D. Bolanča, Prometno pravo Republike Hrvatske
Review of: D. Bolanča, Prometno pravo Republike Hrvatske: Split : Pravni fakultet, 2016
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Review of: D. Bolanča, Prometno pravo Republike Hrvatske: Split : Pravni fakultet, 2016
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The fact that some states are bound by the Hague-Visby Rules (or, either the Hague or the Visby Rules, the Protocol 1979 must be take into consideration, too), and the other states are ready to apply the Hamburg Rules, or other combination with the Hague-Visby Rules, does not contribute to the unification of maritime law in the field of carriage of goods, There is the view that the unification of the carriage of goods by the sea would be best promoted by a modern conception of a new convention which would on the basis of past experience serve the interests of both the vessel and the cargo in the optimum way. It is for the purposes of such unification that this paper seeks to find common solutions, i.e. the same or similar legal regulations in both international conventions. However, considerable differences in solutions are also evident, and the Hamburg Rules contain provisions which regulate entirely new relations. The authors expound the work of International Maritime Committee (Comité Maritime International - CMI ) and the various opinions of the National Member Associations. Finally, many various comparatively legal solutions are represented.
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The objectives of a safe management and operation of the ship as imposed by the ISM code being a part of the SOLAS convention are the criteria by which a court or arbitration will assess the responsibility of the shipowner in the implementation of the Code. The shipowner will establish his own regulation system and will be obliged to prove that it is being duly implemented. Any failure in this respect on is part can have an adverse effect upon limitation of liability, the rights from marine insurance contract and general average. The implementation of the ISM Code, combined with the required system of control and written reports, practically increases the possibility of the claimant to challenge the shipowner's right to limitation of liability. Non compliance with the provisions of the ISM Code, alongside with meeting the general prerequisites for a loss of right to limitation (Limitation Convention 1976, article 4) can be taken as a reason for the shipowner's loss of right to limitation of liability. When the shipowner is a legal entity (a company), he can lose the right to limitation of liability provided the damage has been caused with intent or by qualified negligence (as defined in the above mentioned article 4) of the management, its members or high-ranking officials, i.e. senior level executives. The actions and omissions of these persons will be regarded as if committed by the company itself, since they represent the company's ''alter ego''. Qualified negligence of the shipowner's servants or agents regardless of its degree or extent, does not lead to the shipowner losing the right to limitation. The legal effect of the ''Designated person's'' negligence resulting in limitation of liability depends upon the person's position in the hierarchy of the shipping company's management board. According to the ISM Code that person does not belong to the senior level executive staff within the company thereby the qualified negligence of that person alone does not result in losing the right to limitation of liability. This is also valid in cases when the ''Designated person'' has been appointed by the ship management.
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The geographical scope of the 1992 Protocols to the CLC Convention and Fund Convention was extended to the exclusive economic zone. For states which have not established an exclusive economic zone (the coastal states of the Mediterranean Sea) the enlargement of the geographical scope of application of the Conventions only imposes an additional burden on them without there being any benefit in exchange. This is breach of the principle of mutuality on which the regime introduced by Fund was based. Therefore, there is growing concern between the Coastal States of the Mediterranean Sea in relation with the application of the CLC 92 and Fund 92 to an incident which might take place in the Mediterranean Sea beyond the territorial sea. The author discusses possible options to deal with this legal problem, particularly the Italian proposal to sign a Joint Declaration by all the Coastal States of the Mediterranean Sea. At the end author proposes that the Republic of Croatia should, as soon as possible, deposit Unilateral Declaration to the IMO and to the 1992 Fund concerned to interpretate the geographical scope of the 92 Protocols.
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Today, many fleets of ships operate within large shipowning groups controlled by the same parent corporation or holding company. Each vessel in such fleet is legally owned by (i.e. registered in the name of) a separate one ship company. None of these companies is the registered owner of any of the other vessels in the fleet but all of them have the same main shareholder (parent company). The general rule of the company law is that shareholders are not personally liable for the obligations of the company. Considering that rule, the use of above described form of shipping organization has provided a parent company with a presumptive shield from liability for the debts of it's subsidiaries - one ship companies. This paper deals with the cases in shipping practice related to the abuse of shareholder's ''non-liability'' principle. By analyzing domestic and foreign legislative and judicial practice, the author shows the modalities and consequences of such abuse. He also elaborates the legal grounds for the establishing the shareholder's liability in such cases. The author concludes that in Croatian legal system do exist provisions upon which, depending on the case, a liability of the company shareholder should and might be established. He emphasizes the importance of the court practice as the source of law. However, such liability should be imposed only where special circumstances exist indicating that parent company, as well as other potentially liable persons, have acted in a manner which violates the standards of conduct imposed by society on (legal) persons. That should especially be the case when one ship company has been used in order to avoid the payment of certain debts.
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This paper gives a short review of the main reasons for the amendments to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978 (STCW), as well as its effects. The first part of the article gives a short overview of the background and the main reasons for the adoption of the said amendments to the Convention. The second part of the paper gives an analysis of some new essential provisions resulting in obligations for the Parties of the Convention. In particular the author comments new provisions with special reference to its implementation within maritime administrations, MET (maritime education and training) institutions and shipping companies, as well as the implementation of the amendments to the Convention in the Republic of Croatia. The paper expresses the author's critical view on certain new provisions particularly in respect of so-called ''white list'' which don't allow any subsequent changes in its content. The author also suggests that the new amendments to the STCW Convention, referring to the said issue, are essential in order to provide integrity and credibility of the STCW Convention in a longer period.
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Croatian rules on conflict of laws and applicable law are very restrictive, inflexible and old-fashioned. Adoption of certain solutions offered by international courts' practice and the Rome Convention on the Law Applicable to Contractual Obligations, 1980, would verify certain issues, not only in the area of shipbuilding contracts, but also in other areas of Croatian commerce with international aspects.
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Each crew member of the salving ship may take legal action against the owner of the salved ship claiming the apportionment of the salvage reward, provided that the owner of the salving ship has not instituted a claim for the reward. A reward claim by a crew member shall be time-barred if the proceedings have not been instituted within the limitation period of one year. This limitation period commences after the expiration of one-year period from the termination of the salvage, during which the owner of the salving ship has not brought an action for the payment of the reward. These rules are mutatis mutandis applicable in cases where the salving ship and the salved ship belong to the same owner. The reward may be reduced or even disallowed if the salvor by his fault caused the necessity of salvage.
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Review of: Ivo Grabovac, TEMELJI ODGOVORNOSTT U PROMETNOM PRAVU, Knjžievni krug, Split, 2000., 231 str.
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The author discusses legal issues related to the widespread use of electronic data interchange (EDI) in practice in this debate. Electronic data exchange represents a relatively new way of transferring information that in the future should replace the use of paper and written documents when concluding business transactions. In the article, the author describes how EDI works and its advantages over the way things are done. The author further cites the difficulties that exist due to the lack of legal regulation for the application of EDI. Namely, the present right contains provisions that are harmful to the use of EDI. In conclusion, it is emphasized that in the future all EDI-related difficulties will have to be overcome. Although some countries have made some progress in this regard, there is still much to be done to successfully implement EDI in practice.
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By a contract of the carriage of goods the charterer is obligated to pay the freight. The shipper is obligated to pay the freight only if he is, at the same time, the charterer.
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The Decision deals with the problem of application of fiduciary transfer of ownership on ships. Part X of the Croatian Maritime Act (CMA) (Official Gazette of the Republic of Croatia, No. 17/1994, No.74/1994 and No.43/1996) deals with the enforcement proceedings and security measures on a ship and its cargo. Unless stipulated otherwise by the provisions of CMA on enforcement proceedings and security measures on ships and cargo, the same proceedings shall be subject appropriately to the provisions of general enforcement proceedings concerning the proceedings on enforcement and security (Article 878(5)). The new Law of Execution (Official Gazette of the Republic of Croatia, No. 57/1996), which became effective after the enactment of CMA, has not radically changed the system of enforcement proceedings and security measures, although, it introduced some new security measures. One of them is fiduciary transfer of ownership. The court decided that fiduciary transfer of ownership according to Article 878(5) of CMA correspondingly could be applied on ships.
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The shipowner's limitation of liability is not determined by the number of loaded containers but by the number of collets or units contained in the container. If the provisions in the cargo are otherwise stipulated, they shall be considered without effect on the basis of Art. III., par. 8 Hague Rules.
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Directive (EU) 2015/2302 on package travel and linked travel arrangements (2015 Directive), repealing the former Directive 90/314/EC, has been transposed to Croatian legislation by the 2017 Act on the Provision of Tourism Services (APTS). In accordance with the rules of the 2015 Directive, provisions of the APTS dealing with above-mentioned tourism services are applicable from 1 July 2018. By implementing the 2015 Directive, the APTS has introduced significant changes to Croatian legislation by adding a new service – linked travel arrangement. Furthermore, the APTS has regulated the package travel contract in a new and more detailed manner compared to the formerly applicable legislation (Obligations Act, Art. 881 – 903). This paper is an in-depth scientific analysis of all the important topics related to package travel and linked travel arrangements, including the explanation (with practical examples) of the new and comprehensive definitions thereof. Special attention has been devoted to the package travel contract. Hence, the paper contains elaboration on the rightsand obligations of the contracting parties, essential elements of the contract, rights of the parties to amend the contract, rights of the traveller to terminate the contract, liability of the package organiser, etc. The relationship between relevant sources of transportation law and the stipulations of the APTS regarding travellers’ rights is also examined. The subject matter of this paper is of major importance for transportation undertakings too, since it has already been established by the practice of the European Court of Justice (in relation to the former 1990 Directive), and now expressly confirmed in the 2015 Directive, that passenger cruising represents a type of package travel service. Furthermore, depending on the characteristics of their business activities, individual professional passenger carriers may also be regarded as package organisers or providers of linked travel arrangement in the light of the APTS. In such cases, provisions of the APTS may be applicable to their rights and obligations as well. A separate chapter of the paper deals with the role of various types of compulsory and voluntary insurance (regulated by the APTS). While covering the professional risks faced by the package organisers, these types of insurance also strengthen the rights of travellers.
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This article focuses on a very specific aspect of maritime law, i.e. the remedies that exist under Dutch law in order for a marina operator to pursue a claim against a vessel owner either based on a contract or based on torts. This is not a straightforward matter, as it involves various areas of law as well as specific maritime legal issues, for instance contract law, the right of attachment, including the 1952 Arrest Convention,1 and the right of retention. After a general introduction about pleasure craft and marinas in the Netherlands, and some general considerations about the legal framework that applies, an overview of the possibilities will be given. The various requirements that need to be met will be discussed, focusing on the specific situation of a claim by a marina operator against a vessel owner. A specific issue that may arise in respect of a marina operator’s claim against a vessel owner is that it is not always clear how the agreement that forms the basis for the claim should be qualified. This is of importance, as the way an agreement is qualified, and more specifically which rights and obligations each party has under the agreement, also determines the remedies that are available to the claimant. The right of retention is only available if a certain degree of control is exercised over the vessel, as the right of retention is the right to suspend the obligation to return the vessel, and this sometimes constitutes a problem in respect of a marina operator’s claims. This will be explained in more detail below. Certain specific provisions in the Civil Code concerning the right of retention of vessels will also be addressed. As it is not necessary to obtain permission from the courts to exercise a right of retention, this is often the most straightforward option for a marina operator. If it is not clear whether a right of retention exists and/or may be exercised, another option for enforcing a claim is an attachment, which in the Netherlands is also possible before a title for enforcement is obtained (a so-called conservatory attachment). Obtaining and effecting an attachment order is relatively easy in the Netherlands. The procedure is expedient and fast, making the Netherlands an ideal location for a claimant to pursue such claims. Certain additional considerations will also be discussed with regard to the identity of the debtor, as well as the applicable law, as these may give rise to problems in respect of enforcement. In the past, it was only possible to effect an order obtained in the Netherlands within Dutch jurisdiction, and therefore it was necessary that the vessel was located within the Netherlands (or expected to arrive there in due course) in order to obtain permission from the court to attach a vessel. However, the revised Brussels I Regulation allows for the possibility of exporting judgments throughout the EU even if the decision is a so-called ex parte decision, which is a decision where only the applicant is a party to the proceedings. The other party is unaware of the proceedings until the very moment that enforcement is sought. Since vessels are moveable objects, this may provide for a useful additional possibility for enforcement within the EU, and therefore this new development will also be discussed.
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Concluding a berthing contract does not entitle the user to use a strictly defined berth, but to have a berth ensured by the marina while the vessel is located there.
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The permanent berthing contract was terminated after the expiry of the contract period. After the termination of the contract, the berth user (the plaintiff) did not collect the vessel, thus it remained in berth in the marina. Because the vessel was not used and maintained, the wood construction decayed. The marina (the defendant) undertook all the measures needed to protect the plaintiff’s property and to prevent the vessel from sinking, recovered the vessel from the sea and put it in dry berth. The berth user in dispute has not proven the existence of any assumptions for the marina operator’s liability for damage pursuant to the berthing contract. The berthing contract further excludes the obligation of the marina to settle the damage to the vessel caused by the non-maintenance, neglect, waste and wearing out thereof, and no obligation of the marina to maintain the plaintiff’s vessel was foreseen by the contract. The plaintiff has neither proven the assumptions for the extra-contractual liability of the marina.
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The defendant in these proceedings is not a legal person and therefore Article 374, paragraph 1 of the Civil Obligations Act, prescribing a special prescription period for claims between legal persons, shall not apply. General period of prescription, as stipulated in Article 371 of the Civil Obligations Act, shall be applied. The period of prescription for claims regarding marina berthing services for the vessel shall be five years.
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Review of: Current Issues in Freight Forwarding: Law and Logistics ]editors: Simone Lamont-Black; D. Rhidian Thomas) (Oxford : Lawtext Publishing, 2017)
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Review of: The Meaning of a Good Safe Port and Berth in a Modern Shipping World (author A.Kharchanka) (Ulrik Huber Institute for Private International Law, 2014)
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