В настоящей публикации содержится обзор некоторых договоров в сфере шиппинга и связанных с ними институтов. А именно: судостроительных контрактов, договоров перевозки груза, в том числе, морской перевозки, претензий по грузу, а также ограничения ответственности.
Shipping contracts
i Shipbuilding
There are a lot of shipbuilding companies in Ukraine, mostly concentrated in the Nikolaev and Kherson regions. Dealings concerning shipbuilding contracts and sale and purchase agreements are regulated by the Civil and Commercial Codes of Ukraine. Ukrainian law allows the parties to define the wording of obligations and rights, the means of fulfilment of the contract, and any other terms and conditions of purchase. The parties are entitled to conclude both preliminary agreements and additional agreements. As soon as an agreement is finalised, it is deemed to have been accepted by all parties. The parties also define the form of the agreement (whether in writing or certified by a notary). Title passes to the buyer when the ship is delivered in accordance with the acceptance protocol; however, the parties can opt for an alternative means for the ship’s title to pass. By concluding the preliminary agreement, the purchaser has control of the shipbuilding process.
It is preferable for the parties to declare the amount of the bank guarantee provided by the shipyard during the construction period. Penalties for non-performance of the agreement may be included in the wording of the agreement. In the event of a shipyard’s failure to fulfil any provision of the contract, the purchaser has the right to apply to court for reimbursement of costs.
On 13 March 2018, changes to the Customs Code of Ukraine were initiated with the aim of liberalising the shipbuilding market. According to the changes to Article 151 of the Customs Code, objects for shipbuilding and ship reconstruction shall be under customs control for up to 730 days. Therefore, the legislation changes have increased the term for the reconstruction customs regime, which is usually used for foreign vessels that proceed to Ukrainian shipyards for reconstruction.
The shipbuilding prospects in Ukraine are not great; however, some shipbuilding projects have been under way in Ukraine. In 2018, six vessels were built by Ukrainian enterprises and registered under the Ukrainian flag, and the Maritime engineering bureau located in Odessa prepared projects for 22 newbuild vessels in three countries.
ii Contracts of carriage
The carriage of goods is regulated by the Merchant Shipping Code of Ukraine, the Commercial Code, the Civil Code and the Law on Transport. Carriage of goods by both river and sea is regulated by the Budapest Convention on the Contract for the Carriage of Goods by Inland Waterways. Ukraine has not ratified the Hague Rules, the Hague-Visby Rules or the Hamburg Rules, and is not a party to the UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. However, any provisions of, for example, the Hague Rules that are incorporated in bills of lading shall be obligatory for the parties thereto.
The are no laws specifically regulating transport by more than one mode or multimodal bills of lading. The Ukrainian Law ‘On transport’ is the main legislation regulating transport in general. The Merchant Shipping Code of Ukraine regulates the maritime transport sector. Contracts of carriage by maritime transport are regulated by Section V, Chapter 2 of the Merchant Shipping Code of Ukraine.
The bill of lading is the main document proving acceptance of a cargo for carriage. According to the Merchant Shipping Code of Ukraine, ‘other written evidence’ issued by the carrier may prove acceptance of the cargo for carriage.
The shipper is entitled to cancel the contract of carriage and return the cargo at any time by presenting all bills of lading issued for the shipper.
The carrier is obliged to prove the seaworthiness of the ship. Any agreements reducing the responsibility of the carrier regarding seaworthiness are invalid. The carrier can avoid responsibility by proving that he or she exercised due diligence in preparing the ship.
Cabotage is carried out by ships flying the Ukrainian flag or foreign ships that have the necessary permission from the Ministry of Infrastructure of Ukraine, as required by the Merchant Shipping Code of Ukraine. Permission to carry out cabotage is not included in the list of permission documents issued by the Ministry of Infrastructure of Ukraine. The Ministry responds to applications by shipowners with formal letters of permission.
A carrier may execute the right of lien at the port of arrival if the freight is not paid in time. The cargo shall be held by the carrier on the vessel or in the warehouse at the port of arrival. The carrier has the right of lien as long as he or she possesses the cargo. This is a natural right of the carrier and may not be stipulated in the charter party. The vessel, cargo or freight may be the lien when this is commensurate with the claim.
iii Cargo claims
The party whose rights have been violated has the right to claim for damages. Most cargo claims are heard by the commercial courts, which are authorised to decide a case between two or more legal entities. However, if one of the parties is a physical person, the commercial court is not authorised to hear the case. The claimant is entitled to apply to the court that is local to the place of registration of the defendant.
When the defendant is related to a legal entity, the claimant should apply to the court that is local to the place of registry of the relative. When the defendant is a foreign legal entity and does not have a place of registration in Ukraine, the claim shall be applied to the court at the place that is local to the defendant’s property. If a carrier is the defendant, the case can only be heard by the court that is local to the carrier’s location.
Cases concerning the arrest of a vessel in respect of a maritime claim can only be heard at the court that is local to the port where the vessel was registered or is currently located.
The parties to the case are entitled to draw up an arbitration agreement or sign an arbitration clause. The commercial court assumes the validity of any arbitration agreement or clause, unless proven otherwise.
The charter party terms may be incorporated into the bill of lading when the charter party is identified on it. Demise clauses and identity-of-carrier clauses are not recognised or binding.
iv Limitation of liability
Limitation of liability is regulated generally by the Merchant Shipping Code of Ukraine and the Commercial Code.
The general time limit is three years. This may be extended by written agreement of the parties involved. The claim limit as stated by law cannot be shortened by the written agreement.
The court or arbitral tribunal cannot extend the time limits. A party that exceeds the time limit may apply to the court for an extension. If the court can verify that the time limit was missed on reasonable grounds, it will approve the extension.
If the cargo value is not declared in the bill of lading, the carrier’s liability for damaged or lost cargo shall be limited to 666.67 units of account or 2 units of account per kilogram of the gross mass of the cargo, whichever is the greater.
Claims arising from marine casualties caused by the pilot are covered by an emergency pilotage fund, which corresponds to 10 per cent of all pilot charges received in the preceding year.
The liability of a nuclear vessel operator in respect of nuclear damage is limited by the provisions for limitation funds set out in Article 324 of the Merchant Shipping Code.
A carrier’s liability in respect of a claim resulting from death or injury of a passenger is limited to 175,000 special drawing rights.
In respect of damaged or missing luggage, a carrier’s liability is limited to 1,800 special drawing rights per item per passenger.
Авторы: Анастасия Сукачева, Евгений Сукачев, Ирина Доля (Anastasiia Sukacheva, Evgeniy Sukachev, Irina Dolya)
Источник: https://www.lexology.com/library/detail.aspx?g=314ff7cc-2ee2-4f8a-a2bf-a36a678b4b2c&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+general+section&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2020-03-30&utm_term=