Abstract
This book began by asking the extent to which the statement “if you want to visit my port, you have to obey my rules” holds true. As the chapters which followed have suggested, the answer is not entirely clear, but certainly leans towards the port state having a very extensive jurisdiction over visiting foreign vessels. Even in situations where the exact legal position is ambiguous, port states will in most cases be able to find some arguable basis upon which to justify their actions. The primary restraints on their activities appear to be policy-driven, rather than any limits imposed by international law.
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Notes
- 1.
That is, jurisdiction subject to the abuse of rights doctrine, as well as the principles of good faith and proportionality, and the need to avoid discriminating on the basis of nationality: see Chap. 2, Sect. 2.1.4.
- 2.
See Chap. 2, Sect. 2.4.3.3 and Chap. 6, Sect. 6.4.1. The concept may of course have a domestic application, for example in the context of United States law when determining whether a domestic rule will apply to a foreign vessel: Spector v Norwegian Cruise Line Ltd 545 US 119 (2005) (SC).
- 3.
See UNCTAD, Review of Maritime Transport 2011 (2011), 26–29 and 113–119.
- 4.
See Chap. 3, Sect. 3.3.3.
- 5.
Ringbom, “Preventing Pollution from Ships: Reflections on the ‘Adequacy’ of Existing Rules” (1999), 24; compare the contemporaneous conclusions of Anderson regarding the increased use of port state jurisdiction in the context of international agreements: Anderson, “Port States and Environmental Protection” (1999), 342–344.
- 6.
Ringbom, The EU Maritime Safety Policy and International Law (2008), ch 5. Not all of the examples discussed by Ringbom are of a purely unilateral nature.
- 7.
See Ringbom, The EU Maritime Safety Policy and International Law (2008), 241–256.
- 8.
See Oil Pollution Act 1990, s 4115; 46 USC 3703a(a), applicable to vessels “operating on the waters subject to the jurisdiction of the United States, including the Exclusive Economic Zone”.
- 9.
United States House of Representatives, “House Conference Report No 101-653” (1990), 819–820; see Johnson, Coastal State Regulation of International Shipping (2004), 54, fn 177; Molenaar, “Port State Jurisdiction: Towards Comprehensive, Mandatory and Global Coverage” (2007), 232–233.
- 10.
Oil Pollution Act 1990, s 1016; 33 USC 2716, applicable to vessels “using any place subject to the jurisdiction of the United States” or “using the waters of the exclusive economic zone to transship or lighter oil destined for a place subject to the jurisdiction of the United States”; see similarly Water Pollution Prevention and Control Act 1972, s 311(p). Compare United States House of Representatives, “House Conference Report No 101-653” (1990), 797–798 and 819–820.
- 11.
Agreement Concerning Specific Stability Requirements for Ro-Ro Passenger Ships Undertaking Regular Scheduled International Voyages Between or To or From Designated Ports in North West Europe and the Baltic sea (28 February 1996). See also Directive 2003/25/EC of 14 April 2003 on specific stability requirements for ro-ro passenger ships.
- 12.
Regulation No 1726/2003 of 22 July 2003 amending Regulation (EC) No 417/2002 on the accelerated phasing-in of double hull or equivalent design requirements for single hull oil tankers.
- 13.
Directive 2005/33/EC of 6 July 2005 amending Directive 1999/32/EC as regards the sulphur content of marine fuels.
- 14.
Australian Maritime Safety Authority, Revised Pilotage Requirements for Torres Strait (2006). See Chap. 4, Sect. 4.4.6.3.
- 15.
The Cruise Vessel Security and Safety Act has a passenger safety focus, as opposed to a focus on navigation or vessel safety. The insurance Directive has a connection to safety and the environment in the sense that an uninsurable vessel is unlikely to be safe and thus pose an environmental threat, this cannot convincingly be described as the Directive’s primary purpose.
- 16.
MARPOL, annex VI, reg 15.
- 17.
See for examples MARPOL, art 9(2); STCW, art V(4); Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (22 November 2009), art 4(1)(b).
- 18.
See Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), 222–228. Some of the protesting European countries even had laws which made the carriage of liquor on board ships compulsory!
- 19.
Lowe, “Jurisdiction” (2006), 353–354.
- 20.
Akehurst, “Jurisdiction in International Law” (1972–1973), 169 and 176.
- 21.
International Bar Association, Report of the Task Force on Extraterritorial Jurisdiction (2008), 19.
- 22.
Oxman, “Jurisdiction of States” (2007), para 52.
- 23.
Ringbom, “The Changing Role of Flag, Port and Coastal States under International Law” (2009), 104–106: see similarly Vinogradov, “‘Tightening the Regulatory Web’: Issues and Trends in Navigation Regimes” (1999): Developments in both domestic and international maritime regulation have “resulted in expanding, both spatially and substantively, the powers of coastal and port states. The freedom of commercial navigation in its traditional sense has ceased to exist. The ‘tightening of the regulatory web’ promises to bring about even more radical changes in the modus operandi of international commercial shipping.” (at 484).
- 24.
König, “Flag of Ships” (2009), para 60.
- 25.
Boisson, Safety at Sea: Policies, Regulations and International Law (1999), 179.
- 26.
McCulloch v Sociedad Nacional de Marineros de Honduras 372 US 10 (1963) (SC), 16–17.
- 27.
Mongolia, Palua, St Kitts and Nevis and Sierra Leone, Flag State Implementation: Port state control and recognized organizations (MSC 91/10/4, 5 October 2012).
- 28.
See Beckman, “PSSAs and Transit Passage: Australia’s Pilotage System in the Torres Strait Challenges the IMO and UNCLOS” (2007), 337.
- 29.
See Chap. 4, Sect. 4.4.6.3.
- 30.
For example, a number of prompt release cases at ITLOS have been taken by offshore registers; see the list of cases maintained at http://www.itlos.org.
- 31.
The Queen, on the application of International Association of Independent Tanker Owners (Intertanko) and Others v Secretary of State for Transport [2008] ECJ Case C-308/06.
- 32.
United States v Locke 529 US 89 (2000) (USSC).
- 33.
McConnell, “‘Making Labour History’ and the Maritime Labour Convention, 2006: Implications for International Law-Making (and Responses to the Dynamics of Globalization)” (2009), 369.
- 34.
See Behnam, “Ending Flag State Control?” (2003); Kovats, “How Flag States Lost the Plot over Shipping’s Governance: Does a Ship Need a Sovereign?” (2006); Ringbom, “The Changing Role of Flag, Port and Coastal States under International Law” (2009), 107; but see Mansell, Flag State Responsibility (2009), 219–221.
- 35.
For example, Jessup argued that in practice “the exercise of jurisdiction over foreign vessels in port should be limited to matters affecting the peace, dignity and safety of the country”: Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), 228.
- 36.
See Chap. 6, Sect. 6.1.5.
- 37.
Churchill and Lowe, The Law of the Sea (1999), 68–69.
- 38.
Sellers v Maritime Safety Inspector [1999] 2 NZLR 44 (CA).
- 39.
See Chap. 5, Sect. 5.3.1.
- 40.
See Chap. 4, Sect. 4.4.8.
- 41.
See Chap. 4, Sect. 4.4.7.
- 42.
- 43.
See Chap. 6, Sect. 6.4.1.
- 44.
See Chap. 4, Sect. 4.4.6.3.
- 45.
See Chap. 5, Sect. 5.4.2.1; Chap. 6, Sect. 6.4.2.
- 46.
- 47.
See Molenaar, “Port State Jurisdiction: Towards Comprehensive, Mandatory and Global Coverage” (2007), 246 suggesting that the notion of “responsible port states” might be a helpful basis for future developments at the international level.
- 48.
Özçayir, Port State Control (2004), 1.
- 49.
Johnson, Coastal State Regulation of International Shipping (2004), 50, fn 167.
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Marten, B. (2014). Conclusions. 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_7
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