INDONESIA Law and Practice Contributed by: Stephen Igor Warokka and Mutiara Kasih Ramadhani, SSEK Law Firm
addressing the concept found in the following Articles of the Indonesian Civil Code. • Article 1244 obligates compensation for losses unless the obligor proves that non- performance was due to unforeseen events beyond their control, even in the absence of bad faith. • Article 1245 waives compensation if obliga - tions cannot be fulfilled due to uncontrollable circumstances or unforeseen events. In line with these provisions, the ICC also states that a carrier is not liable for delays or the safety of carriage if it can be proven that these issues arose from circumstances beyond their control which could not reasonably have been prevent - ed or mitigated. The Indonesian Civil Code and the ICC do not provide particular examples of force majeure, and the concept lacks specificity compared to modern international standards. It is therefore common for contracting parties to tailor force majeure clauses to suit their specific needs with - in their contractual arrangements. Indonesian law does not recognise the concept of frustration of contract. However, Article 1254 of the Indonesian Civil Code provides an alter - native concept, stating that all conditions that are intended to do something that cannot be done, something that is contrary to morality, or something that is prohibited by law are void and render agreements conditioned upon them not in effect. 8.2 Enforcement of the IMO 2020 Rule Relating to Limitation on the Sulphur Content of Fuel Oil Through Presidential Regulation No 29 of 2012, Indonesia has ratified Annexes III, IV, V and VI of
the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (the “MARPOL Convention”), which includes the “IMO 2020” rule. The IMO 2020 rule is further implemented through: • Directorate General of Sea Transportation Circular Letter No UM.003/93/14/DJPL-18 regarding Limitation of Sulphur Content in Fuel and Obligation to Deliver Fuel Consump - tion on Ships; and • Directorate General of Sea Transportation Cir - cular Letter No 35 of 2019 regarding Obliga - tion to Use Low Sulphur Fuel and Prohibition on Transporting or Carrying Fuel that Does Not Meet the Requirements and Management of Waste from Exhaust Gas Recirculation from Ships. Both of the Circular Letters make reference to Annex VI of the MARPOL Convention. In summary, the Circular Letters provide that, as of 1 January 2020, ships sailing in Indonesian ter - ritory are required to use fuel with a sulphur con - tent not exceeding 0.5% mass by mass (“m/m”). Indonesian-flagged ships that still use fuel with a sulphur content greater than 0.5% m/m must be equipped with an exhaust gas cleaning sys - tem or scrubber as approved by the Directorate General of Sea Transportation. Nonetheless, all Indonesian-flagged vessels sailing internation - ally are prohibited from transporting or carrying fuel with a sulphur content greater than 0.5% m/m for the propulsion/propulsion system or fuel for the operation of other equipment on board, starting 1 March 2020, unless exempted under the MARPOL Convention.
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