Análisis General

CODE, COMMERCIAL CODE / II. Two, RIGHT AND OBLIGATIONS ARISING

FROM SHIPPING / Chapter II, SHIP ENTREPRENEURS AND SHIPPING

ENTREPRENEURS / 02-02-00, II. SHIP ENTREPRENEURS AND SHIPPING

ENTREPRENEURS

Indonesian

Book: II. TWO. RIGHTS AND OBLIGATIONS ARISING FROM SHIPPING Chapter: II. SHIP ENTREPRENEURS AND SHIPPING ENTREPRENEURS Article: 320-340

Article 320.

Ship entrepreneurs are persons using vessels for shipping at sea navigating by themselves or by employing a captain. (Commercial Code 309 etc., 323, 341, 453, 751; Civil Code 806, 813.)

Article 321.

Ship entrepreneurs are bound by legal actions undertaken by those permanently or temporarily employed on board of the vessel concerned, in their respective capacities, within the scope of their respective authorizations.

Ship entrepreneurs shall be responsible for damage caused to a third party by an unlawful act committed by those working permanently or temporarily on the vessel concerned for the purpose of the vessel concerned or the cargo thereof, in their respective capacities or in the course of implementing their respective duties. (Civil Code 1233, 1367; Commercial Code 318, 322, 326, 331, 342, 344, 358a(3), 360-363, 365, 373, 397, 474, 525, 539, 541, 751.)

Article 322.

Parties who, prior to the registration of the lease or borrowing of a vessel in the vessel registry, based on the provisions of the first paragraph of the above article, obtain a claim towards the lessee or borrowing party, may also sue the owner the vessel concerned, unless at the time of incurring such claim they were aware of such lease or borrowing.

The owner of a vessel may claim the above mentioned payment to the lessee or the borrowing party. (Civil Code 1548, 1740; Commercial Code 314, 751.)

(Legalized by S.1938-1 jo.2.)

If a vessel is owned by several persons who, on a basis other than the company agreement intended in Book One Chapter III, use it at joint cost for shipping at sea, then there is a shipping company among them. (Civil Code 514, 1618; Commercial Code 324 etc.)

Article 324.

Membership in a shipping company shall be transferred entirely or partially by the transfer of the ownership right for the vessel's entire or partial shares. (Civil Code 514, 1641; Commercial Code 313, 323, 333.)

Article 325.

A shipping company shall not be liquidated by cause of bankruptcy or the demise of one of the members, placing such member in an institution due to mental illness or under custody. (Civil Code 433 etc., 1646; Commercial Code 333, 335, 340e; F.19, 22 etc., 34, 55, 60-62; Insanity (Kr.) 10 etc., 22 etc., 37.)

No termination of membership in a shipping company may be requested; likewise, the membership of a member in the shipping company cannot be declared lost.

Article 326.

Members of a shipping company shall be responsible for the commitments of their company, each of them proportionately to their respective shareholding in the vessel concerned. (Commercial Code 18, 321, 323 etc., 333, 340.)

Article 327.

A book-keeper may be appointed in a shipping company. A company may be appointed as book-keeper. (Civil Code 1792 etc.; Commercial Code 15 etc.; 36 etc., 323, 329, 331 etc., 333, 334; Tbs.19(3).)

Article 328.

If the book-keeper is a member of a shipping company, if the company terminates him from employment, he shall be entitled to claim that his shares be taken over by the company at a price deemed appropriate by experts, unless the company terminates such employment due to a pressing reason.

The book-keeper shall have the same rights, if he terminates employment due to a pressing reason, as granted to him due to the company's deliberate action or fault. (Civil Code 1603e etc., 1603o and p; Commercial Code 329, 333.)

Article 329.

The appointment and termination of book-keeper cannot be quoted as a reason to third parties until this matter is recorded in the vessel register, unless they are aware of this

Article 330.

If the appointment of an book-keeper is not evident from the vessel register or the person appointed based on the vessel register as book-keeper passes away, is placed in an institution due to mental illness, is placed under custody, is declared bankrupt or does not reside in Indonesia, one or more members of the shipping company jointly or severally owning more than half of the shipping company may represent the shipping company inside or outside court, and they may represent and act for the shipping company concerned. If the appointment of book-keeper is not evident from the vessel register or one of the conditions intended in the first paragraph occur, the shipping company concerned shall have legal domicile at the place the central vessel register is maintained for [the purpose of] vessel registration. (Civil Code 17 etc., 433 etc.; Commercial Code 314, 323, 327, 333; Insanity (Kr.) 10 etc., 22 etc., 37; Tbs. 7.)

Article 331.

The book-keeper shall be authorized to act with third parties for his shipping company and to represent it both inside and outside the court concerning all matters usually transported by the vessel concerned in accordance with its stipulated purposes.

The limitation of the book-keeper's authorities may only be quoted as a reason to third parties if this matter is known to such parties. (Commercial Code 323, 327 etc., 329, 332 etc., 338 etc., 340a-d; Tbs.7.)

Article 332.

A judge's order in respect of the shipping company or an book-keeper in his capacity as such may be executed in respect of the joint assets of the owners of such shipping company. (Commercial Code 323, 327, 333, 361.)

Article 333.

No deviations may be made from the provisions of article 324-332. (AB.23.) Article 334.

All decisions concerning the shipping company's affairs must be made based on a majority of votes by members of such shipping company.

The smallest share shall grant the right to cast one vote, a larger share to a number of votes proportionately to the multiplication thereof, so that such shares shall include the smallest share.

Decisions concerning the appointment of a book-keeper not residing in Indonesia, non-member of the shipping company concerned, non-Indonesian citizen, not a company intended in article 31 of this Commercial Code treated equally as an Indonesian citizen, concerning the sale of the vessel other than by public auction and the dissolution of the shipping company in the course of a charter or a voyage undertaken, must be made based on unanimous votes. (Civil Code 14 etc.; Commercial Code 313, 327, 330, 335, 337, 340d and g, 452 etc.; Certificates of Registry (Zeebr.) 2.)

Article 335.

If due to an obstacle in collecting documents hinders the usage of the vessel concerned, upon the request of one or several members of the shipping company concerned, and after hearing or properly summoning all of the members, the judge may order the sale of the vessel concerned in a public auction. (Commercial Code 321, 334, 340e.)

Article 336.

Each member of the shipping company concerned shall be obligated to bear the expenses of the company concerned proportionately to the shares owned by them. (Commercial Code 326, 340.)

Article 337.

If it is decided to repair the vessel concerned, except during a voyage, or to undertake a new voyage, each member of the shipping company concerned not participating in making such decision may expect that those who participated in making such decision shall take over their respective shares at a price assessed by experts at the time such take-over is expected.

He [such member] must notify the book-keeper of his expectation for take-over, or in the event that there is no book-keeper those having cast affirmative votes, within one month after he is informed of such decision.

Each of those obligated to take over shall obtain a portion of the transferred shares proportionately to their respective shares in the vessel concerned. (Commercial Code 323, 327 etc., 334, 338(2), 362.)

Article 338.

In respect of the shipping company, the above mentioned book-keeper shall always be obligated to act in accordance with the provisions of his appointment and instructions given to him based on such appointment.

He shall request the prior approval of the shipping company concerned before embarking on a new voyage, undertaking extraordinary repairs or insurance of the vessel concerned, or the appointment or termination of its captain, unless determined otherwise.

In addition to the above, his authorities, including those in his relation to the shipping company, shall be evaluated based on the provisions of the first paragraph of article 331. (Civil Code 1792 etc.; Commercial Code 323, 327 etc., 337, 341e, 362, 364, 395 etc., 408,

Article 339.

The book-keeper must manage the affairs of the shipping company as a good shipping entrepreneur. He must perform his responsibilities determined by law for shipping entrepreneurs.

He shall be responsible to members of the shipping company for losses suffered due to his deliberate action or fault. (Civil Code 1800 etc.; Commercial Code 327, 331, 338.)

Article 340.

Members of the shipping company shall distribute profits or losses proportionately to their respective shares in such vessel. (Civil Code 1633; Commercial Code 323, 326, 336.)

Article 340a.

The book-keeper shall notify each member about all of his wishes, of all matters concerning the shipping company and shall present all books, letters and notes related to the management thereof. (Civil Code 1802; Commercial Code 6, 12.)

Article 340b.

The book-keeper shall be obligated to, any time as customary, but at least after the lapse of a period of 1 year, provide calculations and accounting to members of the shipping company in view of his management, by presenting all evidence related thereto and he shall give each of them whatever is their right.

The requirement by law to provide the above mentioned calculations and accounting shall expire by the lapse of 10 years after the expiration of the time frame for the requirement to provide such calculations and accounting. (Civil Code 1802, 1805, 1967; Commercial Code 323, 340c etc.; 364; Regulation on Legal Claims (Rv.)764 etc.)

Article 340c.

Each member of the shipping company shall be obligated to audit and close the book-keeper's calculations and accounting and to pay a portion of the amount payable to the book-keeper. (Civil Code 1807 etc.; Commercial Code 323, 340b, d; Regulation on Legal Claims (Rv.) 775.)

Article 340d.

The confirmation of calculations and accounting by the majority of members of the shipping company concerned shall only be binding on those giving such confirmation, but it shall also be binding on fellow shipping entrepreneurs not confirming such calculations and accounting, if they fail to contest such calculations and accounting before a court within 3 years after they may have acknowledged the same, and after such confirmation is approved by a majority of the members and they are notified in writing about it. (Commercial Code 323, 334, 337, 340b etc.)

If it is decided to dissolve the shipping company, the vessel must be sold. The decision or instruction give based on article 335 to sell the vessel concerned shall be equivalent to the decision to dissolve the shipping company concerned. (Civil Code 1457 etc.; Commercial Code 323, 325, 334, 362.)

Article 340f.

Following the decision for dissolution, the shipping company shall continue to be in existence insofar it is required for the liquidation thereof. The book-keeper, if any, shall be assigned for such liquidation. (Commercial Code 32, 56, 323, 327.)

Article 340g. Revoked by S. 1938-1 jo. 2.

CODE, COMMERCIAL CODE / II. Two, RIGHT AND OBLIGATIONS ARISING