MARITIME LAW MARITIME LAW

By:By:Sulaiman Olanrewaju Sulaiman Olanrewaju OladokonOladokon

NATURE OF MARITIME LAW 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 LAWNATURE OF MARITIME LAWDuring 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 LAWNATURE 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 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 SEACARRIAGE 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 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 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), whichrecommended 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 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 DOCUMENTSTRANSPORT 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 PLAN1. 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 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) 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 governmentsReductionof 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 REGULATIONSINTERNATION REGULATIONS--GOG AND B/LGOG 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 RULESCOPE 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 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 ladingArticle 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 LADDENCONTENTS 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.

OthersOthers• 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.

OthersOthers• 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 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 aworking 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 ActivitiesFuture 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).