MARITIME LAW

Maritime Law; "It is the branch of law that regulates relationships

legal issues that arise from navigation by water.

Dr. Tulio Alvarez Ledo, in his work Maritime Law, Volume I, II

Edition, it says: Maritime Law (in the broad sense) is constituted by the
set of rules that regulate the regime of water, the regime of
navigation, and maritime trade; being this, essentially, a fact
of an international character, the law that regulates it must have such a character
If not, a true chaos would arise in relationships.
legal consequences resulting from acts of international trade.

CHARACTERISTICS OF MARITIME LAW IN ITS ASPECT

AUDIENCE.

The characteristics and definition of maritime law in its aspect

The audience should obviously be deduced from the characteristics and the concept.
of comprehensive maritime law.

In general terms, we could say that maritime law is the

branch of law that studies the set of norms and legal relations
that refer to the technical and economic fact of navigation by water, and the
maritime regulations or positive maritime law, obviously, the set of
those norms.

In Venezuela, we find the problem that maritime regulations

of a private nature seems to exclude navigation by water that does not
made by sea, seemingly establishing a regime of law
different private for navigation on rivers, lakes, and canals.
 We believe that this disaggregation, a French legacy in our Code of
Trade and not present in other legislations does not represent a problem.
when it comes to establishing a comprehensive concept under the term "law"
maritime" or the notion of positive maritime law, since it figures
applicable to navigation are transposed in practice to many phenomena
occurred in internal navigation, due to the limitations of positive regulation
of this, and many times sea navigation is the origin or destination of the act
in transit through internal waters, in which case the first regime ends
absorbing the adventure in a holistic sense.

In the case of public maritime law, the disaggregation

disappears, as the public maritime regulations, and at its vertex
the Navigation Law applies to water navigation in general, whether
by sea, whether by inland waters.

It is observed then as the first element of differentiation between the

Venezuelan positive public maritime law and private, which while
the last is made up of a positive ordering referred to in meaning
Formal to navigation by sea, that is governed by a regulation that covers
to comprehensive water navigation, regardless of the medium
where she takes place

Secondly, as essential to their respective characteristics,

while private maritime law constitutes a regulatory framework
normally susceptible to circumstantial repeal by the will of the
parties, public maritime law is framed within a regulatory structure
of public order and necessary observation.

Thirdly, although it may sometimes touch on certain

aspects of relationships that are not strictly commercial, such as those arising from

recreational navigation, in Venezuela positive private maritime law

it predominantly identifies with the commercial aspect of navigation,
As far as public maritime law refers to the technical aspects
administrative and tax aspects of the fact for its regulation.

On the other hand, in Venezuela the positive maritime regulation

private law is largely unified, specifically in Book II
from the Commercial Code. Public maritime law, for its part, warns
to a positive multi-instrumental arrangement.

Private maritime law includes institutions and categories that are

past tradition maintains a considerable degree of immobility,
making it a right less subject to continuous change. Instead, the
positive public maritime planning is presented more
tending to modifications as technical changes,
administrative, financial, tax, and even political factors influence or seek to influence
about navigation as an activity, being therefore more variable.

Finally, public maritime law regulates the network of relations

legal matters regarding navigation and those involved in it
the State weaves its interest and duty of protection over that activity, while
that private maritime law is concerned with the structure of relationships
legal relations established between individuals due to the fact of the
navigation.

We can thus characterize public maritime law in

Venezuela, as complying with a regulation of aquatic navigation in
any means, due to non-relaxable public order regulations by agreements
between individuals, regarding technical-administrative aspects of the fact
object of regulation, with reception of appreciable influence from other norms
branches of public law, with susceptibility and flexibility for continuous
variations, and referring to the legal relations that relate to navigation and
those who carry it out establishes the State.

In summary, we can say that public maritime law

it is the part of maritime law that deals with legal relations that
due to aquatic navigation in general and the circumstances surrounding it
arise between the State and individuals; and maritime law
public law as the body of norms of different degrees
that constitute, regulate, and modify such relationships.

OBJECT OF MARITIME LAW

Venezuelan Maritime Law aims at systematization of

the legal regulations regarding ships, their transportation and navigation.
These are of great importance to the interests of the country. Taking into account

that reality becomes necessary and urgent to update them, since the
they are closely related to International Maritime Law.

IMPORTANCE OF MARITIME LAW

Most of the national exports and imports are

carried out by water routes, hence the importance of maritime law
as a discipline responsible for the study of the norms and principles that regulate
navigation by water, not only for its economic transcendence for the
country, but also historically the use of navigable rivers
they constituted and continue to constitute the communication route outside of
continent, given the case of our Mediterranean nature.

ELEMENTS

There are three elements: 1) The sea, which is the space in which
They develop maritime relations. 2) The shipowner, the captain, and their
assistants and dependents, who are the main characters that
they star in Maritime Law. 3) The ship, which is the material object on
on which the legal relationships that unfold at sea fall.

Personal elements

Charterer: is the participant of the Charter Contract, who with title

enough to make the ship available, grants its use in order to a
transport to the other party named shipper, through a fixed payment called
freight. The mere statement of the notion outlines a complicated issue in the
Maritime Law, the task of investigating the figure of the charterer, because asserting that

this is purely and simply the owner of the vessel would be a great mistake.

For that, it is necessary to take into account that in the procedure of the Code.

in Commerce, the notable figure of the shipowner is emphasized, or that of

the participation or sum of owners of portions of the same. In principle,
and consequently with such criteria, distinguishes the ability to bind oneself to the
effects of the Charter Party on the owner, who by virtue of the 'ius
"dispositional" inherent to the dominical powers, can contract the
obligations that arise from that contract. Without expressing such, from a
In a clear and specific manner, all of this is concluded from article 598 of the aforementioned.

The shipowner may not order a new voyage, nor adjust

for him a new freight, nor to insure the ship, without authorization from his
owner nor without the agreement of the majority of the co-owners unless in the
the act of appointment had granted him these powers," and, in the
Article 652, as the fourth requirement that must be included in the charter party.
including the name, surname, and address of the shipowner, if he contracts the
charter.
 However, ships tend to be possessed during these times.
by commercial companies, normally projected according to the standard
of the anonymous society, whereby the physical individuality of the owner is
disguise itself, to be replaced, for the agreed purposes, by that of
administrator, builder, manager, or attorney-in-fact, who in practice exceeds the

framework of powers, as stipulated by our Commercial Code, to the shipowner.

For this reason, and without delving into the explanation of the person's
builder, it can be summarized that they will always have the authority to be
the one who has, at the time of granting the Charter Contract,
the 'ius disponendi' over the ship, whether by its own capacity or by
empowerment.

Charterer: this figure is in the Charter Party, that one

interested party to whom the ship is made available for transport.
For practical purposes, this term is sometimes associated with that of the charger,
Indeed, with a meticulous legal technique, the voice of the caption must be attributed to

the part referred to in the Charter Party, evidenced in the

Anglo-Saxon maritime practice with the name 'charterer' and keep the
loading statement or "shipper" for the one who ships the goods in
general cargo regime, when a charter policy is not agreed upon,
but only a Bill of Lading issue
which will be related later.

The duties of both parties are modified according to the policy of

rental of what is at stake, as there coexist diverse varieties and pro formas
type of Charter Contract with its peculiarities defined each one of
they.
 Real elements

Loading: The chartering policy cannot fail to agree on the

linked to the type of cargo to be transported and its total; it is necessary to
detail whether it is bulk cargo, by packages, etc. It will also be agreed upon by
the parts whether it is carried on deck or not, if not agreed upon in the Contract
No loads can be transported on deck under any circumstances.

Freight: It is the amount of the rental of a ship or a part of it.

must indicate the freight in the charter party or in the bill of lading
The embarkation is found in the Commercial Code, in articles 652 and 706.
respectively, although the doctrine accepts that in the event of not expressing such
detail, despite its significance, does not entail the termination of the title.

Regarding the roots for freight calculation, they are extremely

various. The Commercial Code, (both the current one in Cuba since 1886 by
Royal Decree of August 22, 1885 updated until November 1998 and the
current Spanish modified in September 1999), establishes in article
652.8ª that '... it will be expressed if it is to be an amount raised for the trip, or
at a rate of a certain amount per month, or for the cavities that were to be occupied, or by the weight or

the measure of the effects of the cargo...

False freight: It constitutes compensation for damages that is paid

to the shipowner when the charterer does not provide the cargo in the proportion

expected, which forces the latter to pay the freight for the amount not
embarked. This compensation is established by the Commercial Code in the
half of the adjusted freight.

In the Commercial Code, false freight is regulated by the

articles 688.1 and 689.1, according to which, if before loading the ship,
the charterer will abandon the charter, the contract may be considered terminated,
with payment of half the freight, in the same way that, if fulfilled the
period of overstay, if the shipper did not place the cargo alongside, it may
then the carrier terminates the contract, also receiving the amount of the
half of the adjusted freight.

Ship: The criteria expressed to define the ship have been

numerous, despite what has been stated we can say that the ship is a
floating machine, watertight and resistant, equipped with its own means and

suitable for safe navigation. It must have certain particularities

What are: buoyancy, stability, mobility, solidity, speed, and control.

While non-specialized circles use the word 'boat', the

specialized maritime means use the term 'ship' in general form.
In law, this last expression is used.

Among the cargo ships, the main one can be distinguished as the
passengers, cargo, mixed cargo and passenger, refrigerated, bulk carriers, fishing
tankers for the transport of various liquid cargoes,
roll-on/roll-off and the ferries among many others.

Among the ships designated for special purposes are the

tugboat for port and the deep-sea tugboat, dredger, cable layer,
icebreaker, weather station, floating lighthouse and rescue, although
There are many more.
 CHARTER AGREEMENT

The Charter Party is the oldest figure of contracts.

contemporary maritime freight transport. It has its
precedents in the commercial practice that were carried out by both the primitive Phoenicians

like the Egyptians and the Greeks, being further collected in the Law
Roman. Even in the Code of Hammurabi, which dates back more than two thousand

A.C. years regulated some aspects of this trade.

When a natural or legal person requires to hire a ship,

you can use different types of contracts, depending on the
circumstances or needs. The definition of the charter contract according to
Villarroel (2003, p.374) is:

"The contract by which a person, called the consignor,"

commits to making a ship, armed or not, available to another person,
called charterer, for one or more trips or for a specified time, to
change of a sum of money, referred to as freight.

For example, if the goods to be transported represent a volume

considerable or on the contrary is a determined volume, the person who
If someone is interested in a vessel, they can charter all or part of it.
allows transporting the desired cargo from the port of origin or loading port
to the final port or unloading port. In these cases, it is advisable to
use of a voyage charter contract.

On the other hand, if the amount of the load is large and requires a
periodic transport, the contractor may decide to have the ship at his
disposition for a specified time, using a contract in this case
from time chartering, or you can use a contract that
allow the ease of several shipments for a certain number of trips or
for a volume of cargo per trip to be made in a time
determined without referring to a specific vessel; this type of framework contract
is called (COA), around which individual contracts revolve and arise.

It is important to highlight that, even when the LCM places in the same

Chapter II on the lease contract and the charter contract,

both have a distinct nature since the lease agreement
it deals with the leasing of things, while that of chartering addresses
the operation of the vessel related to the nautical management of these contracts
they remain on the figure of the shipper

It is the lease contract of a vessel. Contained in Title V

Regarding the Contracts for the Use of the VESSEL, of the Commercial Law
Maritime (Art. 149 et seq. of the LCM). The provisions relating to
the transport of goods and people is imperative.
Public Order: (They cannot relax due to private agreements). Art 149
LCM. The provisions relating to lease agreements on a Shell basis
naked and of chartering, are supplementary to the will of the parties, except
unless the law provides otherwise. Art. 150 LCM.

The doctrine and jurisprudence regularly accept that the chartering

configure:

A Lease Agreement of things when the owner of

the vessel is rented disassembled to a person who uses it for their own benefit;

A Lease Agreement combined with one of

Lease of work, well when the vessel is provided armed and equipped
to a person who will handle it according to their wishes; well when the owner is
commits to carry on the ship armed and equipped by him, whose
address retains, goods belonging to a third party, even more so if
has prevented on one hand the prerogative of the charterer to occupy by title of
tenant the ship in the proportion, and under the conditions, and for the time
"agreed."

PARTICULARITIES OF THE CHARTER CONTRACT

It is a predominantly consensual contract that is completed by the

consent of the parties who commit to the conditions of
this is undoubtedly a commercial event due to its link to
trade particularly maritime.

Yes, it is based on the mutual consent of two parties called the charterer.
the usual practice prefers the term builder or 'shipowner' instead of the word
freighter) and shipper, has the condition of being bilateral, therefore it will also be

synallagmatic, where there will be a framework of reciprocal benefits that

they will bind both parties equally.

It is a burdensome contract as it is executed for a price.

called freight, where goods will be transported by a ship and
the payment of this freight will constitute the primary obligation undertaken by the
party called the shipper by virtue of the chartering contract.

FREIGHT CHARTER CLASSES

1. The bare shell lease, where the lease is rented out

unmanned vessel and for a period generally of a year or more.

The charterer assumes Nautical Management

and the Commercial Management of the Ship for a period of time and through the payment of a

canon. It is registered with the Naval Registry (INEA) so that it has effects against
third parties. (The lessee acquires the condition of Shipowner). The lessee does not
he can sublet or sub-lease, without the written authorization of the landlord (Art.
159 and see the 155 LCM).

The landlord's obligations:

1) Deliver the Vessel at the place and time scheduled in a state of

navigability and with its documents.

2) Carry out the planned repairs. (Arts. 160). If it cannot be used

The Vessel, the fee is not paid. The obligations of the Lessee are:

a) The provision of the Vessel, its insurance, etc.

b) Carry out repairs and replacements that are not due to defects.
owners of the Ship.

3) Use the Vessel legally.

4) Respond to the landlord for all claims and privileges as

consequence of its commercial management.

5) Return the Vessel. (Art. 162 LCM). If it is not returned, after 15

days, will pay double the fee, except for force majeure.

2. Time charter, or time lease, where

the ship sails with crew and with a timeframe established by both
parts.

(Time Charterer). The lessee assumes the Commercial Management during

a specified time and payment of freight. The Lessor, (Freighter,
Owner or Shipowner) retains the Nautical Management. Art. 165 and following.
LCM). The obligations of the Carrier:

1) Make the Vessel available to the Charterer, on the date and place
agreed, in navigable condition, except for wear.
 2) Pay the expenses of the nautical management of the Vessel.

3) Comply with the instructions and orders of the Charterer.

4) For the purposes of nautical management, the Captain is dependent on the Charterer.

It is the obligation of the Charterer:

Pay the freight.

2) Pay the expenses inherent to commercial management.

3) Use the Vessel lawfully.

Return the vessel on the date and place.

5) Give orders to the Captain regarding the loading, transportation, delivery of

the goods, people, and the documentation.

3. Chartering for travel, it is hired with crew and it is done for

one or several trips, depending on what is required by the parties.

It can be total or partial of the spaces of the Ship susceptible to

to be loaded. For a trip or for several. The Charterer retains the Management
Nautical and Commercial cannot replace the Ship, except by agreement. (Art. 177)
The charterer must pay a freight for the agreed trip(s). They are
obligations of the carrier:

Present the vessel at the specified place and date, in conditions

navigability, equipped and with the required documentation and to maintain it
like this.

2) Carry out the agreed trip(s) diligently. The Charterer is

responsible for the goods. The Shipper can terminate the contract if not
they place the vessel in the agreed place and time. (Art. 180). The Ports
They must be Insured (Art. 181). The obligations of the charterer are:

Provide the goods.

2) To undertake loading and unloading operations at their own risk and liability.

unless otherwise agreed. According to Article 191 of the LCM, the term of the stays

begins when the vessel has arrived, ready to load or unload, the
the carrier has notified the shipper in writing and the agreed period has elapsed;
or, failing that, the one determined by the uses of the port, for the start of the
activities.

4. Lease or charter by volume of cargo.

In Charter Agreements, one of the first issues that

It is discussed who is responsible for carrying out the operations of
loading or unloading of the vessel, if nothing is stated in the contract this obligation
it will be of the Charterer.

THE KNOWLEDGE OF THE SHIPMENT

The maritime or river cargo transport contract. Document that

transport companies issue as proof of having received from
shipper or dispatcher of the goods specified therein, to
to transport them from one port to another under the conditions established there.
In Venezuela, it constitutes a title of ownership of the merchandise.

The bill of lading (B/L) plays a role in

great importance in maritime trade and in the customs field. Both in
one as in the other, tests the property of the goods,
in addition to proving the shipment of the goods by the loader to the
the shipowner constitutes the title of the freighter and the Captain for the freight and is a way of
charter contract test, provides information to the consignee about the
conditions under which the goods will be transported and, which is very
important, represents the transported goods, by conferring to their
holder of the civil possession of the goods that are on the way.
This quality allows the owner of the goods to negotiate them (sell them,
giving them as collateral, etc.), through the assignment of the document.

The B/L is of great importance to all those involved

in the international maritime freight traffic. For the shipper
it is a receipt for the goods delivered to the Captain; for the recipient it is
The means to claim the cargo and for the Captain is the instrument.
to charge for the freight.

Knowledge is a private document and for it to be valid among the

interested parties in the shipment and among them and the insurers, must
to be elaborated in compliance with certain formalities:

a. - It must be done in writing in no less than four copies.

copies, each of which must be signed by the Captain and by the
charger.

b.–It must express:

The number of copies that are signed.

2. The date, with expression of place, day, month, and year.

3. The name and address of the Captain.

4. The class, nationality, name, and tons of the vessel.

5. The name of the shipper and the consignee.

6. The place of loading and that of its destination.

 7. The nature and quantity of the objects that are to be transported and
his brands and numbers.

8. The agreed freight.

These enumerations do not prevent that in said title actions are taken.
other mentions, nor for the freight to be stipulated in a separate document,
as it is a widely spread custom.

If the Captain does not receive the counted, weighed, or measured goods,
She may indicate that she ignores her species, number, weight or measure.

The knowledge can be to the order, to the bearer, or in favor of a person.

determined (nominative).

The bill of lading constitutes a receipt for the goods,

once signed by the Captain; it is a document of ownership of the assets
in him mentioned and serves as evidence between the parties regarding the conditions of

agreed transport between them; before customs, their legitimate possession makes
to claim ownership and its presentation is a requirement, except in certain cases

exceptional, so that the acceptance of the deposit is possible.

According to the Law of Maritime Goods Transportation (Article III,

numbers 3 and 7), which constitutes positive law for a large number of
countries, carriers are subject to the following obligations:

After receiving the goods in its care, the Carrier, or the

Captain or the Carrier's Agent shall, at the request of the shipper,
extend to the loader a C/E. that shows among other things:

The main brands needed for identification of the

merchandise as they have been provided in writing by the shipper
before the loading of such goods begins, provided that such
marks are printed or indicated in another clearly way on the
merchandise if they are not packaged, or in the boxes or packaging in which they are

goods are contained in such a way that they remain legible

normally until the end of the journey.

the number of packages or pieces, or the quantity, or weight, according to

such as they are given in writing by the shipper.

(c) The apparent order and condition of the goods:

Provided that no Carrier, Captain or Carrier's Agent

he will be required to declare or indicate in the C/E. no mark, number,
amount or weight that he has reasonable grounds to suspect that they are not
exactly to represent the goods received in truth, or that he does not
has had reasonable means of verifying.

After the goods are loaded, the C/E that has to

extend by the Carrier, Captain, or Carrier's Agent to
The charger will be, if the charger requests it that way, a C/E. 'embarked', provided that

if the Charger has previously received any title document regarding

such merchandise he must deliver against the extension of the C/E.
"embarked", but at the option of the Carrier, such title document may
to be recorded at the boarding port by the Carrier, Captain, or Agent
with the name or names of the ship or ships in which the goods
have been shipped and the date or dates of shipment, and once
noted as such they will be considered for the purpose of this article
which correspond to the bill of lading 'shipped'.

When a bill of lading or any other is issued

document that proves the contract for the transport of goods by
water, a statement must be included establishing that the transport is
subject to the provisions of this Law and that any stipulation in will be null
contrary to the detriment of the shipper or the consignee.

The nullity of that stipulation shall not affect the validity of the others.

provisions of the contract or document that includes it. It will be null and void
the clause by which the benefit of the goods insurance is transferred to the
carrier or any analogous clause.

Notwithstanding the provisions of the previous paragraph, the carrier may

increase their responsibilities and obligations under this Law.

MAIN TYPES OF CARGO BEING TRANSPORTED BY

MARITIME ROUTE

By sea, there are two types: general cargo and bulk.

General cargo is presented in solid, liquid or

gaseous and can be treated as a unit. It is usually transported in
regular line ships and can be presented for transportation as cargo
broken down (goods that are handled due to their type of packaging
individually like bags, boxes, bundles, etc.) and unitized load (in
small loads, uniform or heterogeneous, come together to form a
unit, which can be presented through pallets or platforms, in
containers).
Bulk cargo is a product that is shipped loose in
the warehouse. Sometimes it is said that cars are shipped to
bulk, which means that the ship has a single load or has certain cargo
as predominant. This type of load consists of large volumes or
homogeneous tonnages that do not require packaging.
Hazardous materials are those capable of causing harm to the
people, to contiguous loads or to the means of transport. They are a large number
of organic and inorganic chemical products, artificial raw materials,
photographic products, agricultural chemicals, powder, explosives, dyes
paints, varnishes, perfumery products and cosmetics, slope, cork
pharmaceuticals, derivatives and compounds of all the above and
wastes.
Valuable cargo or ad-valorem are items that have great
intrinsic value, such as jewelry, works of art, and precious metals. It
They are transported in safety containers.
Live animals in transit is the transport of live animals.
Heavy and bulky loads are those pieces or packages
whose weight or dimensions exceed those handled with equipment
conventional.

PRESCRIPTION

The actions derived from the contract of total or partial chartering are
they prescribe after one year, counted from the end of the
travel, or since the date on which the contract was terminated or resolved, if this is
produced before the journey began or during it.

APPLICABLE LAW

The obligations inherent to the contract of total or partial chartering

the transportation of goods is governed by the law of the place where they are to
to be executed.