Serving the Rule of International Maritime Law

Essays in Honour of Professor David Joseph Attard

Norman A. Martínez Gutiérrez

• Publisher: Routledge
• Year: 2009
• Print ISBN: 9780415563987
• eBook ISBN: 9781135183349
• Edition: 1
• Topic: Jura
• Subtopic: Völkerrecht

International maritime law is far from inert, everyday international affairs constantly test existing law and, in many occasions, require its development. Serving the Rule of International Maritime Law is thus not limited to a description of the current state of the law, but contains innovative studies on current issues and events that are testing the present state of international maritime law.

The book is intended as a Liber Amicorum to Professor David Joseph Attard. It celebrates his career in international law; he played a crucial role in establishing the IMO International Maritime Law Institute in 1988, the main purpose of which is to train lawyers in private and public international maritime law. Over the last twenty years he has continued to teach at the Institute and has played an important role in contributing to the work of international fora concerned with the development of international law.

This work represents a close collaboration amongst practitioners and academics involved in the field of international maritime law including IMO Secretary-General Efthimios E. Mitropoulos, Judge Helmut Tuerk, Professor Francis Reynolds Q.C. and Patrick J.S. Griggs CBE.

Part I contains general articles in international maritime law, Part II is dedicated to the law of the sea, and Part III is devoted to issues on shipping law.

Serving the Rule of International Maritime Law is of great interest to professionals in the shipping industry as well as practitioners, academics and students.

Part I
General

1
IMO

60 years in the service of shipping

Efthimios E. Mitropoulos
Secretary-General, International Maritime Organization

Introduction

IMO (originally known as the Inter-governmental Maritime Consultative Organization, or IMCO) held its first meeting in London in 1959. The main purposes of the Organization, as set out in Article 1(a) of its constitutive Convention, are

to provide machinery for co-operation among Governments in the field of governmental regulation and practices relating to technical matters of all kinds affecting shipping engaged in international trade; to encourage and facilitate the general adoption of the highest practicable standards in matters concerning maritime safety, efficiency of navigation and prevention and control of marine pollution from ships.

The Organization is also empowered to deal with administrative and legal matters related to these purposes.

The need for an international agency for shipping stems from the fact that shipping is perhaps the most international of all global industries. The ownership and management chain surrounding any particular vessel can embrace many different countries; the owners, operators, shippers, charterers, insurers and classification societies, not to mention the officers and crew, may all be of different nationalities and none of these may be from the ship’s country of registry. And, shipping’s prime physical assets – the ships themselves – move permanently between countries and between different jurisdictions; hence the need for universal standards that can be applied to, and recognized by, all.

Shipping is also an inherently dangerous occupation, with ships having to confront the worst that the elements can throw at them and, sometimes, disaster strikes. There is, therefore, a clear logic in favour of a framework of internationally recognized standards to regulate shipping. Without these, the ludicrous situation may arise where a ship leaves country A bound with cargo for country B, fully compliant with country A’s requirements for ship design, construction, equipment, manning and operation, only to find that country B has its own, different requirements. Clearly there has to be a common approach, so that ships can ply their trade around the world and countries receiving foreign ships can be confident that, in so doing, they do not place their own safety, security and environmental integrity at an unreasonable risk.

The recognition that the best way of improving safety at sea is by developing international treaties with regulations that can be followed by all shipping nations pre-dates the formation of IMO. From the mid-nineteenth century onwards a number of such international treaties were adopted. One example is the 1863 rules of the road at sea – known as articles – which were adopted by more than 30 maritime countries.

It was the Titanic disaster of 1912 which prompted the adoption, in 1914, of the first International Convention for the Safety of Life at Sea known then, as now, as SOLAS, after the UK had called an international conference in the wake of the disaster.

This was the first convention to lay down international rules governing the safety of shipping, including construction of ships, maintaining a 24-hour listening watch for distress alerts, and ensuring that sufficient lifeboats and lifejackets were available for everybody on board. Subsequent versions of the Convention were adopted in 1929, 1948 and – under the auspices of IMO – in 1960 and 1974. Today, albeit much revised and updated, SOLAS remains the most important of the international conventions regulating maritime safety. There are 160 countries which are Parties to the Convention and its provisions apply to almost 99 per cent of the world fleet.

But it was not until the establishment of the UN itself that a permanent international body was created and charged with the promotion of maritime safety – that body being IMO. Since its formation, IMO’s main function has been to develop and maintain a comprehensive regulatory framework for international shipping. Its mandate was originally limited to safety-related issues but, subsequently, its remit has expanded to embrace, among others, environmental considerations, legal matters, technical cooperation, issues that affect the overall efficiency of shipping – such as how to deal with stowaways or how a cargo manifest should be transmitted to the authorities ashore; piracy and armed robbery against ships, and maritime security.

Maritime safety

One of the first tasks facing the newly established IMO was to review and revise the 1948 SOLAS Convention and, in May 1960, IMO convened its first international diplomatic conference, at which a new SOLAS Convention was adopted. That Convention, which entered into force in 1965, covered a wide range of measures designed to improve the safety of shipping, including: subdivision and stability; machinery and electrical installations; fire protection, detection and extinction; lifesaving appliances; radio; the safety of navigation; the carriage of grain; the carriage of dangerous goods; and nuclear ships. The same conference also adopted a new set of International Regulations for the Prevention of Collisions at Sea, to replace the earlier regulations of 1948, as well as no less than 56 resolutions, many of them calling for action by IMO and, in effect, providing the work programme of the Organization for more than a decade.

While the intention had originally been to keep the SOLAS Convention up to date by periodically amending it, it soon became clear that the traditional amendment procedure contained in the Convention could not secure the entry into force of amendments within a reasonable period of time. To overcome this obstacle, the Convention was replaced in 1974 by a new version, which included not only the amendments agreed up to that date but also a new amendment procedure – the tacit acceptance procedure – designed to ensure that changes could be made within a specified (and acceptably short) period of time.

Instead of requiring that an amendment shall enter into force after being accepted by, for example, two-thirds of the States Parties, the tacit acceptance procedure provides that an amendment shall enter into force on a specified date unless, before that date, objections to it are received from an agreed number of Parties.

This procedure has greatly facilitated the updating of the Convention and several new chapters have been added, for example: on management for the safe operation of ships; safety measures for high-speed craft; special measures to enhance maritime safety; special measures to enhance maritime security; and additional safety measures for bulk carriers.

The 1960 Safety of Life at Sea Conference also recommended that governments should adopt a uniform international code for the transport of dangerous goods by sea, to supplement the regulations contained in the SOLAS Convention. A working group of IMO’s Maritime Safety Committee began preparing the Code in 1961, in close cooperation with the United Nations Committee of Experts on the Transport of Dangerous Goods, which had established minimum requirements for the transport of such goods by all modes of transport. The resultant International Maritime Dangerous Goods (IMDG) Code was adopted by IMO in 1965. Since then, it has undergone many changes, both in appearance and content, to keep pace with the ever-changing needs of industry. Although the IMDG Code was originally recommendatory, it quickly became the accepted standard for the shipping industry. Eventually, amendments to SOLAS, adopted in May 2002, made the IMDG Code mandatory from 1 January 2004.

It has long been recognized that limits on the draught to which a ship may be loaded make a significant contribution to its safety. The first International Convention on Load Lines was adopted in 1930, which set such limits based on the principle of reserve buoyancy. In 1966, IMO adopted a new Load Lines Convention, which included provisions to determine the freeboard of ships by subdivision and damage stability calculations.

The Convention also takes into account the potential hazards present in different geographical zones and different seasons and contains several additional safety measures concerning doors, freeing ports, hatchways and other items. The main purpose of these measures is to ensure the watertight integrity of ships’ hulls below the freeboard deck. Additionally, it requires the familiar marking of all assigned load lines and the deck line on each side of the ship.

The Convention entered into force in 1968 and has subsequently been amended on several occasions.

In a similar vein, at the time of IMO’s formation, several systems of tonnage measurement for ships had been developed over the years, but none had become universally recognized. IMO began work on this subject soon after coming into being and, in 1969, the first ever International Convention on Tonnage Measurement of Ships was adopted. It is an indication of the complexity of this subject that the Convention, which has a very high requirement for entry into force (25 States with not less than 65 per cent of the world’s gross tonnage of merchant shipping), did not receive the required number of acceptances until mid-1980. It entered into force in 1982.

When IMO was formed, the now-familiar bulk carrier, often described as the ‘workhorse’ of the world fleet, was a relatively new ship type. These relatively unsophisticated, but highly efficient ships, however, also embody inherent risks and dangers if not designed, built and operated to the highest standards. With this in mind, in 1965, IMO adopted the International Code of Safe Practice for Solid Bulk Cargoes (BC Code), which has been updated at regular intervals ever since.

Despite these measures, in the early 1990s, there was a spate of bulk carrier casualties which, because of the often dense nature of the cargoes carried by such vessels, were frequently characterized by rapid sinking and a high mortality rate among the crews involved in such incidents. By way of response to this situation, in November 1997, IMO introduced into the SOLAS Convention a special chapter on bulk carrier safety (Chapter XII), covering such topics as damage stability, structural strength, surveys and loading. At the same time, a Code of Practice for the Safe Loading and Unloading of Bulk Carriers (BLU Code) was also adopted.

Following the 1998 publication of the report into the sinking of the bulk carrier Derbyshire, IMO initiated a further review of bulk carrier safety. In 2002, amendments to SOLAS and the 1988 Load Lines Protocol were adopted and a number of further recommendations to improve bulk carrier safety were agreed. This was followed, in December 2004, by the adoption of a new text for SOLAS Chapter XII, incorporating revisions to some regulations and new requirements relating to double-side-skin bulk carriers. These amendments entered into force on 1 July 2006.

By the 1970s, it became apparent that the conventional radio spectrum used by ships to communicate with ...

Table of contents

• Contents
• Foreword
• Preface
• Table of cases
• Table of conventions
• Table of resolutions
• Table of IMO codes
• Table of EU documents
• Table of statutes
• List of abbreviations
• List of contributors
• David Joseph Attard: biographical note
• David Joseph Attard: a select bibliography
• Introduction
• Part I General
• Part II The law of the sea
• Part III Shipping law
• Index