Скачков Н.Г. Разрешение конфликта юрисдикций в трансграничных морских перевозках

Аннотация: Regular completion of a maritime transport operation assumes that the stability of good delivery process starts from a principle of legitimacy of various title documents, such as the foreign trade sale and purchase and delivery contracts, on the one hand, and maritime insurance contracts, on the other hand. Otherwise, creation of favorable conditions for permanent increase in the range of products in transboundary commodity circulation, with almost continuous change of products, will turn into a hard Laputan enterprise. Execution of everyday duties of freighters, vessel owners and carriers means permanent coordination of legal responsibility concepts irrespective of the will of a person or of the route obviousness. It is not traditional to save on navigation safety since hardly many are impressed to pay losses at their full compensatory cost indemnifying not only incident losses but the subsequent expenses. However, are all aspects inherent in norms of determination of actual responsibility for damage established irrevocably? We have to recognize that the overwhelming majority of proposals have not overcome certain position vulnerability since the criteria of lawful vessel operation are affirmed according to the 1982 United Nations Convention on the Law of the Sea (the UNCLOS Convention). Meanwhile, substantiations of the vessel reliability, its seaworthiness are made purely a posteriori, especially if the scheduled repair works are not neglected by the carrier company, and the freights duration and frequency do not fall outside the reasonable limits. In the sphere of responsibility for sea incidents it is accustomed to use legal settlement of legal responsibility relations based on timeliness, universality and uniformity criteria. But the offence frequently rejects even the slightest private principles of statute, property, and substantive law. In this connection, it is not excluded that in one country the criteria of causing damage and loss occurrence will be applied simply to acknowledge imprudent delictual behavior or overcoming of its possible consequences. At the same time, the other legal system strictly observes the steady trinity of key attributes such as duty and damage, damage and breach, breach and duty; the list of possible parities may be continued. Nevertheless, indemnification of loss gets real sense only when judicial hearings on causing damage really become the resolving factor. The international civil law operates with ready, settled models of legal regulation, preferring to apply the law order of the country which is identified with the flag of the vessel. As a result, reproduction of all transport cargo or voyage documentation does not suppose any establishment of the vessel owner title contrary to the predecessor in title will. Moreover, according to the 1972 Convention on the International Regulations for Preventing Collisions at Sea only display of the national legal regime, under the flag of which the transport operation is undertaken, explain, whether transportation was accompanied by an individualization procedure yet at the stages of loading of goods. Permanent improvement of various institutes of transboundary sea transportation, the prevailing framework of commodity logistics, electronic commerce in the field of preselling service make to reconsider the existing conflict norms and legal principles. Obvious easing of the “flag state”, continuous changes characteristic to the framework responsible for property aspects of the transport operation allow to assume that creation of exhaustive algorithm of a conflict regulation will not finish soon. On the contrary, even the participants of the violation of law may face the fact of occurrence of essentially new, complex, inter-branch, flexible, and pragmatic system which will establish the ways and forms of conflict and substantive regulation in further.

Abstract: Regular completion of a maritime transport operation assumes that the stability of good delivery process starts from a principle of legitimacy of various title documents, such as the foreign trade sale and purchase and delivery contracts, on the one hand, and maritime insurance contracts, on the other hand. Otherwise, creation of favorable conditions for permanent increase in the range of products in transboundary commodity circulation, with almost continuous change of products, will turn into a hard Laputan enterprise. Execution of everyday duties of freighters, vessel owners and carriers means permanent coordination of legal responsibility concepts irrespective of the will of a person or of the route obviousness. It is not traditional to save on navigation safety since hardly many are impressed to pay losses at their full compensatory cost indemnifying not only incident losses but the subsequent expenses. However, are all aspects inherent in norms of determination of actual responsibility for damage established irrevocably? We have to recognize that the overwhelming majority of proposals have not overcome certain position vulnerability since the criteria of lawful vessel operation are affirmed according to the 1982 United Nations Convention on the Law of the Sea (the UNCLOS Convention). Meanwhile, substantiations of the vessel reliability, its seaworthiness are made purely a posteriori, especially if the scheduled repair works are not neglected by the carrier company, and the freights duration and frequency do not fall outside the reasonable limits. In the sphere of responsibility for sea incidents it is accustomed to use legal settlement of legal responsibility relations based on timeliness, universality and uniformity criteria. But the offence frequently rejects even the slightest private principles of statute, property, and substantive law. In this connection, it is not excluded that in one country the criteria of causing damage and loss occurrence will be applied simply to acknowledge imprudent delictual behavior or overcoming of its possible consequences. At the same time, the other legal system strictly observes the steady trinity of key attributes such as duty and damage, damage and breach, breach and duty; the list of possible parities may be continued. Nevertheless, indemnification of loss gets real sense only when judicial hearings on causing damage really become the resolving factor. The international civil law operates with ready, settled models of legal regulation, preferring to apply the law order of the country which is identified with the flag of the vessel. As a result, reproduction of all transport cargo or voyage documentation does not suppose any establishment of the vessel owner title contrary to the predecessor in title will. Moreover, according to the 1972 Convention on the International Regulations for Preventing Collisions at Sea only display of the national legal regime, under the flag of which the transport operation is undertaken, explain, whether transportation was accompanied by an individualization procedure yet at the stages of loading of goods. Permanent improvement of various institutes of transboundary sea transportation, the prevailing framework of commodity logistics, electronic commerce in the field of preselling service make to reconsider the existing conflict norms and legal principles. Obvious easing of the “flag state”, continuous changes characteristic to the framework responsible for property aspects of the transport operation allow to assume that creation of exhaustive algorithm of a conflict regulation will not finish soon. On the contrary, even the participants of the violation of law may face the fact of occurrence of essentially new, complex, inter-branch, flexible, and pragmatic system which will establish the ways and forms of conflict and substantive regulation in further.