Port State Control

Oya Özçayır

• Publisher: Informa Law from Routledge
• Year: 2018
• ISBN:
  9781351553629
• Edition: 2
• Topic: Diritto
• Subtopic: Diritto marittimo

Port State Control, Second Edition is a comprehensive publication dealing with the full implications and regulations of port State control. It provides a detailed analysis of the legal framework relating to port State control, including the most recent developments in this area. It covers not only the regional agreements on port State control and the EU legislation on this subject but also the background of the port State control process, its implications in practice and its effect on the ISM Code and the classification societies.

The book covers topics such as:

• Amendments and changes to the regional port state control systems
• The addition of an appeal procedure to the Paris MOU
• Issues related to the ports of refuge and the urgency for authorities to draw up appropriate plans for places of refuge following the recent incidents
• The ISPS Code for maritime security in the light of newly recognised vulnerability against terrorist attacks
• Update to Equasis
• Progress with Qualship regime under US Port State Control system.

This book will be an invaluable reference tool for shipping lawyers around the world.

Chapter 1
Flag State Control: Background

1A Introduction

1.1 Traditionally, jurisdiction over a ship has been connected with its nationality. The nationality of a ship refers to the State which has authority over, and responsibility in respect of, the ship. The flag the ship flies is the symbol of its nationality, and “flag State” generally denotes the State whose nationality a ship bears. Registration is the act by which the nationality, and collateral rights and duties, are conferred on a ship. By placing a ship on its register, a State assumes authority over the ship and undertakes the national and international responsibilities of a flag State in relation to that ship.

1B The Concept of Vessel Nationality

1.2 Before the introduction of the concept of nationality, States always considered some ships as their own and treated others as alien. They wanted to be able to enact regulations applicable to “their” ships whenever and wherever possible. However, this caused complications in practice.¹ When “their” ships entered the territory of some other State, these regulations clashed with the rules which that other State wanted to enforce with regard to anyone entering its territory.

1. Meyers, H., The Nationality of Ships (1967), p.1.

Following developments in international law, it was accepted that the seas and the oceans between States should not be regarded as part of States’ territories. With the introduction of the concept of nationality, the legal principle of the freedom of the seas was adopted. On the free seas, every State possessed authority over its own ships with certain limitations. The prevention of collisions and other incidents of navigation was one of the incentives for States to accept restrictions on their power over their ships on the high seas. But the main concern was flourishing piracy; and, therefore, with regard to piracy a right of supervision by all warships and foreign merchantmen was accepted.

1.3 During the 19th century, States accepted more restrictions on their exclusive jurisdiction on the high seas with regard to their vessels. And for international waters, a compromise was reached between the need for freedom of movement for ships of all States and the necessity for the creation and maintenance of public order at sea. So, flag States have certain rights over their vessels when they are on the high seas, territorial seas or internal waters. However, while exercising its rights, the flag State has certain duties as well. “These rights and duties, which a State only has in connection with ships which it legitimately regards as its own ships, are referred to by the one word: nationality.”²

2. Ibid.

In international law there is a general agreement that a merchant ship on the high seas has to possess a nationality to be able to prove its existence. The reason behind this requirement is to ensure that each vessel will be subject to some regulatory scheme and system of laws. The high seas were defined in Art. 86 of the United Nations Convention on the Law of the Sea 1982 (UNCLOS) as all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in internal waters of a State or in the archipelagic waters of an archipelagic State. Article 87 of the UNCLOS provides for the freedom of the high seas: “The high seas are open to all States, whether coastal or land-locked.” Apart from being open to all nations, the high seas can be used by both coastal and land-locked States for the purpose of navigation, overflight, laying submarine cables and pipelines, constructing artificial islands and other installations permitted under international law, fishing and scientific research.³ These freedoms, and others which are recognized by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas. However, freedom of access should not lead to abuse; therefore international law provides a framework for the exercise of that freedom, and these rules are enforced by individual States through the jurisdiction exercised over their national vessels. In this respect, there are two main rules:⁴ first, jurisdiction over a vessel on the high seas resides solely with the State to which the vessel belongs; second, all vessels using the high seas must possess a national character.

3. UNCLOS 1982, Art. 87:

“Freedom of the high seas

1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:
   • (a) freedom of navigation;
   • (b) freedom of overflight;
   • (c) freedom to lay submarine cables and pipelines, subject to Part VI;
   • (d) freedom to construct artificial islands and other installations permitted under international law; subject to Part VI;
   • (e) freedom of fishing; subject to conditions laid down in section 2;
   • (f) freedom of scientific research, subject to Parts VI and XIII.
2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.”

4. Ready, N.P., Ship Registration (2002), p.1. As stated by Ready, under the United Kingdom Merchant Shipping Act 1995, s. 6(1), clearance or transire shall not be granted for any ship until the master has declared to an officer of customs the name of the nation to which he claims it belongs.

1.4 If a ship does not have a nationality, it does not have any protection in international law. This principle was first adopted by English courts in Naim-Molvan v. Attorney-General for Palestine.⁵ In this case, the vessel Asya, sailing to Palestine, was flying the Turkish flag, which she was not entitled to fly. She did not have any papers on board either. She was arrested by a British destroyer 100 miles off the Palestinian coast. 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 the freedom of the high seas extended to a ship possessing no nationality. It was held that the vessel’s seizure was legal and that forfeiture of the vessel was proper.⁶ A similar case was dealt with under United States jurisprudence. In United States v. Marino-Garcia⁷ the United States Court of Appeals for the Eleventh Circuit consolidated actions involving two ships seized by the US Coast Guard for carrying marijuana while on the high seas near Cuba. There was no evidence that either vessel intended to offload her cargo at a US port. The court held the seizure and forfeiture of the vessel proper and stated that “vessels without nationality are international pariahs. They have no internationally recognized right to navigate freely on the high seas.”⁸

5. [1948] A.C. 351.

6. It was held that “having no usual ship’s papers which would serve to identify her, flying the Turkish flag, to which there was no evidence she had a right, hauling it down on the arrival of a boarding party and later hoisting a flag which was not the flag of any State in being, the Asya could not claim the protection of any State nor could any State claim that any principle of international law was broken by her seizure”.

7. 679 F.2d 1373, 1985 A.M.C. 1815 (11th Cir. 1982) cited in Anderson, H.E., “The nationality of ships and flags of convenience: economics, politics, and alternatives” (1996) 21 Tulane Maritime Law Journal, p.142, n.19.

8. It is discussed in Anderson’s article that, despite authority to the contrary, there does not seem to be any reason why a ship without nationality should be treated differently for the purposes of jurisdiction than any other vessel. Ibid., pp.142–143.

1.5 A vessel without documents may be refused permission to enter foreign ports and engage in commercial activities. In The Merritt, it is clear to see the disadvantages of an undocumented vessel. In this case an American-owned, foreign-built vessel was used in importing coal and iron from Canada to the US. The vessel was in violation of the provisions of the Act of March 1 1817. Under this Act, the ship had to be either a US vessel or a vessel of the nationality of the State whose goods were imported.⁹

9. 17 Wall. (81 US) 582, 586–587 (1873). It was stated that “the case does not show that The Merritt has any of the evidences of being a British ship. She produces no register, or certificate, or document of any kind to entitle her to make that claim. The fact that she is foreign-built does not prove it. Proof even that she was built in Great Britain would not establish it. Pirates and rovers may issue from the most peaceful and most friendly ports. The documents a vessel carries furnish the only evidence of her nationality. Of these The Merritt is entirely destitute, so far as the case shows.”

Vessels which fly two flags can also be regarded as stateless ships, because when a vessel flies two flags it has been treated as falling outside the protection of the law of either nationality it is claiming. In order to prevent ships from sailing under more than one flag, the International Law Commission (ILC) proposed that such ships should not be permitted to claim any of the nationalities in question with respect to any other State and “may be assimilated to a ship without nationality”.¹⁰ This rule was adopted in Art. 6(2) of the Geneva Convention on the High Seas 1958 and is repeated in Art. 92(2) of the UNCLOS 1982.¹¹ In United States v. Passos-Paternina¹² the ship had narcotics on board and had two flags. When it was boarded by the US Coast Guard the master claimed both registries. It was held that the vessel was “assimilated to a vessel without nationality” under Art. 6(2) of the Geneva Convention.

10. Brown, E.D., The International Law of the Sea (1994) Vol. I, p.291.

11. UNCLOS 1982, Art. 92 states:

“Status of Ships

1. Ships sail under the flag of one State only and, save in exceptional cases expressly provided for international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.
2. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.”

12. 918 F.2d 979, 1991 A.M.C. 719, 722 (1st Cir. 1990).

1C Registration

1.6 Registration is the administrative act by which nationality and collateral rights and duties are conferred on a ship. The term is generally used to describe the attribution of national character to a vessel. With registration the vessel¹³ enters the public records of a State. A ship may be registered if it meets the relevant national requirements. With registration in a State, a ship comes within the national jurisdiction of that State. The State assumes authority over the ship to exercise the power inherent in the jurisdiction of the flag State. The State undertakes the national and international responsibilities of a flag State in relation to that ship.

13. The registration of ships has its origins in the laws of Imperial Rome. It was widespread in the city-states of medieval Italy. In England, registration started with a statute of Charles II in 1660 (12 Car.2, c.18). Navigation Acts aimed to prevent foreign vessels taking advantage of the commercial privileges enjoyed by vessels flying the British flag. In other words, the first registrations were not to regulate standards but to ensure that certain trades were reserved for the benefits of British citizens. Towards the end of the 18th century, Navigation Acts also sought to restrict entitlement to the flag to ships built within the British dominions. See Abbott’s Law of Merchant Ships and Seamen (14th edn, 1901) for the history of British registration, cited in Ready, N.P.

The matter of deciding the conditions of registration of ships lies within each State’s exclusive competence. This principle was first recognized by the Hague Court of Permanent Arbitration in the Case of the Muscat Dhows: Great Britain v. France.¹⁴ This case was about the legality of granting the right to fly the French flag to dhows¹⁵ which were owned by subjects of the Sultan of Musc...