الديون البحرية في القانون السوداني والمعاهدات الدولية والقانون المقارن

Abstract

STRACT Maritime claims arc of so many uilTercnt ci.ISSCS <llld types. Fur this reason, it is very difficult to trace them without rcfcrcncc to thcir suurccs. Having a close look to these claims wc can allributc thcl11 either to law such as port fees, guidance fccs and towagc fces. Thcy can also be allributcd to contract such as maritimc contracts, or contracts cntcrcd into by ship captains, chartcr contacts and othcrs; or to tortious liability such as compensation payablc as a rcsult of collision at sea and cOlllpcnsation duc to general and particular averagc and compcnsation duc to injurics anu death and similar losses. Due to thc deficiency in thc Sudancsc llIaritimc law and the reliance ofthc Sudancsc courts on thc Intcl'llationalnlaritinlc aglcclIJcnts and conventions, thesc agrecments allli conventions have bccollle a rourth source of the maritime claims or loans. This is duc to thcir activc rulc in organizing many of these claillls and stating anl! "dining thc nlal itimc claim and providing the basis of thc liability of thc Illarinc earricr fur the damage or loss of the goods takcn as cargo, or dclay in their dclivery. Thc said agreements and conventions havc alsu dcalt with thc llIaritinlc accidents and the rules rclating to rcspunsibility in thclll allli thc naturc and sunl ur compensation due and how it is counted. In general these agrecmcnts and conventions have not ignored any issue relating to nwritillic lalV, and dllc tu that we find that many countries havc signed or rectified thclll and this resulted in the unity of dccisions relating to thcsc issucs in the di ITerenl concerned countries. Dcspitc thc grcat imporlance uf" thcse agrcclllcnls, wc lii"i Ihal Sudan has signed only f"our ofthcm. Thesc four sources have been or grcat intcrest to the researcher. He has focuscd on thclIJ all, and thorougldy analyzcd thc relationship bctween them and marilil11e clail11s, and hcncc showcd thc connection between them and thc Sudanesc Maritime Act of 1% I and the Carriage of goods by See Act of 1951, though they wcre not exhaustive in dealing with all tlie sourccs and the various maritimc claims rclated to thcm. Due to this, the researchcr has connectcd thcse sourecs with the new Sudanese maritime draft law of" the ycar 2000, which is duc to cJJ1crge as iegislation on the near future. Maritime customs and judicial prcccdcllts have also playcd a l1Jajor role in stating these maritime claims, hence, it was ncccssary to foclls 011 a great number of these judgments to show their stamlillg with respect to the lacking Sudanese marine legislation and thcir enll fur thc assistance of the international maritime agreements and conventions. The rcscul(.:her has also utilized the guidance of some laws in the Arab Countries ,lilt! the judicial decisions passed by their courts, and for this, thc rescarcher has deal! with a vast number of judicial decisions in the said countrics. It was nccessary, in , some cases to eOlilpare the maritime legislative provisions ofthcse countries with the new Sudanese draft law which will be legislated in future. Due to this, the research has appeared in the form of a cOLiparative study" and perhaps it may have in future an impact in selling up a comprehensive maritime legislation in which the areas criticized by the researcher arc avoided. However, the clarification and analysis of the nwritime claims is not the only objective of this research, but also specifying the guarantees [or the restitution of these debts that vests in the ship itself, whieh enn be traced in whichever hand it goes to and the debt sticb to its price 01' wrcek. The different maritime law provisions have specified a number of guarantccs to the creditors, and many of the maritimc claims alc considcred as privilcgcd debts and others are given maritimc lIIurtgagc II II ich ranks in priority after . the privileged debt, amI the bencficiary of the S,IIU Illortgage lIIay tracc the ship in which ever hand it goes to. Lastly it re;,il i, ied thc nrrcst of the vessel to eeriain specific maritimc claims anu exciuded others ill order to guarantee the restitution of these debts. The research has also highlighted the executivc arrest of the vessel, selling it and distributing the procceds over thc crcditors, allli all thnt was intervened by extensive discussions respecting conllict of laws, the applicable law, the competcnt court alld thc decision in maritime claims by courts and arbitration. The whole situation has necessitated the provision of an introductory chapter about the ship, being the base o[ the maritime claims, in order to show its entity and nnture and tn distinguish betwecn it and the other floating vessels ami how its is rcgistcred .. dc. it worth mentoring that the most significant conclusions of the rcsearehcr arc:- (I) showing the defects o[ the Sudan maritime Inw and cxposing the poillts of weakness in the new Sudancse draft - maritime Act of the year 2000 and 2) pointing out the most important International Agrcements and Conventions, which Sudan has not yet signed and r'atified or juined, <tlld 3) Discussing the most recent issues in the field of carriage by sea and the legal previsions covering contracts, like containers carriage contracts alld combined carriage Contracts and 4). How could the Sudanese Cuurts adjudicate despite thc defect in Sudan maritime law utilizing the international conventions, and 5) relating the compcnsalion to thc rcal valuc or the goods ill easc uf their damage or loss ur cxpiry alld avuidillg allY IUIlIP SUIlI CUllljll'llsatiull, whenever possiblc, and G) Obligillg the carricr tu rcvcal the clailiis agaillst thc sea voyagc.so that thc crcditor would be fully aware of it before gralltillg the debt. In addition to all thc abovc, tilc rc~eall her has sugge.-;ted SUllie amendmcnts or additiuns to thc ncw dran maritillic Law ...