FLAG STATE’S DUTIES FOR ENSURING THE IMPLEMENTATION OF THE SAFETY RULES

FLAG STATE’S DUTIES FOR ENSURING THE IMPLEMENTATION OF THE SAFETY RULES

ABSTRACT

The principle of flag state jurisdiction, which is Predominant in the maritime law, is based on the assumption that the ship is floating part of the flag state’s territory thus arise flag state’s duties for ensuring the implementation of the safety rules. Consequently, this would be Quasi-territorial jurisdiction. The Flag State’s jurisdiction is undeniably linked to the developments that have been brought to the concepts of nationality, ship registration, safety and International Communities effort to set rules and standard to govern the shipping sector.

PRELUDE

Several provisions of UNCLOS provide the jurisdictional framework for the adoption and implementation of safety of navigation rules and standards. UNCLOS establishes the basic features relating to the exercise of flag State jurisdiction in the implementation of safety regulations. It also regulates the extent to which coastal States may legitimately interfere with navigation by foreign ships in different maritime zones for the purpose of ensuring proper compliance with safety regulations.

Article 94 of UNCLOS deals with the flag state’s measures for ensuring safety at sea which conform to “generally accepted international regulation, procedures and practices”. The article is as follows:

“3. Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to: (a) the construction, equipment and seaworthiness of ships; (b) the manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments; (c) the use of signals, the maintenance of communications and the prevention of collisions.

Such measures shall include those necessary to ensure:

(a) that each ship, before registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships, and has on board such charts, nautical publications and navigational equipment and instruments as are appropriate for the safe navigation of the ship;

(b) that each ship is in the charge of a master and officers who possess appropriate qualifications, in particular in seamanship, navigation, communications and marine engineering, and that the crew is appropriate in qualification and numbers for the type, size, machinery and equipment of the ship;

(c) that the master, officers and, to the extent appropriate, the crew are fully conversant with and required to observe the applicable international regulations concerning the safety of life at sea, the prevention of collisions, the prevention, reduction and control of marine pollution, and the maintenance of communications by radio.

In taking the measures called for in paragraphs 3 and 4 each State is required to conform to generally accepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance.”

CONSTRUCTION, EQUIPMENT AND SEAWORTHINESS OF SHIPS

Article 94(3)(a) of UNCLOS imposes upon flag States the obligation to ensure safety at sea on the high seas with regard to the construction, equipment and seaworthiness of ships. A further specification in relation to this obligation is provided in paragraph 4(a) of the same article, which indicates that measures to be taken by flag States must include those necessary to ensure “that each ship, before registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships, and has on board such charts, nautical publications and navigational equipment and instruments as are appropriate for the safe navigation of the ship”. Paragraph 5 provides that in taking such measures “each State is required to conform to generally accepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance”. This obligation also applies to the EEZ (article 58(2)). Article 217(2) of UNCLOS extends the scope of article 94(3) to the protection of the marine environment. It requires the flag State to ensure that its vessels are prohibited from sailing until they can proceed to sea in compliance with the requirements of international rules and standards with regard to design, construction and equipment of vessels. UNCLOS provides in its article 21(2) that the coastal State must not impose on foreign ships in innocent passage through its territorial sea, laws and regulations applicable to the design, construction, and equipment of foreign ships “unless they are giving effect to generally accepted international rules or standards”.

SOLAS 1974 and the SOLAS Protocol of 1988 regulate minimum standards for the construction, equipment and operation of ships, in regard to aspects such as subdivision and stability, machinery and electrical installations, fire protection, detection and extinction, life-saving appliances and arrangements and radio-communication. The regulations provide for surveys of various types of ship (oil carriers, gas and chemical tankers, passenger ships, ro-ro ferries, etc.), Load Lines 1966 and the Load Lines Protocol of 1988 determine the minimum freeboard to which a ship may be loaded, including the freeboard of tankers, taking into account the potential hazards present in different climate zones and seasons.

Fishing Vessel Safety: Construction and equipment requirements for the safety of fishing vessels are contained in the 1977 Torremolinos Convention as amended by the 1993 Torremolinos Protocol. The entry into force of the Torremolinos Protocol would make a significant contribution to maritime safety in general (and that of fishing vessels in particular) and also that the continuing and alarmingly high number of fishermen’s lives and of fishing vessels reportedly lost every year could be substantially reduced by the global, uniform and effective implementation of the Protocol.

Goal-based new ship construction standards: The standards are intended to ensure that hull standards developed by classifications societies and other recognized organizations conform to the safety goals and functional requirements established by IMO.

Other safety-related IMO instruments:  IMO has adopted numerous recommendations, guidelines, and codes concerning the construction, equipment, and seaworthiness of ships.

Automatic identification system (AIS): The revised chapter V also makes it mandatory for certain ships to carry an automatic identification system (AIS). Regulation 19 of the chapter V of SOLAS – Carriage requirements for shipborne navigational systems and equipment – sets out navigational equipment to be carried on board ships, according to ship type

Long range identification and tracking (LRIT): SOLAS regulation V/19-1 on Long range identification and tracking (LRIT) of ships, adopted in 2006, established a multilateral agreement for sharing LRIT information amongst SOLAS Contracting Governments for security and search and rescue (SAR) purposes.

Carriage requirements for shipborne navigational systems and equipment: SOLAS regulation V/19.2.1.4 also provides that an electronic chart display and information system (ECDIS) may be accepted as meeting its chart carriage requirements.

Construction, fire protection, fire detection and fire extinction: SOLAS chapter II-2 includes fire safety requirements applicable to all and/or specific ship types and is amended routinely to keep the regulations up to date with the latest technologies and to incorporate lessons learned from marine casualties.

MANNING OF SHIPS AND TRAINING OF CREWS

UNCLOS provides, in article 94(3)(b), that every State must take the necessary measures to ensure safety at sea with regard to “the manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments”. Paragraph 4(b) specifies that such measures must ensure “that each ship is in the charge of a master and officers who possess appropriate qualifications, in particular in seamanship, navigation, communications and marine engineering, and that the crew is appropriate in qualification and numbers for the type, size, machinery and equipment of the ship”.

SOLAS 1974 imposes a general obligation on flag States to ensure, for the purpose of safety of life at sea, the appropriate manning of the ship.

STCW 1978, as amended, contains a comprehensive set of international regulations with regard to training and certification of personnel. This Convention establishes minimum requirements for training, qualifications and seagoing service for masters and officers and for certain categories of ratings, such as those forming part of a navigational watch or engine-room watch on oil, chemical or liquefied gas tankers and passenger ships.

Training and certification of fishing vessel personnel: STCW was adopted  to provide considerable benefits and advantages to the fishing industry, i.e. improving the quality of education and training provided to personnel employed in fishing vessels; thereby enhancing the standard of training and safety in the fishing industry and fishing vessel fleets.

SIGNALS, COMMUNICATIONS AND PREVENTION OF COLLISIONS

To ensure safety on the high seas and in the EEZ, the flag State, in its exercise of jurisdiction, must take such measures as are necessary regarding “the use of signals, the maintenance of communications and the prevention of collisions” (articles 94(3)(c) and 58(2)). These measures must conform to “generally accepted international regulations, procedures and practices”, and each State is required to take the necessary steps to secure their observance (article 94(5)).

Rules on signals : Under SOLAS regulation V/21, all ships that are required to carry radio installations shall carry the International Code of Signals. Any other ship which, in the opinion of the Administration, has a need to use it, shall carry it as well.

Regulations for the prevention of collisions at sea : Regulations for the prevention of collisions at sea are found in COLREG 1972, which deals with steering and sailing rules, lights and shapes, and sound and light signals.

SHIPS’ ROUTEING

SOLAS regulation V/10 states that “all adopted ships’ routeing systems and actions taken to enforce compliance with those systems shall be consistent with international law, including the relevant provisions of the 1982 United Nations Convention on the Law of the Sea”. Also UNCLOS provides that States bordering straits are entitled to designate sea lanes and traffic separation schemes or, as appropriate, substitute them in order to promote the safe passage of ships in straits used for international navigation (article 41(1) and (2)).

SHIP REPORTING

IMO resolution A.857(20) contains guidelines for establishing vessel traffic services (VTS), including guidelines on recruitment, qualifications and training of VTS operators. SOLAS regulation V/11 enables States to adopt and implement mandatory ship reporting in accordance with guidelines and criteria developed by IMO.

PASSENGER SHIPS

In 2006, the MSC (Maritime Safety Committee) adopted a large package of amendments to SOLAS, which were developed as a result of a comprehensive review of passenger ship safety initiated in 2000 with the aim of assessing whether the current regulations were adequate, in particular for the large passenger ships being built.

NUCLEAR-POWERED SHIPS AND SHIPS CARRYING DANGEROUS CARGO

Article 22(2) of UNCLOS empowers coastal States to confine the passage of foreign nuclear-powered ships and ships carrying dangerous cargoes in the territorial sea to the sea lanes, which, in accordance with paragraph 1 of the same article, these States are entitled to establish in respect of ships exercising the right of innocent passage.

According to regulation VIII/10 of SOLAS, a certificate shall be issued to a nuclear ship which complies with the requirements of this Convention. Also the Ships carrying dangerous cargo are subject to chapter VII of SOLAS, which regulates safety measures, including safe packaging and stowage, applicable to the carriage of dangerous goods by sea.

OFFSHORE INSTALLATIONS

UNCLOS  establishes the jurisdiction of coastal States regarding the establishment and use of artificial islands, installations and structures. Article 60(4) of UNCLOS provides that States may, when necessary, establish reasonable safety zones around artificial islands, installations and structures “in which it may take appropriate measures to ensure the safety both of navigation and of the artificial islands installations and structures”.

NAVIGATIONAL AIDS AND FACILITIES

the coastal State has legislative jurisdiction over innocent passage through the territorial sea with regard to the protection of navigational aids and facilities and other facilities or installations (article 21(1)(b), UNCLOS).

RULES ON ASSISTANCE

Article 98 of UNCLOS deals with the duty regarding rendering assistance. The obligations to render assistance and to proceed to the rescue of persons in distress is contained in two IMO treaty instruments. SOLAS stipulates the general obligation of the master of a ship to proceed, where necessary, with all speed to the assistance of a ship, aircraft, or survival craft in distress. The 1989 International Convention on Salvage lays down in article 10, the duty of a ship’s master to render assistance to any person at sea in danger of being lost. A specific legal framework for the obligations relating to search and rescue is established in the International Convention on Maritime Search and Rescue, 1979 (SAR). This Convention requires States Parties to establish services for search and rescue of persons in distress, although these are limited to the area around the coasts (rule 2.1.1).

ILLICIT ACTS

UNCLOS provides the legal framework for the repression and suppression of unlawful acts committed at sea in the various maritime zones. It also contains specific provisions to address piracy, illicit traffic in narcotic drugs or psychotropic substances, the slave trade and unauthorized broadcasting from the high seas.

In addition, Articles 100 to 107 of UNCLOS reaffirm the duty and obligation of every State to cooperate in the repression of piracy. Moreover, Article 108 of UNCLOS imposes upon States the duty to cooperate in the suppression of illicit drug trafficking engaged in by ships on the high seas. Article 58(2) makes this obligation applicable to the EEZ. Furthermore, Article 108 of UNCLOS imposes upon States the duty to cooperate in the suppression of illicit drug trafficking engaged in by ships on the high seas. Article 58(2) makes this obligation applicable to the EEZ.

To note, the new SOLAS regulations require all ships to be provided with a ship security alert system. When activated, the ship security alert system must initiate and transmit a ship-to-shore security alert to a competent authority designated by the Administration, identifying the ship and its location and indicating that the security of the ship is under threat or has been compromised.

 

REFERENCES

  1. Churchill, R. and A. Lowe, (1999). The Law of the Sea. 3rd ed. Manchester: Manchester University Press.
  2. Grime, R. (1991). Shipping Law. 2nd ed. London: Sweet and Maxwell.
  3. Hosanee, N. (2008). A Critical Analysis Of Flag State Duties As Laid Down Under Article 94 Of The 1982 United Nations Convention On The Law Of The Sea. [Online] Nivedita M. Hosanee. Available from:
  4. http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/hosanee_0910_mauritious.pdf [Accessed 20 Oct. 2014].
  5. ROLE AND RESPONSIBILITIES OF FLAG STATES UNDER UNCLOS III. Available from: https://www.researchgate.net/publication/279748889_ROLE_AND_RESPONSIBILITIES_OF_FLAG_STATES_UNDER_UNCLOS_III.
  6. https://www.linkedin.com/pulse/20140725211904-38705267-the-role-of-the-flag-state-in-vessel-sea-safety-and-marine-security
  7. http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/hosanee_0910_mauritious.pdf
  8. http://www.un.org/depts/los/consultative_process/mar_sec_submissions/imo.pdf
  9. http://iamu-edu.org/wp-content/uploads/2014/07/New-Roles-and-Responsibilities-of-Flag-States-and-Port-States-in-the-Context-of-the-Hong-Kong-International-Convention-for-the-Safe-and-Environmentally-Sound-Recycling-of-Ships.pdf
  10. http://www.imo.org/en/About/Conventions/ListOfConventions/Pages/Default.aspx
  11. http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1171&context=jibl
  12. http://iamu-edu.org/wp-content/uploads/2014/07/Potential-problems-and-solutions-for-implementing-international-and-national-regulations-and-rules-to-comply-with-the-objectives-of-a-Maritime-Safety-Management-System.pdf
  13. http://www.imo.org/en/OurWork/Legal/Documents/LEG%20MISC%208.pdf

     

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Upal Aditya Oikya

Upal Aditya Oikya

Upal Aditya Oikya, currently enrolled in LL.M Maritime Law Program of Bangabandhu Sheikh Mujibur Rahman Maritime University. He has concluded his LL.B (Hon’s) from BRAC University. He is the founding President of UNESCO Club, BRAC University, Dhaka; also the founder of Surdhuni Library. He can be reached at aditya.oikya@gmail.com
Upal Aditya Oikya

Upal Aditya Oikya

Upal Aditya Oikya, currently enrolled in LL.M Maritime Law Program of Bangabandhu Sheikh Mujibur Rahman Maritime University. He has concluded his LL.B (Hon’s) from BRAC University. He is the founding President of UNESCO Club, BRAC University, Dhaka; also the founder of Surdhuni Library. He can be reached at aditya.oikya@gmail.com

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