Arbitration in Multimodal Transport Law:

Containerization and Multimodal Transport Law.

(By V.M. Syam Kumar, Advocate, Lecturer for Maritime Law, National University for Advanced Legal Studies, Kaloor, Cochin.)

Arbitration in Multimodal Transport Law:

Arbitration as a dispute resolution mechanism has displayed great agility and dexterity in adapting itself to suit the requirements of various branches of law. We have in the last session seen the role of arbitration in disputes involving ships and its effectiveness in settling maritime disputes of various nature. The effectiveness of arbitration in maritime dispute resolution has lead to the rise of a distinct branch of arbitration termed Maritime Arbitration capable of having an independent existence.
Norm making activity is a continuing process and does not come to a stand still so long as social intercourse continues. Increase in global trade and technological advancements in the means of marine transport have necessitated the creation of new and varied legal norms even within the field of maritime arbitration. Multimodal Transport Law is one such innovation of trade and technology which calls for separate consideration.
What is Multimodal Transportation?
International carriage of goods may be executed by sea, air, or land or by a combination of all or any of them. If it is done by only one among such modes, it is a Unimodal transport. Carriage involving more than one mode of transport is termed as Multimodal Transportation or Combined Transportation. Since 1950’s containers proved to be a suitable means for effecting multimodal transport. Consolidation of cargo into containers gave a fillip to multimodal transportation of goods across the globe. Containerisation also gave rise to very peculiar legal issues which required separate treatment under the regime of Multimodal Transportation.
Distinctiveness of Multimodal Transportation.
Transport documents are an integral part of international carriage. The nature and form of these documents varies from one mode of transport to the other. The rights, duties and liabilities arising there from also vary considerably. The liability regime governing a common carrier is different from that applicable to an ocean carrier. Similarly, the regimes applicable to the carriage of goods by land or rail are distinct from the one pertaining to the carriage of goods by air. This explains the reason for distinct documents covering each mode of transportation. The liabilities under each mode as evidenced by the concerned document also keeps on changing from time to time due to various factors, ranging from modern advancements in carriage technology to the security concerns arising from the ever changing global political scenario. With the advent of containerization, wherein containers which would from its point of origin till the place of delivery be subjected to varied modes of transportation, road, rail sea or air, this myriad of liability regimes under the varied documents gave rise to complex legal issues of great practical and commercial importance.
Factors leading to the growth of Multimodal Transport law:
Unimodal transports were governed by separate laws which developed independently and distinct from each other through both legislative enactments and judicial pronouncements. Each unimodal transport law preferred to remain as a water tight compartment. They were reluctant to admit into its realm a combination of two or more modes of transport. The independent growth of these unimodal transport laws both in national and international levels would be reveled by the plethora of legislations which govern each of them. A great number of International Conventions dealing separately with each mode of transport like the Convention on the Contract for the International Carriage of Goods by Road, 1956 (C.M.R. Convention), Convention for the Unification of Rules Relating to International Carriage by Air, Warsaw, 1929, Convention Concerning International Carriage by rail, 1980 (C.O.T.I.F.), International Convention for the Unification of Certain Rules Relating to Bills of Lading, Brussels, 1924 (The Hague Rules) evolved. In tandem with the said international Conventions National laws were also enunciated by nation states, at times with considerable variation from the Conventions so as to meet the local requirements. The separate norms and liability regimes in each of these Conventions gave rise to certain practical problems. When more than one transport document is issued and different rules are applicable to each document, the question as to where and when the loss, damage or delay has occurred will have to be answered with certainty. Proving the time and cause of loss or damage with sufficient evidence will be difficult and many time impossible for the cargo owner. Due to this, the actual point of time when the loss, damage or delay occasioned or the cause for the same may never be known with certainty necessary to maintain a claim. Hence the issuance of a number of documents became incompatible with a combined transport operation. The same proved to be disadvantageous to the operators too since they may not be able to gain the optimum economic benefit of new transport techniques. Moreover, with the passage of time and due to the rapid growth of international trade it was revealed that carriages by other modes were incidental to the unimodal transport and that there was a need for elaborate provisions for combined transportation.
All this lead to the evolution of a single document called Combined Transport Document or the Multi Modal Transport Document whereby the operator assumes liability for the whole journey instead of issuing several documents.
International attempts towards evolving a Start to Finish Document:
Upon realization of the need for a single document that would govern the rights, duties and liabilities during the journey of a Container from the start to the finish, the initial efforts were to incorporate provisions enabling the same in the existing Conventions regarding the particular unimodal transport. Hence many of the Conventions made provisions for multimodal transport. But these only confounded the situation further and soon proved to be unworkable. On the other hand the legal difficulties faced by the combined transport operators when different types of documents were used for combined transport operations based on different rules compelled the operators to issue single document for the entire carriage. But due to the absence of compulsory rules governing multimodal transportation, the terms used in the documents differed widely. Attempts were made by different international agencies to unify the different documents in use. ICC prepared a set of Rules on Combined Transport Documents and recommended their use. UNCTAD set up an Inter Governmental Preparatory Group to prepare a draft convention which was put to discussion in the Diplomatice Draft Conference in Geneva and finally the Convention on International Multimodal Transport of Goods, 1980 was adopted. Taking cue from the Convention the Indian parliament enacted the Multimodal Transport of Goods Act, 1993 with certain modification to suit the peculiar conditions in India.
Indian Law governing Multimodal Transport
The Multimodal Transport of Goods Act, 1993 is divided into five chapters under the heads (1) Preliminary aspects (2) Regulation of Multimodal transportation (3) Multimodal Transport Document (4) Responsibilities and liabilities of the Multimodal Transport Operator (5) Miscellaneous aspects. A schedule is also attached to the Act which brings in certain amendments to (1) The Carriers Act,1865 (2) The Indian Carriage of Goods by Sea Act, 1925 (3) The Sale of Goods Act, 1930.
The whole Act is divided into five chapters under the heads (1) Preliminary aspects (2) Regulation of multimodal transportation (3) Multimodal Transport Document (4) responsibilities and liabilities of the multimodal transport operator (5) Miscellaneous aspects. A schedule is also attached to the act which brings in certain amendments to 1) The Carriers Act, 1865, 2) the Indian carriage of Goods by Sea Act, 1925, 3) and the Sale of Goods Act, 1930.
‘Multimodal transportation’ as defined by Section 2(k) of the Act means carriage of goods by two or more modes of transport from the place of acceptance of the goods in India to a place of delivery of the goods outside India. So a transport to be a multimodal transport, 3 conditions has to be satisfied: (1) the goods are to be carried by two or more modes of transport (2) the place of acceptance of the goods should be in India.(3) the place of delivery of the goods should be outside India.
Section 2(j) precisely defines what are the modes of transport sought after by the Act. They include carriage of goods: 1) by road , 2) by rail, 3) by inland waterways, or 4) by sea. Here the air mode of transport is clearly excluded. The definition of the ‘modes of transport’ makes the intention of the framers of the Act, unambiguous, in avoiding air mode.
The term Multimodal Transport Operation is defined exactly in the same way as it is defined in the International Convention but goes on further to say that the person should be registered under sub-section (3) of Sec.4 . So by the definition, the operator may not own or control the modes of transport. It may be a shipping company or a non-shopping but having a minimum annual turnover of 50 lakh rupees. The Act also makes it mandatory that the operator has offices or agents in not less than 2 other countries. The operator can enter into agreement with the sub-contractors, for eg, unimodal carriers and terminal operators.
The term ‘goods’ has also been defined by the Act. It includes: (1) containers, pallets or similar articles of transport used to consolidate goods, and (2) animals.
Rights & Liabilities of Multimodal Transport Operator (MTO) under the Act
Amongst many other obligations provided in the Act the principal provisions regarding the rights and liabilities are incorporated in Chapter IV of the Act. Chapter IV contains eight sections, which expressly state the liabilities of M.T.O.; and the responsibilities of the consignor.
Rights of the M.T.O.
Amongst many provisions, which are guaranteed by the Act the principal provisions regarding the rights of the M.T.O. is as follows:
(i) Rights of an M.T.O. under Sec. 12
Sec. 12 relates to the responsibility of the consignor which are inter alia the rights of the M.T.O. Sec. 12(1) states that the consignor shall be deemed to have guaranteed to the M.T.O. the adequacy and accuracy, at the time the M.T.O. takes charge of the goods, of the particulars referred to in Sec. 9(a) and Sec. 9(b) as furnished by the consignor for insertion in the multimodal transport document. Sec. 12(2) states that the consignor shall have to indemnify the M.T.O, against loss resulting from inadequacy or inaccuracy of the particulars. But this right of the M.T.O. shall in no way limit his liability under the multimodal transport contract to any person other than the consignor.
(ii) Rights of M.T.O. while carrying dangerous goods.
Sec. 21 assets the rights of M.T.O, in a specific situation when dangerous goods are carried. The consignor has the burden of informing the carrier as to be character of the goods and if necessary the precautions to be taken during their transport. Sec.21(2) will not be invoked if the operator has taken the goods, in his charge with knowledge of their dangerous character,.Sec.21(2) states that the failure of the consignor to inform (1) will make him liable to the M.T.O. for all loss resulting from the multimodal transportation of goods and (2) if needed the goods may be unloaded, destroyed or rendered innocuous as the circumstances may require, without payment of compensation.
(iii) Rights to exercise lien on the goods.
The M.T.O. shall have a lien on the goods for any amount due under the multimodal contract. He is also entitled to a lien on the documents in his possession. The period during which the goods are in the possession of M.T.O, while exercising his right of lien shall not be included for the purposes of calculating the time of delay under any of the provisions of the Act.
Scope for Arbitration in Multimodal transport contracts
The Indian statute governing Multimodal transportation is at variance with the international convention on many notable aspects notwithstanding its general acceptance of the norms laid down by the Convention. Though in the Schedule of the Act attempts have been made to amend the other statutes in force in India relating to and having direct effect on the Multimodal transportation, the said amendments have failed to plug the inconsistencies remaining in the field. A detailed discussion thereof would be out of place here. From the point of view of Arbitration, the Act specifically incorporates Sec.26 which provides that the parties to a multimodal transport contract may provide that any dispute which may arise in relation to multimodal transportation under the provisions of the Act shall be referred to arbitration. Sub caluse thereto also provides that the arbitration proceeding may be instituted at such place or in accordance with such procedure as may be specified in the multimodal transport document.
Conclusion
Containerization and multimodal transportation is thus the new face of international trade. The efficacy of the new mode being proved and accepted, reliance on the same is bound to increase in the years to come. Increase in the number of disputes would be a concomitant and unavoidable phenomenon. The said disputes are to be resolved with least friction and waste. It is even more imperative since in commercial practice time is the essence of commercial ventures and the same cannot be wasted by recourse to the cumbersome procedure of the traditional court based settlement process. Arbitration has been accepted by the statute as the desirable means of dispute resolution. In view of the very peculiar rights, duties and liability regime in existence in multimodal transport contracts and the usages and practices that are endemic to the said branch of transportation, arbitration of such disputes would require not only persons trained in the said branch of transport law but also peculiar methods and processes as evolved in the case of maritime arbitration.
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EVOLUTION OF FLAGS OF CONVENIENCE

(By FEBIN A.K., National University of Advanced Legal Studies, Cochin, India.)

INTRODUCTION
The flying of the national flag is visual evidence and a symbol of a ship’s nationality. The 1958 Geneva Convention oh High Seas makes it clear that the ship will have the nationality of the State whose flag they are entitled to fly. ‘Flag’ is also used as a shorthand for the allocation of nationality to the vessel and the assumption of exclusive jurisdiction and control by a State over the vessel.
In this work I would be dealing with the evolution of a concept, which has great relevance in the present shrinking world- “Flags of Convenience”. The history of the concept would be traced out by me and then I would discuss why this concept emerged and its advantages and disadvantages.

THE CONCEPT OF FLAGS OF CONVENIENCE

According to Boczek[1] a “flag of convenience” (FOC) can be defined as the flag of any country allowing the registration of foreign owned and foreign controlled vessels under conditions which, for whatever reasons, are convenient and opportune for the persons who are registering the vessels”.

The fact of foreign control, if not foreign ownership is a feature common to all flags of convenience. In 1974 the International Transport Workers' Federation (ITF) defined an FOC as follows: "Where beneficial ownership and control of a vessel is found to lie elsewhere than in the country of the flag the vessel is flying, the vessel is considered as sailing under a flag of convenience."

ROCHDALE CRITERIA
It is the ITF Fair Practices Committee (or the FPC sub-committee), which decides what is and what isn¹t an FOC. The FPC maintains a list of countries offering FOC facilities and from time to time adds or deletes countries from the list. The basis for membership of this select club is the so-called "Rochdale Criteria" laid down by a British Committee of Inquiry in 1970. These were:
Ø The country allows non-citizens to own and control vessels;
Ø Access to and transfer from the register is easy;
Ø Taxes on shipping income are low or non-existent;
Ø The country of registration doesn¹t need the shipping tonnage for its own purposes but is keen to earn the tonnage fees;
Ø Manning by non-nationals is freely permitted;
Ø The country lacks the power (or the willingness) to impose national or international regulations on its' ship-owners.

UNIVERSALITY OF ROCHDALE CRITERIA

It is in no way universal even though all the criteria are present in FOCs. With regard to the second point, most flags of convenience now impose age-limits on vessels entering their registry for the first time, and surveys are insisted upon in a number of cases prior to issuance of the permanent certificate of registry (for example, Panama, Bahamas, Barbados)
Like wise the sixth point is also becoming irrelevant now.

GENERAL LINK THEORY

Flags of convenience are now defined by reference to the existence or otherwise of a genuine economic link between a vessel and its country of registry. Thus, the ad hoc Intergovernmental Working Group, established under the auspices of UNCTAD, on the Economic Consequences of the Existence or Lack of a Genuine Link between Vessel and Flag of Registry concluded in its Report that:

The following elements are normally relevant when establishing whether a genuine link exists between a vessel and its country of registry:

Ø The merchant fleet contributes to the national economy of the State
Ø Revenues and expenditure of shipping, as well .as purchases and sales of vessels are treated in the national balance-of-payment accounts.
Ø The employment of nationals on vessels;
Ø The beneficial ownership of the vessel.

In today's world with second registers, bareboat charter arrangements and other methods designed to get around ITF policy, defining an FOC is becoming more and more difficult. However, ships registered in an FOC register, which can demonstrate that they are genuinely owned in that country, are not treated as FOCs. Equally, ships from countries not on the list will be treated as FOCs if the ITF receives information that they are beneficially owned in another country. The list is as follows:

Antigua & Barbuda, Aruba (added June 1997), Bahamas, Barbados, Belize, Bermuda, Burma, Cambodia (added June 1997), Canary Islands, Cayman Islands, Cook Islands, Cyprus, Germany Second Register GIS, Gibraltar, Honduras, Lebanon, Liberia, Luxembourg, Malta, Marshall Islands, Mauritius, Netherlands Antilles, Panama, Sri Lanka, St Vincent & the Grenadines, Tuvalu, Vanuatu.
Ships entered on the following “secondary” registers may be considered as flying under FOCs; their status depends upon whether or not they are owned by nationals of the flag country and whether or not crew wage agreements acceptable to that country’s unions have been entered into: Norwegian International Ship' Register, Danish International Ship Register, Isle of Man (UK), Luxembourg (in respect of Belgian-owned ships only), Madeira (Portugal), Kerguelen (France). The German International Ship Register and the Spanish secondary register in the Canary Islands are considered "fully-fledged" flags of convenience by the ITF and all ships registered there are treated as FOC vessels.


ORIGIN OF FOC

The use of flags of convenience is generally traced back to the use of the Spanish flag by English merchants in, order to avoid Spanish monopoly restrictions on trade with the West Indies. In the 17th century English fishermen off Newfoundland adopted the French flag in order to avoid fishing restrictions imposed by Great Britain. British fishermen made similar use of the Norwegian flag in the 19th century.

U.S. merchant vessels flew Portuguese flags during the War of 1812 to avoid difficulties with the British. Slave-trading ships owned by citizens of both the U.S. and various Latin American countries flagged elsewhere to avoid detection in the 19th century when international agreements prohibited the slave trade.[2] Even earlier, British ships flew flags of obscure German principalities during Napoleon’s shipping blockade.[3]

Widespread use of such flags, however, came only with the decision by certain states beginning around the 1920s to create open registries, where ships were not required to have onerous ties to a state in order to register. Open registries are generally characterized as those that do not require citizenship of ship owners or operators, levy no or minimal taxes, allow ships to be worked by non-nationals, and have neither the will nor capability to impose domestic or international regulations on registered ships.[4] The first state to create such a registry was Panama, followed shortly thereafter by Honduras and later Liberia. One of the first incidents occurred on August 1919 when a vessel named Belen Quezada was transferred from the Canadian flag to the Panamanian flag and was used in rum running to avoid American prohibition laws.[5] In 1922, two cruise liners, the Reliance and the Resolute, were transferred from the United States flag to the Panamanian for the same reason. Prohibition thus provided the boost for the Panamanian flag and in 1925; Panama enacted a liberally drafted maritime law intending to attract foreign tonnage. The United Fruit Company's fleet of banana vessels was transferred from the United States flag to that of Honduras during the same period.

An officer of the first shipping company to transfer a U.S.-flagged ship to Panamanian registry explained the appeal: “The chief advantage of Panamanian registry is that the owner is relived of the continual . . . boiler and hull inspections and the regulations as to crew’s quarters and subsistence,” pointing out that as long as the ships pay the registry fee and yearly (low) tax, “we are under absolutely no restrictions.”[6]

The worsening political situation in Europe in the 1930s provided considerable impetus to the flags of convenience. In 1935, the 5 vessels forming the Esso Baltic fleet were transferred from the flag of the Free City of Danzig to that of Panama. During the Spanish Civil War a number of Spanish vessels made use of the Panamanian flag and many Greek owners re-flagged their ships in Panama to avoid the non-intervention blockade imposed by Great Britain and other powers. High crewing costs under the Greek flag in the pre-war years also led to growing use of the Panamanian flag by Greek operators. In 1932, Manuel Kulukundis registered the Mount Athos under the Panamanian flag; this was followed by a number of vessels in the Onassis fleet. Following the outbreak of war between the European powers in 1939, the­ Panamanian flag saw a further influx of United States tonnage seeking to avoid the provisions of the United States Neutrality Act preventing the carriage In American ships of cargoes destined for belligerents on either side.


After the WWII there was an increasing dissatisfaction with some of the aspects of the of the Panamanian flag; like the concern for the stability of the Panamanian Government and excessive consular fees. A former United States Secretary of State, Edward R. Stettinius, Jr saw the saw the development of an off shore shipping register as a useful innovation. In 1948, the Liberian Government promulgated the Liberian Maritime Law and the Liberian Corporation Law, which contained provisions from United States' legislation. Stettinius Associates, which had a profit-sharing arrangement with the Liberian Government, based the ship registry in New York and ran a well off business in contrast with the Panamanian network. The first ship entered in the new Liberian register was the World Peace in 1948. By 1967, the Liberian register had passed the UK to become the largest in the world. In spite of all the hostile Governments, by the end of 1996, Panama and Liberia accounted for 7789 ships tallying 142,119,576 gross register tons, over a quarter of the world tonnage.

ARGUMENTS FOR FOC

From the ship owner’s point of view, the characteristics of a flag of convenience would be seen as follows;

Ø The avoidance of tax in the country which he is established;
Ø Lower crewing costs, since
Ø (a) Registration under a flag of convenience generally means an unrestricted choice of crew in the International market;
(b) He is not subject to onerous national wage scales;
Ø Less regulatory control
Ø Anonymity: Ascertaining the beneficial ownership of the vessel is virtually impossible.


ARGUMENTS AGAINST THE FOC

The arguments can be discussed on 3 grounds. (1) Labour (2) Economic distortion
(3) Safety

1. LABOUR

Organized labour opposition to flags of convenience began in the 1935 in the United States as a consequence of the transfer of American Ships to the Panamanian and Honduran flags. The ITF after the WWII adopted a resolution to boycott such ships. The main objectives of this meeting held in July, 1958 were-

Ø To establish by international governmental agreement a genuine link between the flag that a ship flies and the nationality or residence of its owners, managers and seafarers, and so to eliminate the flag of convenience system entirely;
Ø To ensure that the ship owners protect the seafarers who serve on flags of convenience ships, whatever their nationality, from exploitation.

According to the International Shipping Federation, the campaign has been most enthusiastically pursued in Australia and Scandinavia. Although the campaign is expressed to be directed against allegedly substandard labour conditions on board flags of convenience ships, the chief motivation has been to prevent loss of work opportunities for seafarers in the traditional maritime countries where spiraling wage costs have rendered the operation of ships increasingly uneconomic.

Many seafarers working on FOC ships receive shockingly low wages, live in very poor on-board conditions, and work long periods of overtime without proper rest. They get little shore leave, inadequate medical attention, and often safety procedures and vessel maintenance are neglected (in many cases reported to the International Transport Workers' Federation (ITF), FOC ships have been unseaworthy). In some of the worst cases, seafarers are virtual prisoners on FOC vessels. The FOC countries do not enforce minimum social standards or trade union rights for seafarers. If they did, ship-owners would soon lose interest in them. The countries from which the crew is recruited can do little to protect them, even if they wanted to, because the rules, which apply on board, are those of the country of registration.

BLUE CERTIFICATE

One tactic in the ITF campaign has been to insist that ship owners operating vessels under flags of convenience employ their crews under the ITF Collective Agreement which contains terms and conditions for the employment of seafarers unilaterally determined by the Federation. Signature of the agreement is evidenced by the issuance of a "Blue Certificate" and failure to produce such a certificate to an ITF inspector can lead to industrial action being taken against the vessel. The ITF will issue a Blue Certificate provided, that:

(a) The ship owner signs the ITF Collective Agreement - or an ITF, approved national agreement. The former provides for rates of pay irrespectively of the nationality of the crew based on an average of European wage levels increased to allow for inflation;
(b) Each crewmember receives an individual contract of employment incorporating the current ITF wage scale endorsed, if necessary by the authorities of the labour-supplying country;
(c) All crew members not already belonging to a Union affiliated with the ITF arc enrolled in the ITF's Special Seafarers' Department;
(d) The ship owner makes an annual contribution in respect of each seafarer to the Federation's Seafarers' International Assistance Welfare and Protection Fund
(e) The Federation is advised of future crew or contract changes and has access to all records
(f) On demand, the crew is paid back pay covering the difference between the ITF rate and the previous rate to the date of commencement of the ITF-approved contract.


2. ECONOMIC DISTORTION

The 1981 report by the UNCTAD Secretariat[7] blamed the freedom from fiscal obligations in flag-of-convenience countries for the liberalization of tax concessions and increases in Government assistance in traditional maritime nations. Certainly, this policy was successfully followed by Greece in the early 1950s in an effort to repatriate the substantial number of Greek-owned ships operated under flags of convenience. The report stated that

There is no doubt that the existence of open registries is the major cause of the distortions that governments have been forced to make to their fiscal regimes.

3. SAFETY

Oil spills from Liberian-registered tankers in the 1960s and 1970s called attention to issues of inadequate training, communication, and equipment.[8] Working conditions aboard FOC-registered ships from such states as Panama, Honduras or Romania are often abysmal and even “life-threatening.”[9]

Much of the widely publicized maritime disasters of recent years are involved vessels registered under flags of convenience-the Torrey Canyon in 1968; the Amoco Cadiz in 1978; the Exxon Valdez in 1989, The Scandinavian Star in 1990 and the Sea Empress in 1996. It is also a fact that the casualty records or open registry fleets reveal a considerably higher rate of losses than in the traditional maritime countries.

A report by the UNCT AD Secretariat in 1981 identified 10 reasons why the non observance of safety standards is likely to be greater under open-registry flag's than under the flags of States having genuine economic links with vessels:

Ø Real owners are not readily identifiable.

Ø Real owners can change their identities by manipulating brass-plate companies and consequently avoid being identified as repeated substandard operators or risk-takers;

Ø Since the master and other key shipboard personnel arc not nationals of the flag State, they have no need or incentive to visit the flag State and can avoid legal action;

Ø Owners who reside outside the jurisdiction of the flag State can defy the flag state by refusing to testify at an inquiry by the flag State and avoid prosecution

Ø Since open-registry owners do not have the same interest in preserving good relations with the flag State, they do not feel the need to co-operate with inspectors of the flag State;

Ø Open-registry shipping lacks the union structure which is so essential to the application of safety and social standards in countries of normal registry: namely, a national trade union of the flag State representing basically the interests of national seamen on board vessels owned by owners who have economic links with the flag State;

Ø Open-registry owners arc in a better position to put pressure on masters and officers to take risks, since there is no really appropriate government to which shipboard personnel can complain;
Ø Port State control is weaker because the port State can only report substandard vessels and practice to a flag State which has no real control over the owner;

Ø Owners can suppress any signs of militancy among crews by virtue of their freedom to change nationalities of crews at whim:

Ø Enforcement of standards is basically inconsistent with the operation of registry with the sole aim of making a profit.

Many people however consider these criticisms as unjustified as there are many factors that are present in the Flags of Convenience, which are present in all the maritime nations around the world. All these problems are faced by all the nations of the world which have shipping registries.

THE MODERN SCENARIO

Many steps are being taken in all the Flags of Convenience states to provide for better safety. Some of the most modern ships are operating under flags of convenience and a number of registers have taken steps to exclude very old tonnage. Liberia, for example, stipulates that vessels seeking registration (or re-registration) must not be more than 20 years old, although subject to certain conditions vessels exceeding that age-limit may be accepted for re-registration, Panama prescribes no age limitation, but vessels over 20 years of age are subject to a special inspection before the Permanent Certificate of Registry can be issued. Bahamas generally applies a 12-year age-limit, whilst Vanuatu follows the 20-year rule, Cyprus has a basic 17-year age-limit, but older' vessels maybe be registered subject to a number of conditions, including the existence of a rent and effective ownership or management link between the vessel and the island.

The flags of Convenience states are parties to the major safety conventions and more responsible registries ensure a stricter compliance. Liberia needs a “decision maker” who is contactable 24 hours in the event of any incident rising with the ship. Exasperation among the International community at the unwillingness or inability of many flag States to exercise proper control has led in recent years to increasing reliance on port States to monitor compliance with international standards, Intervention by port States is sanctioned by the 1982 Convention on the Law of the Sea (see articles 25 and 218) and numerous other international conventions; including SOLAS, MARPOL and STCW.

THE PARIS MEMORANDUM OF UNDERSTANDING OF 1982

This represented the first step towards establishing uniformity of port State control on a regional basis. The maritime authorities of 17 European States (including the Russian Federation) and Canada have adhered to the MOU which requires each authority to maintain an effective system of ports State control in order to ensure that, without discrimination as to flag, foreign merchant ships visiting its ports comply international conventions relating to safety of life at sea, prevention of pollution and working and social conditions on board.

INSPECTIONS

Ø Maritime authorities carry out inspections, a visit on board the ship to ensure that she has all the necessary certificates and documents
Ø A more detailed inspection is carried out in case the documents are absent and if there is a doubt that the ship does not follow the international standards.
Ø If there are some problems found then the authorities will refuse the ship to proceed to sea.

Special attention is paid to

Ø Passenger ships, ro-ro ships and bulk carriers;
Ø Ships, which may present a special hazard for instance oil tankers, gas carriers, chemical tankers and ships carrying harmful substances in package form;
Ø Ships flying the flag of a State appearing in the three year rolling average table of above average delays and detentions in the MOU's annual report;
Ø Ships, which have had several recent deficiencies.


The MOU requires each authority to consult, co-operate and exchange information with other authorities in order to further the aims of the Memorandum. The success of the MOU has led to the establishment of regional port State control in other parts of the world, notably under the 1992 Vina del Mar Agreement signed between the maritime authorities of ten Latin American countries, the 1993 Tokyo Memorandum of Understanding on Port State Control for the Asia/Pacific region and the 1996 Memorandum of Understanding on Port State Control in the Caribbean Region.

At a European Union level, the Commission’s communication in 1993, A Common Policy on Safe Seas, urged the strengthening of the level of intervention of port and coastal States in order to reduce sub-standard shipping in Community waters. Council Directive 95/21/EC establishes common criteria for control of ships by port States and Harmonizing procedures on inspection and detention throughout the Community. The Directive builds on the experience gained through the operation of the MOU, but seeks to develop a better targeting system. Certain categories of ships, including passenger ships, older tankers and bulk-carriers are subject to "expanded" inspections. The maritime authority in each Member State is required to publish quarterly information concerning ships detained during the previous three­ month period and which have been detained more than once during the past 24 months; this information must include the flag States of the vessels concerned. The Directive is implemented in the United Kingdom by the Merchant Shipping (Port State Control) Regulations 1995. The International Safety Management Code adopted by the International Maritime Organization and the 1995 amendments to the International Convention on Standards of Training Certifications and Watch keeping for Seafarers 1978 (STCW 197X) are likely to have a major effect in improving operating standards.

THE OFFSHORE NATIONAL REGISTRIES

To try to do away with the FOC would be paving the doom of the maritime nations, as it is not possible. The only way to do so is to place severe limitations on national sovereignty, which cannot be done. The response of a number of the traditional maritime powers has been, often additionally to the traditional tax and other financial incentives to the shipping sector, either to enable the bareboating out of vessels under their flag (e.g., Italy) or to establish offshore or international registries, offering many of the advantages of flags of convenience, but nonetheless retaining a link between beneficial ownership or management and the national flag. Some like the Isle of Man registry have arisen out of accident of history. Torschlusspanik has led to the establishment of "designer" registries, such as the Norwegian International Ship Register (NIS) and the Madeira Shipping Register (MAR), which seek, to halt the decline of the merchant fleets of the traditional maritime powers by allowing ship owners to operate in a low-cost environment whilst retaining the respectability of the national flag. This retention of the link with the national flag preserves the jurisdiction of the maritime power over vessels owned by its nationals.


In 1986 the French Government started a registry at Kerguelen Island. The ships could be operated with a crew consisting of only 25% French nationals.

Unlike the Kerguelen registry, the NIS is open to all self-propelled passenger and cargo ships and hovercrafts, as well as drilling platforms and other moveable installations (but not fishing vessels) whether Norwegian or foreign­ owned provided they meet minimum technical standards. Norwegian safety rules are among the strictest in the world. However, in the case of foreign-owned ships, not only must an agent for service of process be appointed in Norway, but a substantial part of the technical or commercial management of' the vessel must be delegated to a ship management company established in Norway.

The most important benefit of the NIS is his freedom to appoint foreign nationals to all positions on board, with the exception of the master, who must be a Norwegian citizen. In the latter case, a waiver may be granted by the Norwegian 'Maritime Directorate. The Norwegian Seamen's Act applies to vessels entered in the NIS and the NIS Act itself lays down maximum working hours. Its success can be noted from the fact that between 1987 and 1989 the number of vessels flying the Norwegian flag increased by 250%.

Denmark and Germany have followed Norway's example in establishing their own international registers (DIS and GIS respectively) and Portugal has recently established an offshore register on the island of Madeira (MAR). Spain operates a secondary register in the Canary Islands (CSR). The German international register is open only to German-owned vessels. DIS is not an open registry-in order for a ship to qualify for registration; her owner must be a Danish national.

The Brazilian second register (Registro Especial Brasileiro) became operational in 1997. The closest American equivalent of an offshore register is the Marshall Islands, which enjoys a Compact of Free Association with the United States under the terms of which Marshall Islands vessel may avail them of United States consular assistance. In 1989, the Commission of the European Communities submitted a proposal for a Council Regulation establishing a Community ship register ("EUROS").

CONCLUSION

Flags of convenience are manifestations of international free riding in a way that is particularly obvious. As long as the flag states gain from running open registries and ship owners can benefit from avoiding international standards, the phenomenon is not going to disappear. The improvements we can expect to see in addressing FOC issues may therefore be modest. The changes come largely through increasing the cost to FOC vessels of not adhering to international standards. A combination of international pressure and individual incentives may therefore be what is needed to hold ships to international standards. Most frequently that international pressure has led to increased standards when actors have been able to create some a way to deny access to a benefit to those that do not accept the standards in question. Ironically, then, it is through creating mechanisms of exclusion that the ability to include the widest number of actors in international regulatory efforts is most likely to succeed.

BIBLIOGRAPHY

1. Rodney Carlisle, Sovereignty for Sale: The Origins and Evolution of the Panamanian and Liberian Flags of Convenience. (Annapolis: Naval Institute Press, 1981)
2. Boleslaw Adam Boczek, Flags of Convenience: An International Legal Study. Cambridge: Harvard University Press, 1962)
3. Frank L. Wiswall, Jr., “Flags of Convenience,” in William A. Lovett, ed., United States Shipping Policies and the World Market (Westport, CT and London: Quorum Books, 1996)
4. Jim Morris, “Lost at Sea: ‘Flags of Convenience’ Give Owners a Paper Refuge,” Houston Chronicle, August 22, 1996, p. 15 (Lexis/Nexis)
5. Jane Marc Wells, “Vessel Registration in Selected Open Registries,” The Maritime Lawyer 6 (1981), p. 226; Rodney Carlisle, Sovereignty for Sale: The Origins and Evolution of the Panamanian and Liberian Flags of Convenience. (Annapolis: Naval Institute Press, 1981)
6. H. Edwin Anderson III, “The Nationality of Ships and Flags of Convenience: Economics, Politics, and Alternatives,” The Maritime Lawyer 21, p. 162; Carlisle, p. 175
7. Jim Morris and Kevin Moran, “Lost at Sea: Uneven Regulation and a Ready Supply of Cheap Labor Have Added a Harsh Modern Reality to the Romance of Going to Sea,” Houston Chronicle 18 August 1996, p. A1 (Lexis/Nexis);
8. Jim Morris, “Lost at Sea: Accident Underscores Potential Hazards of Foreign Vessels,” Houston Chronicle December 16, 1996, p. A12 (Lexis/Nexis).



[1] Flags of Convenience- An International Legal Study, 1962, Harvard University Press, p.2
[2] Rodney Carlisle, Sovereignty for Sale: The Origins and Evolution of the Panamanian and Liberian Flags of Convenience. (Annapolis: Naval Institute Press, 1981) p.8
[3] Boleslaw Adam Boczek, Flags of Convenience: An International Legal Study. Cambridge: Harvard University Press, 1962), p. 8.

[4]Wells, p. 222; Frank L. Wiswall, Jr., “Flags of Convenience,” in William A. Lovett, ed., United States Shipping Policies and the World Market (Westport, CT and London: Quorum Books, 1996), p. 116; Jim Morris, “Lost at Sea: ‘Flags of Convenience’ Give Owners a Paper Refuge,” Houston Chronicle, August 22, 1996, p. 15 (Lexis/Nexis) [cited hereafter as Morris 8/22/96].
[5] Jane Marc Wells, “Vessel Registration in Selected Open Registries,” The Maritime Lawyer 6 (1981), p. 226; Rodney Carlisle, Sovereignty for Sale: The Origins and Evolution of the Panamanian and Liberian Flags of Convenience. (Annapolis: Naval Institute Press, 1981), pp. 14-18.

[6] W.L. Comyn, of Pacific Freighters, quoted in Carlisle, pp. 10-11.
[7] Action on the Question of Open registries TD/B/C.4/220
[8] H. Edwin Anderson III, “The Nationality of Ships and Flags of Convenience: Economics, Politics, and Alternatives,” The Maritime Lawyer 21, p. 162; Carlisle, p. 175

[9] Jim Morris and Kevin Moran, “Lost at Sea: Uneven Regulation and a Ready Supply of Cheap Labor Have Added a Harsh Modern Reality to the Romance of Going to Sea,” Houston Chronicle 18 August 1996, p. A1 (Lexis/Nexis); Jim Morris, “Lost at Sea: Accident Underscores Potential Hazards of Foreign Vessels,” Houston Chronicle December 16, 1996, p. A12 (Lexis/Nexis).

DEVIATION AND DELAY DURING VOYAGE

(By VIDYA VENUGOPAL, National University of Advanced Legal Studies, Cochin.)

Deviation in the course of voyage

Deviation is described by Scrutton as thus- In the absence of express stipulations to the contrary, the owner of a vessel impliedly undertakes to proceed in that ship by a usual and reasonable route without unjustifiable departure from that route and without unreasonable delay.[1] This undertaking of the ship-owner is to be understood with reference to the circumstances that arise during the performance of the contract. Deviation is not just straying from the route, but may also include a deliberate reduction of speed along the route. However he is not answerable for delays or deviations which are occasioned or become necessary without default on his part.[2]

The ship therefore ought to take the most direct, safe, course to her destination subject to her customary practice. If the voyage is to a round of ports they ought to be taken in the order in which they are named in the contract. However if the intended place of call have not been named, but rather denoted by a general description, then they must be taken in the order in which they occur on the agreed voyage. Where however there is a settled usage for ships upon the agreed voyage to take some particular course, or to call at particular intermediate ports, that usage will form part of the contract, unless it is expressly excluded.[3] In such cases extrinsic evidence is admissible as to what is the usual and customary route between the termini of the voyage and if the ship has followed that route then she has not deviated from the contract voyage. In Frenkel v. MacAndrews[4], the bill of lading stated that the goods were destined for Liverpool. However the ship proceeded towards Cartagena but was lost in a storm. The shipper contended that the ship had deviated. However on evidence being adduced that the she was on her usual commercial route of calling at Malaga and therefore she was on her contract voyage when she was lost.
Further more a departure by the vessel from the geographical route to a bunkering port for consideration of cheapness and convenience does not amount to a deviation.[5] The test applied is “Was the departure necessary in the business sense?” Similarly calling at whether stations to inquire about ice or a call at a usual coaling port are not departures from the usual and customary course of the voyage. However the taking of a vessel in tow is equivalent to a deviation.
The law was appropriately summed up by Lord Porter in the case of Reardon Smith Line v. Black Sea and Baltic General Insurance thus
“It is the duty of the ship when sailing from one port to another to take the usual route between those two ports. If no evidence is there then the route is presumed to be the direct geographical route, but it may be modified in many cases, for navigational and other reasons, and evidence may always be given to show what the usual route is, unless a specific route is prescribed by the charter party or the bill of lading.”
Justifiable deviations
1) Deviation to save property
A deviation purely for the purpose of saving property belonging to third persons is not justifiable at common law. This was evident from the decision of Scaramanga v. Stamp.[6] Here the steamer Olympia carrying a cargo of wheat for the charterparty spotted anothership in distress. The weather was fine and there would have been no difficulty in taking off the crew. However an agreement was reached whereby Olympia was to tow the ship for a specified amount. However on the way the Olympia and her cargo were lost
in sea. It was held that the deviation was not justifiable and therefore the shipowner was liable for the loss.
2) Deviation to avoid danger
Where the safety of the adventure under the master’s control requires that he should delay, or go out of his course, he is not only justified in doing so, but that becomes his duty in the right performance of the contract made with the owners of the cargo. Thus the master is entitled to delay in a neutral port if he is under a reasonable apprehension of capture by hostile cruisers.
3) Temporary obstacle
The master is not justified in altering the course of the voyage in such a way as to make a substantially different voyage from that which was agreed upon, in order to avoid a merely temporary impediment or danger. In Crosby v. Fitch[7] a vessel bound from New York to Norwich in Connecticut performed her voyage by going out to sea to the south of Long Island, instead of by the regular route through Long Island Sound, which was obstructed by ice at the time. It was held that the deviation was not justified and that the ship-owners were liable for a loss by perils of the sea.
4) Danger peculiar to ship or to cargo
A deviation may be justified although the danger to be avoided threatens the ship only and not the cargo. The master is bound to make all reasonable efforts for the safety of each portion of the cargo. But he is not generally bound to deviate from his course in order to preserve a part of it. Thus it cannot be contended that if the goods on board became wet while on voyage and liable to be damaged, the master would be bound to put
into the nearest port in order to transship and dry the cargo.[8] On the other hand the master is bound to take into account the interests of the cargo as well as those of the ship. And if it is reasonable and prudent to deviate in order to do necessary repairs, he ought to do so, though that may be in the interest of the cargo only. In Phelps v. Hill[9] the master having put into Queenstown for distress proceeded for repairs towards Bristol where the ship-owners had a repairing yard. However on the way the ship was sunk by a collision with another vehicle. In an action by the cargo owners it was contended that the proceeding to Bristol was a deviation which was not justified. However it was held that the maser had exercised the discretion of a reasonable man in the interests of the ship and the cargo in going to Bristol.
5) Deviation necessitated by unseaworthiness
A deviation to a port of refuge that is reasonably necessary to save the ship from sea perils is justifiable even though the ship was unseaworthy, and though, but for that unseaworthiness, she would not have been in any danger.[10] A master is not only justified in deviating but bound to do so if the safety of the adventure is threatened.
6) Deviation to save life
The master may deviate, either by going out of course, or by delaying, in order to assist or save the lives of those on board another vessel in distress. However he is not justified in deviating for the mere purpose of saving property, nor in continuing a deviation, made in the first instance to save life, after that has been effected, with a view of rescuing the property also.
7) Liberty Clauses
A deviation may also be justified by the terms of a specific clause in the bill of lading or charterparty giving the ship-owner a ‘liberty’ to call at additional ports during the voyage. However courts tend to construe these narrowly. In Glynn v. Margetson[11] on a voyage from Malaga to Liverpool, the ship-owner deviated from the direct route to a port on the East Coast of Spain. This delay caused damage to the cargo of oranges. It was held that the liberty clause contained in the bill of lading was restricted to ports in the course of voyage and therefore did not cover this particular deviation.
The Hague and Hague-Visby Rules both provide in Art IV(4) a liberty for the carrier to make ‘reasonable deviations’.In Stag Line Ltd v. Foscolo Mango and Co Ltd[12] a deviation to take on replacement crew was ‘reasonable’ although not the subsequent route taken out of the port of which sacrificed safety for speed.
Hague and Hague- Visby Rules
In Stag Line Ltd it was held that the doctrine of deviation subsists even when the Hague Rules apply. The argument that the Rules were a self contained code was rejected. Whether the common law doctrine of deviation should be disregarded in deciding whether a ship-owner can rely on the defence of an exception provided by the Hague-Visby Rules would depend by reference to the language of the Rules themselves
Effect of deviation
Where a vessel has deviated from her proper course, the ship-owner is not only liable for the delay, but he becomes responsible for any loss or damage that happens to the goods unless the goods owner waives the deviation, The ship-owner is not protected by
the exception of perils in the contract. In Thorley v. Orchis SS.Co[13] locusts beans were shipped in a vessel which was bound for London. However the vessel did not protect directly to London but proceeded towards to ports in Asia Minor On arrival in London, the beans were damaged. The ship-owners were held liable notwithstanding an exception of negligence in the bill of lading. Specifically it was stated that a deviation is such a serious matter and changes the character of the voyage so essentially that a ship-owner who has been guilty of a deviation cannot be considered as having performed his part of the bill of lading contract, but something fundamentally different, and therefore he cannot claim the benefit of the stipulation in his favor contained in the bill of lading.
The precise effect of a breach of the obligation under a contract of carriage by sea to proceed without deviation was a matter of some doubt until the decision of the House of Lords in S.S Co. v. Tate & Lyle[14]. In this case, a ship was chartered to proceed to Cuba for loading a cargo sugar and from there to a port in San Domingo and then proceed to Queenstown for orders. However after loading at Cuba, due to the default of the owner’s agents and post office authorities in Cuba, the owners failed to inform the master that he had been ordered to the port of San Domingo. Later when the parties became aware of the mistake, the master was ordered to return back to the port of Domingo and the ship after leaving this port became stranded. It was held by the House of Lords that the ship had deviated after leaving Cuba, but the charterers had waived the deviation. It was settled by this case, that the obligation not to deviate is a condition of the contract and that the breach of it entitles the goods-owner if he desires to treat the contract as repudiated. Further more it is open to the party not in default to treat the contract as at an end or to waive the breach and treat it as subsisting. Further more waiver of a deviation by a charterer will not usually affect the position of a consignee or indorsee to whom he has transferred the bills of lading.[15] A voluntary and unwarranted deviation puts an end to the special contract, unless the goods owner waives it.
Effect of delay
As observed earlier, the ship must proceed with reasonable diligence, not only on the main contract voyage but also when proceeding under a charter party to the port of loading. The effect of delay on the contract of carriage appears to depend on the question whether or not the delay amounts to a deviation. Where the delay amounts to a deviation, the charterer is entitled to treat it as a breach of condition and to refuse to load the ship, but that where the delay does not amount to a deviation his remedy is in damages.
Delay amounts to a deviation when it is such as to substitute an entirely different service from that contemplated, it must make the voyage different from the contract voyage.[16] The term deviation is sometimes loosely used to describe any delay beyond the shortest reasonable tome in which a voyage can be carried out but this is a misuse of words. The proper test to apply in order to decide whether there is a delay is whether that delay is such as to frustrate the commercial purpose of the venture.[17] Where the neglect of the ship-owner to proceed to the port of loading with due diligence does not generally entitle the charterer to refuse to load. But when the delay is such as in effect to frustrate the intended adventure, the charterer will be entitled to reject the ship. In Mount v. Larkins it was a marine insurance case which decided that an unreasonable and unjustifiable delay in commencing a voyage amounted to a deviation and therefore discharged the insurer.
Further more if the ship is unfit to receive the cargo, and the delay entailed in making her fit would amount to a deviation, the charterer is entitled to rescind the charterparty. However if the defect of the ship had been remedied by the ship-owner, without such delay as to frustrate the adventure, probably the charterer would not have been entitled to reject the ship, though he might have claimed compensation for any loss sustained through the delay. Where a vessel is chartered for a specified period of time, the charterer will not be bound to take her if she can be made fit for the chartered service only after such delay as will frustrate the commercial purpose of the charterparty.[18] In Snia Societa v. Suzuki[19] the ship was unable to perform her chartered service for a period owing to unseaworthiness, and it was held by the Court of Appeal that the charterers were entitled to cancel the charter on the ground of frustration. The principle applicable for time charters is what applies to charters in general-only such delay as makes the chartered service something materially different from that which was contemplated, in the sense that the commercial object of the charter-party is frustrated, entitles the charterer to cancel the charterparty.
Damages for delay
Where the delay does not amount to deviation, damages will not be recoverable for loss or damage occurring during or after such delay unless the delay caused the loss or damage in question. Hence no damages will be recoverable for loss resulting were a vessel is stuck by lightning which she would have avoided had she sailed with reasonable dispatch. Damages for delay are recoverable if the event in question would not have occurred but for the delay and was in fact anticipated. Where the outbreak of war prevents the completion of a voyage, which but for the delay would have been completed before the war, the liability of the ship-owner depends on whether he ought to have reasonably foreseen such likelihood

Bibliography

Baughen, Simon, Shipping Law, 2nd ed., Cavendish Publishing Limited, 2001.

Carver’s Carriage by Sea, Vol.II: Colinvaux Raoul, 13th ed, Steven & Sons, 1982
Cases Referred

1) Taylor v. G.N.Ry.(1866) L.R.1.C.P.
2) Cormack v. Gladstone (1809) 11 East 347
3) Frenkel v. MacAndrews [1929] A.C. 545
4) Reardon Smith Line v. Black Sea and Baltic General Insurance
5) Scaramanga v. Stamp (1880) 4 C.P.D,316
6) Crosby v. Fitch (1838) 12 Conn. 410
7) Notara v. Henderson (1870) L.R 5 Q.B 354
8) Phelps v. Hill [1891]1.Q.B.605
9) Glynn v. Margetson [1893] AC 351
10) Kish v. Taylor [1912] A.C. 604
11) Stag Line Ltd v. Foscolo Mango and Co Ltd [1932] AC 328
12) Thorley v. Orchis SS.Co [1907] 1K.B.660
13) S.S Co. v. Tate & Lyle (1936) 41 Com.Cas.350
14) Leduc v. Ward (1936) 41 Com Cas. 350
15) Verren v. Anglo- Dutch Brick Co. (1929) 34 I.L.R 210
16) Snia Societa v. Suzuki (1924) 29 Com Cas. 284
17) HongKong Fir v. Kawasaki [1962] 2 Q.B. 26
18) Universal Cargo Carriers v. Citati [1957] 2 Q.B. 401

[1] Scrutton, Charterparties and Bills of Lading
[2] Taylor v. G.N.Ry.(1866) L.R.1.C.P.
[3] Cormack v. Gladstone (1809) 11 East 347
[4] [1929] A.C. 545
[5] Reardon Smith Line v. Black Sea Insurance [1939] A.C. 562, 575
[6] (1880) 4 C.P.D,316
[7] (1838) 12 Conn. 410
[8] Notara v. Henderson (1870) L.R 5 Q.B 354
[9] [1891]1.Q.B.605
[10] Kish v. Taylor [1912] A.C. 604
[11] [1893] AC 351
[12] [1932] AC 328
[13] [1907] 1K.B.660
[14] (1936) 41 Com.Cas.350
[15] Leduc v. Ward.(1936) 41 Com Cas. 350
[16] Verren v. Anglo- Dutch Brick Co. (1929) 34 I.L.R 210
[17] Universal Cargo Carriers v. Citati [1957] 2 Q.B. 401
[18] HongKong Fir v. Kawasaki [1962] 2 Q.B. 26
[19] (1924) 29 Com Cas. 284

PROTECTION OF MARINE ENVIRONMENT AND CONVENTIONS ON POLLUTION

(By MANJERI SUBIN SUNDER RAJ, National University of Advanced Legal Studies, Cochin.)

INTRODUCTION

It seems that almost every day there is another story about pollution of one form or another, in the food we eat, the water we drink and the air we breathe. Very often our own actions lead to that pollution and in many cases we can do something about it.

The oceans are a vast resource whose usefulness to the global society is continuing to be realized. Thus, it is in the best interest of humanity that they are exploited in a manner that is protective and sustainable, in order to preserve their health and guarantee their continuing viability. They however are one of the most polluted. Over 80% of all marine pollution comes from land-based activities and many pollutants are deposited in estuaries and coastal waters.
Currently, the biggest threats to the health of the marine environment are:
Ø Habitat destruction and alteration
Ø Over fishing
Ø Pollution from sewage and chemicals
Ø Increasing eutrophication[1]
Ø Changes to hydrology and sediment flow
Ø Global climate change
Ø Ship pollution
In this work, I would be dealing with the pollution to the marine environment basically from ships and other vessels. They really provide an insight to man’s carelessness and how far negligent we are at protecting our resources.
SHIP POLLUTION

Ship pollution is the pollution of water by shipping. It is a problem that has been accelerating as trade has become increasingly globalized. The pollution produced affects biodiversity, climate, food, and human health. There are numerous causes for this, out of which I would discuss some important ones.

CAUSES :

1.OIL SPILLS
Most commonly associated with ship pollution are oil spills. Tankers illegally cleaning their tanks while out at sea and dumping the dirty water overboard cause significant oil pollution. 72 per cent of oil pollution caused by shipping is estimated to be deliberate and illegal. Only 28 per cent is caused by tanker accidents. Many of the major oil spillages during the last 40 years have been caused, or made worse by human error. Human error can mean carelessness, but it also includes continuing to use old, unsafe ships and employing crews with inadequate training.
While being toxic to marine life, polycyclic aromatic hydrocarbons (PAHs), the components in crude oil, are very difficult to clean up, and last for years in the sediment and marine environment.[2] Marine species constantly exposed to PAHs can exhibit developmental problems, susceptibility to disease, and abnormal reproductive cycles.
There have been a number of serious oil spillages caused by oil tanker accidents in the last 4 decades. The Torrey Canyon was the first of the big supertankers, capable of carrying a cargo of 120,000 tons of crude oil. On March 18, 1967, owing to a navigational error, the Torrey Canyon struck Pollard's Rock in the Seven Stones reef and caused major environmental damage on the Cornish and French coasts. This was the first major oil spill and no plans had been prepared beforehand to deal with it. The ship broke apart after being stranded on the reef for several days. Around 120 miles of Cornish coast and 80 kilometres of France was contaminated and around 15,000 sea birds killed along with huge numbers of marine organisms before the 270 square mile slick dispersed. Further damage was caused by the heavy use of detergents to break up the slick.

The disaster led to many changes in international regulations, for example the Civil Liability Convention (CLC) of 1969, which imposed strict liability on ship owners without the need to prove negligence, and the 1973 International Convention for the Prevention of Pollution from Ships.
In 1978, The Amoco Cadiz was wrecked following engine failure on the coast of Brittany, releasing 223,000 tonnes of oil into the sea. Thousands of migrating seabirds were killed when they landed on the oily waters, and many French oyster fisheries and beaches were completely ruined.
The Exxon Valdez was accidentally steered into a reef in Prince William Sound, Alaska in 1989. Emergency equipment did not arrive quickly, and this allowed the 37 million litres of spilled oil to form a slick covering 6,700 square kilometers. The delay in providing equipment, both by the oil company, Exxon, and by the State of Alaska, was unforgivable, and caused the needless death of thousands of animals, including 350,000 sea otters.
The tanker Braer broke up off Shetland having run aground, and in February 1996, the Sea Empress spilled around 70,000 tonnes of crude oil off the Pembroke shire coast in Wales. The Prestige, which sunk off the Spanish coast in 2002, is also one of the most destructive oil spills ever.

Oil-covered seas look calm, but if a bird land in a slick, the oil coats its feathers, affects its buoyancy and the insulating power of its feathers and makes it unable to fly away. An animal killed by oil may then be eaten by fish or birds, which in turn are poisoned by the oil. These oil spills have a catastrophic effect on the marine environment as a whole.
Major Oil Spills Since 1967
Position
Ship name
Year
Location
Spill Size(tonnes)
1
Atlantic Empress
1979
Off Tobago, West Indies
287,000
2
ABT Summer
1991
700 nautical miles off Angola
260,000
3
Castillo de Bellver
1983
Off Saldanha Bay, South Africa
252,000
4
Amoco Cadiz
1978
Off Brittany, France
223,000
5
Haven
1991
Genoa, Italy
144,000
6
Odyssey
1988
700 nautical miles off Nova Scotia, Canada
132,000
7
Torrey Canyon
1967
Scilly Isles, UK
119,000
8
Sea Star
1972
Gulf of Oman
115,000
9
Irenes Serenade
1980
Navarino Bay, Greece
100,000
10
Urquiola
1976
La Coruna, Spain
100,000
11
Hawaiian Patriot
1977
300 nautical miles off Honolulu
95,000
12
Independenta
1979
Bosphorus, Turkey
95,000
13
Jakob Maersk
1975
Oporto, Portugal
88,000
14
Braer
1993
Shetland Islands, UK
85,000
15
Khark 5
1989
120 nautical miles off Atlantic coast of Morocco
80,000
16
Aegean Sea
1992
La Coruna, Spain
74,000
17
Sea Empress
1996
Milford Haven, UK
72,000
18
Katina P
1992
Off Maputo, Mozambique
72,000
19
Nova
1985
Off Kharg Island, Gulf of Iran
70,000
20
Prestige
2002
Off the Spanish coast
63,000
35
Exxon Valdez
1989
Prince William Sound, Alaska, USA
37,000

2. BALLAST WATER

When larger vessels such as a container ship or oil tanker unload cargo, seawater is pumped into compartments in the hull. Similarly, when a larger vessel is being loaded it discharges seawater from these compartments. The seawater is meant to help stabilize and balance a ship. Ballast discharges from ships are responsible for tar balls in the open oceans and seas, and can cause problems navigating tanker routes. Nevertheless, the discharge of ballast water only accounts for a small percentage of oil pollution in the marine environment.[3]

Ships are also responsible for transporting harmful organisms in their ballast water. Meinesz believes that one of the worst cases of a single invasive species causing harm to an ecosystem can be attributed to a seemingly harmless jellyfish. Mnemiopsis leidyi, a species of comb jellyfish that inhabits estuaries from the United States to the Valdés peninsula in Argentina along the Atlantic coast, has caused notable damage in the Black Sea. It was first introduced in 1982, and thought to have been transported to the Black Sea in a ship’s ballast water.[4] In addition to introducing non-native species into new environments, ballast and bilge discharge from ships can spread human pathogens and other harmful diseases and toxins potentially causing health issues for humans and marine life alike.[5] Current research indicates that the bacterium responsible for causing cholera, Vibrio cholerae can spread through attachment to marine organisms in ship ballast water.[6] Discharges into coastal waters along with other sources of marine pollution have the potential to be toxic to marine plants, animals, and microorganisms causing alterations such as changes in growth, disruption of hormone cycles, birth defects, suppression of the immune system, and disorders resulting in cancer, tumors, and genetic abnormalities or even death.

3.CRUISE SHIPS

With some cruise ships holding upwards of 5000 people, passengers and crew combined, these ships are likened to floating cities. “In one week, a typical cruise ship generates 210,000 gallons of black water (sewage), 1,000,000 gallons of gray water (shower, sink, dishwashing water), 37,000 gallons of oily bilge water, more than eight tons of solid waste, millions of gallons of ballast water containing potential invasive species, and toxic wastes from dry cleaning and photo processing laboratories”.[7]

From 1993 to 1998, cruise ships were involved in 104 confirmed cases of illegal discharge of oil, garbage, and hazardous wastes.[8] One of the worst reported cases was by Royal Caribbean Cruises Ltd. Over several years, while in U.S. waters, they had been routinely and deliberately dumping waste oil, photo processing, dry cleaning, and print shop chemicals into coastal waters. Their ships were even fitted with concealed piping that would bypass pollution treatment equipment.

Along with these kinds of pollution, the exhaust emissions from the ship also lead to pollution of the air. They are one of the major causes for acid rains and it has a devastating effect on nature.

There have been many Conventions, which have been enacted for protecting the marine environment. But certain criticisms have been raised against this. It is said that “In general, the treaties tend to emphasize the technical features of safety and pollution control measures without going to the root causes of sub-standard shipping, the absence of incentives for compliance and the lack of enforceability of measures.”[9] Cruise ships for example are exempt from regulation under the Clean Water Act of 1972. I would deal with the Conventions that were made regarding pollution from ships.

CONVENTIONS REGARDING POLLUTION FROM SHIPS

1. INTERNATIONAL CONVENTION FOR THE PREVENTION OF POLLUTION OF THE SEA BY OIL (OILPOL CONVENTION), 1954

Oil pollution of the seas was recognized as a problem in the first half of the 20th century and various countries introduced national regulations to control discharges of oil within their territorial waters. In 1954, the United Kingdom organized a conference on oil pollution that resulted in the adoption of the International Convention for the Prevention of Pollution of the Sea by Oil (OILPOL), 1954. Following entry into force of the IMO Convention in 1958, the depository and Secretariat functions in relation to the Convention were transferred from the United Kingdom Government to IMO.

The Convention primarily addressed pollution resulting from routine tanker operations and from the discharge of oily wastes from machinery spaces.It attempted to tackle the problem of pollution of the seas by oil - defined as crude oil, fuel oil, and heavy diesel oil and lubricating oil in two main ways:
Ø It established "prohibited zones" extending at least 50 miles from the nearest land in which the discharge of oil or of mixtures containing more than 100 parts of oil per million was forbidden; and
Ø It required Contracting Parties to take all appropriate steps to promote the provision of facilities for the reception of oily water and residues.

The Convention was amended in 1962 and it extended its application to ships of a lower tonnage and also extended the "prohibited zones". Later in 1967 when the Torrey Canyon incident took place many questions regarding about measures then in place to prevent oil pollution from ships and also exposed deficiencies in the existing system for providing compensation following accidents at sea. , IMO called an Extraordinary Session of its Council, and decided in 1969 to convene an international conference in 1973 to prepare a suitable international agreement for placing restraints on the contamination of the sea, land and air by ships. Amendments adopted in 1969 contained regulations to further restrict operational discharge of oil from oil tankers and from machinery spaces of all ships. In 1971, IMO adopted further amendments to OILPOL 1954 to afford additional protection to the Great Barrier Reef of Australia and also to limit the size of tanks on oil tankers, thereby minimizing the amount of oil, which could escape in the event of a collision, or stranding.


2. INTERNATIONAL CONVENTION RELATING TO INTERVENTION ON THE HIGH SEAS IN CASES OF OIL POLLUTION CASUALTIES (INTERVENTION), 1969

Adoption: 29 November 1969Entry into force: 6 May 1975
Current Status (As of April31, 2007): 83 countries representing 73.98% of the world's tonnage.

This was one of the direct results of the Torrey Canyon incident. Questions were raised as to the extent to which a coastal State could take measures to protect its territory from pollution where a casualty threatened that State with oil pollution, especially if the measures necessary were likely to affect the interests of foreign ship owners, cargo owners and even flag States. A conference to consider these aspects was held in Brussels in 1969.

The Convention affirms the right of a coastal State to take such measures on the high seas as may be necessary to prevent, mitigate or eliminate danger to its coastline or related interests from pollution by oil or the threat thereof, following upon a maritime casualty.

The coastal State is, however, empowered to take only such action as is necessary, and after due consultations with appropriate interests including, in particular, the flag State or States of the ship or ships involved, the owners of the ships or cargoes in question and, where circumstances permit, independent experts appointed for this purpose.

A coastal State, which takes measures beyond those permitted under the Convention, is liable to pay compensation for any damage caused by such measures. The Convention applies to all seagoing vessels except warships or other vessels owned or operated by a State and used on Government noncommercial service.
The 1973 Protocol, which entered into force 30 March 1983, extended the Convention to cover substances other than oil. Amendments were made in 1991,1996 and 2002. The 1991 amendments, adopted on 4 July 1991 came into force on 30 March 1993. It revised the list of substances drawn up in 1974 to assist the application of the 1973 Protocol.The 1996 amendments adopted on 10 July 1996 came into force on 19 December 1997 and it revised the list of substances attached to the 1973 Protocol, following the adoption of new criteria for their selection. The 2002 amendments adopted on 11 October 2002 came into force on 22 June 2004 and it revised the list of substances attached to the 1973 Protocol.

3.CONVENTION ON THE PREVENTION OF MARINE POLLUTION BY DUMPING OF WASTES AND OTHER MATTER, 1972

Adoption: 13 November 1972Entry into force: 30 August 1975
Current Status (As of April31, 2007): 81 countries representing 68% of the world's tonnage.

The Inter-Governmental Conference on the Convention on the Dumping of Wastes at Sea, which met in London in November 1972 at the invitation of the United Kingdom, adopted this instrument, generally known as the London Convention. . It prohibits the dumping of certain hazardous materials, requires a prior special permit for the dumping of a number of other identified materials and a prior general permit for other wastes or matter."Dumping" has been defined as the deliberate disposal at sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures, as well as the deliberate disposal of these vessels or platforms themselves. Wastes derived from the exploration and exploitation of seabed mineral resources are, however, excluded from the definition.

The 1978 amendments adopted on 12 October 1978 came into force on 11 March 1979 and it affected Annex I of the Convention and are concerned with the incineration of wastes and other matter at sea. The 1980 amendments adopted on 24 September 1980came into force 11 March 1981.These amendments are related to those concerned with incineration and list substances, which require special care when being incinerated. The 1989 amendments adopted on 3 November 1989 came into force on 19 May 1990 and qualified the procedures to be followed when issuing permits under Annex III. The 1993 amendments adopted on 12 November 1993 came into force on 20 February 1994 and banned the dumping into sea of low-level radioactive wastes.

The 1996 Protocol adopted on 7 November 1996 came into force on 24 March 2006 and was aimed to replace the 1972 Convention. It represents a major change of approach to the question of how to regulate the use of the sea as a depository for waste materials. One of the most important innovations is to introduce (in Article 3) what is known as the "precautionary approach". This requires that "appropriate preventative measures are taken when there is reason to believe that wastes or other matter introduced into the marine environment are likely to cause harm even when there is no conclusive evidence to prove a causal relation between inputs and their effects. The 1996 Protocol is much more restrictive.

The 2006 Amendments to the 1996 Protocol adopted on 2 November 2006 came into force on 10 February 2007. It says that Storage of carbon dioxide (CO2) under the seabed will be allowed under amendments to an international convention governing the dumping of wastes at sea.

4. THE 1973 CONVENTION

An International Conference on 2 November 1973 adopted the International Convention for the Prevention of Pollution from Ships. As a result the 1973 Convention incorporated much of OILPOL, 1954 and its amendments into Annex I, covering oil. The other Annexes included chemicals, harmful substances in packaged form, sewage and garbage. The 1973 Convention also included two Protocols dealing with Reports on Incidents involving Harmful Substances and Arbitration. The 1973 Convention required ratification by 15 States, with a combined merchant fleet of not less than 50 percent of world shipping by gross tonnage, to enter into force. By 1976, it had only received three ratifications - Jordan, Kenya and Tunisia - representing less than one percent of the world's merchant shipping fleet. This was despite the fact that States could become Party to the Convention by only ratifying Annexes I (oil) and II (chemicals). Annexes III to V, covering harmful goods in packaged form, sewage and garbage were optional.
5. THE 1978 CONFERENCE

In 1978, in response to a spate of tanker accidents in 1976-1977, IMO held a Conference on Tanker Safety and Pollution Prevention in February 1978. The conference adopted measures affecting tanker design and operation, which were incorporated into both the Protocol of 1978 relating to the 1974 Convention on the Safety of Life at Sea (1978 SOLAS Protocol) and the Protocol of 1978 relating to the 1973 International Convention for the Prevention of Pollution from Ships (1978 MARPOL Protocol) - adopted on 17 February 1978. It allowed States to become Party to the Convention by first implementing Annex I (oil). Annex II (chemicals) would not become binding until three years after the Protocol entered into force. This gave States time to overcome technical problems in Annex II, which for some had been a major obstacle in ratifying the Convention.

As the 1973 Convention had not yet entered into force, the 1978 MARPOL Protocol absorbed the parent Convention. The combined instrument - the International Convention for the Prevention of Marine Pollution from Ships, 1973 as modified by the Protocol of 1978 relating thereto (MARPOL 73/78) - finally entered into force on 2 October 1983 (for Annexes I and II).

MARPOL 73/78

Its stated object is: “to preserve the marine environment through the complete elimination of pollution by oil and other harmful substances and the minimization of accidental discharge of such substances”. As of now the Convention has 144members representing 98% of the world's tonnage. One of the altest accessions is that by Bahrain on 27 April 2007. Date of entry into force for Bahrain: 27 July 2007

The Convention includes regulations aimed at preventing and minimizing pollution from ships - both accidental pollution and that from routine operations - and currently includes six technical Annexes

Annex I: Prevention of pollution by oil

The 1973 Convention maintained the oil discharge criteria prescribed in the 1969 amendments to the 1954 Oil Pollution Convention, without substantial changes. A new and important feature of the 1973 Convention was the concept of "special areas" which are considered to be so vulnerable to pollution by oil that oil discharges within them have been completely prohibited, with minor and well‑defined exceptions. The 1973 Convention identified the Mediterranean Sea, the Black Sea, and the Baltic Sea, the Red Sea and the Gulfs area as special areas. The Protocol of 1978 made a number of changes to Annex I of the parent convention.

Annex I entered into force on 2 October 1983.

Annex II: Control of pollution by noxious liquid substances

It details the discharge criteria and measures for the control of pollution by noxious liquid substances carried in bulk. Some 250 substances were evaluated and included in the list appended to the Convention.

Annex II entered into force 6 April 1987. As of now, 144 countries representing 98% of the world's tonnage had become party to Annexes I and II.

Annex III: Prevention of pollution by harmful substances in packaged form

It contains general requirements for the issuing of detailed standards on packing, marking, labelling, documentation, stowage, quantity limitations, exceptions and notifications for preventing pollution by harmful substances. The International Maritime Dangerous Goods (IMDG) Code has, since 1991, included marine pollutants.

Annex III entered into force on 1 July 1992 and as of now, 127 countries representing over 94% of the world's tonnage had become party to it.
Annex IV: Prevention of pollution by sewage from ships

Annex IV contains requirements to control pollution of the sea by sewage.

Annex IV entered into force on 27 September 2003 and as of now, 117 countries representing over 75% of the world's tonnage had become party to it.

Annex V: Prevention of pollution by garbage from ships

This deals with different types of garbage and specifies the distances from land and the manner in which they may be disposed of. The requirements are much stricter in a number of "special areas" but perhaps the most important feature of the Annex is the complete ban imposed on the dumping into the sea of all forms of plastic.

Annex V entered into force on 31 December 1988 and as of now, 133 countries representing over 96% of the world's tonnage had become party to it.

Annex VI: Prevention of Air Pollution from Ships

The regulations in this annex sets limit on sulphur oxide and nitrogen oxide emissions from ship exhausts and prohibit deliberate emissions of ozone depleting substances.

Annex VI was adopted in September 1997 and entered into force on 19 May 2005 and as of now, 41 countries representing over 72% of the world's tonnage had become party to it.

ENFORCEMENT

Any violation of the MARPOL 73/78 Convention within the jurisdiction of any Party to the Convention is punishable either under the law of that Party or under the law of the flag State. With the exception of very small vessels, ships engaged on international voyages must carry on board valid international certificates, which may be accepted at foreign ports as prima facie evidence that the ship complies with the requirements of the Convention.
If, however, there are clear grounds for believing that the condition of the ship or its equipment does not correspond substantially with the particulars of the certificate, or if the ship does not carry a valid certificate, the authority carrying out the inspection may detain the ship until it is satisfied that the ship can proceed to sea without presenting unreasonable threat, or harm to the marine environment. This puts down stringent rules to be followed.
AMENDMENTS
There are a number of Amendments. The list is as follows.
The 1984 amendments, The 1985 (Annex II) amendments- (The amendments also made the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk (IBC Code) mandatory for ships built on or after 1 July 1986), The 1985 (Protocol I) amendments – incident reporting, The 1987 amendments - special area extension, The 1989 (March) amendments – Annex II, The October 1989 amendments – North Sea special area, The 1990 (HSSC) amendments, The 1990 (IBC Code) amendments, The 1990 (BCH) amendments, The 1990 (Annexes I and V) amendments (The amendments extended Special Area Status under Annexes I and V to the Antarctic) – Antarctic as special area, The 1991 amendments – Wider Caribbean as special area, The 1992 amendments – Double hulls made mandatory, The 1994 amendments – Implementation, The 1995 amendments – Garbage records, The 1996 amendments, The 1997 amendments – North West European waters as special area, The Protocol of 1997 adoption of Annex VI - Regulations for the Prevention of Air, Pollution from Ships, The 1999 amendments – Persistent oil, The 2000 amendments – Deletion of tainting, The 2001 amendments - revised 13 G (double hulls), The 2003 amendments - Double hulls, The 2004 (April) amendments - revised Annex IV (sewage), The 2004 (October) amendments - revised Annexes I and II, The 2005 amendments - North Sea, SECA, Annex VI amendments, The 2006 amendments - oil fuel tank protection, The 2006 (October) amendments - South Africa special area, revised Annex III.

6. INTERNATIONAL CONVENTION ON OIL POLLUTION PREPAREDNESS, RESPONSE AND CO-OPERATION (OPRC), 1990

Adoption: 30 November 1990Entry into force: 13 May 1995
Current Status (As of April31, 2007): 88 countries representing 65% of the world's tonnage.

In July 1989, a conference of leading industrial nations in Paris called upon IMO to develop further measures to prevent pollution from ships. The IMO Assembly endorsed this call in November of the same year and work began on a draft convention aimed at providing a global framework for international co-operation in combating major incidents or threats of marine pollution.

Parties to the OPRC convention are required to establish measures for dealing with pollution incidents, either nationally or in co-operation with other countries. Ships are required to carry a shipboard oil pollution emergency plan, the to be developed by IMO. Operators of offshore units under the jurisdiction of Parties are also required to have oil pollution emergency plans or similar arrangements which must be co-ordinated with national systems for responding promptly and effectively to oil pollution incidents. Parties to the convention are required to provide assistance to others in the event of a pollution emergency and provision is made for the reimbursement of any assistance provided. Ships are required to report incidents of pollution to coastal authorities and the convention details the actions that are then to be taken.


7.PROTOCOL ON PREPAREDNESS, RESPONSE AND CO-OPERATION TO POLLUTION INCIDENTS BY HAZARDOUS AND NOXIOUS SUBSTANCES, 2000 (OPRC-HNS PROTOCOL)
Adoption: 15 March 2000
Entry into force: Twelve months after ratification by not less than fifteen States, which are State Parties to the OPRC Convention.
Current Status (As of April31, 2007): the fifteenth ratification was filed with IMO on 14 June 2006. The Protocol will therefore enter into force on 14 June 2007. It has 18 ratifications representing 18.5% of the world's tonnage. Latest Accession by France on 24 April 2007. Date of entry into force for France: 14 June 2007.
This follows the principles of the OPRC and was formally adopted by States already Party to the OPRC Convention at a Diplomatic Conference held at IMO headquarters in London in March 2000. For the purposes of the HNS Protocol, a Hazardous and Noxious Substance is defined as any substance other than oil which, if introduced into the marine environment is likely to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.

The HNS Protocol will ensure that ships carrying hazardous and noxious liquid substances are covered by preparedness and response regimes similar to those already in existence for oil incidents. In 1996, IMO adopted the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances (HNS) by sea, which provides for a compensation and liability regime for incidents involving these substances (it has not yet entered into force).

8. INTERNATIONAL CONVENTION ON THE CONTROL OF HARMFUL ANTI-FOULING SYSTEMS ON SHIPS
Adoption: 5 October 2001
Entry into force: The convention will enter into force 12 months after 25 States representing 25% of the world's merchant shipping tonnage have ratified it.
Current Status (As of April31, 2007): It has 23 ratifications representing 17.06% of the world’s tonnage.
It will prohibit the use of harmful organotin in anti-fouling paints used on ships and will establish a mechanism to prevent the potential future use of other harmful substances in anti-fouling systems. Ships of above 400 gross tonnage and above engaged in international voyages will be required to undergo an initial survey before the ship is put into service or before the International Anti-fouling System Certificate is issued for the first time; and a survey when the anti-fouling systems are changed or replaced. Ships of 24 metres or more in length but less than 400 gross tonnage engaged in international voyages will have to carry a Declaration on Anti-fouling Systems signed by the owner or authorized agent. The Declaration will have to be accompanied by appropriate documentation such as a paint receipt or contractor invoice.
In 1990 IMO’s Marine Environment Protection Committee (MEPC) adopted a resolution which recommended that Governments adopt measures to eliminate the use of anti-fouling paint containing TBT on non-aluminum hulled vessels of less than 25 metres in length and eliminate the use of anti-fouling paints with a leaching rate of more than four microgrammes of TBT per day.
In November 1999, IMO adopted an Assembly resolution that called on the MEPC to develop an instrument, legally binding throughout the world, to address the harmful effects of anti-fouling systems used on ships. The resolution called for a global prohibition on the application of organotin compounds, which act as biocides in anti-fouling systems on ships by 1 January 2003, and a complete prohibition by 1 January 2008.
9. INTERNATIONAL CONVENTION FOR THE CONTROL AND MANAGEMENT OF SHIPS' BALLAST WATER AND SEDIMENTS
Adoption: 13 February 2004Entry into force: 12 months after ratification by 30 States, representing 35 per cent of world merchant shipping tonnage.
Current Status (As of April31, 2007): It has 8 ratifications representing 3.21% of the world’s tonnage.

The problem of invasive species is largely due to the expanded trade and traffic volume over the last few decades. The effects in many areas of the world have been devastating. The problem of harmful aquatic organisms in ballast water was first raised at IMO in 1988 and since then IMO's Marine Environment Protection Committee (MEPC), together with the Maritime Safety Committee (MSC) and technical sub-committees, have been dealing with the issue, focusing in the past decade first on guidelines and then on developing the new convention.

This Convention aims to prevent, minimize and ultimately eliminate the transfer of harmful aquatic organisms and pathogens through the control and management of ships' ballast water and sediments. Parties should ensure that ballast water management practices do not cause greater harm than they prevent to their environment, human health, property or resources, or those of other States.
Parties are given the right to take, individually or jointly with other Parties, more stringent measures with respect to the prevention, reduction or elimination of the transfer of harmful aquatic organisms and pathogens through the control and management of ships' ballast water and sediments, consistent with international law.
Ships are required to be surveyed and certified (Article 7 Survey and certification) and may be inspected by port State control officers (Article 9 Inspection of Ships) who can verify that the ship has a valid certificate; inspect the Ballast Water Record Book; and/or sample the ballast water. Ships are required to have on board and implement a Ballast Water Management Plan approved by the Administration (Regulation B-1).
Some examples of aquatic bio-invasions causing major impact are listed in the
Name
Native to
Introduced to
Impact
CholeraVibrio cholerae (various strains)
Various strains with broad ranges
South America, Gulf of Mexico and other areas
Some cholera epidemics appear to be directly associated with ballast water
Cladoceran Water FleaCercopagis pengoi
Black and Caspian Seas
Baltic Sea
Reproduces to form very large populations that dominate the zooplankton community and clog fishing nets and trawls, with associated economic impacts
European Green CrabCarcinus maenus
European Atlantic Coast
Southern Australia, South Africa, the United States and Japan
Highly adaptable and invasive. Resistant to predation due to hard shell. Competes with and displaces native crabs and becomes a dominant species in invaded areas. Consumes and depletes wide range of prey species.


CONVENTIONS ON LIABILITY
1.INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE (CLC), 1969

Adoption: 29 November 1969Entry into force: 19 June 1975
Current Status (As of April31, 2007): ratified by 39 countries representing 7.5% of the world’s tonnage.
This was adopted to ensure that adequate compensation is available to persons who suffer oil pollution damage resulting from maritime casualties involving oil-carrying ships. It places the liability for such damage on the owner of the ship from which the polluting oil escaped or was discharged. Liability is strict; it is the duty of the owner to prove in each case that any of the exceptions should in fact operate. The Convention covers pollution damage resulting from spills of persistent oils suffered in the territory (including the territorial sea) of a State Party to the Convention. Spills from tankers in ballast or bunker spills from ships other than other than tankers are not covered, nor is it possible to recover costs when preventive measures are so successful that no actual spill occurs.
2. INTERNATIONAL CONVENTION ON THE ESTABLISHMENT OF AN INTERNATIONAL FUND FOR COMPENSATION FOR OIL POLLUTION DAMAGE (FUND), 1971
Adoption: 18 December 1971
Entry into force: 16 October 1978
The 1969 Civil Liability Convention provided a useful mechanism for ensuring the payment of compensation for oil pollution damage; it did not deal satisfactorily with all the legal, financial and other questions raised during the Conference adopting the CLC Convention. The purposes of this Fund are
To provide compensation for pollution damage to the extent that the protection afforded by the 1969 Civil Liability Convention is inadequate.
To give relief to ship owners in respect of the additional financial burden imposed on them by the 1969 Civil Liability Convention, such relief being subject to conditions designed to ensure compliance with safety at sea and other conventions.
To give effect to the related purposes set out in the Convention.

The 2003 Protocol establishing an International Oil Pollution Compensation Supplementary Fund was adopted by a diplomatic conference held at IMO Headquarters in London. The aim of the established Fund is to supplement the compensation available under the 1992 Civil Liability and Fund Conventions with an additional, third tier of compensation

3.CONVENTION RELATING TO CIVIL LIABILITY IN THE FIELD OF MARITIME CARRIAGE OF NUCLEAR MATERIAL (NUCLEAR), 1971
Adoption: 17 December 1971Entry into force: 15 July 1975
Current Status (As of April31, 2007): ratified by 17 countries representing 20.11% of the world’s tonnage.
The purpose of this Convention is to resolve difficulties and conflicts which arise from the simultaneous application to nuclear damage of certain maritime conventions dealing with ship owners' liability, as well as other conventions which place liability arising from nuclear incidents on the operators of the nuclear installations from which or to which the material in question was being transported.



4.CONVENTION ON LIMITATION OF LIABILITY FOR MARITIME CLAIMS (LLMC), 1976

Adoption: 19 November 1976Entry into force: 1 December 1986
Current Status (As of April31, 2007): ratified by 51 countries representing 48.33% of the world’s tonnage. Accession by Latvia on 18 April 2007 Date of entry into force for Latvia: 17 July 2007, Accession by France on 24 April 2007Date of entry into force for France: 23 July 2007.

The Convention replaces the International Convention Relating to the Limitation of the Liability of Owners of Seagoing Ships, which was signed in Brussels in 1957, and came into force in 1968.Under the 1976 Convention, the limit of liability for claims covered is raised considerably, in some cases up to 250-300 per cent. Limits are specified for two types of claims - claims for loss of life or personal injury, and property claims (such as damage to other ships, property or harbour works).

5.ATHENS CONVENTION RELATING TO THE CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA (PAL), 1974
Adoption: 13 December 1974Entry into force: 28 April 1987
Current Status (As of April31, 2007): ratified by 32 countries representing 39.65% of the world’s tonnage.
The Convention is designed to consolidate and harmonize two earlier Brussels conventions dealing with passengers and luggage and adopted in 1961 and 1967 respectively. The Convention establishes a regime of liability for damage suffered by passengers carried on a seagoing vessel. It declares a carrier liable for damage or loss suffered by a passenger if the incident causing the damage occurred in the course of the carriage and was due to the fault or neglect of the carrier. As far as loss of or damage to luggage is concerned, the carrier's limit of liability varies, depending on whether the loss or damage occurred in respect of cabin luggage, of a vehicle and/or luggage carried in or on it, or in respect of other luggage.
6. INTERNATIONAL CONVENTION ON LIABILITY AND COMPENSATION FOR DAMAGE IN CONNECTION WITH THE CARRIAGE OF HAZARDOUS AND NOXIOUS SUBSTANCES BY SEA (HNS), 1996
Adoption: 3 May 1996
Entry into force: 18 months after the following conditions have been fulfilled:
12 States have accepted the Convention, four of which have not less than two million units of gross tonnage
Current Status (As of April31, 2007): ratified by 8 countries representing 4.83% of the world’s tonnage.
The Convention will make it possible for up to US$320 million to be paid out in compensation to victims of accidents involving HNS, such as chemicals. The HNS Convention is based on the two-tier system established under the CLC and Fund Conventions However; it goes further in that it covers not only pollution damage but also the risks of fire and explosion, including loss of life or personal injury as well as loss of or damage to property.
7. INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR BUNKER OIL POLLUTION DAMAGE, 2001

Adoption: 23 March 2001.
Entry into force: Enters into force 12 months following the date on which 18 States, including five States each with ships whose combined gross tonnage is not less than 1 million gt have either signed it without reservation as to ratification, acceptance or approval or have deposited instruments of ratification, acceptance, approval or accession with the IMO Secretary-General.
Current Status (As of April31, 2007): ratified by 15 countries representing 16.16% of the world’s tonnage. Ratification by Germany on 24 April 2007.

The Convention was adopted to ensure that adequate, prompt, and effective compensation is available to persons who suffer damage caused by spills of oil, when carried as fuel in ships' bunkers. The Convention applies to damage caused on the territory, including the territorial sea, and in exclusive economic zones of States Parties.
INDIA AND THE CONVENTIONS
The Conventions, which have not been ratified by India, are
Ø MARPOL 73/78 Annex VI: Prevention of Air Pollution from Ships
Ø Convention On The Prevention Of Marine Pollution By Dumping Of Wastes And Other Matter, 1972
Ø Intervention On The High Seas In Cases Of Oil Pollution Casualties Protocol, 1973
Ø Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material (NUCLEAR), 1971
Ø Limitation of Liability for Maritime Claims (LLMC) Protocol, 1996
Ø International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS), 1996
Ø Protocol on Preparedness, Response and Co-operation to pollution Incidents by Hazardous and Noxious Substances, 2000 (HNS Protocol)
Ø International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001
Ø International Convention on the Control of Harmful Anti-fouling Systems on Ships (AFS), 2001
Ø International Convention for the Control and Management of Ships' Ballast Water and Sediments, 2004
Ø Athens Convention Relating To The Carriage Of Passengers And Their Luggage By Sea (Pal), 1974

Indian shipping policy is not isolated or any different from the global maritime environment. The main source of maritime law, besides domestic law, has been international conventions to which India is a signatory. Under the Constitution of India, the Ministry of Surface Transport deals with merchant shipping. The principal legislation dealing with the combating of oil pollution is;
Ø The Merchant Shipping Act of 1958 (MS Act)
Ø The Marine Insurance Act of 1963
Ø The Merchant Shipping (Prevention of Pollution of the Sea by Oil) Rules, 1974.
I would be concentrating on the MS Act in my work. Part XB, XC and XIA are the most important Parts relating to the topic.
Part XB dealing with Civil Liability For Oil Pollution Damage, which contains S.352G to 352R, was inserted by the Act.12 of 1983. Part XC dealing with International Oil Pollution Compensation Fund which contains S. 352S to 352ZA was inserted by Act.63 of 2002. Part XIA dealing with Prevention and Containment of Pollution Of the Sea By Oil which contains S.356A to 356-O was inserted by Act.12 of 1983.
Part XB is applicable to every Indian ship and every foreign ship while it is at an Indian port or place or in the territorial waters of India. [10] Section 352I of the Act deals with the extent of the liability of the ship owner. However, the ship owner is exempted from liability in certain specified cases. The onus is on the owner to show that the pollution damage resulted as a result of the things mentioned in the exemptions.
Ø From an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character or
Ø Was wholly caused by an act or omission done with an intent to cause such damage by any other person or
Ø Was wholly caused by negligence or other wrongful act of any Govt. or other authority responsible for the maintenance of lights or other navigational aids
There are provisions under the MS Act to limit the liability of the shipowner in case of oil pollution damage.[11] However, if the incident occurred as a result of the actual fault or privity of the owner, the owner is not entitled to such limitation. Additionally, the owner has to apply to the High Court for constitution of a limitation fund[12] to avail itself of the benefit of the above limitation of liability. India is currently considering amending the MS Act to increase the level of limitation of liability. If two or more ships are there, then the owners of all the ships will be jointly and severally liable.

Section 352 N of the MS Act makes it compulsory for the owner of a ship which carries 2,000 tons or more of oil to have suitable insurance or some other form of financial guarantee. In M.V. Sea Success v. L and L.S.P. Indemnity Assn Ltd[13] it was held that no ship shall be permitted to enter respective port without having protection and indemnity cover to have a maritime adventure.

India ratified the International Convention on the establishment of an International Fund for Oil Pollution Damage in 1990. The fund provides compensation for oil pollution damage resulting from oil discharge from tankers in member states. The 1971 fund is able to pay compensation only in respect of claims fulfilling the criteria for admissibility laid down in the CLC and Fund Conventions. Part XC deals with the International Oil Pollution Compensation Fund. S.352T deals with the contribution to the Fund, which is to be in accordance with Art.10 and 12 of the Fund Convention. The person liable to pay the contribution shall be-(1) in the case of contributing oil which is imported into India, the importer or(2) in any other case, the person by whom the oil is receive in India. Under S.352V the Central Govt. has the power to call on information regarding the persons who are to make contributions to the Fund. Any person who does not comply with this is guilty of an offence punishable under the Act. S.352X says that any action for a claim against the Fund for compensation shall be brought under the High Court.
Part XIA deals with the Prevention and Containment of Pollution Of the Sea By Oil. As per S.356A this apart applies to oil tankers of 150 tons gross or more, other ships of 400 gross tons or more and off shore installations and incident of marine casualty which poses imminent threat to Indian coast line or pollution of sea by oil, ballast water, noxious liquid or other harmful substances. This Part specifically omits war ships or Govt. owned or operated ships. S.356C makes it clear that to proceed to sea the ship has to have a certificate issued by the Central Government called International Oil Pollution Prevention Certificate and in the case of ships carrying noxious liquids a certificate issued by the Central Government called International Pollution Prevention Certificate. Also there has to be another certificate called the International Sewage Pollution Prevention Certificate. S.356D says that the Central Government can issue these certificates to foreign ships of countries that are party to the Convention at their request.S.356E says that the Central Govt. has power to make rules requiring Indian tankers or other ships to be fitted with such equipment to prevent oil pollution. By S.356F it says every ship should have a record book. S.356G gives the power to an authorised person to inspect the ship at any reasonable time to find out whether the necessary safety measures are taken. Under S.356H if the Director General is satisfied that the ship is in contravention of the provisions of the Convention then he may detain the ship and proceed against her for recovery of cost of pollution damage. Under S.356I the port authorities shall have the power to provide reception facilities and may charge for the use of the facilities.
Under S.356J the Central Govt. if satisfied that pollution by oil or other noxious liquid substance is occurring or likely to occur then it has the power to give notice to the owner, agent, master or charterer of the ship or tanker to take necessary action. If any person fails to comply with the notice, then the Central government has the power to take measures to carry out the directives, and contain the pollution already caused or prevent the pollution as per S.356K. and as per S.356L the Central Government can give directions to certain other ships to render certain services like lightening or transporting cargo or equipment from or to the polluting ship and render assistance.
S.356M says that Oil Pollution Cess shall be levied on every ship calling to any port in India, which carries oil as its cargo, at a rate of 50 paise for each tonne of oil imported by a ship into India in bulk and in case of each tonne of oil shipped from any place in India in bulk and until this cess is paid the ship will not be given port clearance as per S.356N. under S.356O the Central Government has the power to make rules to carry out purposes of this Part.

CONCLUSION

Effective tackling of pollution of the sea is the only chance by which we can move forward as the sea is by far one the most important factors governing our lives. The world in the present scenario has come in tune with the reality and succumbing to its fears has started taking necessary action to prevent and lessen the effect of man’s uncontrolled growth on Mother Nature. The Conventions that I discussed had gone deep into the topic and analyzed the various ways by which we can reduce the pollution and bring about a harmony in this world.

To achieve these goals we still have a long weary way to tread. But we have no other go. More and more problems would definitely arise and we should be able to make our laws in tandem with the ever-changing scientific and technological advances.

As far as India is concerned it should bring about more elaborate laws to check pollution and also ratify the international agreements that are made from time to time. The MS Act does not apply to pollution on the high seas. However, for a peninsular country like India, it is extremely important to have provisions to prevent pollution of the high seas adjoining its EEZ. The International Convention relating to Intervention on the High Seas in case of Pollution Casualties, 1969, extends the jurisdiction of a coastal state to the high seas, but only when it poses a grave and imminent danger to fishing, tourism and wildlife. India has not yet ratified this convention.

Thus to bring about a newer machinery to combat this threat which is on the rise we should be well aware of the developments occurring amongst us and make necessary changes in regard to that.

BIBLIOGRAPHY

1. Simon Baughen, Shipping Law, Cavendish Publishing Ltd., (3rd edn., London), 2004
2. Panetta, L. E. (Chair) (2003). America's Living Oceans: Charting A Course For Sea Change [Electronic Version, CD] Pew Oceans Commission.
3. Meinesz, A. (2003). Deep Sea Invasion. The Impact of Invasive Species. PBS: NOVA from http://www.pbs.org/wgbh/nova/algae/impact.html visited on May 10th, 2007
4. National Research Council, Committee on the Ocean's Role in Human Health, Ocean Studies Board, Commission on Geosciences, Environment, and Resources. (1999). From monsoons to microbes: understanding the ocean's role in human health. Washington, D.C.: National Academy Press
5. Gerdes, L. I. (Eds.). Endangered oceans. San Diego, California: Greenhaven Press, (2004),
6. Khee-Jin Tan, A. Vessel-source marine pollution: the law and politics of international regulation. Cambridge: Cambridge University Press, (2006).
7. www.wikipedia.com
8. Britannica Encyclopedia 2006

(The author can be contacted at subin129@yahoo.com)

[1] Eutrophication is caused by the increase of chemical nutrients, typically compounds containing nitrogen or phosphorus, in an ecosystem. It may occur on land or in water. Eutrophication is frequently a result of nutrient pollution such as the release of sewage effluent into natural waters (rivers or coasts) although it may also occur naturally in situations where nutrients accumulate (e.g. depositional environments) or where they flow into systems on an ephemeral basis (e.g. intermittent upwelling in coastal systems). Eutrophication generally promotes excessive plant growth and decay, favors certain weedy species over others, and is likely to cause severe reductions in water quality .
[2] Panetta, L. E. (Chair) (2003). America's living oceans: charting a course for sea change [Electronic Version, CD] Pew Oceans Commission.
[3] Supra n.2
[4] Meinesz, A. (2003). Deep Sea Invasion. The Impact of Invasive Species. PBS: NOVA from http://www.pbs.org/wgbh/nova/algae/impact.html visited on May 10th, 2007
[5] National Research Council, Committee on the Ocean's Role in Human Health, Ocean Studies Board, Commission on Geosciences, Environment, and Resources. (1999). From monsoons to microbes: understanding the ocean's role in human health. Washington, D.C.: National Academy Press
[6] Ibid.
[7] Supra n.2
[8] Gerdes, L. I. (Eds.). (2004). Endangered oceans. San Diego, California: Greenhaven Press.
[9] Khee-Jin Tan, A. (2006). Vessel-source marine pollution: the law and politics of international regulation. Cambridge: Cambridge University Press

[10] S.352G Merchant Shipping Act,1958
[11] S.352J Merchant Shipping Act,1958
[12] S.352K Merchant Shipping Act,1958
[13] AIR 2002 Bom.151