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Flashcards in Part 2 Deck (49)
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1

Bill of lading/Ticket

A written acknowledgment, signed by the master of a vessel or other authorized agent of the carrier, that he has received the described goods from the shipper, to be transported on the expressed terms, to the described place of destination, and to be delivered there to the designated consignee or parties.

2

A bill of lading or ticket is necessary for the perfection of a contract of carriage. T or F.

False.

Thus, the obligation of the carrier to exercise extraordinary diligence in transporting the goods or passengers is present even if no bill of lading or ticket was issued by the carrier. This is implicit from Article 354 of the Code of Commerce.

3

Art. 354 of Code of Commerce

In the absence of a bill of lading, disputes shall be determined by the legal proofs which the parties may present in support of their respective claims, according to the general provisions established in this Code for commercial contracts. [suppletory. Main padin si Civil Code]

4

Data messages or electronic documents can be used in lieu of transport documents in writing or paper documents. T or F.

True.

Electronic Commerce Act (RA 8792)

5

Kinds of Bill of Lading

1. negotiable or non-negotiable
2. clean bill of lading or foul bill of lading
3. on board bill or received for shipment bill
4. spent bill of lading
5. through bill of lading
6. custody bill of lading
7. port bill of lading

6

Clean bill of lading vs. Foul bill of lading

Clean bill of lading: one which does not contain any notation indicating any defect in the goods

Foul bill of lading: one that contains such notation

7

Spent bill of lading

Where the goods are already delivered to the carrier, the carrier is supposed to have retrieved the covering bill of lading that he issued for the goods. If the goods were already delivered but the bill of lading was not returned, the bill of lading is called a "spent bill of lading."

8

Through bill of lading

One issued by a carrier who is obliged to use the facilities of other carriers as well as his own facilities for the purpose of transporting the goods from the city of the seller to the city of the buyer, which bill of lading is honored by the second and other interested carriers who do not issue their own lading.

9

On board bill vs. Received for shipment bill

On board bill of lading: one in which it is stated that the goods have been received on board the vessel which is to carry the goods. These are issued when the goods have been actually placed aboard the ship with every reasonable expectation that the shipment is as good as on its way.

Received for shipment bill of lading: one in which it is stated that the goods have been received for shipment with or without specifying the vessel by which the goods are to be shipped. These are issued whenever conditions are not normal and there is insufficiency of shipping space.

[A party to a maritime contract would require an on board bill of lading because of its apparent guaranty of certainty of shipping as well as the seaworthiness of the vessel which is to carry the goods.]

10

Custody bill of lading

In this type of bill of lading, the goods are already received by the carrier but the vessel indicated therein has not yet arrived in the port.

11

Port Bill of Lading

The vessel indicated in the bill of lading that will transport the goods is already in the port.

12

Nature of Bill of Lading

Operates both as
1) receipt
- receipt for the goods shipped

2) contract
- contract to transport and deliver the same as therein stipulated
- stipulates the rights and obligations assumed by the parties
- law between the parties who are bound by its terms and conditions provided these are not contrary to law, morals, good customs, public order and public policy

3) a document of title which makes it a symbol of the goods

13

When does a bill of lading become effective

Usually upon its delivery to and acceptance by the shipper.

14

It is presumed that the stipulations of the bill are, in absence of fraud, concealment or improper conduct, known to the shipper, and he is generally bound by his acceptance whether he reads the bill or not. T or F.

True.

15

The three-fold nature of a bill of lading is applicable to all circumstances. T or F.

False. Only to carriage of goods.

The nature of a BoL as receipt and as document of title can be applied only to a BoL that is issued for goods and not to a passenger ticket. However, the nature of a BoL as contract applies to tickets issued to passengers.

16

Shipping receipts, forwarders receipts, receipts for transportation vs. BoL

If it contains an acknowledgment by the carrier of the receipt of goods for transportation, it is, in legal effect, a bill of lading.

17

Designation and form of the instrument is material. T or F.

False.

18

Parties in a BoL

Shipper and the carrier

A consignee, although not a signatory to the contract of carriage between the shipper and the carrier, becomes a party to the contract by reason of either

a) relationship of agency between the consignee and the shipper/consignor
b) unequivocal acceptance of the bill of lading delivered to the consignee, with full knowledge of its contents or
c) availment of the stipulation pour autrui i.e., when the consignee, a third person, demands before the carrier the fulfillment of the stipulation made by the consignor/shipper in the consignee's favor, specifically the delivery of the goods/cargoes shipped

19

Contract of Adhesion

A contract drafted only by one party, usually the carrier, and is sought to be accepted or adhered to by the other party, the passengers or shippers. The latter cannot change the contract and they are thus made to adhere thereto on the "take it or leave it" basis.

20

BoLs are contracts of adhesion. T or F.

True.

21

BoLs are construed liberally in favor of

the passenger or shipper who adhered to such BoL or ticket

>> to protect the weaker party from abuses and imposition, and prevent their becoming traps for the unwary (Art. 24 NCC)

22

Parol Evidence Rule

The terms of a contract are rendered conclusive upon the parties, and evidence aliunde is not admissible to vary or contradict a complete and enforceable agreement embodied in a document, subject to well defined exceptions. It is based on the consideration that when the parties have reduced their agreement on a particular matter into writing, all their previous and contemporaneous agreements on the matter are merged therein.

- verbal not admissible

23

A bill of lading is not covered by the parol evidence rule. T or F.

False.

24

The legal evidence of the contract between the shipper and the carrier shall be the bills of lading, by the contents of which the disputes which may arise regarding their execution and performance shall be decided, no exceptions being admissible other than those of falsity and material error in the drafting.

After the contract has been complied with, the bill of lading which the carrier has issued shall be returned to him, and by virtue of the exchange of this title with the thing transported, the respective obligations and actions shall be considered cancelled, unless in the same act the claim which the parties may wish to reserve be reduced to writing, with the exception of that provided for in Article 366.

In case the consignee, upon receiving the goods, cannot return the bill of lading subscribed by the carrier, because of its loss or of any other cause, he must give the latter a receipt for the goods delivered, this receipt producing the same effects as the return of the bill of lading.

Art. 353, Code of Commerce

25

A bill of lading drawn up in accordance with the provisions of this title shall be proof as between all those interested in the cargo and between the latter and the insurers, proof to the contrary being reserved for the latter.

Art. 709, Code of Commerce provisions on maritime

26

If the bills of lading are contradictory, and no change or erasure can be observed in any of them, those possessed by the shipper or consignee signed by the captain shall be proof against the captain or ship agent in favor of the consignee or shipper and those possessed by the captain or ship agent signed by the shipper shall be proof against the shipper or consignee in favor of the captain or ship agent. T or F.

True.

Art. 710, Code of Commerce

27

Applicable law in aircraft and civil aviation

New Civil Code provisions on Common Carriers

Civil aviation is governed by RA 9497 otherwise known as the Civil Aviation Authority Act of 2008 which was passed on March 4, 2008.

The economic regulation of air transportation is governed by RA 776 and the regulation issued by the Civil Aeronautics Board pursuant thereto.

Treaties and conventions > Warsaw Convention applies to liabilities of the carriers in international transportation by air > Also Chicago Convention which was signed on Dec 7, 1944.

28

Regulatory Perspectives

1. Philippine Airlines' authority to operate air services in the Philippines derives from its legislative franchise and is accordingly bound by whatever limitations that are presently in place or may be subsequently incorporated in its franchise.

2. It is subject to the other laws of the Philippines, including RA 776, which grants regulatory power to the CAB over the economic aspect of air transportation.

3. There is a very significant public interest in state regulation of air travel in view of consideration of public safety, domestic and international commerce, as well as the fact that air travel necessitates steady traversal of international boundaries, the amity between nations.

29

Aeronautics or aviation

refers to the science and art of flight

30

Civil aviation

refers to the operation of any civil aircraft for the purpose of general aviation operations, aerial work or commercial air transport operations

31

Aircraft

any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth's surface

"aircraft" used in the Civil Aviation Act of 2008 or in regulations issued under the same Act, shall refer to civil aircraft only, and will not include State or public aircraft

32

Philippine aircraft

aircraft registered in the Philippines in accordance with the requirements of the Civil Aviation Authority Act of 2008

This is consistent with Article 17 Chapter III of the Chicago Convention which provides that "aircraft have the nationality of the State in which they are registered. The Chicago Convention likewise provides that every aircraft engaged in international air navigation shall bear its appropriate nationality and registration marks.

33

Chicago Convention

Article 17 Chapter III of the Chicago Convention provides that "aircraft have the nationality of the State in which they are registered.

The Chicago Convention likewise provides that every aircraft engaged in international air navigation shall bear its appropriate nationality and registration marks.

An aircraft cannot be validly registered in more than one State, but its registration may be changed from one State to another.

34

Aircraft registration

Civil Aviation Authority Act of 2008:

Secs. 43, 44, 45, 46, 47, 48, 54

35

State of Registry

State on whose register the aircraft is entered. Hence, an aircraft is a Philippine National if the same is registered with the Civil Aviation Authority of the Philippines.

36

The Certificate of Registration issued by the Civil Aviation Authority of the Philippines shall be deemed conclusive evidence of nationality for international purposes. T or F.

True.

The said certificate shall be carried aboard the aircraft in all its operations.

37

The registry of aircraft and any transfer, lien, mortgage or other interests in aircraft engines is maintained by the

CAAP - given the sole authority to register aircraft and liens, mortgages or other interests in aircraft or aircraft engines

38

An aircraft shall be eligible for registration if the following requirements are present:

1. The aircraft is owned by or leased to a citizen or citizens of the Philippines or corporations or associations organized under the laws of the Philippines at least 60% of whose capital is owned by Filipino citizens; and

2. The aircraft is not registered under the laws of any foreign country.

XPNS:
Foreign-owned or registered aircraft may be registered if utilized by members of acro clubs organized for recreation, sport or the development of flying skills as a prerequisite to any aeronautical activities of such clubs within the Philippine airspace.

39

No aircraft can be operated in the Philippines unless it displays nationality and registration marks. T or F.

True.

Permanent marking of aircraft nationality and registration shall be painted on the aircraft or affixed by other means ensuring a similar degree of permanence.

40

Nationality mark for Philippine registered aircraft

RP

41

The certificate of registration is conclusive evidence of ownership. T or F.

True.

XPN: in a proceeding where such ownership is or may be at issue.

42

All conveyances made or executed, which affects the title to, or interest in, any aircraft of the Philippine registry, or any portion thereof shall be registered with the CAAP. T or F.

True.

Sec. 49 of CAAA of 2008

43

The Authority shall record conveyances delivered to it in the order of their receipt, in files kept for that purpose, indexed to show:

(a) The identifying description of the aircraft;

(b) The names of the parties to the conveyance;

(c) The date of the instrument and the date and time it is recorded;

(d) The interest in the aircraft transferred by the conveyance;

(e) If such conveyance is made as security for indebtedness, the amount and date of maturity of such indebtedness; and

(f) All particular estates, mortgages, liens, leases, orders and other encumbrances and all decrees, instruments, attachments or entries affecting aircraft and other matters properly determined under this Act

44

The validity of the registration of voluntary dealings concerning aircrafts with the CAAP is subject to the following rules:

1) The registration is valid only with respect to the parties and their heirs, assignees, executors, administrators, devisees, or successors in interest, and any person having actual notice thereof

2) The registration is valid against all persons and any instrument, recording of which is required shall take effect from the date of its record in the books of the Authority, and not from the date of its execution.

45

Air commerce or commercial air transport

Refers to and includes scheduled or non-scheduled air transport services for pay or hire, the navigation of aircraft in furtherance of a business, the navigation of aircraft from one place to another for operation in the conduct of a business, or an aircraft operation involving the transport of passengers, cargo, or mail for remuneration or hire.

46

Domestic air commerce

Air commerce within the limits of the Philippine territory.

47

Domestic air transport

Air transportation within the limits of the Philippine territory.

48

Foreign air transport

Air transportation between the Philippines and any place outside it or wholly outside the Philippines.

49

International commercial air transport

Carriage by aircraft of persons or property for remuneration or hire or the carriage of mail between any 2 or more countries.