Review of the Positions of the Ukrainian Supreme Court on Maritime Law Disputes (Administrative Jurisdiction)

Abstract

The present paper provides an overview of the legal positions of the Ukrainian Supreme Court on maritime disputes within the framework of administrative jurisdiction. In this class of cases, disputes arise about the performance or non-performance of public administration functions or the provision or nonprovision of administrative services in matters related to navigation, fisheries, seaports functioning, environmental protection in the coastal waters, etc. Mainly, this paper focuses on the cases concerning prohibitions for ships to call out from a port, services provided by harbormasters, pollution of coastal waters, and fishing. In addition, special attention is paid to disputes related to the legal regime of seaports enforcement in terms of the performance of ISSN 2524-101X eISSN 2617-541X 29 LEX PORTUS VOL 8 ISS 1 2022 functions of port authorities and other agencies entitled to various types of controls in the port (in particular, environmental). The keywords: maritime disputes, administrative jurisdiction, seaports, harbormasters, port authorities, Ukraine. Introduction The practice of court decisions on disputes related to merchant shipping in Ukraine mainly refers to the jurisdiction of commercial courts. However, cases, the subject of which is appeal of decisions and actions of governmental authority, belong to the jurisdiction of administrative courts. In several categories of such cases, The Supreme Court has formulated legal positions, which are binding on regional and appeal courts in resolving similar disputes. A brief overview of the relevant legal positions is offered. Most cases are decided by the courts of the first instance and do not go for review on appeal and cassation. Such situation derives from the fact that most cases need to be resolved as soon as possible due to the threat of financial losses for shipowners. Since 2018, the Supreme Court has ruled out on 14 administrative cases related to the settlement of maritime disputes. These cases concerned the powers of the port captain, activities within the internal sea waters and territorial sea of Ukraine (including in the field of environmental safety of sea waters and territorial sea from pollution and littering), the legal regime in seaports, preservation of state property of ports and compliance with customs rules in ports. 1. Disputes concerning the authorities of the harbor master In case No. 814/1100/18 on granting permission for the vessel to enter commercial seaport the Company appealed to the court the inaction of Port Authority in granting permission or refusal to enter the port, and non-agreement and failure to notify the plaintiff and the Master of vessel (agent) about the conditions of pilotage in the port, mooring berth or place of anchorage and scheduled date of mooring. The lawsuit was justified by the fact that due to the 30 LEX PORTUS VOL 8 ISS 1 2022 inaction of the defendants there was a disruption of the schedule of the Company’s terminal in relation to cargo turnover and fulfilment of obligations of Ukrainian and foreign partners. The courts of first instance and appeal court dismissed the lawsuit. Appeal court was guided by the fact that the legal relationship between the Company and the port branch are civil regarding the provision of the latter services for the use of berths and berth infrastructure in accordance with the purpose of the easement and the terms of the easement Agreement. At these legal relations, the actions or inaction of the Port officials relate exclusively to the subjects defined within this competence. Instead, the Company is not included in the circle of persons to whom this legal relationship applies, so there is no violation of its rights or interests in the field of public relations. The Supreme Court closed the case and clarified that the dispute should be resolved according to commercial litigation proceedings, as the legal relationship between the plaintiff, another company (which provides ship`s agency services) and the Port. It is a relationship between commercial entities regarding the provision the latest services to vessels on the approaches and directly in the seaport water area for their safe navigation, maneuvering and berthing. For these services, the company (which provides ship`s agency services) paid to the Port. The Supreme Court concluded that in legal relationships in dispute the defendants do not perform administrative functions in relation to the plaintiff. The relationships between the plaintiff and the Port branch are civil regarding the provision of services for the use of berths and berth infrastructure for the purpose of easement. Thus, the claims in the case were stated in order to restore the violated civil (property) right, and the dispute in this case is of a private law nature, which makes it impossible to resolve dispute in administrative proceedings. 31 LEX PORTUS VOL 8 ISS 1 2022 In the case No. 2140/1776/18 on the refusal of the vessel to leave the port due to the prohibition decision of the border service the company appealed to the court against the actions of the Harbor master regarding to issue instructions and inaction of the Harbor master regarding issue a permit for the vessel to leave the Kherson Sea Port, as well as the decision of the Azov-Black Sea Regional Department of the State Border Guard Service of Ukraine. In support of claims, the plaintiff referred to the fact that he had been the shipowner of this vessel since 2011 on the basis of a leasing agreement. The actual transfer of the vessel took place on 04.08.2011, and on 20.08.2018 the plaintiff transferred ownership of the vessel in a manner and in terms agreed by the leasing agreement. From 20.08.2018 the plaintiff is the registered owner of the vessel. The Harbormaster instructions are based on the circumstances of the application of sanctions against to the leasing company for a period of 3 years. In this case, the defendants unlawfully ignore the plaintiff’s ownership of the vessel in the absence of any legal restrictions and violations by the plaintiff, acting in excess of