Izvorni znanstveni članak
https://doi.org/10.21857/moxpjhze6m
Presumptions for the Application of Certain Systems of Liability for Loss of Life and Personal Injury to Swimmers and Other Persons in the Sea
Vesna Skorupan Wolff
Sažetak
Loss of life and personal injury to swimmers and other persons in the sea can be caused by various types of waterborne craft and seaworthy devices that are not waterborne craft in the sense of the Maritime Code (for example, windsurfing boards, paddleboards, surfboards, boards with a parachute (kiteboarding), electric surfboards, seabobs (underwater scooters), pedal boats, canoes, kayaks, scull boats (sandolini), towing tubes and various other devices used for sports and leisure), and, very rarely, but still possible, others maritime objects and wrecks and sunken objects.
The application of the law depends on which object caused the loss of life or personal injury to the swimmer or other person in the sea. Three systems of rules on liability for damage can be applied. The first system consists of provisions of the Maritime Code on non-contractual liability of the shipowner and ship operator, and liability for loss of life and personal injury (Articles 808-810 of the Maritime Code). The second system is prescribed by the provisions of the Maritime Code on the recovery and removal of wrecks and sunken objects (Article 840c and Article 840g of the Maritime Code).
The third system consists of provisions of the Civil Obligations Act on liability for damage (Articles 1045-1054 or Articles 1063-1067 of the Civil Obligations Act). A commentary and critical analysis of the presumptions for the application of certain systems of liability for damage is the topic of this paper. The theoretical foundations of presumptions relevant to the application of a particular system of liability for damage are studied, and their comparative analysis is conducted, which establishes their congruences, similarities and differences. With the aim of systematic analysis, possible scenarios of the occurrence of injurious events where the loss of life or personal injury to swimmers and other persons in the sea are caused are considered and precisely distinguished in order to observe and interpret certain specific presumptions that are decisive for the question of which system of rules on liability for damage should be applied in the specific case of liability for damage.
Possible legal approaches to solving legal issues related to the interpretation of the presumptions for the application of a particular system of liability for damage are presented, and in relation to them a legal position is taken on how certain doubtful legal issues should be interpreted. The legal concept of “swimmers” is investigated and an examination made of who is to be included in the circle of “other persons in the sea” to whom the provisions of the Maritime Code on non-contractual liability for loss of life and personal injury are applied. The terms waterborne craft, wrecks, sunken objects, floating facility, offshore fixed objects and similar relevant terms are precisely described and analysed.
The scope and reach of the phrase “apply to boats and other waterborne craft irrespective of their size and purpose” is considered, which defines the field of application of the system of liability for damage provided for in the provisions of the Maritime Code on non-contractual liability for loss of life and personal injury. Legal issues that appear to be significant, open, and doubtful regarding the interpretation and application of the provisions on the limitation of liability for claims for death or personal injury to swimmers are studied.
Aspects of insurance related to injurious events in which loss of life and personal injury to swimmers and other persons in the sea are caused are also analysed. It is concluded that legal regulations are characterised by completeness and systematicity; however, many specific legal issues related to the delimitation of certain systems of liability for damage, limitation of liability, and certain types of insurance contracts may be doubtful, and have not been dealt with in our legal theory or interpreted in jurisprudence. Interpretations of open legal issues and comments on legal provisions presented in this paper should contribute to an improvement in the implementation of regulations in practice and provide guidelines for the correct selection of law for specific non-contractual liability for damage due to the loss of life and personal injury to swimmers and other persons at sea.
Ključne riječi
swimmers; other persons in the sea; waterborne craft; vessels for sports and leisure; liability for damage; loss of life and personal injury to swimmers and other persons in the sea
Hrčak ID:
323882
URI
Datum izdavanja:
17.12.2024.
Posjeta: 0 *