Книга Дэвида Джексона «Морские иски» является полноценным и всеобъемлющим руководством по различным аспектам подачи морских исков в Англии и Соединенном Королевстве. В ней обсуждаются основные принципы и фундаментальные аспекты подачи морских исков наряду с основными проблемами.
Книга в основном рекомендуется практикующим морским юристам, адвокатам, барристерам, солиситорам, а также может представлять определенный интерес для академических юристов.
The David Jackson’s Enforcement of Maritime Claims is a full-scale and comprehensive treatise on various aspects of enforcement of maritime claims in England and UK. It discusses major principles and foundational aspects of enforcement, highlighting major issues.
It is recommended mainly to practicing maritime lawyers, barristers and solicitors and may also be of particular interest to academic scholars, dealing with maritime law enforcement issues.
Below are the excerpts from the book, which have practical importance:
- A primary legal source in maritime law, as well as judicial development, as in all branches of English law, is statute. Statute law controls the courts and, apart from directly effective or applicable provisions of the legislative framework of the European Union, cannot be questioned by the courts.
- English law lacks a fully comprehensive maritime code. Present day doctrine in part still reflects its origins. Court integration and statutes have had substantive effect in ironing out conflicts. However, English «maritime law” is still rooted in statute, procedure rules and judicial doctrine of Admiralty, common law and equity.
- There are three enforcement aspects of maritime claims, namely, the interim or provisional remedy aspect (the extent to which a remedy may be obtained by a maritime claimant so as to ensure that there will be assets available to turn a judgment into material gain), the jurisdictional aspect (the rules governing the bringing of an action to enforce a maritime claim) and the security aspect (the extent to which a maritime claimant becomes a preferred creditor).
- There are two methods of enforcement of claims, namely (1) by action in rem and (2) by an action in personam. The majority of claims are enforceable by both types of action and no claim is enforceable by an action in rem only.
- In the area of maritime claims in rem authorities as to any distinction between nature and priority of rights are unclear and unsatisfactory. It is, however, possible to argue that the distinctions between substance (or nature) and priority and the choice of law consequences have been judicially maintained.
- A maritime claim is more likely than not to be connected with more than one state. So any attempt to pursue such a claim in any state will often raise a preliminary question of jurisdiction in the courts or arbitral tribunal of that state.
- English courts will not enforce foreign revenue laws, foreign penal laws, laws in violation of international law or repugnant to public policy. Non-penal laws providing for expropriation of assets will be recognised insofar as they affect assets in the relevant foreign territory at the date of seizure but not otherwise.
- The reference to past jurisdiction creates problems of uncertainty and lack of uniformity of approach. Such reference requires historical reference to an age in which concepts now well established were in their infancy, in which jurisdictional quarrels with other English courts were rife and in which there was no thought of a jurisdiction based on international Conventions.
- There have been three attempts at the creation of an international framework in respect of some of the rules relevant to maritime liens and mortgages. These attempts resulted in the adoption of several conventions, neither of which has been a conspicuous success.
- The maritime lien will attach only if the ship is “the instrument of mischief”, so that where the crew cut a cable of another ship and damage ensued no maritime lien was created.
- Interim relief is relevant mainly to pre-judgment remedies but not exclusively so. Some of the remedies are available and appropriate to either claimant or defendant and some either to one or the other.
- Where the relief is to ensure that the interest of a party is protected if judgment is in favour of that party the point of the protection could be lost unless it continued until implementation of the judgment or order.
- The more the Convention on the Limitation of Liability for Maritime Claims 1976 is applied the less the need for a uniform approach on conflicts rules. The emphasis on forum law, however, does little to assist in resolving difficulties inherent in the insistence of states on applying their own domestic principles to a topic the existence of which is widely recognised.
- Any choice of law rule linking a dispute to a legal system on the basis of locality or territoriality must be modified as regards events occurring at a place not within the territory of any legal system. The need for such modification may be minimized in maritime law by treating ships as territory and limiting the area of uncertainty to events occurring otherwise than on board a ship.
- Maritime claims can be classified for the purpose of choice of law selection rules into the categories on which in English law selection is based, i.e. contractual, tortious, proprietary, restitution (or based on unjust enrichment), and statutory.
Источник: http://www.shippinglaw.ru/en/news-and-events/527/