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The reform of the Italian Yachting Code

Author(s): Alberto Pasino / Language(s): English Issue: 172/2018

The purpose of this paper is to address the legislative reform of the recreational boating legislation currently pending in Italy (Law 167/2015, which has delegated the power to reform the Yachting Code to the Italian Government) with a specific focus on the relationship between the Yachting Code and the Navigation Code. The issue will be addressed through an analysis of the history of the relationship between the rules governing recreational boating and the general navigation legislation in Italy. Starting with an analysis of the first few rules of the Navigation Code devoted to recreational boating, which had been regulated together with the forms of operation of the ship for economic purposes, the discussion will then review the contents of Law 50/1971 (s.c. ‘’piccolo codice della nautica da diporto’’), which led to the first division between recreational boating and general navigation legislation.Law 172/2003 – a piece of legislation which was intended to reorganize and boost recreational boating and nautical tourism – will also be mentioned, considering the legislator’s attempt to make the rules governing recreational boating fully autonomous from the general maritime legislation. Law 171/2005 (s.c. ‘’codice della nautica da diporto’’) will then be briefly reviewed, with particular emphasis on the legislator’s choice to recognize that recreational boating rules have a special nature in relation to general navigation legislation, but are not fully autonomous from it. The paper will finally focus on the choice made by the legislator through Law 167/2015 – an act which delegates the Government to reform the Yachting Code – which confirms the approach chosen by the ‘’codice della nautica da diporto’’,and on the consequences of such choice on legal institutions such as the shipowner’s limitation of liability.

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The classification of pleasure craft in the Italian legal system : Just a matter of definition or something more?

Author(s): Massimiliano Musi / Language(s): English Issue: 172/2018

The need to regulate the phenomenon of nautical tourism, strongly felt at least in the Mediterranean area, has led the Italian legislator to provide a special framework for pleasure craft different from the general discipline of the Italian Navigation Code.The provisions contained in the Italian Sailing Code (the so called ‘’Codice della Nautica da Diporto’’) offer a legal classification of craft destined to pleasure navigation(distinguishing, depending on the length, between ‘’unità da diporto’’, ‘’naveda diporto’’, ‘’imbarcazione da diporto’’, ‘’natante da diporto’’), thereby specifying the scope of the definition of ‘’ship’’ laid down in Article 136 of the Italian Navigation Code.The latter, indeed, in its first paragraph, after including any construction destined to carriage on water, also for towage or fishing purposes, refers to craft intended for pleasure sailing or other purposes as well.Moreover, the adoption of EU directives, aimed at harmonizing the laws, regulations and administrative provisions of the Member States and the characteristics of pleasure craft, has extended the definition of ‘’watercraft’’ to new categories and purposes. Therefore, the regulatory framework, already repeatedly revised, is still evolving.The article will focus on the analysis of the current Italian and European regulatory framework, on the existing discrimen between merchant vessels and pleasure craft and on the identification of the consequences related to this distinction, with particular regard to the relevant requirements and limits laid down for the category of pleasure craft.

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Contracts used for the charter or lease of pleasure vessels in pleasure navigation : An Italian perspective

Author(s): Elena Orrù / Language(s): English Issue: 172/2018

The Italian Navigation Code has transposed the practices developed at international level, in particular in international contracts for the ‘’locazione’’ and‘’noleggio’’ of ships, distinguishing between the ship lease, from the one side, and the charter, from the other. The latter, in particular, consists of voyage charter and time charter. However, the Italian discipline differs in several respects from the contract types developed at international level.As for pleasure vessels, a specific regime lacked until the Law of 11 February1971, No 50. The great development of this sector (which was previously considered limited to the use of pleasure vessels only for personal purposes), in particular of the entrepreneurial use of these vessels, furthered the draft and enactment, in2005, of the Pleasure Navigation Code (Law of 18 July 2005, No 171), providing for a more comprehensive regime, however still not covering all the issues and aspects of pleasure navigation.The Code provides for a special regime of the contracts for the lease and charter of pleasure vessels: this article provides a review of the regime of these contracts provided by the Italian Pleasure Navigation Code, with regard also to its relationship with the Navigation Code and the Civil Code. The Code’s provisions are also examined with reference to standard contracts developed at the international level.

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The contracts of construction of yachts and pleasure craft : An Italian perspective on the most relevant legal issues

Author(s): Lorenzo Fabro,Filippo Cassola / Language(s): English Issue: 172/2018

The aim of the article is to provide a general overview of the Italian legislation and practice on the legal topics concerning the contracts of construction of yachts and pleasure craft, including an analysis of the most commonly adopted contractual clauses. After an introduction on the nature of the contract of construction in relation to the discipline of contracts of sale and contracts ‘’for work and materials’’ (contrattodi appalto), the issues of the transfer of title/property and the registration of contracts of construction under the provisions of the Italian Navigation Code will be considered.Furthermore, the certification under Directive no. 94/25/EC as amended by Directive no. 2003/44/EC will be described together with an overview of the main differences compared to the classification of the Registries.An analysis of the possible causes of dispute between buyers and builders will complete the article with some comparative remarks regarding the discipline of the guarantee for defects, the rejection and the termination in the contracts of construction of yachts and vessels.

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Legal status of crew members on pleasure craft and vessels used in nautical tourism

Author(s): Giovanni Marchiafava / Language(s): English Issue: 172/2018

The paper aims at examining the issues related to the legal status of crew members of pleasure craft and vessels used in nautical tourism from an Italian perspective. Firstly, the definition of crew and its composition on pleasure craft and vessels is examined. Additionally, the legal regime of crew members together with the crew on-board documentation, is discussed. Furthermore, the main similarities and dissimilarities of the crew regime according to the type of pleasure craft and vessel and their use, as well as, the on-board services, is dealt with. Finally, the issue related to the legal classification of ‘’guests’’, undertaking complementary on-board services of pleasure craft and vessels is considered.

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Učinak potonuća plovila na vezu na pravni odnos između stranaka ugovora o vezu i čuvanja plovila

Author(s): Adriana Vincenca Padovan,Vesna Skorupan Wolff / Language(s): Croatian Issue: 172/2018

The cases of sinking of pleasure craft whilst on berth in a marina are not often, but statistics show they do occasionally occur, and when this happens, the chances are that the incident will eventually lead to a dispute between the marina operator and the owner of the vessel as to liability for damage or loss caused by such sinking. Besides the obvious damage to the vessel itself, such incident in a marina will inevitably cause expenses for the lifting, removal or recovery of the sunken vessel and potentially even damage to the infrastructure or equipment of the marina, depending on the circumstances of the individual case. From a legal point of view, such incident will have an effect on the contract of berth between the marina operator and the owner, operator or the user of the vessel. The liability arising therefrom will depend on the circumstances of each case, in particular of the cause of such sinking, and it shall be interpreted in accordance with the contract of berth and the applicable national law. The causes of sinking can be various, from the extreme weather conditions to unseaworthiness of the vessel, the inadequacy of the berthing or mooring equipment or infrastructure, flooding, fire, lack of maintenance, a collision within the marina or else. In each individual case, the predominant cause of sinking will have to be determined and depending thereupon the liability of one of the parties to the contract of berth will be established, unless it is proven that the damage was caused by an act of God. The question is also, what the destiny of the contract of berth after such sinking will be, i.e. whether the contract will remain in force or it will automatically end or whether any of the parties will be entitled to rescind or cancel the contract. Such legal consequences will also vary depending on the cause of the sinking and the terms of the contract. Whilst analyzing the effect of the sinking on the berthing contract, the authors look into the incidence of such accidents in the Croatian marinas, the marina operators’ common practices and protocols related thereto and generally the preventive measures that the marina operators usually implement in the interest of the safety of navigation.The analysis includes the issue of potential liabilities of the parties to the contract of berth, and the destiny of the contract following a sinking accident. The paper discusses the various legal consequences of the sinking in the context of the contract of berth in a marina, considering in particular its specific nature and contents as an innominate atypical contract.

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RULES OF INTERPRETATION OF THE BILLS OF LADING IN MARITIME JURISPRUDENCE

Author(s): Tudor Marin / Language(s): English Issue: VIII/2014

Among numerous rules of interpretation used in analysing bills of lading, the following eight rules presented below are frequently encountered in maritime jurisprudence, especially pertinent for bills of lading and applied only if bills of lading are ambiguous. The notion of ambiguity in a contract may be defined as implying the language which is able to provide several meanings when analysed objectively by a person intelligent enough who analysed the context of the whole agreement integrated and who is aware of the customs, practices, usages and terminology as they are understood generally in commerce or particular businesses. Usually courts make efforts for interpreting contracts according to common intention of the contracting parties determined firstly by the key words which they used in the written agreement, read in the context of the contract as a whole and its object in the light of surrounding circumstances and keeping in mind where possible the pertinent customs and commercial usages. Where there entire and complete meaning would lead to a different result from the main object of the contract, the courts of law restrict the meaning of the words, reject words or entire provisions is they are considered to be inconsistent regarding the main purpose of the contract.

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THE BILL OF LADING, TITLE OF VALUE IN INTERNATIONAL CARRIAGE OF GOODS BY SEA

Author(s): Tudor Marin / Language(s): English Issue: VIII/2014

The maritime bill of lading is the most important document of transport of goods by sea, the modern form of it being able to be defined as “a receipt signed by, or on behalf of the carrier and issued to the shipper acknowledging that goods as he described them, have been loaded onboard the ship, to a specific destination or they have been received in the ship owner’s custody for maritime transport , a document, a title of goods, giving the possibility to the consignee to receive goods at destination or to dispose of the goods by endorsement and fractioning of the bill of lading .In the United Nations Convention regarding carriage of goods by sea, (article 1 par. (7)), there is the first definition of the bill of lading in an international judicial document as being a document which makes evidence of a contract of carriage by sea and taking or loading goods by the carrier, by which the carrier takes responsibility to deliver goods in exchange of this document”.

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Cargo Carrier’s Liability in National Maritime Laws – a Comparative Review

Author(s): Patryk Ciok / Language(s): English Issue: 1/2020

The aim of the article is to compare selected national maritime laws, in the area of the cargo carrier’s liability. The author has analyzed the liability regime in the several most important parts of this regime. The connection between the national maritime regulations and the international maritime conventions regulating the carrier’s liability is an important issue. The reason is that the national provisions are often constructed following the example of the international conventions. However, national regulations usually have their legal solutions. This is the reason why the liability regimes which apply to maritime cargo carriers have a lot of differences, even if they have been enacted by states which are parties to the same maritime conventions. In this article, the author attempts to analyze which maritime conventions have had the most significant influence in each maritime law and also to compare each regulation in the selected parts of the liability regime.

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Европски систем за сигурност пловидбе

Author(s): Iris Bjelica Vlajić / Language(s): Serbian Issue: 64/2018

Waterborne transport, other than the importance for the economic development of a particular country or region, has a major impact on the pollution and destruction of the environment, damage to property and the loss of human lives. The great disasters that occurred near the European coast at the end of XX and the early XXI century prompted the EU to start paying more attention to the issue of waterborne transport safety. This paper reviews the most important EU legislation regulating the issue of maritime and inland waterway safety and obligations regarding the education and training of crew members of EU members as well as the third countries whose ships sail into European ports or whose citizens sail on these ships. The need to protect human lives and the environment has led the most important organizations at the global and regional level to cooperate and prevent marine casualties and accidents. The regulations of navigation safety and the conditions for the conduct of navigation have been harmonized by these organizations. Also, the degree of harmonization of domestic law with international standards has been presented.

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ОД НАСЛЕДИВОСТИ ДО НЕНАСЛЕДИВОСТИ ЗАКОНСКЕ ДУЖНОСТИ ИЗДРЖАВАЊА РАЗВЕДЕНОГ СУПРУЖНИКА

Author(s): Ivana Đokić / Language(s): Serbian Issue: 1/2022

In accordance with the family regulations of the Republic of Serbia, the legal duty of support, among other things, ends with the death of the provider. Unlike the Serbian legislator, the legislators in some modern European legal systems have envisaged the inheritability of the legal duty of support, among others, for a divorced spouse. These essentially different approaches to regulating the issue of inheritability of the legal duty to support a divorced spouse, are the subject of the author’s attention. In addition to trying to draw a conclusion regarding which of the mentioned approaches to the legal regulation of the issue of heritability of the legal support duty fulfills entirely or largely the function of post-marital solidarity, the author considers the possibility of redesigning and amending the family and inheritance regulations of the Republic of Serbia.

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О ЗАЈЕДНИЧКОЈ СВОЈИНИ У БРАКУ

Author(s): Slobodan Panov / Language(s): Serbian Issue: 1-3/1998

The reasons for community of property of a husband and wife in Yugoslav law are the same as in other legal systems (the fulfillment of everyday needs in a marriage, the community of rights and obligations of the spouses, the effective protection of conjugal and family harmony, and last but not least, legal and cultural values). To this one may add the examples of alliteration in Family Law (special legal features of the forms of the matrimonial property and the institution of the matrimonial home in comparative law. When referring to the alienation (e.g. sale) of community property in a marriage, the author contests the well-established opinion that it is impossible for one party in a marriage to sell the property that is owned by both parties. First of all, he stresses that there are provisions of Family Law, permitting the division, hence the constitution of quotas (co-owner shares) belonging to each marital party. Sometimes, it may even emerge that some item is jointly owned only in formal terms but in actual fact it belongs to only one party. Moreover, if one party sells an item of property and thereby does not encroach upon the rights of the other party, the sale has full legal effect. Whereas, if that party goes beyond his quota and does encroach upon the rights of the other party, where movables are involved, the buyer may nevertheless acquire the right of ownership a non domino. There are also provisions of the Law of Contracts permitting the sale of an item that is the subject of litigation and the sale of an item belonging to a third party (in this case to the other spouse) which the buyer, also, may acquire, the seller only being liable to his spouse. The author points out that according to the general principles of Private Law, one party may sell his/her part of community property (even before division) or alienate it under the provisions of a contract to supply board and lodging for life (contract to sustenance). Finally, after an analysis of comparative law, he proposes the criteria to solve the problem, of items received by husband and wife de lege ferenda. In this frame it is interesting to note that according to him the donation may enter the community of property of the spouses.

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БРАЧНИ УГОВОР

Author(s): Zoran Ponjavić / Language(s): Serbian Issue: 5/1995

The discussion concerning the legal nature of marriage has been a constant legal problem. The author begins with the generally accepted viewpoint that marriage, in terms of its origin, is a contract. However, marriage is a contract, or is becoming more and more one, also as a permanent state of affairs. Its essence is nothing else but exercising rights and carrying out duties specified in a contract. Considerable increase in number of dispositive legal norms too, by which spouses settle their mutual relations, and corresponding reduction in number of imperative norms (such as agreement about place of residence, about managing the household, etc.) speak in favour of the above viewpoint. Hence, Yugoslav marriage law has effected an evolution, while moving from a relatively rigid social and institutional conception toward the one amounting to a purely personal and contractual relationship. Accepting a divorce with mutual understanding of spouses intensifies in a significant way, in the area of dissolving the marriage, the contractual character of marriage. Marriage is therefore a consensual and formal contract, whose substance is predominantly determined by law. Such a standpoint agrees also with the basic principles of the law of contract, of the principles of freedom of contracting, and of the principle of consensus. Marriage, although a contract, did not lose all of its institutional forms. It remains a basis of family, which has still preserved its traditionally collectivistic and solidarity values - in spite of aggressive individualism.

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НАУЧНО ИСТРАЖИВАЊЕ У ТЕРИТОРИЈАЛНОМ МОРУ У СВЕТЛОСТИ КОНВЕНЦИЈЕ О ПРАВУ МОРА ИЗ 1982. ГОДИНЕ

Author(s): Milenko Kreća / Language(s): Serbian Issue: 1-3/1991

According to the author the solution contained in article 245 of the Convention on the Law of the Sea of 1982 is based on two constitutive elements: (1) the right of scientific research in territorial waters is exclusively a right of the riverine state, and an expression of sovereignty it possesses over such space; and (2) scientific research of the sea in the above respect may be effected only after obtaining an express consent of me riverine state. Since the sovereign power of the riverine state over the territorial waters is subject to restrictions in terms of inoffensive passage of foreign ships, the issue arises as to whether this right consumes also the authority to make some research. The Geneva Convention on Territorial Sea and External Sea Belt (1958) does not directly answer the above question. The correct answer should be related to the reason behind the institute of inoffensive passage. „Order, peace and safety of the riverine state" are permitted limits of effecting the right of inoffensive passage which, in essence, is a concession to international navigation, as the external expression of the genuine need for international cooperation. The author therefor submits that a foreign ship, while sailing through territorial waters could effect only those measurements which are closely connected to functionning of safe navigation. The 1982 Convention is, however, constructed on expressly construed principle of the sovereign right of the riverine state to effect scientific research in its own territorial waters. Is it possible, due to the powers of the riverine atate established ba article 21 (1 ,g) of the Convention, to qualify the passage of a ship effecting research or measuring in the territorial waters as inoffensive - contrary to the provision of article 19 (2, j) of the Convention? According to the author this is not the case of inoffensive passage, but of scientific research in the territorial waters. In other words, the riverine state which does not use the powers from article 21 of the Convention renounces in the specific case only its subjective right to take permitted counter - measures, but it does not infringe upon the nature of such passage as being offensive according to international law.

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Noua reglementare a dreptului maritim în Turcia

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Noua reglementare a dreptului maritim în Turcia

Author(s): Samim Unan,Izzet J Hatem / Language(s): Romanian Issue: 01-02/2012

Prima reglementare a dreptului maritim a fost în epoca otomană. Modelul era Codul napoleonian tradus şi promulgat în parte. După Războiul de independenţă, care a deschis calea către crearea unui nou stat, foarte tânăra Republică turcă, fondată de Ataturk, a realizat o serie de reforme în vederea modernizării dreptului, dreptul comercial încorporând dreptul maritim şi dreptul asigurărilor; modernizarea a avut ca model dreptul german. Primul cod de comerţ al Republicii datează din 1929.

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Drept maritim străin: China şi Japonia

Author(s): Author Not Specified / Language(s): Romanian Issue: 02/2013

1. Maritime Code of the People’s Republic of China (I) 2. Maritime Code of Procedure of the People’s Republic of China (I)

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Codul maritim al Republicii Populare Chineze, partea a II-a

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Codul maritim al Republicii Populare Chineze, partea a II-a

Author(s): Author Not Specified / Language(s): Romanian Issue: 01/2014

The maritime code of the People’s Republic of China – the 2nd part

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OD WOLNOŚCI DO RÓWNOŚCI

Author(s): Rafał Szewczyk / Language(s): Polish Issue: 94/2022

The author, starting with the presentation of the acts of the international law of the sea that are most relevant to the presented subject, describes the evolution of the definition of a landlocked state, and the genesis and development of the freedom of the high seas. The author, by means of the dogmatic and historical analysis of the normative acts, seeks an answer to the question: Can the occurrence of actual inequality lead to inequality or to apparent equality, manifested in normative acts? When examining the above issue in relation to the states’ experience, a thesis has been advanced about the seemingly editorial nature of the freedom of the high seas in the context of its exercise by landlocked states. This may suggest apparent inequality of states observable in the international law. The author argues that, despite some unfavourable codification changes, the landlocked states gain a number of rights that significantly reduce the discriminatory nature of the remaining provisions, and international experience shows that the position of the landlocked states in international relations is strong.

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TOWARDS THE FIRST OFFSHORE WIND ENERGY PLANT

Author(s): Anna Brzezińska-Rawa,Dorota Sylwestrzak / Language(s): English Issue: 95/2022

Offshore wind energy is one of the fastest growing sectors of renewable energy sources in Europe. In Poland, offshore wind energy is one of the most socially acceptable electricity generation technology. Even though Poland has a very favourable wind conditions for the development of both inland and offshore wind energy investments, there’s still no offshore wind energy plant. The investment processes are still ongoing. One of the reasons underlying this is the lack of proper maritime spatial planning. Apart from that, there are several additional complicated regulations on the building permits, that the investor must obtain before the construction works may be started.

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ROLA ORGANIZACJI MIĘDZYNARODOWYCH W ZACHOWANIU ZASOBÓW MORSKICH

Author(s): Rafał Szewczyk / Language(s): Polish Issue: 95/2022

Starting with the presentation of the acts of international maritime law most relevant to the presented subject, the author describes the history of the development of international organizations and their types. Using a dogmatic and historical analysis of normative acts, he tries to find an answer to the question asked – “Is the preservation of the maritime environment a dominant perspective among the operational goals of states?”. While examining the above issue in relation to the formation and activities of international organizations, the thesis was formulated that “the coordination of efforts of international organizations in matters related to maritime resources and their effectiveness should constitute the core of considerations on the subject of the effectiveness of all kinds of international policies”. The author presents the legal and international approach to the definition of maritime resources and describes the effectiveness of the European Union’s Common Fisheries Policy.

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