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The dualism of the transition period. The paradoxes of legal regulation of activities of pilot organizations
Material posted: Gornova Anna M.Publication date: 25-02-2019
Over the years, a pilot of private companies since 2005, the damages caused to the owners stability and security as a pilot in Russia, more than five billion rubles. It is so much, according to expert estimates, "nasutil" due to legal confusion in the regulation of the pilotage business, this is the "devil", while the government sleeps. How much is a good pilot boat (the most expensive of technical means to ensure that must be from a pilot organization), and how many of them would have to be built to the amount of target pilot collection, taken from the scope of the pilot provide? The question is almost rhetorical – lot, "and things are there!"

Despite the Decision of the constitutional court of the Russian Federation of 6 April 2004 No. 4-P, still, for more than 14 years, the Federal legislator has not "been settled in the prescribed manner the activity of non-governmental organizations on pilotage of vessels". Moreover, neither the "sea law" - the merchant Shipping Code of the Russian Federation, nor in the subordinate legislation, does not regulate the activities of pilotage organizations!

 

"You never know when God sleeps".

Russian proverb

The contradiction between the goals

Activities pilotage of ships is part of "relations arising from merchant shipping" (p. 1. article 2 of the CMW RF), which are regulated by the merchant shipping Code. Pilotage of vessels devoted an entire Chapter of the Code and expressly States its purpose: "Pilotage is carried out in order to: ensure the safe navigation of ships and prevention of accidents with vessels..." (article 86 of the Russian KTM). "During the pilotage of the vessel, the pilot shall immediately inform the Harbor master about any incident with the vessel and the failure of the captain of the ship, the pilotage of which he performs, the rules of navigation ships and rules for the prevention of pollution from ships..." (article 92 CMW RF), i.e., pilots rely more and public functions.

"The civil legislation regulates relations between persons engaged in entrepreneurial activities, based on the fact that business is a separate undertaken at your own risk activities aimed at systematically profit from the performance of work or provision of services" (clause 1, article 2 of the civil code). "Legal entities may be organizations pursuing the extraction of profit as the main purpose of their activity (commercial organizations) or not having extraction of profit as such purpose and not distributing received profit between the participants (noncommercial organizations)" (clause 1, article 50 of the civil code). The latter "can carry out income-generating activities only insofar as it serves the purposes for which they were created" (paragraph 4 of article 50 of the civil code).

There is a difference in interpretation of the objectives of the activities?! Of course: the relations arising in the process of pilotage are governed by the rules of the Russian Federation; pilotage of vessels is carried out in the public interest with non-commercial purpose of ensuring Maritime safety; "pilotage organisation" needs to have a specific pilot and equipment. All private pilotage companies operating within the legal framework of the civil code, are commercial, operate in the for profit, which is contrary to the objectives specified in the CMW RF, and they have no obligation to have a specific pilot and equipment.

But from this it follows that the rules of the process not regulated by "pilotage" in General, because the "Maritime pilot" and "pilot organization in providing pilotage" are an indivisible unity. "Sea pilot", in fact, is the carrier of know-how, but in accordance with the regulations of the marine pilots, approved. by order of the Ministry of transport from 22/07-2008, No. 112, outside the "pilot organization," he cannot use it, not only "de jure": clause 4.3 (employment agreement); PP 23-29 (training sea pilots); p. 30, p. p. 37.5-11, p. p. 39.4 -9, clause 41 (certification of marine pilots), etc., but also "de facto": p. 9.1-14 Provisions (provision of marine pilot specific logistics and equipment).

In all weather conditions

Logistics: equipment, equipment of pilot organizations and individual equipment of the pilot - has its own specifics, connected with the safety of the pilot in all weather conditions. For example, requirements of pilot craft is partly reflected in the National standards approved and promulgated by order of the Federal Agency for technical regulation and Metrology from 28/12-2005: No. 396-St – GOST R ISO 6216-2005. This requirements to seaworthy qualities and equipment "pilot boats" that allow them to carry out a safe transfer (reception) pilots directly onto the Board or using a pilot bots in areas far from the coast to 20 miles or more (paragraph 3.1, 2, 3). It demands to their speed (section 5.1), stability (section 5.2), the construction, equipment and supply (section 6.1-18), and special coloration (GOST R ISO 6217-2005). In addition, some design requirements "pilot boats" and ensuring procedures of reception/disembarkation of pilots specified in the standards on the ships of the Navy RD 31.81.10-91 (section 2.3).

Where did the "sea pilot" undertake "pilot boats" and/or "pilot boats", which "must be a naval pilot for the implementation of the pilotage services" (p. 10. Provisions for marine pilots); the non-compliance which the requirements "of the marine pilot may not perform pilotage" (ibid p. 15); without which the provision of vessel pilotage is virtually impossible? Hypothetically, we can assume that each pilot has its own it "pilot" a boat or in a free access is always to hire a sufficient number of "pilot" boats, but it is fantastic, and really necessary and sufficient number of "pilot boats" can be only "a pilot organization."

Is there now a pilot in private companies it is the "pilot" boats? Of course not. In one or two private pilotage companies, maybe there are boats for delivery of pilots, but their compliance is "a pilot" standard is questionable. What about private pilotage companies provide pilotage without a special "pilot boats"? Yes and deliver, "how God blesses", delivering its pilots on the ship improvised, rented boats (tugs affiliates, other boats and ships that a pilot to the standard have no relationship) that the working conditions of pilots poses a threat to their lives.

Despite the fact that "public administration in the field of commercial navigation" is carried out by the Ministry of transport (article 5 of the KTM ). The Ministry of transport can not control in private pilotage companies, their compliance with the "pilot equipment and supplies" because there is no definition of "pilotage organizations" and not "requirements for equipment, number and qualifications of their employees" (article 88 of the Russian KTM). Pilots themselves are also unable to monitor compliance with the "pilot boats" to the standards, although paragraph 15 of the Regulations on Maritime pilots it requires, as any pilot private pilot, the company decided to ask the owner the question: "what is a collection?", immediately "crashes the gate" a pilot organization. Neither the transport Ministry nor the subordinate Rostransnadzor and Rosmorrechflot can not exercise full control over the activities of private pilotage companies operating within the legal framework of the civil code. Moreover, as shown, and no other bodies of state power in the current situation of normative regulation of the pilot cannot exercise full state control over the activities of private pilotage companies.

The sea pilot is obliged "to observe the established mode of work and rest" (paragraph 8.4 of the Regulations on Maritime pilots) and "not entitled to carry out pilotage in case of violation in accordance with the legislation of the Russian Federation mode of work and rest" (ibid p. 15). However, the performance of these items in part or in whole from the pilot independent, as is the prerogative of the pilot organizations. In public organizations the requirements of the Position and the order of the Russian Federation from MT 14/03-2012 № 61 against the regime of working time and rest time pilots are strictly adhered to, and in private pilotage companies almost everywhere are violated, because a tight schedule pilots gives the owners of these companies 20-30% of additional income. Of course, fatigue of the pilots creates an additional threat to the safety of navigation, but what does that matter to "businessmen" making money on the pilots, and the "metastasis" of corruption is so deeply penetrated into the lower ranks of Supervisory authorities that the violations going on for years, apparently with impunity.

Pilots Of "Rosmorport"

The bulk of the work for pilotage of vessels in the seaports of Russia are currently implementing pilots of the FSUE "Rosmorport", which was created "to ensure the economic interests of the state in the field of merchant shipping" (PPRF from 25/09-2002, No. 705), "meet the needs of society in the results of its activities" (section 2.1 of the Charter of Rosmorport) and that "to achieve these goals, provides services to vessels at the approaches and water area of the seaports for their safe navigation, maneuvering and mooring, in particular carries out pilotage" (p. 12 to paragraph 2.2 of the Charter of Rosmorport). The Rosmorport "carries out its activities (pilotage of vessels) due to port charges (pilotage), which aims at the maintenance and development of facilities that ensure the safety of navigation" (p. 6 PPRF from 25/09-2002, No. 705). That is, the FSUE "Rosmorport" is implementing a pilot activity in the interests of the state with non-commercial purpose and is obliged to use pilotage dues in accordance with its intended purpose.

The function of a pilot Affairs in accordance with the purpose specified in the rules of the Russian Federation, the country has carried out only pilot service of the state organizations subordinated to the Ministry of transport, and just behind them the Ministry of transport can exercise full control. The activities of private pilotage companies, which the Ministry of transport does not obey and work to systematically profit within the legal framework of the civil code, currently is actually regulated by two different laws: KTM of the Russian Federation and the civil code. KTM of the Russian Federation guarantees them the mandatory pilotage, gives an extrajudicial guarantee pilotage and limits the liability for mistakes of pilots – their employees, and the civil code with its "freedom of contract" cannot "disadvantage" of pilotage. This duality of regulation pilot activities pilot allows private companies to profit at the safety of navigation, and the state organization commits to comply with the net loss of all other "unfavorable" pilotage, subsidizing them from other port charges.

Government organizations implement government the task of pilotage of all ships in all ports, including "unfavorable", in accordance with article 86 KTM of the Russian Federation in order to "ensure the safety of navigation and prevent accidents with the courts". Private pilotage company, which in accordance with article 2 of the civil code cannot be made to work in "unfavorable" ports and post the "disadvantage" of ships, are only the "best" ports. Of the total pilotage, annually about 2.5 billion rubles in the whole country, a national organization with about 650 pilots and performing about 200,000 pilot works, you get slightly more than 1,5 billion roubles, and private pilotage company, with about 250 pilots and performing (according to expert estimates) about 50 000 pilotage works, get about 1.0 billion rubles.

The mysteries of arithmetic

What is the equality of the two forms of ownership in the implementation of the pilotage of ships in such conditions it is possible to say, if in 2017 the average yield of one pilot working for state pilot organizations amounted to 8092 RUB when it cost 10 512 rubles, and the average yield of the pilot work in one of private pilotage companies, LLC "Albatros", was 96 253,9 RUB (12 times more than in the state organization) with its cost 514,3 67 RUB (7 times higher than in public organizations). What kind of "effective competition" can be a speech if in the port of Saint-Petersburg private pilotage company at an average cost of one pilotage equal to two times higher than in the state organization FGUP "Rosmorport", took all the best pilotage and making less than half of the work, which received 13% more pilotage. (See. read more in the newspaper "Maritime news of Russia" № 18 for 2018)

In accordance with article 1 of GK of the Russian Federation "participants of civil law relations should act in good faith" (p. 3) and "is not entitled to a benefit from their own unlawful or bad faith behavior" (p. 4). However, it is hardly possible to explain the "laws of the market" situation, when all the most "lucrative" Postings and the "best" ports by private pilotage companies despite the fact that the cost of pilotage, and they have 2-7 times higher than that of pilots of the FSUE "Rosmorport". And it is unlikely it could be the result of "lawful conduct" and "fair" competition from private pilotage companies. Normal "market distribution" and the civil law this difference: loss-making state organisations and the profitability of private pilotage companies at all equal – no way to explain. This is easily explained by the norms of the criminal code, but this requires another study.

If the difference between the actual cost of one average pilot works in St. Petersburg branch FGUP "Rosmorport" (14 783 rubles), which, according to "privateers", is inefficient, and the cost shown in the private pilot of the company "SPb Pilot" (23 456 rubles), multiplied by the number of publications made by its pilots (11 897), we get the sum of "shadow income" (103,2 million roubles), put into pocket hosts "SPb Pilot". The private pilotage company, having half the number of pilots and making almost half of the works, objectively suffered 2-4 times lower costs, but getting a larger amount of pilotage dues, showed in 2014 the net loss of RUB 2 158 400!!!

Between the KTM and the civil code

Our "market authorities" Ministry of economic development and FAS somehow like to consider a pilot activity from the point of view of civil law as a normal business activity and the sphere of market relations, since it is the "pilot organizations" are not regulated in KTM the Russian Federation, although pilotage is generally governed by its rules. Yes, indeed, the process of pilotage, as mentioned above, the rules of the regulated insufficiently. But it is not necessary to be "seven spans in a forehead" to understand that if pilotage is generally governed by the norms of the Russian KTM with the hierarchy of laws, more powerful than GK of the Russian Federation concerning pilotage, and part of an indivisible whole "marine pilot – pilotage organization" is also in the legal field of the Russian KTM and out of the market, regulated by civil law.

A pilot activity is not a sphere of market relations, of free competition, and in the text of the 6th Chapter of the Russian KTM has enough examples for its regulation on principles different from the principles of the civil code. But for some reason: error in understanding, lack of knowledge or some other – our "market Agency", Ministry of economic development and FAS interpret the "gaps" of KTM in the regulation of "pilot associations" in their own interests, not the interests of protection of state functions in the field of international merchant shipping. In their opinion, perhaps convinced that if a pilot activity is being carried out to generate a profit, it must be governed by the laws of the market, although non-profit organizations profits and do not participate in the market. While the Ministry and the FAS did not simply state a given, and fighting for "the market" and "free competition" in a pilot "on the belly, and death".

When applying for protection of their "market position" in a pilot case to the decision of the constitutional court of the Russian Federation dated 06/04-2004 n 7-P, our "market Agency" did not see it as something that the constitutional court has established when considering this conflict in the 2nd paragraph setting part: "Pilotage... aims at ensuring safety of navigation, prevention of accidents with ships and protection of the marine environment (article 86 and article 87 of KTM)... is a socially necessary function, aimed at the achievement of socially useful purposes and the pilots... have a number of responsibilities of a public law nature regarding the circumstances and incidents that pose a threat to navigation and the environment (article 92 CMW)", and that "the basis for this activity is the public interest."

In addition, our "market authority" has allowed himself to manipulate the text of the resolution of the constitutional court in favor of private pilotage companies and to the detriment of States with international legal obligations on the organization of pilotage in the seaports of the country.

For example, in his letter dated 15/06-2011 No. 12328-AK/D18 Ministry of economic development wrote that "the Decision of the constitutional court of the Russian Federation from 6/04-2004 n 7-P... limit the possibilities of implementing pilot activities only state pilotage services are recognized not corresponding Constitution of the Russian Federation" and then many times it repeats (letter dated 03.11.2012 No. 24055-AK/Д18и; paragraph 1 of the Protocol of the conciliation meeting from 24/12-2012 n OV-91). But the text of the decision is no such wording even in the setting part, and the more operative!

The constitutional court did not recognize (!) limit the possibilities of implementing pilot activities only state pilotage services not corresponding to the Constitution of the Russian Federation! In accordance with its constitutional court powers in paragraph 3.3 of the resolution acknowledged the uncertainty and groundlessness of the norm, "delegating to the government the power to limit a pilot activity in individual ports", and the mismatch of this Constitution, nothing more!

The same proactive stance with the distortion of the meaning of the document in favor of private companies is a pilot and the FAS – the letter dated 31.10.2012 No. AG/35397/12: "the Monopolization of commodity markets contrary to article 8 of the Constitution of the Russian Federation, according to which Russia guaranteed the free movement of goods, services, support of competition, freedom of economic activities, as well as article 34 of the Constitution of the Russian Federation according to which everyone has the right to freely use their property for entrepreneurial and not prohibited by law economic activities and not allowed economic activity aimed at monopolization and unfair competition. These provisions are confirmed by the Decision of the constitutional court of the Russian Federation from April 6, 2004 n 7-P..." and then repeats it in paragraph 1 of the Protocol of the conciliation meeting from 24/12-2012 n OV-92 (Letter from FAS 14.01.2013 No. AG/439/13).

The constitutional court is not dealing with issues of monopolization or monopolization of commodity markets and nowhere, neither in the installation nor in the operative part, does not Express its opinion on this issue. In this decision there are links to the applicable rules of law, but they do not require "confirmation" of the constitutional court, and the subject matter is clearly established in the text of the resolution (last par. p. 1 installation parts) – investigated the discrepancy between the legal norms of the Constitution and a ruling. No more and no less!

What kind of "market pilot services" in the country and what the "market laws" it is possible to say, if private pilotage company "win" the "market" at least in times of efficiency and cost of pilot services in 2-7 times more than in government organizations?! For example, comparative data for the port of St. Petersburg for 2017 show: private pilotage company "Petersburg Pilot" (42 pilot) performed in 52.8% of the transactions "favorable" courts zagranplavanija and only 14.6% of the transaction "unprofitable" vessels, coastal shipping, while the share of the two state organizations SSBF the FSUE "Rosmorport" and GBU "Volgobalt" having three times more pilots, had 85.4% of the coastal vessels and only 47% of the courts zagranplavanija

A state of legal uncertainty in the regulation of the pilot activities lead to the discredit of the state functions to ensure the safety of navigation in the Russian ports, destabilizie a pilot activity in the country and creates a threat to national security. In order to regulate the activities of private pilotage companies, in accordance with the state's obligation to ensure the security of international commercial navigation in the compulsory pilotage areas and objectives specified in the CMW RF, it takes a lot of legal work, with no guarantee of success, as this is appreciated by foreign lawyers.

Conclusion

In Russia today in the circumstances there is only one option restore order in a pilot case – the adoption of amendments to the rules of the Russian Federation about creation of the state pilot service in one or another legal form. The adoption of the amendment will solve all the organizational problems of pilotage in the ports of Russia, including ice pilots and open sea pilots ensure the stability of the pilots in the areas of compulsory pilotage, as well as the problems of misuse of pilotage.

The state in accordance with the Constitution and published on the basis of its laws: ensures the safety of navigation in its territorial waters; shall be responsible before the international Maritime community for the organization of pilotage in all ports of the country, including "unprofitable"; the imperative has the right to regulate pilotage activities. Moreover, the Constitution in its systemic interpretation of in fact obliges the state edition of the Federal law to restrict the rights and freedoms of man and citizen in the field of pilotage services to the extent that this is necessary: "in order to protect the rights and legitimate interests of other persons... and security of the state" (clause 3, article 55 of the Constitution).

The creation of a single public service of Russia does not contradict the Constitution and removes the distortions in the law of the transition period, and the calculations show that in case of withdrawal from the scope of the pilot activities of private companies pilotage pilotage in the whole country will be enough to break even a pilot organization providing all kind of vessels in all ports of the country, including our modeately and losing the Arctic.

Mr egorkin, state marine pilot (1974-1992.), pilot commander of the SPb (1992-2007.), President of the Association of sea pilots of Russia (1995-2007), honored worker of transport of the Russian Federation since 1996, honorary worker of sea fleet of the Russian Federation since 1999, PhD in law, a veteran labor.

Maritime news of Russia No. 1 (2019)

Source: http://www.morvesti.ru/analitics/detail.php?ID=77302


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