Limitation Of Liability Research Articles

Limitation of liability for maritime claims in civil law of the People's Republic of China

This article reviews the relevant issue of civil law regulation in the sphere of freight transportation. China is seeking for new safe routes for freight transportation to the European market, including sea routes, giving preference to the Northern Silk Road. The subject of this research is the comprehension of individual provisions of the Chinese legislation that are specific to both Russian and international law. The object of this research is the determination of peculiarities of the law of the sea, namely the question of limitation of liability for maritime claims in civil law of the People's Republic of China. Special attention is given to the aspect of harmonization of the norms of the Civil Code of the People's Republic of China and the Merchant Shipping Code the Russian Federation in this issue. The acquired results demonstrate the shared interest of the two countries lies in the routes of the Northern Sea Road, which actualizes the problem of harmonization of legislation. The government of the Russian Federation and the People’s Republic of China declare the need for harmonization of legal norms that regulate merchant shipping. Leaning on one of the normative fragments related to joint maritime operations along the routes of the Northern Silk Road, the author concludes that further development of cooperation and expansion of the list of bilateral issues of normative legal regulation in this sphere requires a collective plan aimed at harmonization of legislation based on the Treaty of Good-Neighborliness and Friendly Cooperation between the People's Republic of China and the Russian Federation.

Legal responsibility of a private notary

The legal responsibility of a notary is in its essence an important element of the legal regulation of public relations in the field of notarial activities, which is manifested in the purposeful influence of the state on the behavior of notaries through legal means. The purpose of this article is to formulate the concept and outline the characteristics of the main types of legal liability of a private notary. The legal liability of private notaries is proposed to be understood as a set of legal coercive restrictions provided by law and the suffering of subjects of private notarial activity of personal, organizational and property nature for the committed offense. At the same time, it is emphasized that the legal responsibility of a notary as a structural element of his legal status consists not only in the application of appropriate coercive measures against him for an offense (retrospective aspect), but also in his awareness of his responsibility for proper performance (prospective aspect). It is noted that the components of the system of legal liability of a private notary are its types, namely: civil (professional), criminal, administrative and disciplinary. It is emphasized that the institution of legal liability of private notaries should be considered not only as a guarantee of lawful and conscientious performance of their duties, a means of protecting the legitimate interests of the state and citizens related to the provision of notarial services, but also as a regime of private notaries. procedural relations arising from the application of coercive measures by the state to them. It is established that the legal responsibility of a private notary is complex, and provides for the imposition on him not only the actual legal responsibility, but also moral responsibility for actions before the state and society. The limits of legal liability of private notaries depend on the type of such liability. The administrative nature of the notary’s activity and his performance of actions on behalf of the state allows to draw a conclusion about the tortious nature of the notary’s liability for violation of the established procedure for performing notarial acts.

Problems with control activities of private performers

The article analyzes the state of legislation and practice of disciplinary proceedings against private executors by the DisciplinaryCommission of Private Enforcement Agents on the basis of submissions of the Ministry of Justice of Ukraine, entered as a result ofconsideration of appeals of debtors to appeal the procedural actions of private executors in the execution of their court decisions. Cont -rol and inspection of the activities of private performers may also be carried out by: courts, the Council of Private Performers of Ukraineand investigative bodies.But the simultaneous and consistent activity of such a number of persons authorized to inspect a private executor is impractical,as it disrupts the activities of a private executor.The debtor is most interested in taking appropriate actions with abuse of rights, who will use the availability of these methods to“protect” their own interests in order not to enforce or delay the execution of the decision.Therefore, we believe that the debtor should be given the right to appeal against the decisions, actions or omissions of the stateexecutor only in court. Such a provision of the law will eliminate the possibility for the debtor to abuse his rights, to use possible pressurefrom the Ministry of Justice on the private executor, which is intensified by the possibility of the latter to initiate disciplinary proceedingsagainst him.
 Corruption risks when inspecting the activities of private performers may also occur when passing the qualifying examinationevery five years through automated anonymous testing. You can make tickets so that no one can answer them. Thus, private performerswill look for a way out of this situation – to find the “unofficial” cost of passing the exam and solve this issue with the least time andeffort.Therefore, without defining clear limits of disciplinary liability and appropriate measures that can be applied to private perfor -mers for certain illegal actions, control by all institutions will border on the corruption component.Therefore, the issues of checking the activities of private performers and monitoring their actions require broad and public discussion,setting clear limits of application and bodies that will exercise such control to prevent corruption, and bringing private performersto disciplinary responsibility have become objective.

International marine trade: a scientific analysis of the history of their legal regulation and the necessary of its unification today.

The article presents the result of the analysis of three International Conventions and two protocols such as: The International Conventionfor the Unification of Certain Rules of Law relating to Bills of Lading of 1924 and its two protocols, called the Visby Ruleswas adopted in 1968 and 1979, the United Nations Convention on the Carriage of Goods by Sea of 1978 and the United Nations Conventionon Contracts for the International Carriage of Goods Wholly or Partly by Sea of 2008.The peculiarities of the acting legal regimes of responsibility are characterized, the necessity of their unified low regulation isshown. The article describes the sphere of activity of each convention, which is the responsibility of the carrier for non-preservation ofcargo, delay in delivery, conducted analyzes the limits of financial liability, statute of limitations, jurisdiction and arbitration. The possibilityof shipowners to protect their legal rights by drawing up a sea protest. A number of innovations are analyzed, which wereappeared in the Rotterdam Rules, such as 1)the specific obligations that are imposed on the carrier, as for to bring the cargoships intoseaworthiness at the beginning and during the voyage, 2) multimodal transportations, 3) deck cargoes (so-called “container revolution”),4) transport electronic records as an alternative to the “paper” written document. The article indicate: Ukraine has not ratifiedany of the above Conventions, which does not allow our country to fully protect its interests in the field of maritime transportation.Analysis was also performed of the average age of the Ukrainian sea cargoships and the factors influence for it.The article is finished by conclusion as for choice and expediency of ratification of one of the above conventions, as for on theprotection of the interests of Ukrainian cargoowners and shipowners in international marine trade and cargo transportation betweencountries.

Combating of oil spills by funding of oil spill preparedness vs funding for compensation after the spill events

• The total volume of oil spilled and the number of spills has declined significantly over the past forty years. However, oil spills are no longer considered as an unavoidable. The ship source oil pollution still remains a potentially important risk to the local economies and the marine environment which can cause major economic loss and severe damages to the coastal and marine environment. The international regulatory framework to deal with liability and compensation for ship source oil pollution has evolved over the past three decades. The available international legal regime for oil pollution liability and compensation is playing a great role in governing the discharge of oil into the sea by ensuring liability for polluters and compensation for victims of pollution. Despite the fact that the total cost of the oil spill cannot be compensated through the available international civil liability regime and entire damages caused to the marine environment cannot be compensated or recovered. This paper examined the application and limitations of available liability and compensation mechanisms for the protection of marine pollution and compares the benefit of the establishment of a funding mechanism for the strengthening of the level of oil spill preparedness and the civil liability regime for the protection of the coastal and marine environment. In addition, this paper reviews the funding mechanism adopted by the countries to strengthen a level of oil spill preparedness taken into account the polluter pays principle without putting the extra burden to general taxpayers. The establishment of a system for the funding of oil spill preparedness using the polluter pay principle has immensely helped to improve the oil spill response capabilities and protection of the marine environment of coastal states which adopted a unique funding mechanism by applying the polluter pay principle. This paper recommends among other things, review the available compensation and liability regime for the protection of the marine environment and recommend to adopt and apply a uniform funding mechanism for the strengthening of the level of oil spill preparedness taken into account the polluter pay principle for the protection of the marine environment and improve the status quo. • Liability, compensation, Preparedness, Polluters pay principle

United States and Canada Transboundary Oil Spill Liability and Compensation Regimes: An Overview

Abstract # —1141278 — In 2018, the Canadian government purchased the Trans Mountain pipeline, running from Alberta to British Columbia, along with the plans for expansion. The expansion could triple the transport capacity from 300,000 to 890,000 barrels of oil per day, and would increase the tanker traffic in the inland waterways of the Salish Sea, an area known for its sensitive marine habitat, and narrow, difficult to navigate passages. The anticipated increase in tanker traffic in this busy waterway continues to raise concerns about the impact of an oil spill and the financial means to address related injuries, particularly to natural resources. The transboundary nature of any spill further complicates the situation vis-à-vis the applicable liability regimes and response resources. Under the Canada-United States Joint Marine Contingency Plan (“JCP”), the United States Coast Guard and Canadian Coast Guard acknowledge each country's responsibility to fund their own response actions and pursue reimbursement of those costs within their respective jurisdictions. The availability of funding for a response, and to compensate injured parties, however, including the limits of liability of the responsible party, differs under each regime, and could impact the nature and scope of a response. For spills into or posing a substantial threat to the navigable waters of the United States, the Oil Pollution Act of 1990 governs and a national fund, the Oil Spill Liability Trust Fund (“OSLTF”), is immediately available to address an incident, including emergency restoration to natural resources. Canada's Marine Liability Act enables the Ship-source Oil Pollution Fund (“SOPF”) to pay claimants who have incurred damages as a result of oil pollution. Both countries' funds operate under the same principal—the polluter pays—but the compensation structure, and claims processes and procedures are entirely different. This paper provides an overview of these funding sources and claims procedures, comparing and contrasting the different systems. The discussion is meant to provide an overall understanding of potential funding pools available for spill responses under each scheme in order to facilitate transboundary spill planning and discussion.

Physicians Professional Immunity in the COVID-19 Pandemic. Problems and Solutions

In this article, by professional immunity we refer to limitation of liability to the specific pandemic context, respectively to the concrete possibilities of diagnosis, treatment, care and too few degrees of professional freedom still available. The relevance of one or another of the limitation measures of professional liability depends on the specific legal context of each community. Our thesis is that, regardless of the form of transposition into practice, a form of health professionals protection, such as professional immunity is necessary. From the multitude of possible protection measures, each state can select the appropriate ones. The need for specific measures for professional immunity is not identical in each state, depending on the specifics of the legal system, social values, measures characteristics taken to combat the pandemic, the degree of transparency of each healthcare system, the level of bioethical principles influence. However, this need doesn`t start from "no measure", the appropriate minimum level of protection seemingly to constitute a patient compensation no-fault model, plus the characteristics of the professional immunity, designed to adapt liability to specific conditions. The main problem in the absence of professional immunity is the risk of transferring the cost of ignorance, visible, in the inadequate expectations of medical science, on healthcare professionals, the limits of scientific knowledge risking to be reinterpreted as medical fault. The COVID-19 pandemic has somehow forced an additional step towards broadening discussions on universal human rights, being forced to consider ways of putting them into practice in the context of limited resources. Assuming that the increase in social complexity increases the risks of such events, we approach these problems from the perspective of creating rapid mechanisms to adapt to such changes, the lessons learned now being applied in the future to other similar cases.

Criminal Responsibility for Crimes in the Energy Sector

The article deals with the issues of criminal law regulation of social relations arising from violations of legislation in the field of fuel and energy sector. Within the framework of the indicated problematics domestic and foreign experience is studied, in the course of comparative analysis of legislative base the common features and distinctions in approaches to classification of corpus delicti in energy segment with a focus on illegal acts in the field of electric power, to definition of size and limits of criminal liability are revealed. The ways of improvement of the Russian criminal law are revealed. The study is devoted to the current conditions of implementation of the mechanism of criminal responsibility for energy crimes in the Russian Federation, Germany and the UK. The authors propose ways to improve the Russian criminal law in terms of criminal regulation of relations in the field of fuel and energy complex.

선주책임제한권 배제 합의의 가부 및 그 합의의 해석 - 영국 추밀원의 “The Cape Bari” 사건 판결을 중심으로 대법원 2015. 11. 17. 선고 2013다61343 판결에 대한 비판적 고찰 -

The shipowner’s right to limit liability is a statutory right under Article 769 of Korean Commercial Act. Regarding such statutory rights, there arise questions of whether such statutory rights can be contracted out and whether certain clause can be interpreted as contracting out of statutory rights. The Korean Supreme Court ruled in 2013Da61343 case that, the parties can contract out of Article 769 as it is a non-mandatory provision, and considering types of damages the carrier agreed to bear under the contract at hand, the phrase in the contract could be interpreted as contracting out of the statutory right to limit liability. A similar case was presented to the Judicial Committee of the Privy Council of the United Kingdom. The Privy Council ruled that the limitation of liability is a shipowner’s right under 1976 Convention on Limitation of Liability for Maritime Claims, and parties can contract out of it as there is no prohibiting provision within the Convention. However, if such waiver is not clear from contract clauses, one should find the meaning that the words of the contract would convey to a reasonable person having the background knowledge which would reasonably have been available to the parties when the contract was made. Furthermore, statutory rights would be considered to apply by the contracting parties, and thus clear express words must be used in order to rebut such consideration. The Privy Council concluded that phrases like “all and any damages” and “harmless” could not be considered as clear express words to waiver the shipowner’s right to limit liability. There are many interpretation methods of contract, such as natural interpretation, normative interpretation and complementary interpretation, for cases where phrases are not sufficient enough to understand contracting parties’ intention. Furthermore, there are many standards and views on each method, and thus, the result of interpretation could be different from one court to another. However, there is great need to analyze different results to understand a standard for reasonable interpretation to determine whether statutory right is contracted out, because the shipowner’s right to limit liability has been a right under maritime law for a long time, and it is the last resort for the shipowner in maritime casualty.

Reorganization of corporate groups in Brazil: Substantive consolidation and the limited liability tale

AbstractThe article analyses the use of substantive consolidation in view of the meaning of limited liability in Brazil and explores the proposition that such a solution to corporate distress should only exceptionally be imposed on creditors. In light of Brazilian corporate law, a court should only order substantive consolidation if continuous dishonest use of legal personality had occurred before the debtors filed for reorganization. The author further questions if such a proposition is adequate or if substantive consolidation must gain new colors in a corporate system such as the Brazilian one, in which (a) ex ante the legal system does not sustain limitation of liability of the business corporation in face of a wide number of claims, and (b) group entities are frequently not managed as separate and independent companies. The author concludes by reaffirming the importance of using substantive consolidation more strictly, rather than as a one‐size‐fits‐all solution.

Supporting Evidence from the DSM and ICD Classifications to Better Understand Traumatic Experiences, PTSD in Law

Supporting Evidence from the DSM and ICD Classifications to Better Understand Traumatic Experiences, PTSD in Law

Patient Safety in Dental Practice: Lessons to Learn About the Risks and Limits of Professional Liability

IntroductionHealth professionals should work with the notion of risk involved in the health care process. Dental practice risk is of particular interest because it encompasses both aesthetic and functional components. Focusing on guidelines suggested by the World Health Organization and objectives on patient safety, this study has 2 objectives: to present Portuguese medicolegal data on corporal damage evaluation related to iatrogenic sequelae during dental practice and to present updated evidence on patient safety. Materials and methodsA retrospective study was performed by analysing data from the database of the Laboratory of Forensic Dentistry of the Faculty of Medicine, University of Coimbra, Portugal, from 2013 to 2018. ResultsOne hundred seven medicolegal files were selected according to the inclusion and exclusion criteria. Iatrogenic sequelae (73.8%, 79 out of 107) were categorised as risks (60 out of 79) and malpractice (19 out of 79). The risk was associated mostly with mandibular dysfunction and orthodontic treatment (62.2%). Malpractice was mostly associated with neurological deficit and implant rehabilitation (47.4%). Discussion and conclusionGreater attention to these data by professionals was emphasised, especially when considering patient safety and health care quality. This article presents the Portuguese data on professional liability in the field of dental practice, categorising iatrogenic sequelae into risks and malpractice, as well as the oral rehabilitation procedure and timeline.

Теоретичні засади вибору організаційно-правової форми господарювання в Україні

Annotation. Introduction. The article is devoted to the issues of historical conditionality of modern features and institutional barriers on the way to the development of entrepreneurship in Ukraine, its internal content and social role as innovative and socially responsible activity, the history of emergence and development of an enterprise as a social-economic phenomenon and types. Also, it describes the objects, organizational and legal forms of management in different branches of economy, classification of public-private partnership; axiological aspect of state property; description of the organizational and legal form of the legal entities; main advantages and disadvantages of organizational and legal forms of management in the current conditions of modernization and globalization of economic relations. The article deals with understanding of property as belonging to means and products to the corresponding physical and legal persons. The notion of property is outlined as a social, economic, and legal category. Purpose. The paper shows the owner’s position following some property rights where he possesses, uses, and disposes of his property that doesn’t contradict the current legislation. The value of the axiology in economic relations is outlined as positively significant in meeting the needs of participants in public life. Results. As the article concerns there are the most significant features that distinguish organizational and legal forms: some participants in the created business entity, characteristics of the property owner; sources of the property as a material basis of entrepreneurship; limits of property liability; the method of sharing profits and losses; the form of business entity management. Conclusions. Organizational legal form is considered as a form of legal person ( a subject of entrepreneurship) which characterizes the peculiarities of its creation, property status, peculiarities of the owners’ interaction, founders and participants, their duties and obligations in the legal entity. It is proved that the ownership can be private and state and the last can acts as a form of ownership that plays some role in the economy of Ukraine. This form of ownership can be implemented based on public-private partnerships. Keywords: property; organizational and legal form; axiology of enterprise’s value; social responsibility; activity; entrepreneurship.

Liability Limits of Transport Commission Agent

Considering the importance of transport commission agent's work and through the examination of transport commission agent's liability, the intensity and burden of transport commission agent's liability is shown. The legal nature of a transport commission agent's obligation is an obligation to achieve a result, thus he usually has to contract out of liability, either through the legal limits of liability where the law established the legal exemptions that the transport commission agent would benefit from, as well as the agreement limits of liability through the cases in which the law allowed the transport commission agent to establish a condition under the agreement exempts him from liability or specify his damage liability.
 Since the law prohibited the transport commission agent from establishing any condition that exempted him from liability in the cases of damage and injury, thus he is bound by compensating his agent fully for the occurring damages, except the cases in which the transport commission agent establishes a condition to limit his liability within the limits permitted by the law. 
 Lastly, the development and importance of the transport commission agent's trade and profession and its resulting legal conflicts and problems are the reason behind conducting this study in order to identify the liability limits of the transport commission agent.

ВІДПОВІДАЛЬНІСТЬ МЕДИЧНИХ ПРАЦІВНИКІВ ЗА ЗЛОЧИНИ У СФЕРІ ОБІГУ НАРКОТИЧНИХ ЗАСОБІВ, ПЕРЕДБАЧЕНІ СТАТТЕЮ 320 КРИМІНАЛЬНОГО КОДЕКСУ УКРАЇНИ

The article considers the peculiarities of criminal liability of employees of health care institutions for violation of the provisions of Art. 320 of the Criminal Code of Ukraine, which consists of two parts, which differ in the ways (forms) of committing criminal offenses and limits of liability. The methodological basis of the study includes logical-semantic method, by which the types of methods (forms) of committing criminal offenses under Art. 320 of the Criminal Code of Ukraine are studied; a systematic approach, on the basis of which the author analyses the sequence of actions of employees of investigative bodies in the investigation of crimes on the grounds of criminal activity provided for in the provisions of this article. It is established that Art. 320 of the Criminal Code of Ukraine consists of two parts and provides for a wide range of criminal offenses, in particular the cultivation of sleeping poppy or hemp; violation of the rules of production, manufacture, storage, accounting, release, distribution, trade, transportation, shipment or use of narcotic drugs, psychotropic substances, their analogues or precursors intended for the production or manufacture of these drugs or substances; theft, misappropriation, extortion of narcotic drugs, psychotropic substances, their analogues or precursors, or their acquisition by fraud or abuse of office by an official, etc. It is shown that the disposition of Art. 320 of the Criminal Code of Ukraine has a blanket nature, which requires specification of its provisions in other regulations, including orders, instructions, rules. It is emphasized that employees of medical institutions and health care institutions must clearly know the content of the resolution of the Cabinet of Ministers № 770 "On approval of the list of narcotic drugs, psychotropic substances and precursors" from 06.06.2000, the order of the Ministry of Health № 188 "On approval of tables of small, large and especially large amounts of narcotic drugs, psychotropic substances and precursors that are in illicit traffic" from 01.08.2000, which will significantly help them to avoid offenses related to drug trafficking. Special attention should by paid to compliance with the rules of storage, transfer, accounting, release, distribution, trade, transportation, as well as the introduction of drug logs. The article also shows the sequence of actions of employees of investigative bodies during crime investigation on grounds of the criminal activity provided by Art. 320 of the Criminal Code of Ukraine.

Analysis on the Civil Liability of Third-Party Ship Management

Third-party ship management is the management of ships by professional companies independent of shipowners and charterers. It is the result of the mature development of the international shipping industry and the refinement of the division of labor in the industry. Since its emergence in the 1950s, it has played an increasingly important role in improving the flexibility of ship operations, reducing ship operating costs, and improving the level of professional services. In China, it has only been about 21 years since the first ship management company was born, and the whole industry is still in the process of exploration. The relevant legal provisions are not sufficiently clear. Theoretical studies on ship managers have also focused on management strategies and less on civil legal liability. To better understand the legal liability of ship managers, this paper identifies the concept and characteristics of ship managers based on the fundamental theories of civil law. The civil liability of ship managers is discussed in terms of breach of contract, tort, and contract negligence, taking shipping practice and standard agreements into account. According to the different legal provisions and judicial practice, it is proved that the liability of ship managers is becoming increasingly strict. They must be partially responsible for the safe and proper operation of the ship, and the legal status is not only as of the shipowner's agent. The paper also analyses the situations where the ship manager may not benefit from the limitation of liability and suggests that this should be considered in the management agreement or legal regime.

ПРАВОМІРНІСТЬ ЯК СВІТОГЛЯДНИЙ КРИТЕРІЙ ОЦІНКИ ПОВЕДІНКИ ТА ДІЯЛЬНОСТІ

The article considers the peculiarities of criminal liability of employees of health care institutions for violation of the provisions of Art. 320 of the Criminal Code of Ukraine, which consists of two parts, which differ in the ways (forms) of committing criminal offenses and limits of liability. The methodological basis of the study includes logical-semantic method, by which the types of methods (forms) of committing criminal offenses under Art. 320 of the Criminal Code of Ukraine are studied; a systematic approach, on the basis of which the author analyses the sequence of actions of employees of investigative bodies in the investigation of crimes on the grounds of criminal activity provided for in the provisions of this article. It is established that Art. 320 of the Criminal Code of Ukraine consists of two parts and provides for a wide range of criminal offenses, in particular the cultivation of sleeping poppy or hemp; violation of the rules of production, manufacture, storage, accounting, release, distribution, trade, transportation, shipment or use of narcotic drugs, psychotropic substances, their analogues or precursors intended for the production or manufacture of these drugs or substances; theft, misappropriation, extortion of narcotic drugs, psychotropic substances, their analogues or precursors, or their acquisition by fraud or abuse of office by an official, etc. It is shown that the disposition of Art. 320 of the Criminal Code of Ukraine has a blanket nature, which requires specification of its provisions in other regulations, including orders, instructions, rules. It is emphasized that employees of medical institutions and health care institutions must clearly know the content of the resolution of the Cabinet of Ministers № 770 "On approval of the list of narcotic drugs, psychotropic substances and precursors" from 06.06.2000, the order of the Ministry of Health № 188 "On approval of tables of small, large and especially large amounts of narcotic drugs, psychotropic substances and precursors that are in illicit traffic" from 01.08.2000, which will significantly help them to avoid offenses related to drug trafficking. Special attention should by paid to compliance with the rules of storage, transfer, accounting, release, distribution, trade, transportation, as well as the introduction of drug logs. The article also shows the sequence of actions of employees of investigative bodies during crime investigation on grounds of the criminal activity provided by Art. 320 of the Criminal Code of Ukraine.

Using Extrinsic Evidence to Excuse a Liability Insurer's Duty to Defend

Most Americans and American businesses purchase liability insurance to protect against financial loss should they ever be sued. In furnishing this protection, liability insurers contractually promise policyholders that they will defend them against lawsuits seeking covered damages and indemnify them for such damages up to the policy limits. As important as the insurer’s promise of indemnification is to an insured, the insurer’s agreement to defend the insured in litigation is an equally essential aspect of the liability insurance bargain. An insurer must decide whether it has a duty to defend its insured at the outset of a case. There are two approaches to determining an insurer’s duty to defend. First, there is the eight corners rule, under which the factual allegations in the plaintiff’s complaint or petition are compared with the policy, and the insurer owes a defense only if those allegations potentially implicate the insurer’s duty to indemnify the insured. Second, there is the extrinsic evidence approach. Courts employing an extrinsic evidence approach hold that an insurer must look beyond the pleadings and consider any facts brought to its attention or any facts that it reasonably could discover at the time suit was filed in deciding whether it has a duty to defend. Liability insurance policies typically provide that the insurer will pay the cost of the insured’s defense in addition to the policy’s liability limits. This is a potentially significant expense for the insurer because defense costs may, and often do, exceed any settlement or judgment ultimately paid. Given the expense associated with providing a defense, it is not surprising that an insurer may want to disclaim its duty to defend based on extrinsic evidence that establishes that it will have no duty to indemnify the insured. Of course, an insurer generally cannot decline to defend its insured if, in making that determination, it is limited to the facts alleged in the plaintiff’s petition or complaint; after all, even in extrinsic evidence states, it usually is the allegations in that pleading that triggered the insurer’s duty to defend in the first place. Thus, insurers frequently test their ability to rely on extrinsic evidence to disclaim their duty to defend when the plaintiff’s complaint or petition alleges facts that trigger the duty. In other words, if an insurer must, in many states, consider extrinsic evidence in accepting its duty to defend, can it also rely on extrinsic evidence to deny or exit a defense? The answer generally is no; the use of extrinsic evidence is rarely a two-way street. Although the general rule holds that an insurer may not rely on extrinsic evidence to refuse to defend an insured, some courts that adhere to the general rule occasionally recognize exceptions. Plus, there is a contrary minority rule. It is therefore fair to ask whether an insurer should be allowed to rely on extrinsic evidence to disclaim or extinguish its duty to defend when the plaintiff’s complaint or petition alleges facts that implicate coverage, and, if so, under what circumstances? This question is timely first because of two 2020 Texas Supreme Court decisions addressing it and offering different answers based on the facts presented: Richards v. State Farm Lloyds and Loya Insurance Co. v. Avalos. Second, as Richards and Loya demonstrate, insurers’ use of extrinsic evidence to excuse their defense obligations is an ongoing litigation strategy. That is not to say that the strategy is good or bad, but it is to say that the extrinsic evidence issue will continue to surface in key cases in various jurisdictions. Third, while insurers’ use of extrinsic evidence to defeat the duty to defend is hotly contested by policyholders, courts that have considered the issue over the years have rarely discussed it in meaningful fashion in their opinions. The resulting lack of guidance hampers courts either confronting the issue for the first time or entertaining reconsideration of prior holdings. This Article provides that guidance.

Legal Analysis in Maritime Laws Based on <i>Grounding Case of M/V “EVER GIVEN” in Suez Canal</i>

On March 24, 2021, M/V EVER GIVEN from Evergreen Marine Corp stranded in the southern part of the Suez Canal shortly after it entered the canal, resulting in the closure of the two-way channel of the Suez Canal and the blockage of hundreds of ships on the route between Asia and Europe. There exist quite tedious and complicated legal issues behind the stranding of M/V EVER GIVEN, including the contractual liability of M/V EVER GIVEN to the owners of cargo, the legal liability of M/V EVER GIVEN to the Suez Canal Authority and to the rescue force, and the establishment and contribution of general average. As to the specific claims for compensation, the legal relationship between the parties should be made clear firstly, and the establishment of the right to claim should then be confirmed. We should also distinguish claims which have been covered by the insurer or the P&I club from those which should be the responsibility of the ship owner. Combined with the gross tonnage data of M/V EVER GIVEN, the limitation of liability for maritime claims can be calculated according to the 2012 Amendment of CONVENTION ON LIMITATION OF LIABILITY FOR MARITIME CLAIMS 1976. To have a conclusion that the paper will predict whether the owner of M/V EVER GIVEN will be bankrupt, the value of the vessel should be compared with the amount of limitation of liability for maritime claims.

Theoretical substantiation of the model of borrowing rights-terminating facts

The relevance of the research is determined by the fact that it is necessary to differentiate the possibility of applying rights-terminating facts not only in general constructs of the civil branch of legislation but also in a number of private practices of sub-industries regulating general socio-economic relations. Such differentiation can contribute to the sustainable development of the civil sector of legislation. The aim of the article was to show new constructions in connection with the judicial system and the system of socio-economic forecasting. The main importance of legal consists in the fact that they can be applied in general in the category of civil law and at the same time their role as regulators of the civil branch of legislation is minimized or does not work at all. In this regard, for the termination of legal relations, mainly general constructs of juridical facts without formalization for industry values are used. Such constructions contribute to equality between members of society, which in turn contributes to its development and well-being. It is found that the main task of the formation of the practice of applying rights-terminating facts is to determine the limits of liability of industry-specific legislation. The practical significance of the research is determined by the fact that for the first time the aspects of sectoral planning of the system of application of rights-terminating facts are revealed. The developed model can be applied both in the process of adjudication and in the process of socio-economic development programmers. The novelty of the research is determined by the fact that in the literature, aspects of the formation of industrial legislative grounds for the application of local juridical facts are shown for the first time.