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Legislative Requirements
Introduction
to Maritime Law
Maritime law may be roughly
divided into two parts the commercial part and the operational part.
When dealing with commercial
maritime law most of the law that has been embodied is old customary law – that
is law that has been followed through usage over a period of time.
These laws were framed maybe a
century or two ago by commercial trading houses and Lloyds in their agreement
for trade and carriage of goods. Newer versions always are incorporated in
them, these are frequently employed in the bills of lading and the clauses may
vary from one bill of lading to the other.
However statute law is more rigid
and has been evolved for principally safety of the persons employed on the
ships – further the marine environment has been added to that list.
A broad division may be made as –
statute law – harm to humans on the ship (today inclusion of marine life).
Most of the statute laws are
agreed upon through the conventions between international member states. The
first of the convention appeared over a century ago and dealt with overloading
of ships and towards the collision between ships – both arose over excessive
human life being lost.
The following extract – the
preamble to the UNCLOS, shows as to why the conventions are agreed upon:
Begin extract
The States Parties to this Convention,
Prompted by the desire to settle, in a spirit of
mutual understanding and co-operation, all issues relating to the law of
the sea and aware of the historic significance of this
Convention as an important contribution to the maintenance of peace, justice
and progress for all the peoples of the world,
Noting that developments since the United
Nations Conferences on the Law of the Sea held at
Conscious that the problems of ocean space are closely
interrelated and need to be considered as a whole,
Recognising the desirability of establishing, through
this Convention, with due regard for the sovereignty of all States, a
legal order for the seas and oceans which will facilitate international
communication and will promote the peaceful uses of the seas and oceans, the
equitable and efficient utilization of their resources, the
conservation of their living resources and the study, protection and
preservation of the marine environment,
Bearing in mind that the achievement of these goals
will contribute to the realization of a just and equitable international
economic order which takes into account the interests and needs of mankind as a
whole and, in particular, the special interests and needs of
developing countries, whether coastal or land-locked,
Desiring by this Convention to develop the principles
embodied in resolution 2749 (XXV) of 17 December 1970 in which the General
Assembly of the United Nations solemnly declared inter alia
that the area of the sea-bed and ocean floor and the subsoil thereof, beyond
the limits of national jurisdiction, as well as its resources, are the common
heritage of mankind, the exploration and exploitation of which shall be
carried out for the benefit of mankind as a whole, irrespective of the
geographical location of States,
Believing that the codification and progressive
development of the law of the sea achieved in this Convention will contribute
to the strengthening of peace, security, co-operation and friendly relations
among all nations in conformity with the principles of justice and equal rights and will
promote the economic and social advancement of all peoples of the world, in
accordance with the Purposes and Principles of the United Nations as set forth
in the Charter,
Affirming that matters not regulated by this
Convention continue to be governed by the rules and principles of general
international law,
Have agreed as follows:
End extract
The following header shows how a
Convention is adopted as a National Law in a state. In this case the Australian
Parliament has enacted the IBC as a law in
Begin Header
DEPARTMENT
OF FOREIGN AFFAIRS
Select Documents on International Affairs No. 31 Volume II (1983) 2. page 105
Amendments
to the International Convention for the Safety of Life at Sea of
(London,
17 June 1983)
Australian
Government Publishing Service
©
Commonwealth of Australia 2000
ADOPTION OF THE INTERNATIONAL CODE FOR THE
CONSTRUCTION AND EQUIPMENT OF SHIPS CARRYING DANGEROUS CHEMICALS IN BULK (IBC
CODE)
End Header
In this law the conventions have been referenced to:
Begin
Extract:
THE MERCHANT SHIPPING ACT, 1958
NO.44 OF 1958
[
An Act to foster the development and ensure the efficient maintenance of an Indian mercantile marine in a manner best suited to seven the national interests and for that purpose to established a National Shipping Board and a Shipping Development Fund, to provide for the registration of Indian ships and generally to amend and consolidate the law relating to merchant shipping.
Be it enacted by Parliament in the Ninth Year of the
PART I
PARAMILITARY
1.Short title and
commencement.- (1) This Act may be
called the Merchant Shipping Act, 1958.
3.Definitions.- In this
Act, unless the context otherwise requires,-
(3) ‘collision regulations” means the regulations made under
section 285 for the prevention of collisions at sea;
(5) “Country
to which the Load Line Convention applies” means,-
(a) a
country the Government of which has been declared or is deemed to have been
declared under section 283 to have accepted the Load Line Convention and has
not been so declared to have denounced that Convention;
(b) a
country to which it has been so declared that the Load Line Convention has been
applied under the provisions of article twenty-one thereof, not being a country to which it has been so declared
that that Convention has ceased to apply under the provisions of that article;
(20) “Load
Line Convention” means the Convention signed in London on the 5th
day of July, 1930, for promoting safety of life and property at sea, as amended
from time to time;
(37) “Safety
Convention” means the Convention for the Safety of Life at Sea signed in
End of
extract.
Since most of the coastal states and most of the
landlocked states indulging in global trading and shipping are members of the
UN, therefore it is also a case where these countries are also party to the various conventions that are set up by the UN
as separate bodies.
An International convention once
set up by the UN goes into the specific matter on which it has to deliberate,
and after coming to a conclusion taking into account the opinion from the
various member states and the specialists in the field come out with the final
draft which is presented at the conference.
The member states are
represented by their official representatives and they put down their countries
as having been witnesses to the final passing of the conference,
However this is just that the
convention is accepted. The representative’s take the copies of the conventions
and the convention again are scrutinized by the member stets experts in the
field as well as by legal and financial experts.
Since the adoption could have
meant a variety of expenditure.
Once satisfied about the
contents of the convention the member state, enacts an act of parliament which
may give reference to the convention or may publish the entire convention as an
act of parliament.
Thus this convention now becomes
the low of the land in that member state. The information is passed on to the
UN body and the member state thus ratifies the convention.
Regarding disagreement on the
clauses to the convention the member state informs the UN body about its
reservations. If many such reservations come in then the UN body may ask for an
overall look again in the convention.
Other repealing measures are as
stated below which is set out in the convention document itself.
A sample of an international convention: Please read
the lines in bold. Wherein a state is allowed the pleasure of agreeing to the
local unions requirement – which may be contrary to the convention – but would
be enhanced from those of the convention.
Another part refers to the repealing of the law/
convention by a member state after a period of 10 years from the date of
ratification.
Begin
extract
ILO Convention (No. 180) concerning Seafarers’ Hours
of Work and the Manning of Ships (Geneva,
22 October 1996)
THE GENERAL CONFERENCE OF THE INTERNATIONAL LABOUR
ORGANIZATION,
HAVING BEEN CONVENED at Geneva by the Governing Body
of the International Labour Office, and having met in its Eighty-fourth Session
on 8 October 1996, and,
NOTING the provisions of the Merchant Shipping
(Minimum Standards) Convention, 1976 and the Protocol of 1996 thereto; and the
Labour Inspection (Seafarers) Convention, 1996, and
RECALLING the relevant provisions of the following
instruments of the International Maritime Organization: International
Convention for the Safety of Life at Sea, 1974, as amended, the International
Convention on Standards of Training, Certification and Watchkeeping
for Seafarers, 1978, as amended in 1995, Assembly resolution A481(XII)(1981) on
Principles of Safe Manning, Assembly resolution A741(18)(1993) on the
International Code for the Safe Operation of Ships and for Pollution Prevention
(International Safety Management (ISM) Code), and Assembly resolution
A772(18)(1993) on Fatigue Factors in Manning and Safety, and
RECALLING the entry into force of the United Nations
Convention on the Law of the Sea, 1982, on
HAVING DECIDED upon the adoption of certain proposals
with regard to the revision of the Wages, Hours of Work and Manning (Sea)
Convention (Revised), 1958, and the Wages, Hours of Work and Manning (Sea)
Recommendation, 1958, which is the second item of the agenda of the session,
and
HAVING DETERMINED that these proposals shall take the
form of an international Convention;
ADOPTS , this twenty-second
day day of October of the year one thousand nine
hundred and ninety-six, the following Convention, which may be cited as the
Seafarers’ Hours of Work and the Manning of Ships Convention, 1996:
PART I
SCOPE AND DEFINITIONS
Article 1
1. This Convention applies to every seagoing ship,
whether publicly or privately owned, which is registered in the territory of
any Member for which the Convention is in force and is ordinarily engaged in
commercial maritime operations. For the purpose of this Convention, a ship that
is on the register of two Members is deemed to be registered in the territory
of the Member whose flag it flies.
Article 4
A Member which ratifies this Convention acknowledges
that the normal working hours’ standard for seafarers, like that for other
workers, shall be based on an eight-hour day with one day of rest per week and
rest on public holidays. However, this
shall not prevent the Member from having procedures to authorize or register a
collective agreement which determines seafarers’ normal working hours on a
basis no less favourable than this standard.
6. Nothing
in paragraphs 1 and 2 shall prevent the Member from having national laws or
regulations or a procedure for the competent authority to authorize or register
collective agreements permitting exceptions to the limits set out. Such
exceptions shall, as far as possible, follow the standards set out but may take
account of more frequent or longer leave periods or the granting of
compensatory leave for watchkeeping seafarers or
seafarers working on board ships on short voyages.
FINAL PROVISIONS
1. This Convention shall be binding only upon those
Members of the International Labour Organization whose ratifications have been
registered with the Director-General of the International Labour Office.
2. This Convention shall come into force six months
after the date on which the ratifications of five Members, three of which each
have a least one million gross tonnage of shipping, have been registered with
the Director-General of the International Labour Office.
3. Thereafter, this Convention shall come into force
for any Member six months after the date on which its ratification has been
registered.
Article 19
1. A Member which has ratified this Convention may
denounce it after the expiration of ten years from the date on which the
Convention first comes into force, by an act communicated to the
Director-General of the International Labour Office for registration. Such
denunciation shall not take effect until one year after the date on which it is
registered.
Article 20
1. The Director-General of the International Labour
Office shall notify all Members of the International Labour Organization of the
registration of all ratifications and denunciations communicated by the Members
of the Organization.
2. When the conditions provided for in Article 18,
paragraph 2, above have been fulfilled, the Director-General shall draw the
attention of the Members of the Organization to the date upon which the
Convention shall come into force.
Article 21
The Director-General of the International Labour
Office shall communicate to the Secretary-General of the United Nations, for
registration in accordance with Article 102 of the Charter of the United
Nations, full particulars of all ratifications and acts of denunciation
registered by the Director-General in accordance with the provisions of the
preceding Articles.
Article 23
1. Should the Conference adopt a new Convention
revising this Convention in whole or in part, then, unless the new Convention
otherwise provides-
(a) the ratification by a
Member of the new revising Convention shall ipso
jure involve the immediate denunciation of this
Convention, notwithstanding the provisions of Article 19 above, if and when the
new revising Convention shall have come into force;
(b) as from the date when the
new revising Convention comes into force, this Convention shall cease to be
open to ratification by the Members.
2. This Convention shall in any case remain in force
in its actual form and content for those Members which have ratified it but
have not ratified the revising Convention.
End extract
Maritime law is for worldwide trade. Trade is between
different states and as such claims and such are always prevalent. If no common
ground existed then the dispute would not be sorted out and the entire amicable
trading pattern would come to a standstill. Thus conventions among member
states are the pillars on which international trade stands.
Once a convention has been
accepted it sets guideline at the very minimum the standards that are to be
associated for trade.
However a convention is only a
guideline it is not law of the land. To be so, the member state has to get this
convention enacted as a law in its own country. Once this is done and the
country trades with another, which has at its core law, a similar law based on
the same convention, the trading claims and others proceed smoothly.
It must be remembered however
that the law being the same the penalties and other fines may not be the same.
Also in addition to the law as
per the convention the state may have other laws, which may not be similar to
other state laws.
These conventions are all
encompassing and take into view all suggestions and after clarifying the same
are formulated. Thus the convention is universally accepted and thus no
misunderstanding in the implementation occurs.
It becomes easier for member
stets to trade knowing that the same convention is applicable. Any jurisdiction
over other stets properties are set out in the convention itself – the only
differing are the fines and the penalties which are left to the individual
states discretion
The main organizations involved
in making international law are:
The United Nations and the
bodies those are set up for the required purpose.
These are:
The International Maritime
Organization (IMO)
International Labour
Organization (ILO)
Comite Maritime International (CMI)
Coastal State Jurisdiction
Criminal
jurisdiction on board a foreign ship
1. The criminal jurisdiction of the coastal
State should not be exercised on board a foreign ship passing through the
territorial sea to arrest any person or to conduct any investigation in
connection with any crime committed on board the ship during its passage, save
only in the following cases:
(a) if the consequences
of the crime extend to the coastal State;
(b) if the crime is of
a kind to disturb the peace of the country or the good order of the territorial
sea;
(c) if the assistance
of the local authorities has been requested by the master of the ship or by a
diplomatic agent or consular officer of the flag State; or
(d) if such measures
are necessary for the suppression of illicit traffic in narcotic drugs or
psychotropic substances.
2. The above provisions do not affect the right
of the coastal State to take any steps authorized by its laws for the purpose
of an arrest or investigation on board a foreign
ship passing through the territorial sea after leaving internal waters.
3. In the cases provided for in paragraphs 1 and
2, the coastal State shall, if the master so requests, notify a diplomatic
agent or consular officer of the flag State before taking any steps, and shall
facilitate contact between such agent or officer and the ship’s crew. In cases
of emergency this notification may be communicated while the measures are being
taken.
4. In considering whether or in what manner an
arrest should be made, the local authorities shall have due regard to the
interests of navigation.
5. The coastal State may not take any steps on
board a foreign ship passing through the territorial
sea to arrest any person or to conduct any investigation in
connection with any crime committed before the ship entered the territorial
sea, if the ship, proceeding from a foreign port, is only passing through the
territorial sea without entering internal waters.
Civil
jurisdiction in relation to foreign ships
1. The coastal State should not stop or divert a
foreign ship passing through the territorial sea for the purpose of exercising
civil jurisdiction in relation to a person on board the ship.
2. The coastal State may not levy execution
against or arrest the ship for the purpose of any civil proceedings, save only
in respect of obligations or liabilities assumed or incurred by the ship itself
in the course or for the purpose of its voyage through the waters of the
coastal State.
3. Paragraph 2 is without prejudice to the right
of the coastal State, in accordance with its laws, to levy execution against or
to arrest, for the purpose of any civil proceedings, a foreign ship lying in
the territorial sea, or passing through the territorial sea after leaving
internal waters.
1 A ship when in a port of another Contracting
Government is subject to control by officers duly authorized by such Government
concerning operational requirements in respect of the safety of ships, when
there are clear grounds for believing that the master or crew are not familiar
with essential shipboard procedures relating to the safety of ships.
2 In the circumstances defined in paragraph 1 of this
regulation, the Contracting Government carrying out the control shall take such
steps as will ensure that the ship shall not sail until the situation has been
brought to order in accordance with the requirements of the present Convention.
3 Procedures relating to the port State control
prescribed in regulation I/19 shall apply to this regulation.
4 Nothing in the present regulation shall be construed
to limit the rights and obligations of a Contracting Government carrying out
control over operational requirements specifically provided for in the
regulations.
Control
(a) Every ship when in a port of another Contracting
Government is subject to control by officers duly authorized by such Government
in so far as this control is directed towards verifying that the certificates
issued under regulation 12 or regulation 13 are valid.
(b) Such certificates, if valid, shall be accepted
unless there are clear grounds for believing that the condition of the ship or of
its equipment does not correspond substantially with the particulars of any of
the certificates or that the ship and its equipment are not in compliance with
the regulation.
(c) In the circumstances or where a certificate has
expired or ceased to be valid, the officer carrying out the control shall take
steps to ensure that the ship shall not sail until it can proceed to sea or
leave the port for the purpose of proceeding to the appropriate repair yard
without danger to the ship or persons on board.
(d) In the event of this control giving rise to an
intervention of any kind, the officer carrying out the control shall forthwith
inform, in writing, the Consul or, in his absence, the nearest diplomatic
representative of the State whose flag the ship is entitled to fly of all the
circumstances in which intervention was deemed necessary. In addition,
nominated surveyors or recognized organizations responsible for the issue of
the certificates shall also be notified. The facts concerning the intervention
shall be reported to the Organization.
(e) The port State authority concerned shall notify
all relevant information about the ship to the authorities of the next port of
call, in addition to parties mentioned, if it is unable to take action as
specified or if the ship has been allowed to proceed to the next port of call.
(f) When exercising control under this regulation all
possible efforts shall be made to avoid a ship being unduly detained or
delayed. If a ship is thereby unduly detained or delayed it shall be entitled
to compensation for any loss or damage suffered.
The SOLAS
Convention in its successive forms is generally regarded as the most
important of all international treaties concerning the safety of merchant
ships. The first version was adopted in 1914, in response to the Titanic disaster, the second in 1929,
the third in 1948, the fourth in 1960 and the fifth in 1974.
The main objective of the SOLAS Convention is to
specify minimum standards for the construction, equipment and operation of
ships, compatible with their safety. Flag States are responsible for ensuring
that ships under their flag comply with its requirements, and a number of
certificates are prescribed in the Convention as proof that this has been done.
Control provisions also allow Contracting Governments to inspect ships of other
Contracting States if there are clear grounds for believing that the ship and
its equipment do not substantially comply with the requirements of the
Convention - this procedure is known as port State control. The current SOLAS
Convention includes Articles setting out general obligations, amendment
procedure and so on, followed by an Annex divided into 12 Chapters.
MARPOL – deals with the preservation of the marine environment
THE PARTIES TO THE CONVENTION,
BEING CONSCIOUS of the need to preserve the human
environment in general and the marine environment in particular,
RECOGNIZING that deliberate, negligent or accidental
release of oil and other harmful substances from ships constitutes a serious
source of pollution,
RECOGNIZING ALSO the importance of the International
Convention for the Prevention of Pollution of the Sea by Oil, 1954, as being
the first multilateral instrument to be concluded with the prime objective of
protecting the environment, and appreciating the significant contribution which
that Convention has made in preserving the seas and coastal environment from
pollution,
DESIRING to achieve the complete elimination of
intentional pollution of the marine environment by oil and other harmful
substances and the minimization of accidental discharge of such substances,
CONSIDERING that this object may best be achieved by
establishing rules not limited to oil pollution having a universal purport,
HAVE AGREED as follows:
STCW – deals with proper training and certification of the crew on board
ships
RECOGNIZING the importance of establishing detailed
mandatory standards of competence and other mandatory provisions necessary to
ensure that all seafarers shall be properly educated and trained, adequately
experienced, skilled and competent to perform their duties in a manner which
provides for the safety of life and property at sea and the protection of the
marine environment,
RECALLING that a large percentage of maritime
casualties and pollution incidents are caused by human error,
APPRECIATING that one effective means of reducing the
risks associated with human error in the operation of seagoing ships is to
ensure that the highest practicable standards of training, certification and
competence are maintained in respect of the seafarers who are employed on such
ships,
DESIRING to achieve and maintain the highest
practicable standards for the safety of life and property at sea and in port
and for the protection of the environment,
With respect to ships entitled to fly the flag of a
State which is not a Party to the Convention and the present Protocol, the
Parties to the present Protocol shall apply the requirements of the Convention
and the present Protocol as may be necessary to ensure that no more favourable
treatment is given to such ships.
This means that whether or not a ship flies the flag
of a signatory country or not, it shall be subject to all the conditions of as
applicable under this convention. Thus a ship would not be permitted to enter a
signatory country’s water s in a substandard condition and give an excuse that
her government is not a signatory, hence she is
outside the jurisdiction of complying with the conditions of this protocol.
Rules of convention to Law
Almost everything we do is governed by some set of
rules. There are rules for games, for social clubs, for sports and for adults
in the workplace. There are also rules imposed by morality and custom that play
an important role in telling us what we should and should not do.
However, some rules—those made by the state or the
courts—are called “laws”. Laws resemble morality because they are designed to
control or alter our behaviour. But unlike rules of morality, laws are enforced
by the courts; if you break a law—whether you like that law or not—you may be
forced to pay a fine, pay damages, or go to prison.
Since individuals began to associate with other
people—to live in society—laws have been the glue that has kept society
together.
Laws regulating our business affairs help to ensure
that people keep their promises. Laws against criminal conduct help to
safeguard our personal property and our lives.
Even in a well-ordered society, people have
disagreements and conflicts arise. The law must provide a way to resolve these
disputes peacefully.
We need law, then, to ensure a safe and peaceful
society in which individuals’ rights are respected.
The law is a set of rules for society, designed to
protect basic rights and freedoms, and to treat everyone fairly. These rules
can be divided into two basic categories: public law and private law.
Public Law
Public law deals with matters that affect society as a
whole. It includes areas of the law that are known as criminal, constitutional
and administrative law. These are the laws that deal with the relationship
between the individual and the state, or among jurisdictions.
Private Law
Private law, on the other hand, deals with the
relationships between individuals in society and is used primarily to settle
private disputes. Private law deals with such matters as contracts, the rights
and obligations of family members, and damage to one’s person or property
caused by others. When one individual sues another over some private dispute,
this is a matter for private law.
Private international law is the body of conventions, model laws,
legal guides, and other documents and instruments that regulate private
relationships across national borders. Private international law has a
dualistic character, balancing international consensus with domestic
recognition and implementation, as well as balancing sovereign actions with
those of the private sector.
The law of the land which
finally is enforcer for the conventions, ensures that
the law (convention) is enforced by ensuring that before any certification is
done the ship are surveyed, and after this only are they certified.
The surveys are as per the code
or may be as per the law of that state however they cannot fall below the
standard as set out in the convention.
As far as possible these details
are to be inspected and then certified. These then become as authorized by the
government of that state. And are seen as official documents.
The government agencies (may be
various) are entrusted by the state to enforce the law/ convention in the
nature of any violation – be it by way of area violation, pollution or by way
of improper certification.
Thus for any violation a ship
may be detained for a short period or for long. May be fined and personnel may
be imprisoned.
The government agencies are also
the keeper of all records since the state has to submit to the IMO all records
regarding any detention and other cases of violation.,
including all dispensations granted.
From the above it may be observed
that it is of utmost importance to study the national legislation that has been
adopted in view to the conventions. Also
any other rules and regulations that may have been enacted for maritime
convenience.
Additionally the rules and regulations of the port
state in which the ship arrives may have a set of different rules and regulations
which the ship would have to observe. These set of rules and regulations are
generally passed onto to the ship through either the pilot or the agent to the
ship. Any notification may also be available from other sources. It is not
mandatory for the ship to have received the notice of any extra rules and
regulation through oversight of the agent or others, if the law has been
published and informed to other places then it is supposed to have been
informed to the ship. Thus the ship cannot say that since it has not received
that it would assume it has not been informed and thus would fail to comply,
It is the duty of the ship
through the company and the agents to keep abreast of all new laws and
regulations that may affect the ship and the crew when arriving into any state
to which the port belongs.