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Aussie Super Cruises Ltd (ASC) with its place of business in Perth, Australia is an operator of 10 luxury cruise ships. The company?s Board of Directors decided to replace engines on 5 of their cruise ships in order to improve the overall performance of its fleet. On 5 May 2012, ASC sent the order form to Best Maritime Builders Ltd (BMB) located in Tokyo, Japan.
The order form specified that ASC wanted to buy five (5) engines and specified the engine type and model number. The order form did not state the price, but instead referred to the ?price listed on the website?. The order form also stated ?FOB Perth, Incoterms 2010?.
On 18 May 2012, BMB replied by fax ?We accept your order of 5 May 2012 and advise that the total contract price is US$2,050,000; the price of each engine being US$290,000 and the rest for the costs of installation and maintenance services for a period of 12 months from the date of installation?. ASC replied by fax later on the same day ?We agree to your conditions and would like to go ahead with our order.?
Shortly after installation of new engines it was evident that while the engines complied with minimum international standards, their performance did not meet ASC?s expectations and only improved the performance of boats by 70% (not 90% as expected). The Board of Directors was very disappointed with the performance of the engines.
Under the rules of private international law in Japan, the proper law for international sales of goods is the law of the country where the contract is performed. The Sale of Good legislation in Western Australia (a State of Australia where Perth is located) says that the Courts of Western Australia only have jurisdiction to hear matters where the contract was concluded in Australia.
The Managing Director of ASC comes to you for advice. He specifically wants to know:
? Is there a contract? If yes, when and where was it formed?
? Will CISG apply to the above transaction? Why?
? What courses of action are available to ASC in relation to the engines, what available remedies (if any) are there, and what potential defences are available to the other party?
Advise the Managing Director of ASC on these and any other matters you think relevant.
Marking Criteria (Problem-Solving Questions)
This category of specific assessment guidelines applies to problem-type questions. Assessment of this kind will be the most commonly encountered assessment in law units. Typically it will take the form of a hypothetical fact situation, where you will be asked to advise X or Y, and to identify and explain the legal arguments and options which are available.
Part B questions will be evaluated on the following criteria/factors:
? Communication ? Correct syntax, grammar and spelling, clarity of thought and expression, conformity with prescribed word limit.
? Demonstrated knowledge of the law and familiarity with relevant literature and readings ? reflects a good knowledge of the relevant legislation and relevant case law, an understanding of their scope and operation.
? Analytical skills, discussion and argument ? identification, discussion and analysis of relevant arguments and evidence, dealing with evidence and arguments in a logical, coherent structure, reaching conclusion.
? Presentation ? correct use of citations, conformity with relevant style guide, layout out, clarity, ease of reading.
Please note that the criteria listed are not necessarily of equal weighting, nor are they all inclusive. The weighting for each criterion is a matter for the academic judgement of the lecturer in charge of the unit. However, all papers are expected to have a significant weighting for written communication skills.
Citing or referencing is the process of acknowledging the words, ideas or data of others used in the preparation of an assessment. This is important to allow the readers of your work to locate and check each source of information and importantly to avoid plagiarism.
USEFUL TIPS:
? DON?T RESTATE THE FACTS ? The facts are given in the assignment question. I know them, so it is not necessary to restate the facts.
? DON?T EXCEED PRESCRIBED WORD LIMIT ? You are generally allowed to go over by about 10%, but you will be penalised if you substantially exceed the world limit. Your world limit is 1200 words.
? AVOID THE USE OF BULLET POINTS ? Your answer should be structured in sentences and paragraphs instead of bullet points.
? READ QUESTIONS CAREFULLY ? Please read questions carefully and remember to answer all questions.
? FOLLOW THE PRESCRIBED STYLE AND REFERENCING GUIDE: Footnotes system according to the legal reference guidelines.
? RESEARCH MATERIALS/SOURCES ? It is recommended that you undertake additional research (beyond material provided in the Study Guide) to answer the exam questions.
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