JAPAN Law and Practice Contributed by: Jumpei Osada, Masaaki Sasaki, Takuto Kobayashi and Hiroshi Ideyama, TMI Associates
5. Passenger Claims 5.1 Laws and Conventions Applicable to the Resolution of Passenger Claims Convention and Domestic Law Japan has not ratified the Athens Convention on Passengers’ Liability. The rights of the passen - ger to claim for damages against ocean carriers are governed by the passenger transportation agreement and the Commercial Code. Carrier’s Liability for Passengers With regard to liability for death or personal injury of passengers, there is no legislative limi - tation in favour of the carrier. Further, any agree - ment which limits or releases a carrier’s liability for death or personal injury of passengers is deemed to be null and void, except for the dam - age mainly due to delay, Act of God, or liability for passengers who may suffer damage from normal vibration or other similar causes, which is normal for ocean transportation. Nature of Liability of the Carrier and Burden of Proof The nature of a carrier’s liability for passengers is not strict liability; however, the burden of proof on the exercising of due care by the carrier or its employees lies with the carrier (Article 590 of the Commercial Code). Time Bar for Passenger Claims The time bar for passenger claims for personal injury or death in relation to transportation as a tort claim is five years from the time when the passengers first become aware of the damage and the wrongdoers, or 20 years from the time when the damage occurs. For a contractual claim, the time bar is five years from the time when the passengers first become aware of the damage and the wrongdoers, or ten years from the time when the damage occurs.
Maritime Lien for Indemnities for Injuries of Passengers A maritime lien for indemnities for injuries of pas - sengers is recognised to the extent that such injury is directly in connection with the navigation of the vessels in question. 6. Enforcement of Law and Jurisdiction and Arbitration Clauses 6.1 Enforcement of Law and Jurisdiction Clauses Stated in Bills of Lading If a bill of lading indicates a specific foreign law as a governing law, Japanese courts will respect and accept that foreign law. In the absence of a governing-law clause in a bill of lading, it would be extremely difficult to predict the decision on what laws should be applicable to and govern the bill of lading. In practice, almost all bill of lad - ing forms issued by Japan-related carriers have a governing-law clause. Japanese courts also are inclined, broadly, to admit and enforce an exclusive jurisdiction (and arbitration) clause on the reverse side of a bill of lading. This means that the courts will dismiss a claim brought to an undesignated jurisdiction under a contract of carriage covered by a bill of lading. 6.2 Enforcement of Law and Arbitration Clauses Incorporated Into a Bill of Lading Where a bill of lading has clear clauses or word - ing for the incorporation of the terms set out in a specific charterparty, the incorporation of those terms (including the jurisdiction and dispute resolution clauses) into the bill of lading would be adopted by Japanese courts. However, the details of what the courts require for such incor -
326 CHAMBERS.COM
Powered by FlippingBook