Maritime Law
(Handouts)
Maritime Law
Maritime law, also known as admiralty law, is a body of laws, conventions, and
treaties that govern private maritime business and other nautical matters, such as
shipping or offenses occurring on open water. International rules governing the use of
the oceans and seas are known as the Law of the Sea.
Terminologies:
Conventions are the primary instrument used at IMO to regulate the international
maritime sphere. They constitute binding agreements, or treaties, between signatory
states on the subject of the convention. Conventions contain articles that establish the
formal intentions of states in forming the agreement. Chapters and annexes then set out
the extensive technical details of the regulations as agreed by the parties to the
convention. Conventions are not legally binding until they enter into force, after being
ratified by a pre agreed number of states.
Codes. In order to provide leadership to industry on technical and safety matters, IMO
must be able to respond quickly to the ever-changing technology and practices. Detailed
prescriptive regulations of the conventions are usually contained in instruments such as
codes. Codes contain requirements that are often incorporated by reference into the
conventions rather than being directly included in full within the text of the convention
itself. This means that codes can be amended more easily, so that they can evolve
efficiently together with technical and industry developments. For example, the ISM Code
is incorporated by reference into SOLAS chapter IX.
Resolutions are important documents issued by one of the organs of the IMO. They are
result of a final agreement regarding a new requirement or important amendment.
Guidelines are used to share best practices on topics for adoption by flag states. For
example, IMO Res.A.893(21) above is the IMO's GUIDELINES FOR VOYAGE
PLANNING.
Key points:
• Maritime law governs private maritime questions, disputes, or offenses and other
nautical matters.
• In most developed countries, the maritime law follows a separate code and is an
independent jurisdiction from national laws.
• The International Maritime Organization, or IMO, ensures that existing
international maritime conventions are kept up to date and develops new
agreements when the need arises.
In most developed nations, maritime law follows a separate code and is an
independent jurisdiction from national laws. The United Nations (UN), through
the International Maritime Organization (IMO), has issued numerous conventions that
can be enforced by the navies and coast guards of countries that have signed the treaty
outlining these rules.
Maritime law governs many of the insurance claims relating to ships and cargo; civil
matters between shipowners, seamen, and passengers; and piracy. Additionally,
maritime law regulates registration, license, and inspection procedures for ships and
shipping contracts; maritime insurance; and the carriage of goods and passengers. The
IMO (established in 1948 as the Inter-Governmental Maritime Consultative Organization,
and coming into force in 1958) is responsible for ensuring that existing international
maritime conventions are kept up to date as well as developing new agreements as and
when the need arises.
There are dozens of conventions regulating all aspects of maritime commerce and
transport. The IMO names three conventions as its core:
• The International Convention for the Safety of Life at Sea
• The International Convention for the Prevention of Pollution from Ships
• The International Convention on Standards of Training, Certification and
Watchkeeping for Seafarers.
History of Maritime Law
The origins of maritime law can be traced all the way back to ancient Egypt. In
those days, ships were used to transport goods and a clearly defined set of rules was
needed to ensure safety and fair trade and settle disputes between different parties.
However, it wasn’t until much later that the first written record of formal codes can
be found. The Rhodian Sea Laws, formed around 900 BCE, set official rules for the
Mediterranean Sea. These laws governed seafaring trade in the area, influenced the
Romans, and remained in effect through the 12th century.
European maritime laws gradually evolved over the following centuries. Key
developments that helped to shape current laws included the Consulate of the Sea, the
Rolls of Oléron, and the early English Admiralty laws, which would later help to shape
the laws of the sea in the U.S.
Maritime law arrived in the Americas in the 1600s. In 1789, the year that the U.S.
Constitution was adopted, federal district courts were given exclusive jurisdiction over
admiralty law cases and a uniform body of law was created.
Ship Registration Under Maritime Law
The country of registration determines a ship's nationality. For most ships, the
national registry is the country where the owners live and operate their business.
Shipowners will often register their ships in countries that allow foreign
registration. Called "flags of convenience," the foreign registration is useful for tax
planning and to take advantage of lenient local laws. Two examples of "flags of
convenience" countries are Panama and Bermuda.
Importance of Maritime Law
Maritime law is the body of rules that govern everything that goes on in the sea
and open waters. These rules help clear up various disputes that can occur and ensure
that the people and organizations that work on the water behave correctly and are
protected.
International maritime law is governed by the International Maritime Organization
(IMO). A specialized agency of the United Nations, it is the IMO’s job to establish the
framework and regulations for the safety, security, and environmental performance of
shipping on an international, universal level.
Since its inception in 1948, the IMO and its sister-agency – the International Labor
Organization (ILO) – have crafted several internationally recognized agreements. Four
key conventions have been established to enable the above functions of the IMO:
1. SOLAS – Safety of Life at Sea
2. MARPOL – The International Convention for the Prevention of Pollution from
Ships
3. STCW – Standards of Training, Certification, and Watchkeeping
4. MLC – Maritime Labor Convention
Difference Between Maritime Law and Law of the Sea
Maritime law generally applies to private shipping issues, whereas the law of the
sea is largely recognized as referring to public international law. In other words, the latter
governs how nations should behave in maritime environments.
United Nations Convention on the Law of the Sea (UNCLOS III)
Jurisdiction of Flag State
The flag state of a merchant vessel is the jurisdiction under whose laws the
vessel is registered or licensed, and is deemed the nationality of the vessel. A merchant
vessel must be registered and can only be registered in one jurisdiction, but may change
the jurisdiction in which it is registered. The flag state has the authority and responsibility
to enforce regulations over vessels registered under its flag, including those relating to
inspection, certification, and issuance of safety and pollution prevention documents. As a
ship operates under the laws of its flag state, these laws are applicable if the ship is
involved in an admiralty case.
The term "flag of convenience" describes the business practice
of registering a merchant ship in a state other than that of the ship's owners, and flying
that state's civil ensign on the ship. Ships may be registered under flags of convenience
to reduce operating costs, or else to avoid the regulations of, or inspection and scrutiny
by, the country of the original owner. Normally the nationality (i.e., flag) of the ship
determines the taxing jurisdiction.
Flag states must, in accordance with the United Nations Convention on the Law
Of the Sea (UNCLOS) ensure that ships under their flag comply with international
regulations, often adopted by the UN's International Maritime Organization (IMO), on
matters of safety, navigation, crewing etc. Part XII entail special provisions on protecting
the marine environment, which includes placing special obligations on flag states to
ensure compliance with international environmental legislation such as MARPOL. Failure
to do so, can result in the flag state losing its jurisdiction over ships under its flag, also
when these commit violations on the high seas.
Jurisdiction of Coastal States
The Coastal State sovereignty extends to the territorial waters – the maritime zone
beyond their land territory and internal waters to that adjacent belt of sea measured
from the baselines to a maximum of 12 nautical miles. Despite significant similarities,
there exist notable distinctions between the legal framework governing territorial waters
and that of internal waters. This disparity arises from the voluntary concession of
sovereignty by Coastal States, who, in the pursuit of international cooperation and
facilitation of merchant shipping, have acknowledged the entitlement of foreign vessels
to engage in innocent passage through their territorial waters. The legal framework
governing the territorial waters is a result of reconciling two distinct principles:
1. the sovereignty of the Coastal State
2. the navigational rights of all other States
Thus, it would be inaccurate to assert that the Coastal States possess “full sovereignty”
to the same extent as in internal waters, as the acknowledgment of the right of innocent
passage imposes substantial limitations on the Coastal State jurisdiction over foreign
vessels transiting through the territorial sea.
Nevertheless, the right of innocent passage is, on no account, absolute. Rather
than being a complete freedom, it can be seen as a residual aspect of the principle of
freedom of navigation in the territorial sea. This right must be exercised in accordance
with the rules of international law, primarily outlined in UNCLOS, as well as any national
laws and regulations established by the Coastal States.
Under UNCLOS Article 18, foreign merchant ships in the territorial waters have
a duty to passage “continuously and expeditiously”, “without entering internal waters”,
or “external port facilities”, except in the case of certain specified constellations. In
addition, foreign merchant ships have obligation when exercising the right of innocent
passage, which entails their submission to the legal framework established by the
Coastal State. The “broadness of prescriptive jurisdiction” of Coastal States is evident
in UNCLOS Article 21, which outlines a comprehensive set of points (a-h) that delineate
the areas in which the Coastal States have the authority to establish laws and
regulations pertaining to innocent passage.
Jurisdiction of Port States
A State may exercise jurisdiction over foreign flagged merchant vessels within its
ports and internal waters. This exercise of jurisdiction derives from the principle of
territoriality, which is recognized as customary international law.
“The jurisdiction of a nation within its own territory is necessarily exclusive and
absolute.”
Territoriality gives a State exclusive authority to regulate persons within its borders.
The exercise of this type of jurisdiction is dependent on the location of the conduct. So
long as the conduct regulated falls within the territory of the State, it has jurisdiction. Thus,
a State may apply its laws to foreign flagged merchant ships while they are within its ports
and internal waters, which are considered part of its territory.
While port state jurisdiction over foreign commercial ships is recognized as
customary international law, port state jurisdiction does not extend to vessels owned or
operated by a foreign state, except when they are used for commercial purposes
Although foreign government ships operated for non-commercial purposes are
required to comply with a State’s laws while within its ports and internal waters, they are
immune from inspection, arrest, or seizure by authorities of nations other than the flag
state.
The “No more favorable treatment” clause
Article V, paragraph 7 of the MLC, 2006 contains what is often called the ―no
more favourable treatment clause‖. It seeks to ensure a ―level playing field‖ under which
the ships of countries that have ratified the Convention will not be placed at a competitive
disadvantage as compared with ships flying the flag of countries that have not ratified the
MLC, 2006.
Although it appears that Article V, paragraph 7 could conceivably apply in various
situations, in practice it relates essentially to the context of port State control under
Regulation 5.2.1, with respect to ships flying a foreign flag and calling at a port of a
ratifying country.
The ‘no more favourable treatment’ clause is a concept used within the Paris MoU
to ensure that, even when a flag state chooses not to ratify a convention (bring it into law
in their country), their ships will still be expected to achieve substantial compliance to the
regulations, ensuring that the standards of international shipping are maintained.
The concept also reduces the risk of owners and vessels ‘flag shopping’ for the
most lenient application of the regulations. For example, should France ratify a new
International Maritime Organization (IMO) convention, then all vessels visiting French
waters are subject to that convention, regardless of whether the vessel’s flag state has
also ratified the convention.
One very good recent example of this concept in action in the merchant world is
the Ballast Water Management Convention. Nobody wants the convention as it will be
very expensive for builders to fit the equipment. But once it is ratified, those countries that
haven’t signed up will still have to comply because of the ‘no more favourable treatment’
clause.”
