Ship Registration: Law and Practice

Edward Watt, Richard Coles

• Publisher: Informa Law from Routledge
• Year: 2018
• ISBN:
  9781351975360
• Edition: 3
• Topic: Diritto
• Subtopic: Diritto marittimo

Ship Registration Law and Practice is fully updated and now entering its third edition. Part of Lloyd's Shipping Law Library, it is the most authoritative guide to the theory and practice of ship registration in the most popular jurisdictions. It contains the reference material needed to submit a vessel for registration at the leading ship registries world-wide, as well as extracts from key international conventions in this area, a new statistical analysis of the world merchant fleet and Port State control rankings.

Chapter 1
The legal concept of ship registration

the freedom of the open sea… is a freedom of ships which fly, and are entitled to fly, the flag of a State.¹

General principles

1.1 To display a flag is an ancient symbol of loyalty and affiliation. Ships of all kinds across the world – as diverse as massive container vessels, oil tankers, offshore support fleets, luxury yachts, drilling units and dumb barges – have at least one thing in common. They fly a national flag and display a ‘home’ port of choice. In the twenty-first century such a tradition may seem rather antiquated, like flag signals at the Battle of Trafalgar or communication by semaphore, yet remains an essential and practical ingredient of international law and commerce. The instant visual identification of the nationality of a ship in this way whilst underway is to allow any vessel to transit international waters, the high seas, unhindered. Consistent with this purpose, tradition dictates that the national flag does not require to be flown when a ship is alongside in port because, at that time, she is subject to the jurisdiction of the adjoining land.

1.2 The freedom of the high seas is one of the fundamental principles of public international law. The 1958 Geneva Convention on the High Seas, Article 2, provides that “The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty.”² Such freedom means the unrestricted access of vessels belonging to all nations, to all parts of the sea that are not included in the territorial sea or internal waters of a State. Land-locked countries are not excluded from this freedom – a treaty of 1921 enshrines the principle that a State with no sea border may yet be a flag State that can register ships under its jurisdiction and any named place within that territory may be the port of registry for such vessels.³ Land-locked countries with ship registries include Austria, Bolivia, Ethiopia, Luxembourg, Mongolia and Switzerland. In order that the principle of unrestricted access to the high seas should not lead to a situation of anarchy and abuse, international law lays down rules providing a framework for the exercise of that freedom, and looks to individual States to ensure and enforce compliance with those rules through the jurisdiction exercised over their national vessels.

1.3 A cardinal rule is that jurisdiction over a vessel on the high seas rests solely with the State to which the vessel belongs. A second rule, which is a corollary of this essential principle, is that all vessels using the high seas must possess a national character. Nationality is attributed to vessels flying the flag of a State in which the vessel is publicly registered. Article 5 of the High Seas Convention provides that “Ships shall have the nationality of the State whose flag they are entitled to fly.” This language is echoed in the decision of Donaldson J (as he then was) in the case of The Angel Bell.⁴ The case concerned a dispute between cargo interests and the mortgagee of a Panamanian vessel. The question arose as to the proper law of the mortgage. The Commercial Court held that “A ship is, in effect, a floating piece of the nation whose flag it wears… prima facie, mortgages either of foreign land or ships will be governed by the law of their situs or flag.”⁵

1.4 A ship possessing no nationality – a stateless ship – enjoys no protection in international law. She is unable to engage in lawful trade since ports will deny entry to her. The UK Merchant Shipping Act 1995 provides that clearance shall not be granted for any ship until the Master has declared to a customs officer the name of the nation to which he claims that the ship belongs.⁶ If a ship attempts to proceed out to sea without such clearance, she may be detained until the declaration is made. The earliest UK legislation to the same effect was in 1784.⁷ Furthermore, a stateless ship is liable to seizure. The case of Naim Molvan v. Attorney General for Palestine⁸ concerned the vessel Asya, which was attempting to land Jewish settlers contrary to the Immigration Ordinance in force in Palestine in 1948. The vessel was carrying no papers and was arrested by a British destroyer 100 miles from the Palestine coast, flying no flag to which she was entitled – although when approached she hoisted the Turkish flag and, when boarded, the Zionist flag. The Palestinian court ordered the forfeiture of the vessel even though she had been seized on the high seas. On appeal, the Privy Council rejected the proposition that the principle of freedom of the high seas extended to a ship possessing no nationality and accepted as a valid statement of the law the following passage from Oppenheim’s International Law:

In the interest of order on the open sea, a vessel not sailing under the maritime flag of a State enjoys no protection whatever, for the freedom of navigation on the open sea is a freedom for such vessels only as sail under the flag of a State.⁹

1.5 The principle that an unregistered ship enjoys no protection under international law extends to a deprivation of the rights established under criminal laws of those on board her on the high seas. In the case of The Battlestar¹⁰ the Court of Appeal found that the owners of a yacht discovered on the high seas in possession of almost 1,500 kg of cannabis resin were not able to plead an abuse of process or unlawful boarding of their vessel by UK customs authorities, because – although showing the home port of Delaware and holding a Certificate of American Ownership – searches in the US Coastguard, federal and State records revealed the yacht to be unregistered in the United States. This case concerned UK legislation in which the offence of drug trafficking applies expressly to UK-registered ships and to “a ship registered in no country or territory”.¹¹ By contrast, enforcement powers cannot be exercised by the UK Customs & Excise against a ship which is registered in any other State without the express request for assistance or permission from the flag State. These circumstances demonstrate well the difference between documentation and registration, which shall be discussed further below.

1.6 The term generally used to describe the attribution of national character to a vessel is registration, meaning the entry of the particulars of the vessel in the public records of a State. For the purpose of many international shipping Conventions, registration in a particular State is a sufficient connecting factor to regard the vessel as possessing that State’s nationality.¹² In terms of the International Safety Management Code 2002, for example, the ‘Supervising Administration’ is defined as “the Government of the State whose flag the ship is entitled to fly”.¹³ In the International Convention on Load Lines 1966, the ‘Administration’ is “the Government of the State whose flag the ship is flying”.¹⁴

1.7 Every State may maintain registers in which the particulars of merchant vessels possessing the nationality of that State and flying its flag are entered. Individual nations fix the conditions for the entry of ships in their registers and such entry is generally a precondition for the possession of that State’s nationality, the hoisting of the national flag and the issuance to the vessel of documents attesting to its nationality.¹⁵

1.8 There is a very broad consistency of the statutory language used across flag States large and small in this area. For example, the Liberian Maritime Law¹⁶ provides:

no vessel engaged in foreign trade shall fly the flag of the Republic of Liberia or be accorded the rights and privileges of a Liberian vessel unless such vessel shall be registered in accordance with the provisions of Chapter 2 of this Title.

The Vanuatu Maritime Act¹⁷ and the Dominica International Maritime Act 2002¹⁸ are in similar terms. For the purposes of the UK Merchant Shipping Act 1995, a British ship is one registered in accordance with that legislation.¹⁹

1.9 What began historically as a local practice has developed and extended to become the multinational basis of mutual recognition for vessels from every corner of the globe. The registration of ships has its origins in the laws of imperial Rome²⁰ and was widespread in the City States of mediaeval Italy. At that time, the name of the ship would have been registered, together with the name of her owner and tonnage, and fraud in such matters could lead to confiscation of the vessel. With reference to the early development of the Italian law merchant, Holdsworth²¹ mentions that “the equipment, licensing, loading and registry of ships, the nature and variety of papers which trading ships must carry… occupy a large space in the statutes of the Italian towns”. In England, the registration system goes back to the seventeenth and eighteenth century Navigation Acts, beginning with a statute of Charles II in 1660.²² Here can be seen for the first time the compulsory requirement to notify to a government official the characteristics of a vessel, its owners, where it was built – “and that upon such Oath, he or they shall receive a Certificate… whereby such Ship or Vessel may for the future pass and be deemed as a Ship belonging to the said Port”. That is, a certificate of registration.

1.10 Registration of UK vessels of greater than 15 tons of burden became compulsory, on pain of forfeiture, in 1784.²³ The object of the Navigation Acts was to prevent foreign-owned vessels taking advantage of the commercial privileges enjoyed by vessels flying the British flag; by the late eighteenth century they also sought to restrict entitlement to the flag to ships built within the British dominions.²⁴

1.11 The expressions “nationality”, “documentation”, “flag” and “registration” are often used as if they were interchangeable. This is not simply a question of lay misusage. Imprecise employment of these terms in international Conventions can lead to considerable confusion in the application and interpretation of the law of the sea. It is therefore proposed here to explain the meaning of these four terms, by reference to their function.

Nationality

1.12 A vessel may be considered as possessing the nationality of a State even though she is unregistered, possesses no documents evidencing that nationality, nor flies the flag of that State. The UK Merchant Shi...