Морское право и его применение.

Law of the oceans and their use

Admiralty law or maritime law is a body of law that governs nautical issues and private maritime disputes. Admiralty law consists of both domestic law on maritime activities, and private international law governing the relationships between private parties operating or using ocean going ships. While each legal jurisdiction usually has its own legislation governing maritime matters, the international nature of the topic and the need for uniformity has, since 1900, led to considerable international maritime law developments, including numerous multilateral treaties. Admiralty law may be distinguished from the law of the sea, which is a body of public international law dealing with navigational rights, mineral rights, jurisdiction over coastal waters, and the maritime relationships between nations. The United Nations Convention on the Law of the Sea has been adopted by 167 countries and the European Union, and disputes are resolved at the ITLOS tribunal in Hamburg.

Seaborne transport was one of the earliest channels of commerce, and rules for resolving disputes involving maritime trade were developed early in recorded history. Early historical records of these laws include the Rhodian law (Nomos Rhodion Nautikos), of which no primary written specimen has survived, but which is alluded to in other legal texts (Roman and Byzantine legal codes), and later the customs of the Consulate of the Sea or the Hanseatic League. In southern Italy the Ordinamenta et consuetudo maris (1063) at Trani and the Amalfian Laws were in effect from an early date. Bracton noted further that admiralty law was also used as an alternative to the common law in Norman England, which previously required voluntary submission to it by entering a plea seeking judgment from the court. A leading sponsor of admiralty law in Europe was the French Queen Eleanor of Aquitaine. Eleanor (sometimes known as Eleanor of Guyenne) had learned about admiralty law whilst on the Second Crusade in the eastern Mediterranean with her first husband, King Louis VII of France. Eleanor then established admiralty law on the island of Oléron, where it was published as the Rolls of Oléron. Some time later, while she was in London acting as regent for her son, King Richard I of England, Eleanor instituted admiralty law into England as well. In England and Wales, a special Admiralty Court handles all admiralty cases. Despite early reliance upon civil law concepts derived from the Corpus Juris Civilis of Justinian, the English Admiralty Court is a common law, albeit sui generis court that was initially somewhat distanced from other English courts. After around 1750, as the industrial revolution took hold and English maritime commerce burgeoned, the Admiralty Court became a proactive source of innovative legal ideas and provisions to meet the new situation. The Judicature Acts of 1873–1875 abolished the Admiralty Court as such, and it became conflated in the new Probate, Divorce and Admiralty division of the High Court. However, when the PDA was abolished and replaced by a new Family Division, admiralty jurisdiction passed to a so called Admiralty Court which was effectively the King's Bench sitting to hear nautical cases. The Senior Courts Act 1981 then clarified the admiralty jurisdiction of the Queen's Bench, so England and Wales once again has a distinct Admiralty Court (albeit no longer based in the Royal Courts of Justice, but in the Rolls Building). English Admiralty courts were a prominent feature in the prelude to the American Revolution. For example, the phrase in the Declaration of Independence "For depriving us in many cases, of the benefits of Trial by Jury" refers to the practice of the UK Parliament giving the Admiralty Courts jurisdiction to enforce the Stamp Act 1765 in the American colonies. The Stamp Act was unpopular in America, so a colonial jury would be unlikely to convict any colonist of its violation. The Admiralty Court, which has never had trial by jury, was thus given jurisdiction so a colonist charged with breaching the Stamp Act could be more easily convicted by the Crown. Admiralty law gradually became part of United States law through admiralty cases arising after the adoption of the U. S. Constitution in 1789. Many American lawyers who were prominent in the American Revolution were admiralty and maritime lawyers. Those included are Alexander Hamilton in New York and John Adams in Massachusetts. In 1787, Thomas Jefferson wrote to James Madison proposing that the U. S. Constitution, then under consideration by the States, be amended to include "trial by jury in all matters of fact triable by the laws of the land and not by the laws of Nations". The result was the United States Bill of Rights. Alexander Hamilton and John Adams were both admiralty lawyers and Adams represented John Hancock in an admiralty case in colonial Boston involving seizure of one of Hancock's ships for violations of customs regulations. In the more modern era, Supreme Court Justice Oliver Wendell Holmes was an admiralty lawyer before ascending to the bench.

Matters dealt by admiralty law include marine commerce, marine navigation, salvage, maritime pollution, seafarers' rights, and the carriage by sea of both passengers and goods. Admiralty law also covers land based commercial activities that are maritime in character, such as marine insurance. Some lawyers prefer to reserve the term "admiralty law" for "wet law" (e. g. salvage, collisions, ship arrest, towage, liens and limitation), and use "maritime law" only for "dry law" (e. g. carriage of goods and people, marine insurance, and the Maritime Labour Convention).

The doctrine of maintenance and cure is rooted in Article VI of the Rolls of Oléron promulgated in about 1160 A. D. The obligation to "cure" requires a shipowner to provide medical care free of charge to a seaman injured in the service of the ship, until the seaman has reached "maximum medical cure". The concept of "maximum medical cure" is more extensive than the concept "maximum medical improvement". The obligation to "cure" a seaman includes the obligation to provide him with medications and medical devices which improve his ability to function, even if they do not "improve" his actual condition. They may include long term treatments that permit him to continue to function well. Common examples include prostheses, wheelchairs, and pain medications. The obligation of "maintenance" requires the shipowner to provide a seaman with his basic living expenses while he is convalescing. Once a seaman is able to work, he is expected to maintain himself. Consequently, a seaman can lose his right to maintenance, while the obligation to provide cure is ongoing. A seaman who is required to sue a shipowner to recover maintenance and cure may also recover his attorneys fees. Vaughan v. Atkinson, 369 U. S. 527 (1962). If a shipowner's breach of its obligation to provide maintenance and cure is willful and wanton, the shipowner may be subject to punitive damages. See Atlantic Sounding Co. v. Townsend, 557 U. S. 404 (2009) (J. Thomas).

Shipowners owe a duty of reasonable care to passengers. Consequently, passengers who are injured aboard ships may bring suit as if they had been injured ashore through the negligence of a third party. The passenger bears the burden of proving that the shipowner was negligent. While personal injury cases must generally be pursued within three years, suits against cruise lines may need to be brought within one year because of limitations contained in the passenger ticket. Notice requirements in the ticket may require a formal notice to be brought within six months of the injury. Most U. S. cruise line passenger tickets also have provisions requiring that suit to be brought in either Miami or Seattle. In England, the 1954 case of Adler v Dickson (The Himalaya) [1954] allowed a shipping line to escape liability when a bosun's negligence resulted in a passenger being injured. Since then, the Unfair Contract Terms Act 1977 has made it unlawful to exclude liability for death or personal injury caused by one's negligence. (Since then, however, the so called "Himalaya clause" has become a useful way for a contractor to pass on the protection of a limitation clause to his employees, agents and third party contractors.)

Banks which loan money to purchase ships, vendors who supply ships with necessaries like fuel and stores, seamen who are due wages, and many others have a lien against the ship to guarantee payment. To enforce the lien, the ship must be arrested or seized. In the United States, an action to enforce a lien against a U. S. ship must be brought in federal court and cannot be done in state court, except for under the reverse Erie Doctrine whereby state courts can apply federal law.

When property is lost at sea and rescued by another, the rescuer is entitled to claim a salvage award on the salvaged property. There is no "life salvage": all mariners have a duty to save the lives of others in peril without expectation of reward. Consequently, salvage law applies only to the saving of property. There are two types of salvage: contract salvage and pure salvage, which is sometimes referred to as "merit salvage". In contract salvage the owner of the property and salvor enter into a salvage contract prior to the commencement of salvage operations and the amount that the salvor is paid is determined by the contract. The most common salvage contract is called a "Lloyd's Open Form Salvage Contract". In pure salvage, there is no contract between the owner of the goods and the salvor. The relationship is one which is implied by law. The salvor of property under pure salvage must bring his claim for salvage in court, which will award salvage based upon the "merit" of the service and the value of the salvaged property. Pure salvage claims are divided into "high order" and "low order" salvage. In high order salvage, the salvor exposes himself and his crew to the risk of injury and loss or damage to his equipment to salvage the damaged ship. Examples of high order salvage are boarding a sinking ship in heavy weather, boarding a ship which is on fire, raising a ship or boat which has already sunk, or towing a ship which is in the surf away from the shore. Low order salvage occurs where the salvor is exposed to little or no personal risk. Examples of low order salvage include towing another vessel in calm seas, supplying a vessel with fuel, or pulling a vessel off a sand bar. Salvors performing high order salvage receive substantially greater salvage award than those performing low order salvage. In both high order and low order salvage the amount of the salvage award is based first upon the value of the property saved. If nothing is saved, or if additional damage is done, there will be no award. The other factors to be considered are the skills of the salvor, the peril to which the salvaged property was exposed, the value of the property which was risked in effecting the salvage, the amount of time and money expended in the salvage operation, etc. A pure or merit salvage award will seldom exceed 50 percent of the value of the property salved. The exception to that rule is in the case of treasure salvage. Because sunken treasure has generally been lost for hundreds of years, while the original owner (or insurer, if the vessel was insured) continues to have an interest in it, the salvor or finder will generally get the majority of the value of the property. While sunken ships from the Spanish Main (such as Nuestra Señora de Atocha in the Florida Keys) are the most commonly thought of type of treasure salvage, other types of ships – including German submarines from World War II which can hold valuable historical artifacts, American Civil War ships (the USS Maple Leaf in the St. Johns River, and the CSS Virginia in Chesapeake Bay), and sunken merchant ships (the SS Central America off Cape Hatteras) – have all been the subject of treasure salvage awards. Due to refinements in side scanning sonars, many ships which were previously missing are now being located and treasure salvage is now a less risky endeavor than it was in the past, although it is still highly speculative and expensive.

In maritime law, it is occasionally desirable to distinguish between the situation of a vessel striking a moving object and that of it striking a stationary object. The word "allision" is then used to mean the striking of a stationary object, while "collision" is used to mean the striking of a moving object. Thus, when two vessels run against each other, courts typically use the term collision whereas when one vessel runs against a stationary object, they typically use the term allision. The fixed object could also be a bridge or dock. While there is no great difference between the two terms and often they are even used interchangeably, determining the difference helps clarify the circumstances of emergencies and adapt accordingly. In the case of Vane Line Bunkering, Inc. v. Natalie D M/V, it was established that there was the presumption that the moving vessel is at fault, stating that "presumption derives from the common sense observation that moving vessels do not usually collide with stationary objects unless the [moving] vessel is mishandled in some way". This is also referred to as The Oregon Rule.

Before the mid 1970s, most international conventions concerning maritime trade and commerce originated in a private organization of maritime lawyers known as the Comité Maritime International (International Maritime Committee or CMI). Founded in 1897, the CMI drafted numerous international conventions, including the Hague Rules (International Convention on Bills of Lading), the Visby Amendments (amending the Hague Rules), the Salvage Convention, and many others. While the CMI continues to function in an advisory capacity, many of its functions have been taken over by the International Maritime Organization (IMO), which was established by the United Nations in 1958 but did not become truly effective until about 1974. The IMO has prepared numerous international conventions concerning maritime safety, including the International Convention for the Safety of Life at Sea (SOLAS), the Standards for Training, Certification, and Watchkeeping (STCW), the International Regulations for Preventing Collisions at Sea (Collision Regulations or COLREGS), Maritime Pollution Regulations (MARPOL), International Convention on Maritime Search and Rescue (SAR Convention) and others. The United Nations Convention on the Law of the Sea (UNCLOS) defined a treaty regarding protection of the marine environment and various maritime boundaries. Restrictions on international fishing such as International Convention for the Regulation of Whaling also form part of the body of conventions in international waters. Other commercial conventions include the "International Convention relating to the Limitation of the Liability of Owners of Sea Going Ships", Brussels, 10 October 1957. and International Convention for Safe Containers. Once adopted, most international conventions are enforced by the individual signatory nations, either through their Port State Control, or through their national courts. Cases within the ambit of the European Union's EMSA may be heard by the CJEU in Luxembourg. By contrast, disputes involving the Law of the Sea may be resolved at ITLOS in Hamburg, provided that the parties are signatories to UNCLOS.

Throughout history, piracy has been defined as hostis humani generis, or the enemy of all mankind. While the flag state normally has jurisdiction over a ship on the high seas, there is universal jurisdiction in the case of piracy, which means that any nation may pursue pirates on the high seas, including pursuing them into a country's territorial waters. Most nations have signed onto the 1982 United Nations Convention on the Law of the Sea which dictates the legal requirements for pursuing pirates. Merchant vessels transiting areas of increased pirate activity (i. e. the Gulf of Aden, Somali Basin, Southern Red Sea and Bab el Mandeb straits) are advised to implement self protective measures, in accordance with most recent best management practices agreed upon by the members of the merchant industry and endorsed by the NATO Shipping Centre, and the Maritime Security Centre Horn of Africa (MSCHOA).

The common law of England and Wales, of Northern Ireland law, and of US law, contrast to the continental law (civil law) that prevails in Scottish law and in continental Europe, which trace back to Roman law. Although the English Admiralty court was a development of continental civil law, the Admiralty Court of England and Wales was a common law court, albeit somewhat distanced from the mainstream King's Bench. Most of the common law countries (including Pakistan, Singapore, India, and many other Commonwealth of Nations countries) follow English statute and case law. India still follows many Victorian era British statutes such as the Admiralty Court Act 1861 [24 Vict c 10]. Whilst Pakistan now has its own statute, the Admiralty Jurisdiction of High Courts Ordinance, 1980 (Ordinance XLII of 1980), it also follows English case law. One reason for this is that the 1980 Ordinance is partly modelled on old English admiralty law, namely the Administration of Justice Act 1956. The current statute dealing with the Admiralty jurisdiction of the England and Wales High Court is the Senior Courts Act 1981, ss. 20–24, 37. The provisions in those sections are, in turn, based on the International Arrest Convention 1952. Other countries which do not follow the English statute and case laws, such as Panama, also have established well known maritime courts which decide international cases on a regular basis. Admiralty courts assume jurisdiction by virtue of the presence of the vessel in its territorial jurisdiction irrespective of whether the vessel is national or not and whether registered or not, and wherever the residence or domicile or their owners may be. A vessel is usually arrested by the court to retain jurisdiction. State owned vessels are usually immune from arrest.

A state court hearing an admiralty or maritime case is required to apply the admiralty and maritime law, even if it conflicts with the law of the state, under a doctrine known as the "reverse Erie doctrine". While the "Erie doctrine" requires that federal courts hearing state actions must apply substantive state law, the "reverse Erie doctrine" requires state courts hearing admiralty cases to apply substantive federal admiralty law. However, state courts are allowed to apply state procedural law. Unreliable source: reason=Appears to be a student essay of no particular importance This change can be significant.

Claims for damage to cargo shipped in international commerce are governed by the Carriage of Goods by Sea Act (COGSA), which is the U. S. enactment of the Hague Rules. One of its key features is that a shipowner is liable for cargo damaged from "hook to hook", meaning from loading to discharge, unless it is exonerated under one of 17 exceptions to liability, such as an "act of God", the inherent nature of the goods, errors in navigation, and management of the ship. The basis of liability for the shipowner is a bailment and if the carrier is to be liable as a common carrier, it must be established that the goods were placed in the carrier's possession and control for immediate carriage.

Seamen injured aboard ship have three possible sources of compensation: the principle of maintenance and cure, the doctrine of unseaworthiness, and the Jones Act. The principle of maintenance and cure requires a shipowner to both pay for an injured seaman's medical treatment until maximum medical recovery (MMR) is obtained and provide basic living expenses until completion of the voyage, even if the seaman is no longer aboard ship.

Admiralty law in Pakistan is also classified as shipping law. The Pakistan Merchant Shipping Ordinance 2001 has replaced the Merchant Shipping Act 1923. This replacement was done in 2001 to handle the constantly upgrading modern shipping industry. The purpose of the Pakistan Merchant Shipping Ordinance 2001 is to provide a strategy and rules under which the government authorities will function in dealing with stuff related to the shipping industry. This law also handles duties internationally required under the ILO (International Labour Organization) conventions as Pakistan is an active member of the ILO.

A pseudolegal conspiracy theory of American origin, notably present among the anti government sovereign citizen and freeman on the land movements, asserts that at some point maritime law, which they consider to be the law of international commerce, substituted for the original, legitimate "common law" system as part of a broader conspiracy which secretly replaced governments with corporations. The judiciary hence became admiralty courts with no actual jurisdiction over people. Sovereign citizens notably claim that the presence of gold fringes on the American flags displayed in courtrooms is evidence of maritime law being in effect. The origin of the maritime law conspiracy theory is unknown, though it may stem from a misunderstanding of some nautical sounding words in common usage in the English language judiciary such as ownership, citizenship, dock or birth (berth) certificate.