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Outline 1) Key players 2) International instruments Jurisdiction: - - PDF document

Scandinavian I nstitute of Maritime Law Ship control and classification October 2014 Henrik Ringbom Professor II Outline 1) Key players 2) International instruments Jurisdiction: UNCLOS 2 Technical: SOLAS, MARPOL, STCW 3)


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SLIDE 1

Scandinavian I nstitute of Maritime Law

Ship control and classification October 2014

Henrik Ringbom

Professor II

2

Outline

 1) Key players  2) International instruments

– Jurisdiction: UNCLOS – Technical: SOLAS, MARPOL, STCW

 3) Norwegian maritime safety and

security act

 4) Port state control  5) Classification societies

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SLIDE 2

Scandinavian I nstitute of Maritime Law

CHARTERERS UNIONS CARGO INSURERS BROKERS AGENTS SHIPPERS TERMINAL OPERATORS PORTS PSC MOU CREW FINANCIERS OPERATOR HULL UNDERWRITERS P&I CLUBS CLASSIFICATION SOCIETIES FLAG STATES SHIPYARDS EU IMO SHIP OWNER

Scandinavian I nstitute of Maritime Law

UNCLOS

 ‘Constitution for the Oceans’ – ‘Package deal’ (all uses of the oceans) – Framework convention  166 Contracting Parties, indicative of

customary international law

 Rights and duties depend on maritime zone

and activity

 Delimitation, prescriptive end enforcement

jurisdiction

 Establishes institutions: e.g. CDCS, ITLOS

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SLIDE 3

Scandinavian I nstitute of Maritime Law Scandinavian I nstitute of Maritime Law

Flag State Coastal- / port State High seas

Minimum: ‘Generally accepted international rules and standards’ (GAIRAS)

(i.e. SOLAS, Marpol, STCW etc.)

No, but limited environmental enforcement jurisdiction

EEZ

Max: GAIRAS

  • Terr. sea

Internal rules, + Max: GAIRAS CDEM

I nternal waters, ports

Internal rules (implicitly) Max: ?

Prescriptive jurisdiction in the law of the sea

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SLIDE 4

Scandinavian I nstitute of Maritime Law

Flag States

 Only one flag per ship – registration  Right to flag – freedom of navigation  Apply anywhere  Whole range of obligations:

– Register – Surveys – Comply with GAIRS – Accident investigations

 Main targets of IMO Conventions

Scandinavian I nstitute of Maritime Law

Flag State duties

Article 94 Duties of the flag State 1. Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. 2. In particular every State shall: (a) maintain a register of ships containing the names and particulars of ships flying its flag, except those which are excluded from generally accepted international regulations on account of their small size; and (b) assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship. 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. 4. 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;

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Flag State duties

(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. 5. 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

  • bservance.

6. A State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised may report the facts to the flag State. Upon receiving such a report, the flag State shall investigate the matter and, if appropriate, take any action necessary to remedy the situation. 7. Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty or incident of navigation

  • n the high seas involving a ship flying its flag and causing loss of life or serious

injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment. The flag State and the other State shall co-operate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation.

Scandinavian I nstitute of Maritime Law Scandinavian I nstitute of Maritime Law

Flag States

 Very few enforcement obligations  State responsibility  Softer means:

– FSI Sub-committee (monitoring, identification of issues, self-assessment) – Voluntary IMO Member State Audit Scheme (VIMSAS) – mandatory? – PSC targeting, black-listing etc.

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SLIDE 6

The Shipping Industry Guidelines

  • n Flag State Performance

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Key conventions

 SOLAS  LL  MARPOL  STCW  Others (SAR, Salvage, Tonnage,

COLREGs, AFS, BWM, SR, etc.)

 Codes, recommendations  Common features: tacit acceptance,

grandfather clause, NMFT clause

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SLIDE 7

1 3

SOLAS

 1914 - Titanic  Annex consists of 12 chapters

– I: General provisions (survey, documents, PSC, note HSSC) – II:1 Structure (stability, machinery electrical installations, GBS) – II:2 Fire protection, detection and extinction – III: Life-saving appliances

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SOLAS cont’d

– IV: Radio communications (carriage GMDSS) – V: Safety of navigation (equipment, assistance, routeing systems, safe manning) – VI: Carriage of cargoes (stowage securing, containers, grain) – VII: Carriage of dangerous goods Parts A-D (construction, carriage in liquid, packaged, gases, nuclear + IMDG Code)

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SLIDE 8

1 5

SOLAS cont’d

– VIII: Nuclear-powered ships – IX: Safe management (ISM Code) – X: High-speed craft – XI-1: Special measuresto enhance safety (classification societies, enhanced surveys, IMO numbering, PSC on operational matters etc.) – XI-2: Special measures to enhance security (ISPS + Code) – XII: Additional safety for bulk carriers (structure, strength, alarms etc.)

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Principal mandatory codes

 International safety management

(ISM)

 International ship and port facility

security code (ISPS)

 IMDG  IBC  IGC  HSC, LSA, AI, Nox Technical code

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SLIDE 9

Scandinavian I nstitute of Maritime Law

Loadlines

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MARPOL

 Background (73/78)  Main body: Certification, surveys,

controls

 Annexes

– I: Oil –accidental and deliberate (construction standards, DH, discharge rules, special areas, PRF etc.) – II: Noxious liquid substances in bulk (250 substances,three categories, discharge rules)

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SLIDE 10

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MARPOL cont’d

– III: Harmful substances in packaged form (packing, labeling, stowage etc.) – IV: Sewage (discharge standards, in force 2003) – V: Garbage (revised in 2011) – VI: Air emissions (SOx, NOx, Ozone-depleting substances) CO2-EEDI

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Seafarers

 STCW

– 1978, 1995 – Manila amendments 2010

 MLC 2006

– ILO – Brings a series of older conventions in force – Control provisions

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SLIDE 11

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Other conventions

 COLREGs  SAR  Salvage  Anti-fouling systems  Ballast water management  Ship recycling  Future: greenhouse gases?

Scandinavian I nstitute of Maritime Law

Norwegian ship safety and security act, 2007, No 9

  • Replaces the 1903 seaworthiness act
  • Broader scope (environment, security)
  • Shipowner (reder) primary responsible
  • New approach
  • Eliminates the seaworthiness concept
  • Introduces safety management principle
  • Based on ISM Code
  • Specific rules come in addition (118

regulations linked to the act: construction, equipment, manning, loading, navigation, environment etc.)

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SLIDE 12

Scandinavian I nstitute of Maritime Law

Norwegian ship safety and security act, 2007, No 9

1: General provisions: Scope of application (NOR ships (NOR, NIS), 24m, Foreign ships, as permitted by international law) 2: The duties of the shipowner (safety management) (overarching responsibility (to see to/to ensure), establishment of SMS, information) 3: Technical safety/security (measurement, stability, strength, cargo, certificates, navigation etc.) 4: Personal safety/security (working environment, hours, living conditions) 5: Environmental safety/security (general prohibition to pollute, PRF) 6: Security (prevention, enforcement) 7: Supervision (verification of SMS, reporting obligations etc.) 8: Enforcement measures (fees, detention, withdrawal of certificates, enforcement at sea) 9: Administrative sanctions (persons, owner) 10:Penal sanctions (incl company penalty) 11: Other provisions

Example: Section 9 Technical safety

“A ship shall be so designed, constructed and equipped that it according to its purpose and trade area provides for the satisfactory protection of life, health, property and the environment. The Ministry may issue regulations on how a ship shall be designed, constructed and equipped in order to fulfill the requirements

  • f the first paragraph”
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SLIDE 13

Scandinavian I nstitute of Maritime Law

Norwegian ship safety and security act

  • Administrative organisation (ministry,

maritime directorate, 17 regional stations)

  • Accident investigation branch

Scandinavian I nstitute of Maritime Law

Port States

  • PSC and some enforcement is regulated

(218, 219, 226, 230, 231), but not prescription

  • PSC elements (12 regional MOUs):

– Targeting – Documentary checks – Clear grounds – More detailed inspection – Correction, detention, banning – Undue delay, prompt release procedures (14 PR cases at ITLOS)

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SLIDE 14

New I nspection Regime – Paris MoU

Better targeting of ships

“ Every ship eligible for a periodic inspection as follows:

 High Risk Ship (HRS) every 5-6 months  Standard Risk Ship (SRS) every 10-12

months

 Low Risk Ship (LRS) every 24-36 months ”

https:/ / portal.emsa.europa.eu/ web/ thetis/ home

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SLIDE 15

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The role of class

 Originally linked to insurance  Dual function

– Class (renewal, intermediate etc.)

surveys, conditions of class, formal/material class)

– Statutory

 Enlarged functions (companies,

ISPS)

 Liability (contracts, third parties)

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Private inspection schemes

 OCIMF -SIRE  CDI  Insurers  Equasis

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Scandinavian I nstitute of Maritime Law

EQUASIS

Scandinavian I nstitute of Maritime Law

Mortgages, maritime liens, retention and arrest October 2014

Henrik Ringbom

Professor II

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SLIDE 17

Security (maritime lien, insurance) Limitation (value of ship, LLMC) Liability (contract or tort)

Liens and mortgages (Nor: ‘pant’) The vessel as security for a claim:

 Ordinary rules of liens and mortgages

(‘panterett’)

– Contract – Decision by enforcement authorities (enforcement lien, utlegg) – Legislation – no need for court decision or contract (notably maritime lien, sjøpant )  Rights of retention (contract or law, no

property rights involved, ‘possessory lien’)

 Arrest (based on maritime claims)

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SLIDE 18

Conventions

  • Liens and Mortgages 1928, 1967 and 1993
  • Arrest 1952 and 1999

Ship mortgages (contract-based)

 Governed by national law (the mortgage and lien act (panteloven), enforcement of claims act (tvangsfullbyrdelseloven))  General on mortgages in ships  What is included (§ 45)  Registration is the legal protection  Priorities (§§ 23-25)  Encumbrances in non-ships – Ships under construction, NMC § 31 – Non-ships, NMC § 33 – Platforms, NMC § 507 – Permanent installations

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SLIDE 19

37

Enforcement liens

 Enforcement liens (utlegg)

– Irrespective of claim is related to vessel or not – Needs a foundation in law, typically based on a judgment – Can be on newbuilding or contract

Maritime liens

 Background  Features: not registered, priorities, short time-bars  Conditions – Who is the claim directed at? (§ 51) – What claims are secured by maritime liens? (§ 51)  Priorities (§52)

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SLIDE 20

NMC §51 Protected claims

Claims against a ‘reder’ are secured by maritime liens against the ship, in so far as they relate to

1)

Wages and other sums due to the master and other persons employed on board in respect of their employment on the vessel;

2)

Port, canal and other waterway dues and pilotage dues;

3)

Damages in respect of loss of life or personal injury occurring in direct connection with the operation of the ship;

4)

Damages in respect of loss of or damage to property, occurring in direct connection with the operation of the ship, provided the claim is not capable of being based on contract;

5)

Salvage reward, compensation for wreck removal and general average contribution. A maritime lien also arises if the claim against the owner, charterer or manager or any person to whom the ‘reder’ has delegated his or her functions.

Priority & time bar

 NMC sec 52  Timebar sec 55

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Maritime Liens in cargo, NMC §§ 61 et seq.

 Protected claims

– Salvage Reward – Expenses in relation to cargo – Claims under the contract of carriage, cf NMC §§ 269 and 292

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Rights of retention

 Similar to maritime liens, but no

property rights involved

 Basis in contracts and NMC § 54  Typically for shipyards  Right runs until claim is paid, if

the claim ceases to exist or creditor voluntarily gives up possession.

 Securities often used in practice,

a judgment as a last resort.

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SLIDE 22

43

Enforcement of maritime liens and mortgages (foreclosure)

– Must be due for payment

(maritime and enforcement liens are always, mortgages depend on the agreement), ECA + NMC §44

– Forced sale

 Ordinary sale  Auction

– Forced use

Arrest (NMC, Ch 4)

 General national rules securing property and

arrest of debtor’s assets (Civil Procedure Act) apply in parallel (has to be necessary, otherwise lost or

beyond jurisdiction)  Certain special provisions apply in NMC: – Probability requirement lifted for maritime liens – Has to be based on maritime claims (§ 92) – Sistership exception, stops time-bar for maritime liens  Establishes jurisdiction under

Lugano/Brussels system

 In practice security normally suffices

(guarantees)