medieval Italy where the names of the ship, her owner and her tonnage were
registered.
19 In England, before 1786 there were no central government records of
ship registration in the British Isles although ships began to be registered in the
middle of the seventeenth century.
Today, states with maritime interests continue to maintain registers for the
purpose of recording the particulars of the vessels on which they confer nationality.
The requirements and preconditions needed by a ship to register and consequently
obtain nationality are determined by the individual states.
20
Ship registration incorporates both public and private functions.
21 The difference
between public law and private law was first determined in the Justinian Institutes.
There it was asserted that, “public law is that which has to do with the constitution of
the [Roman] state; private law, that which has to do with the individuals”.
22 The fact
that registration provides a notion of nationality is a public law function. The public
law perception of the ship is a, “. . .floating community carrying with it the sovereignty of the State whose flag she flies. . .”
23 Included among the public law
functions of registration are the following:
• the allocation of a vessel to a specific State and its subjection to a single
jurisdiction for the purposes, for example, of safety regulation, crewing and
discipline on board;
• the conferment of the right to fly the national flag;
• the right to diplomatic protection and consular assistance by the flag State;
• the right to naval protection by the flag State;
• the right to engage in certain activities within the territorial waters of the flag State
– for example, coastal fishing or trading between the ports of the flag State
(cabotage);
• in case of war, for determining the application of the rules of war and neutrality to
the vessel.
24
The public law function is reflected in Article 94(1) of UNCLOS which provides
that, “. . .Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.” Article 94(3) provides that “Every State shall take such measures for ships under its flag as are
necessary to ensure safety at sea. . .”
In private law, the ship is viewed as moveable property, upon which the individual may have rights that require protection by the law.
25 Private law functions in the
context of registration include:
19 Ready (1998), p. 2.
20 Ibid.
21 Liverpool Borough Bank v. Turner (1860) 29 LJ Ch 827.
22 Ready (1998), p. 6.
23 Ibid, p. 7.
24 Ibid.
25 Ibid.
Ship Nationality, Flag States and the Eradication of Substandard Ships:. . .
585
registered.
19 In England, before 1786 there were no central government records of
ship registration in the British Isles although ships began to be registered in the
middle of the seventeenth century.
Today, states with maritime interests continue to maintain registers for the
purpose of recording the particulars of the vessels on which they confer nationality.
The requirements and preconditions needed by a ship to register and consequently
obtain nationality are determined by the individual states.
20
Ship registration incorporates both public and private functions.
21 The difference
between public law and private law was first determined in the Justinian Institutes.
There it was asserted that, “public law is that which has to do with the constitution of
the [Roman] state; private law, that which has to do with the individuals”.
22 The fact
that registration provides a notion of nationality is a public law function. The public
law perception of the ship is a, “. . .floating community carrying with it the sovereignty of the State whose flag she flies. . .”
23 Included among the public law
functions of registration are the following:
• the allocation of a vessel to a specific State and its subjection to a single
jurisdiction for the purposes, for example, of safety regulation, crewing and
discipline on board;
• the conferment of the right to fly the national flag;
• the right to diplomatic protection and consular assistance by the flag State;
• the right to naval protection by the flag State;
• the right to engage in certain activities within the territorial waters of the flag State
– for example, coastal fishing or trading between the ports of the flag State
(cabotage);
• in case of war, for determining the application of the rules of war and neutrality to
the vessel.
24
The public law function is reflected in Article 94(1) of UNCLOS which provides
that, “. . .Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.” Article 94(3) provides that “Every State shall take such measures for ships under its flag as are
necessary to ensure safety at sea. . .”
In private law, the ship is viewed as moveable property, upon which the individual may have rights that require protection by the law.
25 Private law functions in the
context of registration include:
19 Ready (1998), p. 2.
20 Ibid.
21 Liverpool Borough Bank v. Turner (1860) 29 LJ Ch 827.
22 Ready (1998), p. 6.
23 Ibid, p. 7.
24 Ibid.
25 Ibid.
Ship Nationality, Flag States and the Eradication of Substandard Ships:. . .
585