raison d'etre for the shipowner to be in business is to reap the profits; not to incur
liabilities.
95
In addition to the role of the private sector, in the absence of the concept of the
flag state, port and coastal state authorities will perform the policing role as they are
already. There will be no room for blame culture as there is at present with all cards
stacked against the open registries because there will be no flag state, open, closed or
otherwise. A substandard ship would be identified solely in terms of its
non-adherence to standards set internationally and applied across the board independent of any stigmatization. Shifting the focus from flag states to the imposition of
more stringent responsibility on shipowners and operators and robust enforcement
measures under port and coastal state control regimes of relevant IMO and ILO
convention may well be the answer leading to the eradication of substandard ships.
It is conceded such a radical proposition such as this will be unobtainable under
law and practice as currently structured, because the fundamental premise of flag
state primacy is deeply rooted in history and tradition.
By a process of elimination, it is possible to narrow down considerably the
situations in which there is a potential for a legal vacuum in the absence of a flag
state. The international law concepts of freedom of the high seas and innocent
passage in the territorial seas will continue to apply as at present. Identification of
a ship can be maintained by creating an international register. Virtually all matters
pertaining to life on board can be dealt with through the jurisdiction of the place of
domicile of the shipowner or operator. International conventions can be enforced
through the application of port or coastal state jurisdiction. The nationality of a
person born on board a ship on the high seas can be readily determined by the
nationality of the mother. If two persons were to enter into a contract on board while
the ship was on the high seas, they can mutually decide on the choice of law. If a will
were to be drawn up or a trust established by an individual on board a ship on the
high seas, the law of that individual’s nationality could apply. In criminal matters,
the law of the nationality of the perpetrator or the victim could apply. In the case of a
maritime crime such as piracy which is considered jus cogens, the law of any state
can apply. In all the above circumstances, there would effectively be no legal
vacuum and safe shipping would not have to be sacrificed.
6 Conclusion
In this chapter, an attempt is made to probe into the issue of substandard ships and
their eradication by first examining the legal concept of ship nationality and its
related procedural device of ship registration. The phenomenon of the flag state in all
its facets is then examined; and in particular, the position of open flag states or open
registries is analytically observed.
95 Mukherjee (2000), p. 111.
604
R. Mukherjee
liabilities.
95
In addition to the role of the private sector, in the absence of the concept of the
flag state, port and coastal state authorities will perform the policing role as they are
already. There will be no room for blame culture as there is at present with all cards
stacked against the open registries because there will be no flag state, open, closed or
otherwise. A substandard ship would be identified solely in terms of its
non-adherence to standards set internationally and applied across the board independent of any stigmatization. Shifting the focus from flag states to the imposition of
more stringent responsibility on shipowners and operators and robust enforcement
measures under port and coastal state control regimes of relevant IMO and ILO
convention may well be the answer leading to the eradication of substandard ships.
It is conceded such a radical proposition such as this will be unobtainable under
law and practice as currently structured, because the fundamental premise of flag
state primacy is deeply rooted in history and tradition.
By a process of elimination, it is possible to narrow down considerably the
situations in which there is a potential for a legal vacuum in the absence of a flag
state. The international law concepts of freedom of the high seas and innocent
passage in the territorial seas will continue to apply as at present. Identification of
a ship can be maintained by creating an international register. Virtually all matters
pertaining to life on board can be dealt with through the jurisdiction of the place of
domicile of the shipowner or operator. International conventions can be enforced
through the application of port or coastal state jurisdiction. The nationality of a
person born on board a ship on the high seas can be readily determined by the
nationality of the mother. If two persons were to enter into a contract on board while
the ship was on the high seas, they can mutually decide on the choice of law. If a will
were to be drawn up or a trust established by an individual on board a ship on the
high seas, the law of that individual’s nationality could apply. In criminal matters,
the law of the nationality of the perpetrator or the victim could apply. In the case of a
maritime crime such as piracy which is considered jus cogens, the law of any state
can apply. In all the above circumstances, there would effectively be no legal
vacuum and safe shipping would not have to be sacrificed.
6 Conclusion
In this chapter, an attempt is made to probe into the issue of substandard ships and
their eradication by first examining the legal concept of ship nationality and its
related procedural device of ship registration. The phenomenon of the flag state in all
its facets is then examined; and in particular, the position of open flag states or open
registries is analytically observed.
95 Mukherjee (2000), p. 111.
604
R. Mukherjee