The first time I heard my Maritime Law Professor refer to a ship as ‘she’/ ‘her’, I was highly amused. Over the classes I fell in love with the usage and as you can imagine, the subject! As you can guess, this post is all about Maritime Law! This post is only a general, beginner’s outlook on the subject.
Maritime Law is probably one of the oldest constellations in the universe of ‘LAW’. It has developed over the centuries into a full-fledged field of law. Maritime Law, sometimes also known as ‘admiralty’ law, has now been established as one of the fundamental branch of law that deals with regulation of navigation through water (oceans, sea or any other water body capable of being navigated) as well as commerce through such media. On one hand we have certain international law aspects dealing with maritime security, demarcation of the maritime zones of coastal states, marine environment, piracy etc., which come under the purview of Maritime Law and on the other hand we have basic commercial law aspects which deal with sale of goods, contracts, carriage of goods etc.
Origin and Development:
The origin of admiralty law can be traced back to the days of Roman and Byzantine Laws. The Rhodian Code (codified in around 600-800 A.D.) seems to be the accepted legal document laying down the first canons of admiralty law. The Code was divided into 3 parts- the first dealing with the ratification of ‘naval’ laws by the Roman emperors, the second dealing with crew related regulations with respect to profit sharing and general regulations to be followed on the ship and lastly, the third part dealt with crimes and apportionment of responsibility in case of theft or damage to the cargo or the ship.
Admiralty law was introduced to Britain by the French Queen, Eleanor of Aquitaine while she was ruling on behalf her son, King Richard. Special Admiralty courts were set up which applied not common law, but civil law based mainly upon the Corpus Juris Civilis of Justinian.
The English settlers and colonial lords, in turn, introduced the tenets of admiralty law to the Land of Promises- America. It became part of the US law through a variety of admiralty cases arising after the adoption of the U.S. Constitution in 1789.
Features of Commercial Maritime Law:
This is also referred to as shipping law. Generally, it can be divided further into two categories- dry shipping and wet shipping. The figure below shows the various facets of commercial maritime law. I would be dealing briefly with each head.
- Ship Registration and Regulations on Merchant Shipping:
Under this head, I am basically referring to the various rules regarding registration of ships and also the laws relating to obligations of a ship owner with regard to the ship, her crew and officers. This include maintenance of proper accounts; payment of wages, salary and other allowances to the crew and officers; certification of officers; standards of safety measures to be taken on board a ship etc. In India, this is regulated by Parts V-IX of the Merchant Shipping Act of 1958.
- Carriage of Goods or Passengers by Sea
This is one of the most ancient and also, the most important aspect of shipping law. Based on plain basic law of contracts and sale of goods principles, carriage of goods by sea is by far the largest contributor of international trade. It is one of the key areas of study, wherein the learner finds the concepts of conflict of laws, contract law, and sale of goods, all mixed into an interesting cocktail. Thus we hear of terms like charterparty agreements, bills of lading, lay-time, demurrages etc while dealing with the subject.
Salvage means ‘to rescue’. Thus, it refers to saving of the ship, her cargo and her crew/passengers in perilous circumstances. The concept of salvage also has another essential feature, it mandates that the ‘salvor’ must be compensated/rewarded for his efforts. There are certain conditions for a successful salvage claim, the property in question must be a marine property; there must be real danger; the service rendered must be voluntary and not contractual; success in salving the property in question. Salvage law has now expanded in its scope and now includes wreck salvage and treasure salvage. There are various international treaties which lay down the guidelines in such cases- The 1989 Salvage Convention, Nairobi Convention on the Removal of Wrecks, etc.
- General Average
Another dimension of commercial maritime law, general average is a right of contribution as between the various interests in a voyage: the ship; the cargo owners; and the party entitled to freight. The development of this concept predates the emergence of marine insurance. The right arises whenever extraordinary sacrifices have been made or extraordinary expenses incurred by one interested party for the preservation of the other interests in the common adventure. In such cases, the cost of such sacrifices or expenses must be borne proportionately among all of the interests in the voyage, including the interest that made the sacrifice or bore the expense. That interest will then have a direct action against the other interests in respect of their proportionate contributions.
Collisions at sea are unfortunately, an important part of maritime law. Such incidents are usually the result of negligence by the crew of the ship. Thus, the law of negligence under the law of torts is applicable in such cases. More importantly, the ship-owners are vicariously liable for such incidents as the crew members are their employees. The International Maritime Organisation has come up with various Collision Regulations (also referred to as COLREGS) to prevent such mishaps on the sea. The COLREGS set out the rules to be followed by vessels at sea to prevent collisions.
- Marine Insurance
It is said that the principles of modern law of insurance were developed based on the principles of marine insurance. This branch of maritime law developed due to the various judicial pronouncements of the English Courts. The risks covered include that of transportation of goods, value of the goods, damge to such goods due to perils of the sea (perils of nature). In India, this area is regulated by the Maritime Insurance Act of 1963 which is based on the original Marine Insurance Act, 1906 of UK. A very important development in this field is the establishment of various protection and indemnity clubs of ship owners, ship operators or charterers, known as P&I Clubs. These clubs are basically mutual insurance association which provide for ‘risk-pooling’, information and representation for its members.
Features of International Maritime Law
- Law of the Seas
The UN Convention on the Law of the Sea (UNCLOS) is one of the most important legal instruments in the International Maritime Law. It was adopted at the Third UN Conference on the Law of the Sea which took place between 1973 and 1982. The UNCLOS, in short, defines the rights and duties of nations with respect to their use of the world’s oceans; establishing guidelines for economic activities and management of the marine natural resources; addresses environmental concerns etc. the biggest achievement of the treaty is that it succeeded in demarcating the various maritime zones- the territorial seas, contiguous zones, the exclusive economic zones and the continental shelves.
- International Maritime Organisation (IMO)
The IMO is a specialised agency of the UN, established in 1959, with 171 members. The primary purpose of the Organisation is to establish and maintain a proper regulatory framework for shipping. The scope of its activities in this regard ranges from safety at sea, environmental concerns, legal matters, technical co-operation, maritime security and efficiency of shipping. The IMO has thus been responsible for various multilateral treaties and conventions to improve shipping holistically- for instance, the SOLAS Convention (International Convention for the Safety of Life at Sea); the MARPOL Conventions (dealing with marine pollution from ships); the COLREGS etc.
An issue of world-wide concern, piracy has always existed on the seas since time immemorial. It is in its most basic sense, an act of robbery or criminal violence at sea. Piracy is therefore subjected to universal jurisdiction, i.e. any state can exercise criminal jurisdiction over the accused. Piracy directly affects only a small percentage of international shipping, but indirectly the crime impacts thousands of vessels through increased insurance premiums and changed trade routes. Moreover, satisfying the demands of pirates usually results in payment of billions of dollars in tribute and ransom, and this money provides support to illicit organized crime syndicates.
So, I guess that covers most of the important aspects of maritime law. As I mentioned before, this is just an overview of the subject. Admiralty law has now developed into a highly specialised field which is seen as an asset especially to the coastal states in the world. Further, these states have realised the immense potential of oceans as a treasure of various minerals and resources. The high seas are open to all countries, therefore much development is to be seen in that field. With respect to shipping, it is best to quote the former chairman and managing director of the Shipping Corporation of India (SCI), “without it, half the world would starve and the other half would freeze, because it is the shipping through which 90% of the international trade is carried out”.
About the Author
Meera is currently pursuing her final year of law at National University of Advanced Legal Studies, Kochi. Her core areas of interest are international law and maritime law and she wishes to pursue the same in the future. She loves mooting and dreams of representing her country at the World Court someday. When she isn’t dreaming, she likes to read, play volleyball, travel and meet new people.