1 The 1968 Code was adopted by an edict of the Presidium of the Supreme Soviet Sept. 17, 1968, and published in the Supreme Soviet's official periodical, Vedomosti verkhovnogo soveta 8SSR (Gazette of the Supreme Soviet of the U.S.S.R.) (1968), No. 39, item 351. According to the usual procedure, the edict was confirmed by the fullSupreme Soviet by a law of Dec. 13, 1968, “Ob utverzhdenii ukaza Prezidiuma Verkhovnogo soveta SSSR ‘Ob utverzhdenii Kodeksa Torgovogo Moreplavaniia Soiuza ; SSE’ ” (“On Confirmation of the Edict of the Presidium of the Supreme Soviet of the U.S.S.E. ‘On Confirmation of the Merchant Shipping Code of the U.S.S.R.’ ” ) , published in Izvestiia (News), Dec. 14, 1968, at 3, and in Vedomosti verkhovnogo soveta SSSE (1968), No. 51, item 488. For an English translation, see William E. Butler and John B. Quigley, Jr. (transl. and eds.), The Merchant Shipping Code of the USSR (1968) (in press, 1969).

The 1929 Code was adopted by a decree of the Central Executive Committee and the Council of People's Commissars June 14, 1929, and published in the official Sobranie zakonov i rasporiazhenii raboche-krest'ianskogo pravitel'stva SS8R (Collection of Laws and Regulations of the Worker-Peasant Government of the U.S.S.R.) (1929), No. 41, item 366. The 1929 Code, with amendments through 1958, was translated into English with annotations by Z. Szirmai and J. D. Korevaar in the series Law in Eastern Europe, No. IV, under the title “The Merchant Shipping Code of the Soviet Union” (1960). On the drafting and origins of the 1929 Code, see S. Dobrin, “The Soviet Maritime Code, 1929,” 16 J. Comp. Leg. and Int. Law 252 (1934).

The Soviet Merchant Shipping Code is a comprehensive statement of administrative and civil-law rules regulating maritime commerce. In both form and substance, it closely parallels (and was largely modeled on) continental codifications of maritime law, e.g., Chapter Pour of the French Commercial Code and Book Four of the German Commercial Code. While there is no similar codification in the United States, the subject matter of the Soviet Merchant Shipping Code corresponds roughly to that of admiralty law, as will appear from the Code's chapter headings: General Provisions, Vessels, Crews, Ports, Pilots, Sunken Property, Planning and Organization of Shipments, Carriage of Goods by Sea, Carriage of Passengers by Sea, Time Charters, Towage, Marine Insurance, General Average, Collisions, Salvage at Sea, Limits of Liability of a Shipowner, Privileged Demands, Sea Protests, Claims and Suits.

Uniformity of interpretation of the Soviet Code is ensured by the existence of a specialized Maritime Arbitration Commission which sits in Moscow as an agency of the Ail-Union Chamber of Commerce. The Commission, composed of twenty-five specialists in maritime law, shipping, and marine insurance, is empowered to hear most types of disputes arising under the Merchant Shipping Code, provided that the parties have consented to the Commission's jurisdiction, either in their contract or subsequently.

2 The 1968 Code's conflicts rules are contained in Art. 14. Those relating specifically to maritime contracts are given in par. 2 of Art. 14. Conflicts rules in the 1929 Code are contained in Art. 4. The 1968 Code changed only slightly conflicts rules for maritime relations other than contracts. The most significant modification of the 1929 Code in this respect is extension of the application of the Code's provisions on general average (Ch. XIII). Under the 1929 Code, the general average rules applied only if the voyage terminated in a Soviet port (Art. 4, par. 1, subsec. (c)). The 1968 Code applies its general average provisions to any shipment carried in a Soviet flag vessel, as well as to shipments carried in foreign flag vessels terminating their voyages in a Soviet port (Art. 14, par. 1, subsee. (6)).

3 1929 Code, Art. 4, par. 3. Makovskii concludes that this absence of criteria allowed the tribunal to apply “that foreign legal system with which, in the opinion of the court, the disputed legal relation has the greatest link.” A. Makovskii, in L. Lunts, Mezhdunarodnoe chastnoe pravo: osobennaia chast’ (International Private Law: Special Part) at 194-195 (1963) (hereinafter cited as Lunts, 1963 treatise).

4 Ibid., Art. 4, par. 1, subsec. (b). Poor draftsmanship gave rise to a disagreement concerning the applicability of the Code to the fourth category of shipments. A. D. Keilin read the subsection to say that for shipments from one foreign port to another it was not necessary that the case be heard in the U.8.S.E. for Soviet law to apply. A. Keilin, Sovetskoe morskoe pravo (Soviet Maritime Law) at 18 (1954). The subsection as set forth in the text conforms to the interpretation of Makovskii in Lunts, 1963 treatise, at 199. Makovskii there gives the reasons for his interpretation. On the 1929 Code's conflicts rules for contracts of carriage, see, generally, A. Garnefsky, “Soviet Private International Law Relating to Carriage by Sea,” 27 Modern Law Rev. 412-433.

5 1929 Code, Art. 4, par. 1, subsecs. (b) and (e). This interpretation of how subsRes, (b) and (e) are to be read together is that of Keilin, op. cit. at 18.

6 1929 Code, Art. 4, par. 1, subsec. (d).

7 Ibid., Art. 4, par. 1, subsec. (f). Curiously, Art. 4 failed to provide a conflicts rule for contracts of carriage of passengers.

8 1968 Code, Art. 14, par. 2.

9 Grazhdanskii kodeks RSFSB (Civil Code of the ESFSB) (1968), Arts. 162 and 163. This has been translated into English by W. Gray and E. Stults, Civil Code of the Eussian Soviet Federated Socialist Republic (1965), and by A. Kiralfy, The Civil Code and the Code of Civil Procedure of the ESFSE, 1964 (1966).

10 D. Genkin (ed.), Pravovoe regulirovanie vneshnei torgovli SSSE (Legal Regulation of the Foreign Trade of the U.S.S.E.) at 44-47 (1961).

11 Osnovy grazhdanskogo zakonodatel'stva Soiuza SSE i soiuznykh respublikh (1964), Art. 125. The Fundamental Principles have been translated into English by T. Sdobnikov, in Soviet Civil Legislation and Procedure (1962f), and by Kiralfy in Law in Eastern Europe: Miscellanea (1963). Art. 125 is repeated verbatim as Art. 565 of the E.S.F.S.E. Civil Code, op. eit., note 9.

12 On the legal status of Sovfrakht, see A. Zhudro (ed.), Morskoe pravo at 38-39 (1964).

13 Lunts, 1963 treatise at 105; I. Pereterskii and S. Krylov, Mezhdunarodnoe chastnoe pravo (International Private Law) at 126 (1959).

14 Sobranie zakonov SSSE (Collection of Laws of the U.S.S.E.) (1936), No. 1, item 3. Names of persons so authorized are, as directed by the 1936 decree, set forth in lists maintained by each foreign trade organization; changes in these lists are publishedmonthly in the Foreign Trade Ministry's official journal, Foreign Trade. Persons not so listed lack authority, under Soviet law, to sign foreign trade contracts.

15 E. Babel, The Conflict of Laws: A Comparative Study 155-167 and 177-180 (2d ed., 1964, Vol. I l l , prepared by Bernstein).

16 Fundamental Principles, Art. 14, par. 4, invalidates any foreign trade transaction which does not meet the authorization and formalities requirements of Art. 125 of the Fundamental Principles. Lunts, Mezhdunarodnoe chastnoe pravo (International Private Law) 236-237 (1949) (hereinafter cited as Lunts, 1949 treatise); Eamsaitsev, Vneshnetorgovyi arbitrazh v SSSB (Foreign Trade Arbitration in the TJ.S.S.B.) at 52 (1957); Genkin, “O rabote vneshnetorgovoi arbitrazhnoi komissii pri Ysesoiuznoi Torgovoi Palate za 1957-1959 gg.,” in Sbornik informatsionnykh materialov (Collection of Informational Materials) vypusk XI, Sektsiia prava Ysesoiuznoi torgovoi palaty 10 (1961).

17 Fundamental Principles, Art. 125, par. 2; Bamzaitsev, op. eit. note 16, at 52.

18 1968 Code, Art. 15, par. 1.

19 1929 Code, Art. 5. The 1968 Code's provision is broader than that of the 1929 Code in that it permits the parties to choose not only a foreign law but also “shipping customs.''

20 1968 Code, Art. 15, par. 2. Lunts gives two examples of norms of foreign maritime law which a Soviet tribunal might refuse to apply under the public order concept: (1) a law which did not recognize Soviet state ownership of vessels and the resultant immunity from attachment or execution claimed for them by both the 1929 and 1968 codes (1929 Code, Art. 176; 1968 Code, Art. 20); (2) a law which limited the liability of the shipowner for injury to the life or health of a seaman (such liability being unlimited under both the 1929 Code, Art. 177, par. 2, subsec. (a), and the 1968- Code, Art. 275(1)). Lunts, 1949 treatise at 121. In a later work Lunts refers to these earlier examples of his as “hypothetical,” since he did not know a single instance in which the public order concept had been applied by a Soviet tribunal to refuse recognition to a norm of foreign maritime law chosen by the parties. L. Lunts, Mezhdunarodnoe chastnoe pravo: obshchaia chast’ (International Private Law: General Part) 234 (1959). For a discussion of the public order limitation in Socialistcapitalist relations, Bee Lunts, 1949 treatise at 235-236.

21 Among the more important of such mandatory provisions in the 1968 Code are Art. 129, which requires the carrier to make his vessel seaworthy before commencement of the voyage, and Art. 160, which holds the carrier liable for loss or damage to cargo unless he proves absence of fault. Provisions on payment of freight charges, which were mandatory under the 1929 Code (Art. 112) are dispositive under the 1968 Code (Art. 154).

22 Fundamental Principles, Art. 126, par. 1; E. Fleishits (ed.) Nauchno-prakticheskii kommentarii k GK ESFSE (Scholarly and Practical Commentary to the Civil Code of the ESFSE) (1966); Lunts, 1949 treatise at 227; Lunts, “Voprosy primeneniia inostrannykh zakonov v Osnovakh grazhdanskogo zakonodatel'stva Soiuza SSE i soiuznykh respublikh” (“Problems of the Application of Foreign Laws in the Fundamental Principles of Civil Legislation of the U.S.S.E. and Union Eepublics“), Sovetskoe gosudarstvo i pravo (Soviet State and Law) (1962), No. 6, at 102. The principle of choice unrestricted as to countries is upheld as well by the Foreign Trade Arbitration Commission. Genkin, loc. cit. note 16, at 6.

23 Lunts, 1949 treatise at 234-235; Eamzaitsev, op. cit. note 16, at 57-59. This rule was developed judicially with no statutory basis. Art. 7 of the 1923 E.S.F.S.R. Civil Procedure Code provides: ” I n consideration by a court of contracts and acts concluded abroad, there shall be taken into account the laws in force at the place of conclusion of the contract or act… . ” Art. 7 was apparently considered relevant only to questions of the form and initial validity of contracts but not to subsequent rights and duties under a contract. Lunts, 1949 treatise at 221-222. In an article written to explain the changes brought about by Art. 126 of the then new Fundamental Principles, Lunts did not mention Art. 7 as the precursor of Art. 126, noting only that Art. 126 conforms to the longtime practice of the Foreign Trade Arbitration Commission. Lunts, loc. cit. note 22, at 101. Genkin, discussing the practice of the Commission, cites its lex loci contractus rule without mentioning Art. 7, though he docs cite Art. 7 as the basis of other practices followed by the Commission. Genkin, loc.cit. note 16, at 6 and 10. Two other leading specialists, Fleishits and Eamzaitsev, mention only the practice of the Commission but not Art. 7 as forerunners of Art. 126. Fleishits, “Mezhdunarodnoe znachenie osnov grazhdanskogo zakonodatel'stva Soiuza SSE i soiuznykh respublik,” Sovetskii ezhegodnik mezhdunarodnogo prava: 1963 (Soviet Yearbook of International Law: 1963) 398 at 401 (1965); Eamzaitsev, “Znachenie novykh zakonov 8SSE v oblasti grazhdanskogo prava i protsessa dlia regulirovaniia sovetskikh vneshneekonomicheskikh otnoshenii” (“The Importance of New Laws of the U.S.S.E. in the Field of Civil Law and Procedure for Eegulation of Soviet Foreign Economic Eelations“), ibid. 411 (1965). For an extended discussion of Art. 7, see S. Pisar, “Soviet Conflict of Laws in International Commercial Transactions,” 70 Harvard Law Eev. 613-615 (1957).

24 Fundamental Principles, Art. 126. While as a theoretical matter it would seem that Art. 126 should have automatically replaced the conflicts rules of the 1929 Code ( J . Hazard, “Soviet Socialism and the Conflict of Laws,” 19 Mil. Law Eev. 77 (1963); O. Ioffe, Sovetskoe grazhdanskoe pravo (Soviet Civil Law) at 47 (1967)), Sovietwriters continued to cite the 1929 provisions after publication of the Fundamental Principles. Makovskii, in Lunts, 1963 treatise at 198-199; G. Shmigel'skii and V. lasinovskii, Osnovy sovetskogo morskogo prava (Fundamentals of Soviet Maritime Law) at 27-28 (1963); A. Siling, Morskoe pravo (Maritime Law) at 20-21 (1964). Support for the proposition that the conflicts norms for international transportation contracts need not follow Art. 126 as a matter of law is provided by the Soviet Air Code, adopted at the same time as the Fundamental Principles, whose conflicts rule for air transport contracts makes that Code applicable to all international shipments in Soviet airplanes and does not state that the parties may choose another law. The Code makes no mention of lex loci contractus. See Art. 120 of the Air Code, published as Vozdushnyi kodeks Soiuza SSR (Air Code of the U.S.S.R.) in Vedomosti verkhovnogo soveta SSSR (1961), No. 52, item 538. The Code has been translated into English by D. Cooper, The Air Code of the U.S.S.R. (1966).

25 Lex loci contractus, though widely criticized by modern thought, remains the standard conflicts rule for contracts for carriage of goods by sea in France and Belgium (llabel, op. cit. note 15, at 257-258), was employed as well in Italy until adoption of lex banderae in 1942 (ibid, at 270), is the principal conflicts criterion in The Netherlands (ibid, at 261-262), and is followed in certain situations in England (ibid, at 250). Lex loci contractus is the conflicts rule traditionally followed by U. S. admiralty courts for contracts of carriage of goods by sea (ibid, at 249-250), though the importance of this rule is to a great extent undermined by Sec. 13 of the 1936 Act on Carriage of Goods by Sea (COGSA), which makes that Act applicable to “all contracts for carriage of goods by sea to or from ports of the United States in foreign trade.” 46 U.S.C.A. 1312. For a recent decision rejecting lex loci contractus, see San Rafael Compania Naviera, S. A. v. American Smelting & Refining Co., 327 F.2d 581 at 586- 587 (1964).

26 Makovskii, in Lunts, 1963 treatise at 194.

27 A. Keilin, “Proekt Morskogo Torgovogo Kodeksa SSSR” (“Draft of the Maritime Commercial Code of the TJ.S.S.R.“), Sovetskoe pravo (Soviet Law) (1926), No. 2, at 130.

28 For observations on the changing Soviet perception of the capitalist world and resultant revisions in conflict-of-law doctrine, see Hazard, loo. eit. note 24, a t 69-71.