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MARITIME LAW

By:
Sulaiman Olanrewaju Oladokon
NATURE OF MARITIME LAW
‰ Ports are the link between maritime and land-based trade.
‰ Traditionally ports were located where the geography was
favourable.
‰ In some cases this meant that the coastline at that point
provided a sheltered anchorage – Sydney and Freetown
in Sierra Leone are examples. Other ports were located
near the mouths of rivers, enabling river and sea traffic to
meet: Hamburg, Rotterdam, Shanghai, London and New
Orleans are examples.
‰ Others are to be found on straits between landmasses –
like Istanbul – or where major trade routes pass – such as
Singapore. divers.
NATURE OF MARITIME LAW
‰ During the last fifty years, however, ports have changed.
As trade and industry grew, so the traditional city-centre
ports became too small and congested to cope with
demand. Ships grew in size and many ports were too
small to accommodate the larger ships coming into
service. Container ships, bulk carriers and oil tankers all
demanded huge land areas for storing and handling
cargoes. Inevitably, the demand for more land and deep
water meant that ports had to be re-located further down
river, often well away from the traditional centre. This
encouraged and indeed necessitated the provision of new
road and rail links.
NATURE OF MARITIME LAW
‰Container traffic has revolutionised not
only the way ports operate but also the
way they look. In each case, huge areas of
land are required for container storage and
for cargo handling equipment. The
photographs above show terminals in
Hong Kong, Rotterdam and Southampton.
Ports today have to be able to handle a wide
variety of cargoes such as refrigerated fruit,
general cargoes and containers.
• As shipping and trade developed, so did the paperwork involved
until by the 1950s it was being regarded not simply as an
inconvenience but as a positive threat. The following account
indicates the sort of problems that a shipmaster of the time might
expect to encounter:

• A report[1] Merchant Shipping on a Sea of Red Tape compared the


documentary requirements and procedures associated with
international shipping with those related to the international airline
industry and made it clear that merchant ships were foundering in
self-inflicted bureaucracy. Analysis showed that whereas only three
or four documents were required of aircraft, ports frequently required
no fewer than 22, 32 or even 46 separate documents of a ship.
ELEMENTS OF MARITIME LAW
• The increase in international trade that characterised the last half of
the 20th Century meant that most ports around the world were
transformed from docks and warehouses located in city centres to
modern centres located on huge new sites. But experience showed
that in addition to physical changes, world ports needed to
reconsider their approach to the regulations and paperwork involved
in trade. For there was little doubt that in some cases trade was
being held back by practices that were no longer suited for modern
conditions. Most regulations are essential - but sometimes they
come to be not only unnecessary but as a positive burden on the
activities they are supposed to control. Few activities have been
more subject to over-regulation than international maritime transport.

This is partly because of the international nature of shipping: countries


developed customs, immigration and other standards independently of each
other and a ship visiting several countries during the course of a voyage could
expect to be presented with numerous forms to fill in, often asking for exactly
the same information but in a slightly different way.
CARRIAGE OF GOODS BY SEA
• The report concluded that:
• The need to simplify ships' documents was urgent and the
demands of individual Governments had to be put into clear
perspective with the overall welfare of merchant shipping.• The cost
savings, which could be achieved from simplification and
standardization, were significant both to industry and to
Governments and should be sufficient motivation to spur those
concerned into immediate action.• The experience of airlines since
the establishment of the International Civil Aviation Organization
(ICAO) provides a pattern for similar action by the shipping industry
and Governments within the International Maritime Organization
(IMO)• In the final analysis, ship documentation simplification is the
responsibility of Governments, and their co-operation is essential if
the outcome is to be successful.
LIABILITY ISSUES
• The report recommended that all possible efforts should be directed
towards intergovernmental action, preferably through IMO, which
had met for the first time just a few weeks before the report was
published. It reveals a great need to eliminate duplicative forms and
to simplify, unify and standardize the remaining maritime
documents. The report defined the various tasks as:
•Simplificationthe process whereby superfluous data and
unnecessary documents are eliminated or at least
modified.•Unificationthe combining of several similar documents
whenever possible.•Standardizationthe development of definite size,
format and language for documents designed for a specific purpose
and use, and their general acceptance by and use throughout the
industry.
DEFINATIONS
• The Facilitation Convention

• The problems outlined in the 1959 report, if anything, grew worse over the
next few years and by the early 1960s the maritime nations had decided
that the situation could not be allowed to deteriorate further. International
action was called for and to achieve it Governments turned to IMO.

• In 1961 the 2nd IMO Assembly adopted resolution A.29 (II), which
recommended that IMO take up the matter. An Expert Group was convened
which recommended that an international convention be adopted to assist
the facilitation of international maritime traffic. In October 1963 the 3rd IMO
Assembly adopted resolution A.63 (III), which approved the report of Expert
Group and in particular recommended that a convention be drafted, which
would be considered for adoption at a conference to be held under IMO[2]
auspices in the spring of 1965. The conference duly took place and the
Convention on Facilitation of International Maritime Traffic (FAL), 1965 was
adopted on 9 April.
DEFINATIONS
• Its purpose is summed up in the foreword, which says:
"The Convention was originally developed to meet
growing international concern about excessive
documents required for merchant shipping. Traditionally,
large numbers of documents pertaining to the ship, its
crew and passengers, baggage, cargo and mail are
required by customs, immigration, health and other public
authorities. Unnecessary paperwork is a problem in most
industries, but the potential for red tape is probably
greater in shipping than in other industries, because of its
international nature and the traditional acceptance of
formalities and procedures.
• "The Convention emphasizes the importance of
facilitating maritime traffic and demonstrates why
authorities and operators concerned with documents
should adopt the standardized documentation system
developed by IMO and recommended by its Assembly for
world-wide use.".
TRANSPORT DOCUMENTS

• The Convention is a "co-operative" treaty whereby Contracting Parties


undertake to bring about uniformity and simplicity in the facilitation of
international maritime traffic. It entered into force on 5 March 1967 and
outlines general principles relating to international maritime facilitation.
• The Conference concluded that formalities, documentary requirements
and procedures on the arrival and departure of ships should be simplified
and, in particular, that public authorities should not require for retention
any declaration other than the eight listed in Standard 2.1 (see below).

• The Conference invited Governments to adjust their national legislation


when practicable and, to this effect, drafted international standards to
facilitate their incorporation into national legislation.
• In its Annex, the Convention contains "Standards" and "Recommended
Practices" on formalities, documentary requirements and procedures
which should be applied on arrival, stay and departure to the ship itself,
and to its crew, passengers, baggage and cargo.
1. CARGO PLAN
• This flexible concept of standards and recommended
practices, coupled with the other provisions, allows
continuing progress to be made towards the formulation
and adoption of uniform measures in the facilitation of
international maritime traffic.
• Standard 2.1 lists eight documents which public
authorities can demand of a ship and recommends the
maximum information and number of copies which
should be required. IMO has developed Standardized
Forms for six of these documents. They are the:
• IMO general declaration• cargo declaration• ship's
stores declaration• crew's effects declaration• crew
list• passenger list
Contents of cargo plans
• The other two documents are required under the
Universal Postal Convention and the International Health
Regulations.
• The general declaration, cargo declaration, crew list and
passenger list constitute the maximum information
necessary. The ship's stores declaration and crew's
effects declaration incorporate the agreed essential
minimum information requirements.
• The adoption of the Convention was an important step,
but the next step was to encourage as many
Governments as possible to ratify it. IMO prepared a
document that lists the various advantages to be gained
from doing so. They are:
BILL OF LADEN(B/L)
• GeneralA standardized rapid system of clearing ships inwards and outwards with
easy completion of clearance documents in advance of the arrival of the ship
eliminates delay and contributes to a quick turn-around.Minimization of passenger
clearance requirements reduces dock-side congestion and eliminates the need for
correspondingly larger facilities.Easy reproduction on small inexpensive machines by
shipboard or shore-based personnel of the simplified standardized documents
reduces filing and storage space requirements.The uniform layout makes the use of
Automatic Data Processing (ADP) techniques possible.2To governmentsReduction
of the administrative burden and better utilization of personnel in customs and other
public authorities is achieved by eliminating non-essential documents and
information.Formalities are no more onerous than those of competing
ports.Governments have the benefit of forms designed by international
experts. Simple, well-designed forms make for more efficient and less-expensive
administration and help increase port throughput by preventing unnecessary delay to
ships, passengers and cargoes.National forms which follow an international model
are more readily understood by ships' masters and, therefore, more likely to be
correctly completed. Language difficulties are minimized.The uniform position of
similar items of information on each form makes it easier to check the documents and
extract the required information.
INTERNATION REGULATIONS-
GOG AND B/L
• General benefits derive from the acceptance of the principle that formalities and procedures in
respect of maritime traffic should be no more onerous than those for other modes of
transport.Fewer and simpler forms need to be completed. Less information is required and less
work is therefore involved.If no changes are foreseen with regard to crews, ship stores or
passengers during the voyage or any part of it, identical forms for several ports can be completed
at the same time. In such circumstances the same forms can be submitted both on arrival and on
departure.The ship's manifest and cargo declaration can be completed in one run, thus keeping
down costs and reducing the possibility of errors.The uniform position of information makes typing
easier and contributes to quicker familiarization of new personnel with document processing. It
also facilitates the use of ADP.4 To shippersThe enhanced efficiency of clearing ships and cargo
saves time and expense.The use of standardized commercial documents, e.g. bills of lading,
simplifies the production of documents.Cargoes awaiting shipment or collection are exposed for a
shorter time to the risk of damage or pilfering within port facilities.The utilization of containers and
pallets is improved.It becomes possible to utilize documents produced by ADP
techniques.Requirements for authentication of documents are simplified.Time savings reduce the
charges for services rendered by public authorities outside regular working hours. IMO also
recognizes that the shipping industry's co-operation is essential if the benefits of these facilitation
efforts are to be realized. It is hoped that operators and masters might be made aware of the
advantages of facilitation and, with the assistance of their port agents, might press for the early
replacement of national forms by internationally standardized forms
SCOPE OF HAMBURG RULE
• The 1973 amendments

• Despite its value, the Facilitation Convention, like any other international treaty,
needs to be kept up to date. Unfortunately, the amendment procedure
incorporated into the Convention made this extremely difficult. To enter into force
an amendment had to be accepted by two-thirds of the Contracting Parties. But,
as the number of Contracting Parties increased, so did the number required to
reach the two-thirds target. It became clear that amendments adopted under this
procedure would take so long to meet requirements for entry into force that the
amendments themselves might be out of date by the time they did so.
• This problem was common to a number of other IMO instruments and to
overcome it a new amendment procedure known as 'tacit acceptance' was
devised under which amendments to a convention automatically enter into force
on a predetermined date unless they are rejected by a specified number of
Contracting Parties.

• In 1973 an amendment was adopted to introduce this procedure into the


Facilitation Convention. However, the amendment was bound by the original
amendment procedure and it did not finally enter into force until 1984 (incidentally
proving just how necessary the amendment was).
HARMBURG RULE
• 2. While this amendment was going through the acceptance procedure,
there was very little for the Facilitation Committee to do. This enforced delay
had damaging effect on IMO's work in the facilitation area and, after the
14th session in 1981, the Committee did not meet again until 1984. When it
resumed work the Committee's greatest priority was to prepare a package
of amendments to the Convention. The Committee report says that many of
these were "most urgent if the Convention is to reflect even current
practice..."

• One of the main purposes of the amendments was to permit the use of
automatic data processing (ADP) and other modern communications
techniques, which had developed rapidly during the preceding years. They
entered into force on 1 October 1986 and also made it possible for the
shipping world to make use of another development known as electronic
data interchange (EDI). This is basically a means of enabling computers to
talk directly to each other. Because modern business transactions were
increasingly being computerized this had a number of advantages.
Article 14. Issue of bill of lading
• It increased business efficiency - since the number of keying-in operations was reduced, so was the number of
errors. This meant economies on staff - and even on telephone calls. Despite this, EDI did not conquer the
trading world quite as quickly as some prophets’ forecast. One reason was the lack of a common language or
standards, which are necessary if computers are to communicate directly. Many banks and other institutions
developed their own standards, but these were not compatible and smaller enterprises had no obvious standards
to turn to.

• In 1987, however, a major turning point came when a meeting organized by the United Nations agreed on a
standard known as EDIFACT, which meant that, for the first time, the world had a universal computer language.

• Since then, many shipping companies and others in the industry have adopted EDI, using EDIFACT and in 1989
the European customs authorities also agreed to accept paperless trading, with EDIFACT as the standard. This
was important to shipping, because much of the paperwork involved in maritime trade is for customs purposes.

• Its value was shown in June 1990 when a Soviet ferry, the Ilich, entered Stockholm after what was otherwise a
routine voyage from St. Petersburg. What made this one exceptional was that, for the first time in shipping history,
EDI was used to despatch all necessary customs information to the port authorities.

• The Ilich prepared this information on IMO's standard FAL forms. It was then sent to Stockholm via the satellite
system operated by the International Maritime Satellite Organization (INMARSAT), which was established by IMO
in the 1970s. The information consisted of 14 A4 pages and took just 2 minutes, costing only US$8 to
transmit. INMARSAT estimates that it would have taken 16 minutes and US$180 to send by telex and 8 minutes
and US$90 to send by fax. The biggest advantage of using EDI in this way, however, is the saving in time spent in
port.
CONTENTS OF BILL LADDEN
• Other matters
• The Facilitation Committee also turned its attention to a number
of other matters, which are of concern to Member
Governments.

rug Smuggling: the smuggling of illicit drugs is a major


problem in many parts of the world and it is generally
recognized that international co-operation is essential if it is to
be eradicated. In 1987 IMO issued guidelines for use by
shipowners, seafarers and others closely involved with the
operations of ships in preventing drug smuggling. Their aim is
to combat illicit drug trafficking without impeding international
maritime trade.
Others
• The guidelines list some of the security precautions that should be taken to prevent drug smuggling and the places
where drugs are most likely to be concealed. The major drugs are described - they include cannabis, heroin,
cocaine, amphetamines, barbiturates and hallucinogens. Further advice is then given on detecting drugs, and
what to do when they are found. The guidelines point out that members of the ship's crew may themselves be
drug users and the guidelines give advice on how addicts may be detected.

• National Facilitation Committees: in August 1989 IMO issued guidelines for the establishment and operation of
national facilitation committees. They recommend the establishment of a body representing the main interests
concerned with facilitation, including Government clearance agencies, such as immigration, customs, consular,
passport and visa, public health, agriculture, security and narcotics control; other governmental agencies including
postal services, tourism and trade departments; port authorities; shipowners and operators; shipping and freight
forwarders and agents.

• Elderly and Disabled Passengers: in August 1989 another circular was sent out by the FAL Committee dealing
with the access to marine passenger terminals for elderly and disabled passengers. It points out that as many as
10 per cent of the world's population can be categorized as disabled, many of them elderly. This proportion is likely
to rise with the progressive ageing of the world population.

• HIV Screening: in October 1988 the IMO Assembly adopted resolution A.639 (16) that deals with the
undesirability of human immune deficiency virus (HIV) screening of crews and passengers of ships. It backs up
actions taken by other United Nations bodies such as the International Labour Organisation (ILO) and the World
Health Organization (WHO). It noted that an increasing number of countries require certificates to testify that the
bearer is not infected with the acquired-immune-deficiency-syndrome (AIDS) virus. It points out that this practice
would not only be difficult to implement but would not be able under any circumstances to prevent the spread of
HIV infections. Screening for HIV would divert resources away from other measures to combat AIDS. The
resolution recommends Member Governments not to introduce HIV screening while those who have already done
so are recommended to reconsider other measures.
Others
• In addition to continuing its efforts to remove red tape, IMO is trying to make international maritime trade and
passenger travel easier and more efficient. The Organization has developed a range of graphical symbols and
signs for use at marine terminals and on board ship. These have the advantage over conventionally written signs
in that they do not have to be translated and are therefore comprehensible to people of all nationalities. The
symbols developed for on board ship are concerned with life-saving appliances and arrangements and
fire-fighting. The newly developed signs and symbols for use at marine terminals have been included in a
publication produced by IMO and the International Civil Aviation Organization (ICAO).

• Stowaways: in April the Committee adopted further amendments to the Annex, which entered into force on 1
June 1994. One of these amendments was concerned with stowaways. It states that when a stowaway has
inadequate documents, public authorities should, whenever possible, issue a covering letter with a photograph of
the stowaway and other important information. The letter, which should authorize the return of the stowaway to his
country of origin or the point where he commenced his journey, should be handed over "to the operator effecting
the removal of the stowaway. This letter will include information required by the authorities at transit points and/or
the point of disembarkation."

• Smuggling of Aliens: the smuggling of aliens has become an important and controversial issue in today. Apart
from the inconvenience caused to ship operators, port authorities and others there are humanitarian issues
involved and in November 1993 the IMO Assembly adopted a resolution which refers to the fact that "numerous
incidents involving the smuggling of aliens aboard ships have resulted in sickness, disease and death of the
individuals concerned."

• The resolution invites Governments to co-operate in taking the action necessary to suppress the smuggling of
aliens. It outlines various procedures to be taken when alien smuggling is detected, but it emphasizes the
humanitarian aspects, urging Governments which discover evidence that a ship is involved in this practice to
"ensure the safety and humanitarian handling of the persons on board and that any actions taken with regard to
the ship are environmentally sound."
Others

• In December 1992 a Working Group on Strategy for Ship/Port


Interface met for the first time. The meeting was held in response to
the Secretary-General's belief that a study needed to be carried out
into the work undertaken by IMO in the field of technical port
activities. Since then the Working Group has been operating as a
working group of the FAL Committee.

• The reasons for forming such a Working Group were summed up in


resolution A.786 (19), adopted by the Assembly in 1995. It
recognizes the contribution that ports, as nodes in the transport
chain, can make towards the promotion of maritime safety, the
protection of the marine environment and the facilitation of maritime
traffic and the need for IMO to address ship/port interface matters.
Future Activities

• The facilitation of international maritime trade is beneficial to everyone involved - yet there is no doubt that it is a
comparatively little-known aspect of IMO's work. IMO and the FAL Committee in particular have stressed the value to be
derived from removing red tape and other restrictions on maritime trade and the Organization has organized a series of
seminars in different regions to demonstrate how beneficial this work can be.

• During the 1980s an extensive programme of seminars was conducted in Africa and more recently IMO, with the co-
operation of the Economic and Social Commission for Asia and the Pacific (ESCAP) and financial support from the
Netherlands, has arranged a similar programme in South East Asia.

• Meanwhile, the FAL Committee continues its work on reviewing the FAL Convention itself, the use of EDI for the
clearance of ships, the harmonization of reporting formats, technical co-operation and so on. It is hoped that it will soon
will see the conclusion of work on stowaways, at least as far as the adoption of the Assembly resolution is concerned, the
compulsory availability of passenger lists and methods of handling passengers with inadequate documents.

• The SPI Working Group is working on the establishment and operation of reception facilities for shipborne wastes,
including funding mechanisms (this is being carried out under the supervision of the Marine Environment Protection
Committee). Other subjects that are could be finalized during the year include the revision of the IMO/ILO Guidelines on
packing cargo in freight containers, other transport units and vehicles.

• The Working Group also hopes to finish its work on model courses on cargo handling in port areas, emergency
preparedness and response in port areas, the promotion of EDI in matters relating to port management and the
availability of adequate tug assistance.

• [1] Prepared by the U.S. Pacific Coast shipping industry in co-operation with the School of World Business, San
Francisco State College, California, 1 April 1959.
• [2] Until 1982 IMO was known as the Inter-Governmental Maritime Consultative Organization (IMCO).