Izvorni znanstveni članak
Innovatory regulations of temporary measure of arrest of ships in the proposal of Law on Maritime Navigation, in relation to international conventions and comparative law and the Maritime and Inland Navigation Act
Savo Marković
; Barska plovidba, Bar, Crna Gora
Sažetak
The arrest of ship implicates a series of legal relations, often in different jurisdictions, that are of great significance for successful effectuating of this temporary measure. Lawyers, who are engaged in the arrest of ships, have to know how to establish the subjectivity of parties according to rules of strict process legitimacy in right jurisdiction, in order to arrest the right ship at the right time. The effectuation of arrest presupposes finding out the way through different jurisdictions, which contain certain distinctions. They show themselves through the nature of maritime claim, court jurisdiction, relation between debtor, i.e. defendant, the ship intended for the arrest, and the claimant i.e. applicant, security and the counter-security for the eventual damages caused by wrongful arrest as a consequence of improper proceeding, or through the inequalities of legislative solutions. The arrest of ship, as a temporary measure, is the subject of regulation of international law as well, while the national legislation regulates some other temporary measures. However, execution and the security on maritime ships, concerning the specificity of relations, make certain exceptions from the general rules on execution and security. Although the ships are movables, the legal regime that is appropriate to real estate is applied to them in many ways, and the regime of execution as well. By proceedings of execution on ships are often imperilled the third person' s interests, as of the cargo proxy, lien and mortgage claimants, crew and passengers; in the course of that is strived, to a greatest extent, to protect the interests of those parties. Also, the lengthy of proceedings of execution on ships concerning the security procedure would come to an expressive opposition with necessities of navigation. Therefore, the rules of proceedings in relation to execution must especially be inspired by tendency for fast, economical and efficient proceeding, which will, if possible, ensure as undisturbed as possible, exploitation of ship, even during the execution proceedings. On the other hand, the subject of execution is very mobile, and it demands special measures which scope is the insurance of an efficient seizure of the subject of execution.
Concerning the emphasized foreign element in the maritime traffic, the foreign persons may appear as applicants for execution or the debtors in execution proceedings, as representatives of other real-estate relations, of as the competitors in procedure of forced sale of ships. This imposes the necessity of inclination towards solutions established by international conventions, which should be or have been receipted in internal legislature, or Serbia and Montenegro has joined these enactments of international law; while it still does not exist the accepted, uniform international legal system of execution on ships. (…)
Ključne riječi
legal heritage; Arrest Convention 1999; Law of Maritime Navigation; exemplarity of temporary measures; court jurisdiction; Harbour Master's Office
Hrčak ID:
41974
URI
Datum izdavanja:
12.8.2004.
Posjeta: 1.640 *