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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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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