Humanities and Social Sciences

Prawo Morskie

Content

Prawo Morskie | 2013 | No XXIX

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Abstract

The article provides the first comparative take on the issues surrounding the delivery of cargo without bill of lading in Polish legal literature. The author excludes Rotterdam Rules and domestic regulations of the subject as these call for further studies.

The author notes that bill of lading is recognized in legal systems all over the world as it remains the cornerstone of maritime trade, especially in the department of mass cargo transport. Divergences however do happen and they manifest themselves in several ways. The bill of lading may be substituted by avariety of waybills and shipping lists, as well as electronic negotiable instruments, the latter of which being already in use for years. None of these, however, seem to address the problem in every respect.

The author’s approach is rooted common law, the prevalent system in global maritime trade.

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Authors and Affiliations

Marek Czernis
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Abstract

In 1999 tanker Erica, flying Maltese flag, sank in French exclusive economic zone, spilling 20 000 tones of oil into the sea and polluting 400 km of French shore. In 2008 French court held the defendants liable for reckless negligence in criminal proceedings, with appellate and cassation courts ruling in 2010 and 2012 respectively. The author discusses those judgments.

The courts have considered the International Convention on Civil Liability for Oil Pollution Damage (1992), the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (1971) and French Law No. 83‒583 of 5 July 1983. The rulings have met considerable criticism with respect to issues of French jurisdiction and channelling of liability. It was argued that criminal courts cannot give verdicts on civil liability for oil pollution damage.

The article also covers classification societies’ liability for certifying ship’s seaworthiness.

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Authors and Affiliations

Zuzanna Pepłowska-Dąbrowska
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Abstract

The international community is presently facing a new hazard in the form of oil spills from drilling platforms rather than ships. The issue was first brought to public attention in conjunction with the 2009 West Atlas rig fire that resulted in oil pollution of Indonesia and northern shores of Australia. The wrangle continues in the wake of the recent Deepwater Horizon disaster in the Gulf of Mexico.

As of today there are no international measures that regulate the issues of civil liability for offshore drilling related pollution. Indonesia has put forward the matter to the International Maritime Organisation; the IMO intends to draft a convention.

Civil liability for offshore drilling related pollution within domestic law is aseparate issue. In Polish law, Article 435 et seq of the Civil Code would apply. The pollution threat extends to the Baltic Sea, Northern Sea and other parts of the world.

The issue is also being examined by the European Union. The European Agency for the Maritime Safety has mandate to act in case of damage related to offshore drilling. Following the example of the American Oil Pollution Act (1990), the EU aims to draft comprehensive laws that would cover pollution associated with the entire mining industry.

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Authors and Affiliations

Paweł Krężel
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Abstract

The article reviews current substantive law regarding mortgage on ships under construction.

According to Polish Maritime code, mortgage on ships under construction may take form either of standard ship mortgage or ship mortgage accompanied with acollateral deed. The author discusses also recent amendments to the Polish Law on Land Registers and Mortgage, passed in 2009 and in force since 2011, as these may influence ship mortgage. Furthermore, since there is notable interconnection between ship mortgage and registered lien on ship parts and equipment to be fitted on board, the article also covers Law on Registered Lien and Register of Liens.

The author advocates amendments aiming for improved effectiveness of regulations on ship mortgage.

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Authors and Affiliations

Iwona Zużewicz-Wiewiórowska
ORCID: ORCID
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Abstract

The article outlines legal characteristics marine insurance contract under Polish law. Marine insurance is a codified contract, governed expressly by Title VIII of the Polish Maritime Code. It is concluded by mere consent of the parties (consensual contract), it is bilateral, aleatory and it entails consideration in money. Its main characteristic is the requirement of utmost good faith (uberrima fides). It is a standard form contract (contract of adhesion) and often operates in context of permanent contractual relationships.

The author notes, however, disagreements within academia as to aleatory natureof maritime insurance.

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Authors and Affiliations

Magdalena Adamowicz
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Abstract

The article describes structure of the Convention on the Facilitation of International Maritime Traffic (FAL 1965), mechanisms of facilitation, and discusses Polish perspectives on the relationship between the Convention and European law. FAL aims to facilitate and expedite international maritime traffic and to prevent unnecessary delays to ships and to persons and property on board. The Convention reduces the number of documents required for entry and departure from port to 9.

The European Union, in cooperation with the International Maritime Organization, intends to digitalize ship arrival and departure notifications.

The author argues that IMO Resolution FAL 8(32), in force since 2006, and the IMO Resolution FAL 10(35), in force since 2010, are of auxiliary nature and as such do not require Polish ratification procedures. They do bind, however, by way of tacit acceptance.

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Authors and Affiliations

Justyna Nawrot
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Abstract

The article discusses and evaluates current regulations and financing of fishing fleet management and adjustment to available marine bioresources.

The implementation of Common Fisheries Policy requires adequate financing and the European Fisheries Fund plays a crucial role in it. The Fund manages financial resources allocated for public aid distributed in connection with permanent cessation of fishing due to decommissioning of fishing vessels through complete scrapping. The practice is designed for balancing the strength of fishing fleets against available bioresources. This expenditure is required to conform with the EU financial guidelines and thus falls under scrutiny of the Commission and the European Court of Auditors. The ECA presents annual and special reports to the European Parliament and to the Council on this matter and provides recommendations to the Commission. The Commission responds accordingly.

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Authors and Affiliations

Marta Bizewska
Zbigniew Godecki
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Abstract

Between 2000 and 2008 the Directive 2000/60/EC of the European Parliament and the Council of 23 October 2000 establishing a framework for the Community action in the field of water policy had been the principal legal document relating to water policy of the European Union Member States. The adoption of Directive 2008/56/EC of the European Parliament and the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive) broadened the scope of the EU law to include protection of themarine environment. This article also covers the implementation of the Marine Strategy Framework Directive within Polish legal system.

Land based sources make up 80% of all marine environment pollution.

The Directive’s aim is twofold: (1) to create uniform legal mechanism for the protection of the inland, coastal and transitional waters for entire Europe, and (2) to achieve environmental, social and economic goals.

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Authors and Affiliations

Janina Ciechanowicz-McLean
ORCID: ORCID
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Abstract

The article isdevoted tothe issues ofprinciples thatare important for the development of marine spatial planning (MSP) and integrated coastal zone management (ICZM). Marine spatial planningcan be understoodas a practicalway to implement the principles of rational use of maritime areasin accordance with sustainable development based on stakeholders cooperation. The integrated coastal zone management functionis integration of maritime sectors inorder to remedy conflicts arising in the ocean space and also institutional conflicts.

The precautionary principle and the ecosystem approach determine the current framework for spatial planning in marine areas and regulate various human activities in the marine environment, taking into account the protection of marine and coastal ecosystems and biodiversity.

In order to achieve sustainable growth of maritime and coastal activities and the use of marine and coastal resources the European Union developed in 2013 a draft directive establishing a framework for maritime spatial planning and integrated coastal zone management, as a specific remedy to the very slow implementation of the principles and instruments of maritime spatial planning and integrated coastal zone management by the Member States.

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Authors and Affiliations

Dorota Pyć
ORCID: ORCID
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Abstract

The article discusses selected issues of combating piracy at sea. The author examines interconnection between universal jurisdiction and domestic jurisdiction in the context of hearing piracy cases before domestic, international and hybrid tribunals. The author opts forstrengthening reliance on domestic courts as he details recent improvements in many countries’ legislations.

The second part of the article covers European Union strategies on legal and structural aspects of combating maritime piracy.

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Authors and Affiliations

Mirosław H. Koziński
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Abstract

Climate change and the warming of the Arctic opens up new possibilities for the development of international shipping in the region. Currently, there are two routes shortening considerably the distance between the Atlantic Ocean and the Pacific Ocean compared to current connections through the Panama Canal and Suez. One of these routes is called the Northwest Passage runs through the Canadian Archipelago and the other Northern Sea Route runs along the coast of Siberia. Using them provides significant reduction of travel time, giving savings in fuel consumption and therefore means less greenhouse gas emissions. Are the legislative regulations on the status of these sea routes taken by Canada and Russia in accordance with the provisions of the Convention on the Law of the Sea 1982? Can they be qualified as internal waterways? Does the use of straight lines to determine baselines and territorial sea boundary is consistent with the Convention? Is the threat to the marine environment sufficient to justify the restriction of freedom of navigation in the exclusive economic zone? Serious doubts raises too far-reaching interpretation art.234. Positions taken by Canada and Russia have been criticized by the U.S. and the European Union. The international navigation in the Arctic, including opening up the long-term possibility of a new passage through the North Pole is not amatter to be decided exclusively by coastal states, it is a matter of concern to the whole international community. It is the global issue in which regulation, in cooperation with IMO, should participate all States, including particularly interested Asian countries.

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Authors and Affiliations

Janusz Symonides
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Abstract

Although the United Nations Convention on the Law of the Sea (1982) aims to regulate maritime safety in general, it omits terrorism at sea, proliferation of weapons of mass destruction, illegal immigration, intelligence gathering and vessel traffic monitoring. The Convention excludes intelligence exchange on illegal activities at sea such as piracy, terrorism, human and narcotics trafficking, illegal fishing and proliferation of weapons of mass destruction. UNCLOS does however operate as a framework convention since it provides infrastructure upon which UN agencies may take specific measures to address particular problems. For instance, UNCLOS serves as foundation for 80 legal documents in the fields of environmental protection and safety management.

As maritime safety issues are of common interest, multinational cooperation is inevitable. Common good, the author argues, should take precedence over particular interests of nations.

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Authors and Affiliations

Andrzej Makowski
ORCID: ORCID
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Abstract

The relations between China and Japan are, as it is with all neighborly relations, complex and have deep historical roots. Political rivalry together with economic and military expansion prompt the People Republic of China to question the territorial status quo on East China Sea and South China Sea.Both the PRC and Taiwan put forward claims to Japanese controlled Senkaku Islands; The PRC and Japan also quarrel over Ryukyu Islands and Okinotori Islands on East China Sea. All three disputes, however, are associated with delimitation of exclusive economic zones between those countries.

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Authors and Affiliations

Dariusz R. Bugajski
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Abstract

The article explains marine biodiversity from the standpoint of international law and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS 1994).

Currently there are dozens of patent applications associated with genes of marine origin outside countries’ jurisdiction. The claims come from developed countries, i.e. the United States, Germany, Japan, France, the United Kingdom, Denmark, Belgium, the Netherlands, Switzerland and Norway. All countries, including landlocked ones, are free to conduct scientific exploration of the sea. The key areas of application of marine genetic resources include pharmaceuticals, cosmetics and general industry.

Despite some controversy patent protection over natural world has long history. In 1873 Louis Pasteur obtained a patent for yeast, and adrenalin and insulin were patented in early 20th century. In the case of Diamond v. Chakrabarty (1980) the United States Supreme Court held that a live, human made microorganism is patentable subject matter.

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Authors and Affiliations

Konrad Marciniak

Authors and Affiliations

Leonard Łukaszuk
Dariusz R. Bugajski
Dorota Pyć
ORCID: ORCID

Instructions for authors

Prawo Morskie (Maritime Law) - Guidelines for authors of scientific texts

1. All scientific texts, including (but not limited to) research articles and judicial commentaries (glossa), must include distinct introduction and conclusion sections.

2. The title should be followed by the abstract and keywords. For texts that are not in English, the bibliography should be followed by the title of the text in English, the English keywords and an English abstract at the end.

3. Sources cited in the bibliography should be grouped by type: scholarly literature, legal acts, list of case law, Internet sources.

4. Text volume: min. 20,000 characters, max. 40,000 characters.

5. Page settings: standard margins in MS Word – top, bottom, right and left margins of 2.5 cm.

6. Main text: Times New Roman 12 pt. font, 1.5-line spacing, double-sided alignment. Eliminate any double spaces, commas, and periods, any multiple carriage returns, manually entered new lines, manually entered hyphenations, etc.

7. Paragraphs should begin in the same way in all articles.

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9. For the article title and sub-titles on all levels: the font size and type, positioning within the column of text, method of highlighting, numbering (if any), paragraph spacing above and below should be uniform across all articles in accordance with the journal/publication template. In collective works, subtitles of each level should be marked uniformly in all articles by the scientific editor submitting files for typesetting and breaking.

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12. In footnotes referring to sources previously cited, use the Latin abbreviations (op. cit., idem, ibidem, etc.).

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26. The bibliography should be standardized throughout the work according to the article/publication template.

27. Affiliations of individual article authors: standardized and placed in the source file according to the publication template standardized for all authors.


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• tables – should be placed in the text or a separate document (if there are many), do not use embellishments, background colors.

2. All supplementary materials should be accompanied by descriptions regarding their positioning within the column of text and base size, plus any framing guidelines, captions, titles, numbers. Figures and tables should be placed in the main text, close to the place where they are referenced, or on separate pages in numbered order, while indicating in the text the approximate location where they should appear. Please remember to make drawings according to the following guidelines:
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Template of the article intended for publication in Prawo Morskie (Maritime Law)

Publication Ethics Policy

Principles of publication ethics

The editors of Prawo Morskie (Maritime Law) strictly adhere to the principles of responsibility and ethics recommended by the Committee on Publication Ethics (COPE) for all parties involved in the publication process and take all possible measures against any abuse.


1. Responsibilities of the editorial staff

1.1 Principle of impartiality and fairness. Submitted scientific texts are evaluated on the basis of content only, without regard to race, gender, sexual orientation, religious beliefs, citizenship or political ideology.

1.2 Publication decisions. The Editor-in-Chief is responsible for deciding which of the submitted articles should be published. The decision to accept or reject a scientific text for publication is made by the Editor-in-Chief based on reviews assessing its content, originality, novelty, clarity and relevance to the scope of the journal. In making decisions, the Editor-in-Chief may consult the Scientific Council. The Editor-in-Chief is obliged to comply with applicable laws on defamation, copyright infringement and plagiarism, and to bear full responsibility for decisions regarding the publication of scientific texts.

1.3 Principle of confidentiality. The Editor-in-Chief and the Scientific Council must ensure that all materials submitted for publication remain confidential at the review stage. They must not disclose any information about the submitted manuscript to anyone other than the authors, reviewers, potential reviewers, other editorial advisors (e.g., translators), and the publisher.

1.4 Disclosure and conflict of interest. Unpublished articles, excerpts from articles, or materials contained therein may not be used by the editorial staff for their own research without written permission from the authors.

1.5 Maintaining the integrity of the scientific output. The editorial staff will guard the integrity of the published academic output, by issuing corrections, additions and references as necessary. At the same time, the editors will make every effort to detect any inappropriate research or publications. Plagiarism and works based on false data are unacceptable. The Editor-in-Chief should take appropriate action when there are ethical objections with respect to a submitted paper or published article. In justified cases, the editorial staff may publish corrections, clarifications, appeals and apologies.

1.6 Withdrawal of published articles. The Editor-in-Chief of the journal will consider retracting a published scientific text: if there is evidence indicating that the research results presented in it are untrustworthy, if it has been previously published elsewhere without proper reference, permission or justification (cases of redundant publication), if the work constitutes an act of plagiarism or is based on unethical research. The published retraction notice should be linked to the retracted scientific text (naming the title and authors in the title of the retraction), clearly identify the text being retracted, and indicate who is retracting it. Retraction notices should always include a justification for the retraction, stating the reason, in order to distinguish an unintentional error from misconduct. Retracted scientific texts will not be removed from printed copies of the journal or from electronic archives, but their retracted status will be indicated as clearly as possible.


2. Responsibilities of authors

2.1 Standards for publishing research results. Authors of articles presenting the results of original research should provide an accurate description of the work that was performed and an objective discussion of its significance. Baseline data should be accurately presented in the article. The article should provide enough details and references to allow others to verify the claims made. Any fabrication or presentation of false or inaccurate research results constitutes unethical behavior and will result in the rejection of the manuscript or the retraction of the published article.

2.2 Originality and plagiarism. Authors should ensure that they have written fully original papers, and if they have made any use of the work and/or words of others, this must be clearly marked with a citation. Plagiarism is not acceptable.

2.3 Multiple or simultaneous publications. Authors should not publish a manuscript describing the same research in more than one journal. However, in exceptional and justified cases, the editorial staff of Prawo Morskie (Maritime Law) will consider publishing a text that has already been published previous, provided that it was addressed to a different audience and in a different language.

2.4 Authorship. Works published in Prawo Morskie (Maritime Law) must be published under the names of individuals who are indeed their authors and responsible for their content. Any persons whose participation in the creation of the submitted work is negligible (for example, limited to the provision of research materials) may be mentioned in the acknowledgments, but must not be listed among the authors. In case of doubt, the editorial staff may for further clarification regarding the individual contributions to the creation of the paper made by the individual persons listed as authors. The authors should also disclose, in a footnote or in the acknowledgments, information about individuals and institutions that contributed to the work through substantive, material or financial contributions. The corresponding author submitting a paper for publication should make sure that only the relevant co-authors are listed in the paper and that they have all seen and approved the final version of the paper and agreed to submit it for publication. Cases of scientific dishonesty will be documented and disclosed.

2.5 Attribution of sources. Authors should take care to properly label the results of other researchers’ work. In view of this, they should cite any and all publications from which they drew information or ideas when writing their own scientific text.

2.6 Significant errors in published works. When an author discovers a significant error or inaccuracy in his own published work, it is his duty to immediately notify the editor or publisher of the journal and cooperate with the editor to retract or correct the text.


3. Responsibilities of reviewers

3.1 Contribution to editorial decisions. Scientific reviews assist the editorial staff in making editorial decisions and provide assistance to authors in improving their scientific texts.

3.2 Timeliness. Any reviewer who feels incompetent to review a paper submitted to him, or who knows that timely completion of the review will be impossible, should notify the editor thereof and withdraw from the review process.

3.3 Confidentiality. Each entire manuscript received for review is treated as a confidential document. It must not be shown to or discussed with anyone except the individuals so authorized by the Editor-in-Chief.

3.4 Objectivity standards. Reviews should be conducted objectively. Personal criticism targeted against the author(s) themselves is inappropriate. Reviewers should express their views clearly, by means of appropriate factual arguments.

3.5 Acknowledgment of sources. Any significant similarity between the reviewed work and any other published article or any duplication should be reported to the editor. Reviewers should identify any relevant published works that have not been duly cited by the authors.

3.6 Disclosure and conflict of interest. Information or ideas obtained through the review process must be treated as confidential and may not be used by the reviewer for personal gain. Reviewers should not undertake the evaluation of manuscripts which involve conflicts of interest arising from their own collaboration or other relationships with any author, private entities or institutions involved in the development of the scientific text. Authors have the right to address reviewer criticisms.

Peer-review Procedure

Review procedure:

1. All scientific texts, including research articles and judicial commentaries (glossa), submitted to the editors of Prawo Morskie (Maritime Law) are subject to a double-blind peer-review procedure.

2. Each scientific text is evaluated by independent experts in the relevant specialty.

3. The editors will make every effort to select reviewers who have no professional or private relationship with any author of the text under review.

4. Reviewers are required to provide an objective assessment of the submitted scientific text.

5. Reviewers are obliged to disclose any and all discovered irregularities, in particular any kind of plagiarism or self-plagiarism.

6. The review must be submitted in writing and must include a clear evaluation of the submitted scientific text.

7. Reviewers are asked to evaluate whether a scientific text is eligible for publication. This evaluation is made based on the following criteria:
- novelty of the topic addressed;
- consideration of the most recent literature on the subject; the use of appropriate methodology;
- and the text’s impact on the current state of research in the field of maritime law, the law of the sea, marine environmental law, or sustainable development and the socioeconomic environment.

8. Scientific texts referred for review are treated as confidential materials.

9. The identity of reviewers remains anonymous throughout the procedure.

10. The authors are obliged to participate in the review process, in particular to accommodate or respond to the suggested corrections, and to remedy any and all error brought to light.

11. In each printed volume of Prawo Morskie (Maritime Law) and on the website, the editors will publish a list of reviewers who collaborated with the journal in connection with a given volume.

Plagiarism Policy

The journal Prawo Morskie (Maritime Law) strictly adheres to the principles of scientific transparency and integrity.

We therefore will accept no forms of plagiarism, ghostwriting, or honorary authorship. In order to prevent such practices, relevant provisions have been included into the agreements signed with authors.

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