海事司法中扣押方便旗船的可行性及途径探析

在国际海事司法实践中,扣押船舶是非常重要的一种担保债务人履行债务的方式,但是在两大法系中,船舶扣押制度的性质不同,实现方式也不同。如果涉及到方便旗船扣押,情况会变得更复杂。因为方便旗船涉及到船舶登记所有人、实际所有人及经营人等几个当事人之间复杂的关系,形成了几种不同的方便旗船运营模式,这给海事请求权人提起扣押方便旗船的申请带来了困难。文中通过分析两大法系针对船舶扣押的不同态度,基于剖析几种不同的方便旗船经营模式,分析海事请求人提出扣押方便旗船申请的可行性及可能的途径,从而保障海事请求权人的合法权益。     

海商法的统一化——现状、问题与对策

海商法是随着航海贸易的发展而产生和完善起来的。它的国际性决定了其发展呈现一个总的趋势和原则——海商法的统一化。以国际公约、国际惯例、示范规则等形式表现的国际统一海商法在具有全方位、多领域、内容前瞻性等特点的同时,也存在大统一、小分散、法律冲突仍旧突出等问题。采用“默示承诺程序”,充分发挥海事国际组织的规范协调作用、利用统一冲突法等对策可以弥补缺陷。     

US shipping policy under conditions of a new world economic and political environment

The maritime policy of the US has evolved over more than 100 years from the support of US shipping through mail and fleet auxiliary contracts before the turn of the century, to the present array of direct and indirect Government aids and regulations based on the assumption that a strong maritime industry composed of both US-flag shipping and US-shipbuilding capacity is essential for the economic well-being and defence of the country. Notwithstanding massive direct and indirect aid to the US merchant marine, amounting to well over a billion dollars a year in recent years, US shipping and shipbuilding has declined dramatically and now comprises less than 3% of world shipping. Only 2.8% of US foreign trade by volume and 6% by value is today carried in US flag ships. Government aids constitute well over 33% of total revenues of US-flag shipping.

The traditional argument for US Government support has been the need for cost parity to permit US-flag shipping to compete effectively in international trade against foreign shipping serving the same routes with presumably lower operating costs. This argument is difficult to sustain today, as vessel costs of many other industrialized nations are now about equal to those of US-flag ships.

In 1970 the US enacted a new, vastly more liberal, maritime act for the support of the US maritime industry. Notwithstanding its even more liberal terms and elimination of the strict cost-parity interpretation, the US maritime industry continues its decline. The recent bankruptcy of two old, established subsidized shipping companies has caused tremors in the industry, yet no new ideas, policies, or plans seem to be forthcoming. It is the objective of this paper to study the development and effects of various historic US Government policies relating to the support of the US maritime industry, and evaluate the positions taken by proponents or opponents of the maritime policy leading to the policy development.

The decision processes are studied by evaluating literature on the evolution of Congressional, administration, industry, and labour interest and positions on the issue of Government aid to the maritime industry. The impact and effectiveness of various elements of past and present US maritime policy is evaluated in relation to the stated objectives. The alternatives to these policies are reviewed in the light of the changing US position in international trade, military strategy, and political objectives. In addition the effectiveness of the present and alternative policies is evaluated as it is and will be affected by changing technology in use, composition of ownership, and operations of US-flag shipping and shipbuilding.     

海事行业综合门户网站——中国海事服务网

<正>中国海事服务网(英文简称CNSS)成立于2006年,是集行业资讯与用户应用体验于一体的海事行业综合门户网站。经过几年的发展与完善,目前中国海事服务网已实现全方位覆盖整个海事行业,设有船员、船舶、航运、港口、游     

ISM规则下有关船舶适航的法律适用问题

海事司法实务中,作为国际公约的ISM规则在国内适用,势必对船舶适航的认定产生重大影响。肯定了ISM规则对航行于国际航线的我国船舶适用所具备的条件,并阐明在船舶适航方面ISM规则适用的法律依据。     

From privilege to peril

This article addresses the growing concern over the diminishing legal rights and increasing responsibilities of those in command of ships today. A number of high-profile maritime accidents have focussed on the dilemma faced by shipmasters who appear to be held responsible for actions over which they have little or no control. This seems to indicate that the traditional privilege and honour associated with command appears to have become a risky burden. The article discusses the legal rights and responsibilities that shipmasters have today in terms of international maritime law and policy. Four case studies are utilized to illustrate the problem.     

The international legal instruments in addressing piracy and maritime terrorism: A critical review

This paper critically reviews four international legal instruments in addressing piracy and maritime terrorism - UNCLOS, SUA, PSI and the ISPS Code. Piracy on high seas is currently becoming key tactics of terrorist groups - many of today's pirates are also terrorists with ideological bents and a broad political agenda. The intertwining of piracy and maritime terrorism poses substantial risks for global markets, understanding that much of the world's energy and cargoes being shipped through pirate-infested regions like Southeast Asia. Through investigating the contributions and limitations of the stated instruments, several constructive recommendations are offered to improve their effectiveness in controlling and deterring piracy and maritime terrorism from threatening the well-being of the maritime industries in the post-2008 world.     

Maritime legislation: new areas for safety of life at sea

This study reveals areas where IMO regulations of safety of life at sea can be improved upon. After examination of 5389 mortality and 3559 accident cases of UK seamen and 6878 fatalities of worldwide seamen, it finds fatalities due to personal accidents on board ship constitute ～90% of all mortality cases. Therefore, prevention of personal accidents should be given a higher priority. It reveals also that accidents involving coastal (domestic) ferries were another concern in the safety of life in shipping, e.g. in 1996 alone more than 2562 fatalities occurred in this sector. As a case study, the nationalities of 364 deceased seamen in bulk carrier disasters (1990–1998) are identified. Fatalities to British and worldwide seamen are based on the data obtained from various sources. However, fatalities to seamen working on board open registry ships are the best estimation, based on the information available to the authors.     

Maritime legislation: new areas for safety of life at sea

This study reveals areas where IMO regulations of safety of life at sea can be improved upon. After examination of 5389 mortality and 3559 accident cases of UK seamen and 6878 fatalities of worldwide seamen, it finds fatalities due to personal accidents on board ship constitute ~90% of all mortality cases. Therefore, prevention of personal accidents should be given a higher priority. It reveals also that accidents involving coastal (domestic) ferries were another concern in the safety of life in shipping, e.g. in 1996 alone more than 2562 fatalities occurred in this sector. As a case study, the nationalities of 364 deceased seamen in bulk carrier disasters (1990?1998) are identified. Fatalities to British and worldwide seamen are based on the data obtained from various sources. However, fatalities to seamen working on board open registry ships are the best estimation, based on the information available to the authors.     

Piracy, navies and the law of the Sea: the case of Somalia

This contribution concentrates on the legal aspects of piracy and tries to explain some of the practical problems which modern navies experience in their fight against piracy and maritime violence off Somalia. The UN Law of the Sea Convention of 1982 provides a traditional though largely deficient set of rules for control and counter measures. Modern legal instruments such as the SUA Convention of 1988 as amended, recent resolutions of the UN Security Council and regional treaties try to fill the loopholes. Against this background the paper discusses e. g. the law of boarding and investigation of suspicious vessels, the arrest and penal prosecution of criminals and the right of self-defence in case of an imminent attack. The international mandates and the national rules of engagement in which the navies operate reflect these ambiguities that result in a loss of momentum. After all piracy is not an act of war, but a crime. In conclusion apolitical solution on land is indispensable as the navies and coast guards can only fight the symptoms and not the causes of crime and unrest in a failed State.     

The ISM Code and the ISPS Code: A critical legal analysis of two SOLAS regimes

Within the comprehensive body of law encompassed by the International Convention on Safety of Life at Sea, 1974 (SOLAS), there are two regimes that are topical and outstanding in the current maritime milieu. These are the international safety management and the international ship and port facility regimes, both characterized by two codes serving as the centre of gravity of each, namely, the ISM Code and the ISPS Code, respectively. In this article the concept of the code as a legal instrument is perused following which a critical legal analysis is carried out of the two above-mentioned Codes, including their backgrounds, the evolutionary process culminating into the regimes and their interrelationships. Several anomalies and inadequacies in the two regimes are identified but in the final analysis it is concluded that both instruments are salutary additions to the body of convention law generated by the International Maritime Organization (IMO). They will undoubtedly influence the continuing development of international law in the field of maritime safety and security.     

Sea daddy: an excursus into an endangered social species

This paper examines the stereotypic image of the American merchant seaman. The persistence of this stigma has made attempts at higher social status for seamen problematic. A typology of seamen is constructed on the basis of two dimensions: primary identification either with seaman subculture or shore-side society; and response to the stigma of the occupation. Ninety-five interviews were conducted with seamen, union officials, and relatives of seamen. Participant observation is used to supplement the data obtained in the interviews.     

水上交通事故安全调查独立性的研讨

独立的水上交通事故安全调查是目前世界海事组织推荐的一种事故调查模式。结合我国海事调查的实际情况，从法学理论到海事执法实践，从国际公约要求到社会安全需求等方面说明了事故安全调查独立性的必要性。同时，通过对这种海事调查模式的综合分析，论述了独立性事故安全调查与国际合作调查的关系，并对其未来的发展进行了探讨。     

A human factors systems approach to examining oil spills in tankbarge operations: analysis and reappraisal of management policies

An important problem in the US maritime industry is the large number of oil spills that occur as a result of oil transfer operations involving tankbarges. Recently, the US Coast Guard initiated a new programme entitled Prevention Through People that represents a concerted effort towards preventing human errors leading to casualities and oil spills. The purpose of the study reported in this paper was to explore tankbarge oil transfer operations from the standpoint of regulatory, management, and operational perspectives in order to determine the likelihood that this new initiative will indeed result in a better understanding of the causal basis for human error in these operations and, more generally, in the maritime industry. The results of this novel study are discussed and summarized in terms of four broad classes of recommendations.     

从海洋环境保护的角度分析"避难地"的法律问题

近年来大型油轮事故引发了"避难地"的国际性法律问题.如何看待和正确处理这一法律问题已摆到许多国家的工作日程之上.在回顾"Erika"轮、"Caster"轮和"Prestige"轮事故所引起"避难地"法律问题的基础上,介绍了目前"避难地"问题的国际法律背景和世界有关国家涉及"避难地"方面的国家立法与观点等相关情况.同时,就"避难地"问题的本质、立法途径进行了讨论.     

The growth and patterns of international trade

Over the last 40 years, there has been an unprecedented growth in trade amongst countries, and the growth in trade shows no sign of slowing down. The increases in trade have put tremendous pressure on the maritime and port industries, and these industries have responded with innovations, investment, and greater productivity. International trade and maritime trade are synonyms, and an understanding of the determinants of international trade is central to understanding maritime trade. In this paper, we provide a review of the international trade literature with a focus on the determinants of trade and the evolution of trade modeling. We then present a broad overview of the extent and growth of trade in the context of primary determinants. The basic results are: (1) Trade is growing at a phenomenal rate; (2) Trade is dominated by relatively few countries who tend to remain dominant; (3) While trade of all products is growing, there are large differences in the growth rates, but yet, there is stability in the relative sizes of product markets; and (4) Over the last 40 years, trade has changed from major flows between the US and Europe to major flows between Asia and the US.     

《中国海员》——关注海员文化生活

《中国海员》杂志面向海内外发行，为双月刊，刊号为ISSN1005—9067／CN31—1034／C，其读者主要是水运系统的150万职工和水运企事业单位。杂志内容反映水运系统企事业单位的发展，以及水运企事业单位职工的工作和生活，包括远洋海员、国内船员丰富多彩的文化生活、海内外见闻、海上航运安全、水运企事业经济发展等，主要栏目有“港口阳光”“海内外”“交通人征文”“生活潮”“国际航运专递”“当家人论坛”等等。     

Shipping and the competitive advantage of nations: the role of international ship registers

This paper argues that the creation of international ship registries by traditional maritime countries will not sufficient to halt the decline of their fleets. Over the last two decades shipping has undergone profound restructuring, characterized by a trend towards globalization and a search for a more efficient factor input combination. While shipowners from OECD countries have relied increasingly on flags of convenience, new maritime countries, particularly from Pacific Asia, have emerged, taking advantage of low-cost inputs and supportive national national environments. In the late 1980s the traditional maritime countries responded to the challenge by introducing international ship resistries. The Norwegian International Ship Registry is the most liberal and has the greatest success. Other new registries have limited impact. It appears that an international ship registry per seis not sufficient to reverse declining national fleets.     

EU maritime transport

The purpose of this paper is to summarize the European maritime transport policy within the context of maritime politics at large. At the outset the legal framework conditions and supportive instruments for the shipping and port industries are presented. Against the background of recent accidents at sea, such as the sinking of ERIKA and PRESTIGE, the EU legislation on maritime safety is of particular interest as it is both complex and rapid in reaction to environmental needs and political pressure. Finally, the sensible relationship between the EU as a regional organization and the IMO as “the competent international organization” is discussed with a view to reconcile possible rivalry and to suggest a complementary cooperation between the two organizations.     

Union rivalry and crew reform in shipping: A United States—Australia comparison

The national-flag fleets of most of the traditional martitime nations have, in virtually every case, been in decline in the 1980s and 1990s, despite the continued growth of ocean shipping. They have declined in terms of numbers of vessels and numbers of sea-going jobs, although not necessarily in terms of cargo carried. However, a number of those nations have responded to the changed technological and competitive conditions with some success by attempting to adjust crewing and work practices on vessels at sea. Neither the USA nor Australia has been in the forefront of such change. However, considerably more progress has been made in modernizing crewing practices and work rules in the Australian-flag fleet than in the US-flag fleet. There are a variety of reasons for this, inluding government policy. However, it is our argument that one of the principal reasons the US fleet lags behind the Australian fleet in the adoption of modern crewing practices and work rules is the much greater degree of union rivalry in the US shipping industry. In fact, while the degree of fragmentation and rivalry among unions in the Australian flag fleet has declined dramatically since 1980, their US cousins have continued, and in some ways expanded, their pattern of fratricidal behavior. First we shall discuss some of the technological and competitive imperatives that are driving human resource management practices in shipping and the crewing and industrial relations adjustments that are being made around the world to adjust to them. Then we shall indicate how the Australian and US fleets have responded to these challenges. This will be followed by a discussion of unionism in the Australian and US maritime industrics as it has devloped in the last two decades of the twentieth century. Finally, we shall draw conclusions about the impact of different patterns of unionization.