The Field of Law of Maritime - Essay Example

MARITIME LAW (CRITICALLY ANALYSE THE EFFECTS OF THE RATIFICATION OF THE INTERNATIONAL CONVENTION ON THE ARREST OF SHIPS (GENEVA 1999 Type of the Paper February 23, 2013 1275 words Name of Author Name of the school Introduction The law of maritime claims has been promoted along different routes in civil law administration. Vessels are recognised as objects of security rights in all nations. Despite this and the fact that maritime claims are of profound commercial significance, there is a high degree of international uncertainty in the subject of maritime claims and mortgages. There is a great difference among nations in the way they create and enforce maritime claims. It is for this reason that a standard list of maritime claims and an agreeable way of enforcing them was drafted by Comire Maritime International and adopted by the Brussels Diplomatic Conference. In 1926 in Brussels, the initial efforts were made to unify particular rules regarding maritime claims and mortgages.1 However, there were problems in the enforcement of the rules and this led to a review in 1952 in Brussels, undertaken by IMO and UNCTAD. The international convention on the arrest of ships was the combined efforts of the numerous conventions held earlier, especially the 1952 international convention, which aimed at unifying certain rules adopted by various countries in relation to arrest of sea going ships. At Geneva in March 1999, the new international convention on the arrest of ships as expressed in A/CONF.188/6 was adopted by the conference, after reviewing the 1952 arrest convention to address the identified deficiencies. As a result, the categories of maritime claim that could lead to arrest were altered, changing from 17 in 1952 convention to 22 in the 1999 convention.2 Not many countries have been able to approve the new convection, so it may apply in their countries, because some nations still feel dissatisfied by the new rule and its consequences it could cause in the nations. After Albania, which was the 10th country to ratify the new convention in March 2011, the new international convention came into force on 14th September 2011, and was to apply to any ship within the signatory state’s jurisdiction.3 The number of ratifying countries is still low and one would question the reason for the reluctance; it is worth noting that most of the powerful nations, such as the US, UK, and Japan have not attempted to approve it. However, by properly analyzing the 1999 arrest convention and its implications, there are both benefits and negative effects in the society. Effects of the New Convention 1. Liability for unjustified arrests or excessive security Following the inclusion of damages costs in the 1999 convention, which was not part of 1952 convention, the owners of the arrested ships are further protected by the legal terms in case of incurred loss, found to have been attributed to the claimant arrest directive. According to Article 6 of A/CONF.188/6, the court could impose upon the claimant the obligation to provide certain security, upon such terms as could be determined in court for any loss the defendant acquires from the unjustified/wrongful arrest, or demanded excessive security in which the claimant may be found liable.4 With this part of the law, there are chances that the shipping industry may view the article differently. ‘The states with flags of convenience and states with large fleets could try to limit the cases where arrest may be made and thus ratify the 1999 convention, whereas states having a dominant trading economy might request security for what could happen to their cargo and their contracts of carriage vital for import and export.’5 While some countries could limit the cases of arrest within their jurisdiction for fear of defendants claim for damage, others could increase chances of security claim for their benefit. This move extends to cause more costs in solving for the cases that will occur in future, due to broadened scope of arrests considering that no party so desires to spend their resources on others. 2. Differences in application of the convention Some countries have been using the 1552 Brussels convention, but have refused to ratify the 1999 convention for what they claim to be undermining the individuals countries’ economic activities in its broad spectrum. India is not a signatory of the new convention, but its supreme court applies the principles of 1552 and 1999 convention in its common law for ships arrest.6 Each country that has ratified or intends to approve the 1999 convention will do it as an individual country, the implications and application may also tend to vary in the different nations. Countries which could have adopted earlier conventions could have conflicts in the enforcement of the 1999 convention. They need to denounce such conventions (1952 convention) to prevent misinterpretation and application overlapping of the different international legal structures.7 Although Spain is currently a signatory of the new convention, in its scope of application, ‘Spain has reserved the right to exclude the application of the 1999 convention in case of the ship not flying the flag of a state party.’8 Spain’s application difference comes in through the aspect of stating that the convention applies to ‘any ship’ within the jurisdiction of a state party, despite the ship flying the state’s flag or not.9 Basically, the 1999 international convention just reached at a consensus on certain provisions to be included in the convention, a good strategy, but far less to attain uniformity of application in the member states parties to the convention. According to Abou-Nigm, from a private international law perspective, the scope of application of the convention, its interpretation in different state parties, and the disruptive recourse of the law would undermine uniform application of the convention in ships arrest.10 As a result, various countries would choose not to ratify or apply the convention in a different manner, to avoid their countries trade activities and shipping industry. 3. Jurisdiction on merits The 1999 arrest convention stipulates that the courts, where an arrest would be effected or security provided in order to release the ships/vessels in arrest, has the authority to determine the forwarded case on its merit; the only exceptional option is when the parties have agreed to submit the dispute on to valid arbitration agreement.11 There are chances that countries would be biased towards one group to save their state’s businesses and parties. The chances that non signatory’s country ships/vessels been subjected to unfair practices within jurisdiction of 1999 international convection states parties are high. Again, if the law applies to small and large-scale vessel or cargo ownership, the impacts after the arrest and if found guilty could have varying degree of effects in their operations. 4. Society and creditors benefits Based on the convention, the environmental pollution on the water bodies and those related to the shipping activities, but occurring on land, which is dangerous for the states resources and aquatic life will be minimized within the member states. From Article 1 part 1(d) of A/CONF.188/6, the costs mentioned for the clean-up and damage caused would make the water vessels careful in their docking, and using of water environments within countries jurisdiction as their path to their destination.12 It sensitizes against environmental degradation for the ecosystem survival. So far, the convention can be acknowledged for its effort to bring a balance between the interests of the vessel or cargo owners and those of the claimants. 5. Sister ship arrest The manner which nations view the public policy differs, and before they apply a particular policy, they have to be satisfied that it would not serve to drag the nation in the application. Some provisions like the sister ship arrest, places many countries at the crossroad, in a dilemma on whether to approve it or not, because it could offend the fundamental principles of the public order in the nations. Although nations and property owners talk of uniformity, the uniformity that each would want is impossible, unless they set aside their internal interest, which in this case, not many nations are willing to restructure their internal public order to accommodate the 1999international maritime law. Like in the 1952 convention, the related arrests (‘sister ship’) has remained unaltered in the 1999 convention, and instead, adopted the earlier 1952 criteria based on shareholding and demise charter. As a result of the convention being passed by the passing of time, adopting it does not bring relevance to the modern nations shipping industry, but rather creates another platform to steer the dispute involving the single ship company issue that affect the ship owners and the claimants. According to Kanellopoulos, the matter appears to further controversies considering the fact that the doctrine of sister-ship and single-ship company model appear have a connection, hence a crucial legal issue that receives different and independent treatment in each jurisdiction.13Effectively, the world nations are not ready yet for a universal binding law with the shipping companies association, unless the dispute is addressed and the Article 3 especially part 2 and 3 clearly get to be open and relevant to apply fairly to every stakeholder. Countries have been dealing with trades and economies related to shipping activities and already, the pressure they have been experiencing cannot be worsened by approving another anonymous law that would probably harm them. 6. Fostered economic development Following the economic crisis that easily spread from an international level affecting individual nations and trading regions, the 1999 convention facilitated a consolidated framework to merge numerous conventions. The maritime Liens and mortgages (MLM Convention) has to be acknowledged for laying the foundation of the gradual acceptance of the 1999 convention. The shipping industry is a very wealthy sector of the economy and most of the resources (circulating money) generated in the industry, never used to be reclaimed completely for economic gains in a nation. Therefore, the arrest of ship through the 1999 convention is an efficient technical and legal method for states parties’ economic gains. Some advantages could be experienced from a developing country perspective, such that by referring to the conventions maritime claims to disputes related to ownership of ship, contracts of ship sales, or claims regarding mortgages among others, could result in ship or vessels financing and ownership after purchasing them as second hand machineries.14 Through the legal framework, it is therefore easy to regulate the ports and shipping activities against illegal activities and encourage fair practices for involved shareholders, which encourage trade and economic growth. Bibliography ‘An Arresting Development’, http://www.maritimeadvocate.com/ship_arrest/an_arresting_development.htm, (23 February 2013) Abou-Nigm, V. R., The Arrest of Ships in Private International Law, New York, Oxford University press, 2011. Blackmore, C., ‘The International Convention on the Arrest of Ships 1999’, http://www.simsl.com/Publications/Articles/99ArrestConvention0911.htm, 2013, (accessed 23 February 2013) Dotinga, H., and Kwiatkowska, B., International Organisation and the Law of the Sea: Documentary year book 1999, Dordrecht, the Netherlands, Martinus Nijhoff Publishers, 2001. Espana, N., ‘Entry into force in Spain of the International Convention on the Arrest of Ships, done at Geneva on 12th March 1999’, (May 2011), http://www.raetsmarinecommunity.com/files/Entry%20into%20force%20in%20Spain%20of%20the%20International%20Convention%20on%20the%20Arrest%20of%20Ships_0.pdf, p.1, (accessed 23 February 2013). Force, R., Yiannopoulos, A. N. and Davies, M., Admiralty and Maritime Law, Volume 2, Washington D.C., Beard Books, 2008. Hathi, S., and Hathi, B., ‘Ready Recknor on Ship Arrest in India: Practicalities of Ship arrest in India’, http://bruschambers.com/marine/memo41a.htm, (accessed 23 February 2013). Kanellopoulos, K., ‘Ship Arrest Under the 1999 Ship Arrest Convention,’ http://pk-law.gr/articles/sec5292.htm, (accessed 23 February 2012). Okoli, S. O., ‘Arrest of Ships: Impact of the Law on Maritime Claimants’, (24may 2010), http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=1698588&fileOId=1698590, p.44, (accessed 23 February 2012). T, Kegels, ‘Arrest of Ship: The End of Uniformity?’,P.123, http://www.kegels-co.be/pdf/file/Kegels%20Tony,%20Arrest%20of%20Ships,The%20End%20of%20Uniformity%20-%20In%20Liber%20Amicorum%20R_%20Wijffels.pdf,(23 February 2013) UN/IMO, ‘Final Act and International convention on Arrest of Ships, 1999’, (19 March 1999), http://unctad.org/en/docs/imo99d6.pdf, p.13-14, (23 February 2013) UNCTAD, ‘Chapter 5 Legal Issues and Regulatory Development,’ Review of Maritime Transport 2011, (2011), http://unctad.org/en/docs/rmt2011ch5_en.pdf, p. 110-111, (accessed 26 February 2012). UNCTAD, ‘29 Mar 11 - International Convention on Arrest of Ships 1999 to Enter into Force in September 2011’, http://unctad.org/en/pages/newsarchive.aspx?ReferencePageId=5894&Sitemap_x0020_Taxonomy=Technology%20and%20Logistics; 2012, (accessed 23 February 2013). Read More