Thursday, May 28, 2009

20th. CENTURY CE DEVELOPMENTS

During World War 1 (1914-1918 CE) the use of submarines and aircraft demonstrated the inadequacy of international law with respect to freedom of the seas. Virtually all laws and treaties relating to the subject were disregarded as Great Britain strove to blockade the European continent and the German Empire attempted to isolate the British from the rest of the world. Interference by the German Empire in American trade with Great Britain was one of the causes of the entry of the United States into the war in 1917 CE.

Again during World War 2 (1936-1945 CE) the rights of neutrals were largely disregarded by the belligerent powers. This was because of the desperate urgency of both sides to utilize every means of achieving victory and because of the global character of the war.

The Charter of the United Nations (1945 CE) included a provision, Article 42, empowering the Security Council to institute partial or total interruptions of sea communications . These included blockades when necessary to maintain or restore international peace or security as per Article 42. The United Nations Conference on the Law of the Sea was convened in Geneva Switzerland in 1958 CE. It defined the rights of navigation and fishing on the High Seas in time of peace. It further approved Articles defining the continental shelf and innocent passage of foreign ships through territorial waters and straits. Innocent passage was defined as maritime transit that "is not prejudicial to the peace, good order or security of the coastal state". Despite protracted discussion over the question of 3 nautical mile, 6 nautical mile or 12 nautical mile territorial waters, differences remained unresolved. After a second Conference on the Law of the Sea in 1960 CE the issue still remained unresolved.

The continuing disagreement over the width of territorial waters posed new threats to the freedom of the seas. In 1952 CE, Ecuador, Peru and Chile extended their claims to 200 nautical miles (370.4 Km) and seized foreign ships engaged in fishing without their permission. Several other nations also began to extend their offshore zones well beyond 12 nautical miles to exercise control over their fish stocks, commercial catches and natural resources. The increasing number and intensity of international disputes, such as the British -Iceland cod wars, resulting from such unilateral actions showed the need for a Conference. There were other problems such as the discovery of minerals in the deeper seabed and the rights to exploit them. The United Nations convened the third Conference on the Law of the Sea in 1973 CE. In 1977 CE, with the Conference still in session, the United States extended its fishing zone to 200 nautical miles, limited fishing within that area to nations that gave reciprocal rights to United States fleets. Following this action many nations established similar 200 nautical mile zones reaching fishing agreements with other countries by direct negotiation. Ordinary navigation was not restricted in these fishing zones.

A Treaty adopted at the 1982 CE session of the Law of the Sea Conference approved 12 nautical miles as the territorial limit for coastal states and 200 nautical miles as the "Exclusive Economic Zone". Thus a country's EEZ includes control over fishing rights, marine environmental protection and scientific research within their Zone. The 1982 Convention, not fully in force, covers the full range of ocean law subjects including rights on the High Seas, rules governing seabed minerals, and development beyond national jurisdiction. Along with other nations the United States has not signed this Treaty because of objections to the rules on mineral development in the international seabed.

Good Watch.

Wednesday, May 27, 2009

FREEDOM OF THE SEAS

In international law the right of all nations to navigate, fly over, fish, and conduct scientific investigations freely on the High Seas without molestation by any nation in time of peace. This right is subject to the right of belligerents, in time of war, to search neutral vessels for contraband of war, non-neutral service and breaking blockade of enemy ports.

Some history of how all this came about. During the Middle Ages freedom of navigation on the High Seas was curtailed by maritime powers that asserted territorial sovereignty over various bodies of water. Challenges by other countries to such claims increased markedly during the 16th. and 17th. Century's CE largely because of the growth in world trade following discovery, exploration and colonization of new lands by European powers.

The legal basis for claims of territorial sovereignty over the 'High Seas' was dealt a severe blow by the Dutch jurist Hugo Grotius who is regarded as the 'father' of International Law. Grotius on the basis of Roman legal principle contended in his Mare Liberum (Free Sea) 1609 CE that the seas could not constitute property because they cannot be occupied in the sense in which land can be occupied. Therefore they are free to all nations and subject to none. In the 18th. Century CE the Dutch jurist Cornelius van Bynkershoek formulated the important principle of international law that the waters adjoining the shores of a country within the range of artillery on land are not included in the judicial meaning of the term 'High Seas'. These waters are under the territorial sovereignty of the contiguous country. This principle was subsequently adopted throughout the world. A distance of three (3) nautical miles, 5.556 km was generally accepted but this limit was challenged in the 20th. Century CE and many countries claimed six (6) nautical miles, 11.112 km and some claimed twelve (12) nautical miles, 22.224 km.

In the late 18th. Century CE several attempts to curtail free navigation on the High Seas were made by powers such as the United Kingdom. They sought in time of war to stop all trade of other nations with its enemies, these were the Navigation Acts. A notable example of the assumption of such rights was the blockade of western European ports during the Napoleonic Wars. The United States replied with the Embargo Act (1807 CE) and the Nonintercourse Act (1809 CE). Another instance was the molestation by the English of United States shipping on the High Seas. This in turn was one of the direct causes of the War of 1812 CE.

Controversy over conflicting rights of neutrals and belligerents occupied a prominent place in international affairs throughout the 19th. Century CE and the first decade of the 20th. Century CE. The Declaration of Paris of 1856 signed during the Crimean War by the United Kingdom and France, later accepted by most other powers, increased freedom of the seas for neutrals. The Declaration of London of 1909 resulted from an international naval conference convened to resolve certian questions regarding trade and contraband raised at the second Hague Conference. Although the Declaration further defined neutral rights it was never ratified.

Good Watch.

Tuesday, May 26, 2009

NAVIGATION ACTS

As our Maritime Law series continues we come to one of the causes of the American Revolution. Legislation was passed by the English Parliament in the 17th. and 18th. Century's CE to promote and protect English industry and commerce against foreign competition. These acts were sometimes called the Acts of Trade and Navigation. The Navigation Act of 1651 CE stipulated that goods imported or exported by English colonies in Africa, Asia or America be shipped on vessels constructed by English shipbuilders and sailed by crews that were 75% English. Goods imported from the colonies into England also had to arrive on English vessels. Goods from foreign countries were restricted to vessels from the exporting country or to English ships.

The term 'English' referred to individual nationality and not to place of residence and so colonists and colonial shipping were considered 'English'. The Act of 1660 CE specified certain articles, principally tobacco, rice, and indigo, that the English colonists could export only to another English colony or to England. Later Statutes such as the Woolens Act of 1750 CE were all attempts to prevent manufacturing in the English colonies that might threaten the industrial economy of England.

These Acts were a development of the mercantile system, an economic policy prevailing in Europe throughout the 16th. 17th. and 18th. Century's CE. The regulations had clear advantages for English subjects in the American colonies. American shipbuilding prospered because of the requirement that all vessels be English built. Producers of most of the named articles found a stable protected market in England and their sister colonies. A system of export bounties and rebates was set up and actually kept prices of English goods lower than those that would have prevailed under a system of open competition.

During the period of the French and Indian Wars (1755-1763 CE) however when Parliament was forced to seek increased revenues to pay costs of defending the American colonies English officials determined to levy heavier duties under the provisions of the Navigation Acts. American colonists found these duties onerous and they are considered among the indirect causes of the American Revolution (1775-1783 CE). The Navigation Acts were repealed in 1849 CE.

Good Watch.

Monday, May 25, 2009

THE SCOPE OF MARITIME LAW

INFORMATIONAL ONLY NOT LEGAL ADVICE

The maritime law of the United States and United Kingdom enforces liability for common-law wrongs. Maritime torts include all illegal acts or direct injuries arising in connection with commerce and the wrongful taking of property. The law permits recovery only for actual damages. Maritime law also recognizes and enforces contracts and awards damages for failure to fulfill them.

The adjustment of the rights of the parties to a maritime venture is in accordance with the principles of 'General Average'. This pertains to apportioning of loss of cargo and is an important function of maritime courts. The doctrines pertaining to general average are among the most important of maritime law. The Admiralty Court of the United Kingdom has acquired jurisdiction by statute over crimes committed on the High Seas outside the territorial waters of the United Kingdom. Similar jurisdiction has been conferred by Congress on the U.S. Federal Courts. International agreements have been made to handle the problems of safety at sea, pollution control, salvage, rules for preventing collisions and coordination of shipping regulations.

Good Watch

MARITIME LAW

Now that the boating season is in full swing after Memorial Day NAUTICAL LOG is starting a series on Maritime Law. Many seafarers, most particularly recreational boaters, do not actually have knowledge of maritime law. Learning can start out with a check from USCG or CBP and from there, unfortunately, can lead to quite some difficulties. As you read this series of Posts you may decide to talk with your Legal Counsel and discuss what you need to know pertaining to your vessel.
INFORMATIONAL ONLY NOT LEGAL ADVICE

Maritime Law is that branch of Law relating to commerce and navigation on the High Seas and other Navigable Waters. Specifically the term refers to the body of customs, legislation, international treaties and court decisions pertaining to ownership and operation of vessels, transportation of passengers and cargo on them, the rights and obligations of their crews while in transit.
Some history as to the origins of maritime law which goes back to antiquity and the trading of goods by water transportation. Because no country has jurisdiction over the seas it has been necessary for nations to reach agreements regarding ways of dealing with ships, crews and cargo's when disputes arise. The earliest agreements were probably based on a body of ancient customs that had developed as practical solutions to common problems. Many of these customs became part of Roman Civil Law. So from the beginning maritime law has been international in scope.
After the fall of the Roman Empire maritime commerce was disrupted for about 500 years. When maritime activity was resumed in the Middle Ages various disputes arose and laws were formulated to deal with them. Gradually the laws of the sea were compiled. Among the best known collections of early maritime law are the Laws of Oleron developed in France and the Black Book of Admiralty. This latter was an English compilation prepared during the 14th. and 15th. Century's CE. Many countries set up special courts to administer maritime law. In England these courts are known as Admiralty Court.
In the United States provisions in the U.S. Constitution assigned maritime law to the Federal Courts. These Courts have jurisdiction over maritime contracts, injuries, offenses and torts. Maritime causes are deemed to be those directly affecting commerce on navigable waters that form a continuous highway to foreign countries. In any dispute the fact that commerce is practised only on waters within a single State does not affect the jurisdiction of the Federal Courts. Many aspects of U.S. maritime law are now governed by U.S. Federal Statutes and thus are no longer dependent upon the Constitutional power of Congress to regulate commerce.
Good Watch

Thursday, May 21, 2009

NAVIGATION UNDER PILOTAGE, U.S. Credential




This is the new format of the 'passport' type and sized U.S. Merchant Mariner Credential. This is a Federal issued Document which U.S. Federal Licensed Pilots will have to carry. No doubt the State Licensed Pilots and Berthing Masters will have to carry a similar State issued Document.

Now in view of the MS "Cosco Busan" incident and the subsequent United States NTSB Report it may be a good practice for Pilots and Berthing Masters to present this Credential to Masters on boarding. Masters can then visually inspect and record the Credential details of Pilots and Berthing Masters into their Bridge Log. Thus regardless of any communication difficulties, expressed then or later, Masters will have a complete record in the Bridge Log. The documentation is compact and convenient to carry in a pocket or 'pilots bag'. Already the Port Authorities have the vessel's crewlist and details for several days prior to the vessels arrival in a United States port.

As we have seen in the previous Post it is extremely important for full, clear, complete and accurate information to be exchanged between Masters, Pilots and Berthing Masters for 'Navigation under Pilotage'.

If you would like to learn about the work of Pilots visit the Biscayne Bay Pilots website. There are great photos showing them boarding ships and navigating them at the Port of Miami, FL. Also the Puget Sound Pilots website has information about their extensive pilotage area. Both these can be found in the Link List below.

Good Watch

Tuesday, May 19, 2009

NAVIGATION UNDER PILOTAGE

My first introduction to the complex relationship of a Master and Pilot was in October 1953 while attending Seamanship School in Europe. That was as a Cadet starting pre-sea training, now some 56 years later it is still as complex and clearly an unresolved issue. The basic problem is that all Pilotage Authorities want complete control without the final responsibility. This means that they can then 'opt out' when things go wrong, as sometimes they do. Masters know this and Pilots know this, though their Pilotage Authorities will argue this point 'ad infinitum'.
The exception is the Panama Canal where the Canal Transit Authority accepts full responsibility and has complete control for a vessel's transit. It is all properly documented thus everybody involved knows and understands exactly where they stand. Mostly in other ports the Pilot boards and things go off well, particularly given the difficulties of communication on occasions. Port Pilots are remarkably adaptive cheerful people doing an excellent job in all sorts of conditions and weather. However on occasions things come apart at the seams.

On the morning of November 07, 2007 the MS "Cosco Busan" prepared to leave the Port of San Francisco. Her Port of San Francisco Pilot boarded and from that point things went steadily downhill. The resulting NTSB Report says it all, and it manages to excuse, blame and insult everybody involved.

The Report's section on 'Cultural Differences,' covering the interaction between the Master and Pilot, is particularly offensive. In the 'Conclusion' section item #11, "by cultural differences that made the Master reluctant to assert authority over the Pilot," is a deplorable, inaccurate, discourteous and racist sentence which has no place in a United States NTSB Report.

Every Master has a clear right to be supplied a Pilot in command of his faculties as well as his knowledge of the Port. Clearly this was not the case that morning. The Vessel Traffic System (VTS), manned by USCG, should have told the Pilot to delay sailing until there were more positive factors for handling this large vessel. The Master of MS "Cosco Busan" had a perfect right to assess that since no negative factors had been stated to him the Port passage was suitable for his vessel. Indeed that was why the Port of San Francisco Compulsory Pilot was on board in the first place, to conduct a safe departure passage. He would do so by having and giving expert Port of San Francisco navigational knowledge to the Master of MS "Cosco Busan". Unfortunately this navigational knowledge was impaired by the Pilot's personal health, something the Master of MS "Cosco Busan"could not possibly have known.

For NAUTICAL LOG the saving grace of the NTSB Report is the dissent by Member Deborah A. P. Hersman. This dissent shows a complete understanding of the role of the Master with a 'Compulsory Pilot' on board. Her comments were the most valuable and effective part of the entire investigation and we thank her for them, regretfully her term with NTSB is now completed.

So then what is a Master to do? Where does he get guidance to make an assessment? Let me say it is all rather tricky and full of legal pitfalls for the unwary. Fortunately in the United Kingdom 'Navigation under Pilotage' is covered under The Merchant Shipping Acts. Also Her Majesty's Government issue 'updates' in the form of a Statutory Instrument (S.I.) as may be required. British Masters and Masters of British ships, not necessarily the same thing these days, are expected to keep themselves up to date on SI's effecting British ships. So lets take a look at what The Merchant Shipping Act and S.I.'s cover in this regard.


INFORMATIONAL ONLY NOT LEGAL ADVICE
"For several hundred years shipmasters have engaged the services of persons having local navigation knowledge to assist in navigating their ship. The use of such 'pilots' was originally entirely at the discretion of the Master. However, where the Master lacked the appropriate skills and knowledge on board, failure to use a pilot could be seen as a breach of obligations as to seaworthiness and possibly constitute civil negligence. In the course of time governments, and harbour authorities began to insist that they, under control of a pilot license, administer the navigation of ships in the area under their authority. This was done in the interest of safety of all shipping using the area, compliance being enforced through legislation and criminal sanctions.
The presence on board of a Pilot, particularly a Compulsory Pilot, who is required by law, to take charge of the navigation of a ship creates difficulties in terms of personal liability of the Master and the Pilot should the ship be involved in a marine casualty during pilotage.
The Master of a ship has a personal duty to the owner, crew, passengers and cargo to take reasonable care of all. Breach of this duty resulting in damage to any could make the Master personally liable to pay compensation and his employer vicariously liable for such damage. Thus failure to obtain the services of a pilot could constitute a breach of duty that is civil negligence.
Compulsory Pilotage means that by law the Pilot is in charge of the navigation of the ship. The Master is at all times in command of his ship and can at any time take the navigation out of the hands of the Pilot. Indeed the Master has a duty to take the navigation out of the hands of the Pilot who shows manifest incompetence from any cause. Under Compulsory Pilotage this would mean safely securing the ship and calling for another Pilot. Under 'Compulsory Pilotage' the context of 'navigation of the ship' involves such things as directing tugs, courses, speed, turns, using swinging basins, where and when the ship will come to rest. The Pilot is personally accountable for any errors he may make in respect of these matters.
The Master is required to ensure that the ship responds promptly and efficiently to the Pilot's orders as to course and speed. The Master is further required to provide the Pilot the support he needs such as lookouts, radar observer's, navigators as circumstances dictate. Failure to do so would make the Master personally responsible.
In non-compulsory pilotage the Pilot has no right in any form to take charge of the navigation of the ship. He is merely an additional navigator who responds to the Master's orders as any other officer.
The Law of the country having jurisdiction over the area decides on the type of Pilotage and its usage. In the United Kingdom legislation gives virtually complete control over Pilotage to various 'Competent Harbour Authorities'. Many have contracted with Trinity House to provide Pilotage Service. Similar legislation exists in other countries. In the United States a system of Federal Licensed Pilots and State Licensed Pilots and Berthing Masters exists.
Finally Masters or Deck Officers can obtain endorsements for various Ports and thus be exempted from Pilotage by acting as their own Pilots under the terms of this endorsement."
Good Watch