1. introduction to maritime law

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Introduction to Maritime

Law


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Objective

At the end of the course, participantsshould be able to:

Explain the basis of maritime law and

international conventions. Differentiate between areas established by

UNCLOS.

Apply provisions of SOLAS; ILLC; ISMCode; STCW; ICTM; MARPOL; Port StateControl.


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Maritime Legislation

Competence: Ensure compliance with

pollution prevention requirements; and

monitor compliance with legislative

requirements.

Aim: To meet the mandatory minimum

requirements for knowledge,

understanding and proficiency outlined inthe STCW 95 Convention.


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International Conventions

The adoption of international conventions andagreements is intended to apply uniform practiceinternationally; hence doctrine of no more favourabletreatment provides a level playing field in the application

of international conventions. Conventions are developed from a recognized need

resulting from an existing situation or to prevent eventsfrom occurring. A recommendation has to be made by aCommittee or Sub-committee of IMO. As a result of the

deliberations of the committee, draft regulation areprepared and a diplomatic conference is convened toreview, discuss, modify and eventually adopt the treaty.


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Introduction

Law is a set of rules which forms orpermits the pattern of behaviourconsidered desirable within a given

society.

law exists to make people do what they

should be doing anyway

(William ONeil, IMO Secretary General, Fairplay, March 1997.


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Classification of Law

International Law: deals mainly with foreignaffairs of a State vis--vis other States.

Principles, customary practices, treaty customs,rules and contractual arrangements which

nations have consented to observe as legallybinding in their dealing with each other.

(example: law found in the decisions ofinternational courts)

International law is primarily based on sovereignconsent rather than on enforcement by a higherauthority.


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Municipal Law

Municipal law regulates the States internal

affairs.

Relationship between individuals or

relationships between individuals and their

Governments.

Municipal Law is subdivided into private

law and public law.


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Private Law

This is concerned with disputes among private

citizens or private organizations, such disputes

may arise out of a contract or wrongful act or a

business transaction or family disputes over theproperty ownership. Common areas are:

- commercial law

- estate law

- securities law

- labour law


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Public Law

In the most general sense, public law involvesrelations between private citizens ororganizations and government.

Protection of the citizen against arbitrary acts of

executive or administrative bodies; the validity oflegislation and governmental regulation of tradeand commerce. Main areas of public law are:

- Constitutional law

- Administrative law- Taxation law

- Criminal law


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Maritime Law

Maritime law also referred to as Admiralty law is thelaw of the sea. It covers all marine activities onnavigable waters of any State and on all internationalwaters.

The primary source of maritime law are customarypractices which have been accepted as the norm.(freedom on the high seas; right to innocentpassage)

Maritime law encapsulates parts of internationalpublic law, international private law and private and

public national law. If maritime law is to have any effect, it has to be

enforced. Enforcing powers are effected when thelaws are incorporated into national legislation.


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International Conventions

A treaty adopted by a diplomaticconference is expected to have globalapplication, hence theses conferences are

open to all IMO member States. Other groups are invited to attend but they

do not have a say in the decision making.

Each State sends accreditedrepresentatives to the diplomaticconference to participate on their behalf.


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International Convention

The delegate may sign on behalf of hisGovernment, subject to ratification,acceptance or approval by the State.

A convention usually remains open forsignature for a prescribed period. Statesthat did not attend the diplomaticconference may become party to theconvention by submitting an instrument ofaccession.


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Entry into Force

Each Convention includes criteria stipulating

conditions that have to be met before it

enters into force. These conditions vary;

however, the more complex , the morestringent the conditions for entering into

force.

The tacit acceptance procedure requires

that amendments enter into force on aspecified date unless an agreed number of

States object by the agreed date.


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Main Organizations

The following organizations are the main

ones that generate maritime law that is

applicable on an international basis:

International Maritime Organization

International Labour Organization

United Nations


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no more favourable treatment

The concept of nmft is based on the

principle that all parties should apply the

provisions of nmft to ships of non-Parties

and ships below convention size in orderto ensure that equivalent surveys and

inspections are conducted and an

equivalent level of safety and protection ofthe marine environment are ensured.


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Flag State Jurisdiction

A State that allows the registration of vessels under its flag hasthe jurisdiction and control in administrative, technical andsocial matters over the ships flying its flag.

This obligation is necessary to ensure safety at sea with regardto:

- construction- maintenance and seaworthiness

- manning

- prevention of collisions

The monitoring of such vessels requires that the vessels

are appropriately surveyed for their condition, equipment

and manning. In general, the flag State has the duty to take anysteps in ensuring that the vessels under its flag observeinternational

regulations, procedures and practices.


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Coastal State Jurisdiction

A State having a coastline is entitled underinternational law to take steps to protect itsown interest. A Coastal State has

jurisdiction over four main zonesrecognized by UNCLOS.

- internal waters

- territorial sea- contiguous zone

- EEZ


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Port State Jurisdiction

A port State shall be deemed to be any port that a vesselof foreign flag visits.

The foreign flag vessels has the obligation to obey all thenational laws of the State while in port.

The port State has the authority to enforce anti-dumpingand anti-pollution measures and to take administrativemeasures to prevent errant vessels from sailing.

Port States through their maritime authorities have moremodern, effective and direct powers of PSC inspection.(SOLAS , MARPOL, LL, Registration, STCW)


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Examination Questions

Explain the doctrine of no more

favourable treatment

Identify the legal machinery under public

maritime law for enforcing conventions

and outline the mechanisms used for

enforcement.

1. introduction to maritime law

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