Humanities and Social Sciences

Prawo Morskie

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Prawo Morskie | 2008 | No XXIV

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Abstract

The modifiers in the title o f this paper - “community”, “union” and “European” - are in general use with regard to the same legal phenomena. This general terminological distinction has a negative effect on the terminology of the academic study o f maritime law, and there is no reason why this should be so. The most appropriate term would be “European maritime law”. The article presents arguments in favor of the use of this term.

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Authors and Affiliations

Zbigniew Godecki
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Abstract

The international community has conventions which regulate matters connected with the transport of cargoes by sea. In the second half o f the twentieth century an attempt was made to regulate multimodal transport. In 1980, under the auspices o f UNCTAD, a Convention on International Multimodal Transport of Goods was adopted. However, it has still not been implemented. It is a move in the direction of the complete regulation of the transport of goods by various means of transport. In 2001 the United Nations Commission on International Trade Law (UNCITRAL) began work on a convention relating to international goods transport. The new convention is intended to replace the La Haye Regulations, the La Haye/Wisby regulations and the Hamburg regulations. The author of this paper considers that the application of unified principles to various means of transport maybe be unsuccessful. The project for the future convention applies to the transport of cargoes wholly or in part by sea. The author refers to maritime transport law and shows what changes the future convention is to introduce.

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Authors and Affiliations

Dorota Lost-Siemińska
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Abstract

The author discusses in detail the project o f the new convention for cargo transport wholly or in part by sea. The UNCITRAL Working Group for Transport has been dealing with this matter since 2002, and has now finished its work. This paper is the first o f its kind in Polish legal literature. The future convention is to constitute the basis for regulation within the convention of matters connected with transport by various transport branches, for it establishes the extension of its application beyond transport by sea. The convention project has two aims: a. the establishment of a unified regime of liability; and b. the definition of the principles behind the use up to now of one transport document for an entire transport route. From the start it was known that the convention should apply to line transports, because these are marked by inequality in the positions of the parties involved. It may also, exceptionally, have application to tramp shipping in which there is equality of parties.

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Authors and Affiliations

Maria Dragun-Gertner
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Abstract

In the nineteenth century a clause concerning civil liability was attached to insurance documents in maritime transport. Concretely, this confirmed the insurer's acceptance of three-quarters of the liability for any collision. The ship owner accepted one quarter of the liability. Ship owners, wishing to spread the material risk of damages connected with the collision of vessels, began to join together in so-called mutual insurance clubs. Thirteen of the largest mutual insurance clubs formed a society called the International Group of P and I Clubs. This insures and reinsures more than 90% of world tonnage (and almost 100% of the cargo of European tonnage). The author discusses the decision of the European Commission (1999/329/WE) which grants the International Group of P and I Clubs exemption from the prohibition of cartel collusion and from two agreements: the International Group Agreement and the International Pooling Agreement, to both o f which it exclusively applies. The first agreement limits competition between clubs and the possibility of bringing a ship owner insured in one club into another club by offering him a lower rate. The second agreement concerns the spreading o f the risk o f liability for claims among members of the Group.

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Authors and Affiliations

Małgorzata Anna Nesterowicz
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Abstract

This paper address the rarely discussed issue of underwater areas. The author draws attention to the political and economic importance of areas on the sea bed’ both those areas that are under jurisdiction and those that are beyond any jurisdiction. In particular the article discusses international treaties relating to the sea bed. First, it analyzes the 2001 Paris Convention on the Protection of Underwater Cultural Heritage. Next, it discusses the new Nairobi International Convention on the Removal of Wrecks (2007). A further part of the article presents the decision to protect the wreck of the “Estonia” ferry (the Tallinn Agreement o f 1995) and the old Paris Convention (1884) on the protection of submarine cables. Finally, the author draws attention to the relatively low amount of interest of national legislation in issues connected with underwater areas and proposes concrete changes and additions to Polish maritime law.

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Authors and Affiliations

Mirosław H. Koziński
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Abstract

The concept of “places of refuge ” comes from the Convention on Maritime Safety of 1989. The term “port of refuge” had emerged earlier in maritime practice. Resolution A.949/23/ o f the General Assembly of the IMO, from 5 December 2004, speaks of “places of refuge” for ships in need of help. Directive 2002/59/WE o f the European Parliament and Council, setting up a community system of monitoring and of information on the movement of vessels, and abrogating Council Directive 93/75/EWG, introduced places of refuge, drawing on the “Guidelines ” of the IMO. IMO Resolution A.949/23/ became the legal norm valid in Member States. The decree of the Polish Minister for Maritime Economy from 14 September 2007, as executive implementation of legislation of 20 April 2004, concerning a change of legislation in the matter of maritime safety, sets out a plan for offering refuge in Polish maritime waters to vessels that find themselves in danger. The author accepts that a place of refuge may be a natural spot that is appropriate for this purpose, and also a place specially constructed for vessels in danger. It may also be an existing port or part of one.

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Authors and Affiliations

Piotr Lewandowski
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Abstract

Under former maritime legislation, breaching the regulations established by this legislation was considered a crime or a misdemeanor. The punishment for the latter was usually a money fine. From 1991, this kind of action was punishable by so-called financial penalties, imposed by administrative decision (in administrative procedure) by the local organs of the maritime administration. The present normalization of this material raises a host o f objections. This article discusses this process o f normalization, and casts doubt upon its legality and constitutionality.

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Authors and Affiliations

Zbigniew Godecki
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Abstract

This article concerns legal problems relating to the delimitation of areas of water in Poland. The main question is the status of water as property. In Poland bodies of water are generally public prdperty. This means that Polish legislation is responsible for partitioning and delimiting all watercourses. An analysis of legal regulations indicates some irregularity in this matter. This problem should be addressed immediately.

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Authors and Affiliations

Stanisław Kalina
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Abstract

This article is a continuation of the author's research in the subject of special areas on the seas and oceans. A marine area of particular sensitivity is an area that requires protection from shipping that is dangerous to the marine environment and its resources. Eleven marine areas of particular sensitivity have been established. Such an area may be set out “within and outside the borders of territorial waters, including the open sea". The IMO has indicated general ways of protecting a marine area of particular sensitivity. These include: new plans to limit sea traffic and recommended sea paths. The purpose of these is to minimize the risk of maritime accidents and oil spillages. Protection also entails the possibility of making it compulsory to use a pilot in such areas. In 1990 the IMO designated the Great Barrier Reef an area of particular sensitivity. It was made compulsory to employ the services of an Australian pilot when passing through the Torres Strait. In addition, a compulsory system of reporting on the part of vessels and two-way ship paths were introduced. The author discusses a Western European and a Baltic marine area of particular sensitivity.

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Authors and Affiliations

Dorota Pyć
ORCID: ORCID
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Abstract

The author discusses legal aspects of contemporary aquaculture in a broad sense, and as a type of farming marine organisms, especially fish, in a situation of significant overfishing of many basins. Marine aquaculture is, among other things, connected with biotechnology and genetic engineering, and also with the protection of the marine environment against pollution coming from marine aquaculture farms along the shore. In connection with this, various technical solutions are adopted, for example, in the form of protective artificial reefs that surround farms and modern electronic monitoring. The European Union has introduced appropriate legal regulations with regard to aquaculture, and special, interdisciplinary research programmer with the aim o f producing a comprehensive report that considers, for example, legal aspects and economic issues of environmental protection in the neighborhood of fish farms. The EU deals with the issue of aquaculture in the context of the shore line economy and also on a nearly global scale - within the framework of aid programmers for developing countries in Africa, the Caribbean and the Pacific. The author points out the legal aspects of aquaculture, analyzing specific regulations of the UN convention on the law of the sea (1982), and the regulations of the Gdańsk Convention (1973) and the Helsinki Convention (1992). He also considers FAO and EU regulations in which one may find direct and indirect references to aquaculture, also in the matter of environmental protection. Experience from European, Middle Eastern and Asian basins, relating to the legal aspects of marine aquaculture, needs to be generalized and ultimately transformed into appropriate legislative solutions.

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Authors and Affiliations

Leonard Łukaszuk
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Abstract

The Arctic takes in part of Russia, Canada, Norway, Sweden, Finland, Alaska (USA), Greenland (an autonomous Danish territory), Iceland and the Arctic Ocean, which is covered with ice and constitutes the center of the Arctic. There have been disputes between Denmark, Canada, Norway, Russia, and the USA concerning the borders o f the continental shelf of the Arctic Ocean. The author describes the achievements of the Russian expedition, “Arctic 2007, ” and the way in which Russia uses the 1982 Convention on the Law of the Sea. The essay also describes how the convention regulates the problem of the border of the continental shelf. He considers that in the future it may come to the partitioning of the Arctic Ocean’s continental shelf, along with the simultaneous fixing of “concessions” allowing the use of shipping lanes in the Arctic by the international community.

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Authors and Affiliations

Andrzej Makowski
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Abstract

This article may provoke interest in Poland's activity in connection with the potential extraction o f natural wealth from the sea bed. The international concern Interoceanmetal Joint Organization (IOM) was set up in Szczecin in 1987. Poland has been a member from the very beginning of IOM. To this day Poland is involved in conducting exploration of a specific sector. The sector is in the area of Clarion-Clipperton in the Pacific, and it has a surface area of 52,300 km2. Registration as a pioneer investor made research, rather than exploitation, possible (1991). The exploration of the submarine area allocated to Poland became possible in 2000.

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Authors and Affiliations

Robert Tarnacki
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Abstract

The obligation of states to guarantee the sustainable use of the natural resources of the seas and oceans is a result of the regulations of international law. Above all, these emphasize the necessity of linking the process of managing those resources with protection of the marine environment in which they occur. Less attention, however, is paid to the social consequences of not fulfilling the duty to use resources sustainable. The subject of this article is the heterogeneous scope of rights and duties of individual states to use marine resources, dependent on the geographical localization of these resources. Attention will also be given to the central role which is fulfilled, in the context o f the law of the sea, by the whole set of legal principles, according to which states using resources should be guided with the aim of ensuring the sustainable exploitation of those resources.

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Authors and Affiliations

Barbara Janusz-Pawletta
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Abstract

A guarantee of the right of ships of all flags to travel in the Pilawska Strait has become one of Poland's aims as a result of the lack of agreement on the part of the Russian government to open the strait for international shipping. In December 2004, however, a Polish project was presented for an agreement between the Republic of Poland and the government of the Russian Federation concerning shipping in the Vistula Lagoon and through the Pilawska Strait. The project proposes that the Pilawska Strait should be designated an international strait, in which shipping is only subject to Russian law and not to international law. The author of this essay does not agree with the official position of the Polish Ministry for Foreign Affairs in the matter of recognizing the Pilawska Strait as an international strait. He also does not agree with the international legal argument justifying Poland's claim to use the Pilawska Strait and the opening of the Strait to international shipping.

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Authors and Affiliations

Dariusz Rafał Bugajski

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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.

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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.


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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.

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- 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.

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

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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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