THE SHIPIts meaning, registration and nationality

MARLAW Chapter 2MWF 1030-1130

Submitted By:

Frenzie Mae RiveraRey Enrique Bulaon

Daniel Rivera

Submitted To:

Atty. Marricar Endico

OBJECTIVES Discuss the historical development of ships Give the legal definitions of a ship in relation to registration, carriage, pollution and

maritime conventions Understand if a floating structure is a ship and explain the common legal ways of acquiring a

ship Understand the meaning and purpose of ship registration and her nationality Define the flag state jurisdiction and control Know the diplomatic protection that can be accorded to a ship and its crew; and Know the concepts of the flag of convenience, “small register” and “second registry”

EARLY EVOLUTION OF SHIPS

Even in the early times, ships were used for transporting goods and people. The early types of ship were in the form of a sailing craft. The craft is a flat raft with a short mast positioned so that a single square sail could be hoisted.

Cheops Ship - OLDEST CONSIDERED SHIP

One such funeral ship was unearthed in 1954 during excavation of the Great Pyramid of Giza. This ship was constructed for the pharaoh Khufu, also called Cheops, and his contemporaries around 2600 bc. Remarkably well preserved, it was constructed from wood planks and timbers and measures approximately 38 m (125 ft) long. Such vessels were constructed to transport souls of the departed through the heavens in the path of the sun god.

Phoenician Cargo Ship

Considered the best shipbuilders of the time, the Phoenicians designed boats that depended more on wind than on manpower. Phoenician ships could carry more cargo than galley ships, which needed room for oars and rowers. These ships were used in Mediterranean Trade as ancient Phoenicia was a narrow strip of territory on the eastern coast of the Mediterranean Sea, now largely in modern Lebanon. Building vessels of approximately 30-100 m in length, they have improved the Egyptians’ ship design.

The principle of building a hull for the ships came from Europe. The frame was a longitudinal keel, with stem posts and sternposts and arthwartship ribs. The frame was covered with wooden planks coated with a *pitch.

*substance obtained from tar: a dark sticky substance obtained from tar and used in the building trades, especially for waterproofing roofs).

Romans introduced the idea of decking partly their ships so that passengers and crew will have shelters when they board the ship

This is one of the earliest surviving examples of modern ship construction, found in Bodrum Underwater Archaeology Museum in Turkey. The hundreds of wooden fragments resemble about 20% of this

Mediterranean trading ship’s hull.

Chinese Junk

This is a Chinese fishing boat and is also called a junk.

Junks have covered decks, characteristic *lugsails, and long rudders, but no keel. Their compartmentalized hulls increase stability on the open ocean.

*four-sided sail: an irregularly shaped four-sided sail fixed to a beam that crosses the mast at an angle

Viking Longships

This is an example of a *lapstrake construction. In *Viking ships of the 9th century and later, external planks were overlapped and lashed to the ship's frame, producing a strong, flexible hull. The ship carried 16-30 oarsmen on each side and had large square sails. Warriors and supplies were carried in support of the conquest for power and supremacy. *clinker-built boat: a boat built with overlapping planks *Nordic peoples—Danes, Swedes, and Norwegians

Caravels

Fishing vessels called caravels first appeared in Spain and Portugal in the 13th century. These small, seaworthy sailing ships proved so agile and reliable that almost every European seafaring nation had

adopted them by the end of the 15th century. Caravels carried cargo of all kinds throughout the Mediterranean, Atlantic, and Indian oceans and became a favourite of Portuguese and Spanish explorers.

Caravels were carvel-built—that is, constructed frame-first and covered with planks fitted flush to one another. They carried three or even four masts with lateen sails. The ships sailed into the wind well, were fast, and had a shallow draft that made them suitable for coastal as well as ocean travel. Caravels averaged a manageable 23 m (75 ft) in length and could be rowed if necessary.

Galleon

The 15th-century exploits of the great explorers earned riches and power for the seafaring nations of Europe. Spain devoted much of its new wealth to building a corps of battleships to accompany and protect merchant ships, laden with treasures collected in the Americas, against piracy. Toward this end, Spanish shipwrights developed the galleon, a modified, enlarged version of the carrack that became the premier ocean-going ship of the 16th and 17th centuries. Although developed as a warship, the galleon proved to be a fast and able sailor with a large cargo capacity. Most European nations adopted them to carry the treasures of Asia and the Americas back to Europe. This Galleon, The Mayflower, had 3 masts and 2 decks.

Clipper Ship

Clipper, name applied to a ship to indicate that it is a very fast sailer. The term, probably derived from the verb clip (to move quickly), was first used in the United States soon after the War of 1812 and was applied to the type of vessel formerly described as Virginia built or

of pilot boat construction. After the 1830s the term clipper was adopted to mean any fast ship.

A sharp, curved bow and an extremely large sail area made the clipper ship both swift and beautiful. Clipper ships enjoyed brief popularity in the middle of the 19th century, but were soon phased out of commercial trade by steamboats.

Steamship Savannah

In 1819 Savannah became the first steamship to cross the Atlantic Ocean. The ship, which measured 33 m (109 ft), made the crossing from Savannah, Georgia, to Liverpool, England, in 21 days. Records show that the ship was under steam power for only eight hours of the

trip, however, probably because Savannah’s bulky and unreliable steam equipment required more coal than the ship could carry.

What is a Ship?According to IMO, there is no universal definition of a ship.

1. For Liability in Oil PollutionAny seagoing vessel and seaborne craft of any type whatsoever constructed or adopted for the carriage of oil in bulk as cargo, provided that a ship is capable of carrying oil and other cargoes shall be regarded as a ship only when it is actually carrying oil in bulk as cargo and during any voyage following such carriage, unless it is proven that it has no residue of such carriage of oil in bulk abroad.

Civil Liability Code 1984,Art.1 2. Maritime Labor Convention

Any vessel mechanically propelled and registered in a territory for which the convention is in force; it is engaged in the transport of cargo or passengers for the purpose of trade or engaged in a voyage at sea.

- IMO CML, 1993 3. For the Purpose of Ship’s Registration

Any self-propelled seagoing vessel used in international seaborne trade for the transport of goods, passengers, or both with the exception of vessels less than 500 gross registered tons.

UNCCRS, 1986, Art. 2 4. In Carriage of Goods Under a Bill of Lading

Vessel used for carriage of goods by seaInternational law association (1924) through the International Convention for

Unification of Certain Rules of Law Relating to Bills Lading (Hague-Visby Rules) 5. In Salvage Convention

Any ship or craft or any structure capable of navigation1989International Convention on Salvage, Art.1-b

Floating vessel, which is self-propelled and capable of carrying cargo or passenger

Brodie (1994)

When does a ship ceases to be called a ship?

When its function is totally changed and has no further navigational function, and the change in function should be permanent in nature. The ship is put to different use.

When it is physically a total loss. The ship’s classification is lost because she is irrecoverable. It includes a ship that lost her physical characteristics due to fire, sinking and scrapping.

Acquisition of a ShipIt is not easy. It needs skills and knowledge in commercial and purchase and sale. The most common ways of acquiring a ship are through shipbuilding contract or through the sale and purchase method.

The Norwegian Saleform 1993A revision of the previous form developed in 1987; Adopted by the Baltic and International Maritime Council (BIMCO) in 1956

In the sale and purchase of a ship, this is one of the most widely used forms. A Memorandum of Agreement between concerned parties. The front portion initially

contains an agreement in which the sellers agree to sell and the buyers agree to buy with the specific description.

Name of the ship and classification society Built and name of builder Flag and place of registration Call sign and the GRT/NRT Registry number

There are 16 provisions or clauses in the MOA bearing the important terms and conditions of the Agreement.

Purchase Price Deposit Payment Inspection Notices, Time and Place of

Delivery Dry-docking/Divers inspection Spares/Bunkers, etc. Documentation Encumbrances (charge or claim

on property) Taxes Condition on Delivery Name/Marking Buyers Default Seller’s Default Buyers’ Representatives Arbitration (process of resolution of disputes)

Ownership of the ShipWho is the absolute owner of the ship?

Nationality of a ShipThe ship is like an individual who needs to belong to a nation.

The concept of nationality of a ship is similar to the concept of nationality of an individual or a person and his status in the independent political community. An individual has to follow the rules and laws that are set by the state. The concept of nationality of a ship is always associated with registration and Flag state. The ship has to be registered or listed in a country under certain laws and conditions of the state. Once these laws and conditions are fully complied with, a nationality is granted to a ship including the right to fly the flag of the state that granted her a nationality.

Flag State and Flag AdministrationEvery state shall issue to ships to which it has granted the right to fly its flag document to that effect.

FLAG STATE, can be defined as a State whose flag a ship flies and is entitled to fly. In other words, FLAG STATE is the state where the ship is registered or listed. Major flag states normally maintain a diplomatic representative in a foreign state who renders assistance to master and crew of the vessels when the need arises.

FLAG STATE ADMINISTRATION refers to the national maritime administration of the state that grants a nationality to a ship. It is a government authority or agency that is

established by the state of registration in accordance with its legislation. It exercises control, supervision and regulation of its ship.

Jurisdiction of the Flag StateThe Flag State has to exercise jurisdiction and control over the ship’s administrative, technical and social matter.

The Flag State shall: Shall maintain a register of ships Has to assume jurisdiction over the ship, the master of the ship and the crew in relation

to administrative, technical and social matters involving the ship Ensure that all ships flying its flag will ensure safety at sea Ensure that ships in their register follow registration procedure, survey interval

requirements and comply with the appropriate requirements for safe navigation See to it that registered ships will observe and follow IMO regulations for control and

prevention of marine pollution. Investigate any incident reported by another state with regard to any report of

violation against the laws of the flag state that were committed by the ship and her crew.

In case of marine accidents, each of the flag states should conduct independent investigation. However, flag state shall render the cooperation in case the other flag state requests for information connected to the investigation being conducted by it about the accident.

Registration of a ShipWhy is there a need to register a ship?

Registration of a ship can be defined as the act of fulfilling the state’s conditions for the grant of nationality to a ship. It is an official acknowledgement that a ship was able to comply with all the requirements set by the state to be accorded a nationality.

A shipowner who fails to register his ship cannot escape from duties, fines, forfeitures, payment of dues and punishment for offenses committed onboard that may be imposed by the country that discovers this kind of illegality.

GENEVA CONVENTION – provides the forms of certificates and conditions for registration of ships and grant or nationality should be determined by the government of each country, which ratified the Geneva Convention.

PURPOSES OF REGISTRATION It is a documentary evidence of ownership in the register that can be presented to

other authorities and parties needing it. It provides accurate record of measurement and tonnage of the ship. It establishes the ship’s nationality and serves as a document of nationality that can be

presented to any government authority requesting for it. It gives the ship the rights, privileges and protections accorded to a registered vessel.

It renders limitation and control of ownership of ship under a flag. Records of registry make it easy to facilitate transactions concerning purchase, sale and

mortgagees of ships. Registration gives income to countries where ships are registered.

Small countries consider large ship registration as a kind of prestige and give them some strategic importance.

DUTIES AND RESPONSIBILITIES OF A STATE OF REGISTRATION To enter into its register of ships information about the ship and its owner or owners To enter information about the ship’s operator when the operator is not the owner of

the ship To ascertain that a ship flying its flag carries documentation including information

about the identity of the owner(s), the operator(s), or the person(s) accountable for its operation.

A certificate of registration should be issued by the state by the State to the ship as evidence of registration. However, it is obtained only after the ship has already secured an Identity Certificate. The administration of the state issues the Certificate of Ownership after permanent registration of the ship. The registration grants the ship her nationality and such nationality is that of the State’s which granted the ship its registration.

PURPOSES OF THE CERTIFICATE OF REGISTRY SENT TO THE OWNER UPON REGISTRATION

For lawful navigation of the ship For identification of the shipowner As a prima facie (legally sufficient) evidence that the ship can claim the privileges

under the State’s registry in which the ship is registered As a prima facie evidence that the ship can be subject to any resulting obligation arising

from its registration The Certificate of Nationality/Registry is normally valid until the ship is scrapped or

until there is a change of ship ownership or nationality. For ships chartered or leased from a foreign land, the validity of registration is good

only for the duration of the charter contract. Thereafter, the ship is deleted from the registry under any of the following circumstances:

When the charter or lease of the ship expires or terminated upon mutual agreement of the parties to the charter

When the administration revokes approval of the charter/lease for cause and due process

When the Certificate of Registration expires and is not renewed anymore When the ship suffers actual constructive loss.

The Certificate of Registry is surrendered in case the ship is constructively lost or is sold to a foreign person or entity or the ship has been captured. It must be kept onboard at all times, but cannot be used as security or guaranty to support a lien or claim.

Identity Certificate or Certificate of Number

Certificate of Registry/Nationality

Certificate of Ownership

Termination of Ship RegistrationWhen can the registrar terminate a ship’s registration?

On application by the owner If the ship is no longer being eligible to be registered On registrar decision that it would inappropriate taking into account any requirements

of the law to remain registered due to condition of the ship’s safety or the crew on board or to any risk of pollution.

When imposed penalties on owners are not paid for a required period of time.

Ship RegisterRegistration of a ship can be defined as the act of fulfilling the state’s conditions for the grant of nationality to a ship.

What is a Register? It refers to the official list of the ships wherein other important information regarding the

ships and their owners or operators are recorded and kept by a competent state authority.

Registers for Small Ships A separate registry system in a country for small ships that are obliged by a state to be

registered but not within the requirements of the bigger ships. Small fishing boats Yachts Motorized bancas

Flag of ConvenienceSome countries have the practice of accepting registration of foreign vessels in state´s registry because it provides INCOME.

SHIPOWNER ADVANTAGES:

Lower taxes offered from ship’s income Low registration fees Freedom to hire foreign crew Master and officers accept low salaries that reduces the costs of manning the ship Has less rigid requirements for the safety equipment to be placed on board Surveying requirements are not to strict

FLAG OF CONVENIENCE (FOC) Registration of a ship in a country whose tax in the profits of trading ships is usually low or

whose requirements concerning manning or maintenance are not stringentBrodie 1994

NOT ALL STATES THAT ARE OFFERING REGISTRATION FOC HAVE CHEAPER AND LESS RIGID REQUIREMENTS.

CHEAP FLAG / FLAG OF NECESSITY Flags that ships registered in FOC are entitled to fly as offered by the states offering FOC

registration. Flag of convenience states are accountable and responsible for any untoward events that

may follow if substandard requirements have been prescribed by the FOC state and complied with by the ship.

UNCCRS, 1986, Art 1

The Second Register Closely similar to open registry wherein registration of international vessels that have

not been registered with the state’s register before is allowed. In behalf of the state that issued the second registry, the classification societies will

issue to shipowners their needed certification.

PROVISIONS IN A SECOND REGISTRY Conditions for registration have to follow the country’s capitalization requirements, which

requires 60% ownership from a domicile Limitations of a second register:

Trading area of the ship Manning of the ship Terms of employment

Registered ships are allowed to hire foreign labor to fill positions of crew/officers except for the position of the Master.

The country is strict on the personnel’s compliance with competence and safety requirements

ONLY THE TRUE OWNER OF THE SHIP IS REQUIRED TO REGISTER HIS SHIP.

Diplomatic Protection of a Ship The diplomatic protection may be accorded to a ship depends on her nationality. Therefore,

a vessel without nationality (e.g. Vessel under flags of two states or stateless) is legally UNPROTECTED.

When a ship violates the marine pollution rules set by an international organization, the Flag State has to investigate and act on the reported violation even such offense occurred in another state’s territorial waters.

In foreign ports, some Flag States have their diplomatic representative who can extend assistance to a master in relation to the ship and cargo only within his limitations.

Right of Innocent Passage in territorial seasAs clarified by the United Nations Convention of the Law of the Sea (UNCLOS 1982)

PASSAGE

Navigation of a ship within the territorial seas of a state for the purpose of traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters or proceeding to or from internal waters or call at such roadstead or port facility

Arts. 18 a & b

TERRITORIAL SEAS

The seas within the maritime territory of a State

Such passage should be continuous and expeditious. A ship could only drop anchor when it is incidental to normal navigation or when there are incidents of force majeure

WHEN IS A PASSAGE INNOCENT?

A passage is innocent if it is not prejudicial to the peace, good order or security of the coastal state.

Art. 19-1

PREJUDICIAL PASSAGE

When there is any threat of use of force against the sovereignty, territorial integrity or political independence of the coastal state, or if in any manner the ship violated the principles of international law.

When the ship practiced weapons of any kind.

When there is any act committed as regards collection of information that would prejudice the defense or security of the coastal state.

When there is any act of propaganda that affected the defense or security of the coastal state.

When there has been launching, landing or taking onboard of any aircraft.

When there has been launching, landing, or taking onboard any military device.

When there has been loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal states.

When there has been an act of willfull and serious pollution contrary to the pertinent provisions on pollutions of the UNCLOS.

When any fishing activity has been undertaken.

When the vessel has carried out research or survey activities.

When there has been an act aimed at interfering with any system of communication or any other facility or installation of the coastal states.

When the vessel conducts any other activity not having a direct bearing on passage.

- End of Chapter 2 -