The skippers' complaints about the weather have always served as a justification for damage to the cargo being transported, delays in arrival or damage to the vessel. These complaints and statements were addressed to an undefined circle of persons, ranging from port authorities, charterers, shippers and consignees, bartenders in the port bar, the essence of which was as follows: «I and my team did everything we could, but because of the weather, there might be something that was damaged. I do not know what part of cargo was damaged and will not be responsible for it, and if you do not like something, apply for compensation to God».
In the process of commercial navigation world development such statements were shaped into a legal document called «sea protest». In order to give this complaint the status of legal document, it is necessary to perform certain notarial actions within the legally established procedural deadlines, namely, register an act of sea protest with a notary at the port of arrival within 24 hours. If all the rules and regulations are observed, a maritime protest becomes evidence of specific facts set forth in it; that is, the party who has declared a maritime protest is no longer obliged to prove that the facts and circumstances set forth in it were true, a shifts the burden of proving that this was not the case to the party who claims otherwise. Formally, from the point of view of law, the presence of this document should put the captain and his owner in a better legal position compared to, for example, the cargo owner whose cargo, for example, is damaged, it is force majeure.

However, practice shows that the Arbitration Courts of the Russian Federation do not recognize this legal document as a secured and admissible evidence. As it follows from the position set out in paragraph 4 of the information letter of the Presidium of the Supreme Arbitration Court of Russia dated 13.08.2004. 81 "Review of the practice of application by arbitral tribunals of the Code of Commercial Navigation of the Russian Federation", «The maritime protest is evidence of those facts and circumstances which are attested in it, and is subject to assessment by the arbitral tribunal on the same basis as other evidence according to article 71 IPA». In turn, according to Article 69 of the APR, paragraph 5 The circumstances confirmed by a notary when performing a notarial act do not require proof if the authenticity of the notarized document is not refuted in accordance with the procedure established by Article 161 of this Code, or if the notarial act has not been annulled in accordance with the procedure established by the civil procedure law». Ideally, the process for assessing a maritime dispute in an arbitral tribunal should be as follows: a party who disagrees with the circumstances set out in it must first either refute it, as prescribed by article 161 of the RFA, or to cancel in the manner established by law, and only after these procedural actions the above-mentioned notarial act must be assessed by the court on an equal footing with other evidence. This procedural algorithm will fully correlate with the fundamental principle of competition and the rules of Russian Arbitration Procedure Law.

In this connection, we cannot fail to mention the brilliant definition of security as being without any danger by Dal V. in useful dictionary. The political and legal content of the concept under consideration has a rather broad meaning: from universal international to human security of the person. The general discussions undertaken by UN experts, as well as specialized agencies of this organization, such as ICAO and IMO, can be noted that in the term «security» it is customary to «hide» at least two different in nature. on the one hand, it is a question of safety in terms of technical reliability of facilities whose activities are carried out or provided in maritime or air spaces and in this case ICAO standards and regulations as well as IMO documents operate English «Safety». on the other hand - the political and legal component of the investigated concept is implied, in connection with which English «Security» applies.

The Federation Council of the Federal Assembly of the Russian Federation approved changes to individual legislative acts on the removal of sunken property in December 2021.
These changes are related to the accession of Russia to the Nairobi International Convention on the Removal of Sunken Ships.

Thus, the amendments were made to The Merchant Shipping Code of the Russian Federation, the Code of Inland Water Transport of the Russian Federation, the Law of the Russian Federation «On International Commercial Arbitration» and the following federal laws «On internal sea waters, territorial sea and adjacent zone of the Russian Federation», «On jurisdictional immunities of a foreign state and property of a foreign state in the Russian Federation».

The conditions and procedure for the removal of sunken vessels in internal sea waters, territorial sea of the Russian Federation and exclusive economic zone of Russia are regulated.

The concepts of «sunken property» and «disposal of sunken property» are disclosed. Sunken property means a ship or part of a ship that has been sunk or run aground, including property that is or was on board such a ship or property that has been lost from the ship and is flat, sunk or adrift at sea, a vessel which has almost sunk or run aground, or may sink or run aground, unless measures are taken to assist the ship in distress or its property. The disposal of sunken property shall be understood to mean its lifting from water, transport and destruction by any safe means, as well as the removal of the vessel from dry land.
The disposal of sunken equipment will be carried out on the basis of documentation for the removal of sunken equipment (hereinafter Documentation), which should contain a description of the method and means of disposal, the sequence of actions and the requirements for their safety.
It is envisaged that the disposal of sunken property will be carried out within a set period and in accordance with established procedure, by the owner of such property or, in certain cases, by the administration of seaports or the executive authority of the subject of the Russian Federation, the nearest beach is the property that was sunk.

The seaport authority shall be entitled to reimburse the cost of removing a sunken vessel by selling the sunken property in respect of costs not covered by the organization, having insured or otherwise provided financial security for the disposal of a sunken ship, or by the owner of the sunken ship.
The subject of the Russian Federation, whose coast is closest to the sunken property, will be provided with a subsidy from the federal budget to co-finance expenses for the removal of the sunk property.
The analysis of innovations brings some confusion and misunderstanding...
For example, what is meant in article 107 of the Merchant Shipping Code under the concept of "sunken property" - a permanently sunk or grounded vessel or part of such vessel, or also a vessel that has almost sunk or sank or may sink or sink to the bottom, If measures are not taken to assist a ship in distress?
This question is reasonable, because it is not clear to shipowners if the vessel has almost run aground or is aground, it is specially approached or passes by another vessel with which the latter is «Disposal of sunken property» by virtue of the requirements of art. 107 Merchant Shipping Code of the Russian Federation and whether in this situation it is necessary to develop and submit for agreement to the authorities of the Federal Marine Agency and the captain of the seaport documentation on the removal of sunken property, including a description of the method and means of removal, Sequence of actions and safety requirements? I.e. while the shipowner will develop and agree on the documentation, the vessel will actually sink or run aground, or it will fall over rocks if it has already touched the ground.

Marked dual understanding of the provisions of art. 107 In our opinion, the Merchant Shipping Code of the Russian Federation represents a corrupting factor when the port captain can «stand up» and require documentation on the removal of sunken property, and in individual cases (depending on who will ask him about the removal of sunken property) Consider the vessel as almost sunk or nearly grounded, that is, not to apply to it the status of sunk, and «give permission», turning a blind eye to its removal without providing the agreed documentation provided for in Art. 112 Merchant Shipping Code of the Russian Federation, which is actually not contrary to common sense, since prompt actions to save the ship will prevent a more serious accident and possible damage to the environment. However, the adoption of such a decision puts the ILC itself at risk vis-à-vis supervisory and/or supervisory bodies.
According to the requirement of part 1. 108 Merchant Shipping Code «The master of a ship and the owner of the ship are obliged to send a message about sunken property to the captain of the nearest seaport». There is a reasonable question: when does the property (ship, cargo remnants etc.) acquire the status of the shipwrecked? From the moment of notification?

And if the notification is not filed or the owner of the property is not known? Then by virtue of the requirements of art.1. Part 7 Article.108 Merchant Shipping Code of the Russian Federation: «The captain of a seaport publishes information on the deadlines set for submitting a notice of intention to proceed with the removal of sunken property, in «Notices to mariners» State authorities referred to in subparagraphs 1 and 3 of paragraph 5 of this article (the executive authority of the subject of the Russian Federation, whose coast is closest to sunken property and the federal executive authority, performing functions of public services and management of state property in the field of maritime transport, if the owner of the sunken property is not known), placed on their official sites in the information and telecommunication network «Internet» Information on the time limits set for notification of intention to proceed with the disposal of the sunken property. This procedure is made by the order of the Ministry of Transport. But the order is a regulatory act that must go through an approval (recognition) procedure by the Ministry of Justice, including a procedure for public discussions and assessment of regulatory impact. The total duration of these procedures may be 3 months. An example of this can be the Order of the Ministry of Transport of Russia from 12.05.2022 176 «On the establishment of requirements for the composition and content of documentation for the removal of flooded equipment, as well as criteria for evaluating such documentation» (registered in the Ministry of Justice of Russia 01.06.2022 68674), which was posted on the Federal portal of legal acts 11.06.2022. In response to the above question, it is reasonable to assume that the status of «sunken» property acquires only after the formation of a list of sunken property approved by the Ministry of Transport. Before this time, the owner of a grounded vessel or a vessel that has broken anchor or even a ship that has sunk (lowered) directly at the berth, must be able to raise it without documentation, for which the Merchant Shipping Code is delayed from 2 to 6 months (pp.3 ч.4 art. 110 the Merchant Shipping Code of the Russian Federation) and any coordination. That is, based on the above, it is necessary to make revisions in Merchant Shipping Code of the Russian Federation and specify the moment of acquisition of property status «sunk», otherwise you will have to work out judicial practice, i.e. bring possible court cases to the Supreme Court of Russia, Whose decision, in time, and will give the answer to the above question. At the moment there is no clear answer.

According to part 6 art.109 the Merchant Shipping Code of the Russian Federation: «Disposal of sunken property is carried out on the basis of documentation on the removal of sunken property, agreed by the captain of the seaport». What is this document, where to get it, and the most important thing is that it should be written? This question is answered by the Order of the Ministry of Transport of Russia from 12.05.2022 176 «On the establishment of requirements for the composition and content of documentation for the removal of sunken equipment, as well as criteria for evaluating such documentation» (hereinafter - Order), to which there are also questions.
Sections 1-4 of the Order specify what is included in this documentation, but implementing it in practice may entail the following difficulties.
Section 3 of the Order prescribes that the Documentation shall have in its composition «Project for Disposal of Sunken Property», consisting of 13 subsections as follows:
1. Description of how to remove the sunken property;
2. a description of the assets involved in the removal of the sunken property, indicating the names of the vessels, their types and their main dimensions (if the vessels are involved);
3. A description of the identified risks to the marine environment during work related to the removal of sunken property;
4. Description of measures to prevent harm to the marine environment during work related to the removal of sunken property;
5. a description of the resources employed to prevent harm to the marine environment during work related to the removal of sunken property;
6. Information on the predicted environmental condition during the disposal of the sunken property;
7. Description of methods (ways) to control the contamination of components of the natural environment, their volume and periodicity during work related to the removal of sunken property;
8. information on the existence of a contract (date of conclusion of the contract and its duration) with an organization that provides emergency services and rescue forces with constant readiness for the elimination of oil spills during the execution of the work, related to the disposal of sunken property (in case on board the sunken ship are petroleum products, bunker fuel and oil);
9. Description of the method(s) of delivery of recovered sunken property to its repair, storage or disposal;
10. Details of the location of repair and (or) storage of the sunken property;
11. Description of how and where to dispose of the sunken property (if so);
12. Information on the estimated date of commencement of removal of the sunken property and the estimated duration of said work;
13. Hydrographic, hydrophysical and diving surveys of sunken property (if available).

Owners' attention
From 01.03.2023, the amendments to the Merchant Shipping Code of the Russian Federation shall enter into force, according to which the latter is supplemented by Chapter XIX.2. Agree that "The owner of a vessel with a capacity of 300 or more to cover his liability for the disposal of a sunken vessel must insure or otherwise provide financial security
Responsibility under the requirements of the Nairobi
Convention on the Removal of Sunken Ships, 2007". (art.336.11). This article applies to all vessels regardless of whether they are self-propelled or not. The existence of insurance coverage will have to be confirmed by an Insurance Certificate or other financial guarantee for the responsibility for the disposal of sunken ships issued by the captain of the port of registry (registration). " The organization and implementation of verification of the certificate specified in this article shall be carried out within the framework of State port control" (ch.3 art.336.12 Merchant Shipping Code of the Russian Federation). If the vessel does not have the above-mentioned certificate, it may be detained in the port of arrival until the remark is removed, i.e. it will simply not be allowed to leave. The consequences and economic losses must be understood by shipowners.
One question remains: "What is the capacity? Gross or net?" For the Merchant Shipping Code of the Russian Federation the gross is used." For the purposes of articles 320, 326, 331, 336.6 - 336.8 and 359 of this Code, vessel capacity means its gross capacity as defined in accordance with the rules on the measurement of vessels contained in Annex 1 to the International Convention on Measurement of Ships of 1969". (art. 10 Merchant Shipping Code of RF).
The new article 336.11 was adopted, and the amendment to the article 10 was forgotten. But since this certificate will be issued in compliance with the requirements of the Nairobi Convention, it will definitely be gross, as according to the latter: "A registered owner of a vessel with a gross capacity of 300 or more flying the flag of a State Party shall, in order to cover his liability under this Convention, insure or otherwise provide financial security, for example a guarantee by a bank or similar institution, in an amount equal to the limit of its liability under the applicable national or international limitation regime, but in no case exceeding the sum, calculated in accordance with article 6, paragraph 1 b), of the 1976 Convention on Limitation of Liability for Maritime Claims, as amended" (art. 12 Nairobi Convention).

Damage to the environment and calculation of the extent of harm caused by submerged or abandoned vessels to water bodies is quite often subject to arbitration. Related arbitration processes are usually initiated by the regional units of the «Federal Environmental Service», which involves legal entities that operate fleets in one way or another. To understand the full picture of formation of economic (monetary) equivalent of the damage caused, it is necessary to have special knowledge and experience in the field of operation of the fleet, to understand the origins of its calculation, not just use the formulas given in the methodology. As an example, consider the practice of application by the Arbitration Courts «Methods for calculating the amount of damage caused to water bodies due to violation of water legislation» (Registered in the Ministry of Justice of Russia 25.05.2009 N 13989), approved by the Order of the Ministry of Nature of Russia from 13.04.2009 N 87 (ed. from 26.08.2015) (more on Methodology).
According to para. 17 of this Methodology, the calculation of the economic equivalent of the amount of damage caused by the burial in the water area of vessels taken out of service is carried out according to the formula:

Y - the amount of damage in monetary equivalent in thousands of rubles;
K, K - certain empirical factors determined according to the same Methodology;
H - tax of 40,000 rubles per ton;
«B - the tonnage of abandoned vessels and other floating equipment (their parts and mechanisms), other large-scale waste production and consumption (items), defined in accordance with paragraph 25 of this Methodology, etc.» [21].
The judicial practice in cases involving the calculation of the amount of damage caused to a water body is limited to establishing the fact of the existence of the damage. Courts, including the Supreme Court, do not assess the applicability of the method itself in a particular case and do not explain the algorithm for its application. Reducing its solutions to the following formulations. For example:
- Paragraph 17 of the Methodology N 87 establishes the procedure for calculating the amount of damage caused to water bodies by dumping and burial in them wastes from production and consumption, including ships and other floating equipment (parts and mechanisms), Other large-scale waste (items) from production and consumption. Since the current environmental legislation does not provide for a different calculation of the amount of damage to the water object; the fact that the vessel has been flooded, is confirmed...» [22]

-«... Considers that determined damage caused by the partial flooding of the swimming barracks PKZ-45 "Ukhta", the plaintiff has applied paragraph 17 of the Method for calculating the amount of damage caused to water bodies as a result of violations of water law, approved by the Order of The Ministry of Natural Resources and Environment dated 13.04.2009 N 87» [23]
- «The established procedures and methods for calculating the amount of damage caused to the environment, its individual components shall be applied by the courts to determine the amount of compensation» [24].
General phrases and nothing more.

Claims brought by public authorities against legal persons are settled in full by the courts. Without emphasizing the fact that the abandoned vessels at the time of the trials had already been removed by the defendants and disposed of in accordance with the law, so that no property was buried or destroyed in the water facility. According to the provisions of the law of the Russian Federation, burial is understood as «Any deliberate disposal of wastes or other materials from ships, aircraft, artificial islands, installations and structures, as well as any intentional destruction of ships and other floating devices, aircraft, artificial islands, installations and structures» [23]. Burial of a decommissioned vessel is only to be carried out if its owner has deliberately dumped it in the water to destroy it so as not to dispose of it in accordance with the law. Vessels may be partially submerged and flooding may be seasonal, such as during the flood season.
The main criterion in calculating the amount of damage caused to water bodies in case of dumping of ships is «Tonnage (mass) of abandoned, half-submerged and flooded ships». When calculating the damage, the tonnage indicated in the ship’s documents is taken, which does not always correspond to reality because the ship can be partially dismantled and in such a case this value may differ significantly. The concept of burial, in relation to a ship, implies under itself the inevitable destruction of the latter by the influence on it of the environment - decomposition and mixing of the ship (all its tonnage) with the environment due to corrosion and the impossibility of its recovery or disposal. If the defendant disposed the vessel in accordance with the law, the Method shall not be applied because all the metal (tonnage) which the vessel is composed of, has not been mixed with the environment or was damaged by it, calculated by the above formula and expressed in monetary equivalent.

As much as it is not pleasant to talk about it, but often you can hear that the wages are not paid to sailors after being on long voyages, other labor rights are violated, ship owners do not want to pay for flights. What about this? Answers are given by the former Senior Assistant of the Maritime Transport Prosecutor, and now a member of the Marine Legal Bureau - Zhukov Svetlana Yuryevna.

What is the role of the prosecutor’s office on the indicated issue?
Given the developed maritime infrastructure, special attention is paid to respecting the rights of Russian seafarers employed in foreign shipping companies.
The reason of such close attention of the prosecutor’s office to the problems encountered by sailors «fake» ships is the lack of protection of this category by controlling state authorities (in particular, the State Labour Inspectorate), workers often lack basic knowledge of the scope of labour rights.
In 2021, in defense of the labor rights of Russian sailors, the transport prosecutor brought to court:

- to foreign shipowners-employers 14 claims for recovery of salary arrears in the total amount exceeding 4.5 million rubles. ;
The prosecutor has also brought legal action against crooked companies engaged in recruiting and employing seamen for foreign company vessels operating under the flag of the Togolese Republic. The claims related to recovery from the crooks of compensation for pecuniary damage suffered by workers (seafarers) due to failure of foreign employers to pay wages. In the current year, about 28 such claims have been filed for more than RUB 4 million.
As a result of the prosecutor’s intervention, on the above-mentioned lawsuits, foreign employers have settled debts to 44 Russian sailors in the amount of about 10 million rubles. There has also been a significant decrease in the number of complaints received by the Public Prosecutor’s Office compared to previous years. I believe that this is the result of measures taken earlier by the prosecutor, including the initiation of detention of seagoing ships under foreign flags in the port of Vladivostok due to salary arrears.

The Office of the Procurator-General of the Russian Federation directs all prosecutors to carry out supervisory activities in this area as a matter of priority.
The work of the Transport Prosecutor’s Office on compliance with labour rights of workers employed in maritime transport enterprises is conducted systematically. This work is primarily aimed at preventing violations. For example, in 2020 an inter-ministerial working group was established under the chairmanship of the transport prosecutor, which included representatives of investigative bodies, judicial officers, labour inspection, and the captain’s service at the seaport of Vladivostok. Cooperation has also been established with the Primary Trade Union Organization of Seafarers of Vladivostok. Russian Professional Union of Seafarers, statistical bodies, executive bodies of local self-government. Moreover, it should be noted that the supervision of maritime companies is carried out by both territorial and transport prosecutors. In particular, fisheries companies are subject to the supervision of a territorial prosecutor with regard to the enforcement of seafarers' labour rights; In respect of these economic entities, the transport prosecutor exercises supervision with regard to the implementation of legislation on safety at sea and in the field of transport safety. At the same time, shipping companies that carry out maritime transport of goods and passengers are supervised by transport prosecutors, including on compliance with labour legislation. Work in this area is ongoing and significant.

In 2021, within the framework of supervisory activities, more than 100 violations of the law in terms of timely payment of labor were detected, 44 claims for recovery of wages amounting to more than 9 million rubles were submitted to the court. , 9 submissions were made on the elimination of violations of law, 11 persons were brought to administrative responsibility, 1 warning was announced that violation of law is not permissible.

Another problem encountered by Russian seamen is the inability or unwillingness of the employer to organize their return (repatriation) from foreign seaports, after the end of contracts or due to the failure of the shipowner, including on wages. The abandonment of compatriots abroad is due mainly to the arrest of ships due to lack of financial means to pay for repairs and port fees. Such a situation has been created in 2020 with the crew of ships of the shipping company «Hudson». As a result of the listing by the US Department of Finance of companies and all vessels owned by them on the list of enterprises and vehicles that are subject to economic and trade sanctions for violations of the resolutions on the Democratic People’s Republic of Korea, The organization’s financial situation has deteriorated, with four vessels with crew on board remaining without means of subsistence in overseas seaports of China, Singapore and Korea since 2018.

By the orders of the transport prosecutor, the legal entity and the official were held to administrative liability, the head of the company was presented with submissions, 30 applications for the court were submitted on the obligation to repatriate sailors to Russia. Constructive interaction with the consuls. As a result of the measures taken jointly, 30 compatriots who are members of seagoing crews have been repatriated, 26 of them having been repatriated for the first time under federal budget funds in the framework of implementation of the 2006 Convention on Maritime Labour. In addition, as a result of almost one year’s work of the transport prosecutor’s office, the rights of a Russian seaman who was injured during the performance of duties on a ship working under a foreign flag have been restored. In order to restore the violated right, the transport prosecutor filed an application with the court establishing the fact of the employment relationship with the Russian shipping company operating the said ship under a foreign flag.

It should be noted that in the civil case of this action, the prosecutor has established contact with representatives of the international seamen’s trade union, thanks to which the flag state of the ship (Republic of Sierra Leone) International documents with a translation into Russian were received and provided to the court, substantiating the prosecutor’s position in the case. Following the examination of the claim, the prosecutor’s claims made in the interests of the seaman are fully satisfied, which subsequently allowed the seaman to receive the required state support measures, in particular: lump sum payment due to injury on the job (the latter is more than 100 thousand rubles), and also receive a monthly allowance of about 30 thousand rubles. Until the full restoration of the ability to function, reimbursement of the cost of drugs used by a seaman to restore a damaged limb.

In order to avoid violation of your employment rights carefully study the provisions of contracts, employment contracts. Never agree to the employer’s terms and conditions to specify a minimum wage in the contract, but actually receive a large amount, as it will be difficult to prove in court the real salary. Always read carefully and study documents related to the performance of work function, and only then sign the last. In case of violation of labour rights immediately apply to the labor inspection, if there are grounds for investigation and prosecution.