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According to the 1952 Arrest Convention, the particular ship, in respect of which the maritime claim arose, may not be arrested when the registered owner of the ship is not liable for that maritime claim and the claim is not secured by maritime lien.
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This paper considers the application of provisions of the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the Rotterdam Rules). The scope of coverage issues go to the heart of the new Convention. This article highlights the major topics relating to the scope of coverage. All aspects of this key issue are examined here: the general scope of application; criteria that must be satisfied for the Convention to be applied; types of transactions that the Convention might govern; application to certain parties. Some of these questions have been particularly controversial. Moreover, this paper addresses the circumstances under which the Rotterdam Rules give way to other conventions. The author discusses issues that may arise from the fact that the Convention will cover both the inward and the outward carriage. It further considers specific exclusions from the Convention. Differences between the Rotterdam Rules and the international legislation in force are pointed out. One of the most significant changes introduced by the Rotterdam Rules to the existing law is the expansion of its scope of coverage to include the door-to-door transport. The Convention covers both the inbound and the outbound international shipments to or from a Contracting State. The Convention applies to contracts in both the liner and the non-liner trades, but not to charter-parties and other contracts for the use of a ship or of any space thereon. Volume contract, to which the Convention applies, may provide for greater or lesser obligations and liabilities than those imposed by the Rotterdam Rules.
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The Rotterdam Rules, adopted by UNCITRAL in 2008, address a number of issues that have not been regulated by previous international conventions, such as the delivery of goods and the right of control. The ambitious and innovative approach of the Rotterdam Rules has attracted much international debate. This article aims at contributing to this debate by discussing the provisions related to the delivery of goods. The main focus is on Article 47(2), one of the most controversial provisions of the Rules. The article analyses in detail this legislative provision, its rationale and possible impact on the law governing the carriage of goods and international sales law.
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In this article the author reviews the solutions of the UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, adopted on December 11, 2008 and open for signature in Rotterdam on September 23, 2009, known as the Rotterdam Rules. Following the introductory analysis of the position of the law prior to the adoption of the new Convention, the author ascertains that in the matter of the international regulations of sea carriage, subsequent to the Hague, Hague/Visby and Hamburg regimes, which regulated the questions of the carrier’s liability for the goods received for carriage, the new Convention regulates for the first time the contract for sea carriage wholly, including additional regulation regarding the parts of the voyage preceding or following sea carriage. The author reviews the content of the Rotterdam Rules on the whole. In this context, special attention is given to numerous new legal subjects, legal institutions, documents, and solutions supported by the Convention, always having in mind that the presentation should be duly supported and critically perceived in the light of the present position of the legal theory, business practice and existing court decisions. In the conclusion of this article, the author presents and confronts opposite opinions stated in the literature; takes his own position towards such opinions and the solutions contained in the Convention; and considers possible solutions for passing an acceptable and rational liability regime for the goods received for carriage at the international level in future.
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The authors deal with the dilemma whether the competent body for determining fees for expropriated property that becomes public demesne – maritime demesne is the court or administrative authority. In conclusion, they present their approach to solving the issue.
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A car crane was used to transfer a motor yacht from land into the sea. The manoeuvre took place in the area envisaged for putting vessels into the sea. At the moment the yacht was lifted from the shore and put into the sea, a crane jib fell onto the yacht and destroyed it completely. The claimants (plaintiffs) filed a claim against the insurer on the bases of the motor liability compulsory insurance contract concluded by the owner of the car crane, which contract covers the owner's liability for damage to or loss of third parties' property caused by the motor vehicle. The insurance company is not liable for damage under the motor liability compulsory insurance contract, because at the time of the loss event the car crane was not driving on a public road or another area intended for traffic. The damage occurred through the use of the car crane as a tool machine, and the second defendant (car crane owner) had no insurance contract in place for the use of the car crane in question, which would cover liability for damage and/or loss occurring through the use of the car crane as a tool machine.
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It was established that the plaintiff fell and injured himself while descending the stairs on the ship deck in the ordinary course of his professional duties, for which he had been formally educated and additionally trained. In respect of this loss event the court concluded that there was no fault on the part of the ship owner because the ship owner had provided safe working conditions and adequate protective equipment to the plaintiff as a crew member. Hence, accidental loss is the solely risk of the injured party in this case.
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A sub-charter contract not drawn in writing and concluded without a written consent of the owner shall have no legal effect.
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The maritime agent undertakes, for and on behalf of the principal, to perform services. If the maritime agent does not expressly declare that he is acting in the capacity of a maritime agent, it shall be deemed, in respect of the person in good faith, that the maritime agent is acting in his own name.
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The plaintiff travelled by the defendant's ship to an island where he worked as an employee of the defendant. During the voyage he sustained personal injuries. The plaintiff was on noard the ship in the capacity of a passenger because neither was his workplace on board the ship nor was he a crew member. Therefore, the settling of a dispute related to the loss event, in which the plaintiff sustained bodily injuries during transportation to work, comes under the jurisdiction of the Municipal Court.
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The main aim of this paper is to offer, describe and explain the solutions representing the proposal of the new legal regime of the recovery and removal of wrecks and sunken objects. First, the authors present the genesis of legal sources in the history and the earlier national legislation studying all the relevant issues and all the provisions of the positive Maritime Code dealing with this matter. The meaning and the use of particular terms are analyzed, as well as the systematization of the respective legal matter within the structure of the Code, and the contents and effect of individual provisions. The authors question the level of compliance of the positive Maritime Code with modern international legal standards in this field. It is pointed out that some major problems may arise due to the inadequacy of the positive provisions of the Maritime Code and the inexistence of a systematic regulation dealing with all the relevant issues that can arise in practice. Within the current research, a comparative analysis of the respective legal institutes in some other national laws is carried out. The proposed legal solutions are complete and systematic, as they tackle all the relevant issues. Regulating the respective legal institutes by special legal provisions will provide for a higher level of legal security and enhance the safety of navigation in the Adriatic, the protection of marine environment and the natural resources, and other related interests.
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Concession contract is a common legal act pursuant to which private undertakings are employed in European sea ports. Award of concession contracts is based on general legal principles of the Treaty of the Functioning of the European Union, such as transparency, equal treatment, free competition and non-discrimination. However, those contracts are presently subject to a limited number of European Union secondary-law provisions on public procurement. This situation has caused the occurrence of legal uncertainty for economic operators and barriers for their entrance into the concession market of the European Union. This gives rise to potentially serious distortions of the internal market of the European Union, such as direct awards of concessions without competition, with associated risks of national favouritism, fraud and corruption. This effectively means that EU citizens may not benefit from quality services at best prices. Therefore, on 20 December 2011, the European Commission brought a Proposal for a Directive on the award of concession contracts, which was sent to the European Parliament and the Council for adoption. The Proposal regulates the procedure for the award of concessions in the European Union and provides for an extension of the scope of application of Remedies Directives 89/665/EEC and 92/13/EEC in public procurement procedures on all kinds of concessions, including service concessions, for instance concessions for providing of port services.
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The bareboat charter shall be concluded in writing. A bareboat charter not concluded in writing shall have no legal effect. The lessee may subcharter the ship solely with the written consent of the lessor. This paper analyses all legal issues connected with the form of the bareboat charter contract and subcharter contract. The provisions of the Maritime Code on the bareboat charter are analyzed and discussed in detail, as are other subsidiary sources of the valid domestic law, and in particular the provisions of the Law on Obligations dealing with lease, and its general provisions.
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An Amendment of the 1996 LLMC Protocol to the Convention on Limitation of Liability for Maritime Claims, 1976 was adopted at the ninety-ninth session of the IMO Legal Committee held in London 16 - 19 April 2012, increasing the global limits of liability related to Article 6(1)(a) and 6(1)(b) of 1976 LLMC by 51 % on the present limits set out in Article 3 of the 1996 LLMC Protocol. Limits set out in Article 7 of LLMC 1976 have remained unchanged. In accordance with the Article 8(8) of the 1996 LLMC Protocol, these amendments shall enter into force on 8 June 2015. The paper analyses the reasons that have led to the increase of the limits of liability and to the justification of such an increase, taking into account that in only 1.34 % of incidents damages have exceeded current limits of liability established by the 1996 Protocol. It analyses the legal and economic consequences of the increase of the limits of liability and its immediate impact on other international conventions relying on the global limitation of liability, such as the 2001 Bunker Convention and the 2007 Convention on the Removal of Wrecks. It warns, however, that the tendency leading to excessive limits of liability may cause a loss of interest of states to ratify the 1996 Protocol and thus have a negative impact on the unification of law in relation to this matter. Therefore, this paper discusses some of the possible solutions that would provide fair compensation for victims, but would not jeopardise the unification efforts and the purpose of the limitation of liability.
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Security measures, in various forms, have found their place in a number of legal disciplines, including the maritime procedural law. One of the security measures is the temporary measure of ship arrest, which will be the subject-matter of this paper. This security measure is undoubtedly of great importance and it has perhaps the greatest value in relation to other security measures available to the proposer of security measures, since it precedes the taking of all other temporary measures. Attention will be focused on the procedure of determining the measure to arrest the ship and on the problems that may arise or have already arisen in the determination of case law. Relevant legislative regulation of the issue through the history and legal sources governing this issue will be briefly presented at the beginning of the paper. In the central part of the paper the procedural elements of the institute will be discussed, bearing in mind the fact that the sources of law governing the institute, although they contain procedural provisions, do not regulate the whole process of securing the temporary measure of ship arrest, which complicates treatment and enforcement and makes the procedure extremely complex. Namely, the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Vessels (Official Gazette - International Treaties, No. 1/92 - hereinafter: The Convention of 1952), from the standpoint of procedural provisions, does not regulate all areas, but it refers to the application of the law of the state in which ship arrest was required (lex fori). In the Republic of Croatia this is regulated by the Maritime Code (Official Gazette, Nos 181/04, 76/07, 146/08 and 61/11), which also contains blanket provisions (Art. 841, paras 3. and 5.) according to which the provisions of the Enforcement Act should be applied (Official Gazette, Nos 57/96, 29/99, 42/00, 173/03, 194/03, 151/04, 88/05, 121/05 and 67/08). Article 19, paragraph 1 of the Enforcement Act indicates the corresponding application of the Civil Procedure Act (Official Gazette, Nos 53/91, 91/92, 58/93, 112/99, 88/01, 117/03, 88/05, 02/07, 84/08, 123/08 and 57/11). The final part of the paper, in addition to the analysis of the relevant characteristics of the Institute, points out problems and offers possible solutions. Some of these solutions follow those that had been proposed in the International Convention on the Arrest of Ships (Geneva 1999), which entered into force on 24 September 2011 (the Republic of Croatia has not ratified it).
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Institute Cargo Clauses of 2009 are amended Institute Cargo Clauses, 1982. The former clauses needed revision for several reasons: the emergence of new risks, the need of adapting the cargo insurance terms to changes in modern transportation system and the need to update the language and terminology thereof. The new Clauses introduce a whole series of solutions that modernized those provided by Marine Insurance Act, 1906 and are presented as Clauses for the new millennium. The most significant changes brought by Institute Cargo Clauses, 2009 are those related to the insurance period clauses. The traditional ''warehouse to warehouse'' concept of the insurance period proved to be inappropriate for the contemporary needs and was thus replaced by the ''from the shelf to unloading'' concept of insurance. Insurance cover now includes loading and/or unloading operations inside the warehouse. The implemented changes to the insurance period clauses are undoubtedly in the interest of the insured and contribute to a successful international trade operation. New clauses may be assessed as enhanced in respect to the I.C.C., 1982. It is, therefore, expected that they will be adopted in the global and domestic insurance practices.
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The authors elaborate on issues of conceptual nature related to the institute of wreck removal. Following a detailed analysis and an interpretation of the relevant terminology, the institutes of recovery of sunken objects, wreck removal and the law of finds are studied comparatively. The elements of congruency, similarities and differences among respective institutes are extracted and analyzed in detail, with a special accent on the key elements crucial for the distinctiveness of each of the institutes. The problems present in the legal regulation of wreck removal in the domestic positive law are tackled. The authors point at the deficiencies in the implementation of the Nairobi Wreck Removal Convention 2007 into the national legislation. The conclusion is that regulating wreck removal within the provisions of the Maritime Code applicable to salvage represents an erroneous approach of the legislator. The authors emphasize that the inconsistent use of relevant terminology in the national legislation and the absence of a number of key provisions regarding respective subject matters lead to unnecessary terminological problems and to major legal difficulties.
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The concept of the cause of loss implies not only the immediate cause, but also all causes preceding it. In this particular case, an established improper operation of a vessel was the trigger for a series of events and thus had a predominant contribution to the loss occurrence.
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In assessing indemnity levels, commercial courts have accepted the benchmark criteria of the Supreme Court. These criteria should be applied to crew members as well.
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Carriage of goods by sea, as a special form of locatio-conductio operis faciendi contract, was particularly interesting in Roman law in the social circumstances related to the period after the Punic wars. It was the period of expasion of the Roman state, characterized by the development of maritime trade, which called for rapid and effective conclusion of contracts in legal affairs. Considering the growth of maritime trade, there was a need to introduce relevant legal instruments which would help meet the increasingly demanding trade of goods. This led to the creation of contract of carriage of goods by sea which was, in Roman law, a specific form of locatio-conductio, specifically locatioconductio operis faciendi. In order to conclude and ensure the validity of this contract, in addition to the agreement between the contracting parties, it was also necessary to fulfill the conditions regarding the subject matter of the contract. The subject matter of this contract was not work itself or workforce, but the final result of work (opus), i.e. to transport goods from one place to another, and a fee (merces) paid for such services.
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