BUE

Law

Maritime & Aviation Law

Lecture
Prepared by: Mahynour Khalifa
Course Objectives

Learning Outcomes
1. Outline the origins of Maritime and Aviation Law.
2. Explore the sources of Law and the rules governing Maritime & Aviation Law.
3. Evaluate the International Regulations related to the Maritime and Aviation
insurance and the ownership of both.
4. The Legal nature of the ship/aircraft.
5. The Commercial Transactions nature in the carriage contracts.
What kind of activities are governed by the maritime &
air law ?
Think twice

Marine activities

• Navigation (domestic or cross-border),

• Laying submarine cables and pipelines for exploration and exploitation purposes
• Construction of artificial islands,
• Commercial activities (i.e. carriage of goods and persons, towage, pilotage, and
fishing).

Air activities:

• Navigation (cross-border), and Carriage of goods and persons.

 Why we need a legal regime to govern marine and air
activities ?

The interstate level:

• The sovereign powers of states (i.e. jurisdiction) over sea areas or airspace.
• Security interests (the warships of one state entering territorial waters of another state)
• Economic interests (fishing, marine scientific research, exploration and exploitation of
natural resources, aviation industries)
• Resort to the use of force (An International Model Set of Maritime Rules for the Use of
Force 100 series rules of RUF) - The development of recognized and lawful use of force at sea
is an area of soft law which has been much needed in the shipping industry to protect crews, vess
els and their cargos.
On the level of private relations:
Liability of sea/air carriers vis-à-vis passengers or consignees and consignors in
case of carriage of goods.

-Victims of sea/air carriage (i.e. injured persons/consignors and consignees of damaged

goods) will be left with no remedies whatsoever against air/sea carriers.

-Ultimately leading to the crash of the shipping and aviation industries, affecting not
only the commercial interests of private persons but also, the economic interests of
states (Greece has the largest shipping fleet in the world and the US has the largest
aircraft fleet in the world)
Definition

What is Maritime Law ?

- The maritime law is legal regulations governing maritime shipping and relevant

activities, the use of the sea and the exploitation of its resources, and the

protection of the marine environment.

- It is a body of both domestic law governing maritime activities, and private

international law governing the relationships between private entities that operate

vessels on the oceans. It deals with matters including marine commerce, marine

navigation, marine salvaging, shipping, sailors, and the transportation of

passengers and goods by sea.

Specific Nature
It have many aspects, which one we will tackle ?

1. Public International (Maritime/Aviation) Law

a. United Nations Convention on the Law of the Sea (1982)

(“UNCLOS or the “Law of the Sea Convention-LOSC”).
b. Convention on International Civil Aviation (1944)
(“Chicago Convention”).

2. Private International (Maritime/Aviation) Law

a. United d Nations Convention on the Carriage of Goods by Sea (Hamburg, 1978) ("
Hamburg Rules").
b. Warsaw Convention for the Unification of Certain Rules relating to International C
arriage by Air (1929) (“Warsaw Convention”).

3. Domestic (Egyptian) Law

a. Presidential Decree No. 145/1983 (“UNCLOS”)

b. Presidential Decree No. 160/1947 (“Chicago Convention”)
c. Maritime Trade Law No. 8/1990 ("Hamburg Rules")
d. Civil Aviation Law No. 28/1981 (“Warsaw Convention”)
Sources of Maritime Law

1. Legislation;
2. Customs;
3. Conventions and agreements;
4. Jurisprudence/Court decisions
Maritime Law Vs. Law of Sea

We should distinguish these legal terms:

The Law of the Sea is a branch of public international law which aims to regulate the relationship
between states in respect of those areas of the sea and seabed subject to coastel state jurisdiction
and beyond.

Maritime Law is a body of private law that govern the legal relationships arising from the
transporation of passengers and cargoes on the high seas and other navaigable waters
 Who are the principal parties in
Maritime Law?
- The prinicpal parties affected by maritime law are the Ship master, crew, the ship-owner, the cargo
Owner, Charter parties and the marine insurer.

- Generally, maritime law could be understood as a body of domestic law governing the relationships
between parties engaged in marine commerce.

- In most jurisdictions, maritime law applies to seawater only. Shipping activities in interior
waterways are usually governed by a separate set of rules.

There are, however, some countries that extend the scope of their maritime law to shipping activites
in interior water bodies .

Each nation’s maritime legislations have their own distinct features, the following remarks could be
made on maritime laws in general
Feautures of Maritime Law

1. International Nature
Although regulated to a large extent by national legslation, maritime law in almost all
jurisdictions is clearly shaped by international influences, in particular international
conventions.

This is due to the fact that shipping by its very nature involves international relations.

The ocean-going vessels flying the flag of a state operate in all waters throughout the world and
sail from country to country. Vessels often are supplied and repaired in foreign ports.

Cargo may be damaged or lost while at sea in the course of an international voyage or in a foreign
port, and likewise seamen may be injured on the high seas or in the waters of foreign countries.

Maritime law is thus a specialized domestic law that cannot avoid international influences.
2. Comprehensiveness

The second important feature is its breadth, it is a complete legal system can be
readily seen from its component parts

Maritime law has its own law of contract of sale ( Sale of ships), of service (towage)
of lease (chartering), of carriage (ofgoods by sea), of insurance (marine insurance),
hire (of masters and seamen), of compensation for personal injury (maintenance and
cure) and risk distribution.

It is comprehensive system of law concerning maritime matters – both public and

private, with the later forming the major part.
3. Special Legal Jargons
The study of maritime law usually employs the use of complex jargons
Understaning the subject matter without first knowing such shipping terms may of
ten be difficult.

Examples :
1. Charter party
It is a contract of lease of a ship while or in part for a long or short period of time or for a pa
rticular voyage.
2. Maritime Lien
A secured claim against a ship (and sometimes against cargo) in respect of services provided
to the vessel or damages done by it
3. Salvage
Rendering assistance to ships at distress. Rules awarding such assistance have long been
prescribed in various maritime nations
The ship and its legal nature
The Ship definition

The maritime law didn’t specify a definition for the ship however, most of the
jurisprudence and the court decisions established a definition for the ship which is:
“The Ship means any object or any structure capable of navigation even if it’s
not seeking profit”

The United States Congress has defined the vessel/ship:

“Every description of watercraft or other artificial contrivance used, or capable
of being use, as a means of transportation on water”

According to Article (1) in the maritime code, the ship is a building usually
intended to sea navigation even if it doesn’t seek profit.
The Elements of the ship
1. The ship is a building
The ship must be a product of a Human activity, conceived and constructed for the purpose
of sea navigation.

There’s no consideration to the different material, technology or source of energy used for
the proceeding of the ships at sea; Steam ships, motor vessels , nuclear vessels are equally
treated.
Before the completion of a ship construction, the building is not yet a ship and is not
submitted to the particluar regulation of the ships preescribed by the maritime
Code. However, there are two exceptions here: “Law no.8 year 1990”
1. The maritime mortgage “Article 44”. / “Article 14”
2. The maritime insurance
Cont’ The Elements of the ship

2. Able to navigate

- The construction of the ship should take into account its ability to cross the seas and
to withstand marine hazards, whatever the navigation type and whatever its shape
and length. All the ships which navigate in the internal waters cannot be considered
as a ship under the maritime law for instances; Boats.

- The floating buildings which cannot navigate at sea are not considered ships such as
floating docks, floating platforms, floating winches, etc. UNLESS they are subject to
towage.
 Categories/ types of Navigation
There are three types of navigation:

1. Main Navigation and the Subsea navigation

The general navigation always aimed to carry goods, passengers , fishing or
for picnic and the subsea navigation is aimed to help other ship such as the pilotage ships
and towage ships.

2. Maritime Navigation by distance to the high seas and coastal navigation

It always done between two countries’ ports and the coastal navigation is the one which
done between the national ports on the same sea or two national ports on different seas.

3.Mixed Navigation
Which done in internal waters and seas water in the same voyage or in different ones.
For instance “ London and Paris navigation”
This type raise the conflict of laws issue, as the carriage contract in the internal waters is
regulated by the general rules stated in the commercial code and it differs than the rules
governing the carriage by sea.
Cont’
3. The usual/continuos intention to sea navigation
According to the law, there is no requirment that all journeys must be marine adventures
in order for a building to be considered a ship. In some cases, a ship may occasionally
proceed to inland water navigation without loosing its identity as a ship.

On the other hand, some ships present in the sea waters and they are not considered as
Ships as they are not intended to the sea navigation as a usual acitivity.

For instance; the ships which are used in ports and harbours to serve the ships and they
rarely leave the limits of the ports/harbours like barges to carry water or oil & tug boats.
Legal Nature of the Ship
- According to the general distinction of things between movables and immovables, the
ship is considered a corporeal movable subject to some exceptions. The article which
related to the nature of movables are applied on the ship. “Article 82”

- Although it is so difficult to consider the ship as a movable specifically after

excluding it from the rules of the possession in the Egyptian Legal system . Other
scholors consider the ship as a immovable and called it Sea estate

- It is very important to note that, what distinguish the ship from other movables that it
has a self identification and this ensures the distinguishment of all the ships. “ The Civil
status of the Ship ” which consists of the following:
- A. Name of the Ship
- B. Ship’s Cargo /Tonnage
- C. Nationality
- D. Domicile
- E. Class
Cont’ Legal nature

It is a mix nature

Consists some characteristics of the movables and some of the immovables.

Ship Name

According to the maritime customs, every ship must have a name

which shall be mentioned on the register of the ships

The Ship’s name must be imprinted on the ship’s hull. It cannot be

concealed while the ship is proceeding at sea unless it is in view of
averting the capture of the ship in wartime.
Ship Nationality
All ships must raise a national flag attesting that the ship is under the
sovereignty and the control of a specific state.
Two conditions are required in order for a ship to acquire the Egyptian Nationality
and consequently to fly the Egyptian flag.

a. The ship must be registered on the ships register of any of the

Egyptian ports.
b. The ship must be owned by Egyptain nationals.

Therefore, not all the ships owned by Egyptians are considered egyptian
ships; they must be registered in Egypt in order to acquire the Egyptian
Nationality.

Two Scenarios:

a. Owned by Individual Person: should be an Egyptian

b. Owned by a company (Company of persons/Capital companies): 51% or
more should be owned by Egyptians
Ship’s Domicile
The Ship is deemed to be domiciled at its port of registry. A ship shall be considered
domiciled in Alexandria if it has been registered there.

What is the importance of having a domicile ?

All the claims, injunctions, legal summons, judicial papers, etc. in relation to the
registered ship shall be sent to the ship’s domicile, even if the shipowner’s domicile is
located elsewhere.
Ship’s Tonnage

The Ship’s tonnage expresses the Cubic capacity of a Ship.

The gross tonnage expresses the full capacity of the ship including all spaces even
those not used to carry goods whereas the net tonnage shows only the exploitation
capacity of the ship ( capacity to carry goods or passengers)

The gross tonage of a ship is usually the basis for the calculation of the harbor dues,
the inspection fees, the piloting charges ,etc. whereas the net tonnage of a vessel is
considered the basis to estimate its sale price, charting value, etc.
Ship’s Class
The ships are graded into classes in relation to their reliability and seaworthiness while operating on
the high seas. Different classification societies ( companies ) exist in the world such as:

1. The British Lloyd’s register of shipping

2. The French Bureau Veritas
3. The American Bureau of Shipping
4. The Registro Navale Italiano
5. The Germanischer Lloyd

Such classification societies apply technical standards for the construction of the ships, its marine
engineering, its safety.

Accordingly, these classification societies issue certificates of seaworthiness after a detailed examination
to the ship different parts.
Consequently, these societies supervise the ship construction until its completion as well as, at regular
intervals throughout its navigation.
Cont’ Ship’s Class
The importance to know the class of the ship:
It indicates the following:
1. Seaworthiness
2. Capacity of exploitation
3. The condition of its equipment
4. Reflects its value

The British Lloyd’s register of shipping indicates the state of a ship’s hull by using one of
the vowels
“ A – E –I –O –U “ in descending order and shows the condition of the equipment by the
numbers (1-2-3)

Then, A1 is granted to ship is considered to be an excellent performing ship.

Exercise (1)
Solve the following questions:
1. Xeron is an established company located in Alexandria . It wants to build a ship
in order to exploit it delivering its goods. After the construction, the company
asked the classification society to give them a report for the seaworthiness of the ship.
After receiving the report, the partners intended not to use it in sea navigation.

A. Did the maritime law apply?

B. If the partners majority are foreigners, can we register it in the Maritime registry?
Exercise (2)
A voyage started aimed to transport machines from Portsaid to Milano and
after crossing the territorial sea, the ship’s hull hits another ship and caused
many damages to the cargo.

Do we apply the Maritime Law?

Exercise (3)
True or False
1. There are two types of navigation and both are governed by the
Egyptian Maritime Law ( ……… )

2. All the sea object are considered Ships (………..)

3. The mortgage of the Ship is considered a pledge under the accessory

real rights rules of the ECC (……….)
Thank you J