International Law of the Shipmaster

Dr John A; C; Cartner; Richard P; Fiske and Tara L; Leiter

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CHAPTER 4 DOMESTIC LAWS AND THE SHIPMASTER

“Ius summum saepe summa est malitia.” Publius Terentius Afer [Terence] ca. 190-159 bce, Heauton Timoroumenos, 1. 796 1 § 4.0 What This Chapter is About. Domestic laws are the laws of a state which apply within the state’s claimed jurisdiction.2 In this chapter we discuss various aspects of domestic laws of importance to the master. They include the regimes of maritime law in states; the domestic law traditions in states under which the master may come; attempts at harmonisation of laws; forum shopping; the receipt and enablement of conventions by states; application of conventions in domestic courts; private law and the conflicts of law policies in states; choice of law clauses; the nationality, citizenship, residence and domicile of the master; personal taxation of the master by states; the perception of the master by some courts; and consular relationships when the master is a natural person and in his capacity as master. § 4.1 The Regimes of Maritime Laws Across States. The domestic laws of a state regulate and govern the shipmaster within the state’s claimed jurisdiction subject to, in many situations, the law of the flag state.3 Each state has its idiosyncratic ways of dealing with the substantive laws, procedural laws, enforcement and promulgation of the legislation and cases.4 Each state - whether active in the maritime endeavor or not - has laws which deal with commercial contracts, citizenship and nationality and personal taxation among other essential organic laws as a minimum. However, states with minimal maritime trades as well as states with strong maritime trades have the essential organic shipping laws and often the enabled or adapted conventions for regulating maritime liens,5 commercial contracts,6 enforcement of judgments, vessel arrests7 and sales, merchant shipping, collisions,8 seagoing labour, customs and excise and ports, vessel registration and taxation.9 States frequently have penal provisions in their shipping acts and environmental acts as well as enforcing the provisions of their penal codes.10 The broader body of commercial laws, environmental, customs and excise, immigration laws interact with the shipping laws - sometimes seamlessly and sometimes not. The same can be said about port state control and port security laws and agreements.11 Each state also has either a set of laws which enable the maritime conventions to which the state has agreed and put in force or laws which deal with the same substantive matters as the conventions in force elsewhere.12 IMO member states have designated maritime authorities and other government agencies to deal with the IMO, port state control, its own flag management, other flag states and other maritime interests.13 The enforcement arm of the state may or may not be under the maritime administration the state designates for the IMO.14 The applications of the maritime laws is often influenced by the law tradition a state follows. The level of corruption in the application of regulations in ports, customs and excise enforcement may be substantial in a state. The various rating services for such matters can give a rough estimate of how the state is managed, how the rule of law prevails and what the perception of corruption in the state might be.15 More than one hundred states supply their citizens or national residents as shipmasters to the world fleet.16 The large number of flag states and the large number of states supplying their own citizens as masters irrespective of flag may create its own difficulties for a master so situated. § 4.2 Traditions and Systems of Domestic Laws.17 States have different traditions of laws which are reflected in how the laws are devised, codified, interpreted, applied and tested. A tradition of law in a state is the socio-historical path the laws followed to get to their current expression. We distinguish a system of laws as the laws per se which arise within the tradition of laws. For example, the laws of Antigua and Barbuda arose from the common law tradition. The laws of Albania arose from the civil law tradition. The laws of Israel arose from civil law and religious law traditions. In a perfect world, a shipmaster dealing with the same set of facts in State A would have the same outcome as in State B. That does not happen sufficiently often that there is a body of law to deal with it. This can be the case in either the application of flag state laws or port state laws or citizenship state laws to the master in courts foreign to those laws. There is no agreed-upon way of organizing and naming domestic law traditions and systems for comparison. One ordered and understandable way to classify domestic law traditions and systems has been proposed by the Juri-Globe programme of the faculty of law of the University of Ottawa.18 This system describes legal traditions as primarily common law, civil (or civilist) law, customary law or religious law. A catchall category is “mixed law”. In this system, the traditions are emphasized sequentially in the nominations made to the systems of laws. For example, a state described as a common law and civil law state is relatively more influenced by the common law than the civil law. There are no “pure” systems of laws, however, as heady as that notion might be for tidy thinkers. The most complex ones are those which combine or mix several traditions in one system, of which there are several states. § 4.2.1 Common Law States. A common law state has domestic laws derived from the English case and common law system in which courts follow the rule of case precedent or stare decisis.19 The emphasis in common law states is on the collective empirical experience tempered with new experience and modified as society changes rather than on the ontology of contemplative certainty through well thought-out statutes inherent in the civil law. Common law states, with little other influence from other traditions, comprise20 22 states or 12.3% of all UN members and 16.0% of ships registered of more than 1,000 grt. This is, of course, the same as the proportion of sailing masters affected by the laws of these states, so it is clear that masters certificated or accepted by comity by common law states for their registered vessels comprise one sixth of all masters sailing. Common law states accounted for 16.1% of all ship movements, a proportion representing the likelihood of a master of any state, including a common law state, coming under that tradition of laws. Of course, states follow a tradition of law shaped by their histories and the consciences of their people.21 Thus, there is also a group of states which follow the common law in many respects, but have mixed in other traditions. These are the mixed law states strongly influenced by the common law.22 Common law and religious law traditions prevail in four states.23 Common law and customary law traditions dominate in 14 states.24 Common law, religious law and traditional law provide the legal regime in six states.25 Altogether, all states influenced strongly or weakly by the common law account for 47 states or 25.2% of all UN states, 29.0% of vessels and 24.4% of ship movements. Therefore, between one-quarter and one-third of the masters sailing are under a flag which is governed under a regime of laws clearly influenced to some extent by the common law tradition.26 § 4.2.2 Civil Law States. A predominately civil law state27 (77 states) has a system of laws which came from one or more of the the subtraditions of the Roman law codified under Justinian and expressed in the Corpus Juris Civilis and the Digests,28 the canon law of the Roman Catholic Church in the Decretum proponded by Gratian,29 and the commercial law which arose from the Roman law and medieval guilds and the agreements of the European maritime cities as a unifying and independent set of rules for maritime trade.30 The civil law was also influenced by the European revolutions, especially the French Revolution in the eighteenth and nineteenth centuries. Thus, the modern trend toward codification began in earnest with the elegance of the Code Napoléon.31 The civil law generally conforms to the legal concept that laws must be statutory to be binding and the role of the a court is to interpret the statutes in a learned fashion with the facts brought before it without consideration of strict stare decisis, although case law may be persuasive. The 77 (41.2%) states following the civil law tradition with little outside influence comprise have registered 49.2% of the ships of more than 1,000 grt. The strongly civil law states accounted for 46.3% of all ship movements. There are of course mixed law states of the civil law tradition. Civil and common law traditions occur in ten states;32 civil and customary law traditions in twenty five states;33 civil and religious law law traditions in eleven states;34 civil law, religious law and customary law traditions are followed in six states;35 civil law, common law and customary law traditions occur in five states;36 and there is one one civil law, common law, religious law and traditional law state.37 § 4.2.3 Customary Law States. The customary law system (one state) employs a system of laws framed by empirical experience over a period of time within the culture arising from a prevailing religious philosophy.38 It happens that the state is landlocked. This does not mean that the laws are unwritten, but it does mean that the laws arise from custom and are applied by custom and interpreted by custom. § 4.2.4 Religious Law States. Two religious law states are founded on laws derived from sacred writ,39 through which all men and women are guided in prescriptive as well as proscriptive rules for their legal, moral and religious betterments. § 4.2.5 Religious and Customary Law. Religious and customary law traditions mix in one state.40 § 4.2.6 Other Mixed Law States. Complexities arise within the strongly mixed law states. There are religious law, common law, civil law and customary law states (four states),41 and a religious law and customary law state.42 § 4.3 Attempts at Uniformity and Forum Shopping. To some extent every trading state has commercial laws similar to other trading states and the uniformity (identification) or harmonization of those laws was seen in the mid-nineteenth century as being salutary to efficient trade.43 The International Institute for the Unification of Private Law (UNIDROIT)44 is an independent IGO in Rome which arose from the League of Nations. Its purpose is to study needs and methods for modernising, harmonising and coordinating private commercial law between states.

It is founded on the UNIDROIT Statute, 1940 and has 63 member states. UNI-DROIT has prepared many studies and drafts which have become conventions.45 The adaptation of uniform laws in states brings about economic efficiency and eases the often artificial impediments of trade. Despite improved statutory law, cases are often brought to courts that remain within a state’s law tradition, with the exception of the strongly religious law systems, which usually have a commercial an non-religious court for commercial cases. The disparity produces the tendency to forum shopping, choice of law clauses in contracts, and jurisdictional approaches such as the application of forum non convenience/alibi lis pendens doctrines.46 These approaches strongly interact with private international law or the conflict of laws, a part of the commercial law landscape that has seen a great deal of attention as one would suspect.47 However, as long as the outcome of a case with the same facts in State A is dissimilar to the outcome in State B, this disparity will continue.48 Practical proactivity can call for the contemplation of good choice of law clauses in a forum to the liking of the contracting parties.49 The Comité Maritime International (CMI or The Comité) is an NGO established in the late nineteenth century. It has a number of state associations.50 On the private side of uniformity of laws, the Comité proclaims itself as the first international organization concerned exclusively with maritime law and related commercial practices. Its “object is to contribute by all appropriate means and activities to the unification of maritime law in all its aspects.”51

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