Humanities and Social Sciences

Prawo Morskie

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Prawo Morskie | 2001 | No XV |

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Abstract

The author analyses the main legal features, tendencies and determinants of European Community maritime policy in particular periods of the Community's development. It also analyses the principles of the European Union's "new maritime strategy." This policy is characterised by neoliberalism with certain protectionist elements. The essay concentrates on selected issues connected with legal regulation in the areas of maritime transport, of ports and of fishing. It also presents the international and international-legal determinants ofCommunity maritime policy. It further sketches the leading principles of the new, so-called northern dimension of EU maritime policy which takes Baltic-related issues into consideration. The essay also presents selected issues relating to Polish interests in fishing, including those involved in Poland's accession negotiations with the European Union.
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Authors and Affiliations

Leonard Łukaszuk
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Abstract

Piracy is as old as sea-faring itself. For centuries, it accompanied sea-faring on all the navigable seas of the world. Piracy and pirates have lasted to the present day and now constitute a constantly recurring threat. At present pirates operate in straits, in territorial waters, in roadsteads and in sea-ports. A clear majority of states with coastlines combats piracy in their territorial waters with naval forces, with border protection units or with other legally constituted units. The author considers the possibility of using international naval forces to combat piracy in international waters (on the high seas) in the context of the contents of art. 110 and 111 of the Convention on the Law of the Sea of 1982. The first speaks of the right of inspection and the second of the right of pursuit. This convention provides real possibilities of combating piracy by international naval forces on the high seas. However, the situation is different in relation to combating piracy in coastal waters. The combating of piracy in such waters is impossible until separate agreements can be reached between interested states. One way of legally strengthening the combating of piracy by international armed forces may be the modification of the 1982 Convention on the Law of the Sea, and the concluding of bi-lateral and multi-lateral agreements among states in the regions where there is a high frequency of pirate attacks.
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Andrzej Makowski
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Abstract

The author stresses that the co-operation of states in the Baltic Region is a matter of European importance as a consequence of the multiplicity of connections in the region. In the post-war history of Europe, two processes can be observed. These are integration and regionalisation. One can define the Baltic Sea as the "backbone of Baltic Europe." There are various formulations of the concept of the Baltic Region. The basic aims of "Baltic Europe" are development, balance between economic development and the natural environment, freedom and subsidiarity, and solidarity. The Helsinki Commission was created on the basis of the Helsinki Convention of 1992, and it is the most institutionalised form of co-operation among the states of the Baltic Region. The Fishing Commission was created by the Gdańsk Convention of 1973. Agenda 21 provides guidelines for the development of industry, transport and farming etc. The Conference of Transport Ministers of the States of the Baltic Region functions on a ministerial level. The article contains a discussion of other institutional forms of co-operation among the states of the Baltic Region.
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Authors and Affiliations

Dorota Pyć
ORCID: ORCID
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Abstract

The right of pursuit belongs among the recognised exceptions to the principle of the exclusive jurisdiction of the state flag on the high seas. The development of the right of pursuit was part of an attempt to secure the effective protection of the interests of coastal states outside their own jurisdictions. The author discusses the right of pursuit, taking into consideration the decisions of the United Nations Convention on the Law of the Sea from 1982. The decision as to whether the reasons for undertaking pursuit are genuinely well-founded belongs, by the nature of things, to the coastal state. The right of pursuit can only be implemented by naval vessels or military aircraft, or by other sea vessels or aircraft clearly marked and readily identifiable as being in government service and entitled to undertake pursuit. Polish legislation relating to the right of pursuit is in accordance with the international legal norms that apply to this matter. In particular, this applies to the legislation's accordance with the decisions of the U.N. Convention on the Law of the Sea (1982), which was ratified by Poland in 1988.
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Authors and Affiliations

Dorota Marcinkowska
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Abstract

The inspiration for writing this article was Poland's renunciation of the Brussels Conventions on civil liability for damage caused by oil pollution from 1969 (CLC) and on establishing an International Fund for Compensation for Damage Caused by Oil Pollution from 1971 (FUND), and her ratification of the new versions of these conventions from 1992. This coincided with legislative work on the new Polish maritime code and the passing of the legislation of 14 April 2000 concerning international treaties. In the first part of the essay the author considers the certain disintegration of the international system of civil liability for damage caused by oil pollution, a disintegration connected with a series of modifications of the CLC and FUND conventions. Especially germane are the consequences of the change in the international treaties that apply in Poland in connection with the specific method of their introduction into the Maritime Code, a method which is defined as "incorporation." The author suggests that urgent changes are necessary in the content of the Maritime Code. The lack of these may cause difficulties in applying the principles of the CLC and FUND conventions in Polish law. The second part of the article discusses several consequences of introducing the recent legislation on international treaties in maritime law. Inter alia, it discusses the question of publishing regulations of international origin. Especial attention is paid to difficulties connected with the difficulty of introducing resolutions of international organisations into national law, resolutions that change the content of international conventions on the principle of tacit acceptance. The author draws attention to the fact the new CLC and FUND conventions from 1992 have also adopted the tacit acceptance formula for changes. This certainly constitutes a risky precedence in international civil-law legislation hitherto.
The author proposes a solution that will permit the adaptation of new regulations concerning international agreements to the resolutions of international organisations, changing and supplementing the content of international agreements. He also suggests the abandonment of so-called incorporational clauses in Polish maritime law.
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Authors and Affiliations

Mirosław H. Koziński
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Abstract

In her introduction, the author points to the institution of a global limitation of liability relating to maritime claims for damage caused by oil pollution at sea. Compensation cannot be greater than the equivalent of a sum calculated on the basis of the tonnage of the vessel involved. This maximum sum is not always sufficient to cover all claims. After the kind of accident that the tanker "Torrey Canyon" suffered in 1967, the international community understood that the traditional limitation of liability on the part of the owners of the vessel made it impossible to cover the cost of the enormous damage which a tanker can cause if it is involved in an accident at sea. The convention on civil liability for damage caused by oil pollution at sea (CLC), which was concluded in 1969, establishes that the owner of the vessel is responsible for damage done on the basis ofrisk. The convention introduced a limit of that liability, but the owner lost his right to that limit if the damage was the result of his culpable actions. Under those circumstances his responsibility became unlimited. A protocol of 1992 supplemented the CLC Convention, as did the Convention of 1971 which created the Compensation Fund for Damage Caused by Oil Pollution. The USA recognised that a ratification of the CLC Convention does not provide sufficient protection for the environment, and, in connection with this, the US Congress passed the Oil Pollution Act (OPA) in 1990. This legislation established the Compensation Fund for Oil Damage. Responsibility for damage was linked with the principle of risk. Higher limits of responsibility were accepted than in the CLC Convention, and it is easy to lose the privilege of limitation of liability.
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Authors and Affiliations

Małgorzata A. Nesterowicz
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Abstract

The author of the article considers that the legislation of 20 December 1996 relating to ports and maritime landing stages regulates three groups of issues. The first chapter of the legislation is structural; the two remaining chapters regulate legal relations. The article analyses the regulations contained in chapter three of the legislation, and especially art. 8 which entitles the entity managing ports of fundamental importance for the national economy "to fix and collect port charges." The article presents the course of the case between the Managing Board of the Port of Gdańsk S.A. and the Northern Port Sp. z o. o. The case was heard before the District Court in Gdańsk (Doc. Sig. IX GC 1819/99). The subject of the claim was the port charges levied on the owners of loading equipment.
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Piotr Lewandowski
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Abstract

In stages, based on the law originally constituted by the founding treaty of the European Community, competition policy covered all spheres of maritime activity: sea-faring activities; the exploitation of ports; ship building; sea fishing. Competition policy has a prominent place in the economic perspective sketched out by the creators of the Treaty of Rome. Competition law has to serve the building of a single market, in which conditions are to be analogical to those within a national market. From the point of view of competition rules, the sphere ofmaritime navigation should be normalised in the same manner as every other sphere of economic activity. Community norms of competition law addressed to firms have three basic elements: a ban on anticompetition agreements; a ban on abuse of a dominant market position; and an initial regulation of concentration of firms. The competition rules in the area of maritime navigation derive simply from the general principles relating to competition addressed to firms. The regulation of the concentration of firms has as its aim - based on research into the development of market structure - the prevention of the emergence in the market of the kinds of configuration of entities which could hinder effective competition.
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Authors and Affiliations

Iwona Zużewicz
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Abstract

The author of the article sets out the view of Jan Łopuski, who considers that the duty imposed by the captain of a ship to provide help to people in danger at sea can be seen to be connected with Christian values and the love of one's neighbour. He does not, however, agree with this view, and rather holds to what Stanisław Matysik said on the subject. He maintained that the duty of saving life at sea is a result of"general human solidarity." The axiology of maritime law gives rise to many questions. Maritime legislation can draw on the achievements of general axiology and oflegal studies in general. The study ofmaritime law has not assembled a language of ethical or ethical-moral norms. The community of seafarers does not exist as a type of social entity. By the same token, there do not exist ethical or moral norms that could derive from it and be realised in maritime law. It is necessary to introduce conceptual and linguistic order into the area of maritime law. Ethics can create laws, but the implementation of everything that is an ethical norm cannot be the task of the maritime legal order.
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Authors and Affiliations

Zbigniew Godecki
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Abstract

An international agreement, as a source of international law, indicates an area of international obligations, and the assent of a state to be bound by its resolutions is expressed through ratification, confirmation, acceptance and signing. The place of the international convention in the internal legal order of the state is defined by the Constitution of the Polish Republic of I 997. A second path is to apply the legislative technique of the Polish Maritime Code of 1961. The Constitution establishes that a ratified international agreement, after its announcement in the Dziennik Ustaw (Legislative Diary), is a part of the national legal order and is applied directly, unless its application is dependent on the promulgation of a law. An international agreement, ratified by previous acceptance expressed in a law, has precedence over the law, if the law cannot be reconciled with the agreement. The Maritime Code of 1961 establishes that its regulations are not applied if an international agreement to which the Polish Republic is a party determines otherwise. The above bears witness to the general acceptance of the principle of the priority of international agreements over national law. The article contains a listing of the state of ratification of international "maritime" conventions up to 31 July 2000.
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Authors and Affiliations

Dorota Pyć
ORCID: ORCID

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