Enrolled HB 102: Relating to the Uniform Commercial Code, to the general provisions of the Uniform Commercial Code, to documents of title under the Uniform Commercial Code, to the Uniform Electronic Transactions Act, to lease-purchases of personal property, to the contractual duty to act fairly and in good faith, and to carrier, warehouse, and livestock care liens; amending Rules 403 and 902, Alaska Rules of Evidence; and providing for an effective date.
00Enrolled HB 102 01 Relating to the Uniform Commercial Code, to the general provisions of the Uniform 02 Commercial Code, to documents of title under the Uniform Commercial Code, to the Uniform 03 Electronic Transactions Act, to lease-purchases of personal property, to the contractual duty 04 to act fairly and in good faith, and to carrier, warehouse, and livestock care liens; amending 05 Rules 403 and 902, Alaska Rules of Evidence; and providing for an effective date. 06 _______________ 07 * Section 1. AS 09.70 is amended by adding a new section to read: 08 Sec. 09.70.030. Good faith. The parties to every contract have a duty to act 09 fairly and in good faith in the performance and enforcement of the contract. 10 * Sec. 2. AS 09.80.010(b) is amended to read: 11 (b) This chapter does not apply to a transaction to the extent it is governed by 12 (1) a law governing the creation and execution of wills, codicils, or
01 testamentary trusts; 02 (2) the Uniform Commercial Code other than AS 45.01.306, AS 45.02, 03 AS 45.12, and, to the extent allowed by AS 45.07.113(c), AS 45.07 [AS 45.01.107, 04 45.01.206, AS 45.02, AND AS 45.12]. 05 * Sec. 3. AS 09.80.130(c) is amended to read: 06 (c) Except as otherwise agreed, a person having control of a transferable 07 record is the holder, as defined in AS 45.01.211(b) [AS 45.01.201], of the transferable 08 record and has the same rights and defenses as a holder of an equivalent record or 09 writing under the Uniform Commercial Code, including, if the applicable statutory 10 requirements under AS 45.03.302(a), AS 45.07.501, or AS 45.29.308 are satisfied, the 11 rights and defenses of a holder in due course, a holder to which a negotiable document 12 of title has been duly negotiated, or a purchaser, respectively. Delivery, possession, 13 and endorsement are not required to obtain or exercise a right [ANY OF THE 14 RIGHTS] under this subsection. 15 * Sec. 4. AS 34.35.220 is amended to read: 16 Sec. 34.35.220. Persons entitled to carrier, warehouse, and livestock liens. 17 The following persons [SHALL] have liens on [UPON] personal property for their 18 just and reasonable charges for the labor, care, and attention provided [BESTOWED] 19 and the food furnished, and may retain possession of the property until the charges are 20 paid: 21 (1) a person who is a common carrier, or who, at the request of the 22 owner or lawful possessor of personal property, [CARRIES, CONVEYS, OR] 23 transports the property from one place to another; 24 (2) a person who safely keeps or stores [GRAIN, WARES, 25 MERCHANDISE, AND] personal property at the request of the owner or lawful 26 possessor of the property; and 27 (3) a person who pastures or feeds [HORSES, CATTLE, HOGS, 28 SHEEP, OR OTHER] livestock, or bestows labor, care, or attention on [UPON] the 29 livestock at the request of the owner or lawful possessor of the livestock. 30 * Sec. 5. AS 34.35.225(b) is amended to read: 31 (b) Nothing in this section may be construed to authorize a person
01 [WAREHOUSEMAN] to sell more of the property [WOOL, WHEAT, OATS, OR 02 OTHER GRAIN] than is sufficient to pay charges due the person 03 [WAREHOUSEMAN] on the property [WOOL, WHEAT, OATS, OR OTHER 04 GRAIN]. 05 * Sec. 6. AS 34.35.225(c) is amended to read: 06 (c) A person [WAREHOUSEMAN] who sells, loans, or otherwise disposes 07 of property [THE WOOL, WHEAT, OATS, OR GRAIN] contrary to the provisions 08 of AS 34.35.220 and this section [34.35.225] without the consent of the owner of the 09 property shall, for each offense, forfeit and pay to the owner a sum equal to the market 10 value of the property, and 50 percent of the market value in addition as a penalty. In 11 this subsection, "market value" means [MARKET VALUE IS] the price the 12 property [ARTICLE] bears at the time the owner makes demand on the person 13 [WAREHOUSEMAN] for it. 14 * Sec. 7. AS 34.35.225 is amended by adding a new subsection to read: 15 (d) The remedies available under this section are in addition to any remedies 16 available under AS 45.07.210. 17 * Sec. 8. AS 45.01 is amended by adding new sections to article 1 to read: 18 Sec. 45.01.111. Short titles. (a) AS 45.01 - AS 45.08, AS 45.12, AS 45.14, 19 and AS 45.29 may be cited as the Uniform Commercial Code. 20 (b) This chapter may be cited as the Uniform Commercial Code - General 21 Provisions. 22 Sec. 45.01.112. Scope of chapter. This chapter applies to a transaction to the 23 extent that the transaction is governed by another chapter of the code. 24 Sec. 45.01.113. Construction of code to promote its purposes and policies; 25 applicability of supplemental principles of law. (a) The code shall be liberally 26 construed and applied to promote the code's underlying purposes and policies, which 27 are to 28 (1) simplify, clarify, and modernize the law governing commercial 29 transactions; 30 (2) permit the continued expansion of commercial practices through 31 custom, usage, and agreement of the parties; and
01 (3) make uniform the law among the various jurisdictions. 02 (b) Unless displaced by the particular provisions of the code, the principles of 03 law and equity, including the law merchant and the law relative to capacity to contract, 04 principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, 05 bankruptcy, and other validating or invalidating cause, supplement the code's 06 provisions. 07 Sec. 45.01.114. Construction against implied repeal. The code being a 08 general act intended as a unified coverage of its subject matter, no part of it may be 09 considered to be impliedly repealed by subsequent legislation if that construction can 10 reasonably be avoided. 11 Sec. 45.01.115. Severability. If a provision or clause of the code or application 12 of the clause or provision to a person or circumstances is held invalid, the invalidity 13 does not affect other provisions or applications of the code that can be given effect 14 without the invalid provision or application, and, to this end, the provisions of the code 15 are severable. 16 Sec. 45.01.116. Use of singular and plural; gender. In the code, the rules of 17 construction in AS 01.10.050(b) and (c) apply, unless the statutory context otherwise 18 requires. 19 Sec. 45.01.117. Section captions. Notwithstanding AS 01.05.006 and 20 01.05.031(b)(2), section captions are part of the code. 21 Sec. 45.01.118. Relation to Electronic Signatures in Global and National 22 Commerce Act. The code modifies, limits, and supersedes 15 U.S.C. 7001 - 7031 23 (Electronic Signatures in Global and National Commerce Act) but does not modify, 24 limit, or supersede 15 U.S.C. 7001(c) or authorize electronic delivery of a notice 25 described in 15 U.S.C. 7003(b). 26 * Sec. 9. AS 45.01 is amended by adding new sections to read: 27 Sec. 45.01.211. General definitions. (a) Unless the context otherwise requires, 28 words or phrases defined in this section, or in the additional definitions contained in 29 other chapters of the code that apply to particular chapters or articles of the code, have 30 the meanings stated. 31 (b) Subject to definitions contained in other chapters of the code that apply to
01 particular chapters or articles of the code, 02 (1) "action," in the sense of a judicial proceeding, includes 03 recoupment, counterclaim, set-off, suit in equity, and another proceeding in which 04 rights are determined; 05 (2) "aggrieved party" means a party entitled to pursue a remedy; 06 (3) "agreement," as distinguished from "contract," means the bargain 07 of the parties in fact, as found in their language or inferred from other circumstances, 08 including course of performance, course of dealing, or usage of trade as provided in 09 AS 45.01.303; 10 (4) "bank" means a person engaged in the business of banking and 11 includes a savings bank, savings and loan association, credit union, and trust company; 12 (5) "bearer" means a person in control of a negotiable electronic 13 document of title or a person in possession of a negotiable instrument, negotiable 14 tangible document of title, or certificated security that is payable to bearer or endorsed 15 in blank; 16 (6) "bill of lading" means a document of title evidencing the receipt of 17 goods for shipment issued by a person engaged in the business of directly or indirectly 18 transporting or forwarding goods; "bill of lading" does not include a warehouse 19 receipt; 20 (7) "branch" includes a separately incorporated foreign branch of a 21 bank; 22 (8) "burden of establishing" a fact means the burden of persuading the 23 trier of fact that the existence of the fact is more probable than its nonexistence; 24 (9) "buyer in ordinary course of business" means a person who buys 25 goods in good faith, without knowledge that the sale violates the rights of another 26 person in the goods, and in the ordinary course from a person, other than a 27 pawnbroker, in the business of selling goods of that kind; a person buys goods in the 28 ordinary course if the sale to the person comports with the usual or customary 29 practices in the kind of business in which the seller is engaged or with the seller's own 30 usual or customary practices; a person who sells oil, gas, or other minerals at the 31 wellhead or minehead is a person in the business of selling goods of that kind; a buyer
01 in ordinary course of business may buy for cash, by exchange of other property, or on 02 secured or unsecured credit, and may acquire goods or documents of title under a 03 preexisting contract for sale; only a buyer who takes possession of the goods or has a 04 right to recover the goods from the seller under AS 45.02 may be a buyer in ordinary 05 course of business; "buyer in ordinary course of business" does not include a person 06 who acquires goods in a transfer in bulk or as security for or in total or partial 07 satisfaction of a money debt; 08 (10) "code" means AS 45.01 - AS 45.08, AS 45.12, AS 45.14, and 09 AS 45.29; 10 (11) "conspicuous," with reference to a term, means written, displayed, 11 or presented in a way that a reasonable person against whom it is to operate ought to 12 have noticed it; whether a term is "conspicuous" or not is a decision for the court; 13 conspicuous terms include 14 (A) a heading in capitals equal to or greater in size than the 15 surrounding text, or in contrasting type, font, or color to the surrounding text of 16 the same or lesser size; and 17 (B) language in the body of a record or display in larger type 18 than the surrounding text, or in contrasting type, font, or color to the 19 surrounding text of the same size, or set off from surrounding text of the same 20 size by symbols or other marks that call attention to the language; 21 (12) "consumer" means an individual who enters into a transaction 22 primarily for personal, family, or household purposes; 23 (13) "contract," as distinguished from "agreement," means the total 24 legal obligation that results from the parties' agreement as determined by the code as 25 supplemented by other applicable laws; 26 (14) "creditor" includes a general creditor, a secured creditor, a lien 27 creditor, and a representative of creditors, including an assignee for the benefit of 28 creditors, a trustee in bankruptcy, a receiver in equity, and an executor or 29 administrator of an insolvent debtor's or assignor's estate; 30 (15) "defendant" includes a person in the position of defendant in a 31 counterclaim, cross-claim, or third-party claim;
01 (16) "delivery," with respect to an electronic document of title, means 02 voluntary transfer of control and, with respect to an instrument, a tangible document of 03 title, or chattel paper, means voluntary transfer of possession; 04 (17) "document of title" 05 (A) means a record that 06 (i) in the regular course of business or financing, is 07 treated as adequately evidencing that the person in possession or 08 control of the record is entitled to receive, control, hold, and dispose of 09 the record and the goods the record covers; and 10 (ii) purports to be issued by or addressed to a bailee and 11 to cover goods in the bailee's possession that are either identified or are 12 fungible portions of an identified mass; 13 (B) includes a bill of lading, transport document, dock warrant, 14 dock receipt, warehouse receipt, and order for delivery of goods; 15 (18) "electronic document of title" means a document of title 16 evidenced by a record consisting of information stored in an electronic medium; 17 (19) "fault" means a default, breach, or wrongful act or omission; 18 (20) "fungible goods" means goods 19 (A) of which a unit, by nature or usage of trade, is the 20 equivalent of another like unit; or 21 (B) that, by agreement, are treated as equivalent; 22 (21) "genuine" means free of forgery or counterfeiting; 23 (22) "good faith," except as otherwise provided in AS 45.05, means 24 honesty in fact and the observance of reasonable commercial standards of fair dealing; 25 (23) "holder" means the person in 26 (A) possession of a negotiable instrument that is payable either 27 to bearer or to an identified person who is the person in possession; 28 (B) possession of a negotiable tangible document of title if the 29 goods are deliverable either to bearer or to the order of the person in 30 possession; or 31 (C) control of a negotiable electronic document of title;
01 (24) "insolvency proceeding" includes an assignment for the benefit of 02 creditors or another proceeding intended to liquidate or rehabilitate the estate of the 03 person involved; 04 (25) "insolvent" means 05 (A) having generally ceased to pay debts in the ordinary course 06 of business other than as a result of bona fide dispute; 07 (B) being unable to pay debts as they become due; or 08 (C) being insolvent within the meaning of federal bankruptcy 09 law; 10 (26) "money" means a medium of exchange currently authorized or 11 adopted by a domestic or foreign government, and includes a monetary unit of account 12 established by an intergovernmental organization or by agreement between two or 13 more countries; 14 (27) "organization" means a person other than an individual; 15 (28) "party," as distinguished from "third party," means a person who 16 has engaged in a transaction or made an agreement subject to the code; 17 (29) "person" means an individual, corporation, business trust, estate, 18 trust, partnership, limited liability company, association, joint venture, government, 19 governmental subdivision, agency, or instrumentality, public corporation, or another 20 legal or commercial entity; 21 (30) "present value" means the amount as of a date certain of one or 22 more sums payable in the future, discounted to the date certain 23 (A) by use of an interest rate that is specified by the parties if 24 that rate is not manifestly unreasonable at the time the transaction is entered 25 into; or 26 (B) if an interest rate is not determined under (A) of this 27 paragraph, by use of a commercially reasonable rate that takes into account the 28 facts and circumstances at the time the transaction is entered into; 29 (31) "purchase" means taking by sale, lease, discount, negotiation, 30 mortgage, pledge, lien, security interest, issue or reissue, gift, or another voluntary 31 transaction creating an interest in property;
01 (32) "purchaser" means a person who takes by purchase; 02 (33) "record" means information that is inscribed on a tangible 03 medium or that is stored in an electronic or other medium and is retrievable in 04 perceivable form; 05 (34) "remedy" means a remedial right to which an aggrieved party is 06 entitled with or without resort to a tribunal; 07 (35) "representative" means a person empowered to act for another, 08 including an agent, an officer of a corporation or association, and a trustee, executor, 09 or administrator of an estate; 10 (36) "right" includes remedy; 11 (37) "security interest" means an interest in personal property or 12 fixtures that secures payment or performance of an obligation; "security interest" 13 includes an interest of a consignor and a buyer of accounts, chattel paper, a payment 14 intangible, or a promissory note in a transaction that is subject to AS 45.29; "security 15 interest" does not include the special property interest of a buyer of goods on 16 identification of those goods to a contract for sale under AS 45.02.401, but a buyer 17 may also acquire a security interest by complying with AS 45.29; except as otherwise 18 provided in AS 45.02.505, the right of a seller or lessor of goods under AS 45.02 or 19 AS 45.12 to retain or acquire possession of the goods is not a security interest, but a 20 seller or lessor may also acquire a security interest by complying with AS 45.29; the 21 retention or reservation of title by a seller of goods notwithstanding shipment or 22 delivery to the buyer under AS 45.02.401 is limited in effect to a reservation of a 23 security interest; whether a transaction in the form of a lease creates a security interest 24 is determined under AS 45.01.213; 25 (38) "send," in connection with a writing, record, or notice, means 26 (A) to deposit in the mail or deliver for transmission by a usual 27 means of communication with postage or cost of transmission provided for and 28 properly addressed and, in the case of an instrument, to an address specified on 29 the instrument or otherwise agreed on, or, if an address is not specified on the 30 instrument or otherwise agreed on, to an address reasonable under the 31 circumstances; or
01 (B) in another way to cause to be received a record or notice 02 within the time it would have arrived if properly sent; 03 (39) "signed" includes using a symbol executed or adopted with 04 present intention to adopt or accept a writing; 05 (40) "state" means a state of the United States, the District of 06 Columbia, Puerto Rico, the United States Virgin Islands, or a territory or insular 07 possession subject to the jurisdiction of the United States; 08 (41) "surety" includes a guarantor or other secondary obligor; 09 (42) "tangible document of title" means a document of title evidenced 10 by a record consisting of information that is inscribed on a tangible medium; 11 (43) "term" means a portion of an agreement that relates to a particular 12 matter; 13 (44) "unauthorized signature" means a signature made without actual, 14 implied, or apparent authority, and includes a forgery; 15 (45) "warehouse receipt" means a document of title issued by a 16 warehouse; in this paragraph, "warehouse" has the meaning given in AS 45.07.112(a); 17 (46) "writing" includes printing, typewriting, or another intentional 18 reduction to tangible form; "written" has a corresponding meaning. 19 Sec. 45.01.212. Notice; knowledge. (a) Subject to (f) of this section, a person 20 has "notice" of a fact if the person 21 (1) has actual knowledge of it; 22 (2) has received a notice or notification of it; or 23 (3) from all the facts and circumstances known to the person at the 24 time in question, has reason to know that it exists. 25 (b) "Knowledge" means actual knowledge. "Knows" has a corresponding 26 meaning. 27 (c) "Discover," "learn," or words of similar import refer to knowledge rather 28 than to reason to know. 29 (d) A person "notifies" or "gives" a notice or notification to another person by 30 taking those steps that may be reasonably required to inform the other person in 31 ordinary course, whether or not the other person actually comes to know of it.
01 (e) Subject to (f) of this section, a person "receives" a notice or notification 02 when it 03 (1) comes to that person's attention; or 04 (2) is duly delivered in a form reasonable under the circumstances at 05 the place of business through which the contract was made or at another location held 06 out by that person as the place for receipt of that type of communication. 07 (f) Notice, knowledge, or a notice or notification received by an organization 08 is effective for a particular transaction from the time it is brought to the attention of 09 the individual conducting that transaction and, in any event, from the time it would 10 have been brought to the individual's attention if the organization had exercised due 11 diligence. An organization exercises due diligence if it maintains reasonable routines 12 for communicating significant information to the person conducting the transaction 13 and there is reasonable compliance with the routines. Due diligence does not require 14 an individual acting for the organization to communicate information unless the 15 communication is part of the individual's regular duties or the individual has reason to 16 know of the transaction and that the transaction would be materially affected by the 17 information. 18 Sec. 45.01.213. Lease distinguished from security interest. (a) Whether a 19 transaction in the form of a lease creates a lease or security interest is determined by 20 the facts of each case. 21 (b) A transaction in the form of a lease creates a security interest if the 22 consideration that the lessee is to pay the lessor for the right to possession and use of 23 the goods is an obligation for the term of the lease and is not subject to termination by 24 the lessee, and the 25 (1) original term of the lease is equal to or greater than the remaining 26 economic life of the goods; 27 (2) lessee is bound to renew the lease for the remaining economic life 28 of the goods or is bound to become the owner of the goods; 29 (3) lessee has an option to renew the lease for the remaining economic 30 life of the goods for no additional consideration or for nominal additional 31 consideration upon compliance with the lease agreement; or
01 (4) lessee has an option to become the owner of the goods for no 02 additional consideration or for nominal additional consideration on compliance with 03 the lease agreement. 04 (c) A transaction in the form of a lease does not create a security interest 05 merely because the 06 (1) present value of the consideration the lessee is obligated to pay the 07 lessor for the right to possession and use of the goods is substantially equal to or 08 greater than the fair market value of the goods at the time the lease is entered into; 09 (2) lessee assumes risk of loss of the goods; 10 (3) lessee agrees to pay, with respect to the goods, taxes, insurance, 11 filing, recording, or registration fees, or service or maintenance costs; 12 (4) lessee has an option to renew the lease or to become the owner of 13 the goods; 14 (5) lessee has an option to renew the lease for a fixed rent that is equal 15 to or greater than the reasonably predictable fair market rent for the use of the goods 16 for the term of the renewal at the time the option is to be performed; or 17 (6) lessee has an option to become the owner of the goods for a fixed 18 price that is equal to or greater than the reasonably predictable fair market value of the 19 goods at the time the option is to be performed. 20 (d) Additional consideration is nominal if it is less than the lessee's reasonably 21 predictable cost of performing under the lease agreement if the option is not exercised. 22 Additional consideration is not nominal if, when the option to 23 (1) renew the lease is granted to the lessee, the rent is stated to be the 24 fair market rent for the use of the goods for the term of the renewal determined at the 25 time the option is to be performed; or 26 (2) become the owner of the goods is granted to the lessee, the price is 27 stated to be the fair market value of the goods determined at the time the option is to 28 be performed. 29 (e) The remaining economic life of the goods and reasonably predictable fair 30 market rent, fair market value, or cost of performing under the lease agreement must 31 be determined with reference to the facts and circumstances at the time the transaction
01 is entered into. 02 Sec. 45.01.214. Value. Except as otherwise provided in AS 45.03, AS 45.04, 03 and AS 45.05, a person gives value for rights if the person acquires them 04 (1) in return for a binding commitment to extend credit or for the 05 extension of immediately available credit, whether or not drawn upon and whether or 06 not a charge-back is provided for in the event of difficulties in collection; 07 (2) as security for, or in total or partial satisfaction of, a preexisting 08 claim; 09 (3) by accepting delivery under a preexisting contract for purchase; or 10 (4) in return for consideration sufficient to support a simple contract. 11 Sec. 45.01.215. Reasonable time; seasonableness. (a) Whether a time for 12 taking an action required by the code is reasonable depends on the nature, purpose, 13 and circumstances of the action. 14 (b) An action is taken seasonably if it is taken at or within the time agreed on 15 or, if no time is agreed on, at or within a reasonable time. 16 Sec. 45.01.216. Presumptions. Whenever the code creates a presumption with 17 respect to a fact, or provides that a fact is presumed, the trier of fact must find the 18 existence of the fact unless and until evidence is introduced that supports a finding of 19 the nonexistence of the fact. 20 Article 3. Territorial Applicability and General Rules. 21 Sec. 45.01.301. Territorial applicability; parties' power to choose 22 applicable law. (a) Except as otherwise provided in this section, when a transaction 23 bears a reasonable relation to this state and also to another state or nation, the parties 24 may agree that the law of this state or of the other state or nation shall govern the 25 parties' rights and duties. 26 (b) In the absence of an agreement effective under (a) of this section, and 27 except as provided in (c) of this section, the code applies to transactions bearing an 28 appropriate relation to this state. 29 (c) If one of the following provisions of the code specifies the applicable law, 30 that provision governs, and a contrary agreement is effective only to the extent 31 permitted by the applicable law specified by that provision:
01 (1) AS 45.02.402; 02 (2) AS 45.04.102; 03 (3) AS 45.05.116; 04 (4) AS 45.08.110; 05 (5) AS 45.12.105 and 45.12.106; 06 (6) AS 45.14.507; 07 (7) AS 45.29.301 - 45.29.307. 08 Sec. 45.01.302. Variation by agreement. (a) Except as otherwise provided in 09 (b) of this section or elsewhere in the code, the effect of provisions of the code may be 10 varied by agreement. 11 (b) The obligations of good faith, diligence, reasonableness, and care 12 prescribed by the code may not be disclaimed by agreement. The parties, by 13 agreement, may determine the standards by which the performance of those 14 obligations is to be measured if those standards are not manifestly unreasonable. 15 Whenever the code requires an action to be taken within a reasonable time, a time that 16 is not manifestly unreasonable may be fixed by agreement. 17 (c) The presence in certain provisions of the code of the phrase "unless 18 otherwise agreed," or words of similar import, does not imply that the effect of other 19 provisions may not be varied by agreement under this section. 20 Sec. 45.01.303. Course of performance, course of dealing, and usage of 21 trade. (a) A "course of performance" is a sequence of conduct between the parties to a 22 particular transaction that exists if the 23 (1) agreement of the parties with respect to the transaction involves 24 repeated occasions for performance by a party; and 25 (2) other party, with knowledge of the nature of the performance and 26 opportunity for objection to it, accepts the performance or acquiesces in it without 27 objection. 28 (b) A "course of dealing" is a sequence of conduct concerning previous 29 transactions between the parties to a particular transaction that is fairly to be regarded 30 as establishing a common basis of understanding for interpreting the parties' 31 expressions and other conduct.
01 (c) A "usage of trade" is a practice or method of dealing having the regularity 02 of observance in a place, vocation, or trade as to justify an expectation that it will be 03 observed with respect to the transaction in question. The existence and scope of a 04 usage of trade must be proved as facts. If it is established that a usage of trade is 05 embodied in a trade code or similar record, the interpretation of the record is a 06 question of law. 07 (d) A course of performance or course of dealing between the parties or usage 08 of trade in the vocation or trade in which they are engaged or of which they are or 09 should be aware is relevant in ascertaining the meaning of the parties' agreement, may 10 give particular meaning to specific terms of the agreement, and may supplement or 11 qualify the terms of the agreement. A usage of trade applicable in the place in which 12 part of the performance under the agreement is to occur may be used as indicated in 13 the previous sentence as to that part of the performance. 14 (e) Except as otherwise provided in (f) of this section, the express terms of an 15 agreement and an applicable course of performance, course of dealing, or usage of 16 trade must be construed whenever reasonable as consistent with each other. If this 17 construction is unreasonable, 18 (1) express terms prevail over course of performance, course of 19 dealing, and usage of trade; 20 (2) course of performance prevails over course of dealing and usage of 21 trade; and 22 (3) course of dealing prevails over usage of trade. 23 (f) Subject to AS 45.02.209, a course of performance is relevant to show a 24 waiver or modification of a term inconsistent with the course of performance. 25 (g) Evidence of a relevant usage of trade offered by one party is not 26 admissible unless that party has given the other party notice that the court finds 27 sufficient to prevent unfair surprise to the other party. 28 Sec. 45.01.304. Obligation of good faith. Every contract or duty within the 29 code imposes an obligation of good faith in its performance and enforcement. 30 Sec. 45.01.305. Remedies to be liberally administered. (a) The remedies 31 provided by the code must be liberally administered to the end that the aggrieved party
01 may be put in as good a position as if the other party had fully performed, but neither 02 consequential or special damages nor penal damages may be had except as specifically 03 provided in the code or by other rule of law. 04 (b) A right or obligation declared by the code is enforceable by action unless 05 the provision declaring it specifies a different and limited effect. 06 Sec. 45.01.306. Waiver or renunciation of claim or right after breach. A 07 claim or right arising out of an alleged breach may be discharged in whole or in part 08 without consideration by agreement of the aggrieved party in an authenticated record. 09 Sec. 45.01.307. Prima facie evidence by third-party documents. A 10 document in due form purporting to be a bill of lading, policy or certificate of 11 insurance, official weigher's or inspector's certificate, consular invoice, or another 12 document authorized or required by the contract to be issued by a third party is prima 13 facie evidence of its own authenticity and genuineness and of the facts stated in the 14 document by the third party. 15 Sec. 45.01.308. Performance or acceptance under reservation of rights. (a) 16 A party who, with explicit reservation of rights, performs or promises performance or 17 assents to performance in a manner demanded or offered by the other party does not 18 by the performance, promise, or assent prejudice the rights reserved. The words, 19 "without prejudice," "under protest," or the like are sufficient. 20 (b) The provisions of (a) of this section do not apply to an accord and 21 satisfaction. 22 Sec. 45.01.309. Option to accelerate at will. A term providing that one party 23 or that party's successor in interest may accelerate payment or performance or require 24 collateral or additional collateral "at will" or when the party "deems itself insecure," or 25 words of similar import, means that the party has power to make the acceleration or 26 requirement only if that party in good faith believes that the prospect of payment or 27 performance is impaired. The burden of establishing lack of good faith is on the party 28 against whom the power has been exercised. 29 Sec. 45.01.310. Subordinated obligations. An obligation may be issued as 30 subordinated to performance of another obligation of the person obligated, or a 31 creditor may subordinate its right to performance of an obligation by agreement with
01 either the person obligated or another creditor of the person obligated. Subordination 02 does not create a security interest as against either the common debtor or a 03 subordinated creditor. 04 * Sec. 10. AS 45.02.103(c)(2) is amended to read: 05 (2) "consignee" (AS 45.07.112) [(AS 45.07.102)]; 06 * Sec. 11. AS 45.02.103(c)(3) is amended to read: 07 (3) "consignor" (AS 45.07.112) [(AS 45.07.102)]; 08 * Sec. 12. AS 45.02.103(c) is amended by adding a new paragraph to read: 09 (7) "control" (AS 45.07.116). 10 * Sec. 13. AS 45.02.104(b) is amended to read: 11 (b) "Financing agency" means a bank, finance company, or other person who, 12 in the ordinary course of business, makes advances against goods or documents of title 13 or who, by arrangement with either the seller or the buyer, intervenes in ordinary 14 course to make or collect payment due or claimed under the contract for sale, as by 15 purchasing or paying the seller's draft or making advances against it or by merely 16 taking it for collection whether or not documents of title accompany or are associated 17 with the draft. "Financing agency" includes also a bank or other person who similarly 18 intervenes between persons who are in the position of seller and buyer in respect to the 19 goods (AS 45.02.707). 20 * Sec. 14. AS 45.02.202 is amended to read: 21 Sec. 45.02.202. Final written expression; parol or extrinsic evidence. Terms 22 with respect to which the confirmatory memoranda of the parties agree, or that are 23 otherwise set out in a writing intended by the parties as a final expression of their 24 agreement with respect to the terms included in the writing, may not be contradicted 25 by evidence of a prior agreement or of a contemporaneous oral agreement, but may be 26 explained or supplemented 27 (1) by course of performance, course of dealing, or usage of trade 28 (AS 45.01.303) [(AS 45.01.205) OR BY COURSE OF PERFORMANCE 29 (AS 45.02.208)]; and 30 (2) by evidence of consistent additional terms unless the court finds the 31 writing was intended also as a complete and exclusive statement of the terms of the
01 agreement. 02 * Sec. 15. AS 45.02.310 is amended to read: 03 Sec. 45.02.310. Open time for payment or running of credit; authority to 04 ship under reservation. Unless otherwise agreed, 05 (1) payment is due at the time and place at which the buyer is to 06 receive the goods even though the place of shipment is the place of delivery; 07 (2) if the seller is authorized to send the goods, the seller may ship 08 them under reservation and may tender the documents of title, but the buyer may 09 inspect the goods after their arrival before payment is due unless inspection is 10 inconsistent with the terms of the contract (AS 45.02.513); 11 (3) if delivery is authorized and made by way of documents of title 12 other [OTHERWISE] than by (2) of this section, then payment is due, regardless of 13 where the goods are to be received, at the time 14 (A) and place at which the buyer is to receive delivery of the 15 tangible documents; or 16 (B) the buyer is to receive delivery of the electronic 17 documents and at the seller's place of business or, if the seller does not 18 have a place of business, the seller's residence [REGARDLESS OF WHERE 19 THE GOODS ARE TO BE RECEIVED]; and 20 (4) if the seller is required or authorized to ship the goods on credit, the 21 credit period runs from the time of shipment, but postdating the invoice or delaying its 22 dispatch correspondingly delays the starting of the credit period. 23 * Sec. 16. AS 45.02.323(b) is amended to read: 24 (b) Where, in a case within (a) of this section, a tangible bill of lading has 25 been issued in a set of parts, unless otherwise agreed, if the documents are not to be 26 sent from abroad, the buyer may demand tender of the full set; otherwise only one part 27 of the bill of lading need be tendered. Even if the agreement expressly requires a full 28 set, 29 (1) due tender of a single part is acceptable within the provisions on 30 cure of improper delivery (AS 45.02.508(a)); and 31 (2) even though the full set is demanded, if the documents are sent
01 from abroad, the person tendering an incomplete set may nevertheless require payment 02 upon furnishing an indemnity that the buyer in good faith considers adequate. 03 * Sec. 17. AS 45.02.401 is amended to read: 04 Sec. 45.02.401. Passing of title; reservation for security; limited 05 application of this section. Each provision of this chapter with regard to the rights, 06 obligations, and remedies of the seller, the buyer, purchasers, or other third parties 07 applies irrespective of title to the goods except where the provision refers to the title. 08 Insofar as situations are not covered by the other provisions of this chapter and matters 09 concerning title become material, the following rules apply: 10 (1) title to goods cannot pass under a contract for sale before their 11 identification to the contract (AS 45.02.501), and, unless otherwise explicitly agreed, 12 the buyer acquires by their identification a special property as limited by the code; a 13 retention or reservation by the seller of the title (property) in goods shipped or 14 delivered to the buyer is limited in effect to a reservation of a security interest; subject 15 to these provisions and to the provisions of AS 45.29, title to goods passes from the 16 seller to the buyer in the manner and on the conditions explicitly agreed on by the 17 parties; 18 (2) unless otherwise explicitly agreed, title passes to the buyer at the 19 time and place at which the seller completes performance with reference to the 20 physical delivery of the goods, despite a reservation of a security interest and even 21 though a document of title is to be delivered at a different time or place; in particular 22 and despite a reservation of a security interest by the bill of lading, 23 (A) if the contract requires or authorizes the seller to send the 24 goods to the buyer but does not require the seller to deliver them at destination, 25 title passes to the buyer at the time and place of shipment; but 26 (B) if the contract requires delivery at destination, title passes 27 on tender there; 28 (3) unless otherwise explicitly agreed, where delivery is to be made 29 without moving the goods, 30 (A) if the seller is to deliver a tangible document of title, title 31 passes at the time and place the seller delivers the document, and, if the seller
01 is to deliver an electronic document of title, title passes when the seller 02 delivers the document [DOCUMENTS]; or 03 (B) if the goods are, at the time of contracting, already 04 identified and no documents of title are to be delivered, title passes at the time 05 and place of contracting; 06 (4) a rejection or other refusal by the buyer to receive or retain the 07 goods, whether or not justified, or a justified revocation of acceptance revests title to 08 the goods in the seller; this revesting occurs by operation of law and is not a "sale." 09 * Sec. 18. AS 45.02.503(d) is amended to read: 10 (d) If goods are in the possession of a bailee and are to be delivered without 11 being moved, 12 (1) tender requires that the seller either tender a negotiable document 13 of title covering the goods or procure acknowledgment by the bailee of the buyer's 14 right to possession of the goods; but 15 (2) tender to the buyer of a nonnegotiable document of title or of a 16 record directing [WRITTEN DIRECTION TO] the bailee to deliver is sufficient 17 tender unless the buyer seasonably objects, and, except as otherwise provided in 18 AS 45.29, receipt by the bailee of notification of the buyer's rights fixes those rights as 19 against the bailee and all third persons; but risk of loss of the goods and of a failure by 20 the bailee to honor the nonnegotiable document of title or to obey the direction 21 remains on the seller until the buyer has had a reasonable time to present the document 22 or direction, and a refusal by the bailee to honor the document or to obey the direction 23 defeats the tender. 24 * Sec. 19. AS 45.02.503(e) is amended to read: 25 (e) If the contract requires the seller to deliver documents, 26 (1) the seller must tender all such documents in correct form except as 27 provided in AS 45.02.323(b) with respect to bills of lading in a set; and 28 (2) tender through customary banking channels is sufficient, and 29 dishonor of a draft accompanying or associated with the documents constitutes 30 nonacceptance or rejection. 31 * Sec. 20. AS 45.02.505 is amended to read:
01 Sec. 45.02.505. Seller's shipment under reservation. (a) If the seller has 02 identified goods to the contract by or before shipment, 03 (1) the seller's procurement of a negotiable bill of lading to the seller's 04 order or otherwise reserves in the seller a security interest in the goods; the seller's 05 procurement of the bill to the order of a financing agency or of the buyer indicates in 06 addition only the seller's expectation of transferring that interest to the person named; 07 (2) a nonnegotiable bill of lading to the seller or the nominee of the 08 seller reserves possession of the goods as security, but, except in a case of conditional 09 delivery (AS 45.02.507(b)), a nonnegotiable bill of lading naming the buyer as 10 consignee reserves no security interest even though the seller retains possession or 11 control of the bill of lading. 12 (b) If shipment by the seller with reservation of a security interest is in 13 violation of the contract for sale, it constitutes an improper contract for transportation 14 within AS 45.02.504 [THE PRECEDING SECTION] but impairs neither the rights 15 given to the buyer by shipment and identification of the goods to the contract nor the 16 seller's powers as a holder of a negotiable document of title. 17 * Sec. 21. AS 45.02.506(b) is amended to read: 18 (b) The right to reimbursement of a financing agency that has in good faith 19 honored or purchased the draft under commitment to or authority from the buyer is not 20 impaired by subsequent discovery of defects with reference to a relevant document 21 that was apparently regular [ON ITS FACE]. 22 * Sec. 22. AS 45.02.509(b) is amended to read: 23 (b) Where the goods are held by a bailee to be delivered without being moved, 24 the risk of loss passes to the buyer 25 (1) on the buyer's receipt of possession or control of a negotiable 26 document of title covering the goods; 27 (2) on acknowledgment by the bailee of the buyer's right to possession 28 of the goods; or 29 (3) after the buyer's receipt of possession or control of a 30 nonnegotiable document of title or other [WRITTEN] direction to deliver in a record, 31 as provided in AS 45.02.503(d)(2).
01 * Sec. 23. AS 45.02.605(b) is amended to read: 02 (b) Payment against documents made without reservation of rights precludes 03 recovery of the payment for defects apparent in [ON THE FACE OF] the documents. 04 * Sec. 24. AS 45.02.705(b) is amended to read: 05 (b) As against the buyer, the seller may stop delivery until 06 (1) receipt of the goods by the buyer; 07 (2) acknowledgment to the buyer by a bailee of the goods, except a 08 carrier, that the bailee holds the goods for the buyer; 09 (3) an [THAT] acknowledgment to the buyer under (1) or (2) of this 10 subsection by a carrier by reshipment or as a warehouse [WAREHOUSEMAN]; or 11 (4) negotiation to the buyer of a negotiable document of title covering 12 the goods. 13 * Sec. 25. AS 45.02.705(e) is amended to read: 14 (e) If a negotiable document of title has been issued for goods, the bailee is not 15 obliged to obey a notification to stop until surrender of possession or control of the 16 document. 17 * Sec. 26. AS 45.03.103(a)(10) is amended to read: 18 (10) "prove," with respect to a fact, means to meet the burden of 19 establishing the fact (AS 45.01.211) [(AS 45.01.201)]; 20 * Sec. 27. AS 45.04.104(c) is amended by adding a new paragraph to read: 21 (19) "control" (AS 45.07.116). 22 * Sec. 28. AS 45.04.210(c) is amended to read: 23 (c) Receipt by a collecting bank of a final settlement for an item is a 24 realization on its security interest in the item, accompanying documents, and proceeds. 25 So long as the bank does not receive final settlement for the item or give up possession 26 of the item or possession or control of the accompanying documents for purposes 27 other than collection, the security interest continues to that extent and is subject to 28 AS 45.29, but 29 (1) a security agreement is not necessary to make the security interest 30 enforceable (AS 45.29.203(b)(3)(A)); 31 (2) filing is not required to perfect the security interest; and
01 (3) the security interest has priority over conflicting perfected security 02 interests in the item, accompanying documents, or proceeds. 03 * Sec. 29. AS 45.05.103(c) is amended to read: 04 (c) With the exception of this subsection, (a) and (d) of this section, 05 AS 45.05.102(a)(9) and (10), 45.05.106(d), and 45.05.114(d), and except to the extent 06 prohibited in AS 45.01.302 [AS 45.01.102(c)] and AS 45.05.117(d), the effect of this 07 chapter may be varied by agreement or by a provision stated or incorporated by 08 reference in an undertaking. A term in an agreement or undertaking generally excusing 09 liability or generally limiting remedies for failure to perform obligations is not 10 sufficient to vary obligations prescribed by this chapter. 11 * Sec. 30. AS 45.07 is amended by adding new sections to read: 12 Sec. 45.07.111. Short title. This chapter may be cited as the Uniform 13 Commercial Code - Documents of Title. 14 Sec. 45.07.112. Definitions and index of definitions. (a) In this chapter, 15 unless the context otherwise requires, 16 (1) "bailee" means a person who, by a warehouse receipt, bill of 17 lading, or other document of title, acknowledges possession of goods and contracts to 18 deliver them; 19 (2) "carrier" means a person who issues a bill of lading; 20 (3) "consignee" means a person named in a bill of lading to whom or 21 to whose order the bill promises delivery; 22 (4) "consignor" means a person named in a bill of lading as the person 23 from whom the goods have been received for shipment; 24 (5) "delivery order" means a record that contains an order to deliver 25 goods directed to a warehouse, carrier, or other person who, in the ordinary course of 26 business, issues warehouse receipts or bills of lading; 27 (6) "goods" means all things that are treated as movable for the 28 purposes of a contract for storage or transportation; 29 (7) "issuer" means a bailee who issues a document of title or, in the 30 case of an unaccepted delivery order, the person who orders the possessor of goods to 31 deliver; "issuer" includes a person for whom an agent or employee purports to act in
01 issuing a document if the agent or employee has real or apparent authority to issue 02 documents, even if the issuer did not receive the goods, the goods were misdescribed, 03 or in another respect the agent or employee violated the issuer's instructions; 04 (8) "person entitled under the document" means the holder, in the case 05 of a negotiable document of title, or the person to whom delivery of the goods is to be 06 made by the terms of, or under instructions in a record under, a nonnegotiable 07 document of title; 08 (9) "shipper" means a person who enters into a contract of 09 transportation with a carrier; 10 (10) "sign" means, with present intent to authenticate or adopt a 11 record, to 12 (A) execute or adopt a tangible symbol; or 13 (B) attach to or logically associate with the record an electronic 14 sound, symbol, or process; 15 (11) "warehouse" means a person engaged in the business of storing 16 goods for hire. 17 (b) Definitions in other chapters applying to this chapter and the sections in 18 which the definitions appear are 19 (1) "contract for sale" (AS 45.02.106); 20 (2) "lessee in ordinary course of business" (AS 45.12.103); 21 (3) "receipt" of goods (AS 45.02.103). 22 (c) In addition, AS 45.01 contains general definitions and principles of 23 construction and interpretation applicable throughout this chapter. 24 Sec. 45.07.113. Relation of chapter to treaty or statute. (a) This chapter is 25 subject to a treaty or statute of the United States or regulatory statute of this state to 26 the extent the treaty, statute, or regulatory statute is applicable. 27 (b) This chapter does not modify or repeal a law prescribing the form or 28 content of a document of title or the services or facilities to be afforded by a bailee, or 29 otherwise regulating a bailee's business in respects not specifically treated in this 30 chapter. However, violation of a law described under the previous sentence does not 31 affect the status of a document of title that otherwise is within the definition of a
01 document of title. 02 (c) To the extent there is a conflict between AS 09.80 and this chapter, this 03 chapter governs. 04 Sec. 45.07.114. Negotiable and nonnegotiable document of title. (a) Except 05 as otherwise provided in (c) of this section, a document of title is negotiable if by its 06 terms the goods are to be delivered to bearer or to the order of a named person. 07 (b) A document of title other than one described in (a) of this section is 08 nonnegotiable. A bill of lading that states that the goods are consigned to a named 09 person is not made negotiable by a provision that the goods are to be delivered only 10 against an order in a record signed by the same or another named person. 11 (c) A document of title is nonnegotiable if, at the time it is issued, the 12 document has a conspicuous legend, however expressed, that it is nonnegotiable. 13 Sec. 45.07.115. Reissuance in alternative medium. (a) On request of a person 14 entitled under an electronic document of title, the issuer of the electronic document 15 may issue a tangible document of title as a substitute for the electronic document if 16 (1) the person entitled under the electronic document surrenders 17 control of the document to the issuer; and 18 (2) the tangible document when issued contains a statement that it is 19 issued in substitution for the electronic document. 20 (b) Upon issuance of a tangible document of title in substitution for an 21 electronic document of title under (a) of this section, 22 (1) the electronic document ceases to have effect or validity; and 23 (2) the person who procured issuance of the tangible document 24 warrants to all subsequent persons entitled under the tangible document that the 25 warrantor was a person entitled under the electronic document when the warrantor 26 surrendered control of the electronic document to the issuer. 27 (c) On request of a person entitled under a tangible document of title, the 28 issuer of the tangible document may issue an electronic document of title as a 29 substitute for the tangible document if 30 (1) the person entitled under the tangible document surrenders 31 possession of the document to the issuer; and
01 (2) the electronic document when issued contains a statement that it is 02 issued in substitution for the tangible document. 03 (d) On issuance of an electronic document of title in substitution for a tangible 04 document of title under (c) of this section, 05 (1) the tangible document ceases to have effect or validity; and 06 (2) the person who procured issuance of the electronic document 07 warrants to all subsequent persons entitled under the electronic document that the 08 warrantor was a person entitled under the tangible document when the warrantor 09 surrendered possession of the tangible document to the issuer. 10 Sec. 45.07.116. Control of electronic document of title. (a) A person has 11 control of an electronic document of title if a system employed for evidencing the 12 transfer of interests in the electronic document reliably establishes that person as the 13 person to whom the electronic document was issued or transferred. 14 (b) A system satisfies (a) of this section, and a person is considered to have 15 control of an electronic document of title, if the document is created, stored, and 16 assigned in a manner by which 17 (1) a single authoritative copy of the document exists that is unique, 18 identifiable, and, except as otherwise provided in (4), (5), and (6) of this subsection, 19 unalterable; 20 (2) the authoritative copy identifies the person asserting control as 21 (A) the person to whom the document was issued; or 22 (B) if the authoritative copy indicates that the document has 23 been transferred, the person to whom the document was most recently 24 transferred; 25 (3) the authoritative copy is communicated to and maintained by the 26 person asserting control or the person's designated custodian; 27 (4) copies or amendments that add or change an identified assignee of 28 the authoritative copy can be made only with the consent of the person asserting 29 control; 30 (5) each copy of the authoritative copy and a copy of a copy are readily 31 identifiable as a copy that is not the authoritative copy; and
01 (6) an amendment of the authoritative copy is readily identifiable as 02 authorized or unauthorized. 03 * Sec. 31. AS 45.07.201 is amended to read: 04 Sec. 45.07.201. Person who [WHO] may issue a warehouse receipt; storage 05 under [GOVERNMENT] bond. (a) A warehouse receipt may be issued by a 06 warehouse [WAREHOUSEMAN]. 07 (b) If goods, including distilled spirits and agricultural commodities, are stored 08 under a statute requiring a bond against withdrawal or a license for the issuance of 09 receipts in the nature of warehouse receipts, a receipt issued for the goods is 10 considered to be [HAS LIKE EFFECT AS] a warehouse receipt even if [THOUGH] 11 issued by a person who is the owner of the goods and is not a warehouse 12 [WAREHOUSEMAN]. 13 * Sec. 32. AS 45.07.202 is repealed and reenacted to read: 14 Sec. 45.07.202. Form of warehouse receipt; effect of omission. (a) A 15 warehouse receipt need not be in a particular form. 16 (b) Unless a warehouse receipt provides for each of the following, the 17 warehouse is liable for damages caused to a person injured by its omission: 18 (1) a statement of the location of the warehouse facility where the 19 goods are stored; 20 (2) the date of issue of the receipt; 21 (3) the unique identification code of the receipt; 22 (4) a statement whether the goods received will be delivered to the 23 bearer, to a named person, or to a named person or the named person's order; 24 (5) the rate of storage and handling charges, unless goods are stored 25 under a field warehousing arrangement, in which case a statement of that fact is 26 sufficient on a nonnegotiable receipt; 27 (6) a description of the goods or the packages containing them; 28 (7) the signature of the warehouse or its agent; 29 (8) if the receipt is issued for goods that the warehouse owns, solely, 30 jointly, or in common with others, a statement of that ownership; and 31 (9) a statement of the amount of advances made and of liabilities
01 incurred for which the warehouse claims a lien or security interest, unless the precise 02 amount of advances made or liabilities incurred, at the time of the issue of the receipt, 03 is unknown to the warehouse or to its agent who issued the receipt, in which case, a 04 statement of the fact that advances have been made or liabilities incurred and the 05 purpose of the advances or liabilities is sufficient. 06 (c) A warehouse may insert in its receipt terms that are not contrary to the 07 code and do not impair its obligation of delivery under AS 45.07.403 or its duty of 08 care under AS 45.07.204. A contrary provision is ineffective. 09 * Sec. 33. AS 45.07.203 is amended to read: 10 Sec. 45.07.203. Liability for nonreceipt or misdescription. A party to or 11 purchaser for value in good faith of a document of title, other than a bill of lading, that 12 relies on [RELYING IN EITHER CASE UPON] the description of the goods in the 13 document [OF THE GOODS] may recover from the issuer damages caused by the 14 nonreceipt or misdescription of the goods, except to the extent that 15 (1) the document conspicuously indicates that the issuer does not know 16 whether [ANY PART OR] all or part of the goods in fact were received or conform 17 to the description, as in the case where the description is in terms of marks or labels 18 or [OF] kind, quantity, or condition, or the receipt or description is qualified by 19 "contents, condition, and quality unknown," "said to contain," or words of similar 20 import [THE LIKE], if this indication is true; [,] or 21 (2) the party or purchaser otherwise has notice of the nonreceipt or 22 misdescription. 23 * Sec. 34. AS 45.07.204 is amended to read: 24 Sec. 45.07.204. Duty of care; contractual limitation of warehouse's 25 [WAREHOUSEMAN'S] liability. (a) A warehouse [WAREHOUSEMAN] is liable 26 for damages for loss of or injury to the goods caused by the warehouse's failure to 27 exercise [THE] care with [IN] regard to the goods [THEM] that a reasonably careful 28 person would exercise under similar [LIKE] circumstances. Unless [, BUT, UNLESS] 29 otherwise agreed, the warehouse [WAREHOUSEMAN] is not liable for damages that 30 could not have been avoided by the exercise of this care. 31 (b) Damages may be limited by a term in the warehouse receipt or storage
01 agreement limiting the amount of liability in case of loss or damage [, AND SETTING 02 OUT A SPECIFIC LIABILITY PER ARTICLE OR ITEM, OR VALUE PER UNIT 03 OF WEIGHT,] beyond which the warehouse is [WAREHOUSEMAN SHALL] not 04 [BE] liable. The limitation is not effective with respect to the warehouse's liability 05 for conversion to its own use. On [; HOWEVER, THIS LIABILITY MAY, ON 06 WRITTEN] request of the bailor in a record at the time of signing the storage 07 agreement, or within a reasonable time after receipt of the warehouse receipt, the 08 warehouse's liability may be increased on part or all of the goods covered by the 09 storage agreement or [UNDER] the warehouse receipt [OR AGREEMENT]. In this 10 event, increased rates may be charged based on an [THE] increased valuation of the 11 goods [, BUT NO INCREASE MAY BE PERMITTED CONTRARY TO A 12 LAWFUL LIMITATION OF LIABILITY CONTAINED IN THE 13 WAREHOUSEMAN'S TARIFF. NO LIMITATION IS EFFECTIVE WITH 14 RESPECT TO THE WAREHOUSEMAN'S LIABILITY FOR CONVERSION TO 15 THE WAREHOUSEMAN'S OWN USE]. 16 (c) Reasonable provisions as to the time and manner of presenting claims and 17 commencing [INSTITUTING] actions based on the bailment may be included in the 18 warehouse receipt or storage agreement [TARIFF]. 19 * Sec. 35. AS 45.07.205 is amended to read: 20 Sec. 45.07.205. Title under warehouse receipt defeated in certain cases. A 21 buyer in [THE] ordinary course of business of fungible goods sold and delivered by a 22 warehouse that [WAREHOUSEMAN WHO] is also in the business of buying and 23 selling those [THE] goods takes the goods free of any [A] claim under a warehouse 24 receipt even if the receipt is negotiable and [THOUGH IT] has been duly negotiated. 25 * Sec. 36. AS 45.07.206 is amended to read: 26 Sec. 45.07.206. Termination of storage at warehouse's 27 [WAREHOUSEMAN'S] option. (a) A warehouse [WAREHOUSEMAN] may, by 28 giving notice to [ON NOTIFYING] the person on whose account the goods are held 29 and [ANY] other persons [PERSON] known to claim an interest in the goods, require 30 payment of any charges and removal of the goods from the warehouse at the 31 termination of the period of storage fixed by the document of title, or, if a [NO] period
01 is not fixed, within a stated period not less than 30 days after the warehouse gives 02 notice [NOTIFICATION]. If the goods are not removed before the date specified in 03 the notice [NOTIFICATION], the warehouse [WAREHOUSEMAN] may sell them 04 under AS 45.07.210 [IN ACCORDANCE WITH THE PROVISIONS OF THE 05 SECTION ON ENFORCEMENT OF A WAREHOUSEMAN'S LIEN 06 (AS 45.07.210)]. 07 (b) If a warehouse [WAREHOUSEMAN] in good faith believes that [THE] 08 goods are about to deteriorate or decline in value to less than the amount of its [THE] 09 lien within the time provided [PRESCRIBED] in (a) of this section and AS 45.07.210 10 [FOR NOTIFICATION, ADVERTISEMENT, AND SALE], the warehouse 11 [WAREHOUSEMAN] may specify in the notice given under (a) of this section 12 [NOTIFICATION] a reasonable shorter time for removal of the goods and, if [IN 13 CASE] the goods are not removed, may sell them at public sale held not less than one 14 week after a single advertisement or posting. 15 (c) If, as a result of a quality or condition of the goods of which the 16 warehouse did not have [WAREHOUSEMAN HAD NO] notice at the time of 17 deposit, the goods are a hazard to other property, [OR TO] the warehouse facilities, or 18 other [TO] persons, the warehouse [WAREHOUSEMAN] may sell the goods at 19 public or private sale without advertisement or posting on reasonable notification to 20 all persons known to claim an interest in the goods. If the warehouse, 21 [WAREHOUSEMAN] after a reasonable effort, is unable to sell the goods, the 22 warehouse [WAREHOUSEMAN] may dispose of them in a lawful manner and does 23 not incur [; THE WAREHOUSEMAN INCURS NO] liability by reason of this 24 disposition. 25 (d) A warehouse shall [THE WAREHOUSEMAN MUST] deliver the goods 26 to a person entitled to them under this chapter on [UPON] due demand made at any 27 time before sale or other disposition under this section. 28 (e) A warehouse [THE WAREHOUSEMAN] may satisfy the warehouse's 29 lien from the proceeds of a sale or disposition under this section, but shall [MUST] 30 hold the balance for delivery on the demand of a person to whom the warehouse 31 [WAREHOUSEMAN] would have been bound to deliver the goods.
01 * Sec. 37. AS 45.07.207 is amended to read: 02 Sec. 45.07.207. Goods must be kept separate; fungible goods. (a) Unless the 03 warehouse receipt provides otherwise [PROVIDES], a warehouse shall 04 [WAREHOUSEMAN MUST] keep separate the goods covered by each receipt so as 05 to permit at all times identification and delivery of those goods. However, [EXCEPT 06 THAT] different lots of fungible goods may be commingled. 07 (b) If different lots of fungible [FUNGIBLE] goods are [SO] commingled, 08 the goods are owned in common by the persons entitled to them, and the warehouse 09 [WAREHOUSEMAN] is severally liable to each owner for that owner's share. If, 10 because of overissue, a mass of fungible goods is insufficient to meet all the receipts 11 that the warehouse [WAREHOUSEMAN] has issued against it, the persons entitled 12 include all holders to whom overissued receipts have been duly negotiated. 13 * Sec. 38. AS 45.07.208 is amended to read: 14 Sec. 45.07.208. Altered warehouse receipts. If a blank in a negotiable 15 warehouse receipt has been filled in without authority, a good faith purchaser for 16 value and without notice of the lack [WANT] of authority may treat the insertion as 17 authorized. Any other unauthorized alteration leaves a tangible or electronic 18 warehouse receipt enforceable against the issuer according to its original tenor. 19 * Sec. 39. AS 45.07.209 is amended to read: 20 Sec. 45.07.209. Lien of warehouse [WAREHOUSEMAN]. (a) A warehouse 21 [WAREHOUSEMAN] has a lien against the bailor on the goods covered by a 22 warehouse receipt or storage agreement or on the proceeds of the goods in the 23 warehouse's [WAREHOUSEMAN'S] possession for charges for storage or 24 transportation, [(] including demurrage and terminal charges [)], insurance, labor, or 25 other charges, present or future, in relation to the goods, and for expenses necessary 26 for preservation of the goods or reasonably incurred in their sale under law. If the 27 person on whose account the goods are held is liable for similar [LIKE] charges or 28 expenses in relation to other goods [,] whenever deposited and it is stated in the 29 warehouse receipt or storage agreement that a lien is claimed for charges and 30 expenses in relation to other goods, the warehouse [WAREHOUSEMAN] also has a 31 lien against the goods covered by the warehouse receipt or storage agreement or
01 on the proceeds of the goods in its possession [THAT PERSON] for these charges 02 and expenses, whether or not the other goods have been delivered by the warehouse 03 [WAREHOUSEMAN]. However, as [BUT] against a person to whom a negotiable 04 warehouse receipt is duly negotiated, a warehouse's [WAREHOUSEMAN'S] lien is 05 limited to charges in an amount or at a rate specified in [ON] the warehouse receipt 06 or, if no charges are [SO] specified, then to a reasonable charge for storage of the 07 specific goods covered by the receipt after the date of the receipt. 08 (b) A warehouse [THE WAREHOUSEMAN] may also reserve a security 09 interest against the bailor for the [A] maximum amount specified on the receipt for 10 charges other than those specified in (a) of this section, such as for money advanced 11 and interest. The [SUCH A] security interest is governed by AS 45.29 [ON 12 SECURED TRANSACTIONS]. 13 (c) A warehouse's [WAREHOUSEMAN'S] lien for charges and expenses 14 under (a) of this section or a security interest under (b) of this section is also effective 15 against a person who [SO] entrusted the bailor with possession of the goods to the 16 extent that a pledge of them by the bailor to a good faith purchaser for value would 17 have been valid. However, the lien or security interest [, BUT] is not effective 18 against a person who, before issuance of a document of title, had a legal interest or 19 a perfected security interest in the goods and did not 20 (1) deliver or entrust the goods or a document of title covering the 21 goods to the bailor or the bailor's nominee with 22 (A) actual or apparent authority to ship, store, or sell; 23 (B) power to obtain delivery under AS 45.07.403; or 24 (C) power of disposition under AS 45.02.403, 25 AS 45.12.304(b), 45.12.305(b), AS 45.29.320, 45.29.321(c), or other statute 26 or rule of law; or 27 (2) acquiesce in the procurement by the bailor or its nominee of a 28 document [AS TO WHOM THE DOCUMENT CONFERS NO RIGHT IN THE 29 GOODS COVERED BY IT UNDER AS 45.07.503]. 30 (d) A warehouse [WAREHOUSEMAN] loses its [THE] lien on any goods 31 that the warehouse [WAREHOUSEMAN] voluntarily delivers or unjustifiably
01 refuses to deliver. 02 * Sec. 40. AS 45.07.209 is amended by adding a new subsection to read: 03 (e) A warehouse's lien on household goods for charges and expenses in 04 relation to the goods under (a) of this section is also effective against all persons if the 05 depositor was the legal possessor of the goods at the time of deposit. In this 06 subsection, "household goods" means furniture, furnishings, or personal effects used 07 by the depositor in a dwelling. 08 * Sec. 41. AS 45.07.210(a) is amended to read: 09 (a) Except as otherwise provided in (b) of this section, a warehouse's 10 [WAREHOUSEMAN'S] lien may be enforced by public or private sale of the goods, 11 in block or in packages [PARCELS], at any time or place, and on any terms that are 12 commercially reasonable, after notifying all persons known to claim an interest in the 13 goods. This notification must include a statement of the amount due, the nature of the 14 proposed sale, and the time and place of any [A] public sale. The fact that a better 15 price could have been obtained by a sale at a different time or in a method different 16 [METHOD] from that selected by the warehouse [WAREHOUSEMAN] is not of 17 itself sufficient to establish that the sale was not made in a commercially reasonable 18 manner. The warehouse [IF THE WAREHOUSEMAN EITHER] sells in a 19 commercially reasonable manner if the warehouse sells the goods in the usual 20 manner in a recognized market for the goods, [OR IF THE WAREHOUSEMAN] sells 21 at the price current in the market at the time of the sale, or [IF THE 22 WAREHOUSEMAN HAS] otherwise sells [SOLD] in conformity with commercially 23 reasonable practices among dealers in the type of goods sold [, THE 24 WAREHOUSEMAN HAS SOLD IN A COMMERCIALLY REASONABLE 25 MANNER]. A sale of more goods than apparently necessary to be offered to ensure 26 [INSURE] satisfaction of the obligation is not commercially reasonable, except in 27 cases covered by the preceding sentence. 28 * Sec. 42. AS 45.07.210(b) is amended to read: 29 (b) A warehouse may enforce its [WAREHOUSEMAN'S] lien on goods, 30 other than goods stored by a merchant in the course of the merchant's business, [MAY 31 BE ENFORCED] only if the following requirements are satisfied [AS FOLLOWS]:
01 (1) all persons known to claim an interest in the goods must have been 02 [BE] notified; 03 (2) [THE NOTIFICATION MUST BE DELIVERED IN PERSON OR 04 SENT BY REGISTERED LETTER TO THE LAST KNOWN ADDRESS OF A 05 PERSON TO BE NOTIFIED; 06 (3)] the notification must include an itemized statement of the claim, a 07 description of the goods subject to the lien, a demand for payment within a specified 08 time not less than 10 days after receipt of the notification, and a conspicuous statement 09 that, unless the claim is paid within that time, the goods will be advertised for sale and 10 sold by auction at a specified time and place; 11 (3) [(4)] the sale must conform to the terms of the notification; 12 (4) [(5)] the sale must be held at the nearest suitable place to [THAT] 13 where the goods are held or stored; 14 (5) [(6)] after the expiration of the time given in the notification, an 15 advertisement of the sale must be published once a week for two weeks consecutively 16 in a newspaper of general circulation where the sale is to be held; the [. THE] 17 advertisement must include a description of the goods, the name of the person on 18 whose account the goods [THEY] are being held, and the time and place of the sale; 19 the [. THE] sale must take place at least 15 days after the first publication; if [. IF] 20 there is no newspaper of general circulation where the sale is to be held, the 21 advertisement must be posted at least 10 days before the sale in not fewer [LESS] than 22 three conspicuous places in the neighborhood of the proposed sale. 23 * Sec. 43. AS 45.07.210(c) is amended to read: 24 (c) Before a sale under this section, a person claiming a right in the goods may 25 pay the amount necessary to satisfy the lien and the reasonable expenses incurred in 26 complying with [UNDER] this section. In that event, the goods may [MUST] not be 27 sold, but must be retained by the warehouse [WAREHOUSEMAN] subject to the 28 terms of the receipt and this chapter. 29 * Sec. 44. AS 45.07.210(d) is amended to read: 30 (d) A warehouse [THE WAREHOUSEMAN] may buy at a public sale held 31 under this section.
01 * Sec. 45. AS 45.07.210(e) is amended to read: 02 (e) A purchaser in good faith of goods sold to enforce a warehouse's 03 [WAREHOUSEMAN'S] lien takes the goods free of the rights of persons against 04 whom the lien was valid, despite the warehouse's noncompliance [BY THE 05 WAREHOUSEMAN] with [THE REQUIREMENTS OF] this section. 06 * Sec. 46. AS 45.07.210(f) is amended to read: 07 (f) A warehouse [THE WAREHOUSEMAN] may satisfy its [THE] lien from 08 the proceeds of a sale under this section, but shall [MUST] hold the balance, if any, 09 for delivery on demand to a person to whom the warehouse [WAREHOUSEMAN] 10 would have been bound to deliver the goods. 11 * Sec. 47. AS 45.07.210(g) is amended to read: 12 (g) The rights provided by this section are in addition to all other rights 13 allowed by law to a creditor against a debtor, including the remedies available 14 under AS 34.35.225. 15 * Sec. 48. AS 45.07.210(i) is amended to read: 16 (i) A warehouse [THE WAREHOUSEMAN] is liable for damages caused by 17 failure to comply with the requirements for sale under this section and, in case of [A] 18 wilful violation, is liable for conversion. 19 * Sec. 49. AS 45.07.301 is amended to read: 20 Sec. 45.07.301. Liability for nonreceipt or misdescription; "said to 21 contain"; "shipper's weight, load, and count"; improper handling. (a) A 22 consignee of a nonnegotiable bill of lading who has given value in good faith, or a 23 holder to whom a negotiable bill has been duly negotiated, relying on [IN EITHER 24 CASE UPON] the description in the bill of the goods or on [UPON] the date shown in 25 the bill, may recover [,] from the issuer [,] damages caused by the misdating of the bill 26 or the nonreceipt or misdescription of the goods, except to the extent that the bill 27 [DOCUMENT] indicates that the issuer does not know whether a [ANY] part or all of 28 the goods in fact were received or conform to the description, as where the description 29 is in terms of marks or labels or kind, quantity, or condition or the receipt or 30 description is qualified by "contents or condition of contents of packages unknown," 31 "said to contain," "shipper's weight, load, and count," or words of similar import
01 [THE LIKE], if this indication is true. 02 (b) If goods are loaded by the [AN] issuer of a bill of lading [WHO IS A 03 COMMON CARRIER], 04 (1) the issuer shall [MUST] count the packages of goods if shipped in 05 packages [PACKAGE FREIGHT] and ascertain the kind and quantity if shipped in 06 bulk; and 07 (2) the words, [FREIGHT. IN THIS CASE] "shipper's weight, load, 08 and count," or other words of similar import indicating that the description was made 09 by the shipper are ineffective except as to goods [FREIGHT] concealed in [BY] 10 packages. 11 (c) If bulk goods are [FREIGHT IS] loaded by a shipper who makes available 12 to the issuer of a bill of lading adequate facilities for weighing those goods [THE 13 FREIGHT], the [AN] issuer shall [WHO IS A COMMON CARRIER MUST] 14 ascertain the kind and quantity within a reasonable time after receiving the shipper's 15 [WRITTEN] request in a record [OF THE SHIPPER] to ascertain the kind and 16 quantity [DO SO]. In this case, "shipper's weight" or other words of similar import 17 [LIKE PURPORT] are ineffective. 18 (d) The issuer of a bill of lading, [MAY] by including [INSERTING] in the 19 bill the words "shipper's weight, load, and count" or [OTHER] words of similar 20 import, may [LIKE PURPORT] indicate that the goods were loaded by the shipper, 21 [;] and, if the statement is true, the issuer is not liable for damages caused by the 22 improper loading. However, [BUT THEIR] omission of these words does not imply 23 liability for [THE] damages by improper loading. 24 (e) A [THE] shipper guarantees [IS CONSIDERED TO HAVE 25 GUARANTEED] to an [THE] issuer the accuracy at the time of shipment of the 26 description, marks, labels, number, kind, quantity, condition, and weight as furnished 27 by the shipper, [;] and the shipper shall indemnify the issuer against damage caused by 28 inaccuracies in these particulars. This [THE] right of [THE ISSUER TO THIS] 29 indemnity does not limit [IN NO WAY LIMITS] the issuer's responsibility or [AND] 30 liability under the contract of carriage to a person other than the shipper. 31 * Sec. 50. AS 45.07.302 is amended to read:
01 Sec. 45.07.302. Through bills of lading and similar documents of title. (a) 02 The issuer of a through bill of lading, or other document of title embodying an 03 undertaking to be performed in part by a person [PERSONS] acting as the issuer's 04 agent [AGENTS] or by a performing carrier, [CONNECTING CARRIERS] is 05 liable to a person [ANYONE] entitled to recover on the bill or other document for a 06 breach by the other person [PERSONS] or the performing [BY A CONNECTING] 07 carrier of its obligation under the bill or other document. However [, BUT, TO THE 08 EXTENT THAT THE BILL COVERS AN UNDERTAKING TO BE PERFORMED 09 OVERSEAS OR IN TERRITORY NOT CONTIGUOUS TO THE CONTINENTAL 10 UNITED STATES OR AN UNDERTAKING INCLUDING MATTERS OTHER 11 THAN TRANSPORTATION], this liability for breach by the other person or the 12 performing carrier may be varied by agreement of the parties, except to the extent 13 other law prohibits variation of the liability by agreement. 14 (b) If goods covered by a through bill of lading or other document of title 15 embodying an undertaking to be performed in part by a person other than the issuer 16 are received by the other person, the [THAT] person is subject, with respect to its own 17 [THE PERSON'S] performance while the goods are in its [THE PERSON'S] 18 possession, to the obligation of the issuer. The person's obligation is discharged by 19 delivery of the goods to another [SUCH] person under the bill or other document, and 20 does not include liability for breach by another [SUCH] person or by the issuer. 21 (c) The issuer of a [THE] through bill of lading or other document of title 22 described in (a) of this section may recover [,] from the performing 23 [CONNECTING] carrier, or other person in possession of the goods when the breach 24 of the obligation under the bill [DOCUMENT] occurred, the amount 25 (1) the issuer may be [IS] required to pay to a person [ANYONE] 26 entitled to recover on the bill or other document for the breach, as may be evidenced 27 by a receipt, judgment, or transcript of judgment; [THAT AMOUNT,] and 28 (2) [THE AMOUNT] of an expense reasonably incurred by the issuer 29 [CARRIER] in defending an action commenced [BROUGHT] by a person 30 [ANYONE] entitled to recover on the bill or other document for the breach. 31 * Sec. 51. AS 45.07.303 is amended to read:
01 Sec. 45.07.303. Diversion; reconsignment; change of instructions. (a) 02 Unless the bill of lading otherwise provides, a [THE] carrier may deliver the goods to 03 a person or destination other than that stated in the bill or may otherwise dispose of the 04 goods, without liability for misdelivery, on instructions from 05 (1) the holder of a negotiable bill; 06 (2) the consignor on a nonnegotiable bill, even if the consignee has 07 given [NOTWITHSTANDING] contrary instructions [INSTRUCTION FROM THE 08 CONSIGNEE]; 09 (3) the consignee on a nonnegotiable bill in the absence of contrary 10 instructions from the consignor, if the goods have arrived at the billed destination or if 11 the consignee is in possession of the tangible bill or in control of the electronic bill; 12 or 13 (4) the consignee on a nonnegotiable bill, if the consignee is entitled as 14 against the consignor to dispose of the goods [THEM]. 15 (b) Unless [THE] instructions described in (a) of this section are included in 16 [NOTED ON] a negotiable bill of lading, a person to whom the bill is duly negotiated 17 may [CAN] hold the bailee according to the original terms. 18 * Sec. 52. AS 45.07.304 is amended to read: 19 Sec. 45.07.304. Tangible bills [BILLS] of lading in a set. (a) Except as 20 [WHERE] customary in international [OVERSEAS] transportation, a tangible bill of 21 lading may [MUST] not be issued in a set of parts. The issuer is liable for damages 22 caused by violation of this subsection. 23 (b) If a tangible bill of lading is lawfully issued [DRAWN] in a set of parts, 24 each of which contains an identification code and is [NUMBERED AND] expressed 25 to be valid only if the goods have not been delivered against another [ANY OTHER] 26 part, the whole of the parts constitutes one bill. 27 (c) If a tangible negotiable bill of lading is lawfully issued in a set of parts 28 and different parts are negotiated to different persons, the title of the holder to whom 29 the first due negotiation is made prevails as to both the document of title and the 30 goods even if [THOUGH] a later holder may have received the goods from the carrier 31 in good faith and discharged the carrier's obligation by surrendering its
01 [SURRENDER OF THE LATER HOLDER'S] part. 02 (d) A person who negotiates or transfers a single part of a tangible bill of 03 lading issued [DRAWN] in a set is liable to holders of that part as if it were the whole 04 set. 05 (e) The bailee shall [IS OBLIGED TO] deliver in accordance with 06 AS 45.07.401 - 45.07.404 against the first presented part of a tangible bill of lading 07 lawfully issued [DRAWN] in a set. Delivery in this manner [THIS DELIVERY] 08 discharges the bailee's obligation on the whole bill. 09 * Sec. 53. AS 45.07.305(b) is amended to read: 10 (b) Upon request of a person [ANYONE] entitled as against a [THE] carrier 11 to control the goods while in transit and on surrender of possession or control of an 12 outstanding bill of lading or other receipt covering the goods, the issuer, subject to 13 AS 45.07.115, may procure a substitute bill to be issued at a [ANY] place designated 14 in the request. 15 * Sec. 54. AS 45.07.307 is amended to read: 16 Sec. 45.07.307. Lien of carrier. (a) A carrier has a lien on the goods covered 17 by a bill of lading or on the proceeds of the goods in its possession for charges after 18 the date of the carrier's [ITS] receipt of the goods for storage or transportation, 19 including demurrage and terminal charges, and for expenses necessary for 20 preservation of the goods incident to their transportation or reasonably incurred in 21 their sale under [PURSUANT TO] law. However, [BUT] against a purchaser for 22 value of a negotiable bill of lading, a carrier's lien is limited to charges stated in the 23 bill or the applicable tariffs, or, if no charges are stated, [THEN] to a reasonable 24 charge. 25 (b) A lien for charges and expenses under (a) of this section on goods that the 26 carrier was required by law to receive for transportation is effective against the 27 consignor or a person entitled to the goods unless the carrier had notice that the 28 consignor lacked authority to subject the goods to the charges and expenses. Another 29 [ANY OTHER] lien under (a) of this section is effective against the consignor and a 30 person who permitted the bailor to have control or possession of the goods unless the 31 carrier had notice that the bailor lacked [THE] authority.
01 (c) A carrier loses its [THE] lien on goods that the carrier voluntarily delivers 02 or unjustifiably refuses to deliver. 03 * Sec. 55. AS 45.07.308(a) is amended to read: 04 (a) A carrier's lien on goods may be enforced by public or private sale of the 05 goods, in bulk [BLOCK] or in packages [PARCELS], at any time or place, and on 06 [ANY] terms that are commercially reasonable, after notifying all persons known to 07 claim an interest in the goods. The [THIS] notification must include a statement of the 08 amount due, the nature of the proposed sale, and the time and place of any [A] public 09 sale. The fact that a better price could have been obtained by a sale at a different time 10 or by [IN] a [DIFFERENT] method different from that selected by the carrier is not 11 of itself sufficient to establish that the sale was not made in a commercially reasonable 12 manner. The [IF THE] carrier [EITHER] sells [THE] goods in a commercially 13 reasonable [THE USUAL] manner if the carrier sells the goods in the usual 14 manner in a recognized market for them, [OR IF THE CARRIER] sells at the price 15 current in that [THE] market at the time of the sale, or [IF THE CARRIER HAS] 16 otherwise sells [SOLD] in conformity with commercially reasonable practices among 17 dealers in the type of goods sold [, THE CARRIER HAS SOLD IN A 18 COMMERCIALLY REASONABLE MANNER]. A sale of more goods than 19 apparently necessary to be offered to ensure satisfaction of the obligation is not 20 commercially reasonable except in cases covered by the preceding sentence. 21 * Sec. 56. AS 45.07.308(b) is amended to read: 22 (b) Before a sale under this section, a person claiming a right in the goods may 23 pay the amount necessary to satisfy the lien and the reasonable expenses incurred in 24 complying with [UNDER] this section. In that event, the goods may [MUST] not be 25 sold [,] but must be retained by the carrier, subject to the terms of the bill of lading 26 and this chapter. 27 * Sec. 57. AS 45.07.308(c) is amended to read: 28 (c) A [THE] carrier may buy at a public sale under this section. 29 * Sec. 58. AS 45.07.308(d) is amended to read: 30 (d) A purchaser in good faith of goods sold to enforce a carrier's lien takes the 31 goods free of the rights of persons against whom the lien was valid, despite the
01 carrier's noncompliance [BY THE CARRIER] with [THE REQUIREMENTS OF] 02 this section. 03 * Sec. 59. AS 45.07.308(e) is amended to read: 04 (e) A [THE] carrier may satisfy the carrier's lien from the proceeds of a sale 05 under this section, but shall [MUST] hold the balance, if any, for delivery on demand 06 to a person to whom the carrier would have been bound to deliver the goods. 07 * Sec. 60. AS 45.07.308(h) is amended to read: 08 (h) A [THE] carrier is liable for damages caused by failure to comply with the 09 requirements for sale under this section and, in case of wilful violation, is liable for 10 conversion. 11 * Sec. 61. AS 45.07.309 is amended to read: 12 Sec. 45.07.309. Duty of care; contractual limitation of carrier's liability. (a) 13 A carrier who issues a bill of lading, whether negotiable or nonnegotiable, shall 14 [MUST] exercise the degree of care in relation to the goods that a reasonably careful 15 person [MAN] would exercise under similar [LIKE] circumstances. This subsection 16 does not affect a statute, regulation, [REPEAL OR CHANGE ANY LAW] or rule of 17 law that imposes liability on [UPON] a common carrier for damages not caused by its 18 negligence. 19 (b) Damages may be limited by a term in the bill of lading or in a 20 transportation agreement [PROVISION] that the carrier's liability may [SHALL] 21 not exceed a value stated in the bill or transportation agreement [DOCUMENT] if 22 the carrier's rates are dependent on [UPON] value and the consignor [BY THE 23 CARRIER'S TARIFF] is afforded an opportunity to declare a higher value and [OR A 24 VALUE AS LAWFULLY PROVIDED IN THE TARIFF, OR IF NO TARIFF IS 25 FILED] the consigner is [OTHERWISE] advised of this opportunity. However, the [; 26 BUT NO SUCH] limitation is not effective with respect to the carrier's liability for 27 conversion to its own use. 28 (c) Reasonable provisions as to the time and manner of presenting claims and 29 commencing [INSTITUTING] actions based on the shipment may be included in a 30 bill of lading or a transportation agreement [TARIFF]. 31 * Sec. 62. AS 45.07.401 is amended to read:
01 Sec. 45.07.401. Irregularities in issue of receipt or bill or conduct of issuer. 02 The obligations imposed by this chapter on an issuer apply to a document of title even 03 if [REGARDLESS OF THE FACT THAT] 04 (1) the document does [MAY] not comply with the requirements of 05 this chapter or another statute, a [OF ANY OTHER LAW OR] regulation, or 06 another rule of law regarding its issuance [ISSUE], form, or content; 07 (2) the issuer [MAY HAVE] violated laws regulating the conduct of 08 the issuer's business; 09 (3) the goods covered by the document were owned by the bailee 10 when [AT THE TIME] the document was issued; or 11 (4) the person issuing the document is [DOES] not a warehouse but 12 the document [COME WITHIN THE DEFINITION OF WAREHOUSEMAN IF IT] 13 purports to be a warehouse receipt. 14 * Sec. 63. AS 45.07.402 is amended to read: 15 Sec. 45.07.402. Duplicate document of title [RECEIPT OR BILL]; 16 overissue. A [NEITHER A] duplicate or another [NOR ANY OTHER] document of 17 title purporting to cover goods already represented by an outstanding document of the 18 same issuer does not confer [CONFERS] a right in the goods, except as provided in 19 the case of tangible bills of lading in a set of parts, overissue of documents for 20 fungible goods, [AND] substitutes for lost, stolen, or destroyed documents, or 21 substitute documents issued under AS 45.07.115. The [BUT THE] issuer is liable 22 for damages caused by the issuer's overissue or failure to identify a duplicate 23 document [AS SUCH] by a conspicuous notation [ON ITS FACE]. 24 * Sec. 64. AS 45.07.403(a) is amended to read: 25 (a) A [THE] bailee shall [MUST] deliver the goods to a person entitled under 26 a [THE] document of title if the person [WHO] complies with (b) and (c) of this 27 section, unless and to the extent that the bailee establishes [ESTABLISHED] any of 28 the following: 29 (1) delivery of the goods to a person whose receipt was rightful as 30 against the claimant; 31 (2) damage to or delay, loss, or destruction of the goods for which the
01 bailee is not liable; 02 (3) previous sale or other disposition of the goods in lawful 03 enforcement of a lien or on a warehouse's [WAREHOUSEMAN'S] lawful 04 termination of storage; 05 (4) the exercise by a seller of its [THE] right to stop delivery under 06 AS 45.02.705 or by a lessor of its right to stop delivery under AS 45.12.526; 07 (5) a diversion, reconsignment, or other disposition under 08 AS 45.07.303 [OR TARIFF REGULATING THIS RIGHT]; 09 (6) release, satisfaction, or another [ANY OTHER FACT 10 AFFORDING A] personal defense against the claimant; or 11 (7) another [ANY OTHER] lawful excuse. 12 * Sec. 65. AS 45.07.403(b) is amended to read: 13 (b) A person claiming goods covered by a document of title shall [MUST] 14 satisfy the bailee's lien if the bailee [SO] requests the person to satisfy the lien or if 15 the bailee is prohibited by law from delivering the goods until the charges are paid. 16 * Sec. 66. AS 45.07.403(c) is amended to read: 17 (c) Unless the person claiming the goods is a person [ONE] against whom 18 the document of title does not confer a [CONFERS NO] right under 19 AS 45.07.503(a), 20 (1) the person claiming under a document shall [MUST] surrender 21 possession [FOR CANCELLATION] or control of [NOTATION OF PARTIAL 22 DELIVERIES] an outstanding negotiable document covering the goods for 23 cancellation or indication of partial deliveries; [,] and 24 (2) the bailee shall [MUST] cancel the document or conspicuously 25 indicate in [NOTE] the document the partial delivery, [ON THE DOCUMENT] or 26 the bailee is [BE] liable to a person to whom the document is duly negotiated. 27 * Sec. 67. AS 45.07.404 is amended to read: 28 Sec. 45.07.404. No liability for good faith delivery under document of title 29 [PURSUANT TO RECEIPT OR BILL]. A bailee who, in good faith, [INCLUDING 30 OBSERVANCE OF REASONABLE COMMERCIAL STANDARDS,] has received 31 goods and delivered or otherwise disposed of the goods [THEM] according to the
01 terms of a [THE] document of title or under this chapter is not liable for the goods 02 [THAT DISPOSAL. THIS RULE APPLIES] even if [THOUGH] the person 03 (1) from whom the bailee received the goods did not have [HAD NO] 04 authority to procure the document or to dispose of the goods; or 05 (2) [AND EVEN THOUGH THE PERSON] to whom the bailee 06 delivered the goods did not have [HAD NO] authority to receive the goods [THEM]. 07 * Sec. 68. AS 45.07.501 is repealed and reenacted to read: 08 Sec. 45.07.501. Form of negotiation and requirements of due negotiation. 09 (a) The following rules apply to a negotiable tangible document of title: 10 (1) if the document's original terms run to the order of a named person, 11 the document is negotiated by the named person's endorsement and delivery; after the 12 named person's endorsement in blank or to bearer, a person may negotiate the 13 document by delivery alone; 14 (2) if the document's original terms run to bearer, it is negotiated by 15 delivery alone; 16 (3) if the document's original terms run to the order of a named person 17 and it is delivered to the named person, the effect is the same as if the document had 18 been negotiated; 19 (4) negotiation of the document after it has been endorsed to a named 20 person requires endorsement by the named person and delivery; 21 (5) a document is duly negotiated if it is negotiated in the manner 22 stated in this subsection to a holder who purchases it in good faith, without notice of a 23 defense against or claim to it on the part of a person, and for value, unless it is 24 established that the negotiation is not in the regular course of business or financing or 25 involves receiving the document in settlement or payment of a monetary obligation. 26 (b) The following rules apply to a negotiable electronic document of title: 27 (1) if the document's original terms run to the order of a named person 28 or to bearer, the document is negotiated by delivery of the document to another 29 person; endorsement by the named person is not required to negotiate the document; 30 (2) if the document's original terms run to the order of a named person 31 and the named person has control of the document, the effect is the same as if the
01 document had been negotiated; 02 (3) a document is duly negotiated if it is negotiated in the manner 03 stated in this subsection to a holder who purchases it in good faith, without notice of a 04 defense against or claim to it on the part of a person, and for value, unless it is 05 established that the negotiation is not in the regular course of business or financing or 06 involves taking delivery of the document in settlement or payment of a monetary 07 obligation. 08 (c) Endorsement of a nonnegotiable document of title does not make it 09 negotiable or add to the transferee's rights. 10 (d) The naming in a negotiable bill of lading of a person to be notified of the 11 arrival of the goods does not limit the negotiability of the bill or constitute notice to a 12 purchaser of the bill of an interest of that person in the goods. 13 * Sec. 69. AS 45.07.502 is amended to read: 14 Sec. 45.07.502. Rights acquired by due negotiation. (a) Subject to 15 AS 45.07.205 and 45.07.503 [AS 45.07.503 AND TO THE PROVISIONS OF 16 AS 45.07.205 ON FUNGIBLE GOODS], a holder to whom a negotiable document of 17 title has been duly negotiated acquires by the due negotiation 18 (1) title to the document; 19 (2) title to the goods; 20 (3) all rights accruing under the law of agency or estoppel, including 21 rights to goods delivered to the bailee after the document was issued; and 22 (4) the direct obligation of the issuer to hold or deliver the goods 23 according to the terms of the document free of a defense or claim by the issuer except 24 those [ONE] arising under the terms of the document or under this chapter, but, [;] in 25 the case of a delivery order, the bailee's obligation accrues only upon the bailee's 26 acceptance of the delivery order, and the obligation acquired by the holder is that the 27 issuer and any [AN] endorser will procure the acceptance of the bailee. 28 (b) Subject to AS 45.07.503, title and rights [SO] acquired by due negotiation 29 are not defeated by a stoppage of the goods represented by the document of title or by 30 surrender of the goods by the bailee [,] and are not impaired even if 31 (1) [THOUGH] the due negotiation or a prior due negotiation
01 constituted a breach of duty; 02 (2) [OR EVEN THOUGH] a person has been deprived of possession 03 of a negotiable tangible [THE] document or control of a negotiable electronic 04 document by misrepresentation, fraud, accident, mistake, duress, loss, theft, or 05 conversion; [,] or 06 (3) [EVEN THOUGH] a previous sale or other transfer of the goods or 07 document has been made to a third person. 08 * Sec. 70. AS 45.07.503 is amended to read: 09 Sec. 45.07.503. Document of title to goods defeated in certain cases. (a) A 10 document of title confers no right in goods against a person who, before issuance of 11 the document, had a legal interest or a perfected security interest in the goods 12 [THEM] and who did not [NEITHER] 13 (1) deliver [DELIVERED] or entrust the goods [ENTRUSTED 14 THEM] or a document of title covering the goods [THEM] to the bailor or the bailor's 15 nominee with 16 (A) actual or apparent authority to ship, store, or sell; 17 (B) [OR WITH] power to obtain delivery under AS 45.07.403; 18 or 19 (C) [WITH] power of disposition under AS 45.02.403, 20 AS 45.12.304(b), 45.12.305(b), AS 45.29.320, 45.29.321(c) [AS 45.02.403 21 AND AS 45.29.320] or other statute or rule of law; or [NOR] 22 (2) acquiesce [ACQUIESCED] in the procurement by the bailor or its 23 [THE BAILOR'S] nominee of a document [OF TITLE]. 24 (b) Title to goods based upon an unaccepted delivery order is subject to the 25 rights of a person [ANYONE] to whom a negotiable warehouse receipt or bill of 26 lading covering the goods has been duly negotiated. That [SUCH A] title may be 27 defeated under AS 45.07.504 to the same extent as the rights of the issuer or a 28 transferee from the issuer. 29 (c) Title to goods based upon a bill of lading issued to a freight forwarder is 30 subject to the rights of a person [ANYONE] to whom a bill issued by the freight 31 forwarder is duly negotiated. However, [; BUT] delivery by the carrier in accordance
01 with AS 45.07.401 - 45.07.404 under its own bill of lading discharges the carrier's 02 obligation to deliver. 03 * Sec. 71. AS 45.07.504 is amended to read: 04 Sec. 45.07.504. Rights acquired in [THE] absence of due negotiation; effect 05 of diversion; [SELLER'S] stoppage of delivery. (a) A transferee of a document of 06 title, whether negotiable or nonnegotiable [NOT], to whom the document has been 07 delivered but not duly negotiated, acquires the title and rights that the transferor had or 08 had actual authority to convey. 09 (b) In the case of a transfer of a nonnegotiable document of title, until, [(] but 10 not after, [)] the bailee receives notice [NOTIFICATION] of the transfer, the rights of 11 the transferee may be defeated 12 (1) by those creditors of the transferor who could treat the transfer 13 [SALE] as void under AS 45.02.402 or AS 45.12.308; 14 (2) by a buyer from the transferor in ordinary course of business if the 15 bailee has delivered the goods to the buyer or received notification of the buyer's 16 rights; [OR] 17 (3) by a lessee from the transferor in ordinary course of business if 18 the bailee has delivered the goods to the lessee or received notification of the 19 lessee's rights; or 20 (4) as against the bailee, by good faith dealings of the bailee with the 21 transferor. 22 (c) A diversion or other change of shipping instructions by the consignor in a 23 nonnegotiable bill of lading that causes the bailee not to deliver the goods to the 24 consignee defeats the consignee's title to the goods if the goods [THEY] have been 25 delivered to a buyer in ordinary course of business or a lessee in ordinary course of 26 business and, in any event, defeats the consignee's rights against the bailee. 27 (d) Delivery of the goods under a nonnegotiable document of title may be 28 stopped by a seller under AS 45.02.705 or a lessor under AS 45.12.526, [AND] 29 subject to the requirement of due notification [SET OUT] in those sections 30 [AS 45.02.705]. A bailee who honors [HONORING] the seller's or lessor's 31 instructions is entitled to be indemnified by the seller or lessor against a resulting loss
01 or expense. 02 * Sec. 72. AS 45.07.505 is amended to read: 03 Sec. 45.07.505. Endorser not [A] guarantor for other parties. The 04 endorsement of a tangible document of title issued by a bailee does not make the 05 endorser liable for a default by the bailee or [BY] previous endorsers. 06 * Sec. 73. AS 45.07.506 is amended to read: 07 Sec. 45.07.506. Delivery without endorsement; right to compel 08 endorsement. The transferee of a negotiable tangible document of title has a 09 specifically enforceable right to have its [THE] transferor supply a necessary 10 endorsement, but the transfer becomes a negotiation only as of the time the 11 endorsement is supplied. 12 * Sec. 74. AS 45.07.507 is amended to read: 13 Sec. 45.07.507. Warranties on negotiation or delivery [TRANSFER] of 14 document of title [RECEIPT OR BILL]. If a person negotiates or delivers 15 [TRANSFERS] a document of title for value, other [OTHERWISE] than as a mere 16 intermediary under AS 45.07.508, [THEN,] unless otherwise agreed, the transferor, 17 in addition to any warranty made in selling or leasing the goods, [PERSON] 18 warrants to its [THE] immediate purchaser only that [IN ADDITION TO ANY 19 WARRANTY MADE IN SELLING THE GOODS] 20 (1) [THAT] the document is genuine; 21 (2) [THAT] the transferor does not have [PERSON HAS NO] 22 knowledge of a fact that would impair the document's [ITS] validity or worth; and 23 (3) [THAT] the negotiation or delivery [TRANSFER] is rightful and 24 fully effective with respect to the title to the document and the goods it represents. 25 * Sec. 75. AS 45.07.508 is amended to read: 26 Sec. 45.07.508. Warranties of collecting bank as to documents of title. A 27 collecting bank or other intermediary known to be entrusted with documents of title 28 on behalf of another or with collection of a draft or other claim against delivery of 29 documents warrants by the delivery of the documents only its own good faith and 30 authority [. THIS RULE APPLIES] even if [THOUGH] the collecting bank or other 31 intermediary has purchased or made advances against the claim or draft to be
01 collected. 02 * Sec. 76. AS 45.07.509 is amended to read: 03 Sec. 45.07.509. Adequate [RECEIPT OR BILL: WHEN ADEQUATE] 04 compliance with commercial contract. Whether [THE QUESTION WHETHER] a 05 document of title is adequate to fulfill the obligations of a contract for sale or a 06 contract for lease or the conditions of a letter of credit is determined [GOVERNED] 07 by AS 45.02, [ON SALES AND] AS 45.05, or AS 45.12 [ON LETTERS OF 08 CREDIT]. 09 * Sec. 77. AS 45.07.601 is repealed and reenacted to read: 10 Sec. 45.07.601. Lost, stolen, or destroyed documents of title. (a) If a 11 document of title is lost, stolen, or destroyed, a court may order delivery of the goods 12 or issuance of a substitute document, and the bailee may, without liability to any 13 person, comply with the order. If the document was negotiable, a court may not order 14 delivery of the goods or issuance of a substitute document without the claimant's 15 posting security unless the court finds that any person who may suffer loss as a result 16 of nonsurrender of possession or control of the document is adequately protected 17 against the loss. If the document was nonnegotiable, the court may require security. 18 (b) A bailee who, without a court order, delivers goods to a person claiming 19 under a missing negotiable document of title is liable to a person injured by the 20 delivery. If the delivery is not in good faith, the bailee is liable for conversion. 21 Delivery in good faith is not conversion if the claimant posts security with the bailee 22 in an amount at least double the value of the goods at the time of posting to indemnify 23 a person injured by the delivery who files a notice of claim within one year after the 24 delivery. 25 * Sec. 78. AS 45.07.602 is amended to read: 26 Sec. 45.07.602. Judicial process against [ATTACHMENT OF] goods 27 covered by [A] negotiable document of title. Unless A [EXCEPT WHERE THE] 28 document of title was originally issued upon delivery of the goods by a person who 29 did not have [HAD NO] power to dispose of them, a [NO] lien does not attach 30 [ATTACHES] by virtue of a judicial process to goods in the possession of a bailee for 31 which a negotiable document of title is outstanding unless possession or control of
01 the document is first surrendered to the bailee or [ITS] negotiation of the document is 02 enjoined. The [, AND THE] bailee may not be compelled to deliver the goods under 03 process until possession or control of the document is surrendered to the bailee or to 04 [IMPOUNDED BY] the court. A purchaser of [ONE WHO PURCHASES] the 05 document for value without notice of the process or injunction takes free of the lien 06 imposed by judicial process. 07 * Sec. 79. AS 45.07.603 is amended to read: 08 Sec. 45.07.603. Conflicting claims; interpleader. If more than one person 09 claims title to or possession of the goods, the bailee is excused from delivery until the 10 bailee has [HAD] a reasonable time to ascertain the validity of the adverse claims or to 11 commence [BRING] an action for interpleader. The bailee [TO COMPEL ALL 12 CLAIMANTS TO INTERPLEAD AND] may assert an [COMPEL THIS] 13 interpleader [,] either in defending an action for nondelivery of the goods or by 14 original action [, WHICHEVER IS APPROPRIATE]. 15 * Sec. 80. AS 45.08.103 is amended by adding a new subsection to read: 16 (h) A document of title is not a financial asset unless AS 45.08.102(a)(10)(C) 17 applies. 18 * Sec. 81. AS 45.12.103(a)(1) is amended to read: 19 (1) "buyer in ordinary course of business" means a person who, in 20 good faith and without knowledge that the sale to that person is in violation of the 21 ownership rights or security interest or leasehold interest of a third party in the goods, 22 buys in ordinary course from a person in the business of selling goods of that kind, but 23 does not include a pawnbroker; "buying" may be for cash or by exchange of other 24 property or on secured or unsecured credit and includes acquiring [RECEIVING] 25 goods or documents of title under a preexisting contract for sale, but does not include 26 a transfer in bulk or as security for or in total or partial satisfaction of a money debt; 27 * Sec. 82. AS 45.12.103(a)(15) is amended to read: 28 (15) "lessee in ordinary course of business" means a person who, in 29 good faith and without knowledge that the lease to that person is in violation of the 30 ownership rights or security interest or leasehold interest of a third party in the goods, 31 leases in ordinary course from a person in the business of selling or leasing goods of
01 that kind, but does not include a pawnbroker; "leasing" may be for cash or by 02 exchange of other property or on secured or unsecured credit and includes acquiring 03 [RECEIVING] goods or documents of title under a preexisting lease contract, but does 04 not include a transfer in bulk or as security for or in total or partial satisfaction of a 05 money debt; 06 * Sec. 83. AS 45.12.304(b) is amended to read: 07 (b) A subsequent lessee in [THE] ordinary course of business from a lessor 08 who is a merchant dealing in goods of that kind to whom the goods were entrusted by 09 the existing lessee of that lessor before the interest of the subsequent lessee became 10 enforceable against that lessor obtains, to the extent of the leasehold interest 11 transferred, all of that lessor's and the existing lessee's rights to the goods, and takes 12 free of the existing lease contract. 13 * Sec. 84. AS 45.12.305(b) is amended to read: 14 (b) A buyer in [THE] ordinary course of business or a sublessee in [THE] 15 ordinary course of business from a lessee who is a merchant dealing in goods of that 16 kind to whom the goods were entrusted by the lessor obtains, to the extent of the 17 interest transferred, all of the lessor's and lessee's rights to the goods, and takes free of 18 the existing lease contract. 19 * Sec. 85. AS 45.12.310(d) is amended to read: 20 (d) The interest of a lessor or a lessee under a lease contract described in (b) or 21 (c) of this section is subordinate to the interest of 22 (1) a buyer in [THE] ordinary course of business or a lessee in [THE] 23 ordinary course of business of an [ANY] interest in the whole acquired after the goods 24 became accessions; or 25 (2) a creditor with a security interest in the whole perfected before the 26 lease contract was made to the extent that the creditor makes subsequent advances 27 without knowledge of the lease contract. 28 * Sec. 86. AS 45.12.501(d) is amended to read: 29 (d) Except as otherwise provided in AS 45.01.305(a) [AS 45.01.106(a)] or this 30 chapter or the lease agreement, the rights and remedies referred to in (b) and (c) of this 31 section are cumulative.
01 * Sec. 87. AS 45.12.514(b) is amended to read: 02 (b) A lessee's failure to reserve rights when paying rent or other consideration 03 against documents precludes recovery of the payment for defects apparent in [ON 04 THE FACE OF] the documents. 05 * Sec. 88. AS 45.12.518(b) is amended to read: 06 (b) Except as otherwise provided under AS 45.12.504 with respect to damages 07 liquidated in the lease agreement or otherwise determined under agreement of the 08 parties under AS 45.01.302 [AS 45.01.102(c)] and AS 45.12.503, if a lessee's cover is 09 by lease agreement substantially similar to the original lease agreement and the new 10 lease agreement is made in good faith and in a commercially reasonable manner, the 11 lessee may recover from the lessor as damages 12 (1) the present value, as of the date of the commencement of the term 13 of the new lease agreement, of the rent under the new lease agreement applicable to 14 that period of the new lease term that is comparable to the then remaining term of the 15 original lease agreement minus the present value as of the same date of the total rent 16 for the then remaining lease term of the original lease agreement; and 17 (2) incidental or consequential damages, less expenses saved in 18 consequence of the lessor's default. 19 * Sec. 89. AS 45.12.519(a) is amended to read: 20 (a) Except as otherwise provided under AS 45.12.504 with respect to damages 21 liquidated in the lease agreement or otherwise determined under agreement of the 22 parties under AS 45.01.302 [AS 45.01.102(c)] and AS 45.12.503, if a lessee elects not 23 to cover or a lessee elects to cover and the cover is by lease agreement that for any 24 reason does not qualify for treatment under AS 45.12.518(b), or is by purchase or 25 otherwise, the measure of damages for nondelivery or repudiation by the lessor or for 26 rejection or revocation of acceptance by the lessee is the present value, as of the date 27 of the default, of the then market rent minus the present value as of the same date of 28 the original rent, computed for the remaining lease term of the original lease 29 agreement, together with incidental and consequential damages, less expenses saved in 30 consequence of the lessor's default. 31 * Sec. 90. AS 45.12.526(b) is amended to read:
01 (b) In pursuing its remedies under (a) of this section, the lessor may stop 02 delivery until 03 (1) receipt of the goods by the lessee; 04 (2) acknowledgment to the lessee by a bailee of the goods, except a 05 carrier, that the bailee holds the goods for the lessee; or 06 (3) [SUCH] an acknowledgment to the lessee under (1) or (2) of this 07 subsection by a carrier by [VIA] reshipment or as a warehouse 08 [WAREHOUSEMAN]. 09 * Sec. 91. AS 45.12.527(b) is amended to read: 10 (b) Except as otherwise provided with respect to damages liquidated in the 11 lease agreement under AS 45.12.504 or otherwise determined under agreement of the 12 parties under AS 45.01.302 [AS 45.01.102(c)] and AS 45.12.503, if the disposition is 13 by lease agreement substantially similar to the original lease agreement and the new 14 lease agreement is made in good faith and in a commercially reasonable manner, the 15 lessor may recover from the lessee as damages 16 (1) accrued and unpaid rent as of the date of the commencement of the 17 term of the new lease agreement; 18 (2) the present value, as of the same date, of the total rent for the then 19 remaining lease term of the original lease agreement minus the present value, as of the 20 same date, of the rent under the new lease agreement applicable to that period of the 21 new lease term that is comparable to the then remaining term of the original lease 22 agreement; and 23 (3) [ANY] incidental damages allowed under AS 45.12.530, less 24 expenses saved in consequence of the lessee's default. 25 * Sec. 92. AS 45.12.528(a) is amended to read: 26 (a) Except as otherwise provided with respect to damages liquidated in the 27 lease agreement under AS 45.12.504 or otherwise determined under agreement of the 28 parties under AS 45.01.302 [AS 45.01.102(c)] and AS 45.12.503, if a lessor elects to 29 retain the goods or a lessor elects to dispose of the goods and the disposition is by 30 lease agreement that for any reason does not qualify for treatment under 31 AS 45.12.527(b), or is by sale or otherwise, the lessor may recover from the lessee as
01 damages for a default described in AS 45.12.523(a) or (c)(1), or, if agreed, for other 02 default of the lessee 03 (1) accrued and unpaid rent as of the date of default if the lessee has 04 never taken possession of the goods, or, if the lessee has taken possession of the 05 goods, as of the date the lessor repossesses the goods or an earlier date on which the 06 lessee makes a tender of the goods to the lessor; 07 (2) the present value as of the date determined under (1) of this 08 subsection of the total rent for the then remaining lease term of the original lease 09 agreement minus the present value as of the same date of the market rent at the place 10 where the goods are located, computed for the same lease term; and 11 (3) [ANY] incidental damages allowed under AS 45.12.530, less 12 expenses saved in consequence of the lessee's default. 13 * Sec. 93. AS 45.14.105(a)(7) is amended to read: 14 (7) "prove," with respect to a fact, means to meet the burden of 15 establishing the fact; "burden of establishing" has the meaning given in AS 45.01.211 16 [AS 45.01.201]. 17 * Sec. 94. AS 45.14.106(a) is amended to read: 18 (a) The time of receipt of a payment order or communication canceling or 19 amending a payment order is determined by the rules applicable to receipt of a notice 20 stated in AS 45.01.212 [AS 45.01.201(27)]. A receiving bank may fix a cut-off time or 21 times on a funds-transfer business day for the receipt and processing of payment 22 orders and communications cancelling [CANCELING] or amending payment orders. 23 Different cut-off times may apply to payment orders, cancellations, or amendments, or 24 to different categories of payment orders, cancellations, or amendments. A cut-off 25 time may apply to senders generally, or different cut-off times may apply to different 26 senders or categories of payment orders. If a payment order or communication 27 cancelling [CANCELING] or amending a payment order is received after the close of 28 a funds-transfer business day or after the appropriate cut-off time on a funds-transfer 29 business day, the receiving bank may treat the payment order or communication as 30 received at the opening of the next funds-transfer business day. 31 * Sec. 95. AS 45.14.204(b) is amended to read:
01 (b) Reasonable time under (a) of this section may be fixed by agreement as 02 stated in AS 45.01.302(b) [AS 45.01.204(a)], but the obligation of a receiving bank to 03 refund payment as stated in (a) of this section may not otherwise be varied by 04 agreement. 05 * Sec. 96. AS 45.29.102(a)(59) is amended to read: 06 (59) "issuer," with respect to a 07 (A) letter of credit or letter-of-credit right, has the meaning 08 given in AS 45.05.102(a); 09 (B) security, has the meaning given in AS 45.08.201; 10 (C) document of title, has the meaning given in 11 AS 45.07.112; 12 * Sec. 97. AS 45.29.102(a) is amended by adding a new paragraph to read: 13 (104) "control" has the meaning given in AS 45.07.116. 14 * Sec. 98. AS 45.29.203(b) is amended to read: 15 (b) Except as otherwise provided in (c) - (i) of this section, a security interest 16 is enforceable against the debtor and third parties with respect to the collateral only if 17 (1) value has been given; 18 (2) the debtor has rights in the collateral or the power to transfer rights 19 in the collateral to a secured party; and 20 (3) one of the following conditions is met: 21 (A) the debtor has authenticated a security agreement that 22 provides a description of the collateral and, if the security interest covers 23 timber to be cut, a description of the land concerned; 24 (B) the collateral is not a certificated security and is in the 25 possession of the secured party under AS 45.29.313 under the debtor's security 26 agreement; 27 (C) the collateral is a certificated security in registered form, 28 and the security certificate has been delivered to the secured party under 29 AS 45.08.301 under the debtor's security agreement; or 30 (D) the collateral is deposit accounts, electronic chattel paper, 31 investment property, [OR] letter-of-credit rights, or electronic documents,
01 and the secured party has control under AS 45.07.116, AS 45.29.104, 02 45.29.105, 45.29.106, or 45.29.107 under the debtor's security agreement. 03 * Sec. 99. AS 45.29.207(c) is amended to read: 04 (c) Except as otherwise provided in (d) of this section, a secured party having 05 possession of collateral or control of collateral under AS 45.07.116, AS 45.29.104, 06 45.29.105, 45.29.106, or 45.29.107 07 (1) may hold as additional security any proceeds, except money or 08 funds, received from the collateral; 09 (2) shall apply money or funds received from the collateral to reduce 10 the secured obligation unless remitted to the debtor; and 11 (3) may create a security interest in the collateral. 12 * Sec. 100. AS 45.29.208(b) is amended to read: 13 (b) Within 10 days after receiving an authenticated demand by the debtor, a 14 secured party 15 (1) having control of a deposit account under AS 45.29.104(a)(2) shall 16 send to the bank with which the deposit account is maintained an authenticated 17 statement that releases the bank from further obligation to comply with instructions 18 originated by the secured party; 19 (2) having control of a deposit account under AS 45.29.104(a)(3) shall 20 (A) pay the debtor the balance on deposit in the deposit 21 account; or 22 (B) transfer the balance on deposit into a deposit account in the 23 debtor's name; 24 (3) other than a buyer, having control of electronic chattel paper under 25 AS 45.29.105 shall 26 (A) communicate the authoritative copy of the electronic 27 chattel paper to the debtor or its designated custodian; 28 (B) if the debtor designates a custodian that is the designated 29 custodian with which the authoritative copy of the electronic chattel paper is 30 maintained for the secured party, communicate to the custodian an 31 authenticated record releasing the designated custodian from further obligation
01 to comply with instructions originated by the secured party and instructing the 02 custodian to comply with instructions originated by the debtor; and 03 (C) take appropriate action to enable the debtor or its 04 designated custodian to make copies of or revisions to the authoritative copy 05 that add or change an identified assignee of the authoritative copy without the 06 consent of the secured party; 07 (4) having control of investment property under AS 45.08.106(d)(2) or 08 AS 45.29.106(b) shall send to the securities intermediary or commodity intermediary 09 with which the security entitlement or commodity contract is maintained an 10 authenticated record that releases the securities intermediary or commodity 11 intermediary from further obligation to comply with entitlement orders or directions 12 originated by the secured party; [AND] 13 (5) having control of a letter-of-credit right under AS 45.29.107 shall 14 send to each person having an unfulfilled obligation to pay or deliver proceeds of the 15 letter of credit to the secured party an authenticated release from further obligation to 16 pay or deliver proceeds of the letter of credit to the secured party; and 17 (6) having control of an electronic document shall 18 (A) give control of the electronic document to the debtor or 19 its designated custodian; 20 (B) if the debtor designates a custodian who is the 21 designated custodian with whom the authoritative copy of the electronic 22 document is maintained for the secured party, communicate to the 23 custodian an authenticated record releasing the designated custodian from 24 further obligation to comply with instructions originated by the secured 25 party and instructing the custodian to comply with instructions originated 26 by the debtor; and 27 (C) take appropriate action to enable the debtor or its 28 designated custodian to make copies of or revisions to the authoritative 29 copy that add or change an identified assignee of the authoritative copy 30 without the consent of the secured party. 31 * Sec. 101. AS 45.29.301 is amended to read:
01 Sec. 45.29.301. Law governing perfection and priority of security interests. 02 Except as otherwise provided in AS 45.29.303 - 45.29.306, the following rules 03 determine the law governing perfection, the effect of perfection or nonperfection, and 04 the priority of a security interest in collateral: 05 (1) except as otherwise provided in this section, while a debtor is 06 located in a jurisdiction, the local law of that jurisdiction governs perfection, the effect 07 of perfection or nonperfection, and the priority of a security interest in collateral; 08 (2) while collateral is located in a jurisdiction, the local law of that 09 jurisdiction governs perfection, the effect of perfection or nonperfection, and the 10 priority of a possessory security interest in that collateral; 11 (3) except as otherwise provided in (4) of this section, while tangible 12 negotiable documents, goods, instruments, money, or tangible chattel paper is located 13 in a jurisdiction, the local law of that jurisdiction governs 14 (A) perfection of a security interest in the goods by filing a 15 fixture filing; 16 (B) perfection of a security interest in timber to be cut; and 17 (C) the effect of perfection or nonperfection and the priority of 18 a nonpossessory security interest in the collateral; 19 (4) the local law of the jurisdiction in which the wellhead or minehead 20 is located governs perfection, the effect of perfection or nonperfection, and the priority 21 of a security interest in as-extracted collateral. 22 * Sec. 102. AS 45.29.310(b) is amended to read: 23 (b) The filing of a financing statement is not necessary to perfect a security 24 interest 25 (1) that is perfected under AS 45.29.308(d), (e), (f), or (g); 26 (2) that is perfected under AS 45.29.309 when it attaches; 27 (3) in property subject to a statute, regulation, or treaty described in 28 AS 45.29.311(a); 29 (4) in goods in possession of a bailee that is perfected under 30 AS 45.29.312(d)(1) or (2); 31 (5) in certificated securities, documents, goods, or instruments that is
01 perfected without filing, control, or possession under AS 45.29.312(e), (f), or (g); 02 (6) in collateral in the secured party's possession under AS 45.29.313; 03 (7) in a certificated security that is perfected by delivery of the security 04 certificate to the secured party under AS 45.29.313; 05 (8) in deposit accounts, electronic chattel paper, electronic 06 documents, investment property, or letter-of-credit rights that is perfected by control 07 under AS 45.29.314; 08 (9) in proceeds that is perfected under AS 45.29.315; or 09 (10) that is perfected under AS 45.29.316. 10 * Sec. 103. AS 45.29.312(e) is amended to read: 11 (e) A security interest in certificated securities, negotiable documents, or 12 instruments is perfected without filing or the taking of possession or control for a 13 period of 20 days from the time the security interest attaches to the extent that it arises 14 for new value given under an authenticated security agreement. 15 * Sec. 104. AS 45.29.313(a) is amended to read: 16 (a) Except as otherwise provided in (b) of this section, a secured party may 17 perfect a security interest in tangible negotiable documents, goods, instruments, 18 money, or tangible chattel paper by taking possession of the collateral. A secured party 19 may perfect a security interest in certificated securities by taking delivery of the 20 certificated securities under AS 45.08.301. 21 * Sec. 105. AS 45.29.314(a) is amended to read: 22 (a) A security interest in deposit accounts, electronic chattel paper, investment 23 property, [OR] letter-of-credit rights, or electronic documents may be perfected by 24 control of the collateral under AS 45.07.116, AS 45.29.104, 45.29.105, 45.29.106, or 25 45.29.107. 26 * Sec. 106. AS 45.29.314(b) is amended to read: 27 (b) A security interest in deposit accounts, electronic chattel paper, [OR] 28 letter-of-credit rights, or electronic documents is perfected by control under 29 AS 45.07.116, AS 45.29.104, 45.29.105, or 45.29.107 when the secured party obtains 30 control and remains perfected by control only while the secured party retains control. 31 * Sec. 107. AS 45.29.317(b) is amended to read:
01 (b) Except as otherwise provided in (e) of this section, a buyer, other than a 02 secured party, of tangible chattel paper, tangible documents, goods, instruments, or a 03 security certificate takes free of a security interest or agricultural lien if the buyer 04 gives value and receives delivery of the collateral without knowledge of the security 05 interest or agricultural lien and before it is perfected. 06 * Sec. 108. AS 45.29.317(d) is amended to read: 07 (d) A licensee of a general intangible or a buyer, other than a secured party, of 08 accounts, electronic chattel paper, electronic documents, general intangibles, or 09 investment property other than a certificated security takes free of a security interest if 10 the licensee or buyer gives value without knowledge of the security interest and before 11 it is perfected. 12 * Sec. 109. AS 45.29.338 is amended to read: 13 Sec. 45.29.338. Priority of security interest or agricultural lien perfected 14 by filed financing statement providing certain incorrect information. If a security 15 interest or agricultural lien is perfected by a filed financing statement providing 16 information described in AS 45.29.516(b)(5) that is incorrect at the time the financing 17 statement is filed, 18 (1) the security interest or agricultural lien is subordinate to a 19 conflicting perfected security interest in the collateral to the extent that the holder of 20 the conflicting security interest gives value in reasonable reliance upon the incorrect 21 information; and 22 (2) a purchaser, other than a secured party, of the collateral takes free 23 of the security interest or agricultural lien to the extent that, in reasonable reliance 24 upon the incorrect information, the purchaser gives value and, in the case of tangible 25 chattel paper, tangible documents, goods, instruments, or a security certificate, 26 receives delivery of the collateral. 27 * Sec. 110. AS 45.29.601(b) is amended to read: 28 (b) A secured party in possession of collateral or control of collateral under 29 AS 45.07.116, AS 45.29.104, 45.29.105, 45.29.106, or 45.29.107 has the rights and 30 duties provided in AS 45.29.207. 31 * Sec. 111. AS 45.35.099(4) is amended to read:
01 (4) "lease-purchase agreement" 02 (A) means an agreement for the use of personal property 03 primarily for personal, family, or household purposes if the agreement is for an 04 initial period of four months or less, is automatically renewable with each 05 payment after the initial period, does not obligate or require the consumer to 06 continue leasing or using the property beyond the initial period, and permits 07 the consumer to become the owner of the property; 08 (B) does not include 09 (i) an agreement primarily for commercial or 10 agricultural purposes; 11 (ii) a lease or bailment of personal property if the lease 12 or bailment is incidental to the lease of real property and provides that 13 the consumer does not have an option to purchase the leased personal 14 property; 15 (iii) a lease of a motor vehicle; 16 (iv) a security interest as defined under AS 45.01.211 17 [AS 45.01.201]; 18 (v) a retail installment transaction under AS 45.10; 19 (vi) a lease under AS 45.12; 20 * Sec. 112. AS 45.65.250(4) is amended to read: 21 (4) "creditor" has the meaning given in AS 45.01.211 [AS 45.01.201]; 22 * Sec. 113. AS 45.01.101, 45.01.102, 45.01.103, 45.01.104, 45.01.105, 45.01.106, 23 45.01.107, 45.01.108, 45.01.109, 45.01.201, 45.01.202, 45.01.203, 45.01.204, 45.01.205, 24 45.01.206, 45.01.207, 45.01.208; AS 45.02.103(a)(2), 45.02.208; AS 45.03.103(a)(4); 25 AS 45.04.104(c)(7); AS 45.07.101, 45.07.102, 45.07.103, 45.07.104, 45.07.105, 45.07.403(d), 26 45.07.650; AS 45.08.102(a)(11); AS 45.12.103(c)(9), 45.12.207; AS 45.14.105(a)(6); and 27 AS 45.29.102(a)(51) are repealed. 28 * Sec. 114. The uncodified law of the State of Alaska is amended by adding a new section 29 to read: 30 INDIRECT COURT RULE CHANGES. (a) The provisions of AS 45.01.303(g), 31 enacted by sec. 9 of this Act, have the effect of amending Rule 403, Alaska Rules of
01 Evidence, by requiring the exclusion of certain relevant evidence relating to usage of trade 02 unless certain conditions are met. 03 (b) The provisions of AS 45.01.307, enacted by sec. 9 of this Act, have the effect of 04 amending Rule 902, Alaska Rules of Evidence, by establishing the authenticity and stated 05 facts of certain documents. 06 * Sec. 115. The uncodified law of the State of Alaska is amended by adding a new section 07 to read: 08 APPLICABILITY. (a) This Act applies to a document of title that is issued or a 09 bailment that arises on or after the effective date of this Act. This Act does not apply to a 10 document of title that is issued or a bailment that arises before the effective date of this Act 11 even if the document of title or bailment would be subject to this Act if the document of title 12 was issued or the bailment arose on or after the effective date of this Act. 13 (b) This Act does not apply to a right of action that has accrued before the effective 14 date of this Act. 15 * Sec. 116. The uncodified law of the State of Alaska is amended by adding a new section 16 to read: 17 SAVING CLAUSE. A document of title issued or a bailment that arises before the 18 effective date of this Act and the rights, obligations, and interests flowing from that document 19 or bailment are governed by a statute amended or repealed by this Act as if the amendment or 20 repeal had not occurred and may be terminated, completed, consummated, or enforced under 21 that statute. 22 * Sec. 117. The uncodified law of the State of Alaska is amended by adding a new section 23 to read: 24 REVISOR'S INSTRUCTIONS. The revisor of statutes is instructed to change the 25 catch line of 26 (1) AS 45.07.210 from "Enforcement of warehouseman's lien" to 27 "Enforcement of warehouse's lien"; and 28 (2) AS 45.07.403 from "Obligation of warehouseman or carrier to deliver; 29 excuse" to "Obligation of bailee to deliver; excuse." 30 * Sec. 118. The uncodified law of the State of Alaska is amended by adding a new section 31 to read:
01 CONDITIONAL EFFECT. AS 45.01.303(g), enacted by sec. 9 of this Act, and 02 AS 45.01.307, enacted by sec. 9 of this Act, take effect only if sec. 114 of this Act receives 03 the two-thirds majority vote of each house required by art. IV, sec. 15, Constitution of the 04 State of Alaska. 05 * Sec. 119. This Act takes effect January 1, 2010.