The role of the state on the safety of maritime navigation and protection of maritime environment
B. Činčurak, L.L.B.
J.J.StrossmayerUniversity in Osijek, Faculty of Law Osijek, Osijek, Croatia
A. Vasilj, Ph. D.
J.J.StrossmayerUniversity in Osijek, Faculty of Law Osijek, Osijek, Croatia
ABSTRACT: The improvement of safety, security and efficiency of maritime traffic as well as the prevention of pollution are among the main concerns of scientists around the world. Maritime safety and security are imperatives to the interests of any nation whose borders include coastal waters and ports. Increasing economic activity throughout the world means more ships, more cargo, and more traffic in ports, coastal areas and regional waterways.To ensure safety, to prevent human injury or loss of life, and to avoid damage to the marine environment, and to property a number of conventions has been adopted.Pollution of sea could be caused by harmful effects from the land, air, oil pipelines damages, during marine scientific research, dumping etc. However, the biggest threat comes from vessels. Emissions of oil, water ballast, petroleum, and wastewater are the most common and dangerous. Important roles in the fight against water pollution, especially in preventing environmental catastrophes have international organizations and national legislations. However, international rules do not regulate all situations and problems. Therefore, national states have important role in preventing maritime safety.
1InTroduction
Modern development of international maritime law in part regulating safety at the sea was inspired by safety of human life and protection of marine environment.
Safety, in terms of protecting not only the health and lives of people at sea (both crews and passengers) but also the environment, is a fundamental objective of sea transport policy.
Safety of ships and navigation as well as protection of human life and property depend on technical equipment of the ship, safety management, education, training and skills of crew, organization of navigation, state of other objects (waterways, ports, berths, cargo gears), efficient supervision of inspection, authority and administration.
Ships in operation today are subject to a vast range of regulations and standards covering every aspect of ship construction and operation. A number of incidents over the years have led to improvements in safety requirements.
Business activities in sea shipping cause environmental pollution and are considered environmental hazard from the aspect of safety. Pollution of the marine environment means the introduction by man, directly or indirectly, of substances or energy into the marine environment, which results or is likely to result in such damaging effects as harm to living resources and marine life, hazards to human health, interference to marine activities, including fishing and other legitimate uses of the sea, damage of quality for use of sea water and reduction of facilities.
Main sources of marine pollutionare:land-based activities, vessel pollution, pollution from platforms, from air, dumping, off-shore activities. Concerning pollution from vessels (shipping) it may be result of normal operation of ships or from accidents.
“The basic principles of the protection and preservation of the marine environment are the principle of prevention, precautionary principle, “polluter pays” principle and the principle of sustainable development.” (Seršić, M. 2003, p. 237)
There is a global awareness that safety and environmental protection issues are of public interest. The role of international community (UN and other international organizations e.g. IMO, OECD, UNCITRAL as well as the EU at the regional European level) in legal regulating of these issues is significant.The purpose of the conventions is to raise the level of standards regulating technical and operational aspects of ships in order to reduce safety and environmental protection risks.Legal norms regulating pollution can be divided to: a) norms for preventing pollution, b) norms on combating and limiting pollution and c) repressive norms.
2international legal framework Of safety at the sea, prevention of pollution from ships, rights and obligations of the state
Vessels can pollute water in many ways: spills of oil and other chemicals from tankers, ballast water, discharge of cargo remains, sewage are the most important. Ships also produce noise that disturbs natural wildlife and exhaust emissions are source of air pollution. Pollution from vessels (shipping) can be result of normal operation of ships or from maritime casualties.
Most frequent causes of maritime accidents are: human error, improper operation and maintenance of equipment, ships age, improper spare parts, the company itself, the management, etc. The major causes for human factor error are: lack of standards, no proper knowledge and experience no plans for emergency situations, lack of information, unclear instructions.
With regard to norms and position after pollution has been made, vessel can be submitted to authority of costal state, flag state or port state. Each of these state have certain rights and obligation in application of environment protection regulation.
Numerous international treaties regulating these issues were adopted; in this place only relevant for the purpose of this paper will be shown.
2.1The United Nations Convention on the Law of the Sea
The most important global international treaty regulating law of the sea in general but also protection and preservation of marine environment is the United Nations Convention on the Law of the Sea (UNCLOS) concluded in 1982, came into force in 1994. To date, 158 countries and the European Community have joined in the Convention.
Provisions on protection and preservation of marine environment areincluded in Part XII of the Convention. It does not contain detailed rules or specific standards; its provision lay down only general principles and rules, establishing a global framework of obligations, responsibilities and powers of states in all maters of marine environment protection(Seršić, M. 2003, p. 235). Therefore, UNCLOS needs to be complemented with further treaty law structure provided by the IMO conventions and protocols in order to ensure that obligations to implement the extremely precise technical rules and standards contained in such conventions and protocols become binding in accordance with international law.
The Convention lays down, first of all, the fundamental obligation of all States to protect and preserve the marine environment (Article 192 of the UNCLOS). It further urges all States to cooperate on a global and regional basis in formulating rules and standards and otherwise take measures for the same purpose.
Coastal Statesare empowered to enforce their national standards and anti-pollution measures within their territorial sea. Every coastal State is granted jurisdiction for the protection and preservation of the marine environment of its exclusive economic zone (EEZ). Such jurisdiction allows coastal States to control, prevent and reduce marine pollution from dumping, land-based sources or seabed activities subject to national jurisdiction, or from or through the atmosphere. (see Articles: 56, 60, 80 and 208 of the UNCOS).“States shall adopt laws and regulations for the prevention, reduction and control of pollution of the marine environment from vessels flying their flag or of their registry. Such laws and regulations shall at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference.” (Article 211, paragraph 2 of the UNCLOS). Coastal States may, in the exercise of their sovereignty within their territorial sea, adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels, including vessels exercising the right of innocent passage. “Coastal States, for the purpose of enforcement as provided for insection 6, may in respect of their EEZ adopt laws andregulations for the prevention, reduction and control of pollution from vesselsconforming to and giving effect to generally accepted international rules andstandards established through the competent international organization orgeneral diplomatic conference.” (Article 211, paragraph 5 of the UNCLOS).
According to Article 220, paragraph 1 of the UNCLOS, when a vessel is voluntarily within a port or at an off-shore terminal of a costal state, that State may, subject to section 7, institute proceedings in respect of any violation of its laws and regulations adopted in accordance with the Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels when the violation has occurred within the territorial sea or the EEZ of that State.
“Where there is clear objective evidence that a vessel navigating in the EEZ or the territorial sea of a State has, in the EEZ, committed a violation referred to in paragraph 3 resulting in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State, or to any resources of its territorial sea or EEZ, that State may, subject to section 7, provided that the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws” (Article 220, paragraph 6 of the UNCLOS).
On the other hand, it is the duty of the “flag State”, the State where a ship is registered and whose flag it flies, to enforce the rules adopted for the control of marine pollution from vessels, irrespective of where a violation occurs. This serves as a safeguard for the enforcement of international rules, particularly in waters beyond the national jurisdiction of the coastal State, i.e., on the high seas.“However, practice has shown that system of measures of the flag states which derives from such rules is often very inefficient.” (Fabijanić Gagro, S. 2008, p. 415.) Reasons are e. g.: states with flags of convenience ("open registries"), insufficient interest of the flag state to start the procedure and penalize act that happened in far away or in the high seas where “no one is damaged”.
Every state has jurisdiction and control in administrative, technical and social matters over ships flying its flag (about duties of the flag State on the high seas, see Article 94 of the UNCLOS. Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard to: the construction, equipment and seaworthiness of ships; the manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments; the use of signals, the maintenance of communications and the prevention of collisions.
Furthermore, the Convention gives enforcement powers to the “port State”, or the State where a ship is destined. “When a vessel is voluntarily within a port or at an off-shore terminal of a State, that State may undertake investigations and, where the evidence so warrants, institute proceedings in respect of any discharge from that vessel outside the internal waters, territorial sea or exclusive economic zone of that State in violation of applicable international rules and standards established through the competent international organization or general diplomatic conference.” (Article 218, paragraph 1 of the UNCLOS).
According to Article 219 of the UNCLOS, states which, upon request or on their owninitiative, have ascertained that a vessel within one of their ports or at one oftheir off-shore terminals is in violation of applicable international rules andstandards relating to seaworthiness of vessels and thereby threatens damageto the marine environment shall, as far as practicable, take administrativemeasures to prevent the vessel from sailing. Such States may permit thevessel to proceed only to the nearest appropriate repair yard and, uponremoval of the causes of the violation, shall permit the vessel to continueimmediately.
To ensure proper implementation of this regulations in practice, port states must have capable personnel and adequate equipment in ports (this will cause financial burden for some states) in addition to harmonize rules and procedures in different states.
2.2The international Convention for the Safety of Life at the Sea (SOLAS
The most important of all treaties dealing with maritime safety is the International Convention for theSafety of Life at the Sea (SOLAS), adopted in 1974 and came into effect in 1980. It covers various aspects of ship safety, including construction, fire protection, life-saving appliances, radio communications, safety of navigation, the carriage of cargos and safety measures for high speed craft.
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 provisions of chapter regulating safety of navigation are mainly of an operational nature and apply to all ships on all voyages. This isin contrast to the Convention as a whole, which only applies to ships of a certain size engaged on internationalvoyages.The chapter also includes a general obligation for Contracting Governments to ensure that all ships aresufficiently and efficiently manned from a safety point of view.Requirements for the fitting of radar and other navigational aids are also contained in this chapter.
2.3ISM CODE
In 1993, IMO adopted the International Management Code for the Safe Operation of Ships and for Pollution Prevention (the ISM Code), that became mandatory in 1998. The Code became applicable, under chapter IX of the International Convention for the Safety of Life at Sea, 1974, first for passenger ships, tankers and bulk carriers in 1998, thereafter for all other ships over 500 GT in 2002.
By adding the ISM Code to SOLAS it is intended to provide aninternational standard for the safe management of ships and for pollution prevention.
The ISM Code is projected to improve the safety of international shipping and to reduce pollution from ships by impacting on the way shipping companies are managed and operated. The Code establishes safety-management objectives and requires a safety management system (SMS - a structured and documented system enabling Company personnel to implement effectively the Company safety and environmental protection policy) to be established by “the Company”, which is defined as “the owner of the ship or any other organization or person such as the manager, or the bareboat charterer, who has assumed the responsibility for operation of the ship from the ship owner and who, on assuming such responsibility, has agreed to take over all duties and responsibility imposed by the Code.”(Part A - Implementation, 1 General, paragraph 1.1.2., of the ISM Code).
The Company is then required to establish and implement a policy for achieving these objectives.
“The requirements of this Code may be applied to all ships.”(Part A - Implementation, 1 General, paragraph 1.3., of the ISM Code).
States parties of the Code must form a system certification, verification and control. Certified organization of a flag state issues two certificates: Document of Compliance and Safety Management Certificate.
The ship should be operated by a Company which has been issued with a Document of Compliance. Such a document should be accepted as evidence that the Company is capable of complying with the requirements of this Code. The Document of Compliance should be issued by the Administration (the Government of the State whose flag the ship is entitled to fly).
“The Safety Management Certificate should be issued to a ship for a period which should not exceed five years by the Administration or an organization recognized by the Administration or, at the request of the Administration, by another Contracting Government. The Safety Management Certificate should be issued after verifying that the Company and its shipboard management operate in accordance with the approved safety management system. Such a Certificate should be accepted as evidence that the ship is complying with the requirements of this Code.”(Part B - Certification and Verification, paragraph 13.7., of the ISM Code).
“The objectives of a safe management and operation of the ship as imposed by the ISM Code being a part of the SOLAS convention are the criteria by which a court or arbitration will asses the responsibility of the ship owner in the implementation of the Code. The ship owner will establish his own regulation system and will be obliged to prove that it is being duly implemented. Any failure in this respect on his part can have an adverse effect upon limitation of liability, the rights from marine insurance contract and general average. The implementation of the ISM Code, combined with the required system of control and written reports, practically increases the possibility of the claimant to challenge the ship owner’s right to limitation of liability. Non compliance with the provisions of the ISM Code, alongside with meeting the general prerequisites for a loss of right to limitation (Limitation Convention 1976, article 4) can be taken as a reason for the ship owner’s loss of right to limitation of liability.” (Pavić, D. 2001. p. 70)