When selecting court cases for inclusion in this review, we were guided by two main criteria. The first is that the case should be “maritime”, because this is a thematic review intended for a reader, one way or another interested in maritime law, be it a lawyer or a person in another profession related to the maritime business. The second criterion is unambiguously subjective – the case must be interesting: resonant, meaningful, practical, large, ambiguous...

When preparing the material, two points aroused our interest: first, we thought, how many “maritime” cases are considered by Russian courts and is it possible to calculate them? Secondly, what is a “maritime case”, what court cases / disputes fall under this category?

On the one hand, modern databases and legal systems create extensive opportunities for research and analysis of judicial practice on almost any issue. For example, judgments of commercial courts can be found on the kad.arbitr.ru website, and with a contextual search option – on ras.arbitr.ru. Some large and high-profile cases are sometimes covered in specialized media. On the other hand, judgements of courts of general jurisdiction often remain unpublished anywhere at all (for example, salaries of crews of sea vessels, harm to life / health of crew members), a number of high-profile cases do not fall into the field of media attention, and the possibility of contextual search sometimes does not allow to isolate a precisely “maritime” dispute from the array of cases.

The first, the simplest and most obvious way to classify a case / dispute as “maritime”, which we used was by a contextual search where the judgement refers to the Merchant Shipping Code of the Russian Federation (MSC RF). However, it is difficult to use this approach universally. Despite the presence in some judgements references to the provisions of the MSC RF, the disputes can hardly be called maritime (for example, tax disputes, where there are references to the provisions of MSC RF on carriage by sea). In other cases, there may not be any references to the MSC RF, as, for example, in case No. А51-9725/2020 Atlas Marine Co. Ltd. v LLC “PrimPortService”¹, which deals with agency relations upon the repair of a seagoing vessel and the authority of the master, which is “evident from the circumstances” (albeit without references to Art. 71 of the RF KTM “The captain of the ship as a representative of the ship owner”). There are cases regarding which the question arises – can this case be considered an interesting maritime dispute, a maritime dispute or a dispute at all? The case named above is a case where there seems to be no dispute. In a nutshell – the ship had been repaired; the repairs must be paid for. The position of the defendant-shipowner: I will not pay, because the master of the ship did not have the authority to sign the documents relating to the repairs and annexes to the contract. The position of the plaintiff: the ship had been repaired!

I must say that this is not a dispute about the quality of repairs, reducing the cost of repairs, actions in the interest of a third party without a contract, there are no references to the MSC RF in the judgment... However, we still decided to consider this case, although not as a separate case for this review, but below within the framework of this preface.

There are further questions: should such cases be considered as “maritime” cases / disputes (a case where, in essence, there is no dispute)? If so, can such a case be a maritime case? How, then, do we count the “maritime cases” that are considered by Russian courts?

The issue of counting the “maritime cases” considered by Russian courts remains open.

Let’s try to refer to foreign experience.

How many “maritime” cases are considered by courts of the UK and USA?

Not all judgements are published in databases – you can say how many judgements are published in a month, but this figure will not include arrests, interim measures and (in the UK) cases that do not rise new law enforcement issues.

There are no official statistics in the United States for the reason that in the United States, maritime disputes are any disputes that fall under the admiralty and maritime jurisdiction. A case is maritime, not if it raises issues of the maritime law, but simply if it meets certain jurisdictional tests. That is, if this is a contractual dispute, then it must follow from a contract that can be called a maritime one (in the United States there are a number of tests that allow you to determine this). If the dispute is in tort it should stem from traditional maritime activities, the tort must be committed on navigable waters. Therefore, in the United States, cases of defamation, if a defamatory message, for example, was disseminated from a ship, can be classified as a maritime dispute. In addition, in the United States, there is a large number of cases on maritime law that would hardly be of interest to “maritime lawyers” in Russia, such as, for example, social security law and other disputes with seafarers – something that in Russia would rather be attributed to the sphere of labor law ... In the United States, they are considered maritime, since they fall under the maritime and admiralty jurisdictions.

Many have heard of the “Admiralty Court of England”. The Admiralty Court in England is not a court in our usual sense. These are special rules of procedure and special judges who consider a very narrow category of cases. So, the vast majority of issues related to charters, cargo claims, all contractual disputes, marine insurance, etc. fall within the competence of the Queen’s Bench Division as part of the High Court of Justice. The Admiralty Court, which is separate from the commercial courts, handles collisions, limitation of liability and arrest cases. For this reason, there will be very few admiralty cases, and most maritime disputes will be settled by the commercial court. For example, in 2018–2019, the Admiralty Court in England put a seal on 150 claims, i.e. 150 cases were initiated². The number of publicly available decisions is much less³.

According to official statistics, 830 cases were initiated in the Commercial Court for 2018–2019, while decisions for 2019 were published, at best, in a hundred cases. At the same time, maritime affairs can be selected only by opening and reading each published decision, among which there are about 20 maritime cases⁴.

One of the reasons why the number of initiated cases significantly exceeds the number of published decisions is the high percentage of amicable agreements (because litigation is very expensive, and the English rules of civil procedure contain many provisions motivating the parties to reconcile. For example, court costs could be allocated depending on whether a party accepted a reasonable offer to conclude a settlement agreement. Another reason is the so-called “preliminary decisions” of the court (for example, on some kind of injunction), which are usually published only if they are later appealed or if they raise an interesting legal issue. Another significant point is that a huge number of disputes arising from charters and from cargo transportation are considered in arbitration.

In the US, the situation is somewhat the same.

Only a fraction of decisions of federal and state courts are published in legal databases.

In the US legal database – Westlaw – the query “maritime” for the whole of 2019 reveals 154 results. Many maritime cases (mostly arrests) do not appear in published decisions, although they can be tracked in the Federal Court Electronic Filing System (PACER). It is also necessary to take into account the inaccuracy of the search on request: among these 154 cases there are some cases where the word “maritime” is a part of the company’s name or has nothing to do with the essence of the dispute. By sampling on Admiralty & Maritime (excluding other potentially relevant topics such as Civil, Commercial, Environmental, Bankruptcy), of these 154, 124 cases remain for 2019, where at least some issue of maritime law was raised (in the US broad sense). The quantum of actually maritime disputes out of these 124 is even less.

Among the members of the Association are lawyers practicing Maritime Law in the United States. Here’s what they told us about statistics on maritime disputes:

“There are no accurate statistics in the United States because it is a very federal system. Here, each court has its own standards, each court has its own website, its own rules. There are general rules for federal civil procedure, then each court has its own local rules that specify or set additional requirements, plus each judge has his own individual rules, which are also published. It is the same with the publication of case statistics. There is no centralized source. It is necessary to check with each specific court, if at all they publish such statistics, broken down by the category of the dispute”.

“There is no way in the US to track the total number of, for example, court summons for the defendant. This is a necessary procedure to start almost any dispute. But there are no centralized statistics in the United States like in the UK, where you can see how many claims and which court has sealed”.

In fact, there are ten times more maritime disputes in the United States than can be tracked in official sources and databases. Most of them, as in the UK, end with an amicable settlement at a very early stage (usually even before the parties disclose evidence). A large number of charter party disputes are dealt with by the SMA (Society of Maritime Arbitrators). According to the rules of the SMA, unless the parties explicitly indicated that the award on the case is not to be published, the consent to the publication is considered to be given by default. At the same time, a lot of disputes are resolved in full confidentiality.

Summing up, it should be noted that there are many factors that affect the underestimation of the number of decisions, as well as a number of factors that indicate that in fact the number of such decisions is greater. Thus, the number of “marine” cases is difficult to determine even approximately. The US has a very decentralized system and there are no uniform statistics. ■

Notes