Humanities and Social Sciences

Prawo Morskie

Content

Prawo Morskie | 2005 | No XXI |

Abstract

In 2005 contiguous zones have been established by more than seventy states. Poland since 1932 has had three mile of the territorial sea and three mile of a contiguous zone which disappeared in 1978 when twelve mile territorial sea was proclaimed. First claims by coastal States to control rights in zones contiguous to their territorial seas, can be already found in XVIII century. In the first half of XX century the contiguous zone became a customary norm. In 1958 the I Geneva Convention determined its status providing that the coastal State in twelve mile zone of the high seas contiguous to its territorial seas may exercise the control necessary to prevent and punish infringement of customs, fiscal, immigration or sanitary regulations. The Convention on the Law of the Sea of 1982 in articles 33 and 303 has changed the concept of the contiguous zone recognizing that it can be extended to twenty four miles and giving the coastal State in addition to rights recognized in the Geneva Convention the right to protect the undei*water cultural heritage. Polish specialists have argued on several occasions for the establishment of a contiguous zone. This idea has been recently supported by the Advisory Legal Committee by the Ministry of Foreign Affairs and the Commission of Maritime Law of the Polish Academy of Sciences. Several arguments may be presented in favour of the establishment of Polish contiguous zone. It can better protect Polish interests, gives additional rights which do not exist in the exclusive economic zone, enables better safeguarding of frontiers against terrorism, proliferation of weapons of mass destruction, smuggling of migrants, drug trafficking and give the right to the protection of underwater archaeological finds. The Ministry of Infrastructure recognizing the importance of these arguments, has already undertaken first steps aimed at the change of Polish Bill of 1991 and establishment of the contiguous zone.

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Abstract

This paper addresses the legal aspects of and measures for resolving contemporary disputes regarding marine areas. The author describes issues related to resolving disputes in accordance with the United Nations Convention on the Law of the Sea of 1982. This system includes the following elements: the principles of the obligatory use of peaceful measures to resolve disputes and the principle of the freedom of the choice of peaceful measures by the parties. The freedom to choose resolution measures can be limited if previously applied measures, especially diplomatic ones, failed. The scale of these measures is described in the 1982 convention and range from the simplest to more complex measures. Thus, these measures range from those described in bilateral, regional, or common agreements, those agreed upon by diplomatic means to conciliation through arbitration and the courts. The International Tribunal for the Law of the Sea in Hamburg plays a key role in resolving international maritime disputes. However, the author states that the system for resolving such disputes is wide ranging and rather complicated. Disputes worthy o f discussion are those related to the delimitation of sea areas. Issues concerned with sea area delimitation and division are of key importance in the UN convention of 1982. The United Nations Convention of 1982 outlines a rather coherent system for resolving international maritime law disputes. Bilateral and regional were combined with common measures, while public and private law resolution measures were combined. Thanks to the convention, countries have a wide choice of resolution forums for disputes arising from the application of the convention. This convention still plays an insufficient role in the creation of peaceful measures for resolving disputes in accordance with the norms outlined in the convention. It is expected that the new International Tribunal for the Law of the Sea will facilitate this thanks to its procedures and the wider jurisdiction in maritime cases than is provided by the International Court of Justice. The participation o f the UN Secretaiy General and other organizations has been widened in the structure of this system. Complex principles for separating the jurisdiction of tribunals, courts, and other appropriate organizations in resolving maritime disputes have come into force.

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Abstract

The authors attempted to present the state of disputes regarding the delimitation of marine areas based on a discussion of the practices of countries in the East China Sea and the Sea of Japan region. The authors describe the disputes regarding the islands of Senaku (Diaoyu) between both China and Taiwan and Japan and those over the Dokdo (Takeshima) archipelago between the Republic of Korea and Japan. There are many similarities between these two marine territorial disputes. The core of the disputes is land that is devoid of significant economic importance. Due to this, these areas were not previously of interest to coastal countries. They came to the forefront when their location facilitated determining exclusive economic zones. This intensified when evidence of crude oil and natural gas resources was detected in these areas. Tensions eased when geological reports revealed that initial estimates were overly optimistic. The fundamental cause of disputes over archipelagos is that they can be used to determine exclusive economic zones. The problem is compounded when the politicians of Eastern Asia incite historical remembrance. This is especially evident in the cases of Japan, the Republic of Korea, Taiwan, and China, whose governments are, to some extent, hostages of ultra-nationalistic factions.

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Abstract

In spite of the negotiations initiated in 1972 Poland and Denmark have not so far managed to effect a delimitation of their maritime areas between Bornholm and Polish coast. This situation constitutes the longest lasting case of unsettled maritime boundary in the Baltic Sea. Even though both countries are parties to 1982 United Nations Convention on the Law of the Sea, they present different interpretation of art. 74 of the Convention, which states that the delimitation of the exclusive economic zones of the States with opposite coasts „shall be effected by agreement on basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution Consequently, Denmark considers the disputed area should be divided on the basis of median line. On the contrary, Poland invoke the international judgements and the practice of the States and indicates that boundary should be determined in accordance with the equitable principles, with regard for an existance of several special cicumstances, namely geographic and geophysical factors and proportionality calculations. Since the postures of the parties involved are overlapping, there exists south and southeast of Bornholm a disputed area of 3 500 km2, similar to this one existing between Gotland and the USSR coast before 1988. The relevant acts of national legislations of either Poland or Denmark illustrate these different claims. Nevertheless, during the recent negotiations round the parties agreed to create a special commitee of experts in aim to examine all the possible boundary lines. This fact confirms that it still may be possible for both countries to reach an agreement in bilateral negotiations.

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Abstract

Threats stemming from global problems and their solutions are at the center of attention in the international community. Their complex character induces the necessity of co-operation at all levels from countries to international organizations as well as non-governmental organizations. Co-operation involves all levels - regional, sub-regional, and international. One recent form of this type of international co-operation regards the network of protected marine areas on the high seas. The protection of seas and oceans and the bottom and underground of the high seas as well as in situ resources requires solutions based on two fundamental concepts: the common heritage of humanity and the doctrine of the freedom of the seas. International public law, which is the basis for the creation of protected marine areas, is a mosaic of different instruments, such as agreements, action programs, strategies, and memorandums, which are both global and regional in character. The use of the high seas is regulated in international law based on the principle of co-operation among countries and no regulations ban the creation of protected marine areas. The concept of protected marine areas has been successful due to flexible, integrated management with appropriate tools and the simultaneous protection and exploitation of resources. International legal protection of high sea areas is confirmed by the appropriate resolutions of the UN Convention on the Law of the Sea of 1982, the convention on biodiversity - chapter 17 of Agenda 21, the principle of protection of marine areas of the World Conservation Union, and many international agreements of regional character. The concept of the protection of high sea areas is based on a set of instruments that facilitate equilibrium between the maintenance and protection and the exploitation of these areas. It is a form of protection for especially endangered ecosystems and species. It focuses on threats, which in the case of the high seas and ocean depths, include illegal catches, the destruction of habitats by trawlers, mineral excavation, shipping, marine pollution, and the exploitation and exploration of the ‘area'.

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Abstract

This paper presents a short description of about two hundred selected regulations from the broad field of maritime law. For the purpose of simplicity, they were categorized according to current trends in maritime law theory. The author created several groups of acts, the rules of which belong to the same legal branch, i.e., maritime administrative law, maritime civil law, maritime labor law, maritime criminal law, regulations on marine fisheries and the protection of marine resources, international maritime law. The tasks of the American Coastguard, the body responsible for executing maritime law in the USA, are also discussed. For over a century and a half, maritime law only regulated relationships within marine sailing. The vessel, as a transporter of cargo, constituted the central point in this approach, which led maritime law to come to be viewed as a segment of shipping law. It was not until the second half of the twentieth century that legislation began to regulate aspects other than sailing. This was in response to the broadening of human activity in the marine environment and led to changes in the understanding of maritime law. However, the advantage of statutory law over common law is clear. An example of this is the total revision of American maritime law in 1983 and the introduction of United States Code Title 46 Shipping to statutory law. It should also be emphasized that these changes left only skeletons of many of the older maritime laws. This should be borne in mind when researching original congressional documents especially since there is no practice of issuing standardizing legislation in the American legal system. American law is comprised of a collection of legislation that is difficult to navigate for those unaccustomed to working with a legal system that originated from common law. The content of this paper, thanks to its original, up-to-date, and reliable information, constitutes a compendium of knowledge regarding the contemporary regulations of the statutoiy maritime law of the USA.

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Abstract

Marine engineer Willard Stewart filed suit against the Dutra Construction Company in the US District Court of Massachusetts, USA. He was suing for compensation for a work-related accident. Stewart based his claim on the Jones Act and the principles of maritime law. Responsibility is based on the principle of risk in the Jones Act and applies to seamen employed on vessels. In order to obtain compensation, Stewart had to prove that the dredge on which the accident occurred was a vessel. I f proved, he would be regarded as a seaman since he worked on it. The district court declared that a dredge was not a vessel. Stewart appealed and the appellate court upheld the first verdict. Stewart fs case was appealed to the Supreme Court in order to define the idea of vessel* in the Jones Act and to decide if a dredge can be regarded as a vessel. The Supreme Court has yet to hand down a verdict. The author believes that the Jones Act should be interpreted narrowly and should not be applicable to all workers at sea, even those who work on immobile platforms in ports. The concept of 'vessel' in the Jones Act must be interpreted in a narrow sense.

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Abstract

The comparison of the criminal code in Polish maritime law with that of the British M SA'95 is problematic for several reasons. Firstly, there are far fewer such regulations in the Polish law. Of the five maritime statutes analyzed, only fifteen regulations relate directly to captains. Secondly, the way in which they are regulated is completely different. Polish statutes are often formulated very generally and are wide ranging, while British statutes describe penalties in detail. Legal proceedings in the two systems are also incomparable. According to British law, all proceedings regarding cases of illegal acts must be held in the courts. Illegal acts committed by the captain of a Polish vessel or the foreign captain of a vessel in Polish inner or territorial waters are subject to investigation by the maritime administrative body (director of the Maritime Office). Thus, it is a state administrative body that has jurisdiction in determining guilt and issuing a penalty for a vessel captain according to its own criteria. Of all the maritime regulations, only with regard to regulations based on the Labor Code concerning employment on merchant marine vessels can a vessel captain be held responsible in front of a court of law. Despite the differences presented with regard to illegal acts that vessel captains can commit, there are many analogies and similar regulations in both of these legal systems. They are most similar with regard to international agreements that have been ratified by both countries. A total of fifty criminal acts in the British MSA ’95 were analyzed in this work. The penalties captains face are described in the acts and range from a £500 fine to two years in prison.

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Abstract

There are few works on the obligatory character of civil liability insurance for vessel owners. Civil liability insurance for passenger vessels is regulated in Article 182 of the Maritime Code. This type of insurance for vessel owners to cover damages caused by oil pollution are described in Article 273 of the Maritime Code. These are the only types of maritime insurance that are obligatory. Accordingly, it is obvious that obligatory insurance for only two of many dozen maritime hazards, which can be insured against voluntarily, is grossly insufficient. With the exception of damages cased by oil, there is no obligation to obtain civil liability insurance for other types of damage. The international community has ratified an additional two conventions, which impose alternatives to obligatory insurance or financial security in cases of marine environmental pollution. These include the international convention of 1996 on liability and compensation for damages concerned with the shipping of hazardous and dangerous substances and the international convention of 2001 on civil liability for damages caused by bunker oil pollution. Neither of these two conventions has yet to come into force; however, it is possible that they will be ratified by Poland in the nearest future. The introduction of obligatory insurance should also cover other damages resulting from vessel exploitation. Such an obligation could induce increased shipping safety by eliminating vessels that do not comply with safety standards. It would also have an impact on the principles of fair competition in sailing as well as standardize insurance protection.

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Abstract

To date, only once has the Constitutional Tribunal handed down a verdict concerning the unconstitutionality of a certain maritime legal regulation. This, of course, does not mean that the other legal regulations are constitutional. This paper presents arguments that support this thesis. Primarily, the author analyzes regulations on fisheries of 2004 and those pertaining to the Polish marine areas and the maritime administration from 1991. According to the author, mainly legal regulations regarding financial penalties are constitutionally suspect.

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Abstract

The paper presents a complex description of the system of Polish maritime law regarding vessel registration. There are four vessel registers in Poland: vessel register, Polish yacht register, administrative register, and fishing vessel register. The first three are regulated by the Polish Maritime Code of 2001 and the last by the Fisheries Act of 2004. Different registration bodies are responsible for the vessel registers. These are the Maritime Chamber, the Polish Yachting Association, the Maritime Office, and the Ministry of Agriculture. The author analyzed registration requirements and the basic procedural principles in the various registers. This is useful especially in light of the numerous changes which were implemented in the Polish Maritime Code following European Union accession. Some doubts are discussed regarding the implementation of EU Council Act 613/91 of 4 March 1991 to Polish law. The author also criticizes new legal solutions that give EU ship owners the right to the Polish flag despite the lack of a genuine link with Poland, the flag holder. The new' Polish yacht register is described in detail. The responsibility for its implementation was given to a community organization and not to a state body. The author indicates many doubtful legal and organizational aspects of this register, especially with respect to the new decree of the Ministry of Infrastructure of 23 December 2004, which regulates yacht registers. The separate legal definition of the yacht in Polish maritime law seems to be questionable. It is defined as "... a marine vessel, which is the property of Poland, used exclusively for sport or recreational purposes with a hull length of up to 24 meters The administrative register, which registers vessels that are not covered by the two registers discussed above, vessels under construction on sea tests, and the fishing vessel register, is also discussed. It is not only of an administrative character but is one of the methods for limiting economic freedom in marine fisheries. The mutual relationships among these registers are also discussed in the paper.

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Abstract

The tax benefits described in “cheap”flag regulations is very influential in the registration of marine vessels. Countries or territories that operate open vessel registers are, as a rule, tax havens. This also means that the registration of marine vessels is currently just one source of income for tax havens thanks to preferential tax regulations. Sea transport is dependent to a far greater extent on tax havens than other branches of the economy. This is due to the character of the maritime economy as well as the tradition of registering vessels under "cheap" flags. Competition among countries interested in the development of their own maritime economy is very characteristic, and open vessel registers are one such form of competition. This phenomenon is not only apparent among OECD and third world countries, but also among the “cheap” flag countries. This competition is largely characterized by international tax competition.

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Abstract

The guidelines in the White Book regarding the development of transport confirmed the conclusions reached by the European Council in Gothenburg regarding, on the one hand, the necessity of optimization, and, on the other, compliance with principles of sustainable development. The second issue, in particular, lays out the conditions for the creation of a contemporary transportation system that will equalize economic results with social costs and the environmental pollution. The expectations are that cabotage transport will become an alternative to ground transport. Cabotage transport between the European ports has not developed to the extent anticipated. The White Book reveals that the development of short distance marine transport, which is currently a priority in EU maritime policy, will stimulate undertakings in the Baltic and North seas regions. The expansion of the European Union should lead to significant possibilities for the further development of cabotage transport. The European Commission anticipates that the Baltic region will be the fastest developing European region in 2002-2010. This provides opportunities but also sets out challenges for Polish vessel owners and seaports, which, as instruments of growing economic exchange, will contribute to the economic development of the country.

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Abstract

Polish law oil wastes divides them according to their origins. In general, wastes can he divided into communal and industrial, and vessel wastes undoubtedly belong to both groups. The authors report in this work that the list of wastes and the means of their disposal comply fully with European Union directives that have been implemented successively. The introduction to Polish environmental protection law of the integrated permit and the best available technologies should permit the better processing of waste management and ensure compliance with the requirements described in the Second Polish Ecological Policy for 2003-2010. This policy assumes that there will be a decrease in hazards posed by asbestos, the average amount of communal wastes will remain stable, and the pi'oduction of wastes will be limited, including that aboard vessels.

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Abstract

The paper discusses limitations on the freedom of marine fisheries in international EU, and Polish laws. The primary motivation behind limiting the freedoms of fisheries is the protection of the marine environment. The regulation on marine fisheries of 2004 includes many limitations of economic freedom, e.g., the necessity of registering fishing vessels, the requirement of licenses and catch permits. The Common Fisheries Policy of the European Union also places many limitations on fisheries. The ‘ freedom ” of marine fisheries is presented in quotation marks for good reasons. The author concludes that it is currently difficult to assume that marine fisheries are a free economic activity.

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