JAPAN Law and Practice Contributed by: Jumpei Osada, Masaaki Sasaki, Takuto Kobayashi and Hiroshi Ideyama, TMI Associates
er, etc” is widely construed as including ship- owners, voyage charterers, time charterers and slot charterers. “Servant, etc” is defined as “the servant of a ship-owner or salvor, or any other such person whose actions the ship-owner or salvor is responsible for”. The applicant must file an application to the local District Court to initi - ate limitation proceedings and, once the court has found its application appropriate, the court will order the establishment of a limitation fund by cash equivalent to the liability limit or by guar - antee made by a bank, insurance company or protection and indemnity insurance (P&I) club. Article 7 of the Limitation of Liability Act provides the information on how to calculate the limitation figure. A complex calculation is required to find the amount of the limitation funds, but the basic concept for the calculation is: (i) the limitation figure is calculated based on the gross tonnage of the vessel; and (ii) two types of limitation fig - ures are set out, one for claims arising out of only property damage and the other for all other claims (including claims arising out of death and personal injury). No further funds (eg, a deposit) are required to be provided. 2.5 Seafarers’ Safety and Owners’ Liability Japan has ratified the Maritime Labour Con - vention 2006 and it has been implemented into the Mariners Act (Act No 100 of 1947) since 2013. The purpose of the Mariners Act, in which the Convention has been directly or indirectly reflected, is to not only protect seafarers’ rights with regard to working conditions but also to ensure safety of navigation of vessels. The main parts of the Act provide: • basic conditions for seafarers’ work (such as seafarers’ employment agreements, hours of
work or rest and complaint handling proce - dures) as international standards; and • flag state inspections for vessels flying the Japanese flag and port state control for vessels flying a foreign flag so as to check if vessels comply with the Convention.
3. Cargo Claims 3.1 Bills of Lading
Contracts for international carriage of goods by sea under bills of lading are governed by the JCOGSA, which incorporates the essence of the Hague-Visby Rules, though with some variations. For example, unlike the Hague-Visby Rules, the JCOGSA extends the period of the carrier’s obligation for reasonable care of cargo from receipt by the carrier up to delivery to the receiver. The JCOGSA has force of law for the carriage of goods by sea when either or both of the port of loading or the port of discharge is located out - side Japan (ie, international carriage), regardless of whether a bill of lading is issued. In contrast, contracts for domestic carriage of goods by sea are subject to the Commercial Code. 3.2 Title to Sue on a Bill of Lading Under Japanese law, the lawful holder of a bill of lading is entitled to sue the carrier for loss or damage to the cargo, based on the contract of carriage on that bill of lading. Even if a bill of lading is not issued, the consignee has the title to make claims against the carrier after the cargo reaches the port of discharge, since the consignee is supposed to take over the shipper’s title at that time. Under Japanese jurisdiction, it would not be admittable to assign only title to sue without transfer of rights of the underlying claims (including transfer of a bill of lading).
321 CHAMBERS.COM
Powered by FlippingBook