The Growth of Port State Jurisdiction

Marten, Bevan

doi:10.1007/978-3-319-00351-1_3

The Growth of Port State Jurisdiction

Bevan Marten²⁴

Chapter
First Online: 01 January 2013

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Part of the book series: Hamburg Studies on Maritime Affairs ((HAMBURG,volume 26))

Abstract

This chapter provides an overview of the key economic and political developments that have influenced the way in which states exercise port state jurisdiction over visiting foreign vessels. It focuses primarily on the policy interests of port states, and where the current boundaries of port state jurisdiction lie in practice.

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Notes

1.
See for examples Reed, Maritime Traders in the Ancient Greek World (2003), 46–49; Cohen, “Commercial Law” (2005), 299 (ancient Athens); Fayle, A Short History of the World’s Shipping Industry (1933), 36 (ancient Egypt) and 52 (ancient Rome).
2.
Strohl, The International Law of Bays (1963), 14–15.
3.
See Le Louis (1817) 2 Dods 209; 165 ER 1464 (HC Ad), 1476.
4.
See generally Institut de Droit International, “Règlement sur le Régime Légal des Navires et de leurs Équipages dans les Ports Étrangers” (1898), art 5; Hope, A New History of British Shipping (1990); A similar group of subjects (customs, fiscal, immigration and sanitary laws) is recognised in UNCLOS as suitable for coastal state enforcement, even in relation to vessels engaged in innocent or transit passage: see UNCLOS, arts 19(2)(g), 21(1)(h) (territorial sea), 33 (contiguous zone), 42(1)(d) (international straits) and 60(2) (EEZ in relation to artificial structures).
5.
Keevil, Medicine and the Navy 1200–1900: Volume I – 1200–1649 (1957), 85. Similar measures were introduced on the Thames in England in the seventeenth century in order to protect the capital from plague: Keevil, Medicine and the Navy 1200–1900: Volume II – 1649–1714 (1958), 87–88.
6.
See Fayle, A Short History of the World’s Shipping Industry (1933), 36, 52, 102 and 123; The Apollon 22 US 362 (1824) (SC).
7.
See generally Fayle, A Short History of the World’s Shipping Industry (1933), 98–99 and 272–275; Harper, The English Navigation Laws: A Seventeenth Century Experiment in Social Engineering (1939), chs 7 and 8; Hope, A New History of British Shipping (1990), 87.
8.
See Branch, Elements of Shipping (2007), 475–476.
9.
Gold, Maritime Transport: The Evolution of International Maritime Policy and Shipping Law (1981), 118; for a general overview see Boisson, Safety at Sea: Policies, Regulations and International Law (1999), ch 2.
10.
Writing on the Rhodian Sea Law as applied in the middle ages Ashburner (citing Goldschmidt) notes that “A characteristic of the Mediterranean legislations … is the care which they take in seeing that the ship is seaworthy, and in preventing overloading” (clvi). Examples of such provisions, especially from Venetian law, include restrictions upon the use of ballast and the loading of heavy goods. If a vessel in port did not comply with these safety-related conditions the shipowner could be fined: Ashburner, The Rhodian Sea-Law (1909), clvi-clviii. See also Fayle, A Short History of the World’s Shipping Industry (1933), 74–77.
11.
See Fayle, A Short History of the World’s Shipping Industry (1933), 99–100.
12.
Hope, A New History of British Shipping (1990), 256.
13.
Such as those who would insure an effectively doomed ship in order to profit from its total loss: see Fayle, A Short History of the World’s Shipping Industry (1933), 284.
14.
Milne, “North of England Shipowners and Their Business Connections in the Nineteenth Century” (2008), 148.
15.
Unger, The Ship in the Medieval Economy 600–1600 (1980), 151–152; see also Hope, A New History of British Shipping (1990), 45.
16.
Course, The Merchant Navy: A Social History (1963), 195 and 199; Hope, A New History of British Shipping (1990), 279.
17.
Fayle, A Short History of the World’s Shipping Industry (1933), 284.
18.
Course, The Merchant Navy: A Social History (1963), 200–205; Hope, A New History of British Shipping (1990), 279–281.
19.
Ilbert, The Merchant Shipping Act 1876 with an Introduction and Copius Notes Showing the Alterations Effected in the Law by Recent Statutes (1876), 1–8; Editorial, “The Unseaworthy and the Worthy” (1990); Hope, A New History of British Shipping (1990), 281–282, 287–289; Merchant Shipping Act 1854, 17 & 18 Vic, c 104. See Fayle, A Short History of the World’s Shipping Industry (1933), 237–238.
20.
Merchant Shipping Act 1876, 39 & 40 Vic, c 80. This line was painted on the side of a ship indicating maximum permitted loading limits under different conditions, although initially it was ineffective as its position was left to the shipowner’s discretion: see Ilbert, The Merchant Shipping Act 1876 with an Introduction and Copius Notes Showing the Alterations Effected in the Law by Recent Statutes (1876), 12–13; Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), 177; Course, The Merchant Navy: A Social History (1963) 227–239; Hope, A New History of British Shipping (1990), 321–322.
21.
National Imagery and Mapping Agency, International Code of Signals for Visual, Sound and Radio Communications (2003), iii; Lauterpacht, International Law: A Treatise by L Oppenheim (vol 1, 1955), 598–599.
22.
This agreement was the predecessor of the current Collision Convention: Cockcroft and Lameijer, A Guide to the Collision Avoidance Rules: International Regulations for Preventing Collisions at Sea (1981), 14–15. On the conference and related international efforts see Gold, Maritime Transport: The Evolution of International Maritime Policy and Shipping Law (1981), 122–123 and 126–131.
23.
Boisson, Safety at Sea: Policies, Regulations and International Law (1999), 52; Özçayir, Port State Control (2004), para 3.22; The Rhodian Sea Laws, for example, are silent on their application to foreign vessels: Ashburner, The Rhodian Sea-Law (1909), cxxiv-cxxv. For a historical perspective on measures related to crewing see Couper, “Historical Perspectives on Seafarers and the Law” (2005), especially 15–19.
24.
An earlier Act had applied certain British safety laws to foreign steamships, but only those carrying passengers between places in the United Kingdom: Merchant Shipping Act 1854, 17 & 18 Vic, c 104, s 291.
25.
Merchant Shipping Act 1876, 39 & 40 Vic, c 80, s 13.
26.
Merchant Shipping Act 1876, 39 & 40 Vic, c 80, s 24.
27.
He also foreshadowed regulations yet to come, noting the close connection between questions of vessel loading and questions of vessel construction and equipment: Ilbert, The Merchant Shipping Act 1876 with an Introduction and Copius Notes Showing the Alterations Effected in the Law by Recent Statutes (1876), 46.
28.
Neither provision formed part of the original draft bill. They were instead added by Parliament in committee: Ilbert, The Merchant Shipping Act 1876 with an Introduction and Copius Notes Showing the Alterations Effected in the Law by Recent Statutes (1876), 46, 68–69.
29.
Akehurst, “Jurisdiction in International Law” (1972–1973), 205, fn 9.
30.
Chalmers v Scopenich (1892) 1 QB 735 (HC Ad), 738.
31.
Merchant Shipping Act 1894, 57 & 58 Vic, c 60, s 289 and following.
32.
Merchant Shipping Act 1906, 6 Edw VII, c 48, Part 1; see Hope, A New History of British Shipping (1990), 343.
33.
Anderson, “The Roles of Flag States, Port States, Coastal States and International Organisations in the Enforcement of International Rules and Standards Governing the Safety of Navigation and the Prevention of Pollution from Ships under the UN Convention on the Law of the Sea and other International Agreements” (1998), 565.
34.
This can be readily discerned in the way that older texts on shipping discuss “national fleets”, compare the total tonnage of the “traditional” maritime nations (such as the United Kingdom, United States, Germany, Norway, France, Sweden, Japan and so on), and generally describe the marine sector in close connection with the interests of a particular country: see for examples Fayle, A Short History of the World’s Shipping Industry (1933), ch XI; McDowell and Gibbs, Ocean Transportation (1954), ch 6. This approach was centuries old: see Ashburner, The Rhodian Sea-Law (1909), cxxiv. This is not to suggest that a ship’s crew could not be multinational in character: Fayle, A Short History of the World’s Shipping Industry (1933), 288–289.
35.
Adopted in the aftermath of the Titanic disaster, this convention never entered into force as a result of the outbreak of World War One.
36.
Convention for the Safety of Life at Sea (20 January 1914), arts 61–62. See Furuseth, Safety of Life at Sea: Analysis and Explanatory Notes of the London Convention on Safety of Life at Sea in relation to the American Merchant Marine (1914), 13–14.
37.
Convention for the Safety of Life at Sea (20 January 1914), arts 2, 5, 57 and 65.
38.
Furuseth Safety of Life at Sea: Analysis and Explanatory Notes of the London Convention on Safety of Life at Sea in relation to the American Merchant Marine (1914), 14–15 (citing a United States delegate’s report). Furuseth, the President of the Seamen’s Union, argued that this compromise represented a (limited) abandonment of the United States’ control over vessels in port under international law: 15–16.
39.
For a thorough overview see Gold, Maritime Transport: The Evolution of International Maritime Policy and Shipping Law (1981), ch 6.
40.
Examples of vessels maintaining a flexible approach to flag date back to antiquity: see Metaxas, Flags of Convenience: A Study of Internationalisation (1985), 8–10.
41.
Eadie, “Employment of Foreign Seafarers on Australian Controlled Ships: Mixed Nationality Crewing” (2000), 1–2. See also Chap. 6, Sect. 6.1.2.
42.
Kaukiainen, “Growth, Diversification and Globalization: Main Trends in International Shipping since 1850” (2008), 31–32. For a specific national illustration of this process and its impact on the traditional domestic fleet model see Goto, “Globalization and International Competitiveness: The Experience of the Japanese Shipping Industry since the 1960s” (1998), 355–379.
43.
For example, by 1950 there were around 200 ships owned or controlled by United States-based operators registered offshore, and this number grew rapidly in a short period: McDowell and Gibbs, Ocean Transportation (1954), 119, fn 17.
44.
On the genuine link concept see Chap. 6, Sect. 6.7.1.
45.
McDowell and Gibbs, Ocean Transportation (1954), 107 and 119; Meese, “When Jurisdictional Interests Collide: International, Domestic, and State Efforts to Prevent Vessel Source Oil Pollution” (1982), 82–85; Hope, A New History of British Shipping (1990), 407; Parliament of the Commonwealth of Australia, Ships of Shame: Inquiry into Ship Safety (1992), para 4.8; Branch, Elements of Shipping (2007), 78–79 and 476–478; König, “Flags of Convenience” (2008).
46.
Kaukiainen, “Growth, Diversification and Globalization: Main Trends in International Shipping since 1850” (2008), 34; see also Branch Elements of Shipping (2007), 477.
47.
Kaukiainen, “Growth, Diversification and Globalization: Main Trends in International Shipping since 1850” (2008), 36; see similarly Metaxas, Flags of Convenience: A Study of Internationalisation (1985), 102.
48.
Parliament of the Commonwealth of Australia, Ships of Shame: Inquiry into Ship Safety (1992), para 2.17; Schelin “State Aids and the Operation of Ships: International Ship Registers” (1997).
49.
See Branch, Elements of Shipping (2007), 458–460.
50.
The 18 flag states on the “black list” of the Paris Memorandum of Understanding on Port State Control (26 January 1982) for 2009–2011 were (in order from lowest to highest risk) Honduras, Dominica, Syria, Lebanon, Azerbaijan, Ukraine, Georgia, Cambodia, Comoros, St Kitts and Nevis, Moldova, Albania, Tanzania, Sierra Leone, Togo, Bolivia, Libya: Paris MOU, White-Grey-Black Lists (1 July 2012). The International Transport Workers’ Federation maintains a list of “flag of convenience countries”, available at http://www.itfglobal.org.
51.
See for example Parliament of the Commonwealth of Australia, Ships of Shame: Inquiry into Ship Safety (1992).
52.
Convention on the International Maritime Organization (IMO) (6 March 1948), art I (original version). Until 1982 the organisation was known as the Inter-Governmental Maritime Consultative Organization.
53.
International Maritime Organization, “IMO 1948-1998: A Process of Change” (September 1998), 4.
54.
International Maritime Organization, “IMO 1948-1998: A Process of Change” (September 1998), 5–6.
55.
See Churchill and Lowe, The Law of the Sea (1999), ch 15.
56.
See Pritchard, Oil Pollution Control (1987) 1–3.
57.
Oil in Navigable Waters Act 1922, 12 & 13 Geo 5, c 39; see Pritchard, Oil Pollution Control (1987) 2–6.
58.
Oil Pollution Act 1924 (Public Law 68–238); see Pritchard, Oil Pollution Control (1987) 6–7.
59.
International Convention on the Prevention of Pollution of the Sea by Oil (12 May 1954); see Pritchard, Oil Pollution Control (1987) ch 4.
60.
International Convention on the Prevention of Pollution of the Sea by Oil (12 May 1954), art IX.
61.
Lowe, “The Enforcement of Marine Pollution Regulations” (1975), 629.
62.
International Convention on Civil Liability for Oil Pollution Damage (29 November 1969).
63.
International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (29 November 1969), art I.
64.
See for examples MARPOL, arts 5 and 6, Annex I, regs 6(4.3) and 11; SOLAS, ch 1, regs 6, 11 and 19; STCW, art X; see Özçayir, Port State Control (2004), paras 3.23–26.
65.
See for examples International Convention on Civil Liability for Bunker Oil Pollution Damage (23 March 2001), art 7(12) and (13); International Convention on the Control of Harmful Anti-fouling Systems on Ships (5 October 2001), arts 3(1)(c) and 11; International Convention for the Control and Management of Ships’ Ballast Water and Sediments (13 February 2004), arts 9–11; International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, as amended by the Protocol of 2010 (3 May 1996 and 30 April 2010), art 12(11).
66.
SSY Consultancy and Research Ltd, The Cost to Users of Substandard Shipping (2001), 23–24.
67.
On the policy compromises between maritime and coastal states under UNCLOS (and during the negotiating process) see: Lowe, “The Enforcement of Marine Pollution Regulations” (1975), 642–643; Legatski, “Port State Jurisdiction over Vessel-Source Marine Pollution” (1977), 466–467; Boyle, “Marine Pollution under the Law of the Sea Convention” (1985), 364; Bernhardt, “A Schematic Analysis of Vessel-Source Pollution: Prescriptive and Enforcement Regimes in the Law of the Sea Conference” (1980), 269–270; Kindt, “Vessel-Source Pollution and the Law of the Sea” (1984), 326; Bodansky, “Protecting the Marine Environment from Vessel-Source Pollution: UNCLOS III and Beyond” (1991), 739; Stephenson, “Vessel-Source Pollution under the Law of the Sea Convention: An Analysis of the Enforcement Standards” (1992), 275–276.
68.
Memorandum of Understanding between Certain Maritime Authorities on the Maintenance of Standards on Merchant Ships (2 March 1978); This involved only eight North Sea states, see Kasoulides, Port State Control and Jurisdiction: Evolution of the Port State Regime (1993), 142 and following.
69.
The debate as to whether agreements of this nature are binding international treaties, or merely informal agreements between the states involved, is not relevant here. See Valenzuela, “Enforcing Rules against Vessel-Source Degradation of the Marine Environment: Coastal, Flag and Port State Jurisdiction” (1999), 498; König, “The Enforcement of the International Law of the Sea by Coastal and Port States” (2002), 8.
70.
Europe and Canada: Paris Memorandum of Understanding on Port State Control (26 January 1982); Latin America: Latin American Agreement on Port State Control (5 November 1992) (Viña del Mar Agreement); Asia-Pacific: Memorandum of Understanding on Port State Control in the Asia-Pacific Region (1 December 1993) (Tokyo MOU); Caribbean: Memorandum of Understanding on Port State Control in the Caribbean Region (9 February 1996); Mediterranean: Memorandum of Understanding on Port State Control in the Mediterranean Region (11 July 1997); West and Central Africa: Memorandum of Understanding on Port State Control for the West and Central African Region (5 June 1998); Indian Ocean: Memorandum of Understanding on Port State Control for the Indian Ocean Region (22 October 1999); Black Sea: Memorandum of Understanding on Port State Control in the Black Sea Region (7 April 2000); Gulf Region: Riyadah Memorandum of Understanding on Port State Control in the Gulf Region (30 June 2004). The United States Coast Guard runs a Port State Control programme covering the waters of the United States of America, and works closely with the Paris MOU group: see Özçayir, “The Use of Port State Control in Maritime Industry and Application of the Paris MOU” (2009), 216–217.
71.
Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998), 125 and following.
72.
See generally Molenaar, “The EC Directive on Port State Control in Context” (1996); Hare, “Port State Control: Strong Medicine to Cure a Sick Industry” (1997); König, “Port State Control: An Assessment of European Practice” (2002); Özçayir, Port State Control (2004).
73.
Molenaar, “Port State Jurisdiction” (2010), para 31.
74.
Paris MoU, s 2.1. For conventions such as MARPOL which are updated on a regular basis, the parties will enforce whichever version of the agreement that they have accepted and that is in force: s 2.3.
75.
Percentages refer to IMO figures on the proportion of world shipping tonnage covered by each convention: International Maritime Organization, Summary of Status of Conventions (6 March 2013). Figures have been rounded to the nearest whole number.
76.
This convention has been substantively replaced by its Protocol of 1992. Molenaar notes that the inclusion of this convention is of particular interest, as the convention itself contains no provisions on port state control or jurisdiction: Molenaar, “Port State Jurisdiction: Towards Comprehensive, Mandatory and Global Coverage” (2007), 240.
77.
Figures from International Labour Organization, NORMLEX Information System on International Labour Standards, available at http://www.ilo.org.
78.
Paris MOU, annexes 7, 8 and 11.
79.
Paris MOU, s 5.
80.
Paris MOU, ss 3.4 and 4.
81.
McDorman, “Regional Port State Control Agreements: Some Issues of International Law” (2000), 207–209.
82.
Paris MOU, s 1.7; a separate clause notes that “The Memorandum is without prejudice to rights and obligations under any international Agreement or relevant national legislation”; see also Memorandum of Understanding on Port State Control in the Asia-Pacific Region (1 December 1993), ss 3.2.2 and 8.1; see similarly in the fisheries context Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (22 November 2009), art 4(1)(b).
83.
Paris MOU, recitals; Özçayir, Port State Control (2004), 1.
84.
Valenzuela, “Enforcing Rules against Vessel-Source Degradation of the Marine Environment: Coastal, Flag and Port State Jurisdiction” (1999), 499.
85.
See for example MARPOL, art 5(4); for discussion see Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998), 119–121.
86.
Taking New Zealand as an example, there are a number of such laws with specific application to ports and visiting vessels: Health Act 1956, s 96; Food Act 1981, s 24 (customs); Medicines Act 1981, s 72 (customs); Trade in Endangered Species Act 1989 (customs); Biosecurity Act 1993, pt 3 (customs); Maritime Transport Act 1994 (health and security); Customs and Excise Act 1996, Hazardous Substances and New Organisms Act 1996 (customs and health); Income Tax Act 2007, s CV16; Immigration Act 2009. The equivalent United States legislation is referred to in Oliver, “Legal and Policy Factors Governing the Imposition of Conditions on Access to and Jurisdiction over Foreign-Flag Vessels in US Ports” (2009), 247–248. A similar list could undoubtedly be made for any state.
87.
See Oliver, “Legal and Policy Factors Governing the Imposition of Conditions on Access to and Jurisdiction over Foreign-Flag Vessels in US Ports” (2009), 245–258.
88.
The principal exception is security regulations, which are more likely to affect the equipment or operation of vessels than the other topics mentioned. In recent years maritime security has become more prominent (and harder to classify) as a result of increased international activity in this field: see Ringbom, The EU Maritime Safety Policy and International Law (2008), 2, 256 f. 220, 314–316; see generally Klein, Mossop and Rothwell, Maritime Security: International Law and Policy Perspectives from Australia and New Zealand (2010).
89.
McDougal and Burke, The Public Order of the Oceans: A Contemporary International Law of the Sea (1962), 90–91.
90.
Rules relating to the control of maritime traffic within ports, including the allocation of berths and charging of port fees, arguably provide a limited exception to this description of traditional interests. Such rules have a long history and may be described as “traditional” for the purposes of this discussion, even though they involve a limited level of port state jurisdiction being exercised over foreign shipping. For historical examples see Ashburner, The Rhodian Sea-Law (1909), cxcviii (medieval Italian states); Hope, A New History of British Shipping (1990), 272 (nineteenth century England). For more recent examples and discussion see the “Port Traffic Control” provisions of the Canada Marine Act 1998, ss 56–60; McDougal and Burke, The Public Order of the Oceans: A Contemporary International Law of the Sea (1962), 96; Hamilton, “Negotiating Port Access: The Sino-US Opportunity for Leadership in the Maritime Transport Services Industry” (2002), 155–157.
91.
Convention on the International Maritime Organization (6 March 1948), art 1(a) (consolidated version). The IMO’s Maritime Safety Committee is responsible for all matters of maritime safety including “aids to navigation, construction and equipment of vessels, manning from a safety standpoint, rules for the prevention of collisions, handling of dangerous cargoes, maritime safety procedures and requirements, hydrographic information, log-books and navigational records, marine casualty investigation, salvage and rescue”: art 28. For a summary of international regimes outside of the IMO’s remit which nonetheless include an element of port state jurisdiction see Molenaar, “Port State Jurisdiction: Towards Comprehensive, Mandatory and Global Coverage” (2007), 240–241.
92.
Bodansky, “Protecting the Marine Environment from Vessel-Source Pollution: UNCLOS III and Beyond” (1991), 726–727.
93.
Stephenson, “Vessel-Source Pollution under the Law of the Sea Convention: An Analysis of the Prescriptive Standards” (1992), 133–134; Tan, “The Regulation of Vessel-Source Marine Pollution: Reconciling the Maritime and Coastal State Interests” (1997), 360–361.
94.
Legatski, “Port State Jurisdiction over Vessel-Source Marine Pollution” (1977), 468–469; Fitch, “Unilateral Action Versus Universal Evolution of Safety and Environmental Protection Standards in Maritime Shipping of Hazardous Cargoes” (1979), 145.
95.
Fayle, A Short History of the World’s Shipping Industry (1933), 306–307; Brown, “The Prevention of Marine Pollution by Oil from Ships: Competence to Establish Standards and Competence to Enforce Standards” (1975), 213–214 (citing a United Kingdom government position statement); Legatski, “Port State Jurisdiction over Vessel-Source Marine Pollution” (1977), 467; Fitch, “Unilateral Action Versus Universal Evolution of Safety and Environmental Protection Standards in Maritime Shipping of Hazardous Cargoes” (1979), 144; Bernhardt, “A Schematic Analysis of Vessel-Source Pollution: Prescriptive and Enforcement Regimes in the Law of the Sea Conference” (1980), 268.
96.
König, “Port State Control: An Assessment of European Practice” (2002), 38–39.
97.
See for example Parliament of the Commonwealth of Australia, Ships of Shame: Inquiry into Ship Safety (1992), paras 1.12 and 4.2; König, “The Enforcement of the Intentional Law of the Sea by Coastal and Port States” (2002), 10; Ringbom, “Global Problem – Regional Solution? International Law Reflections on an EU CO2 Emissions Trading Scheme for Ships” (2011), 614–615.
98.
Action at the EU level is the best example of this type of approach: see Frank, “Consequences of the Prestige Sinking for European and International Law” (2005). See also Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998), 117–119.
99.
See Parliament of the Commonwealth of Australia, Ships of Shame: Inquiry into Ship Safety (1992), paras 4.1–4.2.
100.
M’Gonigle, “Unilateralism and International Law: The Arctic Waters Pollution Prevention Act” (1976), 184; Kindt, “Vessel-Source Pollution and the Law of the Sea” (1984), 325–326; Fitch, “Unilateral Action Versus Universal Evolution of Safety and Environmental Protection Standards in Maritime Shipping of Hazardous Cargoes” (1979), 169–170; Frank, “Consequences of the Prestige Sinking for European and International Law” (2005), 10 and 42; Boyle, “EU Unilateralism and the Law of the Sea” (2006), 31; Ringbom, “Global Problem – Regional Solution? International Law Reflections on an EU CO2 Emissions Trading Scheme for Ships” (2011), 641.
101.
Vinogradov, “‘Tightening the Regulatory Web’: Issues and Trends in Navigation Regimes” (1999), 484.
102.
Boyle, “EU Unilateralism and the Law of the Sea” (2006), 15; see also Boisson, Safety at Sea: Policies, Regulations and International Law (1999), ch 9.
103.
See Marten, “The Enforcement of Shipping Standards under UNCLOS” (2011), 52–53.
104.
Oil Pollution Act 1990; 46 USC 3703a.
105.
See generally Moren, “Ninth Circuit Prevents California from Regulating Toxic Maritime Emissions” (2008); Goldsworthy, “Exhaust Emissions from Ship Engines: Significance, Regulations, Control Technologies” (2010); Ringbom, “Global Problem – Regional Solution? International Law Reflections on an EU CO2 Emissions Trading Scheme for Ships” (2011).
106.
Legatski, “Port State Jurisdiction over Vessel-Source Marine Pollution” (1977), 473; Molenaar, “Port State Jurisdiction: Towards Comprehensive, Mandatory and Global Coverage” (2007), 226.
107.
Legatski, “Port State Jurisdiction over Vessel-Source Marine Pollution” (1977), 460–461; Bernhardt, “A Schematic Analysis of Vessel-Source Pollution: Prescriptive and Enforcement Regimes in the Law of the Sea Conference” (1980), 268. See for example the impact of the introduction of MARPOL and SOLAS on British tanker fleets: Hope, A New History of British Shipping (1990), 449–450.
108.
See Tan, “The Regulation of Vessel-Source Marine Pollution: Reconciling the Maritime and Coastal State Interests” (1997), 374–376.
109.
Fitch, “Unilateral Action Versus Universal Evolution of Safety and Environmental Protection Standards in Maritime Shipping of Hazardous Cargoes” (1979), 144–145, 167–168 and 170; Ringbom, “Preventing Pollution from Ships: Reflections on the ‘Adequacy’ of Existing Rules” (1999), 22. The Australian Parliament was warned of this effect during an inquiry into shipping safety, but rejected it as mere assertion when no appropriate evidence was produced: Parliament of the Commonwealth of Australia, Ships of Shame: Inquiry into Ship Safety (1992), para 4.24.
110.
See Branch, Elements of Shipping (2007), 393–396; Talley, Port Economics (2009), 66.
111.
Degan, “Internal Waters” (1986), 7.
112.
See generally Talley, Port Economics (2009), ch 3.
113.
Molenaar, “Port State Jurisdiction: Towards Comprehensive, Mandatory and Global Coverage” (2007), 226.
114.
Kasoulides, Port State Control and Jurisdiction: Evolution of the Port State Regime (1993), 21; See also Burke, Legatski and Woodhead, National and International Law Enforcement in the Ocean (1975), 88; König, “Port State Control: An Assessment of European Practice” (2002), 52; Boyle, “EU Unilateralism and the Law of the Sea” (2006), 20.
115.
Ringbom, The EU Maritime Safety Policy and International Law (2008), 381.
116.
Ringbom, The EU Maritime Safety Policy and International Law (2008), 235.
117.
Ringbom, The EU Maritime Safety Policy and International Law (2008), 235; see also Ringbom, “Global Problem – Regional Solution? International Law Reflections on an EU CO2 Emissions Trading Scheme for Ships” (2011), 614–615.
118.
Fitch, “Unilateral Action Versus Universal Evolution of Safety and Environmental Protection Standards in Maritime Shipping of Hazardous Cargoes” (1979), 170; Clingan, “Vessel-Source Pollution, Problems of Hazardous Cargo, and Port State Jurisdiction” (1988), 277 (example of United States passenger vessel fire safety requirements); Valenzuela, “Enforcing Rules against Vessel-Source Degradation of the Marine Environment: Coastal, Flag and Port State Jurisdiction” (1999), 503; Frank, “Consequences of the Prestige Sinking for European and International Law” (2005), 24–25; Boyle, “EU Unilateralism and the Law of the Sea” (2006), 16–17.
119.
Boyle, “EU Unilateralism and the Law of the Sea” (2006), 16.
120.
Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998), 531; Frank, “Consequences of the Prestige Sinking for European and International Law” (2005), 63.
121.
Salvarani, “The EC Directive on Port State Control: A Policy Statement” (1996), 229.
122.
Salvarani, “The EC Directive on Port State Control: A Policy Statement” (1996), 230.
123.
The debate over the precise meaning and impact of this term, as well as related concepts in UNCLOS such as “applicable international rules and standards”, is not relevant to this discussion. For discussion of these issues see: Boyle, “Marine Pollution under the Law of the Sea Convention” (1985), 355–357; Churchill and Lowe, The Law of the Sea (1999), 346–347; Committee on Coastal State Jurisdiction relating to Marine Pollution, “Final Report” (2000), 473–484; Vukas, The Law of the Sea: Selected Writings (2004), ch 3.
124.
For the regulation of traditional interests see UNCLOS, arts 19(2)(g), 21(1)(h) (territorial sea), 33 (contiguous zone), 42(1)(d) (international straits) and 60(2) (EEZ in relation to artificial structures).
125.
UNCLOS, arts 21 and 56.
126.
See Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998), 103. Legislation that pre-dates UNCLOS is understandably difficult to categorise, as states may have applied legislation to whatever breadth of territorial sea they claimed without being able to incorporate the maritime zones and limits on jurisdiction the Convention provides.
127.
See for example Directive 2009/20/EC of 23 April 2009 on the insurance of shipowners for maritime claims, art 4(2).
128.
See for example Australia’s approach to enforcing its compulsory Torres Strait pilotage regime: Chap. 4, Sect. 4.4.6.3. See further the Canadian legislation discussed in Vanderzwaag, “Canadian Struggles with Freedoms of Navigation and Fisheries: A Short ‘Legal Cruise’” (2010), 30–40.
129.
See Ringbom, The EU Maritime Safety Policy and International Law (2008), 376–377; Ringbom, “Global Problem – Regional Solution? International Law Reflections on an EU CO2 Emissions Trading Scheme for Ships” (2011), 621–623. The labels “vessel conditions” and “vessel operations” are used here to describe the equivalent categories.
130.
McDougal and Burke, The Public Order of the Oceans: A Contemporary International Law of the Sea (1962), 94.
131.
See for example UNCLOS arts 19(2)(g) and 33(1).
132.
See Chap. 4, Sect. 4.1.2.1.
133.
UNCLOS, art 27.
134.
See Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), 219 (distinguishing between jurisdiction over foreign ships in port and jurisdiction over the commodities aboard them).
135.
See Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998), 102; Ringbom, The EU Maritime Safety Policy and International Law (2008), 337 and following; Ringbom, “Global Problem – Regional Solution? International Law Reflections on an EU CO2 Emissions Trading Scheme for Ships” (2011), 621–622.
136.
Baldwin and Cave, Understanding Regulation: Theory, Strategy, and Practice (1999), 119.
137.
SOLAS, ch III, regs 7 and 21.
138.
SOLAS, ch II-1, reg 10.
139.
MARPOL, annex VI, reg 14.
140.
See for example STCW, annex, reg II/2.
141.
Molenaar, “Port State Jurisdiction: Towards Comprehensive, Mandatory and Global Coverage” (2007), 230.
142.
Construction, design, equipment and manning. See for example UNCLOS, art 21.
143.
Ringbom, The EU Maritime Safety Policy and International Law (2008), 329. Compare for example Bodansky, “Protecting the Marine Environment from Vessel-Source Pollution: UNCLOS III and Beyond” (1991), 729–730 where the two concepts are conflated.
144.
Ringbom, The EU Maritime Safety Policy and International Law (2008), 329.
145.
STCW, annex, reg VIII/2.
146.
See Molenaar, “Port State Jurisdiction: Towards Comprehensive, Mandatory and Global Coverage” (2007), 230; Ringbom, The EU Maritime Safety Policy and International Law (2008), 355 and following; Ringbom, “Global Problem – Regional Solution? International Law Reflections on an EU CO2 Emissions Trading Scheme for Ships” (2011), 623.
147.
Baldwin and Cave, Understanding Regulation: Theory, Strategy, and Practice (1999), 119–120. For a comparison with specification standards see Ogus, Regulation: Legal Form and Economic Theory (1994), 150–152.
148.
In his analysis of the EU’s use of port state jurisdiction, Ringbom discusses the regulation of pollutant discharges from vessels as a standalone category based on the extended form of port state jurisdiction found in article 218 of UNCLOS: Ringbom, The EU Maritime Safety Policy and International Law (2008), 376. However, the three categories discussed here are being used to describe the common practical elements of various shipping regulations, and for this purpose the subject-matter of such laws falls within the scope of vessel operations.
149.
See for example SOLAS ch III on life-saving appliances and arrangements, which contains detailed requirements not only for the kind of equipment a vessel should be carrying, but also comments on how it must be able to be operated in emergencies.
150.
Ringbom, “Global Problem – Regional Solution? International Law Reflections on an EU CO2 Emissions Trading Scheme for Ships” (2011), 623.
151.
See Chap. 4, Sect. 4.4.
152.
UNCLOS, art 92(1).
153.
See for example the United States regulation affecting exclusion clauses for contracts of carriage analysed in Knott v Botany Mills 179 US 69 (1900) (SC).
154.
See Chap. 5, Sect. 5.1.3.1.

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School of Law, Victoria University of Wellington, Wellington, New Zealand
Bevan Marten

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Marten, B. (2014). The Growth of Port State Jurisdiction. In: Port State Jurisdiction and the Regulation of International Merchant Shipping. Hamburg Studies on Maritime Affairs, vol 26. Springer, Cham. https://doi.org/10.1007/978-3-319-00351-1_3

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DOI: https://doi.org/10.1007/978-3-319-00351-1_3
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