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Maritime Law-Ships and their Flags

Registering a ship simply means giving identity to the ship. In order to regulate and control the ship's activities the International maritime community have favored for the concept of nationality of ships. The nationality of ships could be identified by the Flags they fly and the states whose flag the ship flies will have jurisprudence over the ship and shall be liable to follow all duties which are expected to be followed in consonance with the International conventions and IMO circulars and other regulations.

Under International law a Flag State means the State which has granted to a ship the right to sail under its flag [i] Flying a symbol on the ships have been followed since time immemorial, it is believed that ancient Greeks used to fly colored ribbons to distinguish a ship from another.

However it is only in the middle ages that a flag was flied on the ship to denote a nation or port or its nationality[ii]. As Znameirowski 2004, p.88 (citing Smith 1970) rightly puts forth:
At sea, flags became a necessity from the first time a ship ventured out of its home waters. Wherever men have sailed on the oceans their flags have indicated their nationality and allegiance and the ship without a flag has justly been recognized in international law as a pirate.

Art-92 of UNCLOS define the status of ships wherein ships are required to fly flag of one state only and ships sailing under flags of two or more states, using them according to their convenience are considered as ships without nationality.

The law on ship registration, which eventually acted as a model for most maritime administrations, was consolidated in 1823 under the Registering of British Vessels act and this act has since been further incorporated into the primary maritime Acts of Britain and most States. In India ship registrations come under the Indian Merchant shipping act 1958.

Only Indian citizens and entities registered in India can hold a vessel registered in India or flying an Indian flag ( National or closed registry) unlike popular shipping open registries like Panama , Liberia, Marshall Islands, Bahamas etc where the registration is open to foreign nationals as well. Panama is the registered flag of more than a quarter of the world's ocean going tonnage registered[iii].

Flag state jurisdiction was initially considered in the High Sea Convention 1958 and later reworded in the Law of the sea convention. Under Article 91 of UNCLOS every state shall fix the conditions for the grant of its nationality to ships, for the registration of ships and to fly its flag. However this particular article requires the necessity of a ‘Genuine Link' between the state and the ship which is seen missing in open-registries.

The topic for this article is not about why an entity or ship-owner might choose a particular flag, rather about what might be the duties of these flag states towards their subjects. Article 94 of the UNCLOS enumerates the duties to be followed which include exercising the flag state jurisdiction and control in administrative, technical and social matters. Particularly every state issuing the registration certificate shall maintain a Register of ships including the names and particulars of ships flying its flag and other requirements.

The flag state shall also assume jurisdiction over every ship bearing its flag, its crew and master when in high seas and otherwise with respect to administrative, technical and social matters concerning the ship. It is also the key duty of the flag state to ensure that the vessels registered with the state holds the certificates considered essential to sail through High seas.

The flag state shall also carry out necessary investigation when a foreign state reports any incident where its vessels have exercised illegal activities or have not been in compliance with any of the International standards.

Few of the most important statutory regulations issued by IMO demanding compliance are :- The International Convention for the safety of Life at Sea (SOLAS) 1974 (includes the International Safety Management (ISM) Code, The International ship & port facility security (ISPS) Code), The international convention on standards of training, certification and watch keeping (STCW).

The Maritime labour convention 2006. Although it is the IMO which regularly brings forth amendments with respect to the above conventions, ensuring compliance of these regulations falls completely with the flag state.

The rationale behind the SOLAS convention is to regulate and establish certain rules pertaining to the equipments used in ships, rules relating to safe construction of ships, rules for safety equipments with which the ships are required to be fitted and ensuring safety of life at sea[iv].

This convention also particularly deals with certain regulations and standards in the operation of ships to evade accidents. The flag state in order to ensure its duty under SOLAS should have the ships intending to fly its flag surveyed before registration and further surveying vessels in regular intervals as prescribed under SOLAS and issuing certificates of that nature.

The International safety Management Code (ISM) was inserted to SOLAS in 1993 to ensure safety at sea and protection of marine environment by preventing pollution. This code is mandatory for all types of ships excluding only warships, auxiliaries or other government operated ships used for non-commercial purposes[v].

The certifications, verification, control and compliance is under the flag states and they should administer the issuance of regulatory certificates such as (DOC) document of compliance, (SMC) Safety Management Certificate etc.

Later the International ship & port facility security (ISPS) Code was inserted to SOLAS in 2002 adding more duties to the flag state considering the ongoing terrorist activities during the period of amendment. This code basically requires certain modifications in ship to ensure security and accordingly every ship should carry on board an International ship security certificate issued by the flag state showing compliance of the security standards enlisted in the ISPS Code. Usually the shipping registry will have the issuance of certificates delegated to some independent authorities eg: Classification Society.

The (STCW) The international convention on standards of training, certification and watch keeping is a convention for administering and regulating an international standard for training and competency for seafarers. The flag state duties under the STCW include administration of training for seafarers to meet international standards as prescribed in the convention, Issuance of certificates, spreading awareness amongst ship owners with respect to the convention etc. Under the STCW the flag states are required to have an infrastructure with respect to: Legislation, Document procedures, Compliance administration and record keeping[vi].

Maritime labour convention 2006 too imposes certain duties on the flag states including those which specifically deal with procedures in conducting inspections and certifications to verify compliance with the requirement of the MLC 2006. To comply with the convention the International labour organization has issued guidelines to the flag states providing advice pertaining to ship inspections and certifications and other compliance requirements[vii].

Other conventions which adds duties (administration, certification, surveys) to the flag states and port states include the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78); the Convention on International Regulations for Preventing Collisions at Sea (COLREG) 1972; the International Convention on Load Lines (LL) 1966; and Illegal Unreported and Unregulated (IUU) fishing. Few other general duties of flag states include issuance of license for restricted articles on board a ship.

Eg: Carrying arms and ammunition on board a commercial vessel requires license from the flag state; cooperating with international organizations, port states and ship owners for the smooth functioning of International shipping, training the master of its ships to render assistance to vessels or persons in distress at sea (Art 98 UNCLOS), Cooperating with international organizations and foreign fleets to combat piracy(Art 100 UNCLOS), cooperating with international organizations and other authorities in suppressing the illicit traffic of narcotic drugs or psychotropic substances (Article 108 UNCLOS).

Basically the conventions do not restrict the ambit of flag states rather it broadens the burden on flag states to comply with current IMO regulations and future regulations and amendments with respect to safety, environmental and ancillary matters.

While the duties of flag states are enumerated in Article 94, the enforcement of measures taken with regard to Article 94 is enumerated in Article 217 of the convention which includes strict liability on vessels flying the flag of the state to sail only with required certificates, equipments, adequate manning and other standards issued by IMO through various circulars and conventions discussed above.

Under Article 217 the flag states should enforce measures to adopt laws to reduce and prevent pollution; they are also required to investigate upon their subject ships that violate International Pollution laws. The flag states are also required to provide for strict penalty on vessels which do not comply with the conventions and other strict requirements issued by IMO from time to time.

Despite the International Legal backing the flag states, especially open registries are too lenient on their subjects and it is indeed true that some ship registrations require hardly a day and have been waiving most of the strict International terms under which a vessel should be registered and this is affecting the International shipping community at large.

Perhaps it is time to give more importance to the Genuine link required under Article-91 for ships to register under a particular flag or to ratify the United Nations convention on Registration of ships 1986 (not in force as minimum countries required to ratify is 40 and till date only 14 have signed the treaty) which requires the ship to have a link to the flag state in which it intends to register. Hopefully creating this nexus between the ship and the flag state and imposing strict penalties on flag states for non-compliance might solve the lenient attitude of open –registries towards their subjects.

End-Notes:
  1. Churchill and Lowe 1999 , p. 208
  2. The first national flags used by ships seem to have been the English cross of St George and the Danish dannebrog in northern Europe; the Genoese cross of St George and the Venetian lion of St Mark in the Mediterranean region. J.N.K Mansell - Flag State Responsibility Published Edinburgh 1813
  3. http://www.theshippinglawblog.com/2011/04/article-worlds-top-ship-registries-flag.html
  4. International regulations for ship operators,their verification and enforcement-Richard Pilley & Filippo Lorenzon
    Southampton on shipping law (2008) p.227
  5. www.imo.org
  6. International regulations for ship operators,their verification and enforcement-Richard Pilley & Filippo Lorenzon Southampton on shipping law (2008) p.239
  7. www.ilo.org

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