on subjects
Spanish translation: Info
| 14:07 Jul 2, 2007 |
| English to Spanish translations [PRO] Tech/Engineering - Transport / Transportation / Shipping | |||||||
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|  Selected response from: Andy Watkinson Spain Local time: 14:34 | ||||||
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| 1 | Info |
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Answers
1 hr confidence: 
Info Explanation: Hola Paula, El tema es algo más complejo de lo que parece - como mínimo habría que saber de donde procede el original - US o UK. p.ej. "The subject is subjects The phrase 'subject to' sounds innocent enough, but is one of the great divides between maritime law on either side of the Atlantic. Michael Marks Cohen of Nicolleti Hornig Campise Sweeney & Paige in New York explains A COMMON practice in charter party negotiations is to fix on 'subjects.' In recent times, the most frequently discussed 'subject' has been the fixture based on a printed charter form 'subject details.' When one party walks away, the other party sometimes objects to the withdrawal as a breach of charter. Since the printed form often contains an arbitration clause, the issue is most frequently seen in the context of a suit to compel arbitration. In London, a fixture 'subject details' is viewed as an agreement with open terms, which generally is not a contract at all. By contrast, in America, such a fixture will be regarded as binding, and arbitration often will be ordered in a 'subject details' case. It is one of the great schisms in the maritime laws applied on opposite sides of the Atlantic. Other fixtures on 'subjects' likewise receive disparate treatment from English and American tribunals - for example, 'subject stem' i.e., cargo availability. In England, charterers who develop misgivings about whether a fixture 'subject stem' is advantageous can get out of it simply by failing to seek stem. By contrast, under American maritime law, charterers must exercise due diligence to obtain timely stem. It is not clear whether the differences in approach carry over into other kinds of 'subjects' cases. For example, where sale or charter of a vessel was subject to 'satisfactory survey' or 'satisfactory trials', the English courts emphasised that 'satisfactory' was a purely subjective standard. But a binding contract was found when its terms expressly required that the ship be made available for recovery, and at least one judge has observed that there may be an implied obligation to use diligence to have a survey held. Several English judges have remarked on the need for 'bona fide' dissatisfaction with survey or trials before a ship can be rejected. In the US, where a fixture is 'subject shippers'/receivers' approval,' charterers must exercise due diligence to seek timely approval, or they will be deemed to have waived the need for such approval. Potentially even more troublesome is the fixture 'subject management approval.' It is fashionable among charterers to treat this 'subject as creating an option in their favour i.e., owners are committed, but charterers are free to back away. This is very dangerous thinking. A fixture 'subject management approval' is not the same as a fixture 'subject reconfirmation.' The latter clearly creates an option, and nothing less than a notice by charterers lifting the subject will satisfy the condition. By contrast, under a fixture 'subject management approval,' a chartering manager must probably exercise due diligence to receive instructions from his supervisor. More to the point, he frequently will already have full authority to fix, especially a voyage charter. Absent supporting evidence that such a chartering manager actually contacted his supervisor, a court might well find as a fact that the 'subject' was a sham and the fixture, and therefore was fully binding when made, without the need for a later notice lifting subjects. A caveat. When a fixture is made 'subject management approval,' the chartering manager may still change his mind. In discussing the fixture with his supervisor, he is not obligated to argue for approval of it. His first duty is to tell his employer the truth. If a potential deal has soured, he must disclose this to his supervisor who is free, then, to reject it. In short, when a chartering manager has misgivings about a fixture 'subject management approval' he should be sure that his supervisor actually gives instructions to reject the deal before the deadline for lifting subjects, and a prudent chartering manager will contemporaneously make a paper trail by recording his instructions in his notebook or, perhaps, on the face of the fixture recap. http://www.maritimeadvocate.com/i23_usa.php |
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