What is new in the Maritime Code in relation to the global limitation of the operator\u27s liability?

Abstract

U radu se razmatraju odredbe Pomorskog zakonika RH koje se odnose na globalno ograničenje odgovornosti brodara. Iznose se osnovna načela Konvencije o ograničenju odgovornosti za pomorske tražbine iz 1976., koje Republika Hrvatska stranka i čije su odredbe preuzete u Zakonik. Ukazuje se na odredbe Zakonika koje bi valjalo izmijeniti, jer nisu u skladu s Konvencijom iz 1976., i predlažu izmjene odredaba koje, prema mišljenju autora, ne vode dovoljno računa o interesima Republike Hrvatske kao obalne države.The author analyses the system of global limitation of operator\u27s liability in the new Croatian Maritime Code (1994) which is shaped according to the 1976 Convention on Limitation of Liability for Maritime Claims to which the Republic of Croatia is a party. After discussing the basic principles and provisions of the 1976 Convention which are incorporated in the Code, the author proposes several amendments of the Code\u27s provisions. The proposed amendments relate to two categories of Code\u27s provisions: those which have to be amended to be in accordance with the 1976 Convention and those whose amendments would reflect more appropriately over the interests of the Republic of Croatia as a coastal state. The most important proposal concerning the amendment of the provisions falling into the first category relates to Article 410 dealing with behavior of responsible person which causes the loss of right to limit his liability. This provision is inspired by Article 4 of the 1976 Convention which provides that the responsible person shall not be entitled to limit his liability if it is proved that the pollution damage has resulted from his personal act or omission committed with the intent to cause damage or recklessly and with knowledge that such a damage would probably result. This formulation is taken from the common law system and some of its elements, viz. the concept of recklessness, cannot be translated into civil law terms. Therefore, the expression \u27\u27recklessly\u27\u27 is replaced in the Code by the expression \u27\u27gross negligence\u27\u27. Pointing out that the responsible persons may forfeit their right to limit liability only in case of dolus, because of the intention of the drafters of the 1976 Convention to make the limits of liability unbreakable, the author proposes the amendment of Article 410 of the Code so as to correspond to the ratio of Article 4 of the 1976 Convention. The most important amendment concerning provisions falling into the second mentioned category relates to Article 415m para. 1, devoted to the constitution of the limitation fund. According to that Article the operator is entitled to limit his liability even if a limitation fund is not constituted. The author stresses that this provision may have detrimental effect on the interest of the Republic of Croatia. The consequence of that provision is that in cases of pollution of the Adriatic Sea by noxious and dangerous substances caused by a foreign ship, the foreign operator is not obliged to constitute the limitation fund which could serve for covering the clean-up costs. Therefore the author pleads for the Amendment of Article 415, para. 1, and for the introduction of compulsory constitution of the limitation fund as a condition for limitation of liability