INDONESIA Law and Practice Contributed by: Stephen Igor Warokka and Mutiara Kasih Ramadhani, SSEK Law Firm
stitute maritime claims that may be submitted to the courts, as described in 5.1 Ship Arrests .
was caused intentionally or if damage occurred as a result of a material or significant offence carried out by the carrier. The Shipping Law further stipulates that one of the maritime liens for which payment should be priori - tised is compensation for death or medical expenses for bodily injury, whether occurring on land or at sea, directly related to the operation of the ship, and other losses resulting from physical damage/injury caused by the operation of the ship. 7. Enforcement of Law and Jurisdiction and Arbitration Clauses 7.1 Enforcement of Law and Jurisdiction Clauses Stated in Bills of Lading Indonesian courts will recognise and enforce law and jurisdiction clauses in bills of lading, as long as the bill of lading fulfils the requirements under Article 1320 of the Indonesian Civil Code for a legitimate contract under Indonesian law. Under Article 1320, a legitimate contract requires: • the free consent of the parties; • the legal capacity of the parties to conclude an agreement; • an object of the contract that is defined or specific; and • a lawful purpose or admissible cause. The freedom of contract principle under Article 1338 of the Indonesian Civil Code will apply to a bill of lad - ing if the requirements for a legitimate contract are met. This principle allows the parties to choose the law applicable to their contract and the jurisdiction to settle any disputes arising from the contract. The implementation of this principle was applied in a Supreme Court decision in January 1986, meaning the freedom of contract principle is recognised and utilised by Indonesian courts as a basis to adhere to the parties’ choice of law. In the 1986 Supreme Court decision, the bill of lading of the parties contained the following statement: “The contract evidenced hereby or contained herein shall be governed by English Law. Any claim or other dispute thereunder shall be solely
6. Passenger Claims 6.1 Laws and Conventions Applicable to the Resolution of Passenger Claims Indonesia has not ratified any international conven - tions regarding the resolution of passenger claims, including the Athens Convention relating to the Car - riage of Passengers and their Luggage by Sea of 1974. However, Article 522 of the ICC stipulates that the carrier is required to compensate passengers for losses suffered because of the voyage. Losses caused by the passengers themselves are not within the scope of this compensation. If an injury results in death, the compensation will be made to the spouse, children and parents of the deceased. If passengers are transported based on an agreement with third par - ties, Article 522 of the ICC provides that the carrier will be responsible to the third party, the passenger and their heirs. According to Article 741 of the ICC, the time limita - tion for filing a claim is one year after the arrival of the vessel or, if the vessel did not arrive at the destination, one year after the commencement of the transport to the place where the passengers were to be unloaded. The available limitation on liabilities for owners who are also the carrier of the vessel applies if the loss is caused by injuries sustained by the passengers trans - ported by that vessel. Article 525 of the ICC limits the responsibility of the owners to pay only 50 gulden per cubic metre of the net content of the vessel. However, if the vessel is mechanically operated, the amount of payment will be calculated according to the net content of the vessel that is deducted from the gross contents for the space occupied by the propulsion apparatus. The amount of 50 gulden is used, as the ICC was enacted dur - ing the Dutch occupation of Indonesia and has not been amended. In practice, the damages are usually determined by judges through court decisions. If the goods carried by the passengers or their heirs suffer losses, the carrier will be wholly liable if the damage
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