Humanities and Social Sciences

Prawo Morskie


Prawo Morskie | 2006 | No XXII

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Freedom of the high seas established in the law of the sea, as a customary norm comprises freedom to lay submarine cables and pipelines. This was confirmed by the Geneva Conventions of 1958 on the High Seas and the Continental Shelf The law of the sea Convention of 1982 retained freedom of the laying of submarine pipelines in the exclusive economic zone but in parallel it has given a number of rights to the coastal State. Thus the coastal State has rights to set up conditions concerning all stages of pipelines construction and functioning. Through it may not impede the laying or maintenance of pipelines nevertheless the delineation of the course for the laying of such pipelines in the exclusive economic zone and on the continental shelf is subject to its consent. It also has the right to authorize and regulate drilling on the sea bed. An analysis of provisions concerning artificial islands, installations and structures as well as marine scientific research demonstrates various lacuna. Debates around the project of the Baltic pipeline confirm the necessity to take into account the specific situation of this semi-enclosed sea, interests of the coastal States and recommendations of the competent international organizations. One can also argue that in the case of pipelines laid on the bed of the high seas beyond the continental shelf the Authority should be consulted. Problems are also caused by the fact that pipelines are laid by multinational corporations.

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Authors and Affiliations

Janusz Symonides
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The Convention of the Law of the Sea of 1982 states clearly that countries bordering semi-enclosed seas, such as the Baltic, are expected to cooperate closely in securing their rights and executing their duties. The obligation to cooperate as stated in Article 123 of the convention refers to, among others, any installation or structure constructed on the Baltic Sea bottom. Russia and Germany both ignored this obligation as they viewed the proposed construction in strictly commercial terms. This position not only violates the norms of the both the Convention of the Law of the Sea of 1982 and HELCOM of 1992, but it also ignores the fundamental principles of the energy policy of the European Union. Article 23 statute 3 of legislation on the Republic of Poland's sea areas and marine administration, states that permission to construct and exploit any constructions within Polish sea areas (including those in the exclusive economic zone) is not to be granted if the proposed construction threatens the environment, marine resources, or the national economy. Unquestionably, the proposed Russian-German pipeline poses an ecological threat due to its length and is contrary to Polish interests.

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Dorota Pyć
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The United Nations began working on the codification of the Law of the Sea in 1958, when four conventions were adopted in Geneva, namely the Convention on the Territorial Sea and the Contiguous Zone, the Convention on the High Seas, the Convention on Fishing and Conservation of the Living Resources of the High Seas, and the Convention on the Continental Shelf The conventions came into force in 1960. This was the first UN Law of the Sea conference and was organized under the auspices of the International Law Commission. In 1960 the second UN conference on maritime law was also held in Geneva and was dedicated to describing territorial seas. However, it did not succeed in reaching agreement regarding the six-mile territorial sea and six-mile fisheries zone. The third UN Conference on the Law of the Sea took place between 1973 and 1982. The UN Convention on the Law of the Sea from 1982 confirmed the right of each country to declare its territorial seas at limits of up to 12 nautical miles. The number of participating countries represented at the Law of the Sea conferences had increased with 157 national representatives in attendance at the third UN conference. In addition to issues of territorial sea width, other topics discussed included investigations and exploitation of marine resources outside of state jurisdiction, the legal status of sea areas and their countries, the rights and obligations of the largest exploiters of seas and oceans and principles of their cooperation. The author gives a high evaluation of the Law of the Sea codifications, which were prepared with the participation of the United Nations.

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Leonard Łukaszuk
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International armed conflicts in the twenty-first century will not be limited only to terrestrial territories of the opposing forces. Seas will not only be used for long term dislocation and concentration of forces, but will again become a theater o f war operations. Future armed conflicts will have a significant impact on international shipping activities since 90% of world trade is conducted via maritime shipping. Thus, it can be concluded that all the countries of the world are deeply dependent on undisturbed and free shipping trade. In this article, the author focuses on the issue of protecting neutral shipping. Naval war law and maritime neutrality are issues described by recognized legal frameworks that apply to international conflicts at sea. They do, however, have a number of deficiencies, which renders difficult the effective protection of neutral shipping from the negative impacts of war. One of the problems is the scope of the application of the maritime neutrality law. Another problem is the lack of the obligation of a neutral country to execute the necessary monitoring with the aim of preventing its citizens from cooperating with one or all of the parties to the conflict. Additionally, the warring parties will rarely be able to identify the real character of a cargo ship. The will in the international community to codify naval war law and maritime neutrality will be lacking in the near future.

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Andrzej Makowski
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The Aland Islands are comprised of 6500 islands, eighty of which are inhabited, with a combined area of 1500 km2. The entire territory is inhabited by 27000 Swedish-speaking people. The international agreements currently in force regulate the use of the Strait of the Aland Islands just to a certain degree and refer only to navy vessels. Therefore, it can be concluded that the strait's particular legal regime is described primarily by the regulations of the 1921 Geneva Convention. For other ships, the principles of common use and treaties of international maritime law apply. Foundations exist to recognize a transit passage in the strait beyond the demilitarized zone. The current status of the islands and the surrounding waters is commonly accepted by both the Swedish inhabitants of the archipelago (who have considerable political and economic autonomy within Finland), the countries on both sides of the strait, and the international community throughout the Baltic region.

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Dariusz R. Bugajski
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This article represents the farthest reaching analysis of the issue of the transfer of rights incorporated in the documents applied in maritime trade ever published in the Polish literature. The article is comprised of four sections. The first is a detailed description of the institution of endorsement on a bill of exchange (necessary for the subsequent considerations) which was normalized in articles 11-20 of the statute of 28 April 1936 The Bill of Exchange Act. The author discusses the legal essence of endorsement on a bill of exchange and its various forms while focusing attention on its leading role in the legal system for transferring rights from securities “on request”. Accordingly, the author also calls attention to the other application of the endorsement on a bill of exchange, especially to the transfer of rights with bills of lading, warehause receipts, and maritime insurance policies. The second section presents issues regarding the endorsement of bills of lading. The view the author expresses differs from that which has been published in the legal literature to date in that it narrows significantly the range in which the regulations of bill of exchange law endorsement can be applied in maritime relationships. Accordingly, with regard to bills of lading, the only endorsement on a bill of exchange regulations that can be applied are those which permit transferring the bill of lading to the endorsee. The form of endorsement on bills of lading, endorsment of set of originals of bill of lading, and the specifics of the endorsement of bills of lading accepted for loading are discussed at length. Legal comparative issues and so-called e-commerce, EDI, and the increasingly popular e-bills of lading are considered separately. The third section presents issues of storage law, which is regulated by the warehouse statute of 16 November 2000. Storage manifests are an integral element of the maritime trade. The principles for endorsing inseparable warehause receips, as well as separable - reverse and warranty are discussed with particular emphasis on the so-called first endorsement on the warrant. The range within which endorsement on a bill of exchange is applicable to storage law is described in detail. In the fourth section, attention is focused on the possibility of endorsing maritime insurance policies, with doubts expressed as to whether these documents are indeed securities. The author maintains that the range of the application of bill of exchange law to these types of documents should be limited exclusively to the realization of policy legitimization functions. In the conclusionSy the author expresses doubts as to whether current means of regulating the principles of transferring rights from securities applied in the maritime trade are optimal. In the author's opinion, instead of a complicated system of references to bill of exachange law, it would be better to normalize this issue separately in the maritime code and storage law.

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Mirosław H. Koziński
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Participation in loss or damage by sacrifice stems from either custom or legal regulations. This obligation can also be limited by agreement between parties. The instrument for modifying the range of loss or damage by sacrifice is the set of principles in the York-Antwerp Rules. The York-Antwerp Rules are currently the oldest maritime trade institution in such common practical use. The definition of loss or damage by sacrifice comes from the rules accepted in 1924 which originated from British regulations on maritime insurance dating from 1906. In Polish maritime code, the term “loss or damage by sacrifice ” describes only a certain type of damage, independent of the means it was inflicted. Norwegian maritime code is a good example of a rational attitude towards this issue; article 211 of this code refers directly to the York-Antwerp Rules. In terms of legislative techniques, the York-Antwerp Rules are not perfect. The terms of dispatch and the role of the dispatcher, which are closely related to the loss and damage by sacrifice, are rather incidental in the York-Antwerp Rules and are on the margins of issues regarding the effectivity of settlement.

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Authors and Affiliations

Zenon Kamiński
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The Peking Rules have not been ratified in an official document and carry no legal weight. They are just a private set of regulations for settling loss and damage by sacrifice. They were accepted by the China Council for the Promotion of International Trade (CCPIT) on 1 January 1975 and remain in force today. The structure of the Peking Rules is uniform and is not divided into general and specific regulations. The rules are comprised of a peculiar type of preamble and eight titled articles. The range of loss and damage by sacrifice includes extraordinary losses, damages, and reasonably incurred extraordinary expenses resulting from actions taken to protect vessel and cargo from a common danger posed by forces of nature, accidents, or other extraordinary circumstance that can occur in maritime transport. Undoubtedly, the York-Antwerp Rules, especially their Hamburg version from 1974, significantly influenced the Peking Rules, as is reflected by the striking similarities in text and character of the two sets of rules. The author also discusses the problem of the Peking Rules in reference to the Polish maritime code.

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Bogna Ostrowska
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The normalization of marine pilotage within the maritime code, the statute of maritime safety, and the executive regulations of these statutes is controversial in many aspects regarding their technical and substantive correctness. This is especially apparent in light of the fact that the service is not provided by the state (maritime administration) but by private operators who are taking advantage of their constitutional rights to conduct business. Furthermore, the service is realized by pilots who enjoy these same rights as well as the freedom to work. This article includes a critical analysis of these regulations regarding state control of pilotage and provides material for analyses to formulate proper conclusions both de lege lata and de lege freneda. Over fifty propositions for urgent revisions of the maritime code, including the pilotage issue, have been published in the relevant literature. These regulations appear to be the weakest section of the code. However, the author analyzes only article 229. Combined with article 36 of the statute of maritime safety and executive acts for these rules, this article presents a very poor picture of the legislation in this field.

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Zbigniew Godecki
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As maritime offices are branches of the maritime administration, their directors have wide-ranging jurisdiction. One of the most important duties of maritime office directors is to conduct the marine ship register, which is commonly known as the administrative register. The directors of maritime offices should be informed when salvage attempts are made, and he/she has the power to relieve pilots of their duties under certain legal circumstances. Directors also conduct inspections and reviews to ensure that ships comply with requirements regarding the prevention of marine pollution. The authors emphasize that the existing Polish two-tiered maritime administration system is criticized. Attention is directed to the combined description of the substantive characteristics of the bodies of the first and second instance, the indistinct character of certain institutions, and the lack of a stable concept regarding the role and tasks of offices responsible for maritime economics and the operations of the entire maritime administration.

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Authors and Affiliations

Diana Trzcińska
Paweł Mierzejewski

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Review procedure:

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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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