Soviet Private International Law Relating to Carriage By Sea

DOIhttp://doi.org/10.1111/j.1468-2230.1964.tb01037.x
Publication Date01 Jul 1964
AuthorA. Garnefsky.*
SOVIET PRIVATE INTERNATIONAL LAW
RELATING TO CARRIAGE
BY
SEA
STATE
MONOPOLY
AN understanding of the basic conflict problems pertaining to the
status of obligations in Soviet sea transport requires some elemen-
tary knowledge of the legal status of Soviet partners in the inter-
national merchant shipping transactions and the fundamentals
whereupon this status is based.
It
is universally known that the foreign commerce of the U.S.S.R.
is
a
state monopoly and embraces not only export and import of
goods but also all operations connected therewith-transport opera-
tions in the first place. Soviet sea transport is only one of the forms
of the general monopoly of foreign trade.l
It
is
placed under the
direct authority of the Ministry of the Maritime and Inland Fleet
of the U.S.S.R. as provided in one of the latest laws dealing with
this matter,
viz.,
the Decree of the Supreme Soviet of the U.S.S.R.
dated March
15, 1953.
Besides, all sea-going ships of whatsoever
significance are state property and are declared
res extra commer-
cium
(article
6
of the U.S.S.R. Constitution); that is to say they
may not be transferred into private property, they may not
be
mortgaged nor
be
objects of measures
of
execution for satisfying
creditors' The basic tonnage of the Soviet Merchant
fleet
was
formed from ships privately owned before the Revolution.
These were nationalised by two decrees
of
the Central Executive
Committee of the Peoples' Commissars: the one
of
January
26,
1918,
and the other of April
13, 1930.
While the Ministry of Maritime and Inland Fleets of the U.S.S.R.
fulfils the leading and organising function in the development and
the exploitation of Soviet sea transport, the operative enforcement
of
the state monopoly in this domain is realised by the concentration
of all related activities in the hands of special state organisations
endowed with legal personality.
The immediate exploitation of the state merchant shipping fleet
is carried
on
by special organisations
or
firms called
"
Gosmorparak-
hodstva
"
established by the Decree of the Central Executive Com-
mittee of the U.S.S.R. dated March
15,
1934,
and entitled
"
On the
1
For the doctrinal materials concerning the monopoly
of
sea transport see
A.
D.
Keilin,
Sovetskoe Morskoe
Pravo,
Moscow
1954,
p.
26
et
seq.;
G.
L.
Shmigelski,
Iasinovski,
Osnovy
Sovetskogo Morskogo
Pravo,
Moscow
1959,
p.
7
et
seq.;
R.
L.
Guberman,
Trasport
vo
vneshne
torgovle
SSSR,
Moscow
1956,
p.
8
et
seq.;
P.
D.
Samoilovich,
Dogovoi
Mwskoi Perevozki
po
Sovetskomu
pram,
Moscow
1952,
p.
3
et seq.
See
also RSFSR Civil Code and the corresponding provisions
of
the civil codes
of
the Union Republics.
2
See
as.
21
and
22,
Principles of Civil Legislation
of
the
U.S.S.R.,
1961.
411
2
JULY
1964
SOVIET
LAW
OF
CARRIAGE
BY
SEA
413
reorganisation of the management of water transport.” These
organisations are fully dependent
on
the Ministry of Maritime and
Inland Fleets-their creation and the termination
of
their existence
is decided by this Ministry.
As to chartering operations it should be mentioned that they
are carried
on
by the all-union organisation
Sovfrakht
which is
controlled by the Ministry of Foreign Trade. This organisation is
the only one in
U.S.S.R.
which may charter foreign as well
as
Soviet ships. Other
persons
concluding such contracts are criminally
responsible
for
infringement
of
the foreign trade monopoly; in
addition to which such contracts are absolutely void.4
The
Sovfrakht
and the
Gosmorparakhodstva
alike are legal
entities distinct from the state, and like all other Soviet state enter-
prises with legal personality, they are not liable for the state’s debts;
conversely, the state never accepts liability for the obligations
incurred by state
enterprise^.^
All such state enterprises conclude
contracts
on
their own behalf and for their own account. Their
capacity is limited only to special groups of commercial transactions
clearly defined in their statutes. Lastly, they do not enjoy
immunity
of
jurisdiction
(in
contradistinction to Soviet Trade
Agencies
(torgpredstva),
which also conclude from time to time
transactions
in
foreign commerce) and they are liable for their debts
to
the extent of all assets allocated to them by the state with the
exception of the means
of
production such as buildings, machinery,
ships, etc.
A
perfect illustration of the peculiar character of Soviet Merchant
Shipping Corporations
as
juridical persons distinct from the state is
presented in one of the earliest decisions of the Maritime Arbitration
Commission in Moscow, to which attention has been drawn
in
western literature.e
In
Re
Motorship
King Edgar
yy
(1982)
the Commission had to
adjudicate in a dispute between the Soviet Merchant Fleet Corpora-
tion and English shipowners-the former claiming compensation for
having rendered assistance to the latter’s motorship
King Edgar
when aground in Soviet territorial waters. The defence of the ship-
owners ’that their ship had run aground owing to the negligence of
the plaintiffs, as the Soviet maritime authorities had misleadingly
3
Collection
of
Laws
of
the
U.S.S.R.,
1934,
No.
15,
s.
104.
4
See
A.
D.
Keilin,
Sovetskoe Morskoe Praco,
1954, p. 43.
5 Decree
of
the Council of Peoples’ Commissars, dated December 9, 1934,
Col-
lection
of
Laws
of
the
U.S.S.R.
1934, No. 64, and entitled
‘I
On
the State
Shipping Enterprises.” With regard to
Soafrakht
see its Statute established
in
1932.
’‘
Vneshniaia Torgovlia,”
1950,
No.
2,
pp. 45-46; see
elso
A.
D.
Keilin,
op.
cit.,
pp. 33, 44.
a more general manner
by
s.
13
of
the Principles
of
Civil Legislation.
The liabilities
of
Soviet State Enterprises as legal persons is determined in
This
section has preserved the old principles unchanged.
6
Samuel Pisar,
I’
Soviet Conflict
of
Laws in International Commercial Trans-
actions,” (1967)
70
Haward Law Review
644;
see
also Lunts, 1949, pp.
180-
181.

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