Saturday, July 31, 2021

Form of Agency Contract

As a general rule, for the formation of an agency contract no special form is required unless the law provides that the contract of agency be made in a specified form (article 1719(2) and 2180 of the civil code), or the parties stipulate  that their contract be made in a special form (article 1719(3) of the civil code). 

 

Sources of Agency Authority

Source: Law of Agency Teaching Material

Introduction 

Obviously, an agent is a person who has the authority to act in the name and on behalf of another person called the principal. In other words, it is an authority given to the agent to perform juridical acts as a medium of an intermediary with another person called the third party. By juridical act, we mean acts having effects before the law. These acts performed within the scope of the authority granted, will bind the principal directly. That means the rights and obligations of the contract are that of the principal and the third party. The agent there is only to facilitate the formation of the contract and hence cannot be held liable for the non-performance by both the principal and the third party.

Friday, July 30, 2021

Theories and Development of the Law of Agency under the Civil Law Legal System

 Source: Law of Agency Teaching Material

In comparison to the common law concept of agency, the institution of the modern concept of contractual agency emerged and developed slowly in the civil law legal system. While „‟the Roman law of contract was, of course, found in its high scientific level, it never developed a complete theory of agency.

Theories and Development of the Law of Agency under the Common Law Legal System

Source: Law of Agency Teaching Material

The up-to-date concept of agency in the common law legal system is the outcome of many influences in its history. It is believed that agency was not part of the common law until the 13th century. However, owing to the master and servant relationships which emerged around the end of the12th century and beginning of 13th century. 

While we discuss the historical development of the theory of agency in the common law legal system, we can observe that, three main standards gave raise to the effective development. These factors are: 

Thursday, July 29, 2021

Genesis and Development of the Law of Agency

Source: Law of Agency Teaching Material

The concept of agency representation in the sense it is understood now emerged around the twelfth century (A.D) along with the salve and slave owner‟s relations. Since the early time, salves were considered as a mere chattel without any rights. It was logical to hold the owner legally liable for the acts of his slave, especially if the acts of the slave were done based on the direction of the slave owner. Hence this slave and slave owner relationship paved a way for the creation and the concept of representation. And during this time, the responsibility of a principal for the acts of his agent or servant was commenced. 

Wednesday, July 28, 2021

Why law of Agency?

Source: Law of Agency Teaching Material

The concept of agency reduces the cost of contracting. Though it increases the number of parties and transactions, it has made possible for individuals to utilize the services of others in accomplishing, for more than could be done by their unaided efforts. By contracting through an agent, the principal may reduce the cost of spatial and cultural distances, the need to acquire expertise, and the inconvenience of having to deal personally with all contracting parties. In the same manner, agency reduces the cost of internal organization and so indirectly the costs of contracting by facilitating specialization of function and expanding the scares resources of time, energy and knowledge available to the principal. In here not only does the principal benefits, but so does his contracting partner (The third party in agency law) who would otherwise bear some of the principals higher contracting costs in a less favorable contract price. In this case, the agent also benefits from the principal through compensation.

Definition of Law of Agency

Source: Law of Agency Teaching Material

The Law of agency is in most cases defined as the relationship between two persons, where one (the agent) may act on behalf of the other (principal) and bind the principal by words and actions .It is also defined as the relationship in which one person acts for or represents another by the latter‟s authority, either in the relationship of principal and agent, master and servant, employer or proprietor and independent contractor. The law of agency could also be defined as the judiciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so as to act.  (Black‟s law dictionary, 1991)

Friday, July 23, 2021

Thunes enables Ethiopia's Dashen Bank to make instant cross-border transfers to bank accounts and Amole mobile wallets

 Partnership with one of Ethiopia's largest private banks sees Thunes further extend its global payout network.

Source: Yahoo Finance

SINGAPORE and ADDIS ABABA, Ethiopia, July 22, 2021 /PRNewswire/ -- Thunes, a leading global payments network, today announced a partnership with Dashen Bank that makes it quicker and cheaper to send money to Ethiopia from around the world, directly to their bank accounts and Amole wallets.


Previously, customers making international money transfers and remittances to Ethiopia faced a slow, unreliable and expensive transaction process. Now, people can transfer money to Ethiopia instantly at more affordable rates using Thunes' network of sending partners which operates in more than 100 countries.


For added convenience, customers and businesses in Ethiopia will be able to receive funds straight into their bank accounts or in real time into their Amole wallets - the mobile money solution from Dashen Bank.


The cross-border payment solution will boost financial participation in Ethiopia as more people are expected to open bank and Amole wallet accounts to receive easy overseas payments. The enhanced remittance service will also boost the inflow of much-needed foreign currency to the country's economy, where funds sent from abroad are a vital lifeline for many communities.


"We are delighted to partner with Dashen Bank, one of Ethiopia's leading banks. Thunes continues to invest in and grow our network in the world's fastest growing economies. Our global partners can now give their customers enhanced access to this important corridor in Africa with faster and more convenient transfers. We look forward to working with more local players to simplify cross-border transfers for their customers," said Andrew Stewart, Global Head of Networks at Thunes.


Asfaw Alemu, CEO of Dashen Bank, commented, "We are pleased to partner with Thunes, a trusted global leader in the cross-border payments landscape. This technology-powered solution gives Dashen Bank's customers fast and convenient access to overseas funds via bank accounts and Amole mobile wallets. It's another positive step towards our goal of transforming Ethiopia's financial services sector and delivering innovations to serve our customers' needs better."

Thursday, July 22, 2021

Ride hailing app Little set to enter Ethiopia market

Source: BUSINESS DAILY

Kenyan ride-hailing firm Little is expanding to Addis Ababa joining Safaricom  and several other Kenyan firms in the race to crack the Ethiopian market that has so far remained closed to foreign firms.


Little chief executive officer Kamal Budhabhatti told Business Daily the firm will invest $5 million (Sh540 million) in the next five years, with plans to inject an additional $5 million based on its growth projections.


The company, which competes with global players Uber and Taxify in Kenya, Uganda, Zambia, and Tanzania, will start Ethiopia operations this months.


It will recruit 2,000 drivers targeting corporates and individual customers with plans to later launch food delivery, and outside Addis Ababa in the country of over 100 million people.


"Ethiopia has always been on our sight," Mr Budhabhatti said in interview yesterday.


The digital taxi firm becomes the latest Kenyan company to enter Ethiopia days after a Safaricom-led consortium received a telecommunication operator licence in Ethiopia, setting the stage for Kenya's largest telco to start operations in the market of over 100 million people.


Ethiopia’s award of a new telecoms licence paves the way to open the market to international investors for the first time, a key part of Prime Minister Ahmed’s economic strategy.


"When we saw Safaricom heading to Ethiopia, we got the courage to get there. It is a large market and we see an opportunity to extend our services there," said Mr Budhabatti.


Business Daily learned that Little will partner with State-run Ethio Telecom which recently launched a mobile money financial service dubbed telebirr.


“We have some great Ethiopian partners. We felt that it is a very large market, and for us to succeed there, we need to work closely with Ethiopian companies who would bring a wealth of local and cultural knowledge,” said Mr Budhabatti.


Several Kenyan firms have been eyeing the Ethiopian market for years due to the country’s huge population. The Kenyan firms are attracted by the growth potential in that market, whose 100 million population means a huge untapped business opportunity. Its population, which is the second largest in Africa after Nigeria, offers immense opportunities for business.


Ethiopia has kept foreign involvement in the economy at a bare minimum but its ongoing economic reforms look set to strengthen investor sentiment.


The horn of Africa nation has also consistently registered robust economic growth, averaging 10 percent in the past five years.


Besides telecommunications, the Ethiopian government last year announced plans to open up the aviation sector, the State logistics firm and electricity monopoly to private investment.


Shares in sugar factories are also being sold and tentative steps towards opening up the financial sector have been taken.


The Kenyan firms eyeing to crack the Ethiopian market include insurer Jubilee as well as lenders, KCB, Equity, Cooperative Bank and Stanbic.


Little says through its application one can access the delivery services, transport, doctor services, corporate services, and the wallet which enables one to send money, buy airtime, pay bills among other functions.


Escalating armed conflict in Ethiopia’s Tigray region pitting Tigrayan forces against the Ethiopian military and its allies from Amhara and the neighbouring nation of Eritrea has raised concerns over the investment climate in the country.

Constituents of Information Technology

  SOURCE: Introduction to Computer and the Internet Teaching Material

 

You have seen what information is and its characteristics. Now you will learn what technology is and what information technology constitutes.

What is technology?

You use the term technology in daily conversation at all places. Technology refers to all the means people use, their inventions and discoveries to satisfy their needs and desires. 

 

 What is Information Technology (IT)?

 

Information Technology is an interdisciplinary academic field that deals with the generation, collection, organization, storage, retrieval, and dissemination of recorded knowledge whether in the form of numerical data, text, sound, or image.

 

The three basic constituents of information technology are:

1.      Computers: to accept, process, store, and present information

2.      Communication networks: to allow information to be moved between points of communication. (A network will be explained in detail later in this module); and

3.      Know-how is the ability to draw on the power of IT to solve problems and to take advantage of the opportunities it creates.

 

The current IT is the result of centuries of development. The first form of humans’ communication was by use of speaking and drawing pictures which later developed into writing on clay, papyrus plant, leather, etc. before modern paper was invented. The Arab trade had also a great contribution to bring today’s numbering system (0-9) in 12th century. The invention of movable metal-type printing process in 1450 by Johann Gutenberg speeds up the process of printing. Book indexes make information retrieval possible, and the earlier concept of computer (slide rules, abacus, etc) contributed a lot for today’s information technology. 

 

What is a computer?   

          

A computer is an electronic data processing machine that is designed and organized to automatically accept and store data, process them, and produce output under the direction of a stored detailed step-by-step set of instructions. From this definition, you can infer that data processing consists of gathering raw data (input), evaluating and bringing order to the data, and placing it in proper perspective so that useful information is produced.

 

In other words, a computer is an electronic device that accepts data, performs computations, and makes logical decisions according to instructions that have been given to it; then produces meaningful information in a form that is useful to humans.

In very brief terms, a computer is a data processing device that converts raw data (facts and figures) into useful information that give meaning to the user.

             

Historical development of computers

 

We have all heard stories of primitive peoples counting their sheep by moving sticks or stones. Our base ten number systems undoubtedly grew from the use of 10 fingers as counting objects. Together with the development of people, the need to calculate and keep track of information had become a popular issue. So, they soon develop a simple computing device and it has a power of storing small information. However, many thousands of years elapsed before developing mechanical calculator.

 

 Some of the calculating devises are mentioned bellow: a) The Abacus

It is one of the earliest mechanical computational devices. It was in use in the Middle East  as early as 2500 BC The familiar Chinese abacus (dating approximately 1200 AD ) is composed of a frame and a number of wires. The wires correspond to position of digits in decimal number-units, tens, hundreds, and so on-and the beads represent digits. Beads above the cross bar represent 5 and  those below the cross represent1.

 

The abacus shows zero, if all the bead bellow the cross bar are at the lower frame and above are at the upper frame.

Addition of two numbers on the abacus can be performed by representing the first number and the second number without resetting the first. On any wire showing 10 or more, the two beads above the cross bar are moved back, and an extra 1 (the Cary) is added to the wire on the left. This process can be easily generalized to addition and subtraction of more than two numbers.

 

 

Pascal’s calculator

It is the first true mechanical calculator. In 1642, at the age of 19, the French philosopher and mathematician Blaise Pascal developed a rotating wheel calculator, the predecessor of the latter popular desktop calculator. He built it largely to assist his father, who was a tax collector in the town of Rouen Pascal’s calculator has one wheel corresponding to each power of 10; each wheel has 10 position, one for each of the digits (0,..9). Although Pascal’s calculator could only add and subtract; it could be used indirectly for multiplication (by successive addition) and division (by successive subtraction) as well.

 

The difference engine

It is the forerunner of the modern computer. Charles Babbage (1792-1871), a British mathematician and engineer, is considered by many to be the real father of today’s computer was the developer of the difference engine and designer of the analytical engine. The difference engine was also based on the rotating wheels principle and was operated by means of a single crank. This device has a power of calculation and print the out put with out human intervention. He finally designed significantly improved version of the difference engine (but not built) called Analytic Engine. It has the following different key components:

-          The store: A memory wheel consisting of a set of counter wheels

-          The mill: An arithmetic unit capable of performing the four basic arithmetic operations. It operated on pairs of mechanical registers and produced a result stored in another register, all of which were located in the store.

-          Operation cards: These cards selected one of the four arithmetic operations by activating the mill to perform the selected function.

-          Variable cards: These cards select the memory locations to be used by the mill for a particular operation (a source of operand and the destination of the result).

-          Out put: was used to print or a card punch device.

But, finally the design halt largely due to the technology of the day is not far enough too supply the required raw materials.

 

Herman Hollerith’s tabulating machine

Herman Hollerith was a statistician who in 1880 develop his machine commissioned by the U.S. Census Bureau to develop a technique for speeding up the processing of census data that took at least 8 years before. He developed his machine and it uses the punched card to punch the census data and tabulated by using his machine. This machine processes the 1890 American census data with in 3 years. It was really a great development. He finally began the tabulating Machine Company, which later becomes the International Business Machine Corporation (IBM)

 

Mark I

It was developed by Howard Aiken at Harvard University (1944), and it was the first electromechanical computer. Instruction was provided by means of punched paper tape, which combined the functions of Babbage’s operation cards and variable cards. Each instruction had the format:

A1 A2 OP where A1 and A2 are registers storing the operands OP is the operation to be performed (e.g. +,-, x,) Mark I could do a single addition in 6 seconds and division in 12 seconds

 

ENIAC (Electronic Numerical Integrator and Computer)

It was developed by Eckert and Mauchly at the University of Pennsylvania. This was the first electronic calculator and the first general purpose digital computer. This machine was enormous, weighing 30 tones occupying 15,000 square feet of floor space and containing over 18,000 vacuum tubes. When operating, it consumed over 140 kWh of power. It had a   capability of performing 5,000 additions per second. Its memory consists of 20   “accumulators” each capable of holding a 10 digit decimal number. Each digit was       represented by a ring of 10 vacuum tubes. At any time, only one of the 10 tubes was in ON   state, representing one of the 10 digits.

v        ENIAC did not use internally stored programs. Programs were wired on boards similar to a telephone switch board. 

v        One of the major drawbacks of ENIAC was that it had to be programmed manually by setting switches and plugging and unplugging cables.

 

G  The Von Neumann Machine

 The task of entering and altering programs for the ENIAC was extremely tedious. Von Neumann was the consultant on the ENIAC project and forward the stored program concept,

i.e. designing the computer to get its instruction by reading them from memory alongside the data and a program could be set or altered by setting the values of a portion of a memory. Based on this concept, the first true electronic computers were developed by the name EDVAC (electronic Discrete Variable Computer) and EDSAC (Electronic Delay Storage Automatic Computer).

 

 

Commercial Computers

The 1950s saw the birth of computers industry with two companies, Spery and IBM, dominating the market place. In 1947, Eckert and Mauchly develop their successful commercial computer called UNIVAC I (Universal Automatic Computer).

UNIVAC was the division of Remington Rand (later Sperry_Rand Corporation). IBM was also the major manufacturer of punched card processing equipment, and delivered its first electronic stored program computer, the IBM 701 in 1953.

Sources of Information

SOURCE: Introduction to Computer and the Internet Teaching Material

 From where do you get information? 

             

You can obtain information directly from other living beings, from mass media, from electronic data bank, from purchased books and documents, and from all sorts of observable phenomenon in the surrounding environment. In general, the various sources of information are classified in to two major categories: Documentary and Non-documentary sources.  

 

I. Documentary Sources: are documents or recorded sources of information in different forms. They are further categorized as Primary, Secondary, or Tertiary Sources. 

 

1) Primary Documentary Sources: Primary documentary sources are the first published records of original research works. These documents represent unfiltered and original idea. They highly contribute to the development as well as strengthening of a given subject or discipline. Some examples of primary documentary sources include: journals and periodicals, conference proceedings, reports, patents, standards, thesis and dissertations, government publications, etc.  

 

2) Secondary Documentary Sources: these sources are sources either compiled from the primary sources or referred to the primary sources. They consist distilled or refined information. They are produced after the primary sources. Some examples of secondary sources include: periodicals of some type, guides to books, indexes, bibliographies, text books, reference books such as encyclopedias, dictionaries, etc. 

 

3) Tertiary Documentary Sources: these sources do not contain subject matter knowledge, but guides to literatures or documents that are categorized under primary and secondary sources. Examples of tertiary sources include: catalogs in your library, indexing journals, guides to journals, telephone directories, subject guides, general guides, bibliographies of bibliographies, etc. 

 

II. Non-Documentary Sources: are sources that are not purposely organized and documented. They provide information that the primary and secondary sources do not. 

They are categorized into two: formal and informal. 

 

Formal non-documentary sources include professional societies, industries, research organizations, universities, government departments, etc. while the informal ones include conversation with colleagues, visitors, attendance to professional meetings, etc.  

Documentary sources by themselves do not satisfy your information need. Therefore, you have to be aware of what is found where and how you can get them. People, groups of professionals, organizations, information Bureaus and brokers, audiovisual materials, archives, etc are some examples of non-documentary information sources that provide you with necessary information that documentary sources lack. 

 Characteristics of information  

 

In order for information to be of value in decision making or taking action, it must satisfy the requirement of users and valuable and useful information has got the following characteristics: accuracy, timeliness, completeness, relevance, economic accessibility, flexibility, reliability, expandable/diffusive, substitutable, transportable, and sharable.  

 

Information is said to be: 

 

Accurate-     When it is free from any kind of errors; 

Timely -        If it is delivered at the right time when it is needed; 

Complete-    If it contains all important facts and figures required for specific purpose; 

Relevant -    If it is related and necessary to the problem at hand; 

Economical- When its cost of production is less than or equal to the benefit gained form it; 

Accessible -    If you get the necessary information easily in the right format; 

Flexible -       If the same information is used for various purposes;   

Reliable -      If it is dependable, 

Expandable /diffusive-    if it can reach every side of the world  

Substitutable-   if it can substitute every thing (land, financial capital, human being) Transportable-   if it can be transported easily in the form of its electronic form; and Sharable-    if it one can give information with out losing it. 

Factors that measure the quality of information 

 

Accuracy-the measurement of error, 

Timeliness-the time laps between the need and access, 

Reliability-the degree of confidence that the users have on information, and  Relevance-the importance of information for the purpose, 

 

Factors that measure the quantity of information include:  

 

Volume- university library has large volume than small college library, 

Accessibility-is removing any barriers that protect the dissemination and transfer of information from one person to the other or from one place to the other place. These barriers include politics, religion, culture ,Technology, economy, illiteracy, distance, jargon, etc 

Completeness -regardless of the volume, the university library might have incomplete information. 

Introduction to Computer and the Internet-Definition of terms and concepts

SOURCE: Introduction to Computer and the Internet Teaching Material

What is data? 

 

To understand more what information is, it is better to relate it with data that is used in the production of information. The meaning of data varies like that of information. Try to understand the following definition of data and then relate it with the meaning of information. Data is a collection of raw facts that represent figures, or details about people, objects, places, ideas or events. Data is a fact or figure collected from measurements or observations about people, events or objects. To illustrate data in detail let us take the administrative function of certain institution. 

 

In many institutions, the following activities are common:- Workers are paid salary, raw materials are ordered, finished goods are supplied, etc. The details (e.g. Name, Age, Sex Salary, Tax, Pension, Deductions, Net salary, Remark, etc.) of each employee and facts and figures about each material and product of the institution are referred to as data. In a library environment, to identify a certain book, the following could be considered as details (data): Title, Author, Publication date, Edition, Publisher, Place of publication, unique number (Call number) of the book, etc. 

 

Data can be defined as un processed information (information which is not organized, analyzed, or classified).One can associate data with raw facts, symbols or figures. 

 

What is Information? 

 

In popular usage, the term information refers to facts and opinions provided and received during the course of daily life. It is a collection of meaningful facts and figures that can be used as a base for guidance and decision-making. Any fact or figure is not necessarily information. To call it information, it has to be useful and meaningful for you (individual, group, organization, or society). 

Information can also be defined as something that some one did not know before. 

Information is something that reduces uncertainty. 

Information is a processed data. 

Information is a clue. 

 

What is Knowledge? 

 

In fact, defining knowledge is difficult as it includes many intangibles such as experience, intuition, judgment, skill and lessons learned. Oxford English Dictionary defines knowledge as “…the awareness and understanding of facts, truth or information gained in the form of experience or learning, the theoretical and practical understanding of a subject or what is known in a particular field”. The term knowledge is used very loosely as it may refer to recorded information such as documents and reports, available within the organization or internalized information which includes experience, emotions, values, hunches and contextual information. Knowledge can also be defined as “fluid mix of framed experience, values, contextual information, and expert insight that provides a framework for evaluating and incorporating new experiences and information. It originates and is applied in the minds of the knower”.  

According to the above definitions, knowledge and information are terms used interchangeably to describe the same concepts. The basic building block of knowledge is data. 

 “Knowledge is something that comes from information processed by using data”. Data is specific numerical or symbolic representations of facts about an item, concept or event out of context and with no relation to other things. On the other hand, information is useful organization and selection of facts by adding context through relationship of data. Therefore, knowledge is something that comes from the interpretation and understanding of information with respect to human interests and purposes. However, knowledge is subjective and has different meanings to different people, what is knowledge for one person can be information for the other. 

 

Wisdom can be defined as knowledge that has been implemented /utilized through application. 

The knowledge spectrum can be demonstrated as the collection of events becomes data, data when processed becomes information, information when understood becomes knowledge and knowledge when implemented becomes wisdom. Below event and above wisdom there is nothing, it is more if spiritual rather than material. 

Tuesday, July 20, 2021

RIGHTS IN REM RELATING TO THE SHIP AND THEIR ENFORCEMENT


Apart from the ship, rights in rem related to the ship have to be entered into a registry. Such right in rem include agreements inter vivos, voluntary acts (gratuitous or for consideration), judgments which are final. In general, all acts having as their object to set up, transfer, declare, modify or extinguish a right in rem in a registered ship shall be registered. Such acts take effect only as of the date of entry into the Register (Art. 50, Mar. Code).

 

MARITIME LIENS AND MORTGAGES

 

Both maritime lien and ship mortgage are security rights over things (e.g. ships, fright and cargo), although the former is created by law. Mortgage is created by a written contract which must be registered before it takes effect. The enforcement of these two security rights is discussed following a look at the details of (1) maritime lien and (2) ship mortgage.

 

A. Maritime Liens

 

The expression “maritime lien” has been used in Common Law countries, in particular in England, since 19th century and is expressly or implicitly recognized by legislation in most maritime nations. It is also recognized by international treaties: for example, the 1952 International Convention Relating to the Arrest of Seagoing Ships and the 1967 International Convention for the Unification of Certain Rules Relating to Maritime Liens and Mortgages. Before embarking on the Ethiopian laws on maritime liens, let’s first direct our attention to the definition, nature and characteristic of maritime lien in general.

            

Though widely utilized and recognized, maritime lien’s definition can hardly be traced in either international laws or domestic legislations of maritime nations. Judicial and scholarly definitions of maritime lien in common law countries place too much emphasis on procedure. In the USA and Civil Law countries, however, maritime liens have long been regarded as substantive right rather than as procedural remedies. Accordingly, R. Force and A. Yiannopoulos, authors of Admiralty and Maritime Law, define maritime lien as:

 

            “…a secured right peculiar to maritime law. A lien is a charge on property for the payment of a debt, and a maritime lien is a special property right in a vessel given to a creditor by law as security for a debt or claim arising from some service rendered to the ship to facilitate her use in navigation or from an injury caused by the vessel in …waters.”

 

This formulation embodies that maritime lien is a right. It is created to protect the interests of the creditor/lienholder and is thus essentially a right or interest. More specifically, it is a right in rem – in a thing. The maritime lien is, as a right, held by a creditor and established in a vessel. So it is a kind of “property right.” The subject matter of such a property right is, however, specified and is limited only to maritime property. “Maritime property” refers to a ship, its appurtenances, the cargo on the ship and/or freight. Finally, the definition also reflects maritime lien is something more than a mere right in rem – a right of property serving as a security for a maritime claim.

 

One fact the definition does not take into account is that maritime lien is a right which can be executed only by judicial process. It is not self-executing. In order to satisfy his claim, the only thing a lien holder can do is bring a lawsuit before a court. The court may then arrest and subsequently sell the arrested ship to enforce the maritime lien when the owner of the ship concerned refuses to furnish sufficient bail or other dependable security. Thus, a maritime lien is not actually a lien (i.e. a right of detention) in the sense of either the Common Law or the civil law parallel. The major characteristics of maritime lien are further discussed by Wu Huanning in his article China and Maritime Law. Excerpts:

 

Wu Huanning, China and Maritime Law, 5 MLAANZ Journal (1988), pp.19 ff.

 

As a property, a maritime lien has retroactivity. It is not influenced by transfer of title or possession. No matter how many times the property may change hands, the maritime liens remains in the hands of the lienholder.

 

As a property right, a maritime lien may generally be assigned, although some early American cases denied such an assignment.… [A] maritime lien is secret in nature. A maritime lien comes into existence automatically without antecedent formality. It is created only by statute or by historically acknowledged situation in the general maritime law. No maritime lien can be conferred on a claim by agreement between parties concerned, nor by a court, even one having admiralty jurisdiction. No record and no registration of it is required. It exists only at law. Therefore, a maritime lien may well be unknown to creditors other than the lienholder. Thus the maritime lien may operate to the prejudice of such creditors including mortgagees and every innocent purchasers without notice of the lien. So, one who wants to buy a second-hand vessel must be very careful to find out whether there is a maritime lien attached to the vessel.…A maritime lien is an “accessory” or “secondary” right or interest. A maritime lien is not independent, but secondary and subordinate, in nature. Because it is created to provide a security for a principal claim (credit), it belongs to the realm of accessory rights. In other words, a maritime lien created secondary to the creation of a principal maritime claim and it is extinguished when the maritime claim secured by such a lien is extinguished (say, when the claim is satisfied)…A maritime lien is a “preferential” right. The creditor who is entitled to a maritime lien on the vessel of the debtor enjoys a higher priority than other creditors in receiving payment. The priority, however, is relative in nature. It arises only in the case where the proceeds of the sale of an arrested vessel are insufficient to satisfy all maritime claims made on the same debtor, specifically, on the shipowner, including those secured by various other competing liens. Only in this situation will the holder of a maritime lien enjoy priority over other claimants, even over the claimant under a secured mortgage. Otherwise, the priority of a maritime lien will not assume crucial importance.

 

A maritime lien is an “inedible” right. By virtue of the fact that a maritime lien travels with the property into whoever’s hands the property may pass, the right in the nature of a maritime lien is frequently described as an indelible right…Here the word “inedible” is used in a relative. I mean that a maritime lien cannot be expunged until the original debt is cleared up or the period stipulated by law has expired, or the arrested vessel has been sold an Admiralty Court.

 

To sum up, it can safely be said that the maritime lien is assort of special, extraordinary legal system peculiar to maritime law.

 

Laws relating to maritime lien are an area where uniformity is sought. The need for uniformity and the unsatisfactory results so far achieved were noticed by M. Huang:

 

M. Huang, Maritime Liens in the Republic of China, 8 J.Mar.L. & Com. (1976-77)

 

Cases involving maritime liens…are apt to posses more international elements than most other maritime disputes. With respect to one and the same ship, the lienors…may each have a different natonality. Liekewise, liens may each have accrued in a different country. The Comite’ Maritime International, therefore, attempted to promote international uniformity by drafting model rules which resulted in the Brussels Convention of 1926 for the Unification of Certain Rules of Law Relating to Mortgages and Liens. A new Convention was also concluded in 1967. Unfortunately these Conventions failed to achieve ratification by the signatory nations required to accomplish the desired result. Chance continues to play a very important role in determining rights in a vessel, whether arising out of contract claims, tort claims, or security interests. With laws of nations differing so widely on the creation and enforcement of maritime liens, a lienor may have his claim substantially satisfied or entirely shut out, depending upon the jurisdiction in which the vessel is attempted to be seized and sold.

     

Maritime lien – “special legal system peculiar to maritime law” –is made part of Maritime Code of 1960. In regard to the types of transactions giving rise to a lien, it is provided by Article 15 of the Code that the preferential claims listed below are entitled to maritime lien right in the order stated:

 

  • Legal costs and other expenses incurred in the common interest of the creditors, in order to preserve the ship and to procure her sale; tonnage, dues, light or harbour dues and other public taxes and charges of the same nature; pilotage dues and the cost of watching and preservation from time of entry of the ship into her last port;  

 

  • Claims arising out of the articles of agreement of the master, the crew and other persons engaged in the service of the ship;

 

  • Remuneration due for assistance and salvage and the contribution of the ship in general average;

 

  • Indemnities in respect of collision and other accidents of navigation, as well as for damage caused to works forming part of harbours, docks and navigable waterways, and the cost of removal of objects obstructing navigation, due to the acts of the ship, indemnities for bodily injury to passengers and crew and indemnities for loss of or damage to cargo and baggage;

 

  • Claims arising out of contracts entered into or acts done by the master outside the home port within the scope of his authority where such contracts or acts are necessary for the preservation of the ship or the continuation of the voyage, whether or not the master is at the same time owner of the ship and whether or not the claim is his or that of the chandlers, repairers, lenders or other contractual creditors;

 

  • Resulting damages due to charterers;

 

  • The amounts of premium for insurance taken out on the hull of the ship and the fittings and equipment of the ship due for the last voyage insured in the case of a voyage policy or  for the last period insured in the case of a time policy, but not exceeding one year’s   premium in both events;

 

  • Any claim based upon an inaccurate or incomplete statement in a bill of lading.

 

Under Ethiopian law, it is only the above enumerated claims that are secured by lien in their order of priority. One should note that the order is of importance only when competing liens claims are not satisfied by the total assets of the ship to which the liens is attached. The sale of the ship generates a fund out of which claimants share. Where this fund, or a comparable security posted by the shipowner to secure the vessel’s release (Art. 54(2)), is insufficient to satisfy all valid liens and claims, the priority of the different categories of claims plays a role in specifying who first enjoys the share from the insufficient fund. The ranking of maritime lien claims depends upon whether there is more than one voyage. As per Art. 17, claims arising out of the same voyage rank in the order listed above. However, if claims arise out of different voyages, claims secured by lien in the last   voyage of whatever priority shall be preferred to those of previous voyages except when they relate to crew’s articles (Art.16, Mar. Code).  Thus under Ethiopian law, like in many other maritime nations and the 1926 Brussels Convention, time is the governing consideration. The liens should be arrayed according to voyages, and class rank would then operate only within each voyage. Maritime liens pertaining to the same voyage rank according to the order set forth in Article 15. The maritime liens from classes (1) to (5) inclusive take precedence over ship mortgages (Art. 20) which will be further treated in the forthcoming sub-heading. In the event that there are several claims within the same group, they are indemnified concurrently and rateably (Art. 17 (2)). However, in the event that under sub-paragraph 3(i.e. assistance) or sub-paragraph 5(i.e. ship’s stores and repairs) of Article 15, there are two or more claims pertaining to one and the same kind, the one arising later is to be paid in priority order (Art.17 (3)).

 

There might arise several claims from a single accident. For instance, collision, salvage and general average may take place simultaneously at a time. But, it is sometimes, quite hard to prove timing in such an emergency. In order to avoid the difficulty of proof, therefore, Article 18 provides that: “Claims arising out of the same maritime incident shall be deemed to have come into being at the same time.” Thus, they are paid pro rata without precedence.

 

Properties to which maritime liens attach are provided in Article 21. Accordingly, the ship, the freight and ship’s accessories are properties to which lien right attach. For this purpose, the Code defines ship’s accessories and freight under Article 22-23. Lien rights attached to the hull of the ship follow the ship into whatever hands she may pass (Art. 25, Mar. Code) unlike liens on freight and ship’s accessories which subsist only for so long as the freight/accessories has not been paid or so long as the amount thereof is held by the master or by the owner’s agent.

 

Maritime liens may be extinguished in several ways. The following modes of extinction are common to all liens, maritime and non-maritime, as well as mortgages: payment of the debt, renunciation, acquisition of ownership of the property by the claimant/s, total destruction of the property, and waiver of lien right. Apart from these, period of limitation plays an important role. According to Article 26 of the Maritime Code, maritime liens shall cease to exist at the expiration of one year; provided that the lien referred to in Art.15 (5) cease at the expiration of six months. It is desirable, in order to protect the third party, to prevent a secret accumulation of privileges on the vessel by providing for the rapid extinction of the right of preference. The law does not prefer those “who sleep on their rights”. The period of limitation reduces the status those favored but dilatory claimants to the rank of an ordinary claimant.

 

The dates starting from which the period of limitation run for different claims secured by lien are provided under sub articles 2 and 3. Though the duration of maritime lien is, in principle, limited to one year, sub-article 5 provides for the suspension of the period of limitation in the event it “has not been possible to arrest the ship in the territorial waters of [Ethiopia]… provided the period of limitation shall not in such event exceed three years from the time when the claim originated. This seems a very good compromise for the interests of lienors who might have been prevented from arresting the vessel by circumstances beyond their control and might have suffered extinction of their liens on the one hand and the certainty that would be brought for third parties and owners by the definite period of limitation on the other.

 

B. Ships Mortgages 

         

Ships of two tonnages and above may be mortgaged under an agreement between parties (the mortgagor/shipowner and the mortgagee/creditor). Unlike mortgage of immovables (see Art. 3041 ff., Civil Code), ship mortgages may not result from the law (Art. 30, Mar. Code).

 

A ship under construction can be the object of a mortgage as can be a ship which is complete (Art. 33, Mar. Code). Ship mortgages may be created only by the shipowner or by the person who is specially authorized by the shipowner (Art. 31, Mar. Code).

 

Ship mortgages attach principally to the hull of the ship. It is not attached, unlike maritime liens, to the freight. Nor is it attached to Government bounties and insurance compensation (See Art. 32, Mar. Code). In addition, ship mortgages, to get effect, have to be created by a written contract which must be registered in the Register at the port office where the ship is registered. Registration preserves the mortgage for a period of five years from the date thereof (Compare this with effect of registration of a mortgage on immovables under Art. 3058, Civil Code). The mortgage cease to have effect where not renewed before the expiry of five years (Art. 37 (1), Mar. Code).

 

In the event a mortgagor defaults on its obligation secured by a ship mortgage, the mortgagee may enforce the mortgage through a court action. If two mortgage rights co-exist, their relative priority becomes relevant. The Maritime Code, under Art. 38 (1), spells out the respective priority between plural mortgagees. The article states: “Claims secured by registered mortgage of a ship or a share thereof may follow the ship into whatever hands she may pass in order to be classed and paid in the order of registration.” This is comparable with the rules relating to “plurality of mortgagees” in the Civil Code.

 

In connection with our discussion on maritime lien priorities, we did see that maritime liens from classes (1) to (5) inclusive (of Art. 15, Mar. Code) take precedence over ship mortgages. The respective priority between the lien for damages caused to charterers (Art. 15 (6)) and the ship mortgage is, however, unclear. The scholarly views in other maritime nations vary. These views include:

 

  1. Both are paid pro rata without precedence.
  2. First in time, first in right.
  3. Ship mortgage is paid first.

 

The third view has gained the sympathy of those scholars who consider the secretiveness of maritime lien as inequitable and those who believe maritime law should provide mortgages with protection sufficient to insure the viability of this important financing device.

 

Finally, a mortgagee’s rights in the vessel are protected against seizure in a foreign port. A valid mortgage encumbering an Ethiopian vessel which is arrested and sold at auction in a foreign port survives the foreign sale as well unless the mortgagee has been duly notified of the foreign proceeding and been given an opportunity to exercise his rights in the proceeds of sale ( Art. 44, Mar. Code).[1]



[1] Note that the term “mortgagor” is incorrectly employed under Article 44 of the Maritime Code.

Monday, July 19, 2021

REGISTRATION OF VESSEL AND RIGHTS IN REM RELATING THERETO

 

Ordinarily, a state confers its nationality on a ship by registering the ship and issuing documents evidencing the ship’s nationality. For this purpose, registries are kept at suitable places, usually at home ports. The same was envisioned under Article 45 of the Maritime Code.

For Ethiopia was a coastal state at the time of the enactment of the Code, the Code provided the keeping of registries in every port designated by the Government of Ethiopia. The impracticability of this provision of the Code has been obvious since 1991. Accordingly, a 1996 Council of Ministers Regulation put things right. Under Article 4 of Registration of Ships Council of Ministers Regulations No 1/1996 the following is provided: “Addis Ababa or other towns designated by the appropriate body shall serve as a place(s) port(s) of registration.” Also, the same Regulation empowers the Ministry of Transport and Communications to carry out the registration of ships and other related activities. 

Now, it is the Maritime Affairs Authority (answerable to the Ministry of Transport and Communications) that registers all vessels and any rights relating thereto. The Authority also issues registration marks to vessels; approve vessel christening; inspect and issue seaworthiness certificates; specify the type of services for which vessels are to be used; preserve and regulate conditions as to the construction, assignment, maintenance and repair of vessels. Apart from these, the administrative tasks of the Authority include licensing and control of seafarers, pilots and other persons working on board a vessel.

 

All Ethiopian ships shall be registered at the time and in the manner prescribed (Art.47, Mar. Code). At this point, one may ask what the particulars of registration are and why they are needed. The policy underlying the registration of ships is comparable with that of the registration of real properties. Primarily, the registration provides prima facie, if not conclusive, evidence of title to the vessel in disputes as to title. Accordingly, the documents required and kept by the regsirar, in most cases, include title documents. 

In connection with this, the registrar verifies the eligibility of a ship to be Ethiopian. i.e., it inquires into who actually owns the ship. Apart from this, since most maritime nations stipulate seaworthiness of the ship at the time of registration [and periodically after that], documents evidencing the time and place of building of the vessel are required. Finally, the marks of the ship –the names and official number and tonnage –are entered into the register. In short, documents evidencing title to the vessel, statements as to the time and place of building of the ship, and shipping marks are the major contents the registration.

 

Once the ship is duly registered, a certificate of registry is issued which is usually kept on board ship.  Any vessel registered by the Authority has to pay to it (1) annual charges levied by the Authority, (2) service fees, and (3) vessel registration fees (Art.13, Maritime Sector Administration Proclamation).

 

A vessel is removed from the Register of Ethiopian vessels if the ship is sold to a foreigner, or has been lost (Art. 48, Mar. Code). In contrast, in flag of convenience states, a vessel is removed from registers even when the owner has requested so. Under our law, registration seems to be an obligation, not a right. An owner who intentionally avoids registration of a ship which is subject to registration will be guilty of a criminal offence (Art. 49(2) of Mar. Code cum Art. 434 of FDRE Criminal Code).

 

Will a ship be written off the registry if, for example, the owner fails to pay annual charges for more than, say, six years? In some jurisdictions, in particular in flag of convenience countries, a vessel will be written off the register if it fails to pay such charges. The law in Ethiopia does not attach such a penalty for failure to obey the provisions of pertinent maritime legislations. However, the Maritime Sector Administration Proclamation stipulates: “any person who violates the provisions of this Proclamation…shall be punishable in accordance with the Penal Code.”

OWNERSHIP AND NATIONALITY OF SHIPS UNDER ETHIOPIAN MARITIME LAW

 

A ship is a special movable property (Art.3, Mar. Code) with peculiar features. The right of ownership of a ship is equivalent to ownership of movable goods (chattels) of a special character. Accordingly, delivery of a ship is not necessary, as it is of other goods or chattels, in order to pass ownership to the purchaser (see Arts.45 ff. of the Maritime Code).

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