В публикации подводятся важнейшие итоги развития морского транспорта в Украине за последние 20 лет, то есть за время ее существования в качестве независимого государства, а также рассматриваются перспективы реформирования этого сектора экономики страны. Особое внимание авторы посвятили вопросам, связанным с сокращением тоннажа торгового флота, несущего флаг Украины, развитию портового хозяйства в стране и проблемам, связанным с работой украинских моряков на судах под иностранными флагами.
The anniversary celebration, in particular, a state independence anniversary suggests summarizing some results of the state’s independent life. People working and closely related to the maritime sector, namely lawyers specializing in maritime law cannot stand aside from celebration of such a remarkable date as 20 years of Ukraine’s declaration as an independent state.
Unfortunately, not all of such results can be recognized as positive ones.
The merchant fleet
In times of the former USSR the Black Sea Shipping Company, set up yet in 1833 and based in Odessa, was one of the largest shipping companies in the world and the largest in Europe. By 2006 the number of the vessels owned by that company became 20 times less and in the short run the company practically ceased to exist as a ship owner. The deadweight of the fleet under the Ukrainian flag for 20 years of independence shrank by 6 times. In the long run, according to the data of United Nations Conference on Trade and Development (UNCTAD) the fleet flying the Ukrainian flag occupied 72nd place in the world, whereas at the beginning of the 1990s the Ukrainian fleet was in 25th position. Thus, at the beginning of 1993 the deadweight of the merchant fleet of Ukraine was more than 6 million tons and in 2010 was less than 1 million, just 904,000 tons. At the same time, a great number of small private shipping companies have been set up on the territory of the present Ukraine in place of the not numerous state ship owners. The major companies are Ukrrichflot, Ukrferry, Commercial Fleet of Donbass, Transship and Chernomortekhflot.
Certainly, Ukrainian ship owners have vessels registered in off-shore jurisdictions. They fly the convenient flags of the Russian Federation, Moldova, Georgia, Slovakia and the Kingdom of Cambodia, not to mention such popular jurisdictions as Saint Vincent and the Grenadines, Saint Kitts and Nevis, Panama, Liberia, Malta, the Comoros and Belize. But why? Because the Ukrainian flag is “inconvenient”. The majority of lawful and other companies engaged in registration of vessels do not render services on registration under the State Flag of Ukraine. The fact is that most countries, including Ukraine, that have shipping registers where registration is subject to some strict rules introduce second or international registers. Registration of vessels in such registers is regulated by more liberal rules. As for the offshore jurisdictions, the registration of vessels under the flags of such countries is really convenient. No quotes. Ad notam, we have been standing on the idea of the second register in Ukraine for a long time. We have been inspired by states friendly to us — Russia and Georgia, in particular.
Port economy
Powerful commercial ports alongside the powerful merchant fleet were based on the territory of former Soviet Ukraine. They handled more than 120 million tons of cargo in 1990. And it is no wonder as they served the needs of a great country — the USSR. The severance of economic ties due to the collapse of the USSR led to a sharp fall in goods turnover. In the middle of the 1990s a low was reached that was less than half of that volume (54 million tons). Only in the middle of the first decade of the XXI century did freight turnover reach its pre-crisis level. In the record year of 2008 the freight turnover of the Ukrainian ports exceeded 180 million tons. Exports estimated the capacity of Ukrainian ports exceeds more than 200 million tons per year. In the same 2008 Ukraine joined the World Trade Organization (WTO).
Thus, we can be proud of some achievements in this sphere. However, the main achievement is that the state
ownership related to the sea ports is not absolutely predominant in the modem economic and legal environment. “Surely the property relations in the port sector of Ukraine have not been radically restructured. Even in 2010 state ownership constituted about 70% in the port sector. For the latest decades the volume of state ownership was reduced by 10% and it is still falling in Ukrainian ports. About 70 companies are currently engaged in cargo handling at Ukrainian ports. The main problem is still to overcome monopoly.
Human resources potential
The loss of the merchant fleet’s positions did not at all mean the loss of the human resource potential. A lot of work related to training and retraining of the coastal and crew personnel is still in progress in Ukraine. There is no doubt that some substantial regress could be observed during the first years of independence the consequences of which have not yet been removed. However, the positive development trend prevails at present. Ukraine has become a big human resources supplier to the labor market in the maritime transport sector. Indeed, a long time has passed since the first Ukrainian seafarers began to land their jobs “under the flag” as they used to say. And it caused a lot of disputes and conflicts that time!
Today a seafarer working on a vessel flying some foreign flag is almost a standard. As reported by Drewry Shipping Consultants Ukraine ranks fourth in terms of the number of officers and sixth as to the number of seafarers on the vessels of the merchant fleet: 35,400 and 75,400 people, respectively. But is there anything to be proud of? It is doubtful! And it shows not only the good training of the Ukrainian seafarers, but the insecure economy of our country.
Let us take an example from the history of South Korea. When living standards rose in the 1980s, the number of seafarers fell from 51,000 till 41,000 persons by the end of the decade. The seafarers discovered that they could earn more on land than at sea.
Indeed, in the conditions of modem market economy material relations are frequently assumed by society as the main factors of our existence and consciousness. There are few people that are inspired by sea romance. Merchant shipping is treated as “a transport workshop” of the country and it produces only about 1.5% of gross domestic product. At the same time, the prospects for development of marine transport are lost, though the development of the whole country depends much on the development of this sector. There are opinions that another 20 years have to pass after reforms before any results become visible in this sector. It may be true but the earlier we start the more we save not wasting valuable time. Timely solutions are sometimes better than ideal solutions.
Prospects for reforms of maritime transport in Ukraine
From our point of view the key section of the marine sector to be immediately reformed is the port sector. The advantageous geographical location of Ukrainian sea ports can make them not only the gates of our country, but of all of Eastern Europe.
On 3 November 2011 the Parliament adopted the On Sea Ports Act of Ukraine (the Act). So, our expectations came true.
The On Sea Ports Act contains considerable provisions to trigger if not a revolution, but real reform of the industry. These include function sharing (when almost all commercial functions to be transferred from the state to commercial entities); considerable progress in solving land issue (land plots may be state, municipal and/or , privately owned); privatization, long term lease and concession \ of land and so-called integral \ property complexes, etc.
There is no doubt that the new law can be argued on some particular issues. There can be opponents to such a model of port development in Ukraine. The details can be also disputed. But the good news is that this law is in many aspects quite like the reforms that have been suggested by real investors, cargo owners. The present Ukrainian government, as a representative of export orientated industrial and financial groups, has to be deeply focused on the country’s export potential support. Accordingly, the new law is quite in line with the current political trend, which makes us rather optimistic about the reform. ‘
Unfortunately, in December 2011 the President of Ukraine Viktor Yanukovych vetoed the Act. According to a statement from the President’s office, the Act had a number of shortcomings. So it needs to be revised and elaborated. The legal and business environment isn’t particularly investment friendly. The very notion, of a port as a company is a little alien to the culture — the ports are still public entities. To change the regulations one has to clearly define the strategy. Thus, until, we will continue to speak about “nice potential” while it remains mostly i unrealized. After more than 10 years of debate and argument and 20 years of independence, Ukraine can still not settle a clear legal framework for the rights and responsibilities of port authorities and private terminal operators.
Авторы:
Arthur A. NITSEVYCH is managing partner of International Law Offices, Chairman of the Nautical Institute of Ukraine
Nikolay V. MELNYKOV is a partner of International Law Offices
Источник: Ukrainian Journal of Business Law. – 2012. – № 3. – Р. 34 – 35.