Ships, Nationality and Registration oProfessor Erik Røsæg oScandinavian Institute of Maritime Law...

Ships, Nationality and Registration

oProfessor Erik RøsægoScandinavian Institute of

Maritime Lawoerik.rosag@jus.uio.no

ofolk.uio.no/erikro

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Ships, Nationality and Registration

o RegistrationoPublic and private lawo International public law and national

law

o Nationalityo Link to registrationoThe importance of nationality:

Jurisdiction

o “Ship”

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Registration: Privilege or duty?

oOpen and closed registries

oLiberalizationoNot flying flag as a sanction

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The Norwegian Maritime Code

oNorwegian citizeno 60% cases

oPart ownerso Limited partnershipsoPartnerships

oDirect registration

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The NIS Act

o Conditions for registrationo NMCo Main office in Norwayo All others

o Requirementso Attorney, § 1o Management, § 1o Sailing limits, § 4

o Effects - substantive law

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State of ship’s registry State of c/p registry

•UNCLOS Art. 91 and 92•Liens and Mortgages Convention Art. 16•Ship Registration Convention Art. 12

Dual registry systems

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If a se seagoing vessel registered in one State is permitted to fly temporarily the flag of another State, the following shall apply:

(b) The law of the State of registration shall be determinative for the purpose of recognition of registered mortgages, "hypothèques" and charges.

(d) No State Party shall permit a vessel registered in that State to fly temporarily the flag of another State unless all registered mortgages, "hypothèques" or charges on that vessel have been previously satisfied or the written consent of the holders of all such mortgages, "hypothèques" or charges has been obtained.

(g) Nothing in this Convention is to be understood to impose any obligation on States Parties to permit foreign vessels to fly temporarily their flag or national vessels to fly temporarily a foreign flag.

Liens and Mortgages Convention Art 16

Temporary change of flag

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The Danish dual registry system

o Bare boat registration TO DenmarkoShip Registry Act Ch 7oDIS Act § 11a

o Bare boat registration FROM DenmarkoShip Registry Act Ch 7oDIS Act § 11c

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o The right to establish enterprises

o EEA Agreement Art 31o Ex parte Factortame [1991] 1

ECR 3905

Registration and the right to establish enterprises

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Equal for the purposes of this Section in regards to property owned by a Norwegian national is that owned by a person, company or enterprise as included in the regulations in the EEA-agreement. If the ship is owned by a company, enterprise or similar, the activity must have been founded in accordance with the legislation in one of the states connected with the EEA-agreement and have its statutory head office, head administration or head enterprise in one of these countries. Equal to the requirement of Norwegian citizenship and address for the members of the board in paragraph one no. 4 is citizenship and address in a state connected to the EEA-agreement. It is a requirement that the ship is part of the owner’s economic activities established in Norway and that the ship is operated from Norway.

NMC § 1

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oWhy genuine link? UNCLOS Art. 91

oGenuine link on the basis of ownership

oGenuine link on the basis of the crew

Genuine link

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”Jurisdiction”

oThe international scope of legislation

oChoice of lawoRecognitiono Jurisdiction in a technical

sense

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Jurisdiction in a technical sense

oLegislation (prescriptive jurisdiction)

oEnforcementoCourt

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Legislation (prescriptive jurisdiction)

oCrewoPollutionoSafetyoBoycott

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Enforcement

o Internal watersoTerritorial SeaoContiguous zonesoContinental ShelfoPort state jurisdiction

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Court jurisdiction

o ForumoOrdinary forumoArrest forum

o Forum clausesoThe starting pointoMandatory legislation, NMC § 310

and Rt. 1989.208o Anti-suit injunctions

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Choice of law

o Relationship between court jurisdiction and choice of law

o Application of HVRo Application of the law of liens

and mortgages