International Maritime Conventions (Volume 2): Navigation, Securities, Limitation of Liability and Jurisdiction

507 Pages·2014·1.69 MB·English

by  Francesco Berlingieri

INTERNATIONAL MARITIME CONVENTIONS
VOLUME II:
Navigation, Securities, Limitation of Liability and Jurisdiction
MARITIME AND TRANSPORT LAW LIBRARY
MARITIME AND TRANSPORT LAW LIBRARY
International Maritime Conventions Freight Forwarding and Multimodal
Volume Two Transport Contracts
Navigation, Securities, Limitation of Liability 2nd edition
and Jurisdiction by David A. Glass
by Francesco Berlingieri (2012)
(2014)
Marine Insurance Clauses
Maritime Law 5th edition
3rd edition by N. Geoffrey Hudson, Tim Madge
edited by Yvonne Baatz and Keith Sturges
(2014) (2012)
Offshore Contracts and Liabilities Pollution at Sea: Law and Liability
by Bari s¸ Soyer and Andrew Tettenborn edited by Bari s¸ Soyer and Andrew Tettenborn
(2014) (2012)
Marine Insurance Fraud Contracts of Carriage by Air
by Bari s¸ Soyer 2nd edition
(2014) by Malcolm A. Clarke
(2012)
International Maritime Conventions
Volume One Place of Refuge: International Law and the
The Carriage of Goods and Passengers CMI Draft Convention
by Sea by Eric Van Hooydonk
by Francesco Berlingieri (2010)
(2014)
Maritime Fraud and Piracy
International Carriage of Goods by Road: CMR by Paul Todd
6th edition (2010)
by Malcolm A. Clarke
(2014) The Carriage of Goods by Sea under the Rotterdam
Rules
The Maritime Labour Convention: International edited by D. Rhidian Thomas
Labour Law Redefi ned (2010)
edited by Jennifer Lavelle
(2013) The International Law of the Shipmaster
by John A. C. Cartner, Richard P. Fisk and
Modern Maritime Law, Volume 1: Tara L. Leiter
Jurisdiction and Risks (2009)
3rd edition
by Aleka Mandaraka-Sheppard (2010) The Modern Law of Marine Insurance
(2013) edited by D. Rhidian Thomas
(2009)
Modern Maritime Law, Volume 2:
Managing Risks and Liabilities The Rotterdam Rules: A Practical Annotation
3rd edition by Yvonne Baatz, Charles Debattista, Filippo
by Aleka Mandaraka-Sheppard Lorenzon, Andrew Serdy, Hilton Staniland
(2013) and Michael Tsimplis
(2009)
Carriage of Goods by Sea Land and Air:
Uni-Modal and Multi-Modal Transport in the The Evolving Law and Practice of Voyage Charters
21st Century edited by D. Rhidian Thomas
edited by Baris ¸ Soyer and Andrew Tettenborn (2009)
(2013)
International Carriage of Goods by Road: CMR
The Law of Yachts and Yachting 5th edition
by Filippo Lorenzon and Richard Coles by Malcolm A. Clarke
(2012) (2009)
Risk and Liability in Air Law War, Terror and Carriage by Sea
by George Leloudas by Keith Michel
(2009) (2004)
Legal Issues Relating to Time Charterparties Port State Control
edited by D. Rhidian Thomas 2nd Edition
(2008) by Oya Ozcayir
(2004)
Contracts of Carriage by Land and Air
2nd edition Modern Law of Marine Insurance:
by Malcolm A. Clarke and David Yates Volume Two
(2008) edited by Francis Rose
(2002)
Bills of Lading and Bankers’ Documentary Credits
4th edition Commercial and Maritime Statutes
by Paul Todd edited by Peter Macdonald Eggers and
(2007) Simon Picken
(2002)
Liability Regimes in Contemporary Maritime Law
edited by D. Rhidian Thomas Bills of Lading: Law and Contracts
(2007) by Nicholas Gaskell, Regina Asariotis and
Yvonne Baatz
Marine Insurance: The Law in Transition (2000)
edited by D. Rhidian Thomas
(2006) Shipbrokers and the Law
by Andrew Jamieson
Commencement of Laytime (1997)
4th edition
edited by D. Rhidian Thomas
(2006)
General Average: Law and Practice
2nd edition
by F. D. Rose
(2005)
(cid:84)(cid:104)(cid:105)(cid:115)(cid:32)(cid:112)(cid:97)(cid:103)(cid:101)(cid:32)(cid:105)(cid:110)(cid:116)(cid:101)(cid:110)(cid:116)(cid:105)(cid:111)(cid:110)(cid:97)(cid:108)(cid:108)(cid:121)(cid:32)(cid:108)(cid:101)(cid:102)(cid:116)(cid:32)(cid:98)(cid:97)(cid:110)(cid:107)
INTERNATIONAL MARITIME
CONVENTIONS
VOLUME II
Navigation, Securities, Limitation of Liability
and Jurisdiction
FRANCESCO BERLINGIERI
Published 2015
by Informa Law from Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Informa Law from Routledge
711 Third Avenue, New York, NY 10017
Informa Law from Routledge is an imprint of the Taylor & Francis Group, an Informa business
© 2015 Francesco Berlingieri
The right of Francesco Berlingieri to be identifi ed as author of this work has
been asserted by him in accordance with sections 77 and 78 of the
Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and recording,
or in any information storage or retrieval system, without permission in
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Whilst every effort has been made to ensure that the information contained
in this book is correct, neither the author nor Informa Law can accept
any responsibility for any errors or omissions or for any consequences
arising therefrom.
Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identifi cation and
explanation without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Berlingieri, Francesco, author.
International maritime conventions / by Francesco Berlingieri.
—(Maritime and transport law library)
ISBN 978-0-415-71984-1 (hardback) — ISBN 978-1-315-79645-1 (ebook)
1. Maritime law. I. Title.
K1150.B47 2013
341.4(cid:790)5—dc23
2013038767
ISBN: 978-0-415-71985-8
eISBN 978-1-315-79496-9
Typeset in Plantin
By Refi neCatch Limited, Bungay, Suffolk
CONTENTS
Glossary xix
Introduction xxi
Table of conventions xxiii
Table of decisions, directives, regulations, treaties and conversions xxxiii
Table of UK legislation and international legislation xxxiv
Table of cases xxxvii
Volume II
Part I Collision
Chapter 1 International Convention for the Unifi cation of Certain Rules
of Law Relating to Collision between Vessels, 1910 3
1 The history of the Convention 3
2 The scope of application of the Convention 7
2.1 The type of accidents to which the Convention applies 7
2.2 Type of ships involved in the collision 8
2.3 The nationality of the ships 9
2.4 The waters in which the collision has taken place 11
2.5 The nationality of the ‘persons interested’ 11
3 The liability regime 12
3.1 The various regimes in force prior to the Convention 12
3.2 The allocation of the burden of proof 12
3.3 The liability regime under the Convention 13
3.3.1 The situations in which no liability is conceivable 14
3.3.2 Unilateral fault 16
3.3.3 Two or more ships at fault 17
3.4 The apportionment of damages to ships, their cargoes and
other properties in case of common fault 19
3.5 Joint liability in respect of damages caused by death or
personal injury 20
3.6 A collision caused by fault of a pilot 21
3.7 Apportionment of the loss in case of limitation of liability 23
4 Absence of formalities 23
5 Absence of legal presumptions 24
6 Limitation periods 25
vii
CONTENTS
6.1 The general rule 25
6.2 The rule applicable to the right of contribution 25
6.3 Suspension or interruption of prescription 26
6.4 Extension of the period of prescription 26
7 Post- collision obligations 27
8 The obligations of the contracting parties 29
9 Relation with other conventions or national laws 30
Chapter 2 International Convention on Certain Rules Concerning Civil
Jurisdiction in Matters of Collision, 1952 31
1 Introduction 31
2 Scope of application 32
3 Cases to which the Convention does not apply 32
4 Courts in which an action may be brought 33
4.1 Basis of jurisdiction according to the Convention 33
4.2 Prohibition on bringing further action 35
4.3 Choice of court agreements 36
5 Rules of procedure 36
5.1 Counterclaims 36
5.2 Actions against other parties to the proceedings 37
5.3 Exercise of jurisdiction in further actions 38
Chapter 3 International Convention for the Unifi cation of Certain Rules
Relating to Penal Jurisdiction in Matters of Collision or Other
Incidents of Navigation, 1952 39
1 Introduction 39
2 Scope of application 39
2.1 Nature of the event 40
2.2 Position of the persons involved 41
2.3 Place where the event has occurred 41
3 Circumstances in which the fl ag of the ship is relevant 41
4 Confl ict with other conventions 42
Part II Salvage
Chapter 4 International Convention for the Unifi cation of Certain Rules
of Law Relating to Assistance and Salvage at Sea, 1910 47
1 Introduction 47
2 Scope of application of the Convention 49
2.1 The nature of the services 49
2.2 The subject matter of the services 49
2.3 The place where the services have been rendered 52
2.4 By whom and to whom the services may be rendered 52
2.4.1 The nationality of the vessels rendering and receiving
the services 52
2.4.2 Vessels in the same ownership 53
viii
CONTENTS
2.4.3 Ships of war and government vessels 53
2.4.4 Services rendered by the tug to the tow 54
2.4.5 Services rendered by the crew of the vessel in danger
or by the pilot 55
2.4.6 Services rendered from the shore 56
3 The remuneration due to the salvor 57
3.1 The notion of remuneration 57
3.2 The conditions for the entitlement to a remuneration 59
3.2.1 The notion of danger 59
3.2.2 The useful result 60
3.3 The amount of the remuneration 61
3.4 The allocation of the burden of proof 63
3.5 When no remuneration is due 63
3.5.1 Prohibition by the vessel to whom assistance is
rendered 63
3.6 When the terms of the salvage agreement may be challenged 64
3.6.1 Agreement made under the infl uence of danger 64
3.6.2 Agreement vitiated or remuneration too large or too
small 65
3.7 From whom the salvage remuneration is due 66
3.7.1 The distribution of the remuneration amongst the
salvors of the ship in danger 66
3.7.2 The apportionment of the remuneration amongst
the owner and the persons in the service of the
salving ship(s) 66
3.7.3 The apportionment of the salvage remuneration
amongst the salvors of a ship in danger and the salvors
of human life 67
4 The obligation to render assistance to persons in danger 67
5 Limitation of actions 68
Chapter 5 International Convention on Salvage, 1989 69
1 Introduction 69
2 Scope of application 71
2.1 The geographical scope of application of the Convention 71
2.2 The nature of the operations to which the Convention applies 72
2.2.1 The defi nition of salvage operation and the exclusion
of the liability salvage 72
2.2.2 The defi nition of ‘vessel’ 73
2.2.3 The defi nition of ‘property’ 75
2.3 The vessels or other property excluded from the scope of the
Convention 76
2.3.1 Platforms and drilling units 76
2.3.2 State-o wned vessels 77
2.4 The notion of danger 79
ix