Keywords: internal disputes, application of conventions, absence of a foreign element.

Introduction

The basis for the application of international treaties in the Russian Federation is Article 15(4) of the Constitution of the Russian Federation, pursuant to which such treaties form an integral part of the Russian Federation’s legal system. Article 427 of the Merchant Shipping Code of the Russian Federation also stipulates that in the event of a conflict between the provisions of the Merchant Shipping Code of the Russian Federation and an international treaty of the Russian Federation, the provisions of the latter shall prevail.

At the same time, such application of international treaties is often associated specifically with the fulfilment of obligations under international law.¹ However, as will be demonstrated in this paper, international treaties, in particular conventions, can be actively applied to internal disputes,² in the absence of a foreign element.

Steps and Methods of Application of International Law

The doctrine distinguishes the following methods of applying the norms of international treaties in the practice of Russian courts: (1) a reference to an international treaty in the absence of specification of its individual articles and provisions, (2) direct application of the norms of an international treaty, (3) the absence of a reference to an international treaty in a situation where such a reference was necessary, which is the basis for the cancellation of judicial acts, (4) a conclusion on the non-application of an international treaty based on the results of the study of such a of the contract.³

However, given that the purpose of this study is to analyse the practice of applying conventions, points (3) and (4) will not be taken into account when subsequently identifying the relevant methods for maritime disputes lacking a foreign element.

Scholarly literature also identifies the stages that a legal practitioner must go through to apply the norms of international law in a specific case. For example, I.I. Lukashuk identifies the following: (1) establishing the factual circumstances of the case, (2) their legal characterisation and determination of the need to apply specific norms of international law, (3) a specialised legal interpretation of these norms, (4) their general interpretation, (5) making a decision on the necessity of applying the norms in question to the factual circumstances of the case, and (6) taking actions to ensure the implementation of the aforementioned decision.⁴ At the same time, we believe that, taking into account the practice of making decisions by commercial courts, it is not possible to trace the specific stages of the application of the conventions. In this regard, the analysis will be carried out in accordance with the justification available in the judicial acts.

Practice of Application of Conventions in Maritime Disputes in Commercial Courts of the Russian Federation in the Absence of a Foreign Element

Let us proceed to the analysis of the practice of using international conventions by Russian courts in internal disputes where there is no foreign element. For the purposes of this article, this section is divided into two blocks, which include an overview of the issues for which the courts use the provisions of conventions (A), as well as the ways in which such provisions are applied (B). Let us make a preliminary reservation that both the issues specified in paragraph (A) and the methods specified in paragraph (B) are not exhaustive, the author has noted only the most common, in his opinion, options.

A) Issues resolved through the application of conventions in the practice of Russian commercial courts

Firstly, the conventions are used to resolve issues related to the imposition of interim measures. In this regard, the courts, along with the Merchant Shipping Code of the Russian Federation, actively use the Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships of 1952 (hereinafter referred to as the “Arrest Convention”).

For example, in the case brought by Onego Shipping Ltd against Beluga Projects Logistics JSC, the Commercial Court of the North-West District denied the latter’s request to lift the preliminary injunctive measures–the arrest of the vessel Arktur and the prohibition on registration actions regarding other vessels–citing, among other things, the provisions of the Arrest Convention. For the most part, these references were made to articles that are duplicated in the Merchant Shipping Code of the Russian Federation. The sole exception is Article 3(1) of the Arrest Convention, which the court used to justify the possibility of arresting any vessel owned by a person against whom a maritime claim has been brought.⁵

Secondly, the conventions are mentioned in the calculation of damages. Thus, the practice in the disputes under consideration in this context notes the Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels (hereinafter referred to as the “Brussels Collision Convention”). At the same time, the courts, referring to this Convention, themselves note that the applicable Chapter 17 of the Merchant Shipping Code of the Russian Federation is based on the Brussels Collision Convention.⁶ For example, this was noted in the dispute on the claim of TC Severny Project against FSUE Rosmorport, where as a result of the latter’s icebreaker piling on a motor ship owned by TC Severny Project, the ship was damaged. The provisions of the Convention on Collision of Ships were not disclosed in the case, the texts of the acts contain only references to this Convention.⁷

Thirdly, conventions are used to determine the need to pay remuneration based on the results of rescue operations. In these cases, the International Convention on Salvage of 1989 (hereinafter referred to as the “Convention on Salvage”) is widely used. For example, the convention was applied by the court in the case of the claim of the Marine Rescue Service against Palmali LLC, where remuneration for the rescue operation was recovered. was used by the court to explain the operation of the principle “there is no reward without rescue.”⁸ At the same time, it should be noted that the provisions of the Convention on Salvage used were contained in the contract concluded between the parties, and were also generally duplicated in the Merchant Shipping Code of the Russian Federation.

Fourthly, the Convention is widely used in the settlement of disputes related to oil spills. In this context, references are often made to the 1992 International Convention on Civil Liability for Oil Pollution Damage (hereinafter referred to as “1992 CLC Convention”). In particular, in the case on the claim of the Federal State Budgetary Institution Marine Rescue Service against JSC Kama Shipping, LLC Kamatransoil and CJSC Volgatransneft, the Commercial Court of North Caucasus District applied the Convention on Liability for the purpose of establishing a procedure for compensation for damage caused by pollution caused by oil leakage or discharge.⁹ At the same time, the provisions of the 1992 CLC Convention are again used as a duplication of the Merchant Shipping Code of the Russian Federation.

Fifthly, conventions are used for the purpose of interpreting the provisions of the concluded instruments. In connection with the above, in judicial practice, one can find references to the 1924 International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (hereinafter referred to as “Hague Rules”). For example, such a reference was used in the case on the claim of Commander Transport and Construction Company LLC against Azimut LLC and Poseidon-Shipping LLC to invalidate the contract in terms of sea transportation of goods. The Hague Rules have been applied for the purposes of interpreting the term “carrier” as well as for determining the application of the contract of carriage.¹⁰ At the same time, it should be noted that similar provisions are contained, for example, in Article 115 of the Merchant Shipping Code of the Russian Federation.

Thus, in internal disputes, in the absence of a foreign element, the courts use the provisions of the conventions to substantiate decisions. At the same time, such justification, in most cases, is limited to those provisions of the conventions that, in essence, are duplicated in the Merchant Shipping Code of the Russian Federation.

B) Methods of application of conventions in the practice of Russian commercial courts

Let us analyse in more detail the ways in which conventions are applied in this category of disputes. First, let us note the direct application of the provisions of the conventions. This method can be divided into two options, where such provisions are used: (1) due to the presence in the national legislation of indications of the need for their application, (2) in the absence of such references.

The first option can be illustrated by the case on the claim of FSUE Rosmorport against JSC Bunker Company. Thus, in this dispute, the court examined the concepts of gross and net tonnage contained in Appendix 1 to the International Convention on Tonnage Measurement of Ships, 1969, due to the relevant reference in Article 10 of the Merchant Shipping Code of the Russian Federation.¹¹ The second option, in particular, was used in relation Article 3(1) of the Convention on Arrest in the above-mentioned case on the claim of Onego Shipping Ltd LLC against Beluga Projects Logistic JSC.¹²

Secondly, there are widespread cases of “passive” reference to conventions, where the provisions of the latter are not disclosed and not analysed by the courts. These cases can also be divided into two situations, where (1) the reference to the convention is conditioned by reference to national legislation, (2) there are no such references.

For the purposes of the first option, it is possible to note the consideration of disputes on administrative offenses under Article 14.43 of the Code of Administrative Offenses of the Russian Federation, where reference is made to the International Convention for the Safety of Life at Sea, 1974 (hereinafter referred to as “SOLAS”) and the International Convention for the Prevention of Pollution from Ships, 1973 (hereinafter referred to as “MARPOL”). These references were especially popular during the period of validity of Technical Regulation No 620, paragraph 21 of which noted the need for maritime transport facilities to comply with the provisions of SOLAS and MARPOL. For example, the Commercial Court of Central Circuit in the case on the claim of the Sevastopol Transport Prosecutor’s Office against MAK-Transport LLC upheld the ruings of the lower courts, with reference to Technical Regulations No 620 and, respectively, SOLAS and MARPOL, which brought MAK-Transport LLC to administrative responsibility under Article 14.43 of the Code of Administrative Offenses of the Russian Federation due to the lack of a watch on board the vessel. The court did not disclose any provisions of SOLAS or MARPOL.¹³ To illustrate the second option, we can recall the case already mentioned in this paper on the claim of TC Severny Project against FSUE Rosmorport, where reference to the Brussels Collision Convention was used.¹⁴

Conclusion

At present, there are no studies devoted to the application of the norms of international treaties in maritime disputes in the absence of a foreign element. However, an analysis of the practice of Russian commercial courts shows that situations of such application are not uncommon.

Conventions can be used to resolve a wide range of issues, including the imposition of interim measures, the calculation of damages, the determination of the need to pay remuneration based on the results of rescue operations, the settlement of situations related to oil spills, and the interpretation of the provisions of concluded contracts. At the same time, the courts often use only references to the provisions of the conventions that are similar in content to the provisions of the Merchant Shipping Code of the Russian Federation.

It is also possible to distinguish several ways of applying conventions in the disputes under consideration: direct application and “passive” application, when the provisions of these conventions are not disclosed and not analysed. However, each of these methods can be divided into two cases, the first of which is conditioned by the court’s reference to the convention in national legislation, and the second is not justified. ■

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