Law on ports and waterways (Harbour Act).
Act title amended by Act 22 June 2012 no. 45 - Cf. Previous law June 8, 1984 no. 51. regarding ports and waterways etc.
§ 1. Purpose The law should facilitate good maneuverability, safe travel and proper use and management of waters in accordance with the public interest and concern for fisheries and other industries.
The law should further facilitate the safe and efficient port operations as part of maritime transport and intermodal transport as well as for efficient and competitive maritime transport of passengers and goods in domestic and international transport network.
§ 2. Scope of the Act applies in this country, including in territorial waters and internal waters. For rivers and lakes this Act shall apply only insofar as they are navigable by ship from the sea. The Ministry may issue law, a further application for rivers and lakes than what follows from the second sentence.
Act applies to Svalbard and Jan Mayen to the extent decided by the King. The King may grant exemptions from the law and lay down such specific rules as local conditions warrant.
King in Council may decide that the Act shall wholly or partly apply in the Economic Zone and in areas of jurisdiction established under the Act of 17 December 1976 no. 91 on the Economic Zone.
Ministry may issue regulations on the sea and land and labor, plant and measures related to defense purposes are exempt from the law.
§ 3. Relationship to international law This Act applies to such limitations as are recognized in international law or of agreement with a foreign state.
§ 4. Definitions vessels meant in this Act any floating device can be used as means of transport, means of transport, lifting devices, refuges, manufacturing or storage place, including underwater vessels of every kind.
Otherwise need mooring or resting places or similar.
All areas that belong to or are functionally linked to the areas mentioned in the first sentence are also regarded as a harbor.
With port operations meant in this law services, exercise of authority and other government targeting vessels, cargo or passengers in port.
With port facilities meant in this law areas, buildings, facilities and other infrastructure used in port operations, including ports, terminal buildings, loading, unloading and reloading facilities and warehouse and administrative buildings.
With waters meant in this law areas where vessels can travel and which is within the scope of the Act, cf. Provision in or pursuant § 2.
Ministry may by individual or issue further what should be covered by the definitions of this section.
§ 5. Duty to provide information and compile statistics Ministry may by individual or regulations require owners or users of vessels, owners or operators of port or port facility, private quay owners and users of ports to provide the authorities with the information necessary for use in transportation planning or traffic monitoring. The Ministry may order the owners or operators of port or port terminal to compile statistics for the same purpose.
§ 6. Fees for processing applications for permits etc. Ministry may establish fees for processing an application for permission or approval under the provisions of or pursuant to this Act.
Chapter 2. Management Responsibility and authority under the Act, etc.
§ 7. Management Responsibility and authority for law administrative responsibility and authority under this Act is vested in the Ministry, unless otherwise prescribed by provisions made in or pursuant to this Act.
Administrative responsibility and authority for the main leader and drainwire incumbent ministry.
For municipal management responsibility and authority, § 9.
§ 8. Delegation and transfer of authority King and the Ministry can delegate management responsibilities and powers under this Act to one or more municipalities.
King may decide that authority under this Act be transferred to state authority when the kingdom is at war or threat of war or national independence or security is at risk.
§ 9. The municipality's administrative responsibility and authority The municipality has management responsibilities and powers under this Act within the area where the municipality has planning authority under the Planning and Building Act, unless otherwise provided by provisions made in or pursuant to this Act.
Municipality shall ensure safety and accessibility in ports and in the municipality's sea area.
Ministry may issue regulations and take decisions on municipal management responsibilities and powers under this Act, including exemptions from or extension of municipal management responsibility and authority.
§ 10. Delegation of the municipal authority Agency under this Act rests with the local authority may be delegated to intermunicipal cooperation, cf. Act on 25 September 1992 no. 107 on local and regional authorities (Local Government Act), and the company established by law January 29, 1999 no. 6 on inter-municipal companies.
Ministry may by individual or regulations provide that a specified part of the municipality's authority under this Act may be delegated to private.
§ 11. Official Charts authority The authority decided by the King (the official hydrographic authority) issues or approves official nautical charts and nautical publications.
Ministry may issue regulations requiring permits, orders or other information relevant to safe navigation or passage shall be notified to the official charts Authority and whoever is the national coordinator for navigational warnings.
§ 12. Relationship to the Public Ministry appealed decision that is made by the municipality or by authority delegated by the municipality. The Ministry may lay down other appellate.
decree requiring vessels or specific groups of vessels shall use certain waters or waters.
§ 14. Use of waters If something else is not determined by or pursuant to this Act, the Authority may by law provide regulations on order in and use of waters when the interests of good maneuverability, safe travel and proper use and management of waters requires.
Ministry may issue regulations concerning the right to issue regulations under subsection and about the specific content of these, including deciding that such regulations should follow a specific template, and that they must be approved by the Ministry.
§ 15. Unimpeded traffic in waters etc. The authority under this Act shall ensure that traffic in waters not obstructed or impeded. The authority under the Act may decide cordoning off areas in the waters or on land when necessary for safety reasons.
§ 16 fairways and farledsnormal Ministry may by regulations prescribe fairways, including the fairways to be main fairway or biled. It can also set the second farledskategorier.
Ministry may issue regulations setting standards for fairways (farledsnormal), including requirements for the design, establishment, operation and maintenance, as well as requirements for navigational guidance, anchorages and ports of refuge.
The Ministry may issue regulations governing the access to use fairways except sea traffic.
§ 17. Traffic Exchanges Ministry may create traffic centers for monitoring and control of maritime traffic and other traffic, including the enforcement of our maritime rules, others traffic regulations and safety and emergency preparedness. Traffic control centers shall, where appropriate also provide navigation assistance and other nautical information to mariners.
Ministry may issue regulations concerning VTS the tasks, activities and authority.
§ 18. Obligation to report about hazards A master who observes hazards essential for the safe navigation or traffic shall immediately notify the nearby ship. The master shall also give such notice to the authority determined by the Ministry in regulations. People who observe danger of affecting the safe navigation or traffic shall notify the nearest police authority, unless such message seems clearly unnecessary. The Ministry may issue regulations with further provisions for notification and for the retransmission of message.
When national coordinator for navigational warnings received notification mentioned in the first paragraph, it shall promptly consider sending out the required navigational warning for the area.
§ 19 Installations and equipment for navigation guidance Ministry oversees and administrative responsibility for lighthouses, beacons, waters signs and other installations and facilities which will provide navigation guidance or regulate traffic.
shielding, alteration or removal of light or other devices that may seem misleading for safe navigation or traffic.
Orders under subsection A may be directed to the person who owns or is responsible for the installation, construction or activities which endanger safe navigation or traffic or other reasons make it necessary to regulate traffic. Orders under subsection b and c can be directed to the person who owns or is responsible for that facility or facilities.
§ 20. Siting, design and technical requirements for installations and facilities for navigation guidance Ministry may make individual and issue regulations on technical requirements and use, design and location of lighthouses, beacons, waters signs and other installations and facilities which will provide navigation guidance or regulate traffic.
§ 21. unlawful use of facilities and equipment for navigation guidance No need without the permission of the Ministry using means or facilities to provide navigation guidance or regulate traffic, to anything other than the purpose of such a facility, etc., Or otherwise act in any way may prevent or impede such devices or systems to operate as intended, including moor in, remove, move, change or shielding device or facility. The same applies to piers, jetties or similar pilot boats.
§ 22. Obligation to report on arrivals and departures Ministry may make individual or issue regulations requiring seafarers and others will be required to report to state or municipal authority or the owners or operators of ports or port terminals. Ministry may issue regulations also stipulate restrictions on the right to enter a port by failure to fulfill the notification obligation under the first sentence.
§ 23. Coastal Tax Ministry may issue regulations stipulating that if a vessel is payable fee (coastal fee) to the state to cover government expenditure on farledsutbedringer, operation and maintenance of lights, marks and other navigational aids and istjeneste and about discounts for such fee .
Ministry may issue regulations requiring the owners or users of vessels to provide information, including presenting ship books to use when calculating the coastal fee.
Shipowner and the agent responds solidarity for fees under this section. It may be required, inter alia, as a condition for permission to use the services that the fees should cover, the shipowner or agent shall provide financial security for the payment of such fees.
§ 24. Security Fee Ministry may issue regulations providing that for vessels or specific groups of vessels fee shall be paid to the state for use of the fairway with traffic monitoring, etc. (Security fee), including about discounts for such charges.
The provisions of § 23 third paragraph applies correspondingly to security fee pursuant to subsection.
§ 25. Calls Fee municipality may issue regulations providing that for vessels calling at ports in the municipality, to be paid harbor dues to the municipality. Calls fee should only cover the municipality's costs upon exercise of public authority pursuant to this Act and regulations, as well as costs to facilitate security and accessibility in the municipality sea area, as far as such costs can not be covered by payment for services rendered in the port . The regulations may also be stipulated discounts.
Ministry may issue further regulations on the municipal administration of the fees mentioned in the first paragraph, including rules on what charges such a fee can cover. Ministry may issue regulations also array other frames for the specific content of regulations issued pursuant to the first paragraph.
Ministry may issue regulations providing that owners or operators of ports or port terminals shall levy port charges on behalf of the municipality for special compensation.
The provisions of § 23 third paragraph applies correspondingly to port fees under subsection.
Chapter 4. Permits and requirements for measures etc..
§ 26. General requirements for measures Measures that require a permit pursuant to this chapter shall be planned, implemented, operated and maintained in a way that promotes good maneuverability and safe travel in the waters as well as concern for human health, environment and material values, safeguarded in a prudent manner.
Ministry may issue further requirements for planning, implementation, operation and maintenance of the measures.
Ministry may issue regulations concerning the minimum allowable distance in height, width or depth for measures to curtail fairways.
§ 27. Measures that require a permit construction, excavation, filling and other measures that may affect safety or maneuverability in the municipality sea area requires permission from the municipality where the measure to be implemented. As measures considered among others mooring installations, docks, piers, bridges, overhead lines, elaboration, dumping, aquaculture facilities, circulation vessels, lamps, cables and pipes. The municipality can not issue permits for actions that conflict with provisions laid down in or pursuant to this Act.
Measures as mentioned in the first paragraph shall be implemented in main fairway or biled or otherwise outside the municipality's sea area, requiring instead a permit from the Ministry. The same applies to measures to be implemented within the municipality's sea area, but that may affect safety or negotiability in main fairway or biled.
Ministry may issue regulations specifying what kind of measures that are covered by the various parts of this section and may further provide that certain types of measures covered by this subsection, instead requires permission of the Ministry. The Ministry may also in each case decide that a measure that is covered by the first paragraph, instead requiring a permit from the Ministry.
Ministry may also issue regulations that certain types of measures should be exempt from the requirements for a permit under this section, if the measure is notified to the competent authority under the law within a specified period before the measure is implemented. The Ministry may also by individual exempt a measure to the authorization requirement under this section, the action has been notified to the competent authority under the law within a reasonable time.
§ 28. Measures of importance for the Armed Forces or NCA plant construction, excavation, filling or other measures that may be of importance for the Armed Forces or NCA facilities, installations or operations, requires authorization by the Ministry. If there is doubt whether the measure is covered by the first sentence, the matter shall be submitted to the Ministry for decision.
The decision may stipulate that anyone who gets a permit, or in whose interest a decision to be made, to cover the costs of fulfilling conditions mentioned in the first paragraph.
In permit for a project that may cause significant inconvenience for other use and exploitation of waters, it can be made a condition that the developer should facilitate such use and exploitation elsewhere, or shall provide subsidies for this purpose, or that the developer regardless of fault shall compensate for damage and loss of other components etc. used in other commercial activities in the waters, such as fishing gear. The liability may be reduced or remitted if the developer demonstrates that the damage was caused by gross negligence of the claimant.
§ 30. Protection of specific areas Ministry may by regulations or individual decisions in specific areas prohibit or set conditions for the implementation of measures if this is necessary to preserve specific areas of particular value for marine biodiversity.
§ 31. Loss of license A license lapses if the work of a measure is not commenced within three years after the permit was issued. The same applies if the work of the action is set in more than two years. The authority has given permission, extend the time limit once by up to three years.
§ 32. Coordination of authority authority under this Act and the municipality as the planning and building authority is obliged to make an effective and coordinated processing of applications for permission.
Permission for action under this chapter may not be granted in violation of the approved land use plans under the Planning and Building Act without an exemption from the relevant planning and building authority.
In cases that fall under the law on aquaculture of 17 June 2005 no. 79 on Aquaculture (Aquaculture Act), the Ministry may fully or partially delegate authority under this chapter to the Directorate of Fisheries or other public authority.
§ 33. Imposition of investigation before a decision can be taken before the municipality or Ministry makes a decision according to § 27 and § 28 can the developer be required to make and pay for such investigations as are necessary to clarify the consequences of implementing the measure. The order must be reasonable in relation to the importance it has for respectively the municipality or the Ministry to clarify the possible consequences of the measure.
Ministry may issue regulations about what kind of investigations that are regarded as necessary examinations under subsection.
§ 34. Prohibition to cause danger, damage or inconvenience in the waters No need in waters or in port use or leave vessels, vehicles or other objects so that there is a danger, damage or inconvenience to navigation or transport in the waters or in the harbor, or for other uses of the waters, unless otherwise prescribed by regulation or license granted by or pursuant to this Act.
If vessels, vehicles or other objects used or left in contravention of subsection, the person responsible shall take measures to reduce or prevent such danger, damage or inconvenience as mentioned there. In the event of such damage or inconvenience, the person responsible immediately take steps to stop, remove or mitigate the effects of damage or inconvenience. The obligation under this clause applies to measures that are reasonable in relation to the risks, damages or disadvantages that must be prevented or reduced.
As responsible under this section shall also be as was the registered owner or the owner of the vessel, vehicle or object at the time the vessel mv. was utilized or left in contravention of subsection or registered owner or the owner at the time it is given an order pursuant to subsection.
§ 35. Wreck Removal etc. The authority under the Act may order that the person responsible for the vessel, vehicle or object that has sunk, stranded, abandoned or shelved, to clean up or remove the vessel mv. within a specified time limit when the interests of good maneuverability, safe travel or consideration for other use or management of waters requires. If the order under the first sentence is not complied with within the time limit, the responsible instead ordered to pay the reasonable expenses which some have had to cleanup or removal.
As responsible under this provision shall also be as was the registered owner or the owner of the vessel, vehicle or object at the time the vessel mv. sank, stranded, abandoned or dismissed, or at the time the order is issued.
Under subsection apply measures that are in reasonable proportion to the damage and inconvenience to be avoided.
§ 36. Direct execution Becomes an order pursuant to § 34 or § 35 not complied with by the responsible, the authority under the Act provide for implementing measures. The authority under the Act, irrespective of whether an order is given provide promptly to get implemented measures when required for safety reasons or maneuverability in the waters.
When implementing measures under the first paragraph the competent authority under the law to make use of the controller's property even though this may lead to damage and inconvenience. If necessary, the Authority may request the assistance of police.
Ministry may issue regulations concerning the implementation of measures under the first paragraph.
Authority under the Act may require that the person responsible covers expenses, damages and losses arising from the actions implemented under the first paragraph.
§ 37. Use of a third person's property by implementing measures In direct implementation of measures under § 36 the authorities may make use of a third party's property, provided this is necessary to ensure the safety or maneuverability in the waters, and that the contemplated achieved by measures, clearly outweighs the damages and disadvantages that measures can inflict third person.
Third person may claim compensation for damage as mentioned in the first paragraph of the authority that has implemented measures.
ensure safety and mobility in the waters.
Order may inter alia go out on the vessel to change course, change speed, anchor, nødlosse, take tow aboard or obtain necessary assistance from salvage company.
If a vessel is towed on the basis of a tow or salvage agreement, the Ministry may order as mentioned in the first paragraph to the Deputy vessels.
If an order under the first or second paragraph are not complied with, or issuance of such an order may result in appropriate action is delayed, the Ministry may make to implement the necessary measures. If necessary, the Ministry may request assistance from the police.
Duties to perform actions after the first paragraph and the Ministry the right to take action under the third paragraph also applies in cases where the project may result in damage to the vessel or items on board or result in losses for the owner, shipowner or cargo owners. The master and crew may be required to assist the implementation of measures pursuant to this section.
Expenses, damages and losses arising from the measures taken by the third paragraph, may be claimed from the vessel's owner or the company.
At the risk of acute pollution comes Pollution Act.
Ministry may issue regulations implementing the provisions of this section.
§ 39. Right to use port owners and operators of ports and port terminals are obliged to receive vessels to the extent that space conditions allow, and the vessel is not unreasonable prejudice to the owner requiring the use of the harbor or others secured the right to use the port. Owners and operators of ports and port terminals may impose restrictions on the right to enter a port, for reasons of safety, environment and fishing industry.
Obligation to receive vessels under subsection does not apply to private ports that do not offer calls and services other than the owners of the harbor. Ministry may however in special cases by individual decision or regulations prescribe that such ports will be used by other users with a compelling need for the port and transport services port can offer, provided that the use will not cause unreasonable prejudice to the owner requiring use of the port or other secured the right to use the port.
Ministry may by individual or issue regulations on the duty to receive vessels under subsection.
§ 40. Operation and maintenance of harbor etc. Owners of ports and port terminals shall ensure that port facilities operated and maintained so that users' needs for port and transportation in the port are covered in a safe and efficient manner.
how business should be adapted to needs related to intermodal transport.
Municipality where the port is located shall ensure that port facilities and personal property used in port operations, is in proper condition. The municipality may order proper reconditioning or disposal of movable and port facilities referred to in the first sentence.
§ 41. Ports with passenger Owners of ports and port terminals whose passenger traffic should ensure that they operate in a manner that ensures safety for life and health. Terminal buildings shall be properly equipped.
Ministry may issue regulations on the handling of passenger traffic in the harbor, including requirements regarding terminal.
§ 42. Use of port If something else is not determined by or pursuant to this Act, the municipality may issue regulations on order in and use of the port when the interests of efficient and safe port operations require.
Ministry may issue regulations concerning the right to issue regulations under subsection and about the specific content of these, including deciding that such regulations should follow a specific template, and further that they be approved by the Ministry.
The provisions of § 27 that certain measures require authorization from the municipality, apply correspondingly to circulation in the harbor.
The offering port and transport services determines the price and other terms of business. The Ministry may lay down principles for determining the price.
Ministry may in regulations provide that the offering port and transport services, shall prepare and publish an overview of current regulations, price and other information that may be of importance to the user or staying in port.
Ministry may on application from a municipality authorize the municipality covers the costs and expenses to the municipal port operations through harbor dues. The Ministry may issue further regulations on the design of harbor dues.
§ 43. Security security measures in ports and port terminals Owners and operators of ports and port facilities covered by the regulations referred to in the second paragraph shall take the measures required to prevent and prevent terrorist acts and other willful, unlawful acts directed toward the port, port terminal, or vessels using the port or port terminal.
closure of ports or port terminals.
§ 44. Chapter Scope This chapter applies to ports that are wholly or partly owned or operated by one or more municipalities, or of enterprises owned by one or more municipalities, when otherwise not stated in the individual provision.
Rules on port capital does not apply to ports at the time the law comes into force, do not have personal wealth under § 47 first paragraph a. The ministry may nonetheless decisions impose such ports to observe the rules of the port capital if the port is or becomes a gateway with significance outside their own municipality.
Ministry may issue further regulations to supplement or delimit the provisions of this chapter.
Municipalities and private participation in enterprises whose purpose is investment, development and operation of the port.
Ministry may issue further regulations on the organization and management of ports and port activities.
§ 46. Requirements for designated ports Ministry appoints ports that are particularly important to develop effective and safe maritime transport of people and goods. The Ministry may by individual or issue further requirements for such ports, including requirements concerning organization, cooperation with other ports and representation in the airport's governing bodies. In assessing whether a port shall be appointed by the first sentence shall be given to the scope of operations in the harbor and the port and transport services offered, including freight volume, organization and cooperation with other ports as well as the airport's social significance. Ports with state and private owners may also be appointed.
Designated ports under subsection shall prepare a plan meeting the requirements to land access and efficiency that is required operatively transportation hub. The plan must follow the requirements for rollover as municipal.
revenues and returns the rest of values referred to in subparagraph a, b or c.
Port assets to be held accounting separate from the municipality's other assets. For port activities not covered by § 1-2 of the Act of 17 July 1998 no. 56 on financial statements etc. (Accounting) or by special accounting rules established by or pursuant to the law on 25 September 1992 no. 107 on local and regional authorities (Local Government Act) or other legislation shall be prepared income statement and annual report pursuant to the Accounting Act, unless the regulations laid down by Ministry exception is made from this requirement.
Port capital may be used for investment in firms mentioned in § 45 second paragraph. Shareholding acquired by such an investment and the return of this is included in the port capital.
§ 48. Management of the port capital Port capital may not be used for purposes other than port activities, including operation, maintenance, repair, construction and development, as well as the exercise of public authority under the provisions of or pursuant to this Act and facilitation of security and accessibility the municipality's coastal waters. Profit may make provision for future development and investment in port operations.
Ministry may by individual or regulations prescribe what port capital can be used. Ministry may challenge the legality of a municipality's decision or other disposition of the harbor capital. If a decision or other disposition of the waterfront capital is considered illegal, the Ministry may take management measures to the municipality.
Ministry may in special cases and on terms to authorize the funds belonging to the port capital, being invested in projects or business for purposes other than those mentioned in the first paragraph. Such an investment and the return of this is contained in the port capital, unless the Ministry by decision stipulates otherwise.
§ 49. Financial management in ports organized as a limited company or inter-municipal company. Provision of corporate funds When port assets is invested in companies mentioned in § 45 second paragraph, which is organized as a limited company or inter-municipal company, dividend distribution and other use of company funds are not made until after it is made necessary provisions for maintenance , new facilities, future development and investments in port operations. The Ministry may, within the limits imposed by the Act 13 June 1997 no. 44 on corporations (Act), Act of 13 June 1997. 45 on Public (Companies Act) or Act on 29 January 1999 no. 6 on intermunicipal companies regulation issue detailed rules on how the distribution and other use of the company's assets, including dividends, to be conducted and how funds will be used. The regulations may make exceptions from the provisions of § 47 subsections and § 48 first paragraph.
Ministry may order that funds are paid from the company in violation of the provisions laid down in or pursuant to the first paragraph, shall be returned to the company.
§ 50. Exemption from the rules on port capital Ministry may on application from a municipality decide that a port be completely or partially granted exemption from the rules on port capital in this chapter. In deciding whether an exemption should be granted, emphasis shall be placed on transport issues and commercial and environmental consequences. The first sentence does not apply to ports which are gateway with significant impact outside the municipality.
By exemption under subsection shall as a rule be imposed on the use of the port capital of Port activities, participation in inter-municipal cooperation harbor or on the use of the port capital for other purposes which promotes maritime transport. The Ministry may in special cases grant permission for all or part of the port capital used for charitable purposes.
Ministry shall hear relevant organizations and agencies before it decides whether the exemption.
Commune application for exemption under subsection shall describe how land, properties and other assets included in the port capital, conceivably predisposed.
§ 51. Particulars on state harbors Ministry may by individual or regulations provide that the breakwaters, jetties and other port facilities etc.. that are built or financed with state funds, to be used for specific purposes.
If the municipality adopts the state piers, jetties and other port facilities etc.., The Ministry may order the municipality to take charge of operation and maintenance resulting from its use.
§ 52. Supervision Ministry determines who is the supervisory authority under this Act. The supervisory authority shall supervise compliance with the provisions of and pursuant to this Act are complied with. The Ministry may issue further regulations on the organization, implementation and appraisal of the supervisory tasks.
The Ministry supervises the municipality's obligations under § 15 first paragraph, first sentence, § 40, third paragraph, § 47, second paragraph, § 48 first paragraph and § 51 subsection. Authority is subject to the law on 25 September 1992 no. 107 on local and regional authorities (Local Government Act) Chapter 10A.
§ 53. Right to information and investigation authority that performs supervision in accordance with § 52 shall have unrestricted access to ports, waters and measures in these waters, as far as is necessary for the conduct of the audit.
Supervisory authority may require any person engaged in activities covered by this law, to submit information, documents or other materials of significance for audit. When there are special reasons, other than a person mentioned in the first sentence, ordered to submit for audit such information etc. as mentioned there. The obligation to disclose such information, etc. applies only insofar as their professional secrecy is not to prevent the information submitted to the supervisory authority.
Ministry may issue regulations on the surveillance and the obligation to contribute, including that self-reporting can take the place of supervision.
§ 54. Charge for control and supervision Ministry may issue regulations on fees for controls and audits conducted to ensure that the Act or decisions pursuant thereto are followed.
§ 55. Recovery of fees and duties payable fee and fee determined pursuant to §§ 6, 23, 24, 25, 42 sixth paragraph and 54 are enforceable by execution.
Claims state or a municipality has the shipowner respectively §§ 23 and 24 or §§ 25 and 42 sixth paragraph of this law, has a lien on the ship under the rules governing maritime liens in the Act of 24 June 1994 no. 39 on shipping (Maritime Code).
§ 56. Mortgage right for claims by direct implementation and measures against vessels in danger Claims authority under the Act against the shipowner in respect of expenses, damages and losses incurred in the implementation of measures referred to in § 36 and § 38, has a lien in ship and cargo by provisions on maritime liens in the Act of 24 June 1994 no. 39 on maritime (Maritime Code).
§ 57. Orders to rectify and punching authority under the Act may order the person responsible to remedy or stop conditions that are contrary to the provisions or decisions issued in or pursuant to law. When completing an order, the Authority shall set a deadline for compliance and disclose that decision may be followed up with fines that can have the effect of an enforceable judgment, coercive or amendment and revocation of a license.
If necessary authority under the law to ask for assistance from the police for carrying out the order pursuant to subsection.
§ 58. Writ concerning the obligation to comply with orders or prohibitions authority under the Act may issue a writ against him that within the deadline fails to comply with orders or prohibitions issued pursuant to this Act. The writ shall provide information concerning the provisions of subsections and shall, as far as possible, be served on it is aimed at.
Whoever writ is directed, may bring proceedings against the government to have the writ tested. If legal proceedings are not brought within 30 days from the proclamation, the writ same effect as an enforceable judgment and enforceable under the rules for the judge.
Writ can not be appealed.
§ 59. Enforcement If an order in enforceable judgment or equal fines not complied with, the competent authority may by law provide that the order executed on behalf of whoever judgment or writ is aimed at without it being necessary ruling by the Enforcement Act § 13 -14.
By imminent danger may order enforced under the provisions of the Enforcement Act § 13-14 without a judgment or penalty notice is required.
§ 60. Coercive fines To ensure that the provisions of this Act or decisions pursuant to this Act, the Authority may by law impose coercive fines accruing to the competent authority.
Coercive fine may be imposed when a determination is detected. Coercive begins to run if the person responsible fails to meet the deadline for rectifying the situation which the authority under the Act. A coercive fine may be imposed in advance if there are special reasons, shall become effective from any contravention. It may be determined that the coercive fine run as long as the unlawful situation persists, or that it is payable for each violation. Coercive fine does not apply if compliance is impossible due to circumstances not attributable to the person responsible. Coercive fines may be imposed as a daily fine or even fines.
Coercive fines imposed on the person responsible for the infringement. If the contravention occurred on behalf of a company or other association, a foundation or a public body, the coercive fine shall generally be imposed. Are fines imposed on a company as part of a group, accrued amounts thereof may also be recovered from the parent company.
Are more responsible for decisions on fines, booklets they jointly and severally for payment of the periodic penalty payment. Imposition of fines is enforceable by execution. The Ministry may waive accrued penalties.
Ministry may issue further provisions on fines, including the coercive size and duration, the imposition of coercive and waiver of accrued amounts.
it otherwise follows from otherwise applicable conversion rules.
Amendment and revocation of a license under subsection can be time-limited. Limited Time amendment and revocation may be conditional on certain conditions be repaired or changed.
In making decisions under this section shall be taken of the financial loss and inconvenience it must be expected that an amendment or revocation will apply the licensee, and the advantages and disadvantages that alteration or withdrawal will entail.
Ministry may issue further provisions on amendment and revocation of permits and approvals.
In determining whether an offense is considerably after the first paragraph shall give special consideration to the scope and effects of the violation and the degree of guilt.
Have an offense mentioned in subsection meant that it has been caused or threat of material injury to life or health, imprisonment up to 2 years may be imposed.
Attempts offense is only punishable when the offense, if the offense had been completed, would result in the circumstances stated in the third paragraph.
When the above is determined that a violation of regulations issued pursuant to the law can be punished, this only applies when the regulations stipulated that such a violation of the relevant provision is punishable.
§ 63. Commencement This Act applies when the King bestemmer.1 King may decide that different provisions shall enter into force at different times. Provisions are put into effect pursuant to the first sentence, prevails over the provisions of Law 8 June 1984 No.. 51 on ports and waterways etc.
Law 8 June 1984 No.. 51 on ports and waterways etc. is repealed by the King decide. The King may decide that different provisions shall be repealed at different times.
§ 64. Transitional provisions Regulations issued pursuant to Law 8 June 1984 No.. 51 on ports and waterways, etc. apply after the Act has come into force.
King may issue regulations on the transitional rules.


A medical malpractice action, like other personal injury actions, must be brought within two years from the date the cause of action accrued. N.J. Stat. Ann. § 2A:14-2 (West 1987). New Jersey courts have read a discovery rule into this statute, holding that a cause of action does not accrue so long as a party reasonably is unaware either that he has been injured, or that the injury is due to the fault of an identifiable person. Savage v. Old Bridge-Sayreville Medical Group, 260 N.J. Super. 417, 616 A.2d 1307 (App. Div. 1992). If, at the time the cause of action accrued, the claimant was under the age of 21 or insane, the time does not begin to run until the disability is removed. N.J. Stat. Ann. § 2A:14-21 (West 1987).
Wrongful death actions must be brought within two years from the date of death. N.J. Stat. Ann. § 2A:31-3 (West 1987).
New Jersey has adopted the doctrine of modified comparative negligence. N.J. Stat. Ann. § 2A:15-5.1 (West 1987). Under this doctrine, a claimant’s action is barred if his negligence exceeds the combined negligence of all defendants. Otherwise, the claimant’s recovery is diminished in proportion to his percentage of negligence. Id.
In a negligence action in New Jersey, the trier of fact must determine each party’s negligence as a percentage of the combined negligence of all parties. N.J. Stat. Ann. § 2A:15-5.2 (West Supp. 1997). Any defendant whose negligence is 60 percent or more is jointly and severally liable for the claimant’s entire damages. N.J. Stat. Ann. § 2A:15-5.3 (West Supp. 1997). One whose negligence is less than 60 percent is only severally liable for that portion of the claimant’s total damages that is equal to his percentage of negligence. Id.
The Joint Tortfeasors Contribution Law provides for contribution when one tortfeasor has paid more than his pro rata share of a judgment. N.J. Stat. Ann. §§ 2A:53A-1 to 2A:53A-5 (West 1987). The courts have held that the effect of comparative negligence on contribution is to change the measure from pro rata share to percentage of negligence. Dunn v. Praiss, 139 N.J. 564, 656 A.2d 413 (1995).
While New Jersey courts generally hold that a hospital is not liable for the negligent acts of non-employed physicians, the doctrine of ostensible or apparent agency has been applied where the court thought it would be natural for a patient to assume that his treating physicians were employees of the hospital. Arthur v. St. Peters Hospital, 169 N.J. Super. 573, 405 A.2d 443 (App. Div. 1979).
In a medical malpractice case based on facts occurring on or after June 29, 1995, within sixty days of the commencement of the action plaintiff must file an affidavit by an appropriate licensed person stating that there exists a reasonable probability that the care, skill, or knowledge exercised in the treatment fell outside acceptable professional standards or treatment practices. N.J. Stat. Ann. § 2A:53A-27 (West Supp. 1997). Expert testimony is necessary proof in a medical malpractice action, unless the matters alleged are within a layman’s common knowledge. Rosenberg v. Cahill, 99 N.J. 318, 492 A.2d 371 (1985).
For actions filed on or after October 27, 1997, no defendant is liable for any punitive damages in any action for an amount in excess of five times the liability of that defendant for compensatory damages, or $350,000, whichever is greater. N.J. Stat. Ann. § 2A:15-5.14(b) (West Supp. 1997).
New Jersey has prescribed limits on attorneys’ contingent fees for many years. Under the latest schedule, effective September 1, 1996, those fees may not exceed the following amounts: (a) 33 1/3 percent of the first $500,000, (b) 30 percent of the second $500,000, (c) 25 percent of the third $500,000, (d) 20 percent of the fourth $500,000, and (e) a reasonable amount approved by the court for the excess over $2 million. N.J. Ct. R. § 1:21-7 (West Supp. 1997). If the claimant is a minor or incompetent, no fee may exceed 25 percent of any pre-trial settlement. Id.
New Jersey does not provide for the use of periodic payments to satisfy judgments in medical malpractice actions.
In New Jersey, collateral benefits received by the claimant must be deducted from the claimant’s recoverable damages. N.J. Stat. Ann. § 2A:15-97 (West Supp. 1997). Any amounts paid for such benefits by the claimant or the claimant’s family must be added to such damages, however. Id.
New Jersey requires the award of interest calculated from the date the action was commenced or six months from the time the cause of action accrued, whichever is later. The rate floats on the basis of an index and was equal to 5.5 percent in 1997. N.J. Ct. R. § 4:42-11(b) (West Supp. 1997). In exceptional cases, the court may suspend the accrual of such interest. Id.
New Jersey has not established a patient compensation fund, and it does not require its licensed physicians to carry liability insurance.
New Jersey has waived sovereign immunity for itself and its counties, municipalities, and other political subdivisions to the extent set forth in the New Jersey Tort Claims Act. N.J. Stat. Ann. § 59:1-1 et seq. (West 1992 & Supp. 1997). Public entities retain their immunity from liability for, inter alia, the following: (1) failure to provide a medical facility or mental institution; (2) failure to provide sufficient equipment, personnel, or facilities in a mental institution or medical facility; (3) a decision to perform or not to perform any act to promote the public health of the community; (4) failure to make an adequate physical or mental examination of any person for the purpose of determining whether such person has a disease or physical or mental condition that would constitute a hazard to the health or safety to himself or others, unless such examination or diagnosis was for the purpose of treatment; (5) failure to diagnose that a person is afflicted with a mental illness or is a drug- dependent person; (6) the decision whether to confine a person for mental illness or drug dependence, including the terms and conditions of such confinement; and (7) injury caused by an escaping or escaped person who had been confined for mental illness or drug dependence. N.J. Stat. Ann. §§ 59:6-2 to 59:6-7 (West 1992).
Public entities are not liable for pre-judgment interest or punitive damages. N.J. Stat. Ann. § 59:9-2 (West 1992). In addition, public entities are not liable to claimants for damages for pain and suffering, unless the claim involves the loss of a bodily function, permanent disfigurement, or dismemberment, and the medical treatment expenses are in excess of $1,000. Id. No action may be brought against a political subdivision unless notice of the claim has been given within 90 days from the date the cause of action accrued. The court has discretion to extend this to one year absent prejudice to the political subdivision. N.J. Stat. Ann. §§ 59:8-8 and 59:8-9 (West Supp. 1997). Moreover, a complaint must be brought within two years from the time the cause of action accrued. N.J. Stat. Ann. § 59:8-8 (West Supp. 1997). A claimant’s minority or mental incapacity tolls these periods. Id.
In addition, the New Jersey Tort Claims Act provides that “nothing contained in this supplementary act shall inure to the benefit of any insurance company which has issued a policy of liability insurance or to any person who is obligated to indemnify a public entity or public employee.” N.J. Stat. Ann. § 59:10-9 (West 1992). Thus, to the extent a public entity carries applicable liability insurance, the limited immunities provided in the act do not apply.
New Jersey also provides non-profit entities organized exclusively for, inter alia, hospital purposes, immunity as to claims made by the hospital’s intended beneficiaries for damages in excess of $250,000. N.J. Stat. Ann. §§ 2A:53A-7 and 2A:53A-8 (West Supp. 1997). A hospital’s agents or servants, however, are not exempt from liability. Id. The increase in the maximum liability from $10,000 to $250,000 applies prospectively only to claims accruing on or after July 31, 1991. Schiavo v. John F. Kennedy Hospital, 258 N.J. Super. 380, 609 A.2d 781 (App. Div. 1992), aff’d mem., 131 N.J. 400, 620 A.2d 1050 (1993).
New Jersey requires the reference of personal injury claims to an arbitrator if the amount in controversy is $20,000 or less. N.J. Stat. Ann. § 2A:23A-20 (West Supp. 1997). The arbitrator’s decision is inadmissible and non-binding. Assembly Ins. Comm. Statement, Senate, No. 2709-L.1987, C.329.


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In Dennis v. United States, the U.S. Supreme Court upheld the conviction of eleven national leaders of the Communist Party (CPUSA) under the Smith Act (Alien Registration Act) of 1940 for conspiring to organize the CPUSA to ‘‘teach and advocate the overthrow and destruction of the Government of the United States by force and violence.’’ Dennis was the leading precedent upholding cold war prosecution of communists and others suspected of leftist sympathies during the 1950s.
The Truman administration, led by Attorney General Tom Clark, sought Smith act indictments against the CPUSA leadership in 1948 to fend off Republican criticism that Democrats were lax in ferreting communists out of positions of influence in American life, and also as a way of indirectly promoting Truman’s aggressive and expensive policy of containment of the Soviet Union. The trial before U.S. District Court Judge Harold Medina in New York City was a raucous affair that resulted in convictions of all the defendants, followed by contempt citations of their attorneys. The U.S. Supreme Court upheld those contempt convictions when they were appealed (Sacher v. United States, 343 U.S. 1, 1952; In re Isserman, 345 U.S. 286, 1953). These convictions and subsequent disbarment of some of counsel had a chilling effect on the availability of legal representation for radicals during the cold war.
On appeal of the Smith Act convictions, Chief Judge Learned Hand wrote for the court of appeals panel, affirming the convictions on the basis of a reworked clear-and-present-danger test: ‘‘whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.’’ In the case of communists, Hand thought the answer to be clearly in the affirmative because he considered communism to be a mortal menace to American freedom. Under the Hand formula, if the apprehended evil is great enough, its likelihood can be remote and still provide a basis for government censure.
Like Judge Hand, Justice Vinson subscribed wholeheartedly to the then prevalent belief that the CPUSA was ‘‘a highly organized conspiracy, with rigidly disciplined members’’ committed to ‘‘overthrow of the Government by force and violence.’’ In this view, the CPUSA had a unique constitutional status, placing it and its members at least partially outside the protections that the First Amendment afforded other political movements.
With those assumptions constituting the foundation of his opinion, the Chief Justice then went on to endorse Judge Hand’s sliding-scale calculus. He applied it in such a way as to permit the federal government to suppress what he called ‘‘advocacy’’ as well as ‘‘incitement.’’ In doing so, he forced freespeech doctrine, and the clear-and-present-danger test in particular, back into its World War I era formulation, which considered a mere bad tendency as within government’s power to crush. Vinson also adopted Justice Felix Frankfurter’s balancing approach (as opposed to Justice Hugo Black’s absolutism), weighing national security against individual liberty to communicate. Security easily won. The Vinson opinion permitted government to go beyond its unquestioned power to suppress actual evils like insurrection and incitement to punish communicative activities that had previously enjoyed some degree of First Amendment protection: advocacy, organizing, and belonging to political groups.
Yet, despite the speech-suppressive result of his holding, in dicta Justice Vinson inconsistently endorsed Justice Oliver Wendell Holmes’s dissent in Gitlow v. New York, 268 U.S. 652 (1925), and Justice Louis D. Brandeis’s concurrence in Whitney v. California (1927), both of which repudiated badtendency readings and provided a wide latitude for political speech. Such incompatibilities in Justice Vinson’s opinion help account for its short-lived actual influence.
Because Vinson’s opinion was only a plurality, the concurrences assumed greater than usual significance. Frankfurter construed away the clear-and-presentdanger test altogether. This required considerable intellectual contortion on his part since he had previously identified himself with Justices Holmes and Brandeis, whose views would have condemned the Dennis result and its doctrine. He dismissed the Holmes/Brandeis vision as ‘‘a sonorous formula,’’ as ‘‘dogmas too inflexible’’ to be applied in the real world, and as merely ‘‘attractive but imprecise words.’’ As a substitute for clear and present danger, now drained of all meaning, Frankfurter substituted balancing, which had the double vice of enhancing judicial power while invariably privileging government authority over freedom of speech.
Justice Robert H. Jackson’s concurrence went even further than Justices Vinson’s and Frankfurter’s in embracing an apocalyptic vision of Communism. From that metajudicial assumption, he derived an unlimited power of government to suppress speech. In his view, communists could claim no effective constitutional protection for their activities.
Justices Black and William O. Douglas dissented, Black expressing the ‘‘hope . . . that in calmer times, when present pressures, passions and fears subside,’’ a later Court would ‘‘restore the First Amendment liberties to the high preferred place’’ they had previously occupied.
Justice Black’s hope was realized seventeen years later in Brandenburg v. Ohio, 395 U.S. 444 (1968), which did in fact reinstate the Holmes/Brandeis reading of clear and present danger to canonical status. Since then political discourse has enjoyed nearly absolute immunity from government suppression. But in the interim, Dennis plowed wide inroads into First Amendment liberties, depriving not only communists but also much of the American Left of freedoms to speak, publish, organize, and agitate enjoyed by all other Americans. It was the major constitutional bulwark of the cold war.
Moreover, though Dennis has been ignored by judges and condemned by academics and civil libertarians since 1968, it has never been overruled. It remains valid precedent, at least technically, available to authorize suppression of the speech, press, and assembly liberties of some feared, loathed, and/or radical group in the future.
Belknap, Michal R. Cold War Political Justice: The Smith Act, the Communist Party, and American Civil Liberties. Westport, CT: Greenwood Press, 1977.
Murphy, Paul L. The Constitution in Crisis Times, 1918– 1969. New York: Harper & Row, 1972.
Urofsky, Melvin I. Division and Discord: The Supreme Court Under Stone and Vinson, 1941–1953. Columbia: University of South Carolina Press, 1997.
Wiecek, William M., The Legal Foundations of Domestic Anticommunism: The Background of Dennis v. U.S., Supreme Court Review (2001): 375–434.

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Country of Origin: United States Court Name: Supreme Court of Georgia Primary Citation: Griffith v. State, 43 S.E. 251 (G.A. 1903). Judge Name: Justice Little Jurisdiction Level: Georgia Judges: Justice Little Attorneys: Strickland & Green, for plaintiff in error. David W. Meadow, solicitor-general, contra.
Defendant was indicted under Ga. Penal Code § 703, which prohibited one from instigating, engaging in, or doing anything furtherance of the an act or cruelty to a domestic animal. Ga. Penal Code § 705 defined cruelty as every willful act, omission or neglect, whereby unjustifiable physical pain, suffering, or death is caused or permitted. The court affirmed the conviction, finding that the law provided that a domestic animal, such as a horse, should be sheltered and cared for by his owner. The jury was authorized to find that the defendant willfully abandoned the horse by turning the horse out to the elements, and failing to feed, shelter, or care for the animal. Such conduct was "willful." The court affirmed the judgment of the superior court on the jury's conviction of defendant for cruelty to animals.
[**251] LITTLE, J. Charlie Griffith was indicted for a misdemeanor, in the superior court of Madison county, and it was specifically charged that the accused did unlawfully and willfully turn out, to go at large, a certain horse belonging to him, and omitted and neglected to feed and take care of said horse, whereby unjustifiable physical pain and suffering and death were caused and permitted to be occasioned to the horse. The trial resulted in a verdict of guilty. The accused asked for a new trial on the ground that the verdict was contrary to law and the evidence. The motion was overruled, and he excepted. Without going into a detailed statement of the evidence, we are of the opinion, after an examination of the record, that the jury were authorized to find the following to be the facts: The accused was the owner of a horse which, in the winter of 1901, was allowed to go at large, and to which during very bad weather he gave no food or shelter. The horse trespassed on a neighbor's land, endeavoring to find food, where he remained for about a week. He was very poor and of considerable age. The person to whose premises the horse came, by inquiry, ascertained that he belonged to the accused, whom he notified of its whereabouts and condition, and asked him to come and get the animal, which he did; but in a very short time thereafter the horse returned, and remained on the premises of the neighbor until he died a few days afterward. Nothing was done to protect the horse, nor was he furnished any shelter or food. There was some evidence to the effect that after the horse was down and unable to get up he appeared to be swollen and otherwise diseased. One witness testified that the accused said that he had turned the horse out to die. There was also evidence that after the horse had returned the second time to the premises of the neighbor where he died, the accused, who owned the animal, was notified of his whereabouts and condition. The defendant in his statement said that he put the horse at a place where he had some land rented, and did not see the horse very often; that when he was notified that the horse was sick, he brought him to his house; that the horse was about twenty-four years old, and could do but little. He carried him to the farm, and directed a person there to attend to him and take him up at night. Afterwards he ascertained the horse had left the farm, but was not told where he was until after he died. He denied any want of care, or negligence, or intention to abandon the horse. It is insisted on the part of the plaintiff in error, that, in order to constitute cruelty to animals, the act complained of must have been done with an evil intent, and that the motive with which the act is done is the test whether or not it is criminal. It is also contended, that, to be guilty of an offense under our statute, a person must be actuated by a spirit of cruelty, and a disposition to inflict unnecessary pain and suffering on an animal. The point is further made that the State did not show that the horse was in the custody of the defendant, but on the contrary the evidence shows that it was in the custody of a different person; that in order to constitute the offense with which the accused is charged, it is necessary that it should be shown that he had charge and custody of the animal; that the evidence showed in this case that the defendant did what was reasonable, with the information that he had; that no cruelty or willful neglect which caused unjustifiable physical pain and suffering or death to the horse was shown; and that the verdict finding the accused guilty was contrary to law and the evidence.
The accused was indicted under the Penal Code, [**252] § 703, which reads as follows: "Every person who shall instigate, engage in, or do anything in furtherance of an act of cruelty to a domestic animal, shall be punished as for a misdemeanor." By the same Code, § 705, the "cruelty" referred to is declared to include "every willful act, omission or neglect, whereby unjustifiable physical pain, suffering, or death is caused or permitted." These provisions are based on an act approved October 20, 1879. Prior to the passage of that act there was in force an act which was approved March 1, 1875, entitled "an act for the prevention of cruelty to animals," and which declared that any person who should torture, torment, deprive of necessary sustenance, cruelly beat or maltreat, etc., any horse or other animal, should be guilty of a misdemeanor and punished in a named way. The act of 1879, however, is very much broader in its scope than the act of 1875, and in express terms repeals all previous acts on the subject. The first section of this act is, in substance, the code section first above referred to, while section 5 contains the definition of "cruelty" found in the Civil Code, § 705, also above referred to. Plainly, under the terms of these two sections, the act of cruelty to a domestic animal, which is made a misdemeanor, includes not only a willful act but a willful omission or a willful neglect in consequence of which unjustifiable physical pain, suffering, or death is caused or permitted to happen to a domestic animal. In other words, a conviction may be sustained, under the terms of the code, not only for a willful act by which unjustifiable pain, suffering, or death is caused to an animal, but also when the evidence shows that a person whose duty it is to do an act or acts towards the care and sustenance of a domestic animal shall willfully omit or neglect to do that act, and pain, suffering, or death is occasioned by such omission or neglect. Clearly, it is contemplated that a willful failure to afford shelter or necessary sustenance to a domestic animal, on the part of the owner or the person charged with the duty of maintaining the animal, is a violation of the terms of the act. The second section of the act of 1879, following the declaration that an act of cruelty to a domestic animal shall be a misdemeanor, provides that any person finding any domestic animal abandoned and not properly cared for may apply to any justice of the peace of said county, who shall summarily decide whether such has been abandoned, etc.; thus indicating that an abandonment and failure properly to care for a domestic animal is an act of cruelty within the purview of the act. Such must have been the natural and plain intent of the lawmakers in defining the "cruelty" which is made an offense against the laws of this State. It is no refinement of sentiment to declare that a domestic animal, such as a horse, which has given his powers and strength to the pleasure and prosperity of his owner, should, after his strength has been exhausted by labor, be sheltered and cared for by that owner. We have no fault to find with such a provision of the law, and none with that which calls into exercise the strong arm of the law to punish one guilty of a violation of a duty so natural and humane. As we understand our law on this subject, the owner or person having a domestic animal in charge may not abuse, misuse, or cruelly treat such animal; he is under a duty to afford his domestic animals reasonable shelter and sustenance. He may not, therefore, when his horse is old and worn out, abandon him, or neglect, or fail willfully, to support and protect him. And for a violation of law in any of these respects the owner or person having custody of the animal may be punished. Under the evidence introduced on the part of the State, the jury were authorized in the present case to find that the direct custody and control of the horse which it is alleged was cruelly treated was in the accused; that he turned him out to die; that the horse did not die from disease; that the accused failed to furnish the horse with food necessary to sustain him; that he gave him no shelter; and that all these acts and omissions were willful. It is true that in his statement the accused denied that he had willfully abandoned the horse; but even under this statement it is not asserted either that proper provision was made for the animal, or that any one else was charged with the duty of making such provision. Besides, it was the province of the jury to disregard the statement and to base their verdict on the evidence in the case. This they have apparently done, and that evidence is sufficient to support the verdict, which is not contrary to law.
Judgment affirmed. All the Justices concurring, except Lumpkin, P. J., absent.


text:
Reference: Dorozhkin EM, Leontyeva TV, Scherbina YY, Shchetynina AV, Pecherskaya EP. Teacher’s Labour as a Tool of Forming Human Capital of Higher School Graduates. Int Elect J Math Ed. 2016;11(7), 2773-2787.
Reference: Dorozhkin, E. M., Leontyeva, T. V., Scherbina, Y. Y., Shchetynina, A. V., & Pecherskaya, E. P. (2016). Teacher’s Labour as a Tool of Forming Human Capital of Higher School Graduates. International Electronic Journal of Mathematics Education, 11(7), 2773-2787.
Reference: Dorozhkin, Evgenij M., Tatyana V. Leontyeva, Yelena Yu. Scherbina, Anna V. Shchetynina, and Evelina P. Pecherskaya. "Teacher’s Labour as a Tool of Forming Human Capital of Higher School Graduates". International Electronic Journal of Mathematics Education 2016 11 no. 7 (2016): 2773-2787.
Reference: Dorozhkin, E. M., Leontyeva, T. V., Scherbina, Y. Y., Shchetynina, A. V., and Pecherskaya, E. P. (2016). Teacher’s Labour as a Tool of Forming Human Capital of Higher School Graduates. International Electronic Journal of Mathematics Education, 11(7), pp. 2773-2787.
Reference: Dorozhkin, Evgenij M. et al. "Teacher’s Labour as a Tool of Forming Human Capital of Higher School Graduates". International Electronic Journal of Mathematics Education, vol. 11, no. 7, 2016, pp. 2773-2787.
Reference: Dorozhkin EM, Leontyeva TV, Scherbina YY, Shchetynina AV, Pecherskaya EP. Teacher’s Labour as a Tool of Forming Human Capital of Higher School Graduates. Int Elect J Math Ed. 2016;11(7):2773-87.
The relevance of the research problem is determined by the intensity of modernization of Russian education, which includes the integration of Western technologies, traditions of the Soviet education and modern requirements to higher education in Russia. The aim of the article lies in justification of one of the most important for Russian education problem of the links between the teacher’s labour and quality of education of higher school graduate. A leading approach to the study of this problem is practice-oriented approach to the training of highly qualified specialists. The following results of the study were obtained: the situation in modern Russian education over the past decade was described, taking into account the change of educational paradigm; the idea that the accumulation of human capital by worker of higher school results in achieving the best results in the formation of students’ competences is justified; the methodology of control the level of formation of competences of university students as a result of the teacher’s labour is presented; the system of evaluating the level of formation of competences of students and graduates of the university is developed, indicators of which, obtained in its implementation in practice, can find application in the evaluation of the results of work of the teaching staff of the University. The article can be useful for researches in the field of education, teachers, postgraduates, undergraduates and students of pedagogical education.
Abakumova, N. N. (2011) Influence of a new wage system on the effectiveness of labour of scientific and pedagogical staff. The Manager, 2, 52-60.
Bagirova, A. & Scherbina, E. (2014) Graduate Competence as a Result of Professors Work. International Multidisciplinary Scientific Conferences on Social Sciences and Arts SGEM 2014, 3: Psychology and Psychiatry, Sociology and Healthcare, Education. Education and Educational Research, 325-332.
Baidenko, V. I. (2011) The bologna process: resume of the decada. Moscow: National University of Science and Technology «MISIS». 446p.
Bedrachuk, I. A. (2009) About payment for labour in universities. Siberian Financial School, 3, 108-113.
Bess, J. L., Anderson, C. H. & Murray, J. D. (1972) Professors – work and life styles among academicians. Journal of higher education, 43(8), 667-668.
Bianchetti, L. (2010) The bologna process and the intensification of university professors' work: interview with Josep M. Blanch. Educaco & Sociedade, 110(31), 263-285.
Bogomolova, I. S. & Kuleshova, K. G. (2012) Comparative analysis of wages’ systems in the sphere of higher professional education Southern Federal University News. The technics, 133(8), 21-29.
Charters, W. W. (1942) How Much Do Professors Work? Journal of higher education, 13(6), 298-301.
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Garner, R. (1987) Metacognition and reading comprehension. Norwood: Ablex. 165p.
Harlow, R. (2003) The effect of professors’ experiences and emotion management in the undergraduate college classroom. Social psychology quarterly, 66 (4), 348-363.
Kalimullin, A. M., Vlasova, V. K. & Sakhieva, R. G. (2016). Teachers’ training in the magistrate: Structural content and organizational modernization in the context of a federal university. International Journal of Environmental and Science Education, 11(3), 207-215.
Korneeva, A. A. (2007) Theoretical grounds of labour motivation of higher school teachers: PhD Abstract. Moscow: Russian State Social University. 26p.
Krasinskaya, L. F. (2006) Structure and content of professional activity of a teacher of the technics. Vestnik of Samara State University, 3(50), 26-34.
Kurgansky, S. I. (2006) The use of general-system attractors in managing the development of educational system of a University. Personality. Culture. Society, 3(4), 336–345.
Manokhina, O. A. (2013) Evaluation of quality of activity of University staff (faculty) as a method of labour organization. Human capital, 8, 59-62.
Maues, O. (2010). Reconfiguration of faculty work in higher education. Educar em Revista, 1, 141-160.
Nelyubin, N. I. (2014) Competence approach: gushing polysemy on the background of the methodological insufficiency. Values and meanings, 5(33), 75-83.
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Ovchinnikov, M. V. & Tsiring, D. A. (2013) The Success Criteria of Scientific Pedagogic Activities. The Education and science journal, 1(2), 28-36.
Solomon, C. R. (2013) Sacrificing at the altar of tenure: Assistant professors' work/life management. Social science journal, 50(1), 143-152.
Struyven K., Dochy F. & Janssens S. (2005) Students’ perceptions about evaluation and assessment in higher education: a review. Assessment & Evaluation in Higher Education, 30, 331–347.
Tkachenko, O. I. (2010) Teacher in XXI-st century: recommended directory. Chelyabinsk: Edition of S-USU. 147p.
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matches: V. V. V. V. V. V.


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RE: COUNTIES – ORDINANCES – CURFEWS – AIRBOATS – FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION – authority of county to adopt airboat curfew. ss. 327.46 and 327.60, Fla. Stat., as amended by Ch. 2009-86, Laws of Fla.
1. Does a county-imposed curfew on airboats that is based upon eliminating airboat operational noise create a boating-restricted area subject to Florida Fish and Wildlife Conservation Commission approval pursuant to Chapter 327, Florida Statutes, as amended by Chapter 2009-86, Laws of Florida.
2. Does a county-imposed curfew prohibiting the operation of airboats on specified water bodies in Alachua county during certain hours create a boating restricted area governed by the criteria and procedures in Chapter 327, Florida Statutes, as amended by Chapter 2009-86, Laws of Florida?
3. Does a county-imposed curfew prohibiting the operation of airboats on all water bodies in Alachua County during certain hours create a boating-restricted area governed by the criteria and procedures in Chapter 327, Florida Statutes, as amended by Chapter 2009-86, Laws of Florida?
4. Does section 327.60(2)(e), Florida Statutes, as amended by Chapter 2009-86, Laws of Florida, allow a local government to adopt an ordinance imposing an airboat curfew, for reasons other than public safety, by a two-thirds vote of the governing body?
1. - 3. A county-imposed curfew on airboats that is based upon eliminating airboat operational noise does not create a boating-restricted area within the scope of section 327.46, Florida Statutes, which would be subject to Florida Fish and Wildlife Conservation Commission approval pursuant to Chapter 327, Florida Statutes, as amended by Chapter 2009-86, Laws of Florida.
4. Section 327.60(2)(e), Florida Statutes, authorizes counties to adopt ordinances governing the operation of vessels which may discriminate against airboats when such ordinances are adopted by a two-thirds vote of the governing body enacting such an ordinance. In enacting any such ordinance, the county must balance its concern for the public health, safety, and welfare with constitutional considerations and a recognition that any such regulation must not be in violation of constitutional protections afforded to the public for the use of, and access to, state sovereignty lands.
According to information you have supplied to this office, Alachua County is considering adopting a curfew on airboat operation on county waterways. The purpose of this ordinance is to deal with the noise caused by airboats on county water bodies, especially the disruption caused by that noise during nighttime hours. Alachua County currently has a noise ordinance prohibiting the operation of motor boats or watercraft in any water body in the county in a manner so as to exceed the sound level of 90 dba at a distance of 15 meters (50 feet), or the nearest shoreline, whichever instance is less. The ordinance under consideration by the county commission would impose a curfew on the nighttime operation of airboats. In light of amendments to Chapter 327, Florida Statutes, during the 2009 legislative session, you have questions about the county’s authority to establish such a curfew and any applicable legislative requirements for the adoption of such an ordinance.
Your first three questions, dealing with local legislation on the issue of boating-restricted areas, will be considered together.
In the absence of federal legislation and subject to the powers of Congress over navigable waters, Florida has full regulatory authority over navigable waters within state limits and may even legislate in the area of navigation in appropriate circumstances. In recognition of this authority, the state has enacted Chapter 327, Florida Statutes, which regulates the registration and safety of vessels using Florida waters, and the provisions of Chapter 861, Florida Statutes, making the obstruction of navigability a criminal offense.
"(1) The provisions of this chapter and chapter 328 shall govern the operation, equipment, and all other matters relating thereto whenever any vessel shall be operated upon the waters of this state or when any activity regulated hereby shall take place thereon.
(h) That conflicts with any provisions of this chapter or any amendments thereto or rules adopted thereunder."
This statute, as amended, became effective July 1, 2009. Further, section 327.22, Florida Statutes, authorizes a county that expends money for the patrol, regulation, and maintenance of any lakes, rivers, or waters and for other boating-related activities in the county to regulate vessels resident in the county.
Section 327.46, Florida Statutes, as amended by section 13, Chapter 2009-86, Laws of Florida, authorizes the creation of boating-restricted areas "for any purpose necessary to protect the safety of the public if such restrictions are necessary based on boating accidents, visibility, hazardous currents or water levels, vessel traffic congestion, or other navigational hazards." Counties are given specific authority to establish certain boating-restricted areas by ordinance including ordinances establishing an idle speed, no wake boating-restricted area; an ordinance establishing a slow speed, minimum wake boating-restricted area; an ordinance establishing a vessel-exclusion zone for such things as public bathing beaches or swim areas and dams, spillways, or flood control structures. Nothing in section 327.46, Florida Statutes, contemplates the creation of boating-restricted areas for purposes other than the protection of the safety of the public.
Chapter 327, Florida Statutes, imposes specific requirements for noise abatement of vessel engines. Counties are authorized to adopt additional noise pollution and exhaust regulations pursuant to section 327.65(2), Florida Statutes, as amended by section 15, Chapter 2009-86, Laws of Florida.
This office, in Attorney General Opinion 2005-58, advised Citrus County that it was prohibited from adopting an ordinance creating a boating-restricted area near residential properties for the purpose of vessel noise abatement outside of the specific grant of authority provided in Chapter 327, Florida Statutes. In that opinion, the county questioned whether it could create vessel restricted areas, such as idle speed zones, near residential properties as a means of controlling unnecessary vessel noise. The opinion recognizes the statutory and administrative rule prohibiting adoption of any boating-restricted area "for the purpose of noise abatement" and concludes that, while the county could adopt more stringent noise abatement legislation pursuant to Chapter 327, Florida Statutes, it could not create a boating-restricted area for the purpose of noise abatement.
The ordinance Alachua County proposes is not an ordinance to create a boating-restricted area as defined in section 327.46, Florida Statutes. Section 327.60(2), Florida Statutes, as amended, states that no provision of chapter 327 should be construed to prevent the adoption of any ordinance relating to the operation of vessels with certain specified exceptions. It appears to be the purpose of Alachua County’s ordinance to regulate the operation of airboats on county water bodies during particular hours of the day. Pursuant to the statute, a county may not adopt or enforce any ordinance or local regulation "[d]iscriminating against airboats . . . unless adopted by a two-thirds vote of the governing body enacting such ordinance[.]" Alachua County proposes to adopt a curfew restricting the operation of airboats on county waterways and section 327.60(2), Florida Statutes, would appear to authorize the adoption and enforcement of such an ordinance if it is adopted by a two-thirds vote of the governing body of the county. In addition, because a curfew on the operation of airboats would not appear to come within the scope of section 327.46, Florida Statutes, such an ordinance would not require approval by the Fish and Wildlife Conservation Commission pursuant to that statute.
You have also asked whether section 327.60(2)(e), Florida Statutes, would allow a local government to adopt an airboat operation curfew by a two-thirds vote of the governing body. You have provided no information on the terms of such an ordinance and this office has no authority to pass on the validity of local legislation. However, any such legislation would be tested against certain constitutional considerations and I outline these below.
Section 327.60(2), Florida Statutes, specifically provides that nothing in Chapter 327, Florida Statutes, prevents the adoption and enforcement of ordinances "discriminating against airboats . . . [if such ordinances are] adopted by a two-thirds vote of the governing body enacting such ordinance[.]" Whether a court would find that a particular ordinance such as a curfew ordinance specifically applying only to airboats falls within the scope of this statute will depend on the particular terms of the ordinance and on its application and enforcement.
I would note that federal courts have recognized that the imposition of a curfew implicates the fundamental right to "move about freely in public." The implication of a fundamental right will subject any such ordinance to a strict scrutiny review by the courts. To survive this strict review, a classification created by an ordinance must promote a compelling governmental interest and must be narrowly tailored to achieve this interest. Any such ordinance must use the least restrictive means to accomplish these goals.
In addition, the Alachua County Commission, in enacting any such ordinance, must balance its concern for the public health, safety, and welfare with a recognition that any such regulation must not be in violation of constitutional protections afforded to the public for the use of, and access to, state sovereignty land. Thus, the commission must recognize and accommodate the constitutionally derived protection known as the public trust doctrine.
In sum, section 327.60(2)(e), Florida Statutes, authorizes counties to adopt ordinances governing the operation of vessels which may discriminate against airboats when such ordinances are adopted by a two-thirds vote of the governing body enacting such an ordinance. In enacting any such ordinance, the county must balance its concern for the public health, safety, and welfare with constitutional considerations and a recognition that any such regulation must not be in violation of constitutional protections afforded to the public for the use of, and access to, state sovereignty lands.
 See, e.g., s. 861.02, Fla. Stat., "Obstructing watercourse;" s. 861.05, Fla. Stat., "Obstruction to navigation by bridges;" and s. 861.06, Fla. Stat., "Obstructing harbors."
 See Board of County Commissioners of Escambia County v. Board of Pilot Commissioners of the Port of Pensacola, 42 So. 697 (Fla. 1906) (holding that the depth of the water in a river, harbor, bay, or port in a county is one of the chief elements of its value, and its protection from injury by being filled in is within the purposes for which county governments are established, even though the harbor or bay is also and largely used for passage to and from, and commerce with, points beyond the county); Board of County Commissioners of Pinellas County v. Ford, 419 So. 2d 786 (Fla. 2d DCA 1982) (a county water and navigation control authority could consider navigational factors in regulating the construction of docks under a special act recognizing the right of an upland owner to construct a dock in front of the upland as provided by state law, but permitting the authority to make reasonable rules and regulations for construction thereof; moreover, the authority's decision to deny a private dock permit application on the ground the structure would pose a hindrance to navigation was supported by substantial competent evidence in the form of statements by qualified persons that the waterway was heavily traveled and adversely affected by shoaling, tides, and currents, notwithstanding that the proposed dock complied with deed lot restrictions, the authority’s rules, and city zoning ordinances, and was considered reasonable by the United States Army Corps of Engineers).
 See s. 64, Ch. 2009-86, Laws of Fla., providing an effective date.
 Section 327.46(1), Fla. Stat., as amended by s. 13, Ch. 2009-86, Laws of Fla.
 Section 327.46(1)(b)1., Fla. Stat., as amended by s. 13, Ch. 2009-86, Laws of Fla.
 Section 327.46(1)(b)2., Fla. Stat., as amended by s. 13, Ch. 2009-86, Laws of Fla.
 Section 327.46(1)(b)3., Fla. Stat. And see s. 327.46(1)(c), Fla. Stat., authorizing local governments to adopt additional ordinances creating other boating-restricted areas for certain navigability issues.
 See s. 327.65(1), Florida Statutes, requiring the exhaust of vessel engines to be muffled by equipment that muffles the noise of the exhaust in a reasonable manner.
 Section 327.60(2)(e), Fla. Stat., as amended by s. 14, Ch. 2009-86, Laws of Fla.
 See s. 327.46(1), Fla. Stat., as amended by s. 13, Ch. 2009-86, Laws of Fla., which states that no boating restricted ordinance shall take effect until the commission has reviewed the ordinance and determined that the ordinance is necessary to protect public safety pursuant to the statute; and Collier County Board of County Commissioners v. Fish and Wildlife Conservation Commission, 993 So. 2d 69 (Fla. 2d DCA 2008).
 See s. 16.01(3), Fla. Stat., authorizing the Attorney General to issue opinions on questions of state law.
 See, e.g., Schleifer v. City of Charlottesville, 992 F.Supp. 823 (W.D. Va., 1997), affirmed, 159 F.3d 843 (4th Cir. 1998), petition for cert. denied, 526 U.S. 1018, 119 S.Ct. 1252, 143 L.Ed.2d 349 (1999); Qutb v. Strauss, 11 F.3d 488 (5th Cir. Tex., 1993), cert. denied, 511 U.S. 1127, 114 S.Ct. 2134, 128 L.Ed.2d 864 (1994); Op. Att'y Gen. Fla. 94-02 (1994); U.S.C.A. Const. Amend. 14.
 See State v. J.P., 907 So. 2d 1101 (Fla. 2004) and Op. Att'y Gen. Fla. 94-02 (1994) and cases cited therein.
 See McDowell v. Trustees of Internal Improvement Fund, 90 So. 2d 715 (Fla. 1956); White v. Hughes, 190 So. 446 (Fla. 1939); Adams v. Elliott, 174 So. 731 (Fla. 1937); and Ops. Att'y Gen. Fla. 85-47 (1985), 79-71 (1979), and 73-430 (1973).
 This constitutionally derived protection is known as the public trust doctrine. See McDowell v. Trustees of Internal Improvement Fund, 90 So. 2d 715 (Fla. 1956); White v. Hughes, 190 So. 446 (Fla. 1939); Adams v. Elliott, 174 So. 731 (Fla. 1937); and Ops. Att'y Gen. Fla. 94-02 (1994), 85-47 (1985), 79-71 (1979), and 73-430 (1973).

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text:
SR510 JGD Schottky barrier rectifier. Max recurrent peak reverse voltage 100 V. Max average forward current 5.0 A.
P4KE220CA JGD 400 Watt peak power. Transient voltage suppressor diode. Nominal voltage 220 V. Bidirectional.
HER606 JGD 6.0 A, high efficiency rectifier. Max recurrent peak reverse voltage 600V.
FR602G JGD 6.0A, glass passivated fast recovery rectifier. Max recurrent peak reverse voltage 100V.
SMBJ40 JGD Surface mount transient voltage suppressor. Breakdown voltage 44.4 V (min), 54.3 V (max). Test current 1.0 mA.
KBPC1008 JGD Single phase 10 A silicon bridge rectifier. Max recurrent peak reverse voltage 800V.
1N4619 JGD 500mW low noise silicon zener diode. Nominal zener voltage 3.0V.
ZMM55-C12 JGD Surface mount zener diode, 500mW. Nominal zener voltage 11.4-12.7 V. Test current 5 mA. +-5% tolerance.
1N5944A JGD 1.5 W, silicon zener diode. Zener voltage 62 V. Test current 6.0 mA. +-10% tolerance.
1N5923A JGD 1.5 W, silicon zener diode. Zener voltage 8.2V. Test current 45.7 mA. +-10% tolerance.
BY550-100 JGD 5.0 A silicon rectifier. Max recurrent peak reverse voltage 100 V.
3EZ12D JGD 3 W, silicon zener diode. Nominal voltage 12 V, current 63 mA, +-20% tolerance.
SMAJ51A JGD 400 W peak pulse power. Surface mount transient voltage suppressor. Working peak reverse voltage 51 V.
1N5923C JGD 1.5 W, silicon zener diode. Zener voltage 8.2V. Test current 45.7 mA. +-2% tolerance.
HER154G JGD 1.5 A, glass passivated high efficiency rectifier. Max recurrent peak reverse voltage 300V.
SMBJ7.5CA JGD Surface mount transient voltage suppressor. Breakdown voltage 8.33 V (min), 9.21 V (max). Test current 1.0 mA. Bidirectional.
1N965A JGD 0.5W, silicon zener diode. Zener voltage 15V. Test current 8.5mA. +-10% tolerance.
P4KE6.8CA JGD 400 Watt peak power. Transient voltage suppressor diode. Nominal voltage 6.8 V. Bidirectional.
3EZ150D3 JGD 3 W, silicon zener diode. Nominal voltage 150 V, current 5.0 mA, +-3% tolerance.
P6KE43 JGD 400 Watt peak power. Transient voltage suppressor diode. Nominal voltage 43 V.
P4KE200 JGD 400 Watt peak power. Transient voltage suppressor diode. Nominal voltage 200 V.
P4KE7.5CA JGD 400 Watt peak power. Transient voltage suppressor diode. Nominal voltage 7.5 V. Bidirectional.
SMBJ5918 JGD 1.5W silicon surface mount zener diode. Zener voltage 5.1 V. Test current 73.5 mA. +-20% tolerance.
SMBJ5947C JGD 1.5W silicon surface mount zener diode. Zener voltage 82 V. Test current 4.6 mA. +-2% tolerance.
SMBJ8.0A JGD Surface mount transient voltage suppressor. Breakdown voltage 8.89 V (min), 9.83 V (max). Test current 1.0 mA.
3EZ47D10 JGD 3 W, silicon zener diode. Nominal voltage 47 V, current 16 mA, +-10% tolerance.
SFR153 JGD Soft fast recovery rectifier. Max recurrent peak reverse voltage 200 V. Max average forward current 1.5 A.

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1.1 Taking into account that the action had been admitted to arbitration by the Tribunal before bankruptcy proceedings were commenced at the regional national arbitration court at [Seller]'s place of business, the Tribunal considered it possible to arbitrate and make an award on the action brought before it.
1.2 Since the places of business of the parties to the contract for the international sale of goods are located in States parties to the Vienna Convention 1980 [UN Convention on Contracts for the International Sale of Goods (1980), hereinafter CISG], and since [Buyer]'s claims can be considered on the basis of its provisions, the Tribunal rules that there is no need to establish a subsudiary statute and to apply provisions of a national legislation.
1.3 Although the difference in price between substitute transactions and the initial contract concluded with the [Seller] is indicated by the [Buyer] as the loss it suffered, the [Buyer] failed to submit any evidence that it concluded substitute transactions. The claims of the [Buyer] in this part are therefore not granted.
The action was brought by [Buyer], an Italian organization, against [Seller], a Russian organization, in connection with an incomplete delivery and incomplete return of the advance payment paid by the [Buyer] under an international sales contract concluded by the parties on 4 June 2003.
- Recovery of the losses suffered by the [Buyer] because of the incomplete delivery as well as recovery of the arbitration fee.
As evidence of the suffered losses the [Buyer] presented contracts with third parties, which it interpreted as substitute transactions.
2.2 The [Seller] did not submit a statement of defense and its representatives did not take part in the arbitration hearings. The materials of the case and the summons to the hearing were not handed over to the [Seller] and were returned to the Tribunal because the [Seller]'s organization was liquidated.
"Should the parties fail to settle all disputes and differences amicably, these disputes and differences are subject to settlement by the International Commercial Arbitration Tribunal in Moscow at the Chamber of Commerce and Industry of the Russian Federation [the Tribunal] in accordance with its rules and usages. Awards by this Tribunal will be final and binding on both parties. Russian is the language of the arbitration. The Tribunal shall be composed of three arbitrators."
Taking into account the above, pursuant to arts. 1 and 16 of the Law of the Russian Federation "On International Commercial Arbitration" and section 1 (2), (3), and (5) of the Rules of the Tribunal, the Tribunal declared itself competent to arbitrate the present case.
Turning to the question of arbitrating the case and making an award in the absence of the [Seller]'s representatives, the Tribunal established that materials of the case, rulings, and the summons to the hearing were sent to the [Seller] via [messenger service].
In accordance with section 2 (2) of the Rules of the Tribunal, the statement of action, the statement of defense, summons, and rulings shall be sent by registered letter or any other means which provides a record of the attempt to deliver a corresponding mailing.
In such circumstances, the Tribunal concluded that the [Seller] was duly notified of the time and place of the arbitration hearing. At the same time, the Tribunal states that no written application for postponing of the hearings of the case were received from the [Seller].
Taking into account the above and [Buyer]'s application to arbitrate the case in the absence of the [Seller], in accordance with art. 25 of the Law of the Russian Federation "On International Commercial Arbitration" and section 28(2) of the Rules of Tribunal, the Tribunal concludes that non-appearance of the [Seller] does not preclude the arbitration of the case and making an award and considers it possible to conduct the arbitral procedings in the absence of [Seller]'s representatives.
Considering the merits of the case, the Tribunal found that the statement of action had been admitted to arbitration by the Tribunal before 21 May 2004, that is prior to the bankruptcy proceedings commenced by the regional national arbitration court at [Seller]'s place of business in relation to [Seller]'s bankruptcy. In such circumstances, the Tribunal considers it possible, by virtue of art. 63 of the Law of the Russian Federation "On Insolvency (Bankruptcy)" of 26 October 2002 [�], to arbitrate the present action and make an award taking into account that the [Buyer] did not submit any application for suspension of the proceedings at the Tribunal.
Turning to the matter of law applicable to the relations under the contract between the parties, the Tribunal found that in their contract there is no reference to the applicable law.
In view of the absence of an agreement between the parties as to the applicable law, in accordance with art. 28 of the Law [of the Russian Federation "On International Commercial Arbitration"] and section 13 (1) of the Rules of the Tribunal, the Tribunal arbitrates the disputes on the basis of the substantive law determined by the agreement between the parties and, when there is no such agreement, on the basis of the law determined by the Tribunal in compliance with the conflict of laws rules which it considers applicable. In all cases, the Tribunal makes an award in accordance with the terms of the contract and with account taken of the trade usages applicable to this contract.
According to art.15(4) of the Russian Constitution, if an international agreement of the Russian Federation contains provisions other than provisions of its [national] law, the provisions of the international agreement shall be applied.
Since both the Republic of Italy and the Russian Federation are States parties to the CISG and the parties' places of business are located in these States, in accordance with art. 1(1)(a) CISG, the relations between the parties are to be governed by the CISG.
In accordance with art. 7(2) CISG, all questions concerning matters governed by the CISG, which are not expressly settled in it are to be settled in conformity with the general principles on which the CISG is based, and when such principles are absent, in conformity with the law applicable by virtue of the rules of private international law.
Since the [Buyer] made only claims of recovery of the amounts paid by it for the goods and the amounts of losses and, at the same time, made no other claims, including claim for recovery from the [Seller] of the interest for making use of another's monetary funds (art. 78 CISG), the Tribunal holds that the rules contained, in particular, in Chapter II "Obligations of the seller" (art. 30-44) and Chapter V Section II "Damages" (art. 74-77), exhaustively regulate the subject matter of the present dispute and, thus, in order to regulate the relations between the parties under the contract there is no need to establish a subsidiary statute. Therefore, the Tribunal declines [Buyer]'s supposition that when considering its claim for recovery from the [Seller] of the losses it is possible to apply the law of the Russian Federation, in particular, art. 15 of the Russian Civil Code.
In performance of the contract, the [Buyer] transferred to [Seller]'s account in the specified bank an amount in US dollars by means of a payment order of 5 June 2003 as payment for the goods, which the [Seller] was obliged to deliver. In violation of clause 3 of the contract, the [Seller] failed to make a delivery and, at the same time, on 19 March 2004 the [Seller] returned to [Buyer]'s account only a part of the received advance payment.
In accordance with art. 30 CISG, the seller must deliver the goods, hand over any documents relating to them and transfer the property in the goods as required by the contract and the CISG. As established by the materials of the case, the [Seller] did not perform any of these obligations.
Also, the Tribunal took into account the fact that the [Seller] did not submit to the Tribunal a statement of defense and that the [Seller] contested neither the merits nor the amount of the [Buyer]'s claims.
In such circumstances, the Tribunal concludes that [Buyer]'s claim for recovery of the main sum in arrears from the [Seller] is well-founded and is to be granted.
According to art. 75 CISG, if the contract is avoided and if, in a reasonable manner and within a reasonable time after avoidance, the buyer has bought goods in replacement of the seller has resold the goods, the party claiming damages may recover the difference between the contract price and the price in the substitute transaction as well as any further damages recoverable under art. 74 CISG.
The materials of the case and explanations of [Buyer]'s representative establish that the contract of 4 June 2003, non-performance of which is the subject matter of the dispute, was not duly avoided.
The Tribunal states that the contracts referred to by the [Buyer] as the substituting transactions had been concluded between the [Buyer] and a third party before 1 August 2003, which date commenced the term for [Seller]'s performance of its obligations to the [Buyer] under the disputed contract.
- It received the goods from a third party as well as payment for these goods and resold them to third parties as performance of its own obligations in a reasonable manner.
Therefore, the Tribunal finds no grounds to consider [Buyer]'s contracts for delivery with a third party as substitute transactions.
With this in mind, the Tribunal holds that [Buyer]'s claim for recovery of losses is not well-founded and shall not be granted.
According to section 6(2) of the Rules of Arbitration Expenses and Fees (Supplement to the Rules of the Tribunal), the arbitration fee to be recovered to the [Buyer] is imposed on the [Seller] in proportion to the amount of the satisfied claims.
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Claimant of the Republic of Italy is referred to as the [Buyer], and the Respondent of the Russian Federation is referred to as the [Seller].

matches:
art. 25
art. 63
art. 28
art.15
art. 1
art. 7
art. 15
art. 30
art. 75
art. 74