In Croatian: U radu se analizira pitanje primjene granica ograničenja odgovornosti brodara izmijenjenih putem postupka prešutnog prihvata (“tacit acceptance procedure“). Rad je potaknut postupkom ...osnivanja fonda ograničene odgovornosti koji se vodio pred Trgovačkim sudom u Splitu, a povodom nezgode koja se dogodila u Luci Ploče u kolovozu 2018. godine. U postupku se postavilo pitanje koje iznose ograničenja odgovornosti brodara treba primijeniti – iznose iz čl. 391. st. 1. toč. (2) Pomorskog zakonika, u to vrijeme usklađene s iznosima Protokola iz 1996. o izmjeni Konvencije o ograničenju odgovornosti za pomorske tražbine iz 1976. godine (Konvencija o ograničenju iz 1976.) koji je na snazi za Republiku Hrvatsku, ili prešutnim prihvatom povišene iznose iz Protokola 1996. usvojene IMO Rezolucijom iz 2012. koja je za sve države stranke Protokola iz 1996. na snazi od 8. lipnja 2015., ali u RH nije objavljena. Autorica će u radu analizirati model izmjene i dopune međunarodnih ugovora putem postupka prešutnog prihvata te odgovoriti na pitanje o obvezatnosti primjene tako usvojenih izmjena i dopuna za države stranke međunarodnih ugovora koji predviđaju takav način izmjena ili dopuna. In English: The paper gives a brief overview of the amendments to the IMO Conventions through the tacit acceptance procedure. The reason for writing this paper was the ruling of the Commercial Court in Split pertaining to the establishment of the limitation of the liability fund. The operator of the m/s “STI POPLAR“ (port of registry, flag and nationality of the Marshall Islands) sought to limit its liability for damage to port property (installation) caused by STI POPLAR at the Port of Ploče on 5 August 2018. The question arose as to what limits of liability, under Croatian law, should be applied in this case – whether the amounts prescribed by a national act or those prescribed by a relevant unification instrument which is binding for the Republic of Croatia. The operator argued that the limitation fund should be calculated according to the limits set out in Art. 391, para. 1(2) of the Croatian Maritime Code (the amounts correspond to those in the 1996 Protocol to the Convention on Limitation of Liability for Maritime Claims, 1976 (LLMC). The creditors disagreed and argued that the limitation fund should be set up according to the limits under the 1996 Protocol as increased by the tacit acceptance procedure, taking into account that both the Marshall Islands and the Republic of Croatia are parties to the Protocol. The limits of liability under the 1996 Protocol as increased by the Protocol’s tacit acceptance procedure were recently raised by about 50%. The new limits, accepted under the tacit acceptance procedure, were adopted by the IMO Resolution of 2012 effective from 8 June 2015 and applied automatically in the States parties to the 1996 LLMC Protocol. Taking into account that this is a dispute with an international element, the court accepted the allegations of the creditors and approved the establishment of the limitation fund according to the new limits that came into force in June 2015 through the Protocol’s tacit amendments procedure.
Rad daje kratak prikaz osnovnih oblika izvanugovorne odgovornosti koje propisuje
Pomorski zakonik. S obzirom da se zakonski oblici odgovornosti primjenjuju
na sve plovne objekte, u radu se posebna ...pažnja posvećuje pitanju određivanja
odgovorne osobe u slučajevima kada se radi o odgovornosti za štetu koju je prouzročila
jahta ili brodica. Ističe se da važeća pravna regulativa koja se odnosi na
nautički turizam, posebice na djelatnost iznajmljivanja jahti i brodica u odnosu
na osobe na strani jahte i brodice koristi različite pojmove i definicije što otežava
utvrđivanje tko je nositelj imovinskopravne odgovornosti. U interesu zaštite potencijalnih
oštećenika, posebice marina i drugih luka nautičkog turizma, u radu se
daje prijedlog izmjena i dopuna Pomorskog zakonika u pogledu određivanja odgovornih
osoba na strani jahti i brodica. Zaključno se naglašava da bi predložene izmjene
i dopune Pomorskog zakonika pridonijele jasnijem i ispravnijem tumačenju
i primjeni zakonskih odredbi te postizanju pravne sigurnosti.
The paper provides an overview of the Croatian legislative framework governing the matter of liability for marine oil pollution damage caused by ships. In particular, it addresses the issue of ...compensation for ecological damage, as a specific type of pollution damage to the marine environment. The motive for writing this article was the marine pollution caused following the accident of the ship Fidelity in the Gulf of Raša in July 2018. In the proceedings for the preservation of evidence initiated at the proposal of the County State Attorney’s Office in Pula, Rijeka Commercial Court ordered an expert report to ascertain and assess the environmental damage caused by the spillage of fuel oil. The authors highlight the diversity of approaches to the recognition and assessment of ecological damage at the international level, but also at the national level, i.e., in the Republic of Croatia. The authors present a brief overview of the solutions related to the assessment of environmental damage under general environmental regulations, but also under the special systems of international liability for marine pollution by ships (CLC/Fund 92 and Bunker System) applicable in the Republic of Croatia. In this regard, the authors point out that the general environmental regulations, in determining ecological damage, in addition to compensation for the costs of primary remedial measures, also recognise compensation for losses incurred due to the fact that the damaged resorces and/or natural functions cannot perform their ecological function or perform functions for other assets or the public until the primary measures reach their full effectiveness. Additionally, general environmental regulations also recognise the damage caused to the marine environment itself. The authors particularly emphasise that special Convention systems have a much more restrictive approach to recognising compensation for environmental damage and only recognise compensation for reasonable costs that seek to restore the marine environment to its pre-pollution state. The paper provides an overview of court decisions made following the Erika and Prestige tanker accidents and warns of new trends in the recognition and assessment of environmental damage by national courts, namely deviations from the restrictive approach of the Convention system. Particular attention is given to an analysis of the provisions of the Maritime Code in relation to the recognition of ecological damage. The authors highlight the danger hidden by the separate definition of such damage in Article 49.g of the Maritime Code, in addition to the special regime aligned with the Convention liability systems. In conclusion, it is pointed out that there will most likely be an initiative in the future to revise the agreed solutions regarding the recognition of compensation for ecological damage in cases of sea pollution caused by ships in order to consistently implement the “polluter pays” principle and thus contribute to achieving the sustainable development goals. However, until now, the legal solution of the Maritime Code, which extracts environmental damage and defines it specifically, leads to inconsistent interpretations, and thus legal uncertainty. Hence, the authors propose appropriate de lege ferenda solutions.
The paper gives a brief overview of the amendments to the IMO Conventions through the tacit acceptance procedure. The reason for writing this paper was the ruling of the Commercial Court in Split ...pertaining to the establishment of the limitation of the liability fund. The operator of the m/s “STI POPLAR“ (port of registry, flag and nationality of the Marshall Islands) sought to limit its liability for damage to port property (installation) caused by STI POPLAR at the Port of Ploče on 5 August 2018. The question arose as to what limits of liability, under Croatian law, should be applied in this case – whether the amounts prescribed by a national act or those prescribed by a relevant unification instrument which is binding for the Republic of Croatia. The operator argued that the limitation fund should be calculated according to the limits set out in Art. 391, para. 1(2) of the Croatian Maritime Code (the amounts correspond to those in the 1996 Protocol to the Convention on Limitation of Liability for Maritime Claims, 1976 (LLMC). The creditors disagreed and argued that the limitation fund should be set up according to the limits under the 1996 Protocol as increased by the tacit acceptance procedure, taking into account that both the Marshall Islands and the Republic of Croatia are parties to the Protocol. The limits of liability under the 1996 Protocol as increased by the Protocol’s tacit acceptance procedure were recently raised by about 50%. The new limits, accepted under the tacit acceptance procedure, were adopted by the IMO Resolution of 2012 effective from 8 June 2015 and applied automatically in the States parties to the 1996 LLMC Protocol. Taking into account that this is a dispute with an international element, the court accepted the allegations of the creditors and approved the establishment of the limitation fund according to the new limits that came into force in June 2015 through the Protocol’s tacit amendments procedure.
The paper gives a brief overview of the amendments to the IMO Conventions through the tacit acceptance procedure. The reason for writing this paper was the ruling of the Commercial Court in Split ...pertaining to the establishment of the limitation of the liability fund. The operator of the m/s "STI POPLAR" (port of registry, flag and nationality of the Marshall Islands) sought to limit its liability for damage to port property (installation) caused by STI POPLAR at the Port of Ploče on 5 August 2018. The question arose as to what limits of liability, under Croatian law, should be applied in this case – whether the amounts prescribed by a national act or those prescribed by a relevant unification instrument which is binding for the Republic of Croatia. The operator argued that the limitation fund should be calculated according to the limits set out in Art. 391, para. 1(2) of the Croatian Maritime Code (the amounts correspond to those in the 1996 Protocol to the Convention on Limitation of Liability for Maritime Claims, 1976 (LLMC). The creditors disagreed and argued that the limitation fund should be set up according to the limits under the 1996 Protocol as increased by the tacit acceptance procedure, taking into account that both the Marshall Islands and the Republic of Croatia are parties to the Protocol. The limits of liability under the 1996 Protocol as increased by the Protocol's tacit acceptance procedure were recently raised by about 50%. The new limits, accepted under the tacit acceptance procedure, were adopted by the IMO Resolution of 2012 effective from 8 June 2015 and applied automatically in the States parties to the 1996 LLMC Protocol. Taking into account that this is a dispute with an international element, the court accepted the allegations of the creditors and approved the establishment of the limitation fund according to the new limits that came into force in June 2015 through the Protocol's tacit amendments procedure.
This paper provides a short overview of the basic forms of non-contractual liability prescribed by the Maritime Code. Considering that the prescribed forms apply to all vessels, in this paper special ...attention is given to the problem of determining the liable persons in cases of liability for damage caused by a yacht or a boat. It is pointed out that the current regulations regarding nautical tourism, especially the ones regulating the activity of renting yachts and boats, use different terms and definitions regarding persons on the side of the yacht and the boat which makes it more difficult to determine which of them can be the bearer of liability. With the interest of protecting potential injured parties, in particular marinas and other nautical tourism ports, the author proposes changes and additions to the Maritime Code regarding the determination of liable persons on the side of the yachts and boats. Finally, the author stresses that, if applied, the proposed changes and additions would contribute to clearer and more accurate interpretation and application of legal provisions and contribute to achieving legal certainty, as well.
This paper provides a short overview of the basic forms of non-contractual liability prescribed by the Maritime Code. Considering that the prescribed forms apply to all vessels, in this paper special ...attention is given to the problem of determining the liable persons in cases of liability for damage caused by a yacht or a boat. It is pointed out that the current regulations regarding nautical tourism, especially the ones regulating the activity of renting yachts and boats, use different terms and definitions regarding persons on the side of the yacht and the boat which makes it more difficult to determine which of them can be the bearer of liability. With the interest of protecting potential injured parties, in particular marinas and other nautical tourism ports, the author proposes changes and additions to the Maritime Code regarding the determination of liable persons on the side of the yachts and boats. Finally, the author stresses that, if applied, the proposed changes and additions would contribute to clearer and more accurate interpretation and application of legal provisions and contribute to achieving legal certainty, as well.
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