Maritime Organisation, Management and Liability

A Legal Analysis of New Challenges in the Maritime Industry

Stephen Girvin, Vibe Ulfbeck, Stephen Girvin, Vibe Ulfbeck

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509942923
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto marittimo

This book identifies and examines the legal challenges facing the shipping industry and ship management today. It first addresses flag state rules and private international law as organisational tools of the shipowner for establishing the applicable legal framework in an age of increasing regulatory activity and extraterritorial effect of legislation. It then focuses on sustainability requirements and the liability of shipping companies managing supply chains and ships as waste. The third section considers challenges stemming from times of financial crisis and deals with the cross-border impact of shipping insolvencies, the UNCITRAL Model Law, and the approaches of different jurisdictions. Finally, the fourth section concerns digitalisation and automation, including delivery on the basis of digital release codes, bills of lading based on blockchain technology, the use of web portals and data sharing, and particular aspects of the law relating to autonomous ships, notably in marine insurance and carriage of goods. The book will be a useful resource for academics and practising lawyers working in shipping and maritime law.

Management and Organisation of Shipping Enterprises: Public and Private Law Framework

1

Nationality Requirements: Flag State Rules from an International Law Perspective

YOSHIFUMI TANAKA^*

I.Introduction

The aim of this chapter is to examine the issue of the nationality of a ship from the viewpoint of public international law. In international law, the nationality of a ship performs a dual function. The first is to establish the juridical link between a state and a ship flying its flag, and the second is to provide a basis for claims of a flag state before an adjudicatory body. The dual function of the nationality of a ship can be amplified as follows.

First, as there is no centralised authority governing the high seas in the international community, the legal order on the high seas is secured primarily by the flag state, that is, the state which has granted a ship the right to sail under its flag. The principle of the exclusive jurisdiction of the flag state is the key to the maintenance of legal order on the high seas.¹ That principle is provided in article 92(1) of the UN Convention on the Law of the Sea (hereinafter the LOSC):² ‘Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas’. It could well be said that the principle of the exclusive jurisdiction of the flag state is part of customary international law. In international law, the role of that principle is twofold. First, by preventing any interference by other states with vessels flying its flag on the high seas, that principle ensures the freedom of activity of vessels on the high seas. Second, the flag states undertake responsibility for securing compliance with national and international laws regulating activities of ships flying its flag on the high seas.³ While the obligations of the flag state are diverse,⁴ article 94(1) obliges every state to ‘effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag’. In exercising the exclusive jurisdiction over vessels flying its flag, the nationality of a ship is of critical importance since it provides a basis for establishing the juridical link between a flag state and a ship flying its flag.⁵

Second, the exclusive jurisdiction of the flag state comprises both legislative and enforcement jurisdiction over vessels flying its flag. Accordingly, the flag state exercises enforcement jurisdiction over all peoples within its ships flying its flag regardless of their nationalities. In the words of the International Tribunal for the Law of the Sea (ITLOS): ‘the ship, everything on it, and every person involved or interested in its operations are treated as an entity linked to the flag State. The nationalities of these persons are not relevant’.⁶ In light of this, the flag state is entitled to make claims against other states in case of damage to its ship or injury to the seamen manning it, regardless of their nationality.⁷ Thus the nationality of a ship provides the basis for making claims by the flag state before an international court or tribunal.

An issue that needs further consideration concerns the requirements to grant the nationality to a ship. Under article 91 of the LOSC:

1.Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship.

2.Every State shall issue to ships to which it has granted the right to fly its flag documents to that effect.⁸

Article 91 leaves to each state considerable discretion to decide requirements for granting its nationality to vessels. In the words of ITLOS: ‘Determination of the criteria and establishment of the procedures for granting and withdrawing nationality to ships are matters within the exclusive jurisdiction of the flag State’.⁹ However, it is not suggested that the right of states to grant their nationality to ships is without limitation.¹⁰ First, ships must sail under the flag of one state only in accordance with article 92(1) of the LOSC as well as customary international law.¹¹ It would seem to follow that a state may not grant its nationality to a ship which has already been granted the nationality of another state. Second, the right of the state to grant its nationality to vessels may also be qualified by specific treaties, such as the United Nations Convention on Conditions for Registration of Ships.¹² Third, and importantly, there must exist a genuine link between the state and the ship.

In reality, it is not uncommon for the nationality of a ship to be disputed by one of the disputing parties in international adjudication. In such cases, the question associated with the nationality of a ship may be subject to the dispute settlement procedures under Part XI of the LOSC.¹³ When considering the requirements for the flag state to grant its nationality to a ship, four issues arise:

(1)How is it possible to verify the validity of the nationality of a ship?

(2)What are the elements necessary to establish a genuine link between a flag state and a ship?

(3)Is it possible for non-flag states to refuse to accept the nationality of a ship because of the absence of a genuine link?

(4)What are the implications of change of ownership of a ship for the nationality of the ship?

The jurisprudence of ITLOS sheds some light on those issues. Thus this chapter examines the four issues by analysing the jurisprudence of ITLOS. Following the Introduction, section II addresses the issue of verification of the nationality of a ship in international adjudication. Section III then considers the elements necessary to establish a genuine link between a flag state and a ship and the non-recognition of the nationality of a ship because of the absence of a genuine link between an alleged flag state and a ship. Section IV moves on to address the legal effect of change of ownership of a ship on the nationality of the ship. Finally, conclusions are presented in section V.

II.Verification of the Nationality of a Ship

As noted, the flag state is entitled to make claims with regard to a vessel flying its flag before an international court or tribunal. However, not infrequently, a defendant state disputes the validity of the nationality of a flag state granted to a ship concerned in international adjudication with a view to challenging the locus standi of the applicant state, the flag state. In that case, an international court or tribunal has to decide whether the ship concerned has the nationality of the flag state at the time of application. In this connection, two cases merit discussion: the M/V Saiga (No 2) and the Grand Prince.

A.The M/V Saiga (No 2) (1999)

A central issue of the M/V Saiga (No 2) related to the legality of supplying gas oil to fishing vessels in the exclusive economic zone (EEZ) of a third state. An oil tanker, the Saiga, was provisionally registered in Saint Vincent and the Grenadines on 12 March 1997.¹⁴ On 24 October 1997, the Saiga supplied gas oil to three fishing vessels at the point of approximately 22 nautical miles from Guinea’s island of Alcatraz. Subsequently the ship sailed towards another location. On 28 October 1997, the Saiga was awaiting the arrival of fishing vessels to which it was to supply gas oil in the south of the southern limit of the EEZ of Guinea. Yet the Saiga was arrested by a Guinean patrol boat and the ship and its crew were brought to Conakry, Guinea. The Master and six crew members – all of U...