CODE, COMMERCIAL CODE / II. Two, RIGHT AND OBLIGATIONS ARISING
FROM SHIPPING / Chapter Va, TRANSPORTATION OF GOODS / 02-05a-00,
VA. TRANSPORTATION OF GOODS
Indonesian
Book: II. TWO. RIGHTS AND OBLIGATIONS ARISING FROM SHIPPING Chapter: VA. TRANSPORTATION OF GOODS
Article: 466-520t
x1. General Stipulations Article 466.
The forwarder in this chapter refers to the person who has bound himself both through time charter or journey charter, as well as other agreements, to provide services for fully or partially transporting goods by sea. (Commercial Code 86, 453, 520g, 521, 533.)
Article 467.
The forwarder within appropriate limitations, is free to choose the means of transportation to use, except if a certain means of transportation has been stipulated in the agreement. (Civil Code. 1374; Commercial Code 517g.)
Article 468.
A transportation agreement gives the forwarder the responsibility to safeguard the goods that are to be transported from the moment of acceptance up to the time the goods are submitted.
The forwarder has to pay for damages caused by his inability to deliver all the goods or part of the goods because of damage, except if he can prove that not all the goods were submitted for delivery or the damage was caused by a condition that could not be prevented or evaded as the result of the nature of the goods or the condition of the goods or that the goods were already defective when received or were damaged as the result of a fault of the deliverer.
He is responsible for the actions of the people that he employs, and for all the things that are used in the transportation. (Civil Code 1239, 1243, etc., 1367, 1613, 1706; Commercial Code 86 etc., 89, 91, 249, 342, 359, 371, 452, 469 etc., 472., 475, 477, 479, 483, 487, 517c,
Article 469.
The forwarder is only responsible for the theft of or loss of gold, silver, precious stones and other valuable goods, money and valuable documents, and also for the breakage of fragile goods, if he was informed of the nature and contents of the goods before or at the time that he accepted the goods. (Commercial Code 96, 468, 470, 517c.)
Article 470.
The forwarder is not free to set the conditions that he is not liable for damages incurred or only responsible for a limited amount of damages caused by his negligence in taking care of, or providing the appropriate facilities or staff for the means of transportation used, or its suitability for the transportation of the agreed goods, or because of the mistreatment of the goods or the lack of security. Those conditions are cancelled.
However, the forwarder has the authority to set the conditions that he will not be responsible for more than a certain amount of all transported goods, except if he has been informed of the nature and value of the goods before or at the time of acceptance. The amount should not be determined below f.600,-.
In addition to this, the forwarder can set the conditions that he is not responsible for the damages, if he was purposely misinformed about the nature and value of the goods. (AB. 23; Commercial Code 359 etc., 362, 469, 470a, 471, 471, 476, 493, 517b, c, 524, 527; S. 1927-262 article 27.)
Article 470a.
The conditions limiting the forwarder's responsibility in any case does not give him the freedom to prove that sufficient care, facilities, and a capable crew have been provided for the means of transportation agreed on, if it is proved that the damages are the result of a fault in the means of transportation or the arrangement thereof.
In this case there can be no deviations from the agreement. (AB. 23; Commercial Code 369 etc., 459, 471, 517c, 524a.)
Article 471.
The conditions limiting the responsibility of the forwarder does not free him from responsibilities, when proved that there are faults or negligence on his own part or of the people employed by him, except if the responsibility for even that is firmly annulled. (Civil Code 1366-1367; Commercial Code 321, 342, 4683, 470a, 517c, 700.)
Article 472.
Compensation for damages that have to be paid by the forwarder because he has not submitted all or a part of the goods, calculated according to the goods, the kind and nature of which are similar to that at the destination, when the goods should have been handed over, subtracted by what was saved for the expense and costs and transportation cost because there has not been any delivery.
If the remaining cargo with the same destination, which because of some reason is not the responsibility of the forwarder, has not reached its destination, then the payment for damages is calculated according to the value and the kind and nature of the goods at the place and time that the goods were initially received. (Civil Code 1246 etc,; Commercial Code 366, 473, 476, 517c.)
Article 473.
In case of the occurrence of breakage, the amount that should be paid is calculated by subtracting from the value mentioned in article 472, the value of the damaged goods, and the remainder is subtracted by what was saved from duty, cost and transportation costs due to breakage. (Commercial Code 476, 483, 517c.)
Article 474.
If the forwarder is a shipping company, then the responsibility over the damages suffered by the goods transported by ship, to the limit of f.50,- for each cubic meter net content of the ship, in so far as it involves a ship that is propelled mechanically, plus what is used to determine its contents minus gross content of the space that is used for the propelling engine. (Commercial Code 320 etc., 468, 479, 475 etc., 517c, 525, 541; Rv. 316a-4.)
Article 475.
If the forwarder is not a shipping company, the responsibility for paying damages according to article 468 concerning transportation by sea, which is limited to the amount lost through damages, based on the stipulations of the previous article, can be demanded from the shipping company.
If there is a dispute, the forwarder has to point out the limits of his responsibility. (Commercial Code 470, 474, 467, 517c, 526; Rv. 316r.)
Article 476.
By deviating from the stipulations in articles 472-475, complete payment for damages can be demanded, if the breakage was done on purpose or by a big error on the part of the forwarder himself.
Conditions of the agreement that are in contrast with this are cancelled. (AB.23; Commercial Code 470, 517c, 524, 527, 541.)
Article 477.
The forwarder is responsible for the damages caused by a delay in the delivery, except when he can prove that the delay was caused by a condition that could not be prevented or avoided. (Civil Code 1244 etc., Commercial Code 92, 342 etc., 367 etc., 370, 468, 517c, o 528, 741-1 number 3o.)
Article 478.
He is responsible for adherence to the government laws and regulations, if the documents and the information conferred to him make this possible. (Commercial Code 347, 454, 504, 517c, 528, 741; S. 1927-34 article 117 etc.)
Article 479.
The forwarder has the right to receive payment for damages that he suffers because of erroneous or incomplete information conferred to him about the characteristics and nature of the goods, except when he is familiar with or should already be aware of the nature and characteristics of the goods.
The forwarder can at any time free himself of those goods which endanger his freight or his ship, also by destroying it without having to pay for damages. This also holds for goods that are deemed to be smuggled, or if the forwarder is not given accurate and complete information about the goods. (Civil Code 1246 etc., Commercial Code 357, 372, 468, 504, 517c, 741; S. 1927-34 article 117 etc.)
Article 480.
If the ship does not reach its destination or does not reach the destination at an appropriate time due to the local conditions, the forwarder is obliged to make use of his own expenses and make the effort to deliver the goods to the destination using a barge or other means. If it has been agreed that the ship will not need to go further than an accessible place with a calm and safe harbour, then the forwarder has the right to hand over the goods at the place nearest to the destination complying with the conditions, except when the obstructions are only temporary, so that the condition only causes a slight delay. (Commercial Code 517c, 529, 702; S. 1920-274.)
Article 481.
If in a place an employee appointed by the government has been placed to control the calculation, measurement, or weighing of goods that are to be handed over, then at the command of the forwarder or the receiver at the time of the handing over, the calculation, measurement or weighing of the goods can be done by or controlled by the above mentioned employee.
The results of the calculation, measurement or weighing which is done or controlled by the employee for those parties, are binding, except when it can be proved that they were not correct.
The expenses that have to be paid as wages to the employee are equally divided between the two parties. (Commercial Code 94, 482, 485, 489, 503.)
Article 482.
The matters stipulated in the first paragraph of the previous article is not valid, if and when because of it the unloading of the ship is delayed.
Both the forwarder and the receiver are entitled to demand a judge in residence to investigate the condition of the goods at the time they were handed over or had been handed over, in addition to the cost of estimating the damages incurred.
The appointment of the experts is done by the head of the court of justice, if within the area where the goods are handed over there is a higher court of justice, or if not available, by a judge in residence or if he is not able to attend or not at place, by the local head of government, and in all cases, after the other party has been sufficiently heard or summoned. The investigation meant by this article should not be carried out in such a way that the regulations of service of shipping are disturbed because of it. (Commercial Code 94, 361, 472 etc., 481, 484 etc., 712, 746; Rv. 215 etc., 313.)
Article 484.
If this examination has been made in the presence of the opposite party or their representative after being duly summoned, then this official examination report, is valid as legal proof regarding the condition of the goods at the time of the examination. (Commercial Code 459-3, 481-3, 483, 489-3, 746)
Article 485.
If the goods have been accepted without having been examined as mentioned in article 481, as they were supposed to have been delivered without shortages, unless the receiver has made a written report regarding the existence of a shortage to the transporter or his representative, before or at the moment of delivery of the goods or if the shortages were not visible from their appearances, at the latest on the third day of the acceptance.
If a shortage has been definitely identified, and if it concerns goods of different kinds, the shortages are considered to be composed in the same manner and quantities as the goods delivered, unless there are reasons for a different opinion on the matter. (Commercial Code 93, 486 etc., 712, 746.)
Article 486.
If the goods have been accepted without having had the legal examination as mentioned in article 483, they are supposed to have been delivered in accordance with the contents of the bill of lading, unless the receiver, before or at the moment of acceptance of the goods or, if the damage is not visible from the appearance, after acceptance, has informed the transporter or his representative in writing the existence of damage. This information must make known the kind of damage in general. Damage comprises total or partial loss of the content. (Commercial Code 93, 485, 487 etc.)
Article 487.
The legal claim for damage must be submitted within one year after delivery of the goods or after the day on which the goods were supposed to be delivered. (Commercial Code 486, 488, 741.)
The receiver has priority against the damage claim concerning the freight before all the other creditors, except those mentioned in article 316, provided that he has had the transported goods impounded within the time mentioned in foregoing article. With this impounding the requirement of that article is considered to have been met. (Civil Code 1132 etc.)
If no documents exist, the impounding could be executed with the permit of the chairman of the Court of Justice of the region in which the goods have been delivered. This Court investigates the claim inclusive of the legitimacy hereof and the cancellation of the impound and also the demand to notify the claim to the third party.
Outside the region of the Court of Justice the impounding could be held with the permission of the residence judge, in whose resort the goods have been delivered. (Commercial Code 468 etc., 500: Rv. 728 etc.)
Article 489.
The receiver who is suspicious that the goods have been damaged has the right, before or at the delivery thereof to request a judicial examination regarding the manner the goods have been stored aboard the ship, and about the cause of the damage.
The appointment of the experts is done by the chairman of the Court of Justice if within the resort where the delivery has taken place there is a Court of Justice, otherwise by the judge in residence or in his absence or unavailability or by the Head of the local government, in all cases after hearing duly summoned of the opposite party or his representative.
In case this investigation has taken place in the presence of the opposite party or his representative, the result thereof will be valid as legal proof regarding the loading of the goods aboard the ship and the cause of the damage, as long as the untruthfulness thereof has not been shown.
The investigation mentioned in this article shall not take place if the regular schedules of the liners are affected. (Commercial Code 94, 361, 491, 493, 533a.)
Article 490.
The costs of the judicial examination as mentioned in article 483 and 489 are borne by the person who made the request.
However, if the transporter has to pay for the reported damage, the residence judge, if there are valid reasons, can have the costs of the examination be paid for by the transporter. (Commercial Code 468 etc., 473 etc., 481, 492.)
Article 491.
After the delivery of the goods at the place of destination, the receiver must pay the freight cost and whatever else he owes in accordance with the documents on the basis whereof he has received the delivery. (Commercial Code 359, 454, 466, 492 etc., 506, 511, 517p, 519u.)
If the freight cost has been fixed according to measurement, weight or number of goods to be transported, the cost of which is calculated according to the measurement, weight or number of the goods at the delivery to the receiver, unless it appears that the measurement, weight or number at the moment of taking over the freight, are less, in which case the calculation is done according to these data.
The cost of measuring, weighing, or counting at the delivery are borne by the transporter, unless there is a different convention in that port.(AB. 3; Commercial Code 481, 490 etc.)
Article 493.
Except for the ruling in the second paragraph of this article, the forwarder does not have the right to retain the goods, as a guarantee of what has to be paid to him concerning the transportation and as a partial payment of the general damage. Conditions of the agreement that are contrary to this are annulled.
Before handing over the goods, he has the right to demand the receiver to pay a payment guarantee for the transportation and as a contribution of the general damage.
In case of disputes regarding the amount or the kind of guarantee to be given, the chairman of the Court of Justice, if within the resort where the delivery has to take place there exists a Court of Justice, otherwise the residence judge, and in his absence or unavailability, the head of the local government, in all cases at the request of the most prepared party, after hearing or duly summoning of the opposite party or their representative. (AB. 14; Commercial Code 361, 470, 476, 489, 491, 509 etc., 524, 527, 533a; Rv. 613 etc.)
Article 494.
If at the payment dispute arises regarding the amount of money owed by the receiver or if at the fixation thereof a necessary calculation which could not be carried out quickly, the receiver is obliged to pay immediately the part on which all parties agree, the receiver is owing, while regarding the part in dispute or of the part of which the amount has not been defined, the receiver has the obligation to put up a guarantee.
If, in accordance with the foregoing article a guarantee has been put up already, the receiver is also obliged ensure that this guarantee is kept to a sufficient amount.
In case of dispute about the amount or the kind of the guarantee that has to be put up, or about the sufficient amount that has to be maintained, the chairman of the Court of Justice will make the decision, if within the resort where the delivery has taken place a Court of Justice exists or otherwise the residence judge in his absence hindrance of unavailability the head of local government in all cases at the request of the most ready party, after hearing or duly summons of the adverse party or his representative. (Civil Code 1820 etc.; Commercial Code 361, 491, 493, 533a; Rv. 613 etc.)
In case the receiver does not appear, if he refuses to accept the goods, or if the goods have been impounded on the basis of revindicatio (the goods of which can be demanded back by the rightful owners), the transporter is obliged to go down all this to be paid by and the risk to be borne by the rightful owners.
The transporter can put up the goods in a proper place if the receiver refuses to put up guarantees in accordance with the requirement of article 493 or if there is a dispute about the amount or the kind of guarantees to be established.
If at the place of destination no proper storage can be found or the transporter has no representative there, the forwarder in accordance with the second paragraph of this article is entitled to carry the goods to the next seaport where the storage can be done in a proper storage and he has a representative, at the expense and risk of the holders of the right to the goods. ( Civil Code 1736 etc.; Commercial Code 94, 498, 516, 517j, k, t, 5191, 520m; Rv. 721 etc.)
Article 496.
If the goods that have been stored easily decay, the forwarder as well as the person who stored the goods can be authorized to sell all the goods or part of it according to the procedure to be established by the authority established in the next paragraph; the forwarder can also be authorized to take from the amount owed to him from the sale of the goods. The authorization is given by the chairman of the Court of Justice in whose resort the goods are stored, if possible after hearing or proper summons of the co-holders of the rights to the goods or their representatives. Outside the resort where there is a court of justice, the authorization is given by the judge in residence or in his absence, or unavailability by the