be removed from the law, what might be the consequences? It is submitted that ship
nationality is not needed to impose measures to enforce safety requirements. As
radical and implausible as it may sound, there may be something to be gained from
it. By eliminating the concept of ship nationality, and the flag state, one of the
mandatory layers of the enforcement mechanism can be dissolved, but not necessarily to the detriment of safe, secure and environmentally friendly shipping. Basically, it will mean a re-distribution of responsibilities with regard to observance and
maintenance of proper internationally established safety standards for ships.
5.2 Replacement Regime in the Absence of Ship Nationality
and Flag State
At this juncture, it is perhaps expedient to explore alternatives to achieving eradication of sub-standard ships. It is proposed that the substantive notion of nationality be
de-linked from the procedural mechanism of ship registration. Nationality and
registration need not be interdependent. Obviously, once nationality is eliminated,
the concept of the flag state will vanish with it, and the stigma attached to open
registries will consequently be removed. Of course, there will be numerous implications, but it is submitted that standards can be maintained in ways other than by
conferment of nationality through the registration process. Only the private law
functions of registration need be retained, and there may not be a need to maintain
national registries for this purpose. Regional or international registries may suffice.
The “standard bearer”, to put it metaphorically, will be the shipowner or operator.
The private law entities who are directly involved with shipping such as classifications societies already doing their part. Others include ship financiers such as
mortgage lenders and insurers. Before lending a substantial amount of money to a
shipowner, a lender will surely verify that the ship is safe and seaworthy. The
shipowner borrower must ensure that requisite safety standards are maintained,
otherwise he runs the risk of mortgage money being declined. Even if a shipowner
finds a flag state with low standards, and cheap, inadequately trained crew, and
somehow manages to acquire a mortgage and insurance, he may not be able to secure
cargo if the ship is a safety or environmental risk.
There are other consequences for a shipowner who does not meet the standards.
The ship may be involved in a collision causing an environmental disaster and/or
loss of life; it may become black listed by a port and denied entry, or boycotted by
stevedores. All of this can result in serious economic detriment. In realistic terms,
public law impositions will not necessarily deter a shipowner from doing business.
But private law consequences will provide an incentive to maintain high standards,
the paramount consequence being a decline in profits. At the end of the day, the
Ship Nationality, Flag States and the Eradication of Substandard Ships:. . .
603
nationality is not needed to impose measures to enforce safety requirements. As
radical and implausible as it may sound, there may be something to be gained from
it. By eliminating the concept of ship nationality, and the flag state, one of the
mandatory layers of the enforcement mechanism can be dissolved, but not necessarily to the detriment of safe, secure and environmentally friendly shipping. Basically, it will mean a re-distribution of responsibilities with regard to observance and
maintenance of proper internationally established safety standards for ships.
5.2 Replacement Regime in the Absence of Ship Nationality
and Flag State
At this juncture, it is perhaps expedient to explore alternatives to achieving eradication of sub-standard ships. It is proposed that the substantive notion of nationality be
de-linked from the procedural mechanism of ship registration. Nationality and
registration need not be interdependent. Obviously, once nationality is eliminated,
the concept of the flag state will vanish with it, and the stigma attached to open
registries will consequently be removed. Of course, there will be numerous implications, but it is submitted that standards can be maintained in ways other than by
conferment of nationality through the registration process. Only the private law
functions of registration need be retained, and there may not be a need to maintain
national registries for this purpose. Regional or international registries may suffice.
The “standard bearer”, to put it metaphorically, will be the shipowner or operator.
The private law entities who are directly involved with shipping such as classifications societies already doing their part. Others include ship financiers such as
mortgage lenders and insurers. Before lending a substantial amount of money to a
shipowner, a lender will surely verify that the ship is safe and seaworthy. The
shipowner borrower must ensure that requisite safety standards are maintained,
otherwise he runs the risk of mortgage money being declined. Even if a shipowner
finds a flag state with low standards, and cheap, inadequately trained crew, and
somehow manages to acquire a mortgage and insurance, he may not be able to secure
cargo if the ship is a safety or environmental risk.
There are other consequences for a shipowner who does not meet the standards.
The ship may be involved in a collision causing an environmental disaster and/or
loss of life; it may become black listed by a port and denied entry, or boycotted by
stevedores. All of this can result in serious economic detriment. In realistic terms,
public law impositions will not necessarily deter a shipowner from doing business.
But private law consequences will provide an incentive to maintain high standards,
the paramount consequence being a decline in profits. At the end of the day, the
Ship Nationality, Flag States and the Eradication of Substandard Ships:. . .
603