Humanities and Social Sciences

Prawo Morskie

Content

Prawo Morskie | 2011 | No XXVII |

Abstract

The Author, being a preeminent scholar in the field of maritime law, advocates for a new Polish maritime code. His approach accentuates the need for co-ordination of efforts between Legislative Commissionfor Civil Law and Legis-lative Commissionfor Maritime Law. The notion of closeness between these two branches of law was contemplated among Polish academics by Jan Łopuski as early as in 1965. Today, the endeavors toward the new code should include widespread comparative legal studies, and, in particular, take into account the process of gradual merging between common law systems of maritime law and civil law (continental law) systems of maritime law, while US maritime legislation remaining distinct.

The article reviews the 2001 Maritime Code amendments, including Title I (General Provisions) and Title II (Vessel). The Author promotes new regulation of maritime lien as a distinct ius ad rem, specific to the maritime code. He takes a stand against the Rotterdam Rules as he believes they are an unsuccessful attempt to replace the Hague-Visby Rules and their nearly one hundred year old tradition.

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Abstract

The Article concerns law on maritime carriage of goods, and more specifi-cally, incorporation of international standards into the new Polish maritime code. The Author discusses stages of development of those common standards, including the Hague-Visby rules (1924/1968), Hamburg Rules (1978) and Rotterdam Rules (2009). The focus however is on a unique feature of Polish domestic law, often referred to as hybrid approach, due to its characteristic amalgamation of formulas originating from different conventions.

The Author advocates for such hybrid approach and proposes an introduction of a dedicated chapter on carriage of goods into the new code. The proposal merges existing regulation, based on the Hague-Visby model, with new solutions derived from the Hamburg Rules and, more importantly, the Rotterdam Rules.

Particular emphasis is being put on a common but unregulated practice regarding volume contracts. The Author argues for incorporation of volume contract into the new code.

Finally, the article examines Rotterdam Rules’ provisions regarding jurisdiction and arbitration

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Abstract

The Author is an expert on United States’ maritime (admiralty) law and on American legislative process.

The Rotterdam Rules, or the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partially by the Sea, drafted by the UN General Assembly on 11 December 2008 (Resolution 63/122), create a new legal order on affreightment and thus aim at replacing the Hague Rules, the Hague-Visby Rules and the Hamburg Rules.

The Author argues that the dominant legislative contribution to the draft is American. The United States have amended their own maritime law and, at the same time, internationalized some of its content. If the US ratification process is completed within the next 2 years with the signature of the President, the USA, representing 25% of the world’s overall tonnage, shall be the game-changer in international law on carriage of goods by the sea.

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Abstract

The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partially by the Sea (the Rotterdam Rules, signed on 23 September 2009) is intended to make exclusive use of electronic transport documents. Transport documents, as the Author points out, are negotiable.

Drafting of the Convention was set in motion 1996 in the Comite Maritime International (CMI), and from 2002 its development continued under the auspices of the United Nations Commission on International Trade Law (UNCITRAL). The Author opines that the Rules may advance application of electronic negotia-ble instruments in present day trade.

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Abstract

An exemption from damage arising from an act, neglect,or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of a ship, commonly referred to as the nautical fault defense, was included in the Polish Maritime Code 1961 and continues to be valid under the current Maritime Code 2001. The Author argues that this concept is out-dated and should be relinquished. His analysis of Polish and overseas case law – most notably the Tasman Orient Line CV v NZ China Clays Ltd & Others (2009) NZCA 135 (the Tasman Pioneer case) – lead him to believe that the deletion of the nautical fault defense from the Rotterdam Rules is a positive development, thus making the Rules a modern piece of legislation, well adapted to the present international law on international carriage of goods.

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Abstract

The article provides analysis of current regulation on arrest of vessel and closely related issues of executionof judgments against vessel. The Author discusses Polish Code of Civil Procedure 1964, International Convention Relating to Arrest of Sea-Going Ships (the Brussels Convention 1952), to which Poland is party, and International Convention on the Arrest ofShips (the Geneva Convention 1999), not yet in force.

The Author criticizes Polish judicial authorities’ conduct regarding arrest of vessel and calls for incorporation of its regulation into the Polish maritime Code. His 9-point proposal is far-reaching and may prove valuable for future legislation.

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Abstract

Today there are two separate regimes of liability for oil pollution damage: the international regime, which is based on multilateral conventions, and the autonomous United States regime. After the US Administration’s decision to withdraw from the international system (1989), the US Congress enacted the 1990 Oil Pollution Act (OPA). This piece of legislation was passed in the aura of public demand for stringent regulation of oil pollution damage to marine environment. The OPA allows states to enact laws that would furnish greater protection to the injured parties than federal law.

The US is a known critic of the international regime due to its low liability limits and exclusion of environmental damage. Accordingly, there are numerous differences between the US regime and the international one. The OPA has a wider scope as it covers also oil spilled from facilities and bunker oilspills. Furthermore, the US legislation offers superior protection to the injured as it adopts a wider definition of oil pollution damage. Thus, the Author argues, the OPA embodies the polluter pays principle (PPP) to a greater extent than the international system

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Abstract

Unification of laws on carriage of goods by sea on the international plane is likely the most sensible way to avoid conflict of laws and conflict of jurisdiction. Nevertheless, application of conflict-of-lawrules may still be inevitable.

Since 17 December 2009 the primary source of conflict-of-law rules has been Regulation (EC) no. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I). This Regulation prompted a major reform of Polish private international law; the new law was enacted on 4 February 2011 and entered into force on 16 May 2011. Currently, as the Author points out, the flag of the vessel is no longer relevant as a potential connecting factor in shipping contracts.

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Abstract

In recent years the Commission of the European Union has endeavored to create a regional European system of transport law, one that would not affect unimodal transport contracts and their respective conventions. The key issue therefore is relationship between such system and those conventions and, ultimately, the Rotterdam Rules. In its Resolution of 5 May 2010 on strategic goals and recommendations for the EU’s maritime transport policy until 2018 (2009/2095 (INI)), The European Parliament calls for speedy signing, ratification an implementation of the Rotterdam Rules by the EU member states.

The opponents of the Rotterdam Rules point to their conflict with unimodal transport conventions. However, the new system devised in that Convention allows for co-existence of unimodal systems while providing a sound replace-ment of outdated maritime regulations.

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Abstract

The key role for maritime supervision envisaged in the new integrated maritime policy of the European Union is safety at sea and maritime border control of the continent.

The member states’ authorities responsible for maritime supervision work across several policies, including fisheries control, pollution response, maritime safety and security, border control et al. Effectiveness of those actions often suffers form differences between their respective legal systems and administrative command structures. Today, the most intensive efforts go into setting up legal and technical frameworks of cooperation between authorities. The Author argues that integrated maritime policy underscores the significance of the maritime sector in the economic panorama of the EU.

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Abstract

The International Convention for the Control and Management of Ships’ Ballast Water and Sediments (BWM 2004) is a new frontier in the field of marine environment protection. The Convention’s aim is to reduce the risk of spreading of harmful aquatic organisms and pathogens into alien marine environments by ships’ ballast water and sediments.

There is a list of non-indigenous species in the Baltic Sea which has been compiled in accordance with The Convention on the Protection of the Marine Environment of the Baltic Sea Area (HELCOM 1992). As ships carry thousands of species in their ballast water, the danger to the marine and coastal environ-ment is substantial.

Some of the HELCOM signatories have already ratified the BWM (Sweden, Norway) and thus may provide hands-on account of practicalities of the Con-vention. The HELCOM countries have agreed to ratify the BWM Convention by 2013 at the latest. The Author’s research may therefore be of value as Poland is currently considering ratification of the Convention.

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Abstract

The oceans are the second largest natural absorber of carbon dioxide emissions. One of the methods contemplated to enhance the processis fertilization of seawater with iron. The fertilization stimulates the growth of phytoplankton, the main biological agent responsible for the carbon dioxide sequestration processes by seawater. As phytoplankton absorbs the gas it transports it toward the seabed, thus making the ocean a natural carbon sink. Significance of this issue is reflected by the number of parties to the Kyoto Protocol (1997) to the United Nations Framework Convention for the Climate Change (UNFCCC 1992). The signatories include 194 states and the European Union to the UNFCCC and 192 states and the European Union to the Kyoto Protocol.

The Author provides legal analysis on ocean iron fertilization. The issue sparks considerable controversy from the standpoint of law, science and environmental protection. Since iron fertilization has been developed only recently, no thorough evaluation is possible. The Author advocates cautious approach and recommends limiting its use to scientific endeavors.

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Abstract

The Third Maritime Safety Package, also known as Erica III, consists of 7 pieces of European Union legislation adopted by the Parliament and the Council in 2009. The EU member states are to implement them by bringing into force law, regulations and administrative provisions.

The level ofcommitment on the part of Commission of the EU to the issues surrounding safety packages is measured by the amount of actions brought before the Court of Justice for states’ failures to comply with them. Currently the Commission has delivered a reasoned opinion under the Article 258 of the Treaty concerning failure to implement Directive 2009/16/EC of 23 April 2009 on port State control by Belgium, Cyprus, Estonia, Poland, Portugal and the United Kingdom.

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Abstract

The article concerns legal aspects of localization of wind turbines at sea under Polish jurisdiction, i.e. on internal waters, territorial waters and within the exclusive economic zone. The Author provides analysis of applicable Polish law, including Maritime Areas Act 1991 and Spatial Planning Act 2003 in the context of domestic and international law on maritime environment protection.

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Abstract

Komisja Europejska opublikowała w 2009 r. zieloną księgę pt. Reforma wspólnej polityki rybołówstwa. W dokumencie tym znajdują się odniesienia do obecnej i przyszłej legislacji unijnej oraz legislacji krajowych. Zachęca to do głębszego spojrzenia w europejską i w polską legislację w tej dziedzinie. Niniejszy artykuł ukazuje pewne aspekty tego procesu z odpowiednim ukierunkowaniem na wnioski de lege ferenda.

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Abstract

This article is a first endeavor into Polish defense policy matters by Polish Academy of Sciences’ Maritime Law.

Among the signatories of the United Nations Convention on the Law of the Sea (UNCLOS 1982) there are 9 states bordering the Baltic Sea. Presently the friendly relations between those nations render baltic naval operations less important than far seas operations. This is also true with the Polish Navy.The issue of delimitation of maritime borders and establishment of contiguous zone is of utmost importance to Polish national security. Since 1972 there are ongoing negotiations between Republic of Poland and the Kingdom of Denmark regarding contiguous zones. It is the longest running unresolved border dispute in the Baltic Sea area. There is also a degree of controversy surrounding roadstead of Świnoujście and Szczecin ports located in Bay of Pomerania.The article formulates five conclusions of both general and detailed nature regarding the UNCLOS significance for Poland’s national security.

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Abstract

The article provides legal analysis on co-dependence between nautical and aviation regulations in international law and practice. The study focuses on overflight rights with respect to civil and military aviation across distinct types of waters as defined by the United Nations Convention on the Law of the Sea (UNCLOS 1982) where the Author differentiates the common legal standard from particular legal regulations giving rise to divergent practices of some countries. The article touches also a number of issues relating to maritime security (including the threat of piracy) and to environmental protection in the context of regulation and practice of airborne activities carried out by states’ authorities and services.

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Abstract

The Northwest Passage is a sea route – or, to be exact, it is a collected name for four routes – that connect Europe and East Asia. Despite its considerable length (it spans circa 5780 kilometers) and notorious nautical difficulties it provides a decent alternative to the route through the Panama Canal due to being roughly 4000 kilometers shorter. In the present day the route is seasonal and is predominately operated by Canadian entities. Recently however it has seen in-creased interest due to climate change.

While Canada claims the waters of the Northwest Passage to be their internal waters, some experts say this claim, notwithstanding its historical grounds, may be deemed an abuse of sovereignty. Canada exercises creeping jurisdiction there, with Article 234 of the United Nations Convention on the Law of the Sea (UNCLOS 1982) as its sole justification. The United States, on the other hand, believes the Passage is in fact a strait connecting two areas of open sea and thus should remain part of international waters. On 11 January 1988 USA and Canada have signed an agreement on cooperation inthe Arctic.

The Author predicts the more disagreements over the Northwest Passage in the coming years as the core problem continues to be unresolved.

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Abstract

The dispute between Poland and Germany over the northern parts of roadstead adjacent to Świnoujście and Szczecin sea ports casts a shadow on good relations between those nations. The dispute concerns the anchorage and the port approach route.
On 25 November 1994 Germany have unilaterally declared those areas part of their exclusive economic zone.

The Author advocates for solutions envisaged in international agreement on maritime border delimitation between former People Republic of Poland and former German Democratic Republic. The agreement was signed in Berlin on 22 May 1989.

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