Court Views Research Articles

THE CONTRACTUAL ROLE OF BILLS OF LADING UNDER INTERNATIONAL CONVENTIONS AND REPORTS

Bills of lading had been in use a long time before the first attempts for the standardisation of their terms occurred. Their utility as legal documents was recognised after they have been circulated and used in international trade for some time. More clauses purporting to absolve the carrier from liability were introduced in the content of the bill of lading . A formula for the establishment of minimum liability of the carrier was adopted by a series of conferences after the first world war, in order to stop the practice of contracting in ways which would unduly favour the carrier. The whole effort has resulted in the emergence of the international convention for the unification of certain rules relating to bills of lading 1924. In modern days this document started to be used as a register in the book of loading and after years of practice has established as a new document. A bill of lading is a fundamental and vital document of international trade and commerce, indispensable to the conduct and financing of business involving the sale and transportation of goods between parties located at a distance from one another. A bill of lading has commonly been said to have three characteristics : 1} a contract for the carriage of the goods 2} an acknowledgement of their receipt and 3} documentary evidence of title . However, there is an uncertainty and dispute about its contractual nature. The significance of the establishment of the contractual role of bills of lading based on the necessity that any contractual party should know the final terms of the contract upon which the terms of the International Conventions will be implied to. Contractual terms must not be different to these stated by the International Conventions. Is the bill of lading the contract of carriage upon which the terms of the International Conventions are implied to? In this first article it is proposed to investigate the contractual role of bills of lading as it has been perceived in the different international conventions. The analysis will be based mainly on arguments which have arisen from the content of the conventions themselves, than by investigating the national Acts which were introduced in order to implement the international conventions. Reference to other sources, such as court decisions or views of various scholars, will be made in case that there is a straight relation with the construe of the conventions themselves. The main scope is to find out how the international practice is reflected in the writing of the conventions. This article will be the first of a series of articles which will follow and where their contractual role under the Creek, United States and English law will be investigated.

Use of trademarks on Internet can be a problem

The article that follows examines the competition policy reflected in the decisions of the Court of Appeals for the Federal Circuit in its patent cases.1 The court's views on this subject have been manifested most plainly in decisions that have transformed the law concerning infringement under the doctrine of equivalents and claim construction. In both categories, the court narrowed patent scope by reason of its desire to protect competitors. The article argues that the court's premise in prescribing narrower claim scope reflected an incomplete view of competition policy. The court's analysis overlooked the benefits to competition provided by patents, which stimulate inventions and their development. The article traces the development of antitrust jurisprudence and demonstrates how respect for the contribution of patents to competition and skepticism of free-riding has evolved, particularly beginning in the 1970s. The article draws a parallel between the Court's reasoning about competition policy, on the one hand, and the rejected views of Justices Hugo Black and William O. Douglas and abandoned patent-antitrust jurisprudence, on the other.The Federal Circuit's decision in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 234 F.3d 558 (Fed. Cir. 2000), on the subject of equivalents is considered in the paper. In that decision, the majority adopted a new rule that completely barred infringement under the doctrine of equivalents of any claim limitation where, in prosecution, there had been a narrowing amendment relating to patentability. In the past, prosecution estoppel foreclosing equivalents had been subject to a “flexible bar,” which, in some circumstances, allowed for equivalence notwithstanding such an amendment. The article points out that because almost all patents are amended during prosecution, the effect would be to allow widespread copying of patented inventions by trivial modifications of any narrowed claim limitation. The incentive to innovate in the future would be correspondingly diminished and the expectations of past patentees would be correspondingly altered.Following the writing of the article, the Supreme Court decided Festo on certiorari, 122 S. Ct. 2519 (2002), and rejected the Federal Circuit's complete bar approach. The Court continued the flexible bar approach to equivalents, allowing for infringement despite a narrowing amendment. The doctrine of equivalents was explained in terms of “the nature of language,” which “makes it impossible to capture the essence of a thing in a patent application.” Id. at 1837. The Court announced a new rule, starting with a presumption that “the territory between the original claim and the amended claim” was disclaimed as to “readily known equivalents,” Id. at 1842. The presumption could be overcome where:[1] “The equivalent may have been unforeseeable at the time of the application;” [2] “the rationale underlying the amendment may bear no more than a tangential relation to the equivalent in question;” or [3] “there may be some other reason suggesting that the patentee could not reasonably be expected to have described the insubstantial substitute in question.” Id.The Court recognized the effect of uncertainty from the doctrine of equivalents on competitors as a result of the flexible bar, but rejected that as a reason for a complete bar. Id. For example, “if competitors cannot be certain about a patent's extent, they may be deterred from engaging in legitimate manufactures outside its limits, or they may invest by mistake in competing products that the patent secures.” Id. at 1837. The Court also quoted Justice Black's concern for competitors in his dissent objecting to the doctrine of equivalents in Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605 (1950). Festo, 122 S. Ct. at 1838. Despite a “delicate balance” between the interest of the patentees and those of the public, the Court squarely disagreed with the preference of the Federal Circuit, Justice Black, and competitors of the patentee. Each time the Court had addressed the subject over a 100-year period, it “affirmed the doctrine over dissents that urged a more certain rule.” Id.The Court's holding preserved placement of the burden of the uncertainty implicit in the doctrine of equivalents on competitors in favor of protecting patentees and the patent incentive to innovation. Id. At the same time, the effect of the Court's new rule was to impinge on the scope available to patentees. Requiring the inventor to write all knowable variations of his invention into the claims is a way of reducing the scope of equivalency. It is out of keeping with Graver Tank, which applied equivalents to an unclaimed variation described in the specification, as well as the thoughtful analyses of the Antitrust Division about the importance of a full patent reward. By the same token, applying equivalents to later-developed technology extends the patent to apply to the more creative competitor but inconsistently leaves the straightforward free-rider with a minor knowable variant outside the patent.

Federalism in a Conservative Supreme Court

After years of maintaining an even balance on questions of federalism, the Supreme Court's views on the federal-state relationship have undergone a dramatic transformation with the recent change in the Court's composition. The new conservative majority has proved willing to protect the states from direct regulation by the federal government in almost all circumstances. It remains unclear, however, whether the Court will give increased protection to state regulatory efforts-and whether the Court's new members will be willing to respect the autonomy of states that are exercising their authority in an activist (and traditionally liberal) manner.

Key court cases: Supreme court views ERISA preemption expansively

Employment Relations TodayVolume 18, Issue 1 p. 117-120 Department Key court cases: Supreme court views ERISA preemption expansively Arthur F. Silbergeld, Arthur F. Silbergeld Arthur F. Silbergeld is a partner of Graham & James in Los Angeles and represents management in all aspects of labor relations and employment law.Search for more papers by this author Arthur F. Silbergeld, Arthur F. Silbergeld Arthur F. Silbergeld is a partner of Graham & James in Los Angeles and represents management in all aspects of labor relations and employment law.Search for more papers by this author First published: Spring 1991 https://doi.org/10.1002/ert.3910180118 AboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Volume18, Issue1Spring 1991Pages 117-120 RelatedInformation

Does strict judicial scrutiny involve thetu quoque fallacy?

To protect what it deems “fundamental rights,” the Supreme Court “strictly scrutinizes” legislation that impinges on these rights. The Court views such legislation as a means to some end the legislation seeks to accomplish. The Court requires that the statute be neither “overinclusive” nor “underinclusive”; the legislation may not affect more people than necessary to achieve its end, nor is the statute permitted to leave some people out in achieving its end.

Criminal Prosecution of the Mentally Disordered: A Descriptive Analysis

While the mentally disordered defendant has garnered notable attention recently, little empirical research has been conducted in this area. In an attempt to fill this void, the research effort reported here examines prosecutorial and judicial decisions concerning this type of defendant. Emphasis is placed on the postures (punitive or therapeu tic) assumed by these court officials and the impact of various factors on these postures. Data were gathered on all adult criminal defendants identified as mentally disordered by the Milwaukee, Wisconsin Mental Health Screening Unit from 1981 through 1983. The results clearly indicate that criminal justice officials are at least as interested in therapy as they are in punishment. Furthermore, the findings suggest that the court views these defendants as inappropriate subjects for criminal sanctioning but under certain conditions mandates treatment for individuals who likely would not be subject to such involuntary treatment under civil law.

More Positive Supreme Court Views on Psychiatry

More Positive Supreme Court Views on Psychiatry

The Rowley Decision: How the Supreme Court Views the Education of Handicapped Children

This review of the U.S. Supreme Court's first interpretation of Public Law 94-142 details the national economic environment in which the decision took place, provides a history of the Rowley case in the courts, and considers the financial implications of the Supreme Court's ruling.

MURDER BY ADOLESCENTS WITH OBSCURE MOTIVATION

Back to table of contents Previous article Next article ArticleNo AccessMURDER BY ADOLESCENTS WITH OBSCURE MOTIVATIONA. WARREN STEARNSA. WARREN STEARNSSearch for more papers by this authorPublished Online:1 Apr 2006https://doi.org/10.1176/ajp.114.4.303AboutSectionsPDF/EPUB ToolsAdd to favoritesDownload CitationsTrack Citations ShareShare onFacebookTwitterLinked InEmail PDFThis content is only available as a PDF. Access content To read the fulltext, please use one of the options below to sign in or purchase access. Personal login Institutional Login Sign in via OpenAthens Purchase Save for later Item saved, go to cart PPV Articles - American Journal of Psychiatry $35.00 Add to cart PPV Articles - American Journal of Psychiatry Checkout Please login/register if you wish to pair your device and check access availability. Not a subscriber? Subscribe Now / Learn More PsychiatryOnline subscription options offer access to the DSM-5 library, books, journals, CME, and patient resources. This all-in-one virtual library provides psychiatrists and mental health professionals with key resources for diagnosis, treatment, research, and professional development. Need more help? PsychiatryOnline Customer Service may be reached by emailing [email protected] or by calling 800-368-5777 (in the U.S.) or 703-907-7322 (outside the U.S.). FiguresReferencesCited byDetailsCited ByJuvenile Homicide Offenders: Classifications/Typologies1 March 2020Youth Homicide: A Review of the Literature and a Blueprint for Action27 July 2016 | International Journal of Offender Therapy and Comparative Criminology, Vol. 47, No. 1Adolescent Murderers1 October 1991 | The Canadian Journal of Psychiatry, Vol. 36, No. 8Homicidal Adolescents: A Replication1 September 2016 | Psychological Reports, Vol. 67, No. 3_supplJournal of Clinical Psychology, Vol. 46, No. 4Psychological Reports, Vol. 67, No. 7Journal of the American Academy of Child & Adolescent Psychiatry, Vol. 27, No. 5American Journal of Orthopsychiatry, Vol. 57, No. 3More Positive Supreme Court Views on PsychiatryDANIEL J. KENNELLY1 April 2006 | American Journal of Psychiatry, Vol. 142, No. 3Rate of change in tricyclic plasma levels important1 April 2006 | American Journal of Psychiatry, Vol. 142, No. 3Three case reports of a single homicidal adolescent1 April 2006 | American Journal of Psychiatry, Vol. 142, No. 3More positive supreme court views on psychiatry23 January 2015 | American Journal of Psychiatry, Vol. 142, No. 3A Study of Juvenile Murderers of Family Members27 July 2016 | International Journal of Offender Therapy and Comparative Criminology, Vol. 28, No. 3Aggressive Behavior, Vol. 3, No. 3Journal of the American Academy of Child Psychiatry, Vol. 16, No. 2Violence as a Function of Age and Relationship with Special Reference to Matricide *26 April 2017 | Canadian Psychiatric Association Journal, Vol. 16, No. 1 Volume 114Issue 4 October 1957Pages 303-305 Metrics PDF download History Published online 1 April 2006 Published in print 1 October 1957

II: Supreme Court Views Federal Authorization and Merging of Motor Carriers

II: Supreme Court Views Federal Authorization and Merging of Motor Carriers

I. Supreme Court Views Federal Authorization and Merging of Motor Carriers

vehicle common carrier, of overflow freight solicited by the common carrier, accumulated at its terminal, loaded and unloaded by its employees and moved from consignor to consignee, under waybills of the common carrier and on vehicles owned by the applicant but controlled solely by the common carrier, who also furnished cargo insurance on the goods transported, is not a carrier in the sense of Congressional intention. Where the plain meaning of words used in a statute ploduces an unreasonable result 'plainly at variance with the policy of the legislation as a whole,' we may follow the purpose of the statute rather than the literal words ... We conclude that the Commission rightly determined the appellees were not within the meaning of the act prior to February 1936.42 Thus the Court supported the Interstate Commerce Commission's position that contract carriers include only those operators whose contracts are with shippers to whom they are responsible, and excludes those who operate under contracts with other who in turn

The Supreme Court Views the Economics of the Telephone System

The Supreme Court Views the Economics of the Telephone System