Constanta Maritime University Annals
15
SMUGGLING ON MARITIME AND RIVER WATERWAYS
1
ANECHITOAE CONSTANTIN, 2GRIGORUT CORNEL,
3
GRIGORUT LAVINIA-MARIA
1,2,
University Ovidius, Constanta, 3National Institute of Economic Research Costin Kiriescu, Bucuresti, Romania
ABSTRACT
Ty a recent paper, Constantin Tanase appreciates that on maritime and river waterways, i.e. in shipping, smuggling
has always found an environment conducive to its development and prosperity. Being a fraud connected to the activities
of trade, it is easy to spot "the opportunities" offered to this phenomenon by the travel by sea or rivers from a port to
another, from one country to another.
Keywords: Maritime smuggling, war contraband.
1. PORT AND MARITIME CUSTOMS AREA
Port and maritime customs area is the port area and
the sea strip than stretch along the coast, where the
coastal State exercises its rights to customs control and
suit. It is extended over the "territorial sea", where the
coastal State has sovereign rights, and over the
contiguous zone, which varies in width from State to
State. With the exception of Poland, the European States
have a maritime customs area which coincides to the
territorial sea width, i.e. 12 miles, under the UN
Convention on the Law of the Sea, signed at Montego
Bay (Jamaica) on 10th December 1982, ratified by
Romania by Law no. 110 of 10th October, 1996. Poland,
whose territorial sea has a width of three miles,
established a customs contiguous zone of 12 miles. Chile
has a customs contiguous area of 100 km, the U.S.
customs control area is of 12 miles and about 35
countries have customs control zones with the width
between 3-12 miles. In port and maritime customs area
the sovereign State can control, track and even
confiscate the vessel for breaking its customs laws.
1.1. Customs Authority
Numerous and more and more complex, multilateral
commercial and customs agreements and treaties among
countries have imposed the existence of international
law principles and customary practices that are applied
and respected in more extensive areas of the planet [1].
Besides the main task to collect taxes under tariff
prescriptions, customs had always had the task to control
goods and documents, the means of transport and to find
law violations.
The first modern customs laws were including
procedure regulations addressed to the activities of
customs clearance of goods and vessels [2]. Law no. 9 /
1949 on Customs reserves section 2 of Chapter II to
"Vessel Customs Police" (art.9-12). This law is in force
today, but, in common vocabulary, reference is made to
the term "port customs police", meaning "customs
authority" of ports, the customs office of
arrival/departure, import/export etc.
According to art. 13 section (1) of Law no. 86/2006
on the Romanian Customs Code, the authorized customs
officials, in order to perform customs control under the
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Year XII, Vol.
law, are entitled to board on any vessel, including the
military ones, in maritime or inland ports, and in
roadsteads.
In transport by sea or river, the master, owner or
agent of the vessel carrying the cargo to be unloaded or
transshipped, shall submit to the customs, within 24
hours of landing, the original of cargo manifest [3] and a
copy of it.
Pr contrario, if there are not carried out
operations of cargo unloading or transshipment, it is not
necessary to bring a copy of the cargo manifest.
Vessel agents are required to write, in Romanian,
on the copy of the cargo manifest, the name of the cargo.
For vessels loaded with mass goods, in the absence
of the cargo manifest, the vessel master, owner or agent
may submit a notice showing the identification data of
the respective goods.
Customs Police receives from the vessel master the
customs manifest [4] of the loaded vessel and the
customs declarations of the crew. It carries out checks in
order to verify the truth of the statements made. It
establishes and situates under the customs law the cargo
and the goods of the crew. It perceives customs fees or
applies customs exempts and asks for the "Clearance
Inward" [5].
When there are found deviations from the law in
force, fines can be imposed or the port police can be
notified.
2. SMUGGLING ON SEA AND RIVER
WATERWAYS
Smuggling is the unauthorized border crossing,
established under the portuary regime, of prohibited
goods or avoiding the customs control of certain goods
[6]. Smuggling can be either a contravention or a
criminal action. Customs offense is punishable by fine
when the offenders good faith is proven (inaccurate
entries in the manifest, inconsistencies found while
discharging, regarding the quantities provided for on the
manifest etc.), or by fine and confiscation of objects,
when the offender is of bad faith but when the amount of
smuggling is relatively insignificant. Customs offense
involves the offenders fraudulent intent and the volume
of smuggling is relatively high. It is punished according
to criminal laws, by fine, the confiscation of objects and
Constanta Maritime University Annals
even by custodial sentences. Most States sanction even
the attempt of smuggling.
Thus, if undeclared objects are found on board,
even if not hidden, they are considered smuggling. The
vessel is liable to customs for any contraband found on
board or which - ascertained outboard - could be
attributed to the vessel [7].
The Romanian Customs Code of 10/04/2006, Title
XII entitled "Penalties", Section 1 entitled "Crimes", art.
270, defines and penalizes the crime of smuggling. Thus,
the entry into or the exist out of the country, by any
means, of goods or cargo, at places other than those
established for customs control, is the crime of
smuggling and shall be punished with imprisonment for
2-7 years and with the interdiction of certain rights.
Also, art. 271. C. v. provides that the introduction into or
the exist out of the country, without any right, of
weapons, ammunition, explosives, drugs, residues,
nuclear or other radioactive substances, toxic substances,
waste, hazardous waste or chemical materials constitute
the crime of qualified smuggling and shall be punished
with imprisonment from 3 to 12 years and with the
interdiction of certain rights, if the criminal law provides
for a greater punishment.
3. THE CONTRABAND OF WAR
The Contraband of War can consist of the goods of
neutral States found on vessels inspected or visited on
the high seas or in the territorial waters of one of the
belligerents or in ports, which, by their nature, can help
the land, air or naval military operations of the enemy, or
are about to help these operations. The classifications
proposed by Hugo Grotius were used in international
conferences: a) the absolute contraband, which includes
the essential items necessary to war development, such
as weapons and ammunition; b) the conditional and
occasional contraband, such as supplies, money, railroad
materials and transportation equipment, machinery,
tractors, horses etc. The articles in this category may be
subject to confiscation if it is found that they are destined
to the military or naval forces of the enemy or to a
military theater occupied by enemy forces. In total
war, the above made classification is not taken into
account. Hugo Grotius argues however, that in a just
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Year XII, Vol.15
war, "the captured objects of enemies should be returned
at their cessation of hostilities"[8].
4. REFERENCES
[1] MLADEN, C., Drept vamal romnesc i comunitar, Ed.
Economic, Bucureti, 2003, p. 13.
[2] The General Law of Customs of 15th June 1874.
[3] The Shipping manifest is the list indicating the cargo
transported (including the bill of lading, cargo name,
tonnage, weight, volume), the sender and the recipient
and the cost of the freight. It is written by the ship's
agent and it informs the naval authorities of the relevant
aspects that must to determined in order to establish the
customs duties.
[4] The Cargo Manifest is the list indicating the number
of the bill of lading or of the inland waterway bill of
lading or of the receipt storage list, but also general
provisions such as: marks and identification numbers of
packages, name, quantity and, where applicable, weight,
package and the provider name and the name of the
beneficiary.
[5] Clearance Inward Procedure of Custom Clearance
on arrival. Arrival statement submitted by the ship to the
customs and the port captain, followed by the liquidation
of all formalities required by port authorities. This is
generally done by portuary agencies. See BIBICESCU,
G., TUDORIC, A., SCURTU, G., CHIRI, M.
Lexicon maritim englez roman, cu termini corespondeti
in limbile franceza, germane, sapniola, rusa. Bucuresti,
Ed. Stiintifica, 1971. pag. 140.
[6] See Gheorghe Bibicescu, Andrei Tudoric, Gheorghe
Scurtu, M. Chiri, op. cit. p. 159.
[7] TNASE, C., Contrabanda pe cile maritime i
fluviale, Ed. Arionda, Galai, 2004, p. 19.
[8] Hugo, Grotius, Despre Dreptul Rzboiului i al
Pcii, Editura tiinific, Bucureti, 1968, p. 746.
[9] GRIGORUT, C., ANECHITOAE, C., et alii,
Management issues for the safe operation of ships and
for pollution prevention, In: RIZZUTO, E., Sustainable
Maritime Transportation and Exploitation of Sea
Resources, CRC Press A BALKEMA BOOK, Italia,
2011, pp. 941-944
.