated when there is a counter offerRST2§36. A counter offer is simultaneous rejection + new offer.
Termination by Rejecting Offer
Offeree expressly rejects OR counteroffer RST2§36.
Method of Acceptance
Offeror is the master of his offer and may prescribe the method by which it may be accepted. (even the right to suspend mailbox rule)
Oil clearance
Oil skimming from the surface of the water
OSC
On-Scene Co-ordinator: A person designed to co-ordinate search and rescue operations within a specified area
All onboard
Onboard a ship, who should have a job description?
"Partial" vs. "total" integrations:
Once it is determined that a document is an integration (i.e., a final expression of agreement), it must be determined whether the parties intended that integration to contain all of the details of their agreement, or only some of these details. If the document is intended only as a memorandum of the agreement, it may state only the most important details, and leave the others to the parties' recollection.
third party beneficiaries
One for whose benefit a promise is made in a contract but who is not a party to the contract
What does one blast mean, to blasts, three blasts, five blasts?
One means turning to starboard, two means turning to port, three means operating astern propulsion, five means your intentions are not understood
A voidable contract may be disaffirmed by
One party to the contract
Voidable contracts
One party to the contract has right to avoid legal obligation
Unilateral Contract
Only one promise (a promise in exchange for performance); once performance has been made, the other party's duty arises to fulfill his/her promise
Why is it important when choosing a flag to register with?
Operational financial and tax reasons political reasons
Standing orders
Orders of the Master to the officer of the watch which s/he must comply with
Pre-existing injury: the last ship rule
Origin or cause of a seaman's disability, fact that it preexisted the voyage, originated on another vessel, or even was due to the fault of another vessel are all irrelevant to the ship owner's obligation to pay M+C, as long as a seaman believed in good faith that he was fit for duty.
Analyzing whether CIL has been "accepted as law" (step 2 of 2)
Out of a *legal obligation* or necessity or rather merely out of courtesy, neighborliness, or expediency
Unconscionable Agreements
Outcome is grossly unfair to an innocent party
Article 26 of VCLT
Outlines consent in treaties
Freight rate derivatives can be used in
Over the counter (direct, no middle man) clearing houses (companies review exchange for client)
A business organization MAY NOT
Own property as a tenancy by the entirety
A business organization may NOT
Own property as a tenancy by the entirety
General liberty clause
Owner not obliged to comply with any orders if vessel is already performing employment to which sanction is applied, owner can refuse to proceed
Duty of Tug and Tow
Owner of barge is responsible for seaworthiness of barge. Towing vessel must exercise such reasonable care and maritime skill as prudent navigators employ for the performance of similar service.' Tug captain is responsible for his tow and must act as a prudent navigator under the circumstances, including knowledge he should have had.
agreements must be kept (treaties are based on good faith)
Pacta Sunt Servanda
Modern Approach to PER
Parol Evidence May be used to determine meaning the parties intended for K Terms Judge determines whether term is ambiguous by looking at parol evidence (Corbin and Restatement approach)-- must hear extrinsic evidence to see if writing is "reasonably susceptible" to different interpretations If so, weigh parol evidence to see if relevant (exclude that which varies/ contradicts writing) Evidence that P's interpretation was "reasonable" and, thus, admissible. Substantial bad faith claim Release drafted in vague language Release classified as "uninsured motorist coverage" Size of claim suggests he would not trade for $15,000 release
Receiving liquidated damages releases both
Parties from a contract
voidable contract
Parties may elect to avoid their contractual obligations by raising one or more defenses. Under the influence of drugs or alcohol, infancy, mental illness, disability.
Letter of Intent as 'binding parties to negotiate in good faith'
Party's execution of LOI binds parties to negotiate in good faith attempt to reach agreement on k, but parties reserve right to terminate negotiations if unsuccessful possible to have a breach but middle ground approach reflects the actual intention of the parties: not completely free (to withdraw for any reason whatsoever) nor completely bound (should they later be unable to agree.)
claim cannot lead to the arrest of the vessel
Per the arrest convention of 1952, if a claim arises out of reasons not specifically listed under article one as a maritime claim, then...
Default is failing to
Perform in a contract
Notice Requirement: Do you have to notify offeror of performance?
Performance creates a unilateral k. 3 views: (1) MINORITY notice not required unless requested by the offer (2) MAJORTY [RSTS] No notice unless required BUT offeror's obligation will come to an end 'be discharged' if notice of performance is not given within a reasonable time in a limited set of circumstances... If offeree has reason to know that offeror has no adequate means of learning of performance with reasonable promptness, the duty of offeror is discharged unless offeree exercises due diligence to notify the offeror or the offeror learns of performance within reasonable time or the offeror indicates notice not necessary (3) MINORITY same as (2) but if notice is required there is no contract until notice of performance is sent.
The four categories of leasehold estates are: estate for years, tenancy at sufferance, tenancy at will and ________.
Periodic tenancy
EU General Data Protection Regulation (GDPR)
Personal data act for europe
"operation car wash" Inflated prices of construction projects and used money for kickbacks to politicians, also money laundered
Petrobas case
State pilotage law
Pilotage can be controlled by State law even though it preempts Federal maritime jurisdiction and uniformity of general maritime law. At least 23 states have laws requiring vessels entering or departing their ports to take on board a local pilot or to pay some sort of penalty
Pilotage fundamentals
Pilots control the ships and guide them into ports, bays, inlets, rivers and harbors. States usually have jurisdiction over pilot regulations. Pilots have to be licensed. States are allowed to require that local pilots steer all boats into port. ' A person taken on board at a particular place for the purposes of conducting a ship through a river, road, or channel or from or into port. 2. A pilot is a compulsory pilot only where the requirement is imposed by law.
Lifeboat station
Place assigned to crew and passengers where they must gather before being ordered into the lifeboats
Assembly station
Place on deck, in mess rooms, etc., assigned to crew and passengers where they have to meet according to the muster list when the corresponding alarm is released or announcement made
... is the right of the government to regulate and control the way land is used.
Police power
Enacting zoning ordinance is an example of
Police power
________ is the right of the government to regulate and control the way land is used.
Police power
Battle of the Forms UCC
Policy: UCC attempts to prevent a party from slipping out of the contract as she was frequently able to do using the mirror image rule in common law. 2 Goals: (1) determine whether k is formed AND (2) if k formed, what terms of k there are.
Must there be actual hardship? [SPLIT]
Posner/some JDs: the fat that the party agreed to settlement because of a desperate need of cash could not be the basis for duress unless the other side had caused the financial hardship Few courts: have held (sometimes implicitly) that it is enough that one party takes advantage of the other's dire circumstances without having caused the hardship
These court judgments are referred to as __________ and used as guidance in common law.
Precedents
Regulation organizations (ex. Ship owners assn, BIMCO), companies, and class societies
Private regulators include
________ is evidence an individual has of his or her right to possess land.
Probate
What does the OECD model treaty, article 8(1) state?
Profits from the operation of ships or aircraft in international traffic shall be taxable only in the Contracting State in which the place of effective management of the enterprise is situated.
Intra-Family Promise
Promissory estoppel may be used to enforce if the promise is reasonably and detrimentally relied upon Ordinarily, promises made by one family member to another are unenforceable, either because the parties lack an intent to contract and/ or because there is no consideration since the promise is not bargained-for. The promissory estoppel allows the promisee some legal remedy if he relies on the promise to his detriment. However, most courts dont give a full contractual measure of damages (i.e., "lost profits") but merely recompense out-of-pocket losses.
A ________ is the borrower's unconditional promise to repay the lender.
Promissory note
The broker-lawyer committee drafts but does not
Promulgate forms for mandatory use by licensees
What types of salvage are there?
Property salvage, life salvage and treasure salvage
- Quick - Cheap - Amicable solution - Both parties win - Easier to maintain commercial Relations
Pros of mediation
The Real Estate Recovery Trust Account is used to...
Protect aggrieved individuals who suffer a monetary loss due to illegals acts of license holders.
How is "pure" salvage different from contract salvage?
Pure salvage the salvor is a volunteer while contract salvage parties have entered a contract for the salvage efforts
To obtain a security for the claim, to prepare judicial sale of the vessel, to gain jurisdiction in the country of arrest
Purposes of arresting a ship to enforce a claim
Consideration versus condition
Rule: The bargain theory of consideration does not actually require that parties bargain over terms. What is required [for consideration to exist] is that the promise and the consideration be in 'the relation of reciprocal conventional inducement, each for the other.' Consideration must be mutual (quid pro quo): the promise must induce the detriment and the detriment must induce the promise Conditioned gift: promisor had no particular interest in the detriment of the promise. Even though the promisee suffered a detriment induced by the promise, the purpose of the promisor was not to have the promisee suffer the detriment because she did not seek that detriment in exchange for her promise (Tramp)
material breach
RST (2d) §237 treats "material breach" as in effect the nonoccurrence of a (constructive) condition to the other party's duty to render any performance not yet due, and performance by that party may therefore be suspended until the breach is cured. The materiality of a breach is to be decided in light of the factors listed in RST (2d) §241. a partial breach produces a right to damages only for the actual harm that has resulted to date, not for future harm
total breach
RST (2d) §242 "total breach" has the effect of discharging the other party's remaining duties of performance and permitting that party to proceed immediately to pursue a claim for damages from total breach (§236(1)). Indicates that the totality of a breach will depend on the existence of an uncured material breach, based on the factors listed in §241, plus two other considerations: (1) the extent to which further delay appears likely to prevent or hinder the making of substitute arrangements by the nonbreaching party, and (2) the degree of importance that the terms of the agreement attach to performance without delay. RST (2d) §243(4), after a total breach, the injured party is entitled to recover not only actual damages accrued as a result of the breach but also any future damages that will reasonably flow from the breach;
Reasonable Expectations Doctrine (CJ Fertilizer Burglar Case)
RST § 211 Test: Buyers entering into Adhesion Ks are not bound to unknown terms which are beyond the range of reasonable expectations. Non-dickered terms must frustrate reasonable expectations of adhering party. They must be: Bizzarre or oppressive, Eviscerates the dickered terms, OR Eliminates dominant purpose of K
Actual inducement of the contract by threat
RST §175: improper threat must induce the making of the contract meaning that the threat must substantially contribute to the manifestation of assent
A wrongful or improper threat
RST §176: defines threats to commit a crime or tort and threats of criminal prosecution Threats to engage in litigation are not per se improper, but can be if the circumstances show that the threat was made in bad faith Totem uses "Wrongful" while RST uses "improper"- term doesn't matter- need not be illegal
Exception to SOF- Promissory Estoppel
RST1 § 178 reliance on promise of a writing. 2 distinct situations in which enforcement of an oral contract could be based on an estoppel to assert the statute of frauds. • p detrimentally relied on the d's misrepresentation that a writing had been created that would comply with the statute • p relied on a promise by the d to make such a memorandum. Recognized by RST §139: reliance on oral promises -says that application of this doctrine depends on # of factors including the adequacy of other remedies, whether the reliance was substantial, reasonable and foreseeable. • Even if exception is recognized does NOT mean that court is going to enforce the contract. §139 directs courts to consider whether other remedies like restitution might be available in the circumstances. EXAMPLE: where p has rendered partial performance to the d pursuant to a contract unenforceable because of SOF, court will ordinarily grant d restitution for the reasonable value of partial performance.
Charming Betsy Principle
Read the treaty in a manner so that it does not violate TNL. And then if it can't be reconciled, the First In Time Rule applies. CHECKc
Operational
Ready for immediate use
The statute of guards requieres
Real estate contracts to be in writing to be enforceable
UCC §2309
Reasonable notification should be the minimum amount of protection afforded to either party upon the termination of an ongoing sales agreement. [history]When such reasonable notice is not given, a cause of action for damages may exist. UNLESS EXPRESSLY STATED UPON HAPPENING OF AN EVENT [surrogate notice]
What is the color buoy where there are two channels and one is preferred?
Red and green and the preferred channel is on top
What is the marking on a buoy that is a safe water boy
Red and white
Registered Vs. Enrolled vessels
Registered vessels = foreign vessels coming into state ports, under state/local control, compulsory pilot 1. Enrolled vessels are domestic, US vessels traveling between US ports, federal control noncompulsory pilot
Deep Sea mining
Regulated under UNCLOS and intl seabed authority to prevent release of harmful substances into water
UCC2-602(1): Rejection
Rejection must be within a reasonable time after delivery or tender. Ineffective unless buyer seasonably notifies the seller
Personal property that is to
Remain with the real property is addressed in an addendum
claimant must establish right to levy execution (an undisputed claim or judgment)
Requirements to apply for enforcement proceedings
Mirror Image Rule
Requires that acceptance be on precisely the same terms as the offer
The SAFE Act mandated the term ________.
Residential Mortgage Loan Originator
This gives the tenant the right to purchase the leased property by matching or bettering any offer before the property will be sold to someone else.
Right of First Refusal.
Subcharters
Right of the charterer to subchapter a vessel depends on the wording of the charter party If allowed often state that it does not relieve the head charterer of its obligations to the vessel owner under the charter party
Rule 18
Right-of-way hierarchy
_______ are the rights that an owner has to use water from a river or a stream on or next to a property.
Riparian rights
What is the gar model?
Risk assessment including the assessment of supervision planning team selection team fitness and environment.
Hatchrails
Ropes supported by stanchions around an open hatch to prevent persons from falling into a hold
What are two example of geographical markets?
Roscoff and Holyhead
Defendant violated a federal statue or regulation. The defendant must prove that was not a cause of the accident or could not have been a cause of the accident.
Rule of the case of Pennsylvania
Requirements for LHWCA coverage
SITUS: injury must be a result of something on navigable waters, including including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel STATUS: Employee = "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker." Focus for status is on occupation, not location. what's the nature of their work? Persons involved in any portion of moving cargo from ship to land transportation are engaged in maritime employment. The "status" requirement of the LHWCA extends only to those who are engaged in the loading, unloading, construction, or repair of ships.
Jake (Seller) and Sarah (Buyer) entered into a contract for the sale of Jake's personal residence. In the contract, Jake promised to deliver a seller's disclosure of property condition within 5 days of the effective date of the contract. Jake never delivered the disclosure as promised. Which of the following statements is true?
Sarah has the right to terminate the contract and receive a refund of earnest money prior to closing
Jake (Seller) and Sarah (Buyer) entered into a contract for the sale of Jake's personal residence. In the contract, Jake promised to deliver a seller's disclosure of property condition within 5 days of the effective date of the contract. Jake never delivered the disclosure as promised. Which of the following statements is true?
Sarah has the right to terminate the contract and receive a refund of earnest money prior to closing (Page 24)
Valid Contract
Satisfies the law's requirements
...comes from the theory of supply and demand
Scarcity
Economic characteristics include...
Scarcity, Modifications, Fixity, Situs
Article 38, ICJ Statute
Scholarly writing and court cases
Imposes criminal liability on the owner or captain of a vessel involved in loss of life, through fraud, neglect, connivance, misconduct, or violation of law. This is a criminal statute which has penalties based merely on negligence, rather than criminal intent.
Seaman's Manslaughter Act 18 U.S.C. § 1115
This is a criminal statute which has penalties based merely on negligence, rather than criminal intent.
Seaman's Manslaughter Act 18 U.S.C. § 1115
Who can bring a USW claim?
Seamen River pilots Not available to LSmen Once, the unseaworthiness remedy was extended to longshoremen - they were known as Sieracki seamen. But this is not the case today. 1972 amendment to LHWCA outlawed the doctrine of unseaworthiness for longshoreman. Also, shipowner cannot now sue the longshoreman's stevedore company for breach of unworkmanlike conduct Birnberg drew mad diagrams of this Punitive damages available for USW
Fair Labor Standards Act
Seamen on American vessels must be paid the federal minimum wage
Exempt from both minimum wage and overtime pay requirements of the Act
Seamen on foreign flag vessels
SAR
Search and Rescue
Make water (to)
Seawater flowing into the vessel due to hull damage, or hatches awash and not properly closed
What are the legal risks when operating in the polar areas?
Seaworthiness qualifications. Chartering issues Insurance issues
Chandris
Seeks to define "employment related connection to the vessel" Seaman status is a jury question that is determined based on totality of circumstances.
Elements for Express Warranty Under UCC
Seller may provide basis for express warranty by making a representation about the goods, giving a description, or displaying a sample or model Reliance (1) Pre-code law: buyer had to prove reliance (2) Unclear if reliance is required under the code UCC §2-313 an affirmation, promise, description, sample, or model will amount to an express warranty if it is part of the basis of the bargain but does not define what basis of bargain means Comment 3: once seller has made an affirmation of fact about the goods- no particular reliance on such statements needs to be shown in order to put them in agreement
Implied warranty of merchantability
Seller warrants that the goods are fit for the ordinary purposes for which such goods are used; this is implied by law
Implied warranty of fitness for a particular purpose
Seller warrants that the goods delivered to the buyer are reasonably fit for the stated purpose; applies where the buyer relies on the seller's skills to provide goods for a specific purpose; this is implied by law
A seller of residential property must provide what type of document to a buyer?
Seller's Disclosure Notice
In bilateral contract, which parties are obligated to perform the stated terms?
Selling and buying parties must perform.
In a unilateral contract, which party is obligated to perform the stated terms?
Selling party.
certain transactions carried out during a particular time prior to liquidation may be set aside if they were to benefit certain creditors at the expense of the other
Setting aside transactions
Things Insufficient for Consideration
Sham Promises Nominal Consideration Mere recital of consideration not enough Forbearance of an illegal activity (drug use) Reliance alone is not consideration Promises under seal Moral Consideration Past Consideration is No Consideration Pre-existing duty Illusory Promise
Veering (of winds)
Shifting of wind direction in a manner, in time; opposite of backing
UCC SOF- Promissory Estoppel Exception
Should §139 RST2 be applicable in the UCC for sale of goods? Majority Rule: YES by virtue of UCC1-103(b) Minority Rule: the exceptions specifically listed in §2201 preclude promissory estoppel argument and any other exceptions from being applicable. Promissory Estoppel applies notwithstanding SF (Restatement §139: worth looking up) Move to Alaska was significant injustice Enforcement of such cases usually turns on the extent of the reliance Promise of written K is powerful § 139: When D can pay P for partial performance or reliance, this remedy is preferred.
Sieracki Seamen
Sieracki extended USW to LSmen "doing a seaman's work and incurring seaman's hazards" Now they only get LHWCA coverage
If a seller decides not to sell after a contract has already been
Signed by the buyer may institute a suit for specific performance
Listing agreements andbuyer agency agreements ae
Similar because they are both employment contracts
Offeree Reliance on Unaccepted Offer
Situation: no option contract. Nonetheless, offeree delays accepting, in the belief that the offeror will not revoke his offer, and in the mean-time takes various actions in reliance on her expectation that offer will remain open. Old, Minority Rule: Promissory estoppel claim must be based on a clear and definite promise Majority Rule Pop's Cones/Hoffman Case [low bargain power]: a promise or offer will be sufficient for a promissory estoppel claim without any heightened requirements of proof.
...refers to the location of the property or land from an economic, not geographic, view point.
Situs
Coverage under the Longshore Act is a two-tiered inquiry focusing
Situs and Status
Requirements for coverage cont.
Situs without status = ok RULE - An employee injured on "actual" navigable waters of the US, as distinguished from the expanded situs under the 1972 amendment, is not bound to show that his employment bears a direct and substantial relationship to navigation or commerce. Status without situs = not enough RULE - P must be on a maritime situs at the time of injury to qualify for LHWCA
1. Define goals and strategies 2. identify different risks 3. evaluate different risks 4. Define response 5. develop action plans 6. develop action plan 7. introduce controls and communication
Six Step approach to risk management
Information needed for a listing agreement generally includes
Size, type, age, construction of the house and required disclosures regarding property conditions
Facilitation Payments
Smaller payments, technically can be legal, many companies try to prohibit it
Reasonable Notice Rule [question of Fact] Factors to Consider ...
Sofa Gallery v. Stratford (1989) Time needed to recoup investment Close out of product line Minimize losses UCC § 2-309 comment 8 Whether there has been sufficient or reasonable time to find a substitute arrangement Retail Associates v. Macy's (2001) Usage and trade Course of dealing
A(n) ________ is a business venture that is owned by one individual.
Sole proprietorship
Writing
Some agreements must be in writing and signed by both parties in order for the contract to be enforceable.
Size type and age are
Some items of information needed for a listing agreemtn
Capacity
Some people have no, or a limited ability, to create binding contracts. -minors - U18 -unsound mind -directors acting ultra vires
Offeror
Someone who makes the offer
LHWCA v. JA
Sorta-Kinda Mutually Exclusive Being a LS type of job-title doesn't automatically exclude you from JASM status Acceptance of LHWCA benefits is not an implied waiver of a Jones Act claim. Double recovery is excluded, but its possible to be eligible under both
- The Danish Act - European Patent Convention - Paris Convention
Sources of patent law
The "Lotus" presumption
States have jurisdiction over all civil and criminal cases occurring within their own territories, and their jurisdiction may extend to certain cases occurring outside their territories as long as this jurisdiction does not exceed limits imposed by international law.
_______ estates are created by statute or law.
Statutory
What is the body of laws and regulations enacted by federal and state legislatures?
Statutory Law
what prompted in conclusion of federal power over admiralty in the law constitution?
Statutory Maritime Law- the Constitution gives Congress the power to pass Maritime statutory law.
Warranty of Workmanlike Conduct
Stevedore is not liable to ship owner for unworkmanlike conduct resulting in injury to the longshoreman. Per 1972 amendments to LHWCA, just like shipowner is not liable to longshoreman for unseaworthiness. Ended the triangle
What does a falling barometer indicate
Storm or wet weather is approaching
Drennan & RST2§87 [sub new rule]
Sub bound to do work at the price quoted to general contractor, but the general contractor is not bound to award job to sub even if GC gets job.
These rights include oil, gas and other minerals, and are commonly conveyed through a lease, mineral deed or by reservation.
Subsurface Rights
When a joint tenant passes away the deceased property transfers to
Surviving joint tenant
Leeward
The general direction to which the wind blows; opposite of windward
Scene
The area or location where the event, e.g. an accident has happened
Time Charter
The carrying capacity of vessel is leased to charterer for the time period stated in the charter party allowing for unlimited voyages during that time. Owner provides; crew, equips and pays normal operating expenses
Art 101, TFEU on Collusive Behavior?
The following shall be prohibited as incompatible with the internal market: directly or indirectly fix purchase or selling prices or any other trading conditions; (b) limit or control production, markets, technical development, or investment; (c) share markets or sources of supply; (d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
What are the angles required for each light on the boat?
The front left and front right lights must cover 112.5°.
Windward
The general direction from which the wind blows; opposite of leeward
Manufactured housing in Texas can be considered real property if
The owner chooses to treat it as such
Company
The owner of the ship or any other organization or person such as the manager or the bareboat charterer, who has assumed the responsibility for operation of the ship from the shipowner.
Voyage Charter
The owner of the vessel agrees to carry cargo from one port to another on a particular voyage. The owner provides everything.
Consent
The parties must enter the contract of their own free will. There can be no duress or undue influence.
Intention
The parties must have intended the agreement to be a binding contract. With social agreements the assumption is that there was no intention. With business agreements the assumption is that there was intention.
Was the party negligence
The party that is suing you must prove four things - if you don't have all these things you are not going to recover
Track
The path followed, or to be followed, between one position and another
Offeror
The person who makes an contractual offer
Completing a contract form for real property has been prepare by and requiere by
The property owner is NOT considered "practicing law"
What are companies and why do we have them?
The purpose is to isolate risk and cash flow from a physical person because there are tax advantages, operational flow, cooperation and improve transparency. More accessibility to finance such as: debt finance and equity finance.
After a contract has been signed by both parties but before the title has passed to the buyer, the home is destroyed in a fire.
The seller will bear the loss
Seaworthiness
The ship is able to provide the task that it was hired for safely
USW Fundamentals
The ship must be reasonably fit to fulfill its intended purpose (including the crew). Seaworthiness is a jury determination. Actions for unseaworthiness can be brought in rem or in personam. Strict liability.
Signature: R2, § 134
The signature to a memorandum may be any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of the signor. be prepared to argue what constitutes "sign": how far can I extend. sign doesn't mean "sign," but "authenticate the substance of the writing"
Why could the P3 be a good example of ideas with competition regulation?
There is an effect on trade between member states because speaking nationally. Could have been abuse if the three had decided on a specific price and said here this is what we offer and it was more than what would be reasonable. Then would need to look at relevant market and the market share.
Concurrent JX and DOHSA
There is concurrent jx for wrongful death claims under DOHSA, in that state courts have the right to entertain causes of action and provide wrongful death remedies both for accidents occurring on state territorial waters and, under DOHSA, for accidents occurring on the high seas. But DOHSA remedies preempt state law wrongful death statutes where DOSHA applies. Basically state courts can hear the claims but DOHSA preempts equivalent state statutes No jury trial in DOSHA action, generally speaking. But if P can find something to sue for with common law type remedies, might get a jury trial for everything. When claims carrying a right to jury trial are joined with admiralty claims and arise out of the same transaction or occurrence, all claims may be tried to a jury.
No Assumption of Risk in Maritime Law
There is no assumption of risk defense in maritime law - in the context of a Jones Act seaman's injury, a longshoreman's injury, in the context of a recreational boating accident involving personal injury, or in the context of a commercial collision.
Collision Damages
Total loss Damages include (1) market value of vessel at time of loss (plus pending freight) and (2) pollution cleanup, salvage, wreck removal, and other incidental costs proximately resulting from the casualty. Damage other than total loss a. Damages include (1) cost of repairs (or diminution of value if no repairs are made), (2) detention, i.e. loss of earning for the period the vessel is out of service, and (3) incidental costs such as wharfage, pilotage, and salvage costs. Damages due to negligence of a third party RULE - Where a vessel under time charter is damaged by the negligence of a third person, the owner may recover any damages sustained through loss of charter hire. The charterer ordinarily may not recover against the third party for loss of use or profits caused by damage to the vessel.
void contract
Totally without any legal effect from the beginning and cannot be enforced by either party. (K to commit a crime or illegal activity)
What is the bridal line used for?
Towing
Fee sample ownership, shared walls, and common areas are similar to
Town-house ownership
Fee simple, shared walls and a fractional interest in common areas are all characteristics of
Town-house ownership
Jurisdiciton
Vessel arrest can provide a basis for ____________ where the ship is arrested (depending on national law)
Vessel in Navigation
Vessel has to be in navigation at time of death for JA If an employee is engaged in the overhaul of a boat or boats that are not in navigation because they've been "laid up for the winter", the employee is not a seaman, even if he expects to operate the boat later, b/c the boat is not "in navigation." In determining whether ship under repair is still in navigation, for purposes of Jones Act, court should look at extent and nature of repair operations and who controls them. 3 yrs in dry dock = not in navigation Vessels undergoing repairs or spending a relatively short period of time in drydock are still considered to be "in navigation" whereas ships being transformed through "major" overhauls or renovations are not.
What are the three components of a boating under the influence investigation?
Vessel in motion, personal contact and observations of the driver, and the pre-arrest screening sobriety tests
What is a "vessel?"
Vessel traditionally refers to structures designed or utilized for transportation of passengers, cargo or equipment from place to place across navigable waters." (1) the purpose for which the craft is constructed and (2) the business in which it is engaged If the owner constructs or assembles a craft for the purpose of transporting passengers, cargo, or equipment across navigable waters and the craft is engaged in that service, that structure is a vessel. where the use of the craft in transporting passengers, cargo, or equipment was an important part of the business in which the craft was engaged, the craft is a vessel, even if it also served as a work platform. But if that traditional maritime function is merely incidental to its main purpose (work platform), no go.
Sailboat right-of-way, Wind on different sides?
Vessel with wind over port
Negligence per se for violation of statutory duty
Violation of a safety statute by a Jones Act employer constitutes negligence per se if the violation contributes to the injury, even if the injury was not an injury the statute was designed to prevent.
A contract does not state in the consideration is considered
Void
If there is no capacity, the contract is..
Void
If there is partial capacity, the contact is...
Voidable
Mortgage liens are
Voluntary liens
Safety Management System
What does SMS means?
Stevedore's Lien
When a longshoreman is injured due to the negligence of another he does not need to choose either to receive benefits from his employer under the LHWCA or to sue the negligent third party. He may pursue both remedies. But... Assignment: (1) From the time he accepts an award of compensation under the LHWCA, the employee has SIX MONTHS to commence a third party action against a third party tortfeasor. (2) If he does not do so within the six month period, the acceptance of the compensation award operates as an ASSIGNMENT TO THE EMPLOYER of all rights of the injured longshoreman to recover damages from the third part. c. (3) If employer fails to bring the action within 90 DAYS of the assignment, he loses the right to bring any such action, and it reverts to the injured employee.
Executed Contract
When all parties to the contract have fulfilled their obligations under the contract
A breach of contract is NOT
When an agent who has a listing cannot produce a ready, willing and able buyer
"In the course of employment"
When an employee subject to the call of duty is injured through the fault of others performing, under contract, operational activities of his employer (i.e., performing a vital part of the ship's total operations), such others are 'agents' of the employer within the meaning of FELA, and hence employer is liable under the Jones Act for those agents' negligence.
Fraudulent or Material Misrepresentation Makes K Unenforceable
When assent is induced by a fraudulent or material misrepresentation upon which recipient is justified in relying, the K is voidable. EXCEPTION: Unless the other party to transaction in good faith and w/o reason to know of misrep either give a value or relies materially on transaction. But if no reliance, we're going to rescind negligent/innocent misrepresentation here.
UCC §2-610.
When either party repudiates the contractwith respect to a performance not yet due the loss of which will substantially impair the value of the contract to the other, the aggrieved party may (a) for a commercially reasonable time await performance by the repudiating party; or (b) resort to any remedy for breach (Section 2-703 or Section 2-711), even though he has notified the repudiating party that he would await the latter's performance and has urged retraction; and (c) in either case suspend his own performance or proceed in accordance with the provisions of this Article on the seller's right to identify goods to the contract notwithstanding breach or to salvage unfinished goods (Section 2-704).
Breach of Contract
When one party of the agreed-upon contract fails to complete their duties the other party can seek legal recovery of losses.
Barter
When parties exchange goods for goods
Off air
When the transmissions of a radio station etc., have broken down, been switched off or suspended
What is the definition of an accident on the water?
When there's damage, when there is injury, when there is a man overboard,
Allocation of fault
When two or more parties have contributed by their fault to cause property damage in a maritime collision or stranding, liability for such damage is to be allocated among the parties proportionately to the comparative degree of their fault.
insolvent
When you are unable to meet obligations as they fall due you are considered
burden of proof
Where a barge sinks in calm water for no immediately ascertainable cause, in the absence of proof that the barge was improperly handled, the vessel's sinking is presumed to be a direct result of her unseaworthiness.
ship to shore allision
Where a moving vessel hits a stationary object, the moving vessel is presumed to be at fault.
Course of Performance
Where the contract for sale involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any court of performance accepted or acquiesced in without objection shall be relevant to determining the meaning of the agreement"
All officers and crew
Who can contact the Designated Person?
All officers and crew
Who can suggest changes to the ISM?
Debtor
Who controls the company during reconstruction but must get any major transactions approved
- can mean difference between success and failure in a case - can be multiple jurisdictions in which case can be heard
Why is jurisdiction important
To improve safety
Why is the ISM-Code mandatory?
Defenses to M&C
Willful misconduct or fraudulent concealment of a pre-existing condition is a defense. But, if a seaman disobeys orders and he is injured he still entitled to M+C, unless his conduct was flagrant.
Name a case for Commercial pragmatism vs doctrinal purity
Williams v Roffey Bros & Nicholls
What is a small craft advisory, flag?
Winds 21 to 33 knots, one flag
What is a gale advisory
Winds 34 to 47 knots, two flags
Right-of way sailboat, wind on the same side?
Windward
applications of express warranties
Written or oral express warranty given by the seller concerning the quality or nature of the goods. EX: this car will go 25 mph
If a seaman is injured while on shore leave from the vessel, can he invoke admiralty jurisdiction under the Jones Act?
Yes, but not that this is not the same as days off.
Does the Danish companies act apply for both A/S and Aps?
Yes.
If the seller has never occupied the property, do they still have to fill out the disclosure? Yes, or no?
Yes.
intoxication
[RST §16]- a contract is voidable if a party has reason to know that because of intoxication the other person is unable to either understand the transaction or act in a reasonable manner (Lucy v. Zehmer)
Mistake
[Traditional] (EX: barren cow, soda can, painting hypo) if the mistake goes to the essence of the contract rescission is allowed. [New Standard] when the parties have made a mistake that goes to the essence of a K, a case-by-case analysis must be done. Rescission = equitable remedy which is only granted in discretion by the court (Messerly). Who is the best cost avoider? Risk Allocation Is allotted to them via agreement He is aware at the time of limited knowledge but treats it as sufficient Court allocates because of discretion
Mutual Assent
[did they intend for their agreement to have legal, binding effect]: for a contract to be formed, the parties must both intend to contract, and they must agree on at least the main terms of the deal.
Implied in fact
[true k]: *When a person requests another to perform services for him or to transfer property to him, the law will infer a bargain to pay. [bargained for exchange]
Regulations
_______ means the regulations annexed to the Convention; reference to such Regulation shall be taken to mean references to those Regulations as modified by these rules.
Qualified Acceptance
a 'varying acceptance' = counter-offer Comment a RST2 §59: BUT a definite and seasonable expression of acceptance is operative despite the statement of additional or different terms if the acceptance is not made to depend on assent to additional or different terms. See §61. The additional or different terms are then to be construed as proposals for modification of the contract. See UCC §2207(2)
public policy
a K will not be enforced if it differs from basic principles forming the foundation of public laws, even though the acts contemplated might not be expressly prohibited by a law. Non-compete: restrictive covenants not to compete will be strictly construed for reasonableness. Will be invalid unless it protects some legit interest beyond employers desire to protect itself from competition. Severance clauses: when the severability of the agreement is not evidence from the K itself, the court cannot create a new agreement for the parties to uphold the K Blue pencil reduction: court can use mechanical approach can blue pencil or line out an objectionable term and the remainder will be enforced. (RST §184: endorse a more flexible method allowing reduction of the effect or scope of a clause to make it reasonable Comment b: court's discretion to reduce a covenant should be exercised only when no evidence of overreaching or bad faith by promisee)
Browse-wrap
a browsewrap term is set out on a website and is available to be read by the user of the website before submitting her order for the service or product purchased. However, a browsewrap term is different from a clickwrap term in that the user does not have to indicate assent to it by affirmative conduct, such as clicking on an "I accept" button. Because the user does not have to take deliberate action to manifest assent to the term, the conclusion that the user did assent to the term is not as compelling as it is with a clickwrap term, and issues of conspicuousness and notice may arise,
Restatement of Restitution § 2
a person who officiously confers a benefit upon another is not entitled to restitution.
Additional Exception to Condition
conditions that are merely technical general excused under theories of adverse interpretation waiver prevention and avoidance of forfeiture
Customs officials and Coast Guard can stop and board U.S. flagged or registered vessels on the high seas and even within the jurisdiction of another Country for the purpose of
conducting a documentation and safety inspection.
nonbinding for future disputes, could end up a waste of time
cons of mediation
Conscious Ignorance [RST §154(b)]
conscious ignorance of all relevant facts before entering into agreement = assumption of risk EX: sold million $ painting for $80 bc didn't get it appraised—too bad—the sellers were aware of the possibility the estate might include fine art but failed to employ an expert
A "survival action" under the Jones Act is damages for what?
conscious pain and suffering victim underwent before death
The five essential elements of a valid and enforceable contract are, competent parties, offer and acceptance, legal purpose, in writing and ________.
consideration
The party who receives the cargo is called what?
consignee
At what point does a seaman stop receiving maintenance and cure?
continue until the seaman reaches the point of maximum recovery
two things innocent passage has to be
continuous and expeditious
. A(n) ________ is an agreement between two or more parties to do something or to refrain from doing something.
contract
A(n) __________ is an agreement between two or more parties to do something or to refrain from doing something.
contract
A(n) __________ is a type of seller financing wherein the owner retains title to the property while the purchaser takes possession of the premises and pays on the principal.
contract for deed
Contract for Repair of a Vessel Explained
contracts for the repair of a ship are maritime contracts, regardless of whether the repairs are made while the ship is afloat, while in dry dock, or while hauled upon land. If it is dry docked it is only out of the water temporarily so it is still related to maritime activity (unless dry docked for 2 years while getting complete retrofit). When vessel is temporarily out of the water, it retains its character as a vessel in navigation. But if it's such major repairs, under the dead ship doctrine, that it loses its character as a vessel, then it may not be a ship anymore and admiralty jx may not apply. Fact-based determination.
Unconscionability
contracts in which parties are in an unequal bargaining position, and there is an absence of meaningful choice for one party and unreasonably favorable terms for the other. Most courts require showing of procedural and substantive. Procedural: Whether there is a meaningful choice: determined by consideration of all the surrounding circumstances of the transaction- defect in bargaining process Substantive: Reasonableness or fairness: primary concern is with terms of K considered in circumstances when K was made (overly harsh or one sided results) Corbin thinks test is whether "the terms are so extreme as to appear unconscionable according to the mores and business practices of the time and place"
OCSLA
controls on "the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures" erected thereon. a. provides a nonmaritime remedy. Within area covered by OCSLA, federal law controls but law of the adjacent State is adopted as surrogate federal law to the extent that it is not inconsistent with applicable federal laws or regulations.
Any change to an offer is considered a _______.
counteroffer
what happens when TS's overlap
countries draw lines in a way that benefits all countries
freezing injunction
court order aimed at securing funds for the satisfaction of a legal right by preventing disposal of assets
classical rule of requirement/output contracts
deemed illusory because the buyer could refrain from having requirements. Claimed invalid because of lack mutuality because the seller was bound but the buyer was not. And invalid because the quantity the buyer was bound by was indefinite and vague.
what is in the law of the sea because of our cover story for looking for the sunken soviet submarine
deep sea mining
Maritime Contract
determining whether a contract is admiralty depends on the nature and subject matter of the contract (having reference to marine service or marine transactions). Must have direct and proximate link with operation of ship, navigation, its management afloat, or to commerce or navigation on navigable waters, or to transportation by sea or to maritime employment. K's for construction or sale of ships are NOT Mari K's Oral k's are valid, no SoF in maritime law
Real property conveyed by will is called a ________.
devise
Law may terminate an offer prior to acceptance if either party...
dies or declares for bankruptcy.
A lease with a definite beginning date and definite ending date is a(n) ______.
estate for years
§ 2-209(2) and (3) in conjunction with (4)
even though "an attempt at modification or rescission doesn't satisfy the requirements of (2) or (3), it can operate as a waiver"
Good Faith UCC §1-304
every contract or duty within its scope imposes an obligation of good faith in its performance and enforcement
why we want to push baseline out as far as possible
every foot we get on land we get in ocean
why baseline is most important line
every other division of ocean is measured out from it
archipelagic water
everything inside the line drawn out from a country's islands
Customary International Law
evidence of a general practice accepted as law
Bilateral contract
exchange of mutual promises. Each party is promisor and promisee
An offer by a prospective purchaser can be terminated prior to acceptance due to:
expiration of a specified time period, bankruptcy of either party, a change in the law that renders the contract illegal
interpretation
explanation of something not obvious or not meaning the same thing to everyone
UCC §2306 (requirement/output contracts)
explicitly validates requirements and outputs party who determines quantity must conduct his business is in good faith and according to commercial standards of fair dealing in the trade. (1) Buyer must deal exclusively with seller. [buyer promises to buy all of his requirements from that seller] (2) On requirements k: buyer must make 'best effort' to promote sale of goods (3) Output k: seller cannot simply decide to stop selling the item and must make best efforts to supply the good Consideration: This promise + good faith = consideration
In the economic zone there are sovereign rights over
exploration, exploitation, conservation, natural resources, oil, gas, fish
A Himalaya Clause in a Bill of Lading serves what function?
extends applicable law to servants or agents of the carrier, extends limitations of liability to these parties
in the us where does marine jurisdiction extend
extends to and includes cases of injury or damage, to person or property, caused by a vessel on navigable waters, even though the injury or damage is done or consummated on land
What is the overall function of commercial law?
facilitating commerce, validating legitimate business parties and meeting expectation of the business community
Factors for Letter of Intent Enforceability / General Enforceability in Indefiniteness
factors to consider: Agreement of a type usually put into writing Level of detail Amount of money Formal agreement necessary for full expression of covenant Formal document is contemplated When and why negotiations were abandoned Extent of assurances given Other party's reliance factors favoring enforceability: Timing was tight P was told he had the K Language of the Letter of Intent
What is the definition of negligence?
failing to exercise the care that a reasonable person would in the same circumstance, making of mistake or error in calculation
common law SOF
failure to comply with statute of frauds, even if supported by consideration, will make a contract unenforceable.
A seller is going to continue to occupy a property for two days after closing. In this case, the parties should use the Buyer's Temporary Residential Lease form.
false
archipelagic sea lanes passage
in exchange for drawing around your islands, you have to set up sea lanes so that everyone can come through
Reported
in navigational warnings: Position of object unconfirmed
RST2§26(b) on advertisements
in newspapers, magazines, etc. are not offers but merely invitations for an offer. To make an offer by advertisement there must ordinarily be some language of commitment or some invitation to take action without further communication.
A suit in admiralty may be filed
in personam or in rem
Contracts for conveyance of ownership in real estate must be ______ to be enforceable.
in writing
A broker should only take net listings when the principal _______, and when the principal appears to be familiar with current market values of real property.
insists
The best way to describe the structure of Lloyd's of London as it is known today is a(n)?
insurance market
all national water
internal, territorial sea, archipelagic waters
archipelagic sea lane passages are the same as
international straits
RST §200
interpretation is ascertainment of meaning
__________ occurs when an individual dies, leaving no valid will.
intestate succession
Purchase Orders (UCC)
it is most often buyers purchase order, submitted in response to the quotation that constitutes an offer
The 1851 Limitation of Liability Act in the U.S. is a procedural law. What does that mean?
it spells out how this type of suit must proceed in court
country that keeps fishing in peoples EEZ
japan
Can look to any defender to look for liability (can sue whoever he wants to ex. 10 % guy)
joint in several liability in maritime law or solidary liability
For a vessel to be "in navigation" what is required?
must be engaged as an instrument of commerce and transportation on navigable waters
are archipelagic waters international or national
national
Is there suspension of transit passage in an international strait?
no
are surveys or research allowed in the territorial sea? (19)
no
is there sovereignty in the economic zone?
no
may a archipelagic sea=lane suspend innocent passage?
no (Art 54(2))
can rocks ever be islands?
no but may have territorial sea and CZ if above water at high tide
who owns high seas
no one
Under Jones Act
no removal statue even if it is federal question or diversity
Is commercial law an interventionist or non-interventionist law?
non-interventionist
Implied in law /Quasi-Contract:
not technically K's but created to avoid unjust enrichment
breach
occurs when the promised performance falls due
A complaint to limit liability can be brought by a shipowner as an offensive or defensive action when there has been a ship casualty. What does this mean?
offensive: shipowner knows it has exposure and files a limitation action against itself in the first instance defensive: shipowner files a limitation action in response to a separate lawsuit filed by another party seeking damages against shipowner for the loss
The closing date specified in a contract is usually a(n )"__________" date.
on or before
Usage of trade
practice or method of dealing so regularly observed in circumstances as to justify expectation that it will be here observed; existence and scope of such usage is proven as fact; if purported usage is written, court should interpret that writing (1) course of dealing and usage of trade supplement/qualify terms in agreement (2) all bases are interpreted as consistent, where possible; if not, then [express terms] > [course of dealing] > [trade usage] (3) trade usage should apply to parts of performance specifically governed by that usage (4) evidence of trade usage is inadmissible as evidence until other party has been given fair notice
Cargo delivered to the carrier in good condition and discharged by the carrier in damaged condition amounts to what?
prima facie
Where did maritime law originate
private organization of maritime lawyers known as Comite Maritime International (CMI)
Unilateral Mistake
one party to a K is mistaken as to the terms or subject matter contained in the K- generally does not void K, and excuse performance under a K When Can you unwind? 1.Traditional test- required a mistake to be palpable- so obvious that the other party in the circumstances should have known a mistake had been made 2. 4 Pronged: to rescind an otherwise valid K based, the party seeking avoidance must show: the mistake was induced by the party seeking to benefit from the mistake There is no negligence or want of due care on the part of the party seeking a return to the status quo Denial of release from the agreement would be inequitable, and The position of the opposing party has not so changed granting the relief would be unjust 3. The Two-Pronged Test [lowest burden of proof for party seeking to avoid k] Party seeking rescission must show ... The mistake did not result from an inexcusable lack of due care The other party's position did not so change in reliance that it would be unconscionable to set aside the agreement 4.The Three-Pronged Disjunctive Test [RST§153] [more flexible method than old test for establishing unilateral mistake]: seeking to establish the defense of unilateral mistake must show... d was mistaken about a material fact at the time the parties made the k the effect of the mistake is such enforcement of the k would be unconscionable or the had reason to know of the mistake or caused the mistake (unconscionable here means severe or substantial lost) *NOTE: if you're here you better be bringing an unconscionable claim as well. the d did not bear the risk of mistake (a party bears the risk of mistake when the parties' agreement assigns the risk to the party or the party was aware at the time the contract was made, it only had limited knowledge about the facts relating to the mistake but decided to proceed with the contract.)
The four major types of listing agreements are, exclusive agency, net listing, exclusive right to sell and __________.
open listing
for a historic bay need-
open, effective, long term and continuous exercise of authority over by, coupled with acquiescence by foreign nations
Agreement to Agree on a Material Term
parties may be bound contractually when they have reached an agreement in principle, even though they contemplate further negotiations on particular points. Classical: agreement to agree as to a material term results in a void agreement. Because the parties are not silent, they have manifested an intention to fill the gap themselves. UCC §2204(3) & RST2§27: whether a contract is formed turns on factual question of whether the parties intended to be bound contractually at the point when they agreed, in principle, or only if further negotiations proved successful. (even where one or more terms are left open, a K does not fail for lack of definiteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.)
Minors
persons below the age of 18 who the law has deemed incapable of understanding the consequences of incurring binding obligations. [Traditional Rule]- allows a minor to disaffirm or avoid a K even if there has been full performance and the minor cannot return to the adult what was received in exchange Necessaries exception: minor is liable for reasonable value of necessaries (items one needs to live- food, water, clothing, shelter). Ratification after reaching minority [RST §14]: voidable not void- Once the minor reaches the age of majority, she has the power to affirm or ratify the contract and then will be bound. [Minority Rule]- upon recision, recovery of the full purchase price is subject to a deduction for the minor's use of the merchandise (Dodson v. Shrader)
why is there no innocent passage for air space
planes are too fast and maneuverable
A ________ is a deed with no guarantees or warranties.
quitclaim deed
ballast water convention
regulates disposal of ballast water in international shipping that prevents ecosystems from being disrupted with foreign organisms, like the Chinese crabs in the Danish waters
Marine Labor Convention
regulates the safety of crew on board as well as protection economically for the workers.
STCW 95
regulates training of crew so that ships are being manned by qualified individuals
An offer may be terminated if new laws...
render the proposed contract illegal.
Real estate contracts contain provisions that _______ by a certain date.
require performance
Firm Offer Rule
requirements to make an irrevocable offer for sale of goods without consideration. (1) Offeror must be a merchant ONLY (2) Offer must be in a signed writing or other record (3 )If language of irrevocability is on a form supplied by offeree, the offeror must sign twice- once to make the offer and must separately sign the clause providing for irrevocability (4) Writing must contain language of irrevocability [explicit assurance] (5) Period of irrevocability must not exceed 3 months [if offer does specify period of firmness >3 mos. it will be limited to 3 months unless consideration has been given or the firm offer is extended through a renewal.]
In the EEZ permission is required for _________ but not _____________
research, surveys
What is an example of self help in the commercial world?
retaining assets in his possession pending payment of a debt owed
A vessel described as "staunch, strong and well-equipped for the voyage" is a description of what type of clause in a charter party?
seaworthiness
__________ of RESPA prohibits any person who, pursuant to any agreement or understanding, gives or receives a fee or a thing of value for the referral of settlement business.
section 8
All of the following are typically considered a "package" under COGSA except?
shipping container
RST2§69: acceptance by silence
silence by the offeree rarely amounts to acceptance, but in some limited circumstances an offeree's silence may result in formation of a contract. Ok if parties mutually agreed silence=assent Course of dealing Someone takes offered services with a reasonable opportunity to reject them, and it is reasonable for the person to understand that services are offered with expectation of payment
condition for archipelagic waters
since you're getting a lot of water, we get to drive through it
In the event of default by the BUYER, the SELLER can choose to file suit against buyer for _______. This is the only remedy that would possibly result in the full execution of the transaction.
specific performance
__________ is the body of laws and regulations enacted by federal and state legislative bodies.
statutory law
Impracticability
sufficiently different performance then was was contemplated (without fault) Extreme cost differences apply to impracticability (Mineral park Land v. Howard) An intervening event that makes performance impracticable must be: Due to acts of god/ 3rd parties Need extreme/ unreasonable difficulty or risk of injury but more than increase in cost Must show reasonable effort to overcome obstacles Basic assumption test Must look at all circumstances including terms of K Non-foreseeable is significant Foreseeable- doesn't necessarily preclude bc parties might have not thought it to be such a risk that they made it subject of their bargain Relative bargaining power considered
Pay When Paid Clause
this is a clause that if you were representing the general contractor you would put it into the contract-->this is just a place where courts say we are not going to construe that literally-> subcontractor does not get paid unless GC gets paid unless very very explicit language that makes this clear to subcontractor before they enter the deal
If the judge or jury rule that the licensed agent knowingly or intentionally deceived the consumer, damages have the potential be...
three times the offense.
What are the 3 types of charter party arrangements?
time, voyage and bareboat
________ is evidence an individual has of his or her right to possess land.
title
RST (2d) § 261
to claim impossibility, a party must demonstrate that: (1) the occurrence of an event made performance under the contract impracticable (2) the non-occurrence of the event was a basic assumption on which the contract was made (3) the impracticability resulted without the fault of the party seeking to be excused from the contract (4) the party has not agreed to perform despite impracticability that would otherwise justify the nonperformance.
What is the purpose of Art 102, TFEU and the three cumulative elements of it?
to curb market power possessed by one player or several players jointly. 3 elements: -dominant position within a particular market in the EU -abuse of dominant position -effect on trade between member states
Restitution goal
to prevent unjust enrichment: Where one party renders service to another party with consent or knowledge, there is presumption that the benefactor expects to be compensated; the law implies a promise from the beneficiary to pay. Restitution is a quasi-contract, meaning that it isn't a real contract, so rights to contract don't apply
An offer may be withdrawn at any time prior to its acceptance by the offeree
true
Buyers' and sellers' marital status is not required in the contract.
true
Real estate agents play a role that includes arranging for the pre-qualification / pre-approval of buyers.
true
There is no upper limit on the value of a Texas homestead.
true
A(n) __________ is an entity created for the benefit of another.
trust
project jennifer
trying to find soviet submarine
General, sensitive (ethnicity, political opinion, religion, bio metrics)
two types of personal data
A counteroffer is a _______ process.
two-step
law of the sea comes from
un convention on the law of the sea
Butros Gali
un secretary general who fixed deep sea mining problem
Undue Influence
unfair use of a person's relationship or position to put excessive pressure on another party to enter into a contract, or to agree to certain terms which unjustly benefit the party exercising the influence Relationship technically not required but significant factor in court's assessment Factors to determine (don't need all) 1. Discussion of transaction at an unusual or inappropriate time 2. Consummation of the transaction in an unusual place 3. Insistent demand that the business be finished at once 4. Extreme emphasis on untoward consequences of delay 5. Use of multiple persuaders by the dominant side against a single servient party 6. Absence of third-party advisers or attorneys 7. Statements that there is no time to consult a financial advisors or attorneys
A contract in which only one party is obligated to perform is a________ contract.
unilateral
UCC 2-206(1): Acceptions
unless offeror 'unambiguously' indicates how acceptance should be made, "an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances. BUT for contract to be enforceable it must be specific as to essential terms, such as identity of parties, subject matter, consideration, quantity term and price term.
Why should equity be restricted in commercial law?
unpredictability of equitable remedies, unsuitability of equity to commercial dealing, equity retries a more nobler sentiments of loyalty, fidelity, integrity and respect for confidentiality and the disinterested discharge of obligations of trust and confidence
A 905(b) claim cannot be based upon vessel __________, but only upon negligence
unseaworthiness
Longshore man don't get ______ claim against 3rd party vessel
unseaworthy
who didn't sign law of the sea at first
us and many other western nations
Additional v. Different Terms
use knock out rule and go to 2207(3) AND there is also an opportunity to engage in an inquiry regarding the distinction between additional and different terms. ==> 2207(1) discusses additional & different terms while 2207(2) only address additional terms as a possibility of becoming part of the contract Johnson/Most courts: read the omission of 'different' terms from 2207(2) to mean that "different" terms in the acceptance or confirmation drop out altogether and cannot become part of the contract. Minority: comment 3 alludes to the fact that this might have been scrivener's error.
What qualifies as taxable income?
use of containers operation of loading, unloading and maintenance facilities operation of office facilities, ticket offices and passenger terminals sales of goods for use on board calculated market rent rental income capital gains on vessels
requirements for hot persuit?
used signal, government authorised and marked vehicles, without interruption
Counter Offer in an Option Contract
usual rule that counter offer terminates power of acceptance does not apply.
What is the amount of the Limitation Fund if a court finds that shipowner is allowed to limit its liability?
value of vessel and pending freight
What does it mean for a shipowner to have "privity or knowledge" in the fault leading to the marine casualty?
violated standard, knew or should have known of conditions that led to loss
If a person has been judged to be incompetent, a contract is __________ because the person never had the capacity to enter into a contract in the first place.
void
A "spot charter" describes what type of charter party arrangement?
voyage
A(n) ________ is a provision in a contract that requires that a certain act or event happens in order for the contract to be binding on the party.
waiver
Admiralty jurisdiction requires two elements for a waterway to be considered "navigable waters" of the US - what are they?
waterway that is used or susceptible of being used in its ordinary condition as a highway for commerce, waters must be interstate- the "interstate nexus"
