Humanities and Social Sciences

Prawo Morskie

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Prawo Morskie | 2004 | No XX |

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Abstract

This article describes selected problems regarding the newest Polish maritime legislation that are concerned with Polish accession to the European Union. The author presents the most important normalizations and discusses some of them that are contained in the following legislation: on fisheries of February JO, 2004; on changes in the legislation regarding the maritime office of March 5, 2004; on changes in legislation on maritime safety of April 20, 2004; on marine equipment of April 20, 2004. Two amendments to the new Polish maritime code are also discussed, as well as changes to legislation on the Republic of Poland's marine areas and the maritime administration. The author also discusses the ratification of the London Convention of the 1990 OPRC. The author emphasizes the ambitiously adaptive character of the numerous changes made in Polish maritime law that bring it into compliance with European law. Since the Polish Academy of Sciences Commission on Maritime Law has published the twentieth volume of the Maritime Law journal, the author, who is also the chairman of the commission and the editor-in-chief of the journal, makes some remarks regarding the state of the studies of maritime law and the law of the sea in Poland.
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Authors and Affiliations

Mirosław H. Koziński
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Abstract

The article regards the long controversial issue of classification institutions undertaking maritime administrative tasks. This issue has recently been regulated by both international (IMO) and European law. The author analyzes to what extent these changes are being implemented into Polish law. The consequences of European Union accession can be lethal for the Polish Ship Register. A great number of executive acts concerning "Polish classification institutions" will have to be changed quickly. Although the Polish Ship Register is not recognized by the European Commission, Poland has already applied for such recognition. However, potential recognition of this body will be effective in Poland only.
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Dorota Lost-Siemińska
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Abstract

The author analyzes the role of classification institutions in the system of maritime safety. The legislation of November 9, 2000 on maritime safety assigns well-described roles to classification institutions, among others. This is not new legislation since one chapter of the maritime code of 1961 addressed the issue of sea vessel safety, as did an even earlier Polish Republic presidential order of 1930. In this area, Polish maritime law complies with European law, especially with regard to Council Directive No. 94/57/WE of November 22, 1994. The executive order to art. 15, act 1, pt. 2 in the act on maritime saf ety was constructed to correspond to this directive. This refers to the order of November 20, 2002 regarding the procedure to grant approval for classification institutions to undertake the technical supervision of vessels and the types and ranges of servicing of sea-going vessels. Vessels cannot be used in maritime shipping if they do not comply with lega[ requirements regarding their construction, fixed devices, and equipment. The regulation of November 29, 2000 on maritime safety refers to intemational conventions and to the rules in this act. The controversial issue is if the minister responsible for issues regarding the maritime industry can legally approve current technical regulations regarding vessel construction, fixed devices, and equipment issued by a Polish classification institution.
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Zbigniew Godecki
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Abstract

The comparative study of legislation from two different legal systems is difficult. Further complications are encountered when the legislation in question comes from such different legal systems as common law and continental law. The author analyzes and compares the regulations of the English Merchant Shipping Act from 1995 with the Polish maritime code and the Jour main marine acts: ·on Polish marine areas and maritime administration; on maritime safety; on the prevention of marine pollution by vessels; on employment on merchant vessels. These acts are discussed from the position of the responsibility of the merchant vessel captain who violates them. One of the basie features of the English criminal code is that every punishable act is regarded in a strict sense as a crime. English law does not recognize the division into crimes and offences. The classification of all punishable acts as crimes in the strict sense me ans that all of them f all within the jurisdiction of the common criminal courts. The author analyzes crimes against vessel nationality, the flag, and the credibility of documents. Violations in regulations regarding saf ety are also addressed.
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Authors and Affiliations

Cezary Łuczywek
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Abstract

The phenomenon of protectionism in the international merchant marine has a long history. The USA is one of severa/ countries that has, for many years, supported its national merchant fleet using various means. The author presents the history of protectionist US merchant marine legislation, beginning with President Washington and the first American Congress. The outline of these practices in the USA demonstrates that legislative acts regarding cargo provisions have the longest history. The Merchant Marine Act of 1936 played a fundamental role in the development of the financial aid system for the US merchant fleet. Additionally, tax deductions designed to stimulate investment were available to ship owners. US federal government loan guarantees for American ship owners are one of the most universal forms of indirect support for the private merchant fleet. Other legislative means for supporting the national merchant fleet include war insurance, special arrangements, and the financing of maritime schools. The measures taken to support the interests of its own fleet have not proven to be effective. The tonnage of the fleet registered under the American flag has not increased significantly.
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Authors and Affiliations

Tadeusz Szczepaniak
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This is the first article in the Polish literature dedicated to this topie of increasing interest. Currently, the bill of lading is not regarded as a valuable document by the 200 large st loaders. The speed of transport also means that the bill of lading is useless and has been replaced by maritime cargo letters.
The re remain, however, certain areas of trade in which the bill of lading is a necessary document. Therefore, steps have been taken to computerize its issue and trans/ er. It is uncertain if the Hague and Hague-Visby Rules apply to the electronic bills of lading. The Hamburg Rules pennit an electronic signature on bills of lading, provided that this is not in contradiction with the law of the country in which the bill of lading is issued.
In order to ensure that the use of the electronic bill of lading will not be questioned in international trade, it must be clearly stated in an international convention. In 2000, the CMI presented UNCITRAL with a propos al f or a new convention on maritime cargo transport, with the electronic documentation of transport rules, including electronic bills of lading. Work on this convention is in progress.
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Maria Dragun-Gertner
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Until recently, the bare-boat charter agreement, which is referred to in the doctrine as vessel lease, occurred rather sporadically. Thus, in the maritime laws of many countries, including Poland, the institution of vessel lease does not exist. In this instance, these types of agreements are subject to civil law regarding leases. The vessel lease agreement states that the party leasing the vessel is obliged to deliver it to the chartering party without a crew or equipment ( or possibly with a partia[ crew and equipment) to use for the period of time stated in the agreement and that the chartering party is obliged to pay the agreed charter fee. The parties to the agreement are described using the nomenclature from lease agreements, while the period of time is described according to charter agreements. This places bare-boat charters somewhere between these two types of agreements. The author indicates that the importance of vessel lease agreements is on the rise. This should be reflected in the legal regulations regarding this type of agreement in the Maritime Code.
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Authors and Affiliations

Magdalena Czaplińska
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This article discusses two very controversial issues in shipping practices, namely, demurrage and detention. The author analyzes the question of whether the regulations in the maritime law regarding demurrage and detention can be applied to containers, which are neither vessels nor even integral parts of them. It is impossible to accept that the fee collected by maritime shippers for the detention of containers by the recipients for a period exceeding that which is the reasonable time of landing could be of a lease fee character. On the contrary, the name, the character of the service, the aim in which the shippers reserve their right to it, as well as the means of its calculation and collection indicate that, in generał, it is compensation or a mutually agreed penalty.
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Krzysztof Kochanowski
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Abstract

The author writes about the diff erences in maritime insurance that exist to the present day. The new maritime code of the Russian Federation was implemented on May 1, 1999. It consists of 430 articles in 27 chapters. The XV chapter of the code consists of 38 articles and it regulates maritime insurance agreement issues. The subject of maritime insurance can include any financial business concemed with the merchant marine or compensation for work and other sums of money for vessel captains and crews, including repatriation and reinsurance. Unlike in Polish maritime code, the agreement for maritime insurance under Russian Federation law must be in writing. By definition, a maritime insurance agreement names not only the insurer and the party who is taking out the insurance but it also names the person for whom the agreement was ente red into. In generał, the policy only covers insured cargo.
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Authors and Affiliations

Zenon Kamiński
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Abstract

On 16 November 2004 intemational community will commemorate the tenth anniversary of the entry into force of the Montego Bay Convention. The number of parties to the Convention currently stands at 145. This represents considerable progress towards universality. Ten years after its entry into force state practice has shown a strong adherence to its principles and norms. The Convention established the International Seabed Authority, the International Tribunal of the Law of the Sea and the Commission on the Limits of the Continental Shelf. The law of the sea is at present challenged by new urgent and complex problems such as terrorism, piracy, organized crime, overfishing and degradation of the marine environment. lt articulates the need of evolution and accomodation to the changing realities and interests. Nevertheless, whatever emerging issues the intemational community will face in the future, the Convention will provide the necessary legal framework for the steady evolution of the law of the sea.
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Janusz Symonides
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Abstract

The delimitation requirements for establishing archipelagic waters are relatively elastic. However, some island States, which could also be considered archipelag ie States are prevented from drawing straight archipelag ie baselines because they /all meet the rule that the ratio of water to land is between I to I and9tol.
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Andrzej Straburzyński
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The issue of free passage through territorial waters has been the subject of both doctrinal and practical interest for many years. One agreement conceming this issue is STRANG 1100 - Principles for NATO naval vessel visits to NATO and non-NATO ports. This agreement carne into force for NATO member states in 1995. STRANG divides visits into official, informal, and working categories. The official visit is one that occurs upon invitation by one of the parties or is connected to an important state or intemational celebration, provided that the second party agrees to categorize the visit as official. The informal visit is a friendly visit in the port of one of the parties and is not concemed with any official celebrations. The working visit takes place during NATO maneuvers, during which navy vessels require repairs, supplies, and the transport of people, fuel, and other materials. In addition to the principles described above, STRANG regulates certain issues of protocol, issues concemed with the agreement coming into force and obligations imposed by its provisions, restrictions to the agreement and the inf ormation forms which are addressed to the country hosting the visit. The author also discusses the Polish rules that are significant in light of the topie addressed.
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Dariusz R. Bugajski
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For many years, the Caspian Sea was absent from the intemational stage and out of the reach of superpower competition. However, with the disintegration of the Soviet Union this sea has unexpectedly became another hot spot in the Caucasus and Central Asia. It is impossible to predict what the /egal status or the regime of the Caspian Sea will ultimately be. Currently, the tendency for bilateral agreements has been forced by the necessity of regional economical development. It was out of the question for all sides to wait for a global agreement for all Caspian Sea countries. Partia/ regulations created by previously ruling countries regarding the /egal status of this basin cannot hinder future agreements on this issue between countries. Bearing in mind the specific character of the Caspian Sea, all parties should be allowed significant freedom in regulating the new status of this basin. The re is disagreement regarding the future /egal status of the Caspian Sea among representatives of intemational public law.
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Authors and Affiliations

Barbara Janusz

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