International Law of the Shipmaster




“If you wish to avoid foreign collisions, you had better abandon the ocean.” Rep. Henry Clay (1777-1852), Speech in the United States House of Representatives, 22 January 1812.
§ 7.0 How This Chapter is Organised. A flag state1 has jurisdiction over a ship in its registry and thereby gives the national character of the state to the ship. The master enforces flag state laws on his vessel by the licence or certificate the flag state issues him. The licence or certificate is the warrant under those laws which grant him the authority to enforce them on the high seas and in other waters, subject to the requirements of UNCLOS 1982.2 Under the Convention, coastal and ports states have some limited civil and criminal jurisdictions3 over waters adjacent to their coastlines and within their land borders.4 The coastal state jurisdiction extends to vessels in the Exclusive Economic Zone, the Contiguous Zone, the Territorial Sea and the internal or inland waters of the state.5 The difficulties arise when decisions must be made as to whose jurisdiction has priority - flag state or coastal state. Jurisdictional matters are discussed in Section A, Jurisdiction.6 Coastal and port states are not adjacent to the high seas. These states have two sets of powers germane to the shipmaster which they exercise in their jurisdictions. One power in all such states expresses itself as a set of policies which are designed to protect the states and their adjacent waters and their shores from the unsafe structures and practices of domestic and foreign vessels. This falls under the domain of port state control. Because each IMO member state has a policy of promoting the safety of vessels, each coastal and port state contracting party is responsible for inspecting incoming vessels within its jurisdictions. Each state has the powers to deny entry, to delay entry or departure, to cause repairs to be made or to detain vessels indefinitely upon their entering its jurisdiction. The port state control function is directed at reducing the frequency of entry of vessels which are unsafe or deficient in ways affecting safe operation. The function is coordinated through a series of regional memoranda of understanding7 among states, encouraged by the IMO,8 wherein states agree to inspect and to report to parties to the MOUs the conditions of vessels which have been inspected and the actions taken to remedy deficiencies found. Section B, Port State Control discusses these matters. The second set of powers are exercised in the criminal or penal jurisdiction of each state aspiring to make the maritime endeavour more nearly secure while keeping trade not unduly hindered. These powers are expressed under the ISPS Code9 and in the SUA Convention 1988 and its 1988 protocol.10 The ISPS Code is an agreement to which the master is subject. The ISPS Code was a direct response to the increased observed frequency of terrorism and violent or morally reprehensible crimes. The ISPS Code came about proximately as a result of the attacks on the United States on 11 September 2001 at the strong encouragement of the United States within the IMO. It applies to all parties of SOLAS and was subject to tacit approval.11 It is discussed in Section C, The ISPS Code. The ISPS Code applies to the United States. In addition to the ISPS Code, the United States government has put in place a series of laws and policies which may be perceived by some as merely rationally defensive and by others as unduly harsh12 and unyielding to any reasoning.13 The shipmaster should be fully aware of the procedures of its maritime administration and the rights of the United States government and his rights and the rights of his vessel before proceeding into the jurisdiction of the United States. He should also be aware of whether or not he is in the jurisdiction of that state14 which can be expansive. The United States is a special situation in the overall efforts of maritime security.15 These matters are discussed in Section 7 D, the Special Case of the United States. Section 7 E, Boarding, Inspection and Arrest Powers and Practices of the United States continue the discussion of Section 7 D.

§ A 7 Jurisdiction

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