BLAW

What patent classes exist?

- Art: application of knowledge to effect a desired result - Process: method of producing a patentable product - Machine - Manufacture: useful device or process - Composition of matter: combination of ingredients

What is Regressive or flat tax system?

- Less complex - Doesn't encourage evasion - Fairer if income fluctuates - Fairer to single income families

What are the features of patents?

- Purely statutory by Patent Act

What two contracts form when confirming bank confirms LoC?

1. Between confirming bank and beneficiary 2. Between confirming bank and issuing bank

What are the three areas where the common carrier is held to be fully liable for all damages?

1. Material deviation 2. Failure to give fair opportunity to declare a higher value 3. Misdelivery

What are the two concerns posed by containerization in relation to application of COGSA?

1. Multimodal transport raises questions about the continued relevancy and importance of the traditional ocean bill of lading 2. Can a container filled with packages of goods be itself considered a single package for purposes of calculating per package liability?

Why tax?

1. Redistribution of wealth 2. Revenue generation 3. Modifies behaviour

What are the 4 parameters of seaworthiness under COGSA?

1. Ship must be appropriate for the type of carriage 2. Ship must be properly equipped for the reception, carriage and preservation of the goods 3. Common carrier must staff the vessel with a competent crew 4. Carrier must properly and carefully load, handle, stow, keep, and discharge the goods carried

Which parties exist in a letter of credit?

Account party and beneficiary party

Where is the disaster litigation usually heard?

Any federal judicial district in which the accident occurred or in which a defendant resides

What is trademark prosecution based on?

Based on the law of the country where registration is sought

Why is cash-on-delivery transaction risky?

Because when presented with documents, there's no guarantee that buyer will actually pay

What are systems for relief from double taxation?

Exemption system, credit system, deduction system

What was blank audio recording media levy?

Fees added to price of blank recording materials

How can the carrier avoid liability under the Hamburg Rules?

If it demonstrates it took all measures that could reasonably be required to avoid the occurrence and its consequences

How much is an air carrier liable for in cases of cargo losses?

Liable for all damage sustained to cargo under its control but not in excess of 17 SDRs per kg, unless the shipper has declared a higher value on the air waybill

) What remains as the paramount of the COGSA?

Ocean bill of lading

What is the national character of patents?

Patent only valid within the territory of state granting it

Which type of letter of credit provides the least security to seller?

Revocable letter of credit

What are IP rights?

Rights to technological know-how or artistic work

What are the 2 types of dilution?

Tarnishment, blurring

What is the only type of IP that is perpetual?

Trademarks

How are domain names protected?

Under UDRP, first to file rules except for bad-faith filings to prevent cybersquatting

What is the carrier liable for in the Warsaw Convention?

• An amount up to the declared sum unless it can prove that the sum is greater than the value to the consignor at delivery • Delays in transporting cargo unless it proves that it took reasonable measures to avoid the damage or that such measures were impossible to undertake

What kind of shipping company responsibilities did the Hague Rules establish?

• Limitation of liability to cap potential liabilities • Number of exemptions from liability

What is the difference between national laws and international conventions?

• National laws: define issues of title and negotiability • International conventions: impose the minimum duties of the carriers and provide limits to carrier liability

$ amount liability under COGSA for common carrier?

$500 under Hague Rules or $1,000 under Hague-Visby Rules per package

What does the Ocean Shipping Reform Act do?

- Amends the Shipping Act - Permits carriers and shippers to enter confidential service contracts with negotiates freight rates and terms - No bill of lading required - Not subject to COGSA - Ocean carriers not subject to antitrust laws

In what ways are letters of credit adaptable to a broad range of commercial uses due to their flexibility?

- Bank's payment obligation is primary, direct, and independent of any claims that may arise in the underlying sale of goods transaction - Employing concepts that underlie letters of credit in non-sale of goods transactions enables these deices to serve a financing function

What are some key items of the UCP 500?

- Care in selecting appropriate expiration date - Applicant must request for LoC to be transferrable - Applicant must request for LoC to be confirmed - Best for beneficiary and applicant to agree on confirming bank before credit application - Currency - ISO currency codes - Applicant designate which banks credit will be available - Applicant designate if credit is available for partial shipments or pre-agreed installments - Provide where shipment should be loaded and discharged, and latest date for shipment

What are the issues with the 183 day rule?

- Countries vary in the way their tax laws specify the 183 day calculation - Countries also differ in what they consider their fiscal year vs. traditional calendar year - Revisions to OECD model created confusion for countries with diff fiscal years

What are the consequences of severing residential ties?

- Deemed to have disposed of all property for FMV immediately before leaving Canada - Accrued cap gains on taxpayer's property triggered upon leaving Canada - Departure tax on non-exempt worldwide assets

Factoring?

- Discounting of foreign account receivables without a draft - Exporter transfers title to its account receivables to a factoring company at discount to get $ right away - Export factoring allows exporter to sell on open account by which goods are shipped without a guarantee of payment - Used in short-term financing

What are the exceptions to copyright being owned by author?

- Employment context: employer generally owns copyright - Commissioned work: copyright transferred - Independent contractor: per contract

What are the roles of international law in IP?

- Establish guidelines for uniform definition and protection of IP - Make it easier for owners to acquire rights in different countries

What are natures of ideas?

- Exclusive possession: enjoying while prohibiting use by others - Non-exclusive possession: enjoyment doesn't diminish with other people using it

What are the copyright exemptions that allow lawful use without permission?

- Fair use doctrine: private study, research, criticism, reporting - First scale: no owner's rights once legally sold - Public domain: use in court or admin proceeding - Use by police if material needed to maintain public safety

When do you have the option to post security with CCRA sufficient to cover taxpayer's departure liability?

- Gain great, but do not have sufficient liquidity to pay the departure tax - May be taxed a 2nd time in foreign jurisdiction when property subject to deemed disposition rules in Canada is actually sold outside Canada

What are some examples of how standby letters have been used?

- Guarantee warranties - Support borrowers under international loans - Ensure availability of suppliers - Secure countertrade commitments - Act as deposits in the sale of goods - Act as prepayment of fees for services

What are the rules on residence of corporations?

- If incorporated in Canada after April 26, 1965: deemed resident - If incorporated in Canada before April 27, 1965: deemed resident if was resident at any time or carried on a business in Canada - If incorporated outside of Canada: mind and management of company

What does income accrued or derived from local sources commonly include?

- Income derived from property located within the country - Income derived from any trade or profession carried on through any agency or branch within the country - Income derived from local employment

What are taxable income earned in Canada?

- Income from duties of offices and employment performed by non-resident in Canada or performed outside of Canada if non-resident was resident in Canada at time duties were performed - Income from business in Canada - Cap gain from disposition of taxable Canadian property - Income from resource properties - Recaptured capital cost allowance - Income interest in trust residence in Canada - Right to share in income of a partnership - Certain research grants, etc

Why is letter of credit not a contract?

- LoC doesn't come about through offer and acceptance or mutual asset - No requirement for consideration - Not a negotiable instrument - Not a 3rd party beneficiary contract

What are the features of registering trademarks?

- Not required for ownership of TM - Not absolute proof of ownership - Protection across Canada for 15 years

What did the Anti Circumvention Provisions do?

- Notice and notice scheme: music industry notifies ISP ISP notifies individual - Fair dealing: expanding parody/satire, removing personal use exemption

What are the rights of copyright owner?

- Prevent publication by others - Transfer or license in exchange for royalties - Transfer as gift - Convert work into different forms

Forfaiting

- Selling longer-term A/R or prom notes of foreign buyer at discount unsecured - Form of supplier credit: exporter turns over export receivables by selling to forfeiter - Agreed upon in advance before sales contract concludes allows exporter to incorporate discount costs into selling price - Importer assumes costs of discounting the note or draft

What isn't a permanent establishment?

- Storing, displaying or delivering goods - Mere processing - Purchasing - Preparation that is auxiliary in nature

What is Progressive taxation system?

- Taxing the rich - What Canada currently uses - Based on ability to pay

What does a bill of exchange or draft contain?

- Unconditional order to pay a determinate sum of money - Name of person who is to pay (drawee) - Statement of the time of payment - Statement of the place payment is to be made - Name of person the payment is made to (payee) - Statement of date and place where the bill is issued - Signature of bill issuer (drawer)

What are the criteria for Canadian copyright protection?

- Work must be original - Work must be fixed - Work must be connected to Canada: created in Canada, by a Canadian, or by a person resident in a treaty member state

What are the roles of municipal law in IP?

- creates intellectual property rights - Establishes rules for transferring IPR

In what ways does IP law create market for information?

- reduces supply of information - Increases value of information-based assets - Provides incentives to create ideas

What to do to avoid confusion and rejection of LoC application?

- specify exact quantities of packing units and explicitly state quantity should not be exceeded or reduced - Use clear, simple, concise instructions to issuing bank - Not call for documents that beneficiary can't obtain - Not state conditions whose observances cannot be ascertained from face of document

An instrument requiring a bank to pay a sum of money to the beneficiary against the presentation of documents stipulated in the letter of credit. Most commonly used as a payment mechanism for export sales

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Documentary credit (letter of credit)

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What is advising bank? ( A bank in the beneficiary's country through which the issuing bank communicates the credit to the beneficiary - sometimes referred to as the correspondent bank

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How much is an air carrier liable for in cases of baggage losses?

1,000 SDRs for each passenger

What are the 3 events that create a general average situation?

1. A common danger to which ship, cargo, and crew are all exposed and which is imminent 2. A voluntary sacrifice of a part for the benefit of the whole 3. Successful avoidance of the peril

How is the carrier's liability under COGSA Hague Rules determined?

1. An amount (under $500) per package is multiplied by # of packages listed or descried in the bill of lading 2. Carrier's liability may be based on the amount declared by the shipper on the bill of lading

What three functions does a freight forwarder serve for importers and exporters?

1. Arranging for the shipment of goods with carriers 2. Acting as a freight consolidator 3. Processing required documentation

How is the application of COGSA different in the UK from the US?

1. COGSA in the US applies to all shipments from and to US ports vs. COGSA doesn't automatically apply to shipments from a foreign port to the UK 2. COGSA applies to shipments from one port in the UK to another vs. Harter Act covers shipments from one US port to another unless parties agree to be governed by COGSA

What is the 2-tiered liability system of the Montreal Convention?

1. Carrier is strictly liable for all damages from death or bodily injury that can be proven by the passenger or their representative in an amount not exceeding 100,000 SDRs per passenger 2. Carrier presumed to be liable for all proven damages above 100,000 SDRs, without limit, unless it can show that the damages were not due to its negligence or to the negligence of its employees

What 3 factors do the restrictions on coverage in cargo insurance revolve around?

1. Causes of loss that it protects against 2. The amount of coverage 3. Duration of coverage

What are 4 additional principles to determine a COGSA package?

1. Court should look to the parties' contractual agreement in the bill of lading 2. A COGSA package is the result of some amount of preparation for the purpose of transportation, which also facilitates handling 3. A container can be considered a COGSA package only in light of a clear agreement to that effect 4. When goods are placed in containers without being described as separately packaged, they are classified as "goods not shipped in packages" for COGSA purposes

What are the three basic requirements for liability according to the Convention?

1. Death or bodily injury of a passenger 2. 1 is resulting from an accident 3. Happened on board the aircraft or while embarking or disembarking

Define documentary letter of credit

1. Definite undertaking of a bank 2. Issued in accordance with customer's instructions 3. Addressed to, or in favour of, the beneficiary, 4. Where the bank promises to pay a certain amount of $ 5. Within the prescribed time limits 6. Upon the complying presentation 7. Of the required and conforming documents

What was different about the 1999 Montreal Convention from the Warsaw Convention?

1. Eased the restrictions on recovering damages from airlines for loss to baggage or for bodily injuries or death to passengers 2. Required that airlines be adequately insured for such losses 3. Provisions for compensating passengers for flight delays

What are the two ways that companies can obtain financing for export transactions?

1. External to transactions - obtaining general loan from bank or government 2. Internal to transaction - By bill of lading and letter of credit

What is a permanent establishment?

1. Fixed place of business 2. Dependent agent or employee 3. Performs services in Canada through someone in Canada for 183+ days - 50% of gross active business revenues consists of income from services performed in Canada 4. Provides services in Canada for 183+ days in given 12-month period

What do the duties include as listed by COGSA?

1. General duty on the carrier to issue a bill of lading where receiving goods from the shipper 2. Bill must include basic information including leading marks provided by the shipper for the ID of the goods, quantity, weight, and condition

What are the contracts created by the letter of credit?

1. If LoC is accepted, initial application forms a contract between the account party (buyer) and issuing bank 2. The bank, upon issuing LoC, forms a contract with the beneficiary party (seller) to pay the contract price for the presentation of required documents

What abstains the federal court from hearing a case under Multiparty Multiforum Trial Jurisdiction Act?

1. If the substantial majority of all plaintiffs are the citizens of a single state of which the primary defendants are also citizens 2. Claims asserted will be governed primarily by the laws of that state

What three alternative legal regimes are there in ocean carriage?

1. International Convention for the Unification of Certain Rules Relating to Bills of Lading (Hague Rules) 2. Hague-Visby 3. United Nations Convention on the Carriage of Goods by Sea (Hamburg Rules)

What are the rules with respect to the dishonor of letters of credit?

1. Issuing bank is not free to dishonor its obligations at will, but must provide specific reasons for its decision to dishonor 2. Expiry dates

Facts to be established to not be a permanent establishment

1. No agency relationship between non-resident entity and any Canadian entity 2. Non-resident does not own or lease a place of business in Canada 3. Non-resident's personnel will not be present in Canada for a significant period of time

What are the two main problems with the Paris Convention?

1. No requirement on minimum substantive standard of patent protection 2. Lack of enforcement mechanism

How did the Warsaw Convention protect airlines from liability?

1. Not liable if they could prove they used all necessary methods to avoide the accident 2. Limited liability to a specific amount

What are the 3 uses of letters of credit in international transactions?

1. Payment instrument: transfer of documents and collection of funds 2. Performance guarantee 3. Finance instrument: negotiation and collateral

Why wouldn't regressive/flat tax system be feasible?

1. Politically incorrect: the rich get richer 2. Will take away jobs for tax accounts, tax lawyers, etc

What standards does the Court suggest banks employ in examining letter of credit document presentations for compliance?

1. Presentation documents be a mirror image of the requirements 2. Reject only where the discrepancies are such that would create risks for the issuer if the bank were to accept the presentation documents 3. Analyze documents for risk to the applicant

What constitutes as carrying on a business?

1. Producing, growing, mining, etc 2. Soliciting orders or offering anything for sale in Canada through an agent 3. Disposition of certain property

What are the 10 rules pertaining to international letters of credit?

1. Rule of facial compliance: banks check only for conformity 2. Banks not required to know or to investigate trade or business practices 3. Rule of strict compliance: reject docs for any discrepancy 4. LoC only enforceable with expiration date 5. UCP 500 21-day rule: beneficiary deliver documents within 21 days of receipt of BoL 6. Bank's Period of Review: Less than 3 days per Article 5 of UCC or 7 per UCP 500 7. Presumption of irrevocability: irrevocable unless otherwise stated 8. Insurance certificate: dated not later than date of loading, amount of CIF+10% 9. Commercial invoice: exact description found in LoC 10. LoC not transferrable unless stated it is

What is a complying presentation?

1. Seller delivers all required documents 2. Within the time allowed for presentation and before credit expires 3. Contains no discrepancies 4. Complies with all other terms of the LoC, provisions of the UCP, and standard banking practices

What are 6 things that deem a person as a resident?

1. Sojourners in Canada for 183 days + 2. Members, at any time during the year of the Canadian Armed Forces when stationed outside Canada 3. Ambassadors, ministers, offers, etc. provided they were residents immediately prior to appointment 4. Individual performing services under prescribed international development assistance program of the Government of Canada, provided they were residents 3 months leading to commencement of services 5. Child of dependent whose net income is less than the base for personal tax credit 6. Individual under agreement or convention with one or more countries, entitled to exemption from income tax

What are the 2 purposes of bill of exchange and documentary draft?

1. Substitute for money 2. Financing or credit device

What does the complainant have to prove under UDRP to for wrongful use of domain name?

1. That the domain name registered is identical or confusingly similar to a trademark or service mark in which complainant rights 2. That they have no rights or legitimate interests in respect of the domain name 3. That the domain name has been registered and is being used in bad faith

Why promissory note?

1. To put in writing how much $ is owed 2. Negotiable instrument sell note at discount

What are the 3 types of loss covered by marine insurance policies?

1. Total losses for all or part of a shipment 2. General average losses 3. Partial or particular average losses

What are the requirements of the English Bills of Exchange Act?

1. Unconditional order in writing 2. Addressed by one person to another 3. Signed by the person giving it 4. Person to whom it is addressed pay on demand or at a fixed or determinable future time 5. Certain sum of money 6. To or to the order of someone or to bearer

What are the 3 relationships that a typical letter of credit transaction involves?

1. Underlying sale of goods contract between buyer and seller 2. Agreement between a bank and its customer 3. Bank's resulting engagement to pay the seller

How are companies determined for figuring out income tax bases?

1. Where the company was incorporated 2. Where the company is managed

What procedural issues does any prospective plaintiff face once goods have been lost or damaged?

1. Who has the burden of proving damages and how can such proof be rebutted? 2. What parties have standing to sue the carrier?

What are Eximbank's four programs?

1. Working capital financing program (pre-export financing) to help US exporters obtain loans 2. Direct loan program 3. Loan guarantee program 4. Export credit insurance program: Commercial and political risks

What kind of exemptions does COGSA provide?

17 exemptions that fully exempt the common carrier from all liability for damage to or loss of the goods

What is the limitation period for filing claims against carriers according to the Warsaw Convention?

2 years

What is the time limit on patents?

20 years from filing date

What is the expiry date under the UCP?

21-day rule states that the bill of lading and accompanying documents must be presented to the bank within 21 days from their procurement

How long does original registration last for industrial design?

5 years then optional renew for 5 more years

TM time limit per Paris Convention?

6 months

What is a common carrier?

A company that contracts with the public for transportation of goods or people. Ex. Commercial airlines, overnight courier services, and international shipping lines.

What have courts generally decided on containers when determining packages?

A container cannot be considered a package

What is general average?

A doctrine of maritime law that provides that when a portion of a ship's cargo is sacrificed to save the rest from a real and substantial peril, each owner of property saved contributes ratably to make up the loss of the sacrificed property's owners

What is a particular average loss in marine insurance?

A partial loss to the insured's cargo

What is a negotiable instrument?

A signed writing, containing an unconditional promise or order to pay a fixed sum of money, to order or to bearer, on demand or at a definite time

What is force majeure clause?

A standard clause in a marine contract exempting the parties from liability for nonperformance resulting from a condition beyond their control, such as government interference, wars, and acts of God.

What is deduction system?

A taxpayer deducts the tax paid to one state from the profits liable to taxation in the 2nd state

What does the marine insurance industry provide?

A variety of insurance policies to protect ship and cargo owners from an assortment of exposures including damage to goods, ship, others' property and liability for injury and health

What is an excess insurance?

AKA Umbrella insurance - covers claims that exceed the amount of the underlying policies

What is the belt & suspenders approach?

Advisable to have meetings in the jurisdiction where the trustees reside

How are credits transmitted to the beneficiary in LoC and confirmed LoC?

Advising bank in LoC and confirming bank in confirmed LoC

How does the US calculate the 183 day rule?

All days present in the current calendar year + 1/3 of the days last year + 1/6 of days 2 years ago

What is the time limit on legal actions under the Convention?

All legal actions against aircarriers for damages must be brought within 2 years of the date of arrival or planned arrival at the destination

What is clause paramount in the Hague Rules?

Allowing parties to agree to above-deck carriage when otherwise deck carriage is excluded

What is containerization?

Allows a single container to be used in different modes of trainsit

What are provisional applications?

Allows the inventor to get something on file. Typically filed before impending disclosure. It is never published or examined

What do multimodal transport operators do?

Also known as combined transport operators, arrange for the shipment of goods via different modes of transport by entering into separate contracts with the individual carriers

What are the Visby Amendments?

Amendments to the Hague Rules. Raises the per-package limitation fo carriers to an amount based on special drawing rights of the IMF, or approx.. $1,000, and carrier is liable for all losses resulting from the carrier's recklessness in the operation and navigation of the ship

What is a demand guarantee?

Any guarantee, bond or other payment undertaking by a bank, insurance company or other for the payment of money on presentation in conformity with the terms of the undertaking of a written demand for payment

Who does deemed disposition rule not apply to?

Any property owned immediately before taxpayer became last became resident (short-term residents)

What is the 183 day rule?

Anyone temporarily present in Canada for 183+ days during any calendar year is deemed to be a Canadian resident for the entire year.

Where does "jettison" appear and what is it?

Appears in the Free from Particular Average clause and it is the act of throwing overboard from a vessel part of cargo.

What are the days eligible for 183 day rule calculation?

Arrival and departure days, partial days, weekends, national holidays, days of sickness

When does the third party not need to be mentioned in contract under COGSA?

As long as the contract refers to a well-defined class of readily identifiable persons that it intends to benefit

What does bad faith mean at common law & UDRP?

At common law, bad faith means intentional wrongful behaviour, but in the UDRP, it includes some negligence without a finding of intent

What does Multiparty, Multiforum Trial Jurisdiction Act say about what is heard in the federal courts?

At least one plaintiff and one defendant are residents of different states, or one party is a citizen of a foreign country. Civil actions involving the deaths of 75 or more people

When is seaworthiness determined?

At port of departure

What is back-to-back letter of credit?

At the request of the beneficiary, a 3rd bank agrees to issue a 2nd letter of credit, using the first letter of credit as collateral. Often used to pay or secure the beneficiary's suppliers

What is the duration of copyright?

Author's life + 50years for Canada and 70 years for USA/UK

What does the Canadian law say about copyright existence?

Automatically exists in Canada when created

What is compulsory license?

Available if the owner of IP refuses to work the property in the country within a certain period of time. A 3rd party may apply for compulsory license. Issued by government without consent of owner. Government will most likely pay

Nominating bank

Bank designated by the issuing bank to which the beneficiary party can present documents and obtain payment (may or may not be advising bank)

What is the difference between documentary letter of credit and demand guarantee/standby letter?

Bank pays a documentary letter of credit only if things go right, banks pay demand guarantee/standby letter only if things go wrong

What is a nominated bank?

Bank, usually in the seller's country, that has been appointed by the issuing bank to honour the documents. Often advising bank that originally transmitted the documents to seller

What is extended to the filed of IPR?

Basic principles of the GATT for nondiscrimination, national treatment, transparency and simplification

Why are freight forwarders not liable to a shipper for anything that occurs to the goods being shipped?

Because a freight forward does not issue a bill of lading

Why is the irrevocable letter of credit most commonly used?

Because a revocable letter of credit does not provide the seller with much security because the bank can revoke it at any time

Why would the advising bank not have any legal obligations to beneficiary when intermediary bank refuses to confirm/guarantee LoC?

Because it merely acts as a conduit for transmitting documents and payments

Why, under COGSA, is the carrier liable for misdelivery even after he goods are dischared from its ship?

Because of law of bailment: The carrier remains a bailee of the goods until they are delivered to the holder of the bill of lading

Why is dealing with multimodal transport contracts an issue for the Hague Rules?

Because the Hague Rules and COGSA were enacted prior to the advent of containerization

Why is the Ocean Shipping Reform Act not subject to COGSA?

Because the agreements are considered private contracts with no bill of lading and the carriers are not as common carriers

Why should the exporter still contemplate obtaining insurance on its own behalf even if the terms of sale make the foreign buyer responsible?

Because the buyer or seller can neglect to obtain coverage or obtains too little, causing a major financial loss

Why is insurance often multilayered?

Because the underlying insurance provider may be unwilling to provide the amount of coverage requested by the insured

Why are the York-Antwerp Rules a part of the contract of carriage even though they are not the subject of treaty or convention and have not been enacted into national laws?

Because their provisions are generally incorporated into all modern bills of lading

When is seaworthiness ensured?

Before the ship departs from the port of shipment

How is the Berne Convention different from the Paris Convention?

Berne Convention requires all signatory nations to enact certain minimum substantive laws including prohibitions against copying literary and artistic works and granting authors exclusive rights to adaptations and broadcast of works

What treaties for copyright?

Berne Convention, Universal Copyright Convention

What relations are formed once an intermediary bank located near the seller or the port of shipment confirms the letter of credit application?

Between the confirming bank and beneficiary, and between the confirming bank and the issuing bank.

What is the carriage contract?

Bill of lading that is issued by either a common carrier or a charter party

Who are general average claims available to?

Both ship owners and cargo owners

What is the most common type of dispute that may arise between the drawer and drawee?

Breach of contract

Who has the burden under perils only policy of marine insurance policies?

Burden is on the cargo owner to prove that the loss was due to one of the list perils. A loss caused by an unforeseen event or occurrence would be born by the owner of the goods

What happens when the carrier is able to rebut a shipper's prima facie case under COGSA?

Burden shifts to shipper to show that the carrier's negligence, at the least, a concurrent cause of the loss

What does signing and writing "accepted" on the draft mean?

Buyer is formally obligated to pay within the stated time

What happens when in case of breach of contract when holder in due course rule is in place?

Buyer still must pay the bank, but can sue seller for breach of contract

What are the remaining risks in documentary collections transactions?

Buyer's risk of fraud and seller's risk that the buyer will dishonor its obligation to purchase the documents

Who requires commercial invoice?

Buyers, banks, and customs authorities

How can you make changes to a letter of credit?

By a formal amendment issued by the bank and signed by all parties

How can acceptance financing be done?

By buyer's or seller's bank

How can a carrier rebut a shipper's prima facie case under COGSA?

By establishing either that it exercised due diligence to prevent the damage t the cargo by properly handling, stowing, and caring for it in a seaworthy ship or that the harm resulted from one of the excepted causes.

What is used to cover risk of loss for periods of time before the loading and after the unloading of goods?

By incorporating a warehouse-to-warehouse or marine extension clause

How can the common carrier generally prevent a material deviation claim for above deck carriage?

By inserting a clause paramount in the bill of lading

What is each type of common carrier or carriage contract governed by?

By its own unimodal transport convention

How does a freight forwarder act as an agent to the shipper?

By negotiating a freight rate with the carrier

What is the right to make claim against the carrier limited by?

By procedural requirements: party must give notice of loss either at the port of discharge or at the time of receving the goods from the carrier. If loss isn't apparent at the time of receiving the goods, then notice must be given in writing within 3 days.

How can a shipper establish a prima facie case under COGSA?

By proving that the carrier received the cargo in good condition but unloaded it in a damaged condition

How can you acquire trademarks?

By use (common law), By registration, Risk management

What is the liability of the carrier and associated companies affected by?

By which version is applied - Hague-Visby or Hague Rules

What is the difference between COGSA and the Hamburg Rules in terms of what they apply to?

COGSA applies only to shipments covered by a bill of lading whereas the Hamburg Rules apply to any contracts of carriage by sea

What is a shortfall of deviation under COGSA?

COGSA doesn't define deviation and only distinguished between geographic deviations and other quasi-deviations. Courts are hesitant to expand quasi-deviation doctrine beyond the unauthorized on-deck stowage of cargo case.

Where do COGSA and the Hamburg Rules stand with delay in delivery?

COGSA makes no mention of liability for a delay in delivery. The Hamburg Rules designate delay as an equal ground for recovery

What happens when the goods are not packaged for shipment?

COGSA provides an alternative known as the customary freight unit (CFU)

How can you get money out of trade acceptance?

Can be either kept by the exporter until maturity or sold to a bank at a discount for immediate payment

Trasnferable credit

Can be transferred by the beneficiary party in whoe or part to secondary beneficiaries. Exporter may transfer the credit to finance the manufacture or purchase of goods to be exported

How can shipper claim for a loss with MTOs?

Can claim for a loss gainst MTO regardless of where during transport process damage occurred

What are the features of moral rights of copyright?

Can't be bought or sold but can be waived

What is the most relevant policy for exporters and importers of goods?

Cargo Policy

What did the cargo have to do until the advent of the containerization of cargo?

Cargo owner typically would enter into a new shipment contract with a new carrier each time the mode of transport changed

What were the Hague Rules enacted into law in the US as?

Carriage of Goods by Sea Act (COGSA

Under COGSA, who is liable for damages occurred after being discharged from the ship but before it is released from sea terminal?

Carrier

Under COGSA, who is liable for misdelivery?

Carrier

What did the US courts say about carrier liability protection if material deviation is unreasonable?

Carrier becomes a virtual insurer of the cargo and carrier can't claim protection of the $500/pkg limitation

What do the Hamburg Rules say about the burden in the case of loss?

Carrier fault is presumed

What happens when the number of packages is not show on the bill of lading?

Carrier is only liable for $500 per container, irrespective of the contents

What does the carrier have to do under the International Chamber of Commerce's Rules for Multimodal Transport Documents?

Carrier must prove during which stage of the multimodal transport the damage occurred

What does the Convention say about carrier's liability with delay?

Carrier not liable if it took all reasonable measures. Liability limited to 4,150 SDRs per passenger

In what case is a passenger not able to recover damages from a carrier?

Carrier's defense of comparative negligence in which their own negligence contributed to causing the accident. Carrier must prove. What does the Convention say about compensable damages? (( Doesn't specify what types of damages can be collected. Does not permit punitive damages

What is a time draft?

Cashed only some time after the presentation of the documents

What is a quasi-deviation?

Certain types of breach of contract of COGSA that deprives the carrier of the goods the benefit of the package limitation under COGSA. Leads to loss of all of carrier's exemptions and limitation of liability

What is a possible defense to a material deviation in the route?

Change resulting from an emergency such as mechanical failure or governmental intervention

How is a bill of exchange or international draft different from a check?

Check has separate drawer, drawee, and payee. Bill of Exchange has the seller to be both the drawer and payee and the drawee is either the buyer or its bank

What is the coverage if jettison occurs under the FPA clause?

Clause affords coverage regardless of the amount of cargo damage

What is the relationship between clause paramount and the Harter Act?

Clause preempts the application of the Harter Act extending coverage to shipments between US ports

What are the sources of trade finance?

Commercial banks, Export financing, Factoring and forfaiting, Buyer and supplier financing, Government assistance

What is trade finance?

Commercial lending to provide financing packages for international trade. Assists the buyer in financing its purchase and provides immediate cash to seller for sale and it is profitable for the lending institutions

How is value determined under Hague-Visby Rules?

Commodity exchange price, current market price, or the normal value of goods of the same kind and quality

What happens when the ship becomes unseaworthy after it leaves the port of shipment?

Common carrier remains protected under COGSA

What are patent trolls?

Companies that buy a lot of patents and sue anyone that may be using the patents

What are the remedies for patent infringement?

Compensatory damages, accounting profits, injunction, delivering up (disposal of offending items)

Where do trusts reside?

Considered to reside where the majority of trustee, executor, administrator, heir, and other legal reps reside

Who is an ocean bill of lading issued by carrier negotiated to?

Consignee

What elements comprise a COGSA claim against a negligent carrier for lost or damaged goods?

Contract from breach of contract of carriage and tort from the breach of the carrier's duty of care

What happens if lawsuits were to be brought against 3rd parties under the Montreal Convention?

Convention applies only to lawsuits against air carriers. 3rd party cases would be governed by ordinary tort law of the jurisdiction

What does a deviation from the carriage agreement by restowage do?

Convert carriers into quasi-insurers liable in full for any damage incurred as a result

What are 5 types of intellectual property?

Copyright, patent, trademark, industrial design, trade secrets

What is the difference between corresponding bank and advising bank?

Corresponding bank confirms and undertakes to honour each draft and advising bank is not liable for the dishonouring of the credit by the issuing bank

Variables to assess before making a decision on export or import financing?

Cost of financing, length of financing, and risk of financing

Who decided if the common carrier fulfilled its responsibility to give fair opportunity to shipper?

Courts examine the bill of lading

How effective is Q-clause in real life?

Courts have rarely granted an exemption from liability under the Q clause

What does the shore coverage clause provide?

Coverage for enumerated risks occurring on the shore

What does clause paramount say about COGSA coverage?

Coverage is extended beyond tackle-to-tackle to the entire period that the goods are in the possession of the carrier. Also extends protection to all 3rd parties involved with the transport of the goods by sea including stevedores

FC&S clause and SR&CC clase?

Covers risks associated with war, revolution, and civil strife

What does acceptance create on a draft?

Creates an independent obligation and converts the draft into a negotiable instrument

What is right of priority in the Paris Convention?

Date of an applicant's foreign application is deemed to be the same as the date of the applicant's original application on the same invention, as long as it was filed within 1 year

What is the Berne Convention?

Deals with granting of copyrights among signatory nations.

What does the Patent Act define?

Defines infringement as whoever without authority makes, uses, offers to sell, or sell patented invention or imports patented invention

Factors that determine confusion of consumer

Degree of similarity between marks, intent of infringer, similarity of two products or services, similarity of marketing of good or service, strength of registered mark, evidence of confusion

What is a presentation?

Delivery of the seller's documents and draft to the nominated bank or directly to the issuing bank

What is the World Intellectual Property Organization?

Depository Organization that grew out of the Paris Convention on patents and trademarks and Berne Convention on copyrights

What was the Harter Act designed for and what is it at its core?

Designed solely to regulate the liability of seagoing carriers. It is a maritime law at its core

What is a discount in export financing?

Difference between amount paid to the exporter and the face amount paid at maturity

What is dilution by blurring?

Diminishing the selling power and value by unauthorized use

What happens when a discrepancy is found in seller's documents?

Documents are rejected unless it is waived by the buyer

Who decides who can bring suit and what they may be compensated for under the law of the Convention?

Domestic law selected by the courts of the contracting states

What is involved in a documentary collection?

Draft is sent for collection. Bank acts as agent of seller.

How should carrier undertake due diligence in determining seaworthiness?

Due dili in the preparation and inspection of the ship

What are factors of dilution?

Duration and extent of use of mark, geographical area, degree of distinctiveness, degree of recognition of mark, distribution and marketing methods, use of mark by 3rd parties

What do the duties that COGSA lists pertain to?

Duties of the carrier pertain to its issuance of bills of lading

What are basic residential ties

Dwelling, spouse or common-law partner, dependents

How can copyright protection be sold?

Each right can be sold separately

What is blanket policy?

Each shipment is covered up to the maximum amount of the policy so shipper doesn't have to declare the individual values of each shipment

What are pecuniary damages?

Economic damages including medical and other expenses

What kind of compensation does the Death on the High Seas Act permit?

Economic losses and the loss for a deceased family member's care, comfort, and companionship. Non-economic losses and punitive damages are not compensable.

What kind of taxation are non-residents responsible for?

Employment in Canada, carrying on a business in Canada, disposition of taxable Canadian properties

What did the Harter Act prohibit?

Enforcement of broad exculpatory clauses incorporated into the standard bills of lading by the shipping industry

What is the Jason clause?

Entitles shipowners to contribution notwithstanding negligence in creating the general average situation

How are errors in management and inaction different under COGSA when determining carrier liability?

Errors in management are exempted under COGSA whereas inaction isn't

What is involved with copyright being registered?

Establishes public record, allows for damages and lawyer fees, registration required for lawsuits

What does the International Standby Practices (ISP98) do?

Establishes ten separate rules with respect to standby letters of credit

What is property clause in export financing?

Everything must remain in Canada - can't be bought out easily, can't take risk management measures

What is an excess clause?

Excess clause covers all claims outside the coverage of the underlying policy

What are the 5 main services performed by commercial banks?

Exchange of currencies, assistance in financing exports, collection of foreign invoices, drafts, and LoC, Transfer of funds to other countries, credit information on potential reps or buyers overseas

Examples of government assistance programs

Eximbank, Foreign Corporation Insurance Agency, Overseas Private Investment Corporation, Small Business Administration

What is the common problem that courts face in assessing COGSA damages?

Existence of a number of different packages

What are the three export related programs offered by Small Business Administration?

Export Working Capital Program, International Trade Loan Program, Export Express program

What is an Inchmaree clause?

Extends the list of covered perils, usually to include losses due to negligence of the crew and damage arising from a latent defect.

To what extent is letter of credit governed by the UCP?

Extent that it states that it is to be interpreted according to the UCP

What is the purpose of the Overseas Private Investment Corporation (OPIC)?

Facilitate the participation of US private capital in the economic development of less developed countries by providing political risk insurance and financing through direct loans and guarantees

What is the Death on the High Seas Act?

Federal maritime statute that applies to airline crashes and wrongful death cases arising out of airline disasters over the high seas that occur beyond the 12-nautical miles territorial limit of US waters

Why are alternative arrangements made for delivery of goods under COGSA?

For delivery to someone not holding a bill of lading. Common carrier to release the goods to a consignee, not in possession of the bill of lading, upon the presentment of a bank guarantee

Where does the Harter Act remain in force?

For goods shipped from one US port to another US port

Why would the buyer seek advice from a customs broker?

For import regulations and documents that it should require from seller for import purposes

Why do importing buyers use a banker's acceptance?

For short term borrowing until they can resell and liquidate the goods being purchased

Why do sellers to export markets use a banker's acceptance?

For short-term, pre-export financing of raw materials and production costs. Also use to grant credit terms to foreign customers

Who are persons immune from taxation?

Foreign governments and diplomats

What can't you TM?

Foreign words, public names, organization names like RCMP, nothing offensive, nothing that says you belong to a political country group

Definition of invention?

Forms of energy, human conduct, methods of medical treatment, living matter, business methods, software

What is considered goods not shipped in a package under COGSA?

Freestanding cargo not enclosed in a box or crate

What is COGSA's application timeframe?

From the time goods are loaded onto the ship until the time the cargo is released from the ship's tackle at port

What is the most common form of insurance in exporting?

General cover form

What is are common types of restriction on IP rights?

Geographical restrictions, field of use limitations, output or customer restrictions

What things should you look at when choosing between advising bank or confirming bank?

Geography and relationship

What does an issuing bank have to do when it dishonours a letter of credit?

Give notice by telecommunication within 7 days following receipt of the documents from the beneficiary. Notice must identify all discrepancies

What is Q-clause exception in COGSA?

Grants the carrier a general exemption for any damages that arise from a cause that was not the actual fault of the carrier or their agents

What can Standby LoC also be used for?

Guarantee warrantees, ensure availability of suppliers, secure counter-trade commitments, act as a deposit in the sale of goods and as prepayment of fees for services

What is a credit surety?

Guarantees repayment to a bank or lender who finances an export transaction. Generally take the form of a payment guarantee from a state agency or a development bank. Could be a corporate guarantee from parent company

What exceptions are made under the Hamburg Rules?

Hamburg Rules eliminate exceptions and provide a presumption of carrier liability for loss except in case of fire

What can the seller do once a sight draft is returned back to it after acceptance?

Hold till maturity or sell it at a discount for immediate cash

What are the requirements to become a holder in due course under UCC?

Holder in possession of a negotiable instrument that has been taken for value, in good fait, without notice that it is overdue or has been dishonoured, and without notice that the instrument contains an unauthorized signature or has been altered.

What are common marine insurance policies?

Hull, cargo, liability

What should the bill of lading include?

Identification of goods, # of packages/pieces, Quantity or weight as furnished by shipper, Conditions of goods

When does a carrier lose the $500 protection under COGSA?

If a deviation from the specifications contained in its contract of carriage with the shipper amounts to more than a reasonable deviation

What is the exception ot the enforcement of arbitration clauses in bills of lading?

If a forum selection clause and a choice of law clause are used in tandem to prevent a shipper from pursuing its statutory remedies under COGSA

When does the 18 SDRs per kg for cargo losses not apply?

If damage resulted from an intentional act of the air carrier or its employees

When is the freight forwarder liable?

If it selects a third party, such as sa common carrier or customs broker, who proves to be incompetent

When does the per-package limitation and 17 exemptions removed?

If losses occur because of failure to perform due diligence in providing a seaworthy ship, carrier's commission of a material deviation, or failure of the carrier to provide a fair opportunity for the shipper to declare a value above the per-package limitation. Then the common carrier becomes liable for all damages

Under what circumstance can you be compensated for mental or psychological harm under the Montreal Convention?

If the harm is actually caused by bodily injury

In what situation could the district court dismiss a contract claim on the grounds that the party does not have standing?

If the party is not named in the bills of lading

In what case is above deck not an unreasonable deviation?

If the ship is one designed for above-deck containerized carriage or if on-deck stowage is for the purpose of safety

What does commercial invoice allow?

Importing companies can apply duty

Where is the limitation of an air carrier's liability set?

In Special Drawing Rights

How should an ambiguity on a bill of lading regarding the number of COGSA packages be resolved?

In favour of the shipper

How can freight forwarders assume liability of a carrier?

In issuing documents like forwarders bill of lading

How are capital gains taxed?

In most countries, all income including capital gains is taxed at the same rate but in some countries, capital gains are taxed at a different rate than personal or business income. In other coutnries, capital gains are given allowed tax breaks depending on how long the assets are held (rolling taxes) and to what purpose the proceeds are put

Where can you find the types of risk covered in a policy?

In the perils clause

According to the air waybill, how should the claims be made for damages from delays in the transportation of cargo?

In writing within 21 days from the cargo delivery date

What are the two most popular extensions of the hull insurance?

Inchmaree clause and running down clause

What does contractual liability coverage include under protection and indemnity policy?

Includes protection against passenger liability, liability for lost and damaged cargo, pollution, and general average

What is exemption system for double taxation?

Income is taxed in on host state and exempt from tax in a second state

What are other references for taxation?

Income tax regulations, income tax application rules, international treaties, interpretation bulletins, information circulars, court decisions

What is a confirming bank obligated to?

Independently obligated on the credit to the extent of its confirmation

What are the taxable entities?

Individuals, corporations, trusts

What must take place in order to negotiate an order instrument?

Indorsement by signature and delivery of the instrument to the holder

What documents might be required on commercial invoice?

Inspection certificate and certificate of origin

What is included in the collection letter?

Instructions from the seller on who is responsible for bank collection charges, what to do in the event that the buyer dishonours the draft, and how the proceeds are to be remitted to the seller

What factors are considered if some residential ties are retained during a temporary absence?

Intent, frequency of visits, residential ties outside Canada

How is marine cargo insurance standardization achieved?

International Underwriting Association and American Institute of Marine Underwriters

Uniform Customs and Practices for Documentary Credits (UCP)

International rules for letters of credit published by the International Chamber of Commerce in Paris

What are patentable subject matter?

Invention and improvement on existing idea

Inventions excluded from patent protection per TRIPS

Inventions that harm the order public or morality, Inventions involving diagnostic, therapeutic and surgical methods for humans or animals, New plants and animals, Inventions that involve biological processes for production of plants and animals

Which type of letter of credit provides the most security to seller?

Irrevocable letter of credit

Standby letter of credit

Issued as a guarantee against default by one of the parties of the contract. Used to guarantee performance of one of the parties and paid only upon default

What does a forwarder's bill of lading do?

Issued by forwarder, the forwarder assumes the liability of a carrier or possibly of a multimodal transport operator. Carrier liability extends not only to the actual carriers but also to contractual carriers

You can't TM last names unless

It associates with something or it has a meaning on its own

When can misdelivery occur under COGSA?

It can occur when a country's import documentation allows for such a release or when the receiving party and the common carrier make alternative arrangements.

What does "tackle-to-tackle" mean?

It doesn't extend to losses that occur prior to loading or subsequent to discharge from a vessel.

What do the Hamburg Rules do to account for what COGSA fails to account for in terms of time frame of liability?

It extends the period of responsibility to include when the goods are in the control of the carrier but not on the ship

What is the Paris Convention?

It guarantees that in each signatory country, foreign trademark and patent applications from other signatory countries will receive the same treatment and priority as those from domestic applicants

What is an air waybill?

It incorporates by reference the pertinent international carriage convention, namely, the Warsaw Convention.

What is a patent?

It is a state granted monopoly for 20 years to have exclusive right to license or sell

What happens when the bank follows the buyer's instructions?

It is entitled to purchase the seller's documents and obtain reimbursement from the buyer

What happens if the intermediary bank elects not to confirm or guarantee the letter of credit?

It is referred to as an advising bank and a corresponding bank that confirms the letter of credit is independently liable for its payment

What is a negative repercussion of having the freight forwarder act as agent?

It may bind the shipper to modifications made by the carrer to the standard carriage contract

Why is acceptance as a financing device popular?

It provides protection to the financial institution or whoever purchases it, provided that party is a holder in due course

What is doctrine of equivalent?

It says it doesn't need to be exact copying of an invention to prove a case. Equivalent between the elements of the patented invention and the infringement product is good

What are legs of transport?

Land, rail, ocean

How is departure from Canada determined?

Latest of departure date, departure of spouse and dependents, and establishment of new residence

What does the Montreal Convention say about jurisdiction of lawsuits?

Lawsuits can be brought only in a country that is party to the Convention and only in: 1. Country where the tickets were purchased 2. Country of the passenger's final destination 3. Country where the air carrier is incorporated or has its principal place of business 4. Country of passenger's principal and permanent residence

What determines the application of different carriage liability regimes in an international transport of goods transaction?

Leg of transport, Existence of different legal regimes for a given mode of transport

What happens if the exporter obtains the bill of lading and delays presentation past the 21 days?

Letter of credit expires, even though expiration date on the letter has not passed.

What is export financing?

Letters of credit, Export credit insurance, government guarantee programs

What do the Warsaw Convention and the Hague Rules both limit?

Liability for the common carrier

What is one exception to tax rule by tax treaties?

Limited to taxing only permanent establishments

What are the forms of expression protected by copyright?

Literary works, dramatic works, musical works, artistic works, performances, sound recordings, communication signals

What happens if there are no nominated banks in LoC?

LoC is "freely available" and can be negotiated through any bank of the seller's choice

What does the independence principle state about the LoC?

LoC is independent of the sales contract between buyer and seller and of contract between buyer and his bank that issued LoC

What are the factors considered in determining carrying on a business?

Location of contracts, location where goods are delivered and payment is made, location of business assets, agent or independent contractor, nature of activities, location of accounts

What are the two risks of IP rights?

Losing control of one's IPRs and helping to establish a competitor

What is the risk to seller in time draft?

Losing control over goods

What does fortuitous mean?

Loss occurred by chance or accident and could not have reasonably have been predicted

What benefits exist in provisional applications?

Low cost and priority because there's a one-year grace period to complete application

What is the major benefit to the shipper for having a multimodal transport operator?

MTO issues a single transport document for the entire transport

What are the basic tax charging provisions?

Meaning of person, meaning of taxable income, taxation year, residence vs. citizenship

Term of registered TMs per TRIPS?

Min 7 years to be renewed indefinitely

What is a performance bond?

Minimizes buyer's risk of nonperformance by the seller in the export transaction. A guarantee form an insurance company to pay the insured in the case of default. Same function as standby letter of credit

How has ocean carriage become more efficient and reasonable?

Most bills of lading now reflect the practice of above-deck carriage by the incorporation of a clause paramount

What is hull insurance?

Most common property coverage to protect the owner or charter party from losses due to damage to the vessel or its equipment. Perils-only type of policy that covers only for losses resulting from expressly listed causes.

What is the Warsaw Convention?

Most important multilateral treaty governing the liability of air carriers

What is confirming bank?

Most often intermediary bank located near the seller of the port of shipment. Once LoC is accepted, it becomes independently liable for payment

What did the court say about multimodal containers for the calculation of COGSA liability of the common carrier?

Multimodal containers are generally not to be considered as packages

What are the requirements of a commercial invoice?

Must be made out by the seller and addressed to buyer. Must be in the same currency as the LoC. Description of godos must correspond to that in LoC

What happens if anything happens to the goods during the voyage?

NVOCC is liable to the shipper because of the bill of lading that it issued

What is the Berne Convention based on?

National treatment scheme: each signatory nation must afford foreigners the same treatment as its own citizens

What are 3 income tax bases?

Nationality, residency, source

What is not patentable under the Patent Act?

Natural law, scientific principle, abstract theory, computer program

What are the 17 COGSA exemptions?

Neglect, Fire, Perils of the sea, Act of God, War, Public enemies, Arrest, restraint or seizure under legal process, Quarantine restrictions, Act or omission of the shipper or owner of the goods or their agents, Strikes, Riots, Saving life or property at sea, Inherent defect, Packing insufficiency, Marking insufficiency, Latent defects not discoverable by due diligence, Any other not actually of carrier's fault

What do the WTO's Agreement on TRIPS say about term of patent?

No less than 20 years

How do you prove dilution?

No need to show confusion or competition

What is the notice requirement of copyright?

No notice required but recommended to defeat defense of innocent infringer

What is a retention fund?

Not a 3rd party guarantee but an arrangement between the principal parties. A % deducted from each payment to retention fund.

What did the Court find arbitration clauses under COGSA to be?

Not a type of disclaimer or limitation of liability that is generally prohibited under COGSA and therefore not subject to attack under COGSA

What is open or general cover form of insurance policy?

Not limited to a specific shipment but covers numerous shipments for a fixed period of time or until terminated by notice given by the shipper or insurance company

What is the timelimit for notice of loss under Hamburg Rules?

Notice of loss reported within 1 working day after delivery, 2 year statute or limitation

Requirements for an inventor for patent

Novelty, inventive, useful

What guidance do the Hague-Visby Rules provide in defining the word package?

Number of packages is where a container, pallet, or similar article of transport is used to consolidate goods, the number of packages or units enumerated in the bill of lading as packed in such article of transport

What are 3 tests to determine residency?

Objective tests, subjective test, declarative test

Who regulates ocean carriers, freight forwarders, and NVOCCs?

Ocean Shipping Reform Act of 1998

What are the most common documents required by the letter of credit?

Ocean bill of lading, commercial invoice, and marine insurance policy

What do exporters do in a competitive market place for their customers?

Offer credit or other financing for their purchase

What is an open cargo policy?

Offers the convenience and protection of covering all shipments by the shipper of certain types of goods to certain destinations and over specified routes

How is a part year residence taxed?

On his pro rated yearly world wide income

Where does the burden of demonstrating any deviation from what freight forwarders do in the maritime context?

On the party who would show such deviation

What is on-deck carriage in terms of material deviation?

On-deck carriage of containerized cargo is not a deviation if the carrier proves an established custom of such storage

What is a through bill of lading?

One by which an ocean carrier agrees to transport goods to their final destination

What is an eligible banker's acceptance?

One that qualifies for discount at the US Fed Reserve Bank, which will buy it if not sold privately

What is a charter party?

One who leases the entire ship from the ship's owner

What is the statute of limitations on the notice of loss under COGSA?

One year statute of limitations. The party suffering a loss must commence suit within one year of the delivery of the goods.

Who does the Montreal Convention apply to?

Only to passengers ticketed for international travel

What kind of patents does the PCT system apply to?

Only to utility patents

What are the types of trademark?

Ordinary marks, certification marks, distinguishing guises

What are model treaties?

Organization for Economic Cooperation and Development (OECD), UN Model treaty

How to transfer IPRs internationally

Owner works property rights abroad, owner transfers rights, owner licenses, government grants a compulsory license to 3rd party

What was the first international property treaty?

Paris Convention in 1883

What could the parties do if licensee develops improvements in the licensed technology?

Parties can negotiate over ownership and use rights. Licensor may seek a grant back to itself of ownership or the right to use the new technology

What treaties for Patents?

Patent Cooperation Treaty, Paris Convention

What can a shipper do to get additional coverage from the insurer?

Pay for a specially to cover clause

What are the alternative methods of guaranteeing performance other than the standby letter of credit?

Performance bond, bid bonds, credit surety, retention fund, demand guarantee, Uniform Rules for Demand Guarantees

What are the two general types of marine insurance policies?

Perils only policy and all risk policy

What is the Harter Act's application timeframe?

Period between the discharge of the cargo from the vessel and proper delivery. Carrier liable for caring for the goods before they are loaded and after they are unloaded from the ship.

What is the typical timeframe of protection in marine cargo insurance?

Period that the goods are on the ship

What are the Canada/US Tax Treaty tie breaker rules in order of consideration?

Permanent home Centre of vital interests Habitual Abode Citizenship Competent authority

What made IP an increasingly significant source of product value?

Personal computing, telecommunications, internet revolution

What are the two income categories?

Personal or business income & Capital gains income

What are secondary residential ties?

Personal property, social and economic ties, health card, driver's license, vehicle registration, passport, etc

What is droits moraux?

Personal right to prohibit others from tampering with a work

What needs to be done to recover under either the Warehouse-to-Warehouse or the Marine Extension clause?

Plaintiff must show that an insured peril existed and the damage was proximately caused by that peril

What risks does the FCIA cover?

Political and commercial risks. Also offers marine insurance coverage for losses attributable to physical loss or damage to goods in transit

Aspects of property

Possession and ownership

Under COGSA, what relieves the shipper's initial burden of proving that it had delivered cargo in good condition to the carrier?

Presenting a clean bill of lading

What do the statements made regarding requirements of the bill say?

Prima facie evidence that goods were delivered to the carrier so carrier becomes a guarantor of the information provided by the shipper and placed on the bill of lading

What does failure to give notice of loss mean under COGSA?

Prima facie evidence that the goods received were as indicated on the bill of lading

What is facial compliance rule?

Principle that a bank's only obligation in a letter of credit transaction is to review documents.

What are some common negotiable instruments?

Promissory notes (two-party instruments) and drafts (three-party instruments)

What is intellectual property?

Property of the mind deemed worthy of protection and exclusion. Capable of ownership. You can't own an idea but you can own the expression of it

What is a pro rata clause?

Proportions the amount paid under the policy, based on the limits provided by all relevant policies

What does 3rd party liability coverage protect under protection and indemnity policy?

Protects against damages caused to others on account of marine collision

What is the rule of strict compliance?

Protects banks by allowing them to reject documents because of discrepancies

What is marine extension clause?

Protects the shipper from the start in the exporter's country until received in the importer's country. Extends the standard marine coverage to the period before the loading of the godos and the period between offloading and delivery to the consignee

What does the carrier have to do to be protected under Q-clause?

Prove that the carrier was free from any fault whatsoever contributing to the loss/damage and also prove what the actual cause of the loss was

Uniform Commercial Code Article 5

Provides basic rules for letter of credit transactions within the US

What is through-transport policy?

Provides indemnification for 3rd party damage caused during inland transit

What is the running down clause?

Provides protection from liability for damages to another vessel caused by a collision with the insured ship

3 features of industrial designs that registration doesn't protect

Purely functional in nature, no fixed appearance, not clearly visible

What are the three types of property?

Real, personal, intellectual

What does industrial design need to have before it is valid or enforceable?

Registration

What gets departure tax?

Reprotable properties and real estate outside of Canada, unincorporated business outside Canada, private or public company shares in or outside Canada, mutual funds, partnership interests, interests in non-resident inter vivos trusts, portfolio investments, personal use property, listed personal property

How does priority claim work with the Patent Cooperation Treaty?

Resident of a PCT signatory gets priority claim on that invention in all states, and now has 30 months after filing to begin the admin process of application in other countries

What is the restriction on with average policies?

Restrict the coverage for partial losses to those losses that exceed 3% of the value of the goods

What is included under moral rights?

Right of attribution, integrity over a work, be associated with work, to object to distortion/mutilation/modification, to control public access to work, to correct or retract a work

What does the Paris Convention say about patents?

Right of priority (1year grace period) claim priority back to first filing

What is a contract right?

Right to collect money owed by the buyer under the contract for goods shipped

What rights are included in copyright?

Right to produce, reproduce, translate, publish, publicly perform, authorize someone else to exercise those rights

What is the risk to seller in sight draft?

Risk lies with confirming bank

What risks do neither perils-only nor all risk policies cover?

Risks associated with war, revolution, riot, or strikes

What are the two main benefits of having a letter of credit?

Secures your income and you get your money faster

Chronology of letter of credit transaction

Seller and buyer agree on terms of a sale buyer arranges for bank for letter of credit buyer's bank prepares irrevocable letter of credit including isntructions to the seller about the shipment buyer's bank sends the letter to seller's bank for confirmation seller's bank prepares letter of confirmation to forward to seller with the letter of credit seller arranges with freight forwarder for delivery of goods forwarder completes documents once goods are loaded seller presents to its bank documents indicating full compliance bank reviews and airmailed to buyer's bank for review then to buyer buyer gets documents to claim goods draft accompanied by the letter of credit is paid by seller's bank

Open account transaction

Seller doesn't require payment until some time after the purchaser receives the goods or documents. Usually an unsecured type of financing offered by an exporter to a trusted customer

What are the risks minimized in documentary collections transactions?

Sellers's risk of nonrepayment and buyer's risk of nondelivery are reduced

What is done to reduce the credit risk and lower the cost of trade finance?

Several government agencies provide credit guarantees to back trade finance lending by commercial institutions

What does inserting a clause paramount in the bill of lading mean?

Shipper agrees to allow the common carrier to decide whether the goods are to be carried below or above deck

Who are the two intended beneficiaries of marine insurance policies?

Shipper and common carrier

What can the shipper do to avoid the classification of a container as a COGSA package?

Shipper can request a detailed description in the ibll of lading expressly stating the number of packages within each container

Who has the burden to prove by providing the bill of lading as evidence when there's a shortage to quantity or not in the condition per bill?

Shipper or the party receiving goods

What accompanies draft?

Shipping documents (BoL) and collection letter

What are the 2 general types of drafts?

Sight draft and time draft

What is the difference between sight draft and time draft?

Sight draft requires payment immediately upon the presentation of the documents

What is used between trusted parties to secure payment instead of a letter of credit?

Sight or time draft

What is a draft?

Signed order of the drawer, given to a drawee who is in possession of money to which the drawer is entitled, to pay a sum of money to a 3rd party, the payee, on demand or at a definite time

What does a freight forwarder do or not do?

Simply facilitates the movement of cargo to the ocean vessel

What are the forms of expression not protected by copyright?

Slogans, short phrases, titles for songs, names of computer programs, factual information

What is SWIFT?

Society for Worldwide Interbank Financial Telecommunication - private, high-speed communications network between banks, set up to transfer funds worldwide

What is considered an accident in the Convention?

Some event that is a risk peculiar to air travel and external to the passenger

What is the default/normal rule in income tax bases?

Source principle

What is a bill of exchange?

Specialized type of international draft commonly used to expedite foreign money payments in many types of international transactions

What are the 3 parts to patent applications?

Specifications, drawings, and claims

How is standby letter of credit different from documentary letters of credit?

Standby letter of credit is only drawn on in the event that the applicant fails to perform an obligation to the beneficiary

IP rights are enforced how?

State-by-state basis

What must the freight forwarders have to act on behalf of a customer?

States and municipalities in the US are prohibited from regulating them. Frieght forwarders must have a written power of attorney form filled out by their customer and kept on file in their offices

What is source principle in income tax bases?

States tax a taxpayer's income only from sources within their territorial jurisdiction

What are specialized companies also known as under COGSA?

Stevedore companies

What is the general rule on where to stow cargo on a ship?

Stowage of cargo above deck under a clean bill of lading without the consent of the shipper is an unreasonable material deviation from the terms of the bill of lading, unless it is in a sealed ocean container

What does Patent Cooperation Treaty do?

Streamline the process for gaining protection in multiple jurisdictions by allowing a single application in one language. International application under PCT may have priority over Paris convention

What is the Patent Cooperation Treaty?

Supplement to the Paris Convention by establishing a centralized utility patent application process

What effect did the "national treatment" have in the Paris Convention?

Targeted discrimination against foreigners in obtaining patnets by implementing the principle of national treatment.

What is a levy?

Tax on tax

What is credit system?

Tax paid in one is used as credit

What types of licensing for IPR?

Technology licensing, IP licensing, technology transfer agreements, created by contract

What does COGSA say about restrictive procedural requirements or attempts to limit its duties and liabilities?

That it is null and void and of no effect

What happens when a freight forwarder selects someone to perform transportation services?

That selection fulfills the forwarder's obligations in the absence of proof that the selection itself was negligent

What must advising bank be aware of?

That the transaction would be governed by laws of the country with most significant relationship (likely the issuing bank)

What is the most established and important of the international carriage conventions?

The Hague Rules

How are trademarks protected by the Paris Convetion?

The Paris Convention confers a right of priority to a rademark holder if the foreign registrations are made within 6 months after the original registration.

What was the first international convention set to govern the liability of airlines to passengers engaged in international travel?

The Warsaw Convention of 1929

Hwod does a documentary credit transaction work?

The buyer obtains a letter of credit from a bank that guarantees payment to the seller. Substituting the credit or guarantee of a bank for that of the buyer eliminates the risk of nonpayment

Who has the burden of proving that there was fair opportunity to declare a higher amount to be insured under COGSA?

The carrier bears the initial burden of producing prima facie evidence

What does the Warsaw Convention say about the damaged cargo?

The carrier must be notified immediately no more than 14 days after receipt.

What does the Warsaw Convention limit?

The forum where lawsuits may be initiated, including states that are parties to the convention and where the carrier is incorporated or has its principal place of business

Who has the burden under all risk policy of marine insurance policies?

The insurance company has to prove that the loss was due to any of the excepted causes of loss as stated in policy

What is the benefit of having the comprehensive general liability coverage?

The insured is provided with the luxury of having legal services paid for by the insurance company, even on claims where insurance coverage is suspect

What does copyright protect?

The manner in which ideas are expressed

What is a beneficiary party?

The party for which favour the letter of credit is issued, such as the exporter(seller)

What is the account party?

The party requesting or applying for the letter of credit from a bank

What period of time does COGSA not cover unless otherwise specified?

The period of time when the goods are in the possession of the common carrier before loading and after discharge

What does the holder in due course rule say about disputes that might arise between drawer and drawee?

The purchaser of an acceptance, or any negotiable instrument, takes it free from disputes

What gives the documentary credit its name?

The requirement that the bank will pay the seller only on the presentation of documents

Red clause financing

The seller-exporter is allowed to receive an advance on the letter of credit prior to presenting the required documents. Represents a form of unsecured financing offered by the purchaser to a trusted exporter

What is the period of coverage under COGSA limited to?

The time when the goods are loaded on to the time they are discharged from the ship

What is documentary collection?

The use of the banking system for an exporter to transfer documents to a purchaser and to receive payment. The bank is required to not transfer the documents to the purchaser unless the purchaser makes payment or accepts a bill of exchange. Bank doesn't act as a guarantor of payment as in the documentary credit transaction

Who do inland carriers contract with since multimodal or intermodal shipping containers emerged?

They contract not with the owner of the goods but as a subcontractor to the steamship line who has offered a complete transport package

What are bid bonds?

They insure against the risk that a bidder may not honor its bid - usually required to bid on government procurement contracts

What are the two types of material deviation claims under COGSA?

Those involving the above-deck carriage of goods and those involving a change in the expected route of the ship

What are the 2 classes of general average claim?

Those that arise from sacrifices of part of a ship or cargo made to save the whole venture & those that arise out of extraordinary expenses incurred by the ship owner for the joint benefit of ship and cargo

What are the two principal types of collection orders?

Those that require mere acceptance by the drawee/buyer and those that require actual payment

How can IPRs be protected outside Canada?

Through international treaties or foreign intellectual property laws

How is liability coverage provided in marine insurance?

Through protection and indemnity insurance, offered through associations of P&I clubs.

How is the risk of nonpayment removed?

Through the use of a documentary credit transaction

Which policy of P&I insurance became popular with the advent of container transport?

Through-transport policy

What is banker's acceptance?

Time draft drawn on and accepted by a commercial bank

When is the seaworthiness determined?

Time of departure

What was the purpose of establishing COGSA?

To achieve international uniformity and to redress the edge in bargaining power enjoyed by carriers over shipper and cargo interests by setting out certain duties and responsibilities of carriers that can't be avoided even by express contractual provision

What does the article 7 of the Hague Rules allow the parties to do?

To agree to extend the period of application to the period "prior to the loading, and subsequent to the discharge

What is the purpose of tax treaties?

To ameliorate the problem of double taxation and other matters including tax incentives, avoidance, and evasion

What does COGSA only apply to?

To carriage of goods by sea where the carriage contract provides for a bill of lading or any similar document of title

What is the purpose of license development contract?

To design and develop something for a different company to license out

What was the purpose of the 1999 Montreal Convention?

To give passengers and shippers greater rights against airlines

Why patent?

To hold off competition until you can build your brand

What is the primary objective of COGSA?

To limit the liability of the common carrier while ensuring a claim for damages by shippers

What was the primary objective of the Harter Act?

To prohibit clauses whereby carriers attempted to eliminate their liability for acts of negligence

What was the purpose of the Foreign Corporation Insurance Agency?

To promote US exports through the extension of credit insurance

Why should national maritime customs and shipping practices be understood even though the bill of lading is the universally accepted document of title?

To protect against misdelivery

What is the best way for the insured to make sure the marine extension clause does not limit the extended coverage through a time limit provision?

To provide that the policy remains in operation until the goods are delivered to the consignee

What is usually expected of the licensee in IPR?

To use its best efforts to develop a market for the products manufactured with the IPR

What is negotiation?

Transfer of an instrument from one party to another so that the transferee takes legal rights in the instrument

What is the most rapidly growing method of doing business abroad?

Transferring IP rights to a foreign business in exchange for a fee or other form of remuneration

What does protection and indemnity policy provide?

Two broad categories of protection: 3rd party liability and contractual liability protection

What is the limitation period under the Hamburg Rules?

Two years

Why UCP>UCC in impacting on the law of international letters of credit?

UCP is used by judges and UCC now defers to the UCP and states UCC is not applicable to any letter of credit to the extent that it conflicts with the UCP

What countries have the most patents?

US & Japan

What was the predecessor to the Hague Rules, Hauge-Visby Rules, and the Hamburg Rules?

US Harter Act of 1893

What is the Carriage of Goods by Sea Act (COGSA)?

US domestic version of the Hague or Hague-Visby Rules

Which Law does the clause paramount select to be used to interpret the carriers' obligations and liabilities under the bill of lading?

US law

What are the 4 times of trademark infringement?

Unauthorized use, knock-off, trademark dilution, unauthorized importation, passing-off (causing confusion)

How do COGSA and the Harter Act differ in terms of caring for goods?

Under COGSA, a carrier of goods in international commerce must properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried. The Harter Act imposes a duty of proper loading, stowage, custody, care, and proper delivery

How is the common carrier protected in alternative arrangements?

Under COGSA, they are liable for misdelivery but are able to seek indemnification through the guarantee

What is the main difference between the Hague-Visby and Hague?

Under the Hague-Visby Rules, the limit of liability is significantly increased

Who governs bills of exchange or drafts?

Uniform Commercial Code in the US, Bills of Exchange Act in England, and Convention on Bills of Exchange and Promissory Notes in other countries

When does the seller give up control of the goods in the documentary collections transactions?

Until the buyer purchases the documents

How much time does the UCP 600 give banks for inspecting seller's documents for discrepancies or irregularities?

Up to 5 banking days

When do indemnity policies become operative?

Upon payment by the insured

What are specialized companies under COGSA?

Used by common carrier to move the goods to and from the ship and to load and offload the goods

What is a documentary draft?

Used to expedite payment in a documentary sale

What is the Himalaya clause in COGSA?

Used to extend COGSA protection to third-party companies. Sufficient to extend coverage to a stevedore company and a consultant hired to supervise the stowage of the cargo

Why are promissory notes used?

Useful in related companies

Who has the burden of making the vessel seaworthy?

Vessel owner

What effect does the Inchmaree clause have on a vessel owner and ship owner?

Vessel owner is exempt from liability for fault or error in navigation or management of the ship. Ship owner must retain liability for negligence in the care and custody of the cargo

What risk is generally excluded from the standard hull and cargo policies?

War risk.

What is used to extend the period of coverage under COGSA?

Warehouse-to-warehouse clause

What is forwarder's receipts (or house bills of lading or consignment notes) ?

What forwarders issue when they receive cargo for shipments.

What is trade acceptance?

When a draft is signed and has "accepted" written on it.

In what case would function govern over form with freight forwarders?

When a party that calls itself a freight forwarder is in fact performing the functions of a carrier

When do contracts bind parties other than the named parties under COGSA?

When both parties to the contract clearly express a mutual intent to benefit a 3rd party

What is the peril of the sea argument that COGSA exempts?

When carrier is exempt from liability for damages resulting from fortuitous action of the sea or weather of sufficient force to overcome the strength of a seaworthy ship or the diligence and skill of a good crew

Why exclusive rights in IPR?

When exploitation of the licensed IPR requires significant financial or other resources of the licensee, in order to enhance its chances of earning an adequate return on its investment

What are the exceptions to the per-package limitation afforded to carriers?

When shipper is not given a fair opportunity to declare a higher per-package value for the goods

What does COGSA not take into account in regards to time frame of liability?

When the goods are in the control of the carrier before the loading and after the unloading of cargo

When is factoring used?

When you don't have the ability/time/energy/resources/knowledge to get the money so you pay the company to do it

Which method is used more often for common law practice in figuring out how companies are determined for income tax bases?

Where company was incorporated is common to common law countries

What does the Harter Act do that COGSA can't?

With COGSA covering carriers' legal responsibilities through discharge, Harter fills a potential gap between discharge and inland transit in those situations where goods, though on the dock, are still within the control and responsibility of the sea carrier

What is the difference between with average and free of particular average (FPA), and which is more comprehensive?

With average is covering partial as well as total losses and FPA allows insurance company to not have to pay the insured who suffers less than a total loss. With average is more comprehensive.

What is the time limit of notifying the airline when baggage or cargo are damaged?

Within 7 days from the date of receipt for checked baggage and 14 days for cargo. Claims must be made in writing within 21 days from the date on which the baggage or cargo was actually delivered

How soon should a loss claim be made under the Hamburg Rules?

Within one working day after delivery to the consignee

What are 4 basic categories of trademarks?

Word marks, design marks, distinguishing guises, certification marks

What international patent systems exist?

World Intellectual Property Organization, Paris Convention, Patent Cooperation Treaty

What kind of carrier responsibilities did the Hague Rules establish?

• Requirement to undertake due diligence in providing a seaworthy ship • To not deviate materially from the carriage contract • To provide shippers with the opportunity to declare a higher value for their goods

What is the main difference between the Hamburg Rules and the Hague/Hague-Visby Rules?

• The Hamburg Rules are more pro-shipper • Under the Hamburg Rules, carrier liability protections are automatically extended to the servants or third-party contractors of the carriers

What is the role of a non-vessel operating common carrier (NVOCC)?

• To consolidate cargo from numerous shippers into larger groups for shipment by an ocean carrier • Issue a bill of lading to each shipper