ship control and classification · social matters over sh ips flying its flag. 2. in particular...

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Scandinavian Institute of Maritime Law

Ship control and classification

October 2013

Henrik RingbomProfessor II

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Outline

1) Key players

2) Norwegian maritime safety and security act

3) International instruments

– Jurisdiction: UNCLOS

– Technical: SOLAS, MARPOL, STCW

– Port state control

4) Classification societies

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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


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)

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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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Flag State Coastal- / port State

High seasMinimum:‘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

Internal waters, ports

Internal rules(implicitly)

Max: ?

Prescriptive jurisdiction in the law of the sea


Flag StatesOnly 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

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Scandinavian Institute of Maritime LawFlag State duties

Article 94Duties 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;

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 observance.

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 on 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.


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Flag StatesVery 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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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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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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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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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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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

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Other conventions

COLREGs

SAR

Salvage

Anti-fouling systems

Ballast water management

Ship recycling

F t h ?


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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New Inspection 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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• 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,



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)

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Norwegian ship safety and security act

• Administrative organisation (ministry, maritime directorate, 17 regional stations)

• Accident investigation branch

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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


EQUASIS

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Mortgages, maritime liens, retention and arrest

October 2013


Security(maritime lien, insurance)

Limitation(value of ship, LLMC)

Liability(contract or tort)

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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)

Conventions

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

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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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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

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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)

NMC §51 Protected claims

Claims against a ‘reder’ are secured by maritime liens against the ship, in so far as they relate to1) 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.

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

Protected claims– Salvage Reward– Expenses in relation for 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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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)

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Shipowner’s liability

October 2013



Different kinds of shipowner’s liability Contractual liability Limitation

– Charterparties c/p clauses +LLMCMainly facultative law (MC Ch. 14)

– Cargo & passengers weight & p/capita+LLMCMainly mandatory law (MC Ch. 13, 15)

Non-contractual liability– Oil pollution (Ch. 10) CLC/IOPC, Bunkers

– HNS and other env LLMC(Ch. 7 + national law)

– Collision liability (Ch. 8) LLMC

– Nuclear liability (Ch. 11) International Conv

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General

Who is the liable party (the ‘reder’)?

Damage + negligence (or other legal basis liability)

Causal relationship between the two

Proximity between act (or omission) and damage


MC § 151 (7:1)“The shipowner (reder) shall be liable to compensate damage caused in the service by the fault or neglect of the master, crew, pilot, tug or others performing work in the service of the ship”

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§ 151 cont’d

“A reder who is liable according to paragraph 1 may claim compensation for the amount paid from the person who caused the damage. The statutory provisions concerning the right to abate the liability of the tortfeasor in relation to the victim shall however apply correspondingly to the claim of the reder.”


Limitation of liability Background for ‘global’ limitation

Main principles

Who can limit? (§ 171)

What can be limited? (The field of limitation §172, 173)

Exception §174: “caused the loss deliberately or through gross

negligence with knowledge that such loss would probably result”

Practical arrangements

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MC § 171 (9:1)

Persons who can invoke limitation:

Shipowners (including charterer), salvors and persons for whom they are responsible, + insurer


MC § 172 (9:2) (LLMC Art 2(1))

“Subject to Articles 3 and 4 the following claims, whatever the basis of liability may be, shall be subject to limitation of liability:

a. claims in respect of loss of life or personal injury or loss of or damage to property (including damage to harbour works, basins and waterways and aids to navigation), occurring on board or in direct connexion with the operation of the ship or with salvage operations, and consequential loss resulting therefrom;

b. claims in respect of loss resulting from delay in the carriage by sea of cargo, passengers or their luggage;

c. claims in respect of other loss resulting from infringement of rights other than contractual rights, occurring in direct connexion with the operation of the ship or salvage operations;

d. claims in respect of the raising, removal, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such ship;

e. claims in respect of the removal, destruction or the rendering harmless of the cargo of the ship;

f. claims of a person other than the person liable in respect of measures taken in order to avert or minimize loss for which the person liable may limit his liability in accordance with this Convention, and further loss caused by such measures.”

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Limitation amounts

1976 LLMC 1996 LLMC

Minimum limit

(up to 500 tons (1976),or 2,000 tonnes (1996)

167,000 SDR 2,000,000 SDR

Ship of 30,000 tons 5,093,500 SDR 13,200,000 SDR



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Shipowner’s liability – special regimes

October 2013


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Outline

1) Limitation of liability (cont)

– Discussion

2) Collision liability

3) Liability for passengers

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Limitation of liability Background for ‘global’ limitation

Main principles

Who can limit? (§ 171)

What can be limited? (The field of limitation §172, 173)

Exception §174: “caused the loss deliberately or through gross

negligence with knowledge that such loss would probably result”

Practical arrangements


Limitation of liability (in operation) Limitation fund, practice, guarantees

Where established?

Early payments (§176)

Links to liens (§176), arrest (§178(1)

Recognition

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Collision liability Background

What is a collision?

Fault-based

– One ship is at fault

– ‘Both to blame’

– Even more ships?

– No-one at fault

How to assess fault?

Collision liability (cont’d) Damage in proportion to the fault

– Between ships

– Cargo claims

– Personal injury claims

Ship – other structure collisions

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Collision liability

Collision convention Ship to ship collisions Three-ship collisions Collision and pollution Ship to shore collisions

– ND 1921.401 Neptun– ND 1952.320 Sokrates

Both to blame collisions Collision and insurance

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Security(maritime lien, insurance)

Limitation(value of ship, LLMC)

Liability(contract or tort)

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Carriage of passengers by sea

NMC Ch 15, being replaced Athens Convention - 2002 Protocol EU Regulation 2009/392

– Assists passengers in obtaining compensation– Replaces the fault-based liability system– Compulsory insurance to cover passengers on ships– Raises the limits of liability – Strict liability for ‘shipping incidents’

ship control and classification · social matters over sh ips flying its flag. 2. in particular...

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