LEGISLATIVE REQUIREMENTS

LO1. Explain the background of

maritime laws

Introduction to Maritime Law
Maritime law may be roughly divided into two
parts the commercial part and the
operational part.
When dealing with commercial maritime
law most of the law that has been embodied is
old customary law that is law that has been
followed through usage over a period of time.
These laws were framed maybe a century or
two ago by commercial trading houses like
Lloyds in their agreement for trade and
carriage of goods.
Newer versions always are incorporated in
them, these are frequently employed in the
bills of lading and the clauses may vary from
one bill of lading to the other.
However statute law is more rigid and has
been evolved for principally safety of the
persons employed on the ships further the
marine environment has been added to that
list.
A broad division may be made as statute
law harm to humans on the ship (today
inclusion of marine life).
Most of the statute laws are agreed upon
through the conventions between international
member states. The first of the convention
appeared over a century ago and dealt with
overloading of ships and towards the
collision between ships both arose over
excessive human life being lost.
The following header shows how a
Convention is adopted as a National Law in
a state.
In this case the Australian Parliament has
enacted the IBC as a law in Australia.

*The IBC Code provides an international
standard for the safe carriage by sea of
dangerous and noxious liquid chemicals in
bulk.
Begin Header
DEPARTMENT OF FOREIGN AFFAIRS
CANBERRA
Select Documents on International Affairs
No. 31 Volume II (1983) 2. page 105
Amendments to the International Convention
for the Safety of Life at Sea of 1 November
1974: International Code for the Construction
and Equipment of Ships carrying Dangerous
Chemicals in Bulk
(London, 17 June 1983)
Australian Government Publishing Service
Canberra, Commonwealth of Australia 2000
ADOPTION OF THE INTERNATIONAL
CODE FOR THE CONSTRUCTION AND
EQUIPMENT OF SHIPS CARRYING
DANGEROUS CHEMICALS IN BULK (IBC
CODE)
End Header
In this law the conventions have been
referenced to:

Begin Extract:
THE MERCHANT SHIPPING ACT, 1958
NO.44 OF 1958
[30th October, 1958]
An Act to foster the development and ensure
the efficient maintenance of an Indian
mercantile marine in a manner best suited to
seven the national interests and for that
purpose to established a National Shipping
Board and a Shipping Development Fund, to
provide for the registration of Indian ships and
generally to amend and consolidate the law
relating to merchant shipping.
Be it enacted by Parliament in the Ninth Year
of the Republic of India as follows:-
PART I
PARAMILITARY
1.Short title and commencement.- (1) This
Act may be called the Merchant Shipping Act,
1958.
3.Definitions.- In this Act, unless the context
otherwise requires,-
(3) collision regulations means the
regulations made under section 285 for the
prevention of collisions at sea;
(5) Country to which the Load Line
Convention applies means,-
(a) a country the Government of which has
been declared or is deemed to have been
declared under section 283 to have accepted
the Load Line Convention and has not been so
declared to have denounced that Convention;
(b) a country to which it has been so
declared that the Load Line Convention has
been applied under the provisions of article
twenty-one thereof, not being a country to
which it has been so declared that that
Convention has ceased to apply under the
provisions of that article;
(20) Load Line Convention means the
Convention signed in London on the 5th day of
July, 1930, for promoting safety of life and
property at sea, as amended from time to time;
(37) Safety Convention means the
Convention for the Safety of Life at Sea signed
in London on the 10th day of June 1949, as
amended from time to time;
End of extract
Since most of the coastal states and most of
the landlocked states indulging in global
trading and shipping are members of the UN,
therefore it is also a case where these
countries are also party to the various
conventions that are set up by the UN as
separate bodies.
An International convention once set up by
the UN goes into the specific matter on which
it has to deliberate, and after coming to a
conclusion taking into account the opinion
from the various member states and the
specialists in the field come out with the final
draft which is presented at the conference.
The member states are represented by their
official representatives and they put down their
countries as having been witnesses to the final
passing of the conference,
However this is just that the convention is
accepted. The representatives take the copies
of the conventions and the convention again
are scrutinized by the member stets experts in
the field as well as by legal and financial
experts.
Since the adoption could have meant a
variety of expenditure.
Once satisfied about the contents of the
convention the member state, enacts an act of
parliament which may give reference to the
convention or may publish the entire
convention as an act of parliament.
Thus this convention now becomes the low
of the land in that member state. The
information is passed on to the UN body and
the member state thus ratifies the convention.
Regarding disagreement on the clauses to
the convention the member state informs the
UN body about its reservations. If many such
reservations come in then the UN body may
ask for an overall look again in the convention.
Other repealing measures are as stated
below which is set out in the convention
document itself.
A sample of an international convention:
Please read the lines in bold. Wherein a state
is allowed the pleasure of agreeing to the local
unions requirement which may be contrary
to the convention but would be enhanced
from those of the convention.
Another part refers to the repealing of the
law/ convention by a member state after a
period of 10 years from the date of ratification.
Begin extract
ILO Convention (No. 180) concerning
Seafarers Hours of Work and the Manning of
Ships (Geneva, 22 October 1996)
THE GENERAL CONFERENCE OF THE
INTERNATIONAL LABOUR ORGANIZATION,
HAVING BEEN CONVENED at Geneva by
the Governing Body of the International
Labour Office, and having met in its Eighty-
fourth Session on 8 October 1996, and,
NOTING the provisions of the Merchant
Shipping (Minimum Standards) Convention,
1976 and the Protocol of 1996 thereto; and the
Labour Inspection (Seafarers) Convention,
1996, and
RECALLING the relevant provisions of the
following instruments of the International
Maritime Organization:
1. International Convention for the Safety of
Life at Sea, 1974, as amended,
2. International Convention on Standards of
Training, Certification and Watchkeeping for
Seafarers, 1978, as amended in 1995,
3. Assembly resolution A481(XII)(1981) on
Principles of Safe Manning,
4. Assembly resolution A741(18)(1993) on
the International Code for the Safe Operation
of Ships and for Pollution Prevention
(International Safety Management (ISM)
Code), and
5. Assembly resolution A772(18)(1993) on
Fatigue Factors in Manning and Safety, and
RECALLING the entry into force of the
United Nations Convention on the Law of the
Sea, 1982, on 16 November 1994, and
HAVING DECIDED upon the adoption of
certain proposals with regard to the revision of
the Wages, Hours of Work and Manning (Sea)
Convention (Revised), 1958, and the Wages,
Hours of Work and Manning (Sea)
Recommendation, 1958, which is the second
item of the agenda of the session, and
HAVING DETERMINED that these proposals
shall take the form of an international
Convention;
ADOPTS , this twenty-second day day of
October of the year one thousand nine
hundred and ninety-six, the following
Convention, which may be cited as the
Seafarers Hours of Work and the Manning of
Ships Convention, 1996:
PART I
SCOPE AND DEFINITIONS
Article 1
1. This Convention applies to every seagoing
ship, whether publicly or privately owned,
which is registered in the territory of any
Member for which the Convention is in force
and is ordinarily engaged in commercial
maritime operations. For the purpose of this
Convention, a ship that is on the register of
two Members is deemed to be registered in
the territory of the Member whose flag it flies.
Article 4
A Member which ratifies this Convention
acknowledges that the normal working hours
standard for seafarers, like that for other
workers, shall be based on an eight-hour day
with one day of rest per week and rest on
public holidays. However, this shall not
prevent the Member from having
procedures to authorize or register a
collective agreement which determines
seafarers normal working hours on a basis
no less favourable than this standard.
6. Nothing in paragraphs 1 and 2 shall
prevent the Member from having national
laws or regulations or a procedure for the
competent authority to authorize or
register collective agreements permitting
exceptions to the limits set out. Such
exceptions shall, as far as possible, follow
the standards set out but may take account
of more frequent or longer leave periods or
the granting of compensatory leave for
watchkeeping seafarers or seafarers
working on board ships on short voyages.
FINAL PROVISIONS
1. This Convention shall be binding only
upon those Members of the International
Labour Organization whose ratifications have
been registered with the Director-General of
the International Labour Office.
2. This Convention shall come into force six
months after the date on which the ratifications
of five Members, three of which each have a
least one million gross tonnage of shipping,
have been registered with the Director-
General of the International Labour Office.
3. Thereafter, this Convention shall come into
force for any Member six months after the date
on which its ratification has been registered.
Article 19
1. A Member which has ratified this
Convention may denounce it after the
expiration of ten years from the date on which
the Convention first comes into force, by an
act communicated to the Director-General of
the International Labour Office for registration.
Such denunciation shall not take effect until
one year after the date on which it is
registered.
Article 20
1. The Director-General of the International
Labour Office shall notify all Members of the
International Labour Organization of the
registration of all ratifications and
denunciations communicated by the Members
of the Organization.
2. When the conditions provided for in Article
18, paragraph 2, above have been fulfilled, the
Director-General shall draw the attention of the
Members of the Organization to the date upon
which the Convention shall come into force.
Article 21
The Director-General of the International
Labour Office shall communicate to the
Secretary-General of the United Nations, for
registration in accordance with Article 102 of
the Charter of the United Nations, full
particulars of all ratifications and acts of
denunciation registered by the Director-
General in accordance with the provisions of
the preceding Articles.
Article 23
1. Should the Conference adopt a new
Convention revising this Convention in whole
or in part, then, unless the new Convention
otherwise provides-
(a) the ratification by a Member of the new
revising Convention shall ipso jure involve the
immediate denunciation of this Convention,
notwithstanding the provisions of Article 19
above, if and when the new revising
Convention shall have come into force;
(b) as from the date when the new revising
Convention comes into force, this Convention
shall cease to be open to ratification by the
Members.
2. This Convention shall in any case remain
in force in its actual form and content for those
Members which have ratified it but have not
ratified the revising Convention.
End extract
Maritime law is for worldwide trade. Trade is
between different states and as such claims
and such are always prevalent. If no common
ground existed then the dispute would not be
sorted out and the entire amicable trading
pattern would come to a standstill. Thus
conventions among member states are the
pillars on which international trade stands.
Once a convention has been accepted it sets
guideline at the very minimum the standards
that are to be associated for trade.
However a convention is only a guideline it is
not law of the land. To be so, the member
state has to get this convention enacted as a
law in its own country. Once this is done and
the country trades with another, which has at
its core law, a similar law based on the same
convention, the trading claims and others
proceed smoothly.
It must be remembered however that the law
being the same the penalties and other fines
may not be the same.
Also in addition to the law as per the
convention the state may have other laws,
which may not be similar to other state laws.
These conventions are all encompassing
and take into view all suggestions and after
clarifying the same are formulated. Thus the
convention is universally accepted and thus no
misunderstanding in the implementation
occurs. It becomes easier for member states
to trade knowing that the same convention is
applicable.
Any jurisdiction over other states properties
are set out in the convention itself the only
differing are the fines and the penalties which
are left to the individual states discretion
The main organizations involved in making
international laws:
1. United Nations
2. (UN Agency) International Maritime
Organization (IMO)
3. (UN Agency) International Labour
Organization (ILO)
4. (Organization of Maritime Laws) Comite
Maritime International (CMI)
Coastal State Jurisdiction
A. Criminal jurisdiction on board a foreign
ship
1. The criminal jurisdiction of the coastal
State should not be exercised on board a
foreign ship passing through the territorial sea
to arrest any person or to conduct any
investigation in connection with any crime
committed on board the ship during its
passage, save only in the following cases:
(a) if the consequences of the crime extend
to the coastal State;
(b) if the crime is of a kind to disturb the
peace of the country or the good order of the
territorial sea;
(c) if the assistance of the local authorities
has been requested by the master of the ship
or by a diplomatic agent or consular officer of
the flag State; or
(d) if such measures are necessary for the
suppression of illicit traffic in narcotic drugs or
psychotropic substances.
2. The above provisions do not affect the
right of the coastal State to take any steps
authorized by its laws for the purpose of an
arrest or investigation on board a foreign ship
passing through the territorial sea after
leaving internal waters.
3. In the cases provided for in paragraphs 1
and 2, the coastal State shall, if the master so
requests, notify a diplomatic agent or consular
officer of the flag State before taking any
steps, and shall facilitate contact between
such agent or officer and the ships crew.
In cases of emergency this notification may be
communicated while the measures are being
taken.
4. In considering whether or in what manner
an arrest should be made, the local authorities
shall have due regard to the interests of
navigation.
5. The coastal State may not take any steps
on board a foreign ship passing through the
territorial sea to arrest any person or to
conduct any investigation in connection with
any crime committed before the ship entered
the territorial sea, if the ship, proceeding from
a foreign port, is only passing through the
territorial sea without entering internal waters.
B. Civil jurisdiction in relation to foreign ships
1. The coastal State should not stop or
divert a foreign ship passing through the
territorial sea for the purpose of exercising civil
jurisdiction in relation to a person on board the
ship.

2. The coastal State may not levy execution
against or arrest the ship for the purpose of
any civil proceedings, save only in respect of
obligations or liabilities assumed or incurred
by the ship itself in the course or for the
purpose of its voyage through the waters of
the coastal State.

3. Paragraph 2 is without prejudice to the
right of the coastal State, in accordance with
its laws, to levy execution against or to arrest,
for the purpose of any civil proceedings, a
foreign ship lying in the territorial sea, or
passing through the territorial sea after leaving
internal waters.
C. Port State control on operational
requirements
1. A ship when in a port of another
Contracting Government is subject to control
by officers duly authorized by such
Government concerning operational
requirements in respect of the safety of ships,
when there are clear grounds for believing that
the Master or crew are not familiar with
essential shipboard procedures relating to the
safety of ships.
2. In the circumstances defined in paragraph
1 of this regulation, the Contracting
Government carrying out the control shall take
such steps as will ensure that the ship shall
not sail until the situation has been brought to
order in accordance with the requirements of
the present Convention.
3. Procedures relating to the port State
control prescribed in regulation I/19 shall apply
to this regulation.
4. Nothing in the present regulation shall be
construed to limit the rights and obligations of
a Contracting Government carrying out control
over operational requirements specifically
provided for in the regulations.
D. Control
(a) Every ship when in a port of another
Contracting Government is subject to control
by officers duly authorized by such
Government in so far as this control is directed
towards verifying that the certificates issued
under regulation 12 or regulation 13 are valid.
(b) Such certificates, if valid, shall be
accepted unless there are clear grounds for
believing that the condition of the ship or of its
equipment does not correspond substantially
with the particulars of any of the certificates or
that the ship and its equipment are not in
compliance with the regulation.
(c) In the circumstances or where a
certificate has expired or ceased to be valid,
the officer carrying out the control shall take
steps to ensure that the ship shall not sail until
it can proceed to sea or leave the port for the
purpose of proceeding to the appropriate
repair yard without danger to the ship or
persons on board.
(d) In the event of this control giving rise to
an intervention of any kind, the officer carrying
out the control shall forthwith inform, in writing,
the Consul or, in his absence, the nearest
diplomatic representative of the State whose
flag the ship is entitled to fly of all the
circumstances in which intervention was
deemed necessary. In addition, nominated
surveyors or recognized organizations
responsible for the issue of the certificates
shall also be notified.
The facts concerning the intervention shall
be reported to the Organization.
(e) The port State authority concerned shall
notify all relevant information about the ship to
the authorities of the next port of call, in
addition to parties mentioned, if it is unable to
take action as specified or if the ship has been
allowed to proceed to the next port of call.
(f) When exercising control under this
regulation all possible efforts shall be made to
avoid a ship being unduly detained or delayed.
If a ship is thereby unduly detained or delayed
it shall be entitled to compensation for any
loss or damage suffered.
Relevant IMO Conventions
1. International Convention for the Safety
of Life at Sea (SOLAS), 1974
Adoption: 1 November 1974; Entry into
force: 25 May 1980
The SOLAS Convention in its successive
forms is generally regarded as the most
important of all international treaties
concerning the safety of merchant ships. The
first version was adopted in 1914, in response
to the Titanic disaster, the second in 1929, the
third in 1948, the fourth in 1960 and the fifth in
1974.
The main objective of the SOLAS
Convention is to specify minimum standards
for the construction, equipment and operation
of ships, compatible with their safety. Flag
States are responsible for ensuring that ships
under their flag comply with its requirements,
and a number of certificates are prescribed in
the Convention as proof that this has been
done.
Control provisions also allow Contracting
Governments to inspect ships of other
Contracting States if there are clear grounds
for believing that the ship and its equipment do
not substantially comply with the requirements
of the Convention - this procedure is known as
port State control. The current SOLAS
Convention includes Articles setting out
general obligations, amendment procedure
and so on, followed by an Annex divided into
12 Chapters.
2. International Convention for the
Prevention of Pollution from Ships
(MARPOL 73/78)
Adoption: 1973 (Convention), 1978 (1978
Protocol), 1997 (Protocol - Annex VI); Entry
into force: 2 October 1983 (Annexes I and II).
MARPOL 73/78 is the main international
convention covering prevention of pollution of
the marine environment by ships from
operational or accidental causes.
The MARPOL Convention was adopted on 2
November 1973 at IMO. The Protocol of 1978
was adopted in response to a spate of tanker
accidents in 1976-1977. As the 1973 MARPOL
Convention had not yet entered into force, the
1978 MARPOL Protocol absorbed the parent
Convention. The combined instrument entered
into force on 2 October 1983. In 1997, a
Protocol was adopted to amend the
Convention and a new Annex VI was added
which entered into force on 19 May 2005.
MARPOL has been updated by amendments
through the years.
The Convention includes regulations aimed
at preventing and minimizing pollution from
ships - both accidental pollution and that from
routine operations - and currently includes six
technical Annexes. Special Areas with strict
controls on operational discharges are
included in most Annexes.
MARPOL ANNEXES
1. Annex I Regulations for the Prevention
of Pollution by Oil (entered into force 2
October 1983) Covers prevention of pollution
by oil from operational measures as well as
from accidental discharges; the 1992
amendments to Annex I made it mandatory for
new oil tankers to have double hulls and
brought in a phase-in schedule for existing
tankers to fit double hulls, which was
subsequently revised in 2001 and 2003.
2. Annex II Regulations for the Control of
Pollution by Noxious Liquid Substances in Bulk
(entered into force 2 October 1983) details the
discharge criteria and measures for the control of
pollution by noxious liquid substances carried in bulk;
some 250 substances were evaluated and included
in the list appended to the Convention; the discharge
of their residues is allowed only to reception facilities
until certain concentrations and conditions (which
vary with the category of substances) are complied
with. In any case, no discharge of residues
containing noxious substances is permitted within 12
miles of the nearest land.
3. Annex III Prevention of Pollution by
Harmful Substances Carried by Sea in
Packaged Form (entered into force 1 July
1992) contains general requirements for the
issuing of detailed standards on packing,
marking, labelling, documentation, stowage,
quantity limitations, exceptions and notifications.
For the purpose of this Annex, harmful
substances are those substances which are
identified as marine pollutants in the International
Maritime Dangerous Goods Code (IMDG Code)
or which meet the criteria in the Appendix of
Annex III.
4. Annex IV Prevention of Pollution by Sewage
from Ships (entered into force 27 September
2003) contains requirements to control pollution of
the sea by sewage; the discharge of sewage into the
sea is prohibited, except when the ship has in
operation an approved sewage treatment plant or
when the ship is discharging comminuted and
disinfected sewage using an approved system at a
distance of more than three nautical miles from the
nearest land; sewage which is not comminuted or
disinfected has to be discharged at a distance of
more than 12 nautical miles from the nearest land.
In July 2011, IMO adopted the most recent
amendments to MARPOL Annex IV which are
expected to enter into force on 1 January
2013. The amendments introduce the Baltic
Sea as a special area under Annex IV and add
new discharge requirements for passenger
ships while in a special area.
5. Annex V Prevention of Pollution by Garbage
from Ships (entered into force 31 December 1988)
deals with different types of garbage and specifies
the distances from land and the manner in which
they may be disposed of; the most important feature
of the Annex is the complete ban imposed on the
disposal into the sea of all forms of plastics.
In July 2011, IMO adopted extensive amendments
to Annex V which are expected to enter into force on
1 January 2013. The revised Annex V prohibits the
discharge of all garbage into the sea, except as
provided otherwise, under specific circumstances.
6. Annex VI Prevention of Air Pollution from
Ships (entered into force 19 May 2005) sets
limits on sulphur oxide and nitrogen oxide emissions
from ship exhausts and prohibits deliberate
emissions of ozone depleting substances;
designated emission control areas set more stringent
standards for SOx, NOx and particulate matter.
In 2011, after extensive work and debate, IMO
adopted ground breaking mandatory technical and
operational energy efficiency measures which will
significantly reduce the amount of greenhouse gas
emissions from ships; these measures were included
in Annex VI and are expected to enter into force on 1
January 2013.
With respect to ships entitled to fly the flag of
a State which is not a Party to the Convention
and the present Protocol, the Parties to the
present Protocol shall apply the requirements
of the Convention and the present Protocol as
may be necessary to ensure that no more
favourable treatment is given to such ships.
This means that whether or not a ship flies
the flag of a signatory country or not, it shall be
subject to all the conditions of as applicable
under this convention. Thus a ship would not
be permitted to enter a signatory countrys
waters in a substandard condition and give an
excuse that her government is not a signatory,
hence she is outside the jurisdiction of
complying with the conditions of this protocol.
Rules of Convention to Law
Almost everything we do is governed by
some set of rules. There are rules for games,
for social clubs, for sports and for adults in the
workplace. There are also rules imposed by
morality and custom that play an important
role in telling us what we should and should
not do.
However, some rulesthose made by the
state or the courtsare called laws.
Laws resemble morality because they are
designed to control or alter our behaviour. But
unlike rules of morality, laws are enforced by
the courts; if you break a lawwhether you
like that law or notyou may be forced to pay
a fine, pay damages, or go to prison.
Since individuals began to associate with
other peopleto live in societylaws have
been the glue that has kept society together.
Laws regulating our business affairs help to ensure
that people keep their promises. Laws against
criminal conduct help to safeguard our personal
property and our lives.
Even in a well-ordered society, people have
disagreements and conflicts arise. The law must
provide a way to resolve these disputes peacefully.
We need law, then, to ensure a safe and peaceful
society in which individuals rights are respected.
The law is a set of rules for society, designed to
protect basic rights and freedoms, and to treat
everyone fairly.
These rules can be divided into two basic
categories:
1. Public Law
Public law deals with matters that affect
society as a whole. It includes areas of the law
that are known as criminal, constitutional and
administrative law. These are the laws that
deal with the relationship between the
individual and the state, or among
jurisdictions.
2. Private Law
Private law, on the other hand, deals with the
relationships between individuals in society
and is used primarily to settle private disputes.
Private law deals with such matters as
contracts, the rights and obligations of family
members, and damage to ones person or
property caused by others. When one
individual sues another over some private
dispute, this is a matter for private law.
Private International Law is the body of
conventions, model laws, legal guides, and
other documents and instruments that regulate
private relationships across national borders.
Private international law has a dualistic
character, balancing international consensus
with domestic recognition and implementation,
as well as balancing sovereign actions with
those of the private sector.
The law of the land which finally is enforcer
for the conventions ensures that the law
(convention) is enforced by ensuring that
before any certification is done the ship are
surveyed, and after this only are they certified.
The surveys are as per the code or may be
as per the law of that state however they
cannot fall below the standard as set out in the
convention.
As far as possible these details are to be
inspected and then certified. These then
become as authorized by the government of
that state and are seen as official documents.
The government agencies (may be various)
are entrusted by the state to enforce the law/
convention in the nature of any violation be it
by way of area violation, pollution or by way of
improper certification
Thus for any violation a ship may be
detained for a short period or for long. May be
fined and personnel may be imprisoned.
The government agencies are also the
keeper of all records since the state has to
submit to the IMO all records regarding any
detention and other cases of violation,
including all dispensations granted.
From the above it may be observed that it is
of utmost importance to study the national
legislation that has been adapted in view to
the conventions and also any other rules and
regulations that may have been enacted for
maritime convenience.
Additionally the rules and regulations of the
port state in which the ship arrives may have a
set of different rules and regulations which the
ship would have to observe.
These set of rules and regulations are
generally passed onto to the ship through
either the pilot or the agent to the ship. Any
notification may also be available from other
sources. It is not mandatory for the ship to
have received the notice of any extra rules and
regulation through oversight of the agent or
others, if the law has been published and
informed to other places then it is supposed to
have been informed to the ship.
Thus the ship cannot say that since it has not
received that it would assume it has not been
informed and thus would fail to comply,
It is the duty of the ship through the company
and the agents to keep abreast of all new laws
and regulations that may affect the ship and
the crew when arriving into any state to which
the port belongs.